Court of Appeals of Washington, Division 1
Sexton v. Brown
Not Reported in P.3d, 147 Wash.App. 1005, 2008 WL 4616705 (Wash.App. Div. 1)
In this Washington case, Valeri Sexton and Corey Recla sued Kenny Brown, DVM, for damages arising from the death of their dog. Plaintiffs alleged a number of causes of action including negligence, breach of bailment, conversion, and trespass to chattels. The incident occurred after plaintiff's dog ran away while plaintiff was camping Marblemount area. Another party found the Yorkshire terrier and took it to defendant-veterinarian's office, the Pet Emergency Center (PEC). After being examined first by a one veterinarian, defendant-veterinarian Brown took over care and determined that the dog suffered from a life threatening condition; he then told the finders that if they did not want to pay for further care, they could have the dog euthanized. The finders chose euthanasia. The plaintiffs appealed summary judgment dismissal of her breach of bailment claim and the trial court's ruling that the measure of damages is limited to the fair market or replacement value of the dog. Defendant-Brown cross appeals the trial court's decision that the medical malpractice act, chapter 7.70 RCW, does not apply to veterinarians, the denial of his motion to dismiss the conversion and trespass to chattels claims, and the decision that Sexton is entitled to search costs and that Brown was not entitled to attorney fees under the small claims statute, RCW 4.84.250. This court affirmed the trial court's decision that the medical malpractice act does not apply to veterinarians. It also affirmed the dismissal of Sexton's breach of bailment claim, finding that Brown was not a finder under relevant Washington law. The court did find that there were material issues of fact about the measure of damages, and reversed the decision to limit damages to the fair market or replacement value of the dog. Further, the court found genuine issues of material fact about whether Brown's actions were justified when viewed under the requirements of Washington's veterinary practice laws. This court did, however, reverse the decision to award search costs plaintiff incurred to locate her lost dog. Defendant-Brown did not find the dog and there is no evidence that Brown sought to claim ownership of the dog. Finally, the court affirmed the trial court's decision that Brown is not entitled to attorney fees under the small claims statute for the reasons set forth in the Sherman opinion.
delivered the opinion of the court.
Opinion of the Court:
*1 Valeri Sexton and Corey Recla (collectively, “Sexton”) sued Kenny Brown, DVM, for damages arising from the death of their dog, alleging a number of causes of action including negligence, breach of bailment, conversion, and trespass to chattels. Sexton appeals summary judgment dismissal of her breach of bailment claim and the trial court's ruling that the measure of damages is limited to the fair market or replacement value of the dog.FN1 Brown cross appeals the trial court's decision that the medical malpractice act, chapter 7.70 RCW, does not apply to veterinarians, the denial of his motion to dismiss the conversion and trespass to chattels claims, and the decision that Sexton is entitled to search costs and that Brown was not entitled to attorney fees under the small claims statute, RCW 4.84.250. We affirm the trial court's decision that the medical malpractice act does not apply to veterinarians, the dismissal of Sexton's breach of bailment claim, denial of Brown's summary judgment motion to dismiss Sexton's conversion and trespass to chattels claims, and the decision that Brown is not entitled to attorney fees under the small claims statute. However, because there are material issues of fact about the measure of damages, we reverse the decision to limit damages to the fair market or replacement value of the dog. We also reverse the decision to award search costs.
FN1. Sexton does not appeal dismissal of the other claims.
Valeri Sexton has worked as a veterinary assistant at Highline Veterinary Hospital for a number of years. Sexton is also a volunteer for the Seattle Purebred Dog Rescue and the breed representative for Yorkshire terriers.
In February or early March 2006, the owner of a Yorkshire terrier contacted Sexton about putting her dog up for adoption. In early March, the owner gave the dog to Sexton. According to Sexton, the dog was underweight and had “long, matted, dread-locked coat, and was stinky ... and in desperate need of dental cleaning.” Sexton and Corey Recla adopted the dog and named the dog “Joe-e.” However, they did not obtain a pet license.
On March 9, Sexton took Joe-e to the Highline Veterinary Hospital to have the dog neutered. During the surgery, Joe-e nearly died because of a congenital liver shunt condition. In April 2006, Joe-e underwent surgery to correct the liver shunt condition. Although the surgery was successful, Joe-e continued to need daily medication and monitoring.
On May 13, Sexton and Recla took the seven dogs they owned with them on a camping trip to the Marblemount area. Shortly after arriving at the campsite, Sexton discovered Joe-e was missing. Sexton and Recla searched the area but could not find Joe-e.
That same day, as Marylue Martin and her spouse, Jim Martin, were driving on the Cascade highway, they saw Joe-e walking along the road. According to Marylue Martin, the dog was severely emaciated. The Martins stopped to rescue the dog. They then took the dog to the Pet Emergency Center (PEC) in Mount Vernon.
*2 PEC office manager Mary Altman testified that the dog was thin but “otherwise friendly, responsive, and in good spirits.” Marylue Martin testified that veterinarian Jed Varney examined the dog and remarked on how thin the dog was. Because the dog did not seem interested in eating, Varney suggested performing some blood tests to determine the dog's medical condition. The Martins agreed to pay for the tests.
Varney testified that the tests showed an abnormally high white blood cell count. But because the machine used for the blood test was not working properly, Varney decided to examine a slide under a microscope. Varney testified that “[t]he blood appeared normal and did not reflect the high white count identified by the machine.”
While the Martins waited for the blood test results, Varney's shift ended and veterinarian Kenny Brown took over Joe-e's care. Varney said that he told Brown that the machine was not working properly, and Joe-e's blood appeared normal under the microscope. Brown decided to perform additional blood tests. Brown testified that because of a very high white blood cell count, abnormal lymphocytes, the dog's sluggishness, and the dog's emaciation and refusal to eat, he suspected that the dog had lymphosarcoma or some other life threatening condition and would not live a week.
Marylue Martin testified that Brown told the Martins that he thought the dog had lymphoma but a specialist would need to verify the dog's medical condition. Marylue Martin said she told Brown “that we couldn't continue with any more treatment and asked him what we should do as next steps.” According to Brown, he gave the Martins the “choice of either further testing, paying for supportive care, or if they decided they would want to euthanize the animal they could euthanize the animal.” The Martins decided to euthanize the dog.
Veterinary technician Jennifer Holloman testified that after the dog was euthanized and Brown turned the dog over onto his back, Brown seemed surprised that the dog had a recent surgical scar. According to Holloman, Brown said that he wanted to perform a necropsy FN2 because “he wanted to know what was going on internally.” After the necropsy, the dog was cremated.
FN2. A necropsy is a postmortem examination to determine the cause of death. See, Webster Third New International Dictionary 1511 (1993).
On May 14, Sexton contacted the forest ranger station in Marblemount to report Joe-e was missing. Over the next several days, Sexton and Recla posted fliers, contacted the Skagit County Animal Control and dog rescue agencies, consulted with several psychics, and hired a dog tracker. On May 17, Sexton contacted the police to report Joe-e was missing.
On May 23, a PEC board member called Sexton and told her that Joe-e had been euthanized at PEC on May 13. In the following weeks, Sexton sought medical treatment for migraines, insomnia, hypersomulence, muscle pain, apathy and lethargy.
In July, Sexton and Recla (collectively “Sexton”) sued Brown and PEC for negligence, negligent hiring and supervision, breach of bailment, negligent misrepresentation, conversion and trespass to chattels, breach of fiduciary duty, wrongful invasion of right to custody of a corpse, negligent infliction of emotional distress, and violation of the Consumer Protection Act (CPA), chapter 19.86 RCW. Sexton requested damages for the loss of Joe-e, including economic damages and “special and general damages relating to loss of Joe-e's utility (i.e., companionship),” loss of enjoyment of life, and emotional distress damages. Sexton also sought recovery of the expenses incurred in locating Joe-e, and attorney fees.
*3 In May 2007, Sexton settled with PEC and filed an amended complaint against Kenny L. Brown, DVM, and Kenny L. Brown, DVM, Inc. (Brown).FN3 In answer to the amended complaint, Brown asserted a number of affirmative defenses, including that the medical malpractice act, chapter 7.70 RCW, applied to veterinarians, and that Sexton was not entitled to emotional distress damages. Brown also claimed that he was entitled to attorney fees under the small claims statute because “plaintiffs' damages, if any there be, are less than $10,000.” After filing the answer, Brown filed an offer of judgment for $1000.
FN3. In the amended complaint, Sexton deleted respondeat superior and negligent hiring and supervision claims previously asserted against PEC.
Brown then filed a number of motions for partial summary judgment, including a motion to dismiss Sexton's claim for breach of bailment and a motion to limit Sexton's damages for the loss of Joe-e to the market value of $800 to $1000. Brown also asked the court to rule as a matter of law that the medical malpractice act applied to veterinarians and limited the claims Sherman could assert against Brown. In addition, Brown argued that he was entitled to attorney fees under the small claims statute and that Sexton was not entitled to search costs.
In a “Consolidated Order on Dispositive Motions”, the trial court dismissed Sexton's claims for breach of bailment, negligent misrepresentation, breach of fiduciary duty, interference with custody of a corpse, negligent infliction of emotional distress, and violation of the CPA. The court denied Brown's motion to dismiss Sexton's claims for conversion and trespass to chattels ruling that while “[t]here may very well have been justification on Dr. Brown's part for doing what he did, but ... I think I have to conclude that that is an issue for the jury.” The court also ruled that as a matter of law the medical malpractice act, chapter 7.70 RCW, does not apply to veterinarians. In addition, the court ruled that the “[t]he measure of damages for the value of Joe-e is fair market or replacement value, but the replacement value may not include sentimental value.” However, the court denied Brown's request to limit damages to $800 to $1000, stating that, “[t]he value of Joe-e will be resolved by the factfinder after hearing evidence from all parties....” The court also ruled that the small claims statute did not apply because Sexton pleaded damages in excess of $10,000 and that Sexton was entitled to search costs from May 17 to May 23.
A commissioner of this court granted discretionary review under RAP 2.3(b)(4).FN4
FN4. RAP 2.3(b)(4) provides in pertinent part that:
all parties to the litigation have stipulated, that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation.
Sexton appeals dismissal of her breach of bailment claim, the decision that damages for the loss of Joe-e are limited to market or replacement value without regard to sentimental value, and denial of the motion to strike the declaration of Brown's expert witness on the market value of Joe-e.
Brown cross appeals the trial court's decision that the medical malpractice act, chapter 7.70 RCW, does not apply, denial of the motion to dismiss Sexton's claims for conversion and trespass to chattels, the determination that Sexton is entitled to search costs, and the decision that Brown is not entitled to attorney fees under the small claims statute.
*4 We review summary judgment de novo. Heath v. Uraga, 106 Wn.App. 506, 512, 24 P.3d 413 (2001). Summary judgment is proper if viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22 (2003). Summary judgment is appropriate only if in view of all the evidence reasonable minds could only reach one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992). However, where competing inferences may be drawn from the evidence, the case must be resolved by the trier of fact. Hudesman v. Foleyman v. Foley, 73 Wn.2d 880, 441 P.2d 532 (1968).
Breach of Bailment Claim
Sexton contends the trial court erred in dismissing her breach of bailment claim against Brown.
A bailment “arises generally when personalty is delivered to another for some particular purpose with an express or implied contract to redeliver when the purpose has been fulfilled.” Freeman v. MetroTransmission, Inc., 12 Wn.App. 930, 932, 533 P .2d 130 (1975). As a general rule bailment is typically a consensual transaction. Collins v. Boeing Co., 4 Wn.App. 705, 710-11, 483 P.2d 1282 (1971). “The bailor intentionally delivers possession of his goods to the bailee and the latter accepts the same with a real or a presumed knowledge of the responsibility entailed thereby.” Collins, 4 Wn.App. at 710. In a bailment, the bailor retains ownership of the property. Gingrich v. Unigard Sec. Ins. Co., 57 Wn.App. 424, 432, 788 P.2d 1096 (1990).
With respect to lost property, the owner does not relinquish ownership of the property. The finder of lost property is the bailee for the owner. State v. Kealey, 80 Wn.App. 162, 172, 907 P.2d 319 (1995) (quoting Roy Andrews Brown, Law of Personal Property § 3.1, at 24 (Walter B. Raushenbush, 3rd ed.1975). “A gratuitous bailee is responsible for delivering the property to the true owner.” Kealey, 80 Wn.App. at 172. As a general rule, a gratuitous bailee is liable only for gross negligence. Maitlen v. Hazen, 9 Wn.2d 113, 123, 113 P.2d 1008 (1941).
Here, by rescuing Joe-e, the Martins were arguably gratuitous bailees and had “an obligation to seek out the owner of the goods and to try to return [it].” Kealey, 80 Wn.App. at 173. The Martins took Joe-e to PEC for treatment. Because they did not give Joe-e to Brown “with an express or implied contract to redeliver,” the record does not support Sexton's argument that there was a bailment agreement with Brown. Freeman, 12 Wn.App. at 932.
In the alternative, Sexton asserts that because Brown knew Joe-e was lost, Brown was a “finder” of the lost dog under RCW 63.21.010. RCW 63.21.010 requires “[a]ny person who finds property ... who wishes to claim the found property” to report finding the property to law enforcement within seven days. But, here, because it is undisputed that Brown did not find Joe-e, RCW 63.21.010 does not apply.FN5 On this record, we affirm summary judgment dismissal of Sexton's breach of bailment claim.
FN5. For the first time in her reply brief, Sexton argues that Brown owed her a duty as a co-bailee or a co-finder. We need not consider arguments raised for the first time in a reply brief. Cowiche Canyon v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Nonetheless, we note that there is no Washington case that mentions subbailees. However, a treatise describes sub-bailments as authorized only “[w]here the bailment contract contemplates that the bailee, as the bailor's agent, may accomplish purposes of the bailment through subbailees....” 8A Am.Jur.2d Bailments § 168.
Measure of Damages
*5 Sexton also challenges the trial court's decision that the measure of damages for the loss of Joe-e is limited to market or replacement value and that Sexton was not entitled to emotional damages. Our decision in Sherman v. Kissinger, No. 60137-7 (Wash.Ct.App. September 29, 2008) controls. As described in Sherman, the Washington Supreme Court's decision in McCurdy v. Union Pacific Railroad Co., 68 Wn.2d 457, 413 P.2d 617 (1966) governs the determination of the measure of damages for the loss of personal property. Case law also establishes that in a negligence action a plaintiff is not entitled to sentimental or loss of companionship damages.FN6 As in Sherman, because there are genuine issues of material fact about whether there is a market value for Joe-e, we reverse the trial court's decision that as a matter of law Sexton was limited to the market or replacement value for the loss of Joe-e.
FN6. See Mieske v. Bartell Drug Co., 92 Wn.2d 40, 593 P.2d 1308 (1979), Pickford v. Masion, 124 Wn.App. 257, 98 P.3d 1232 (2004).
Next, Sexton contends the trial court erred in denying her motion to strike the declaration of Brown's expert on the value of Joe-e, dog breeder Carol Confer. Under ER 702, an expert's opinion is admissible if the witness is qualified and the expert's testimony is helpful to the trier of fact. Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P.3d 939 (2004). Helpfulness is construed broadly. Philippides, 151 Wn.2d at 393. When reviewing an evidentiary ruling that is made in the context of a summary judgment motion, the de novo standard of review applies. Folsom v. Burger King, 135 Wn.2d 658, 663, 968 P.2d 301 (1998).
Carol Confer testified that she has been a dog breeder of Yorkshire terriers for more than twenty years and is “familiar with the breeding and valuation of Yorkshire terriers in relationship to their pedigrees.” Based on the assumption that Joe-e was a purebred Yorkshire terrier, Confer testified that, “the approximate market value of this dog in May 2006 was between $800 and $1000.” Sexton argues the trial court erred in denying the motion to strike Confer's declaration because Confer did not take into account Joe-e's medical condition. Because Sexton's argument goes to the weight and not the admissibility of Confer's testimony under ER 702, we conclude the trial court did not err in denying the motion to strike Confer's declaration.
Brown's Cross Appeal
Brown claims the trial court erred by ruling that the medical malpractice statute, chapter 7.70 RCW, does not apply to veterinarians. We considered and rejected the exact same argument in the linked case, Sherman v. Kissinger, No. 60137-7 (Wash. Ct.App. June 10, 2008),
Brown also argues that the trial court erred in denying the motion to dismiss Sexton's conversion and trespass to chattels claims.
Conversion is the unjustified and willful interference with a chattel that deprives a person entitled to the property of possession. In re Marriage of Langham & Kolde, 153 Wn.2d 553, 564, 106 P.3d 212 (2005). Wrongful intent is not an element of conversion and good faith is not a defense to conversion. Paris American Corp. v. McCausland, 52 Wn.App. 434, 443, 759 P.2d 1210 (1988). Trespass to chattels is something less than a conversion. It is the intentional interference with a party's personal property without justification that deprives the owner of possession or use. Restatement (Second) Torts § 217 (1965). While a plaintiff must show that the interference was intentional, no intent to deprive the owner must be shown. Judkins v. Sadler-Mac Neil, 61 Wn.2d 1, 4, 376 P.2d 837 (1962).
*6 Relying on WAC 246-933-060 Brown asserts that because his actions were legally justified, the court erred in denying summary judgment dismissal of Sexton's conversion and trespass to chattels claims. WAC 246-933-060 authorizes a veterinarian to care for a pet even if the person authorizing services is not the owner.
The veterinarian shall always be free to accept or reject a particular patient, but once care is undertaken, the veterinarian shall not neglect the patient, as long as the person presenting the patient requests and authorizes the veterinarian's services for the particular problem. Emergency treatment not authorized by the owner shall not constitute acceptance of a patient.
Sexton argues there are material issues of fact about whether Brown's actions were justified under both WAC 246-933-060 and WAC 246-933-050. WAC 246-933-050 provides that: “[t]he veterinarian shall endeavor to provide at least minimal treatment to alleviate the suffering of an animal presented in the absence of the owner or the owner's agent.” Viewing the evidence in the light most favorable to Sexton, we agree there are genuine issues of material fact.
The first veterinarian to examine and treat Joe-e, Jed Varney, testified that the dog was “underweight but not clinically ill. He was groomed and had a surgical scar on his abdomen. Based on his appearance, I believe he was being cared for....” Varney also testified that the dog was “playful, bright, alert, and responsive, not painful, and he jumped up friskily when you tried to play with him.” According to Varney
In my professional opinion, I can state with reasonable medical certainty that he was in no danger of dying in the foreseeable future, was not appreciably suffering, and certainly did not need to be euthanized that evening. I intended to hold him overnight, give him some fluids and monitor him until the next morning to give time for the real owners to find him or to present to the local humane society.
Mary Altman, the office manager and an experienced veterinary technician described Joe-e as:
alert, cute as a button, not dirty or matted, and except for being very thin, was a happy little dog. He was not traumatized or injured. From the standpoint of triage, he was not a trauma case, and did not appear to require immediate veterinary intervention or euthanasia to end unbearable suffering. While he seemed to have some condition responsible for his thinness, the dog was otherwise friendly, responsive, and in good spirits.
And, Jennifer Holloman, the veterinarian technician who assisted Varney, testified that Joe-e was:
relatively bright and alert, he was walking, he didn't appear to be in any type of acute distress, his gum color was good. His vitals, as I remember, were within normal range. He did appear thin to me.
The veterinarian, who performed surgery on Joe-e approximately a month earlier also testified that the dog did not have lymphosarcoma or lymphoma.
*7 I saw no swollen lymph nodes in Joe-e's neck, groin, legs, in the jejunal chain of lymph nodes, or in any other lymph node visible to me during the surgery. Had Joe-e been suffering from these conditions, I fully would have expected to see such evidence intraoperatively, since I had opened his abdominal cavity through a long, ventral incision.
In addition, Brown testified that while he believed Joe-e had lymphosarcoma, it was in the “early stages” and Brown did not think the dog “was that bad.” Brown also admitted that Joe-e could have survived a few days and there were alternative treatments available.
Because there are genuine issues of material fact about whether Brown's actions were justified, the trial court did not err in denying Brown's summary judgment motion to dismiss Sexton's conversion and trespass to chattels claims. FN7
FN7. Absent willful misconduct, the measure of damages for conversion is the fair market value of the property at the time of the conversion. In re Marriage of Langham & Kolde, 153 Wn.2d at 566; Merchant v. Peterson, 38 Wn.App. 855, 690 P.2d 1192 (1984). Because conversion is an intentional tort, if Sexton proves Brown's actions were not justified, she may be entitled to emotional damages. Birchler v. Costello Land Co., 133 Wn.2d 106, 116, 942 P.2d 968 (1997) (citing Cagle v, Burns & Roe, Inc., 106 Wn.2d 911, 916, 726 P.2d 434 (1986) (recovery of emotional distress damages for intentional torts is consistent with the modern rule.).
Brown also contends the trial court erred in awarding Sexton search costs for May 17 and May 23, 2006. Sexton argued that Brown was liable for search costs under the statute that requires a finder “who wishes to claim the found property” to report within seven days to law enforcement. RCW 63.21.010(1) provides in pertinent part:
(1) Any person who finds property that is not unlawful to possess, the owner of which is unknown, and who wishes to claim the found property, shall: ... (b) Within seven days report the find of property ... to the chief law enforcement officer, or his or her designated representative, of the governmental entity where the property was found....
Because Brown did not find Joe-e and there is no evidence that Brown sought to claim ownership of the dog, we reverse the award of search costs.
Last, for the reasons set forth in our opinion in Sherman, we affirm the trial court's decision that Brown is not entitled to attorney fees under the small claims statute.
We affirm dismissal of the breach of bailment claim and denial of the motion to strike Confer's declaration. However, because there are material issues of fact on the measure of damages for the loss of the dog, we reverse the decision that as a matter of law, damages are limited to fair market or replacement value. On the cross appeal, we affirm the trial court's decision that the medical malpractice act does not apply to veterinarians and denial of the summary judgment motion to dismiss Sexton's conversion and trespass to chattels claims. We reverse the decision to award search costs but affirm the decision that Brown is not entitled to attorney fees under the small claims statute and remand for further proceedings consistent with this opinion.FN8
FN8. It is undisputed that on remand, Sexton may also pursue her claim for negligence. See Dillion v. O'Connor, 68 Wn.2d 184, 412 P.2d 126 (1966).
WE CONCUR: BECKER and LEACH, JJ.