The plaintiff sued for damages as a result of the wrongful spaying of her purebred dog, which she intended to breed. The court found that damages should be measured by the fair market value of the dog.
UNPUBLISHED OPINION
MORGAN , J.
The issue on appeal is the measure of damages for wrongfully spaying a dog. Finding that the trial court used an incorrect measure, we reverse in part.
In February 1999, Audrey Williams bought a purebred female Beagle on the open market. She paid $400.00 for it. According to her later testimony, she intended to show it, breed it, and sell the puppies. It was also to be a family pet and her child's 4-H project.
On August 7, 1999 , the dog disappeared. On August 13, 1999 , McMahon found the dog alongside the road and took it home. After trying unsuccessfully to find its owner, she gave the dog to her mother, Foster.
In early May 2000, Williams discovered that McMahon and Foster had found the dog. She contacted them but was unable to negotiate its return. On May 31, 2000 , McMahon and Foster had the dog spayed.
Also on May 31, 2000 , Williams sued McMahon for replevin, conversion, and damages. She later named Foster as a second defendant and added claims for negligent impairment of economic opportunity and intentional infliction of emotional distress.
A three-day bench trial was held on September 21, September 22, and October 23, 2000 . On October 23, the court ordered Foster to return the dog to Williams, and Foster complied. Several weeks later, after additional briefing and argument, the court ruled that Williams was entitled to $5,000 in damages for loss of the dog's 'intrinsic value.' [FN1] The court denied Williams' claim for negligent impairment of economic opportunity 'on the ground that the evidence ... is too speculative.' [FN2] The court denied Williams' claim for emotional distress because 'outrage is not present even though the plaintiff and her children were upset.' [FN3] The court did not find whether the dog had a fair market value.
FN1. Clerk's Papers (CP) at 53.
FN2. Id. at 52.
FN3. Id.
McMahon and Foster appeal the damage award. They argue that the trial court should have used fair market value, not 'intrinsic' value, as the measure of damages. Williams has not cross-appealed, so the trial court's other rulings are deemed correct. [FN4]
FN4. In re Estate of Campbell, 87 Wn. App. 506, 512 n.1 (1997); In re Marriage of Leland, 69 Wn.App. 57, 59 n. 3 (1993).
In McCurdy v. Union Pacific Railroad Company, [FN5] the Washington Supreme Court considered the measure of damages applicable to a private railroad car. Whether the car had been destroyed (completely destroyed) or damaged (partly destroyed) was a question of fact that had not yet been resolved. [FN6] The court said:
FN5. McCurdy v. Union Pac. R. Co., 68 Wn.2d 457, 467 (1966).
FN6. See McCurdy, 68 Wn.2d at 469 .
If the property is a total loss the measure of damages is the value of the property destroyed or damaged. This is its market value, if it has a market value. If the property is damaged but not destroyed, the measure of damages is the difference between the market value of the property before the injury and its market value after the injury. (Again, if it has a market value.) If the property does not have a market value, then if a total loss, the measure of damages is the cost to replace or reproduce the article. If it cannot be reproduced or replaced, then its value to the owner may be considered in fixing damages. [FN7]
FN7. McCurdy, 68 Wn.2d at 467 .
*2 The court went on to explain that whether a particular item has fair market value depends on whether there is 'a demand therefor and an ability from such demand to sell the same when a sale thereof is desired;' [FN8] and further, that if an item has fair market value, that value is the amount that a reasonable and willing buyer would pay to a reasonable and willing seller. In Mieske v. Bartell Drug Company, [FN9] the Washington Supreme Court considered the measure of damages for family photographs that had been lost (and thus completely destroyed). The court said:
FN8. McCurdy, 68 Wn.2d at 467, quoting 15 Am.Jur. Damages sec. 122, at 531 (1938) .
FN9. Mieske v. Bartell Drug Co., 92 Wn.2d 40, 41-42 (1979).
We recognized in McCurdy that (1) personal property which is destroyed may have a market value, in which case that market value is the measure of damages {;} (2) if destroyed property has no market value but can be replaced or reproduced, then the measure is the cost of replacement or reproduction; (3) if the destroyed property has no market value and cannot be replaced or reproduced, then the value to the owner is to be the proper measure of damages. However, ... damages are not recoverable for the sentimental value which the owner places on the property. [FN10]
FN10. Mieske, 92 Wn. 2d at 43-44.
As can be seen, McCurdy and Mieske describe three measures of damage, each alternative to the others. The first is to be used when the personal property in issue has a fair market value (in other words, when personal property of like kind is regularly bought and sold on the open market). It provides that a claimant can recover fair market value if the personal property was left without value after the tort (or, as is sometimes said, if the personal property was 'completely destroyed'). It provides that a claimant can recover fair market value beforehand less fair market value afterward if the personal property was left with some value afterward (or, as is sometimes said, if the personal property was 'damaged' or 'partially destroyed').
The second measure is to be used if the personal property in issue lacks a fair market value but can be replaced or restored to its former condition. It provides that a claimant can recover the cost to replace or reproduce if the personal property has been wholly lost or completely destroyed. It also provides that a claimant can recover the cost to restore or repair if the personal property has been damaged (i.e., partially but not completely destroyed). This measure is not in issue here, and we mention it only for completeness. [FN11]
FN11. We do not determine whether this measure might apply to a pet that has fair market value. We neither accept nor reject cases like Hyland v. Borras, 719 A.2d 662 (N.J.Super.1998) (defendant's dog injured plaintiff's dog; plaintiff incurred veterinary bills of $2,500 to restore her dog to pre-tort condition; court allowed bills even though dog's fair market value was $500).
The third measure is to be used when the personal property in issue has no fair market value and cannot be replaced or restored. It provides that a claimant can recover the property's value to him or her, exclusive of sentimental value.
Procedurally, the one claiming damages bears the burden of proving damages. [FN12] That includes, in our view, the burden of showing which measure applies. [FN13] In general then, a claimant desiring to use the first measure must produce evidence and secure findings that the property in issue (a) has fair market value and (b) the amount thereof. [FN14] A claimant desiring to use the second measure must produce evidence and secure findings that the property in issue (a) lacks fair market value but (b) can be replaced or restored. And a claimant desiring to use the third measure must secure findings that the property in issue (a) lacks fair market value and (b) cannot be replaced or restored.
FN12. Scott v. Rainbow Ambulance Svc., Inc., 75 Wn.2d 494, 498, 452 P.2d 220 (1969) ; Agranoff v. Morton, 54 Wn.2d 341, 347, 340 P.2d 811 (1959) ; see also WPI 30.01.
FN13. Fisher Properties, Inc. v. Arden-Mayfair, Inc. 115 Wn.2d 364, 368 (1990) .
FN14. Ordinarily, of course, a finding of the amount of fair market value is also a finding of the existence of fair market value.
*3 These principles were not followed here. Williams concedes that the dog in issue had a fair market value; she states in her brief that 'a breeding dog such as {the dog in issue here} has a market value, in our case, $400.' [FN15] Williams did not request and the trial court did not enter a finding that the dog in issue here lacked a fair market value. As a result, neither the evidence nor the findings support the trial court's use of the third measure of damages, and its determination of the amount of damages must be reversed.
Williams' premise on appeal is that the personal property in issue is not the dog, but rather the dog's reproductive tract. From that premise, she reasons that the reproductive tracts of dogs are not bought and sold on the open market; that this dog's reproductive tract could not be replaced or repaired after it was removed; and thus that the evidence supports the trial court's use of the third measure of damages.
Williams' premise is flawed. The property in issue here is the dog, not the dog's reproductive tract viewed separately from the dog. Williams concedes that the dog has a fair market value, and thus the first measure of damages applies here.
We have not reviewed Williams' claim for negligent impairment of economic opportunity (i.e., Williams' claim that McMahon and Foster prevented her 'from breeding the dog ... and ... selling the puppies' [FN16] ). The trial court rejected that claim, and Williams has not cross-appealed that ruling. The judgment is reversed on the issue of damages but affirmed in all other respects. On remand, the applicable measure of damages shall be fair market value. [FN17]
FN17. The award on remand may or may not be $400. The only evidence shown to us though we do not have the whole record is that Williams paid $400 for the dog in February 2000. Purchase price is evidence of fair market value, but not necessarily dispositive of fair market value. State v. Melrose , 2 Wn.App. 824, 831, 470 P.2d 552 (1970) . Nothing before us indicates fair market value after the spaying. On remand, the trial court may limit the parties to the evidence presented earlier, or it may allow them to present additional evidence.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040 , it is so ordered.
HOUGHTON and QUINN-BRINTNALL, JJ., concur.