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1 LG 345, Criminal Law, Spring 2021 Optional Brief 2 DUE: Sunday, March 28, by 11:30 p

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1 LG 345, Criminal Law, Spring 2021 Optional Brief 2 DUE: Sunday, March 28, by 11:30 p.m. If you choose to write this case brief, this is an opportunity to raise your score on Assignment 2. I will average the two scores (the first case brief and the second case brief). The average will become your new grade on Assignment 2. For this assignment, (1) Examine the sample case brief (summary) provided on D2L (Burgess v. Shampooch Pet Industries, Inc.). Use this format and template in writing your case brief. (2) Write a case brief on Early v. State, 223 So.3d 1023 (Fla. Ct. App. 2017).You will find the PDF Westlaw version of this case under “Optional Case Brief 2” on D2L. (3) Within your brief, use proper grammar, spelling, and punctuation. (4) Each student must do his/her own work. No exceptions. Note: Prof. Watson will not proof-read any case briefs before the deadline. However, you may email questions. See cut-off date in our D2L module this week. Format The following sections MUST be included in your case brief: (1) Case name with citation – This must be the full citation, including the date of the opinion. [Hint: I gave you the full citation in this instruction sheet.] (2) Procedural History – This section tells the reader what happened to the case before it arrived in the present court. It shows the path from the district court (trial court) to the current court, which, in this case, is the Florida Court of Appeals. Include the decision made by the lower court/jury, the name of the lower court (e.g., Shawnee County District Court, Brown County District Court, etc.), the crime(s) of conviction, what decision is being reviewed (e.g., jury verdict, guilty plea), and how this case landed in the current court (e.g., appeal). (3) Facts – Include only relevant facts. Summarize! You are unlikely to know what these are until you have read the entire case. Do not simply cut and paste the facts. (4) Issues – These are the particular questions the court had to decide in this case. Your case has two issues. [Note: Here, you must use the court’s language when you write the issues.] (5) Holdings – These are the legal answers to the issues. Your case has two holdings. [Note: Here, you must use the court’s language when you write the holdings.] (6) Rationale – This is the appellate court’s reasoning for each holding. Discuss the logical steps the appellate court took to arrive at its holdings. (Again, your case only has two holdings, so you will explain the state court of appeal’s reasons for coming to each holding.) Did the court rely on statutory language? Did the court rely on cases in its jurisdiction and/or cases from other jurisdictions? Did the court focus on certain important facts to conclude whether the jury was presented with sufficient evidence? Summarize! Do not simply cut and paste from the case. Demonstrate that you understand the reasoning. 2 Single space your document; use 12-pt type and Times New Roman or Calibri font. If you have any questions, please contact Prof. Watson. The length: No more than 2-3 pages. The Scoring Rubric is on Page 3. 3 Rating Scale: A (90 to 100 points) B (80 to 89 points) C (70 to 79 points) D (60 to 69 points) F (26.5 and below) Elements Criteria Score Excellent 100% Proficient 80% Basic 70%s Case Name Citation and Procedural History Citation and procedural history are correct and adequately address events in clear, chronological sequence Includes all parts of the citation; procedural history is there but is not clear Includes most parts of the citation, but the procedural history is out of sequence or difficult to read/understand Includes citation but is incorrect as to spelling or numbers, or the essential procedural history is incomplete Little or no evidence of proper citation and procedural history Issues Issues correctly identified and stated in form of question Issues correctly identified but may contain extra info; not stated in form of question Issues not completely identified or has grammar/spelling errors Incorrect issue(s) identified Incomplete/Not provided Holdings correctly identified and written in form of statement Holdings correctly identified but may contain extra info and not stated in form of statement Summarizes the relevant facts but may contain extra info and/or is not easy to understand or follow Holdings not completely identified or has grammar/spelling errors Incorrect holding(s) identified Summarizes the facts but fails to identify all relevant facts Incomplete/Not provided Summation of Court’s reasoning mainly correct but left out key law or facts relied upon by the Court Has several errors in G, P, or S Summation of Court’s reasoning is incomplete or incorrect Facts are largely cut and pasted from the case or a significant portion of relevant facts are not mentioned Summation lacks clarity and fails to properly identify the Court’s reasoning Has numerous errors in G, P, or S Has so many errors in G, P, or S that the brief is difficult to read Holdings Facts Rationale Grammar, Punctuation, Spelling Summarizes and includes only relevant facts, expressed in an organized and easy-to-follow manner Properly identified Court’s reasoning and key law and facts relied upon for the holding. Has less than 4 errors in G,P, or S Has multiple errors in G, P, or S; or exceeds required length or is not single-spaced Novice 60% Poor 50% __/15 Possible points __/15 Possible points Incomplete/Not provided __/15 Possible points __/ 25 Possible points Incomplete/Not provided __/20 Possible points ___/10 Possible points Early v. State, 223 So.3d 1023 (2017) 42 Fla. L. Weekly D535 223 So.3d 1023 District Court of Appeal of Florida, First District. When reviewing the trial court’s ruling on a motion to dismiss based on immunity under the Stand Your Ground law, the appellate court must apply the same standard of review applicable to a ruling on a motion to suppress; therefore, the trial court’s legal findings are reviewed de novo while the trial court’s factual findings are reviewed for competent substantial evidence, the trial court’s decision is clothed with a presumption of correctness, and the appellate court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling. Fla. Stat. Ann. § 776.032(1). Stephen Lamont EARLY, Appellant, v. STATE of Florida, Appellee. CASE NO. 1D15–316 | Opinion filed March 3, 2017. Synopsis Background: Defendant was convicted in the Circuit Court, Bradford County, David L. Reiman, J., of seconddegree murder with a weapon. Defendant appealed. Holdings: The District Court of Appeal, Jay, J., held that: [3] Homicide Self-defense in general The question of whether a defendant acted in justifiable self-defense is generally a question for the jury. evidence was sufficient to justify Circuit Court’s refusal to confer Stand Your Ground immunity on defendant, and [1] evidence was sufficient to justify Circuit Court’s refusal to confer self-defense immunity on defendant. [2] Affirmed. [4] Criminal Law Special pleas in bar in general The defendant bears the burden of proving entitlement to immunity under the Stand Your Ground law by a preponderance of the evidence. Fla. Stat. Ann. § 776.032(1). 1 Cases that cite this headnote [2] Criminal Law Criminal Law Criminal Law Review De Novo Preliminary proceedings Defenses Degree of proof in general Once the defense presents a prima facie case of self-defense, the state must disprove the defense beyond a reasonable doubt; if the state fails to sustain its burden, the trial court must grant a motion for judgment of acquittal in favor of the defendant. West Headnotes (9) [1] Homicide 1 Cases that cite this headnote [5] Homicide Self-defense in general A motion for judgment of acquittal based on selfdefense should not be granted unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 Early v. State, 223 So.3d 1023 (2017) 42 Fla. L. Weekly D535 sustained under the law. seat by the victim. Fla. Stat. Ann. § 776.032(1). 1 Cases that cite this headnote [6] Homicide Defendant’s statement alone and affected by other evidence [9] Evidence was sufficient to justify trial court’s refusal to confer self-defense immunity on defendant who stabbed victim to death; as the only surviving witness to the stabbing, defendant’s credibility was a critical issue that was undermined by the fact that he gave numerous inconsistent statements regarding the stabbing, finally admitting that he lied to law enforcement, and defendant’s final version of what happened, that he was attacked by victim, was called into question by testimony that defendant had no visible injuries. Even when there are no other witnesses to the events besides the defendant, a jury is not required to accept the defendant’s testimony in support of his self-defense theory as true; instead, it must consider the probability or improbability of the defendant’s credibility in light of the circumstances established by other evidence. [7] Homicide Criminal Law Special pleas in bar in general Homicide Self-defense in general Self-defense in general A motion for judgment of acquittal should be denied where a jury could reasonably infer guilt and reject the defendant’s explanation of selfdefense, either because the defendant gave false, inconsistent, or incriminating statements, or because a common sense view of the circumstantial evidence would allow the jury to reject the defendant’s story as unbelievable. *1024 An appeal from the Circuit Court for Bradford County. David L. Reiman, Judge. Attorneys and Law Firms Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant. 1 Cases that cite this headnote *1025 Pamela Jo Bondi, Attorney General, Matthew Pavese and Robert Lee, Assistant Attorneys General, Tallahassee, for Appellee. [8] Criminal Law Special pleas in bar in general Homicide Self-defense in general Opinion Evidence was sufficient to justify trial court’s refusal to confer Stand Your Ground immunity on defendant who stabbed victim to death; as the only surviving witness to the stabbing, defendant’s credibility was a critical issue that was undermined by the fact that he gave numerous inconsistent statements regarding the stabbing, finally admitting that he lied to law enforcement, and the trial court could have found it improbable that defendant propitiously discovered a kitchen knife on the car floor while he was being viciously attacked from the front JAY, J. Appellant raises four issues in this direct appeal from his conviction and sentence for the second-degree murder of Quinton Epps with a weapon, a knife. After careful consideration, we affirm the conviction and sentence, and write only to address Appellant’s two arguments asserting (1) Stand Your Ground immunity and (2) common-law self-defense. With respect to both of these arguments, Appellant asserts that the evidence must be considered undisputed in his favor because the victim died, and © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 Early v. State, 223 So.3d 1023 (2017) 42 Fla. L. Weekly D535 because there were no eyewitnesses to the crime, leaving only his own testimony. We reject this reasoning. (1) Stand Your Ground Immunity. Appellant argues that the trial court committed reversible error by denying his motion to dismiss pursuant to section 776.032(1), Florida Statutes (2012), because he established by a preponderance of the evidence that he reasonably believed it was necessary to use deadly force to prevent imminent death or great bodily harm to himself under section 776.012. Section 776.032(1) provides that a person using force as permitted by sections 776.012, 776.013, or 776.031, Florida Statutes (2012), “is immune from criminal prosecution and civil action for the use of such force” subject to certain exceptions. The defendant bears the burden of proving entitlement to this immunity by a preponderance of the evidence. Bretherick v. State, 170 So.3d 766, 775 (Fla. 2015); Spires v. State, 180 So.3d 1175, 1176 (Fla. 3d DCA 2015); Hair v. State, 17 So.3d 804, 805 (Fla. 1st DCA 2009). [1] When reviewing the trial court’s ruling on a motion to dismiss based on immunity under section 776.032(1), the appellate court must apply the same standard of review applicable to a ruling on a motion to suppress. Spires, 180 So.3d at 1176; Mederos v. State, 102 So.3d 7, 11 (Fla. 1st DCA 2012); Hair, 17 So.3d at 805. Therefore, the trial court’s legal findings are reviewed de novo while the trial court’s factual findings are reviewed for competent substantial evidence. Viera v. State, 163 So.3d 602, 604 (Fla. 3d DCA 2015); Mederos, 102 So.3d at 11; Hair, 17 So.3d at 805. Moreover, the trial court’s decision is “ ‘clothed with a presumption of correctness, and the [appellate] court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.’ ” Viera, 163 So.3d at 604 (citations omitted). [2] (2) Self–Defense. Appellant also argues that the trial court erred in denying his motion for judgment of acquittal because the state failed to rebut his reasonable hypothesis of selfdefense. The question of whether a defendant acted in justifiable self-defense is generally a question for the jury. Morgan v. State, 127 So.3d 708, 717 (Fla. 5th DCA 2013); Stinson v. State, 69 So.3d 291, 292 (Fla. 1st DCA 2009); Rasley v. State, 878 So.2d 473, 476 (Fla. 1st DCA 2004). [3] [4] [5] “Once the defense presents a prima facie case of selfdefense, the state must disprove the defense beyond a reasonable doubt.” Morgan, 127 So.3d at 717; Stinson, 69 So.3d at 291–92; Rasley, 878 So.2d at 476. “If the state fails to sustain its burden, the trial court must grant a motion for judgment of acquittal in favor of the defendant.” Morgan, 127 So.3d at 717. “However, a motion for judgment of acquittal based on self-defense should not be granted unless ‘the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be *1026 sustained under the law.’ ” Id. (quoting Lynch v. State, 293 So.2d 44, 45 (Fla. 1974)); Stinson, 69 So.3d at 292; Rasley, 878 So.2d at 476–77. “[E]ven when there are no other witnesses to the events besides the defendant, a jury is not required to accept the defendant’s testimony in support of [his] self-defense theory as true. Instead, it must consider the probability or improbability of the defendant’s credibility in light of the circumstances established by other evidence.” Leasure v. State, 105 So.3d 5, 14 (Fla. 2d DCA 2012) (citations omitted). “Thus, a motion for judgment of acquittal should be denied where a jury could reasonably infer guilt and reject the defendant’s explanation of self-defense, either because the defendant gave false, inconsistent, or incriminating statements, or because a common sense view of the circumstantial evidence would allow the jury to reject the defendant’s story as unbelievable.” Cruz v. State, 189 So.3d 822, 826 (Fla. 4th DCA 2015). [6] [7] Appellant’s Trial Testimony After initially giving law enforcement four different versions of events, at trial, Appellant admitted that he had lied to police earlier because he was confused, scared, and nervous. He testified to the following fifth version of events. He and the victim were romantically involved, and had a history of disputes that sometimes turned physical but had previously involved only use of bare hands, no weapons. He considered his partner possessive and was tiring of the relationship. On the night in question, the couple were living at a hotel, but Appellant had been out of town visiting family and friends, and the victim— apparently—did not like being left behind. When he returned to the hotel, Appellant called the victim to let him know that he was outside. Appellant went inside to use the bathroom, and the victim walked outside and got into the driver’s seat of the car. When Appellant came out, he got in the back seat of the vehicle. Appellant said he wanted to go back to his mother’s house, and the victim said he would take him. When Appellant called his mother © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 Early v. State, 223 So.3d 1023 (2017) 42 Fla. L. Weekly D535 and told her that he was coming home, the victim turned around in the driver’s seat and began punching Appellant repeatedly in the head. Appellant leaned down to try to grab the door latch so he could get out of the vehicle, and as he felt around, he found a knife on the floor. According to Appellant, the victim’s repeated blows prevented him from opening the door. Appellant was afraid he was going to be seriously injured. While the victim was still striking him, Appellant “jabbed” the victim with the knife to stop the attacks. Because the victim continued hitting him, he “jabbed” the victim again with the knife; and after that, the attacks ended. When he saw that the victim was injured, Appellant called 911. Other Evidence at Trial During its case-in-chief, the state presented evidence reflecting the following sequence of events. Just prior to 4:00 a.m. on April 21, 2013, the sheriff’s office received two simultaneous 911 calls from what appeared to be the same caller on two different phones. The caller stated that his cousin had stabbed himself in the side and urged the operator to “come on now please.” Two police officers were dispatched to the hotel immediately. They heard someone shouting for help from the rear of the hotel, where they found Appellant standing by the driver’s door of a car. Appellant had small black objects in each hand, and threw the object from his left hand into the car. An officer ordered Appellant onto the ground and found a folding-blade pocket knife in Appellant’s front pocket. Appellant also had a cell phone in his right hand. A very bloody fixedblade *1027 knife was found on the ground nearby, and a second cell phone, also bloody, was found inside the car. Appellant had fresh blood droplets under his eye and on his right forearm, and blood that appeared to be older and dried inside his lip. He did not have any obvious injuries, however. The victim was in the driver’s seat of the car, with blood coming from his mouth, and his left side and front were soaked in blood. Despite efforts at resuscitation, the victim was declared dead at the scene. During the autopsy, the medical examiner identified two sharp force injuries to the victim’s left lateral chest wall, one of which was the cause of death. The medical examiner admitted that it was plausible that the victim was sitting in the front seat while he was stabbed by a person in the back seat. Swabs taken from the knife, cell phone, Appellant’s right forearm, Appellant’s right cheek, and Appellant’s lip and chin all gave chemical indications for the presence of blood. DNA from these swabs matched the victim’s DNA profile. A partial DNA profile obtained from the victim’s fingernail clippings matched Appellant’s DNA profile. Appellant’s Multiple Versions of Events Appellant’s first version, given to the 911 dispatcher, was that his “cousin” stabbed himself in the side. Appellant’s second version, given at the scene of the crime after Appellant was read his rights and agreed to talk, was that when he came out the rear door of the hotel into the rear parking lot area, he saw a black male dressed in black running from the vehicle and out of the parking area. When the officer pressed Appellant on the need to find the person who attacked the victim, Appellant replied that he did not hurt the victim, that he loved the victim very much, and that he “wouldn’t do this.” Appellant’s third version, given under questioning at the police station, was consistent with his trial testimony on the background and status of his relationship with the victim, Appellant’s visit with friends out of town, and his return to the hotel after the victim called him. Appellant claimed that he was walking to the hotel bathroom when he saw the victim coming out of their room and walking toward the back door. Appellant then claimed that as soon as he came out of the bathroom, he saw a black male running out of the parking area, whereupon he went out to the car, saw the victim inside and bleeding under his armpit, and called 911. After further questioning, Appellant stated that the blood in his mouth was the result of play fighting or “slap boxing” with his cousin earlier in the evening. Appellant’s fourth version, given later in the interview at the police station, was that he and the victim had an argument after he returned to the hotel; that he passed the victim coming out of their room as he walked to the bathroom; that the victim appeared angry; that he went to the car where the victim was sitting in the front seat; that he got into the back seat because he was concerned that the victim was going to hit him; that he argued with the victim, who was apparently jealous that Appellant had left him at the hotel; and that when he told the victim he was getting out of the car, the victim shoved him, hit him in the head, and tried to attack him with a knife, which resulted in the victim being stabbed. Appellant’s fifth version, given when police challenged Appellant about how the victim was stabbed, was that the victim had repeatedly hit Appellant in the head and this caused Appellant to pick up a knife on the floor and stab the victim in self-defense. This fifth version was consistent with Appellant’s trial testimony. © 2021 Thomson Reuters. No claim to original U.S. Government Works. 4 Early v. State, 223 So.3d 1023 (2017) 42 Fla. L. Weekly D535 *1028 Appellant’s Arguments On appeal, Appellant argues that he was entitled to a dismissal of the charges under the Stand Your Ground Law, and was entitled to a judgment of acquittal for selfdefense as a matter of law. Contrary to Appellant’s assertion on appeal, the evidence in this case was far from undisputed. As the only surviving witness to the stabbing, Appellant’s credibility was a critical issue with respect to both of his arguments. That credibility was undermined by the fact that he gave numerous inconsistent statements regarding the stabbing and fully admitted that he lied to law enforcement. These inconsistent statements, coupled with the physical evidence, were legally sufficient to establish that Appellant (1) was not entitled to Stand Your Ground immunity and (2) was not entitled to a judgment of acquittal for self-defense. Stand Your Ground Immunity. Even Appellant’s final version of what happened—particularly his claim that the victim was the aggressor and inflicted injuries on Appellant—cast substantial and material doubt on his credibility and on the reasonableness of his claim to have been in fear of great bodily harm or death. Specifically, the close confines of the interior of a car, especially with the victim in the driver’s seat and having to reach over or between the seats to contact Appellant in the back seat— and Appellant claiming to be cowering behind the protections of the seat structure—cast doubt on the reasonableness of any argument that the victim was, or could have been, inflicting blows that might lead to death or great bodily harm. Appellant had no visible injuries despite his claim that the victim hit him multiple times in the head. Fresh blood on Appellant’s right forearm, right cheek, lip, and chin was identified as belonging to the victim. Collectively, this evidence justified the trial court’s refusal to confer Stand Your Ground immunity on Appellant. [8] Moreover, the trial court could have found it improbable that Appellant propitiously discovered a kitchen knife on the car floor while he was being viciously attacked from the front seat by the victim. A more plausible scenario would be that Appellant brought the knife to the vehicle, got into an argument with the victim, and stabbed the victim as he was preparing to drive away. Because Appellant gave a multiplicity of contradictory statements about the events surrounding the stabbing and because Appellant’s trial testimony was inconsistent with the physical evidence, the trial court properly concluded that Appellant failed to prove his entitlement to Stand Your Ground immunity by a preponderance of the evidence. See Leasure, 105 So.3d at 12–13 (agreeing with the trial court that “because of the myriad of inconsistencies in her statements and the inconsistent medical evidence, Leasure failed to prove entitlement to immunity by a preponderance of the evidence”). [9] Self–Defense. The same reasoning and the same result apply to Appellant’s claim of self-defense. The jury was not required to accept Appellant’s testimony as true, but was required to evaluate his credibility in light of all of the evidence. Leasure, 105 So.3d at 14. Because Appellant was the only surviving witness to the stabbing, his credibility was a critical issue. As previously stated, that credibility was seriously undermined when he gave numerous false and inconsistent statements regarding the stabbing to the 911 operator and both police officers. Appellant’s final version of what happened was called into question by testimony that Appellant *1029 had no visible injuries, that fresh blood on Appellant was identified as belonging to the victim, and that Appellant told the police investigator that the suspected dried blood in his mouth was the result of his play fighting with his cousin earlier in the evening. Finally, a jury could find it implausible that Appellant miraculously discovered a kitchen knife on the car’s back floorboard while defending himself from a front seat onslaught by the victim. Because a jury could reasonably reject Appellant’s selfdefense claim based on a belief that Appellant gave false and contradictory statements and because a common sense view of the circumstantial evidence could allow a jury to reject Appellant’s ultimate explanation of what occurred as not being credible, the trial court properly denied Appellant’s motion for judgment of acquittal. See Leasure, 105 So.3d at 14–15 (affirming the denial of murder defendant’s motion for judgment of acquittal based on selfdefense where defendant’s numerous inconsistent statements cast significant doubt on her assertions that she had a reasonable fear of death or great bodily harm and her version of events was not consistent with the evidence); Stinson, 69 So.3d at 292 (holding that the state’s evidence was sufficient to rebut defendant’s theory of self-defense where the state presented evidence that defendant lied to both the 911 operator and the police about her involvement in the shooting and one of the police officers testified that the defendant did not appear disheveled and did not have any bruises that would indicate that she was recently the victim of domestic violence). Conclusion. © 2021 Thomson Reuters. No claim to original U.S. Government Works. 5 Early v. State, 223 So.3d 1023 (2017) 42 Fla. L. Weekly D535 Having concluded that the trial court’s rulings were proper, we affirm Appellant’s conviction and sentence for seconddegree murder with a weapon. LEWIS and WETHERELL, JJ., CONCUR. AFFIRMED. 223 So.3d 1023, 42 Fla. L. Weekly D535 End of Document All Citations © 2021 Thomson Reuters. No claim to original U.S. Government Works. © 2021 Thomson Reuters. No claim to original U.S. Government Works. 6 LG 345 Criminal Law Example Case Brief Student’s Name: ___ [Your name here]_______ Case: Burgess v. Shampooch Pet Industries, Inc., 35 Kan. App. 2d 458, 131 P.3d 1248 (2006) Procedural History: Plaintiff Sarah Burgess (Burgess), owner of a 13-year-old pet dog, brought a negligence action against Defendant Shampooch Pet Industries, Inc. (Shampooch), her pet’s groomer, alleging that Shampooch caused her dog’s dislocated hip. In Wyandotte District Court, the trial court rendered judgment against Shampooch for the cost of the dog’s veterinary care. Shampooch appealed to the Kansas Court of Appeals. Facts: On April 10, 2004, Burgess took her dog “Murphy” to Shampooch in Kansas City, Kansas, for grooming. Two days before the grooming appointment, Burgess had taken the dog to a veterinarian, who determined that Murphy was in good health. The dog looked healthy when Burgess dropped her off at Shampooch, but when Burgess later picked up the dog, she noticed that Murphy was acting “strangely” and had a limp. Burgess returned to Shampooch, but a representative of the business denied any responsibility for the injury. On April 11, 2004, Burgess took Murphy to a veterinarian, who, within a few days, performed a surgery to repair the dog’s dislocated hip. The treatment also included x-rays, blood work, anesthesia, intravenous fluids, sutures, and pain medications. Burgess’ veterinarian bills totaled $1,308.89. Issues: 1. Was the correct measure of damages the reasonable and necessary veterinary expenses incurred in restoring the dog to her former health? 2. Was the dog personal property? 3. Did the dog have a discernible market value? Holdings: 1. The correct measure of damages was the reasonable and necessary veterinary expenses incurred in restoring the dog to her former health. 2. The dog was personal property. 3. The dog had no discernible market value. 1 Rationale: 1. With regard to the correct method of measuring damages, the Kansas Court of Appeals noted that the correct measure of damages is a question of law. The method of valuing pets had not been addressed in Kansas, so the Kansas Court of Appeals looked at cases in other states to see what other jurisdictions have done. The first valuation approach, the prevailing view in the United States, considers the correct measure of damages to be the fair market value of the dog, “More than inanimate objects, [dogs] provide companionship, affection, solace, and uncritical acceptance of their human guardians. The law, however, has valued them as commodities by restricting recovery for their destruction or injury to their fair market value.” Margit Livingston, The Calculus of Animal Valuation: Crafting a Viable Remedy, 82 Neb. L. Rev. 783, 847 (2004). The second approach characterizes the “value to the owner” measure of damages. “The Restatement and most jurisdictions take a position that in such cases it would be unjust to limit damages to the fair market value and, instead, use the so-called ‘value to the owner’…. See Restatement (Second) of Torts § 911, Comment e, at 474 (1965).” Anzalone v. Kragness, 356 Ill.App.3d 365, 370, 826 N.E.2d 472 (2005). This approach was contemplated in another Kansas Court of Appeals case, Kansas Power & Light Co. v. Thatcher, 14 Kan. App. 2d 613, Syl. ¶ 3, 797 P.2d 162 (1990). The last approach considers reasonable veterinary expenses. This is the approach that the Kansas Court of Appeals found most persuasive, given the facts and circumstances of this case. Several jurisdictions have taken this approach and found that, where recovery is sought for a dog’s injury, the owner is entitled to recover the reasonable veterinary expenses incurred in treating those injuries. For example, in Kaiser v. United States, 761 F. Supp. 150 (D.D.C.1991), the federal court awarded $1786.50 in veterinary fees under the Federal Tort Claims Act for injuries suffered by a dog that was shot by a United States Capitol Police officer. In Kurash v. Layton, 251 N.J. Super. 412 598 A.2d 535 (1991), the New Jersey court awarded a dog owner $851 in veterinary fees for injuries suffered by the dog after it was impregnated by the defendant’s trespassing dog. In the present case, the Kansas Court of Appeals found that the district court did not err in measuring the damages by looking at the reasonable veterinary expenses that Burgess incurred on behalf of his dog. 2. With regard to whether the dog should be considered personal property, the Kansas Court of Appeals ruled that, for the purpose of measuring damages, a pet dog is personal property. The court reached this decision based on previous Kansas Supreme Court cases and statutes that have treated dogs as personal property in a variety of contexts. See Kan. Stat. Ann. § 79-1301 (defining a dog as personal property for tax purposes); State v. Rodriguez, 269 Kan. 633, 638, 8 P.3d 712 (2000) (finding that a dog is personal property pursuant to criminal statutes); State v. Fenske, 144 Kan. 560, 61 P.2d 1368 (1936) (finding that a dog is personal property for purposes of larceny). 3. Finally, with regard to whether the dog has a discernible market value, the Kansas Court of Appeals ruled that a dog does not have a market value because one cannot measure the “value to owner” in economic terms. Market value generally means that an article has an 2 established price because the article is bought and sold in an ordinary established business. See Airight Sales, Inc. v. Graves Truck Lines, Inc., 207 Kan. 753, 756, 486 P.2d 835 (1971).There is no such marketplace for the buying and selling of used dogs. Therefore, a dog’s worth cannot be discerned by its market value. Furthermore, determining a dog’s worth based on a generic market value takes away from the relationship that has been formed between the dog and owner, a value that cannot be measured in monetary terms. 3 Burgess v. Shampooch Pet Industries, Inc., 35 Kan.App.2d 458 (2006) 131 P.3d 1248 5 Cases that cite this headnote KeyCite Yellow Flag - Negative Treatment Distinguished by Aguilar v. Balano, Kan.App., November 5, 2010 35 Kan.App.2d 458 Court of Appeals of Kansas. [2] Sarah BURGESS, Appellee, v. SHAMPOOCH PET INDUSTRIES, INC., Appellant. When measuring damages to personal property where the item damaged has no market value, other relevant factors must be considered such as cost of repair, the original value, the loss of use, any special value to the owner, the loss of expected profits, and the cost of replacement. No. 93,698. | April 7, 2006. Synopsis Background: Owner of 13-year old pet dog brought negligence action against groomer, alleging that groomer caused dog’s dislocated hip. The Wyandotte District Court, Robert P. Burns, J., entered judgment against groomer for cost of veterinary care. Groomer appealed. 1 Cases that cite this headnote [3] [1] correct measure of damages was the reasonable and necessary veterinary expenses incurred in restoring dog to her former health; dog was personal property; and [3] dog had no discernable market value. 8 Cases that cite this headnote [4] Affirmed. West Headnotes (8) [1] Appeal and Error Plenary, free, or independent review Determination of whether district court applied the correct measure of damages is a question of law, and therefore, appellate court’s review is unlimited. Holdings: The Court of Appeals, Buser, P.J., held that: [2] Damages Injuries to personal property Damages Mode of estimating damages in general Damages Mode of estimating damages in general Damages Mode of estimating damages in general The sundry rules for measuring damages are subordinate to the ultimate aim of making good the injury done or loss suffered. Damages Injuries to personal property 1 Cases that cite this headnote Correct measure of damages recoverable for injuries negligently caused by groomer to 13-year old pet dog with no discernible market value was the reasonable and necessary veterinary expenses incurred in restoring dog to her former health. [5] Damages Injuries to personal property © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 Burgess v. Shampooch Pet Industries, Inc., 35 Kan.App.2d 458 (2006) 131 P.3d 1248 **1249 *458 Syllabus by the Court When an injured pet dog with no discernable market value is restored to its previous health, the measure of damages may include, but is not limited to, the reasonable and customary cost of necessary veterinary care and treatment. 1. The determination of whether the district court applied the correct measure of damages is a question of law, and therefore, this court’s review is unlimited. 2. For purposes of determining the measure of damages, a pet dog is personal property. 4 Cases that cite this headnote [6] Animals Dogs Damages Injuries to personal property For purposes of determining the measure of damages for injury to a pet dog, the dog is personal property. 2 Cases that cite this headnote 3. When measuring damages to personal property where the item damaged has no market value, other relevant factors must be considered such as cost of repair, the original value, the loss of use, any special value to the owners, the loss of expected profits, and the cost of replacement. 4. Under the facts of this case, a 13–year–old pet dog has no discernable market value. 5. When an injured pet dog with no discernable market value is restored to its previous health, the measure of damages may include, but is not limited to, the reasonable and customary cost of necessary veterinary care and treatment. Attorneys and Law Firms [7] Damages Injuries to personal property A dog kept by its owner as a household pet for 13 years has no discernable market value. Gerald N. Jeserich, of Kansas City, Kansas, for appellant. Robert G. Scott, of Robert G. Scott, LLC, of Olathe, for appellee. Before BUSER, P.J., MALONE and CAPLINGER, JJ. 1 Cases that cite this headnote Opinion BUSER, P.J. [8] Evidence Cost of property and amount received in general “Market value” means, generally, the price for which an article is bought and sold, and is ordinarily best established by sales in the ordinary course of business. Shampooch Pet Industries, Inc., (Shampooch) appeals the trial court’s award of $1,308.89 in compensatory damages to Sarah Burgess for injuries to her 13–year–old Yorkshire terrier, Murphy. We affirm. 1 Cases that cite this headnote Factual and Procedural Background On April 10, 2004, Burgess took Murphy to Shampooch in Kansas City, Kansas, for pet grooming services. Two days prior, on April 8, 2004, a veterinarian had examined © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Burgess v. Shampooch Pet Industries, Inc., 35 Kan.App.2d 458 (2006) 131 P.3d 1248 Murphy and determined *459 the dog was in good health. Moreover, Murphy appeared healthy when Burgess left her at Shampooch. Burgess returned later, retrieved the newly groomed Murphy and paid the $30 bill. Upon leaving Shampooch, Burgess noticed Murphy was acting strangely and was limping. Burgess immediately returned to the business and a representative of Shampooch denied any responsibility for Murphy’s injury. The following day, Burgess sought treatment for Murphy at Veterinary Specialty and Emergency Center in Overland Park, Kansas. On April 13, 2004, 3 days after her ill-fated grooming, Murphy underwent surgery to repair a dislocated hip. Veterinary treatment also included x-rays, blood work-up, anesthesia, intravenous fluids, sutures, and pain medications. As a result, Burgess incurred veterinary bills totaling $1,308.89. According to the district court, Burgess testified at trial that Murphy “was back to her usual self within a short time after her treatment.” **1250 Burgess filed a Chapter 61 petition for damages in Wyandotte County District Court alleging negligence by Shampooch caused Murphy’s dislocated hip. Following a trial to the court, judgment was entered for Burgess and against Shampooch in the amount of $1,308.89 plus court costs. Shampooch filed a timely appeal. The Measure of Damages Recoverable for Murphy’s Injury “People put dollar values-and therefor[e] market values-on their pets all the time. Sometimes it’s just ‘a good home’; sometimes it’s a specific dollar value in a want ad; sometimes people actually have their pets put to sleep because they don’t want to pay the vet bills for curing or fixing some existing damage or injury to the pet, thus putting a value on their pet at least less than vet bills. There are a number of ways to establish market values for pets.” Shampooch contends the damages awarded should be limited to Murphy’s market value. This contention is predicated on the general rule that when repairs can restore personal property to its previous condition, the measure of damages is the fair and reasonable cost of repairs not to exceed the value of the property before damage. See PIK Civ.3d 171.10. Shampooch asks this court to reverse the award of damages and remand the case to redetermine damages based on Murphy’s market value. In the context of this request, it should be noted that at oral argument counsel for the parties stated that Murphy was originally purchased for $175. Shampooch further requests this court to conclude, as a matter of law, that there is a rebuttable presumption that a pet has a market value. In response, Burgess tacitly acknowledges that Murphy may have value but observes: [1] [2] In its determination of damages the district court ruled that “a pet is different than a motor vehicle or a piece of machinery or other items of personal property in that a pet has no real market value.” The district court relied on Kansas Power & Light Co. v. Thatcher, 14 Kan.App.2d 613, Syl. ¶ 3, 797 P.2d 162 (1990), a case involving the destruction of a 35–year–old wooden utility pole, for the legal proposition: “When measuring damages to personal property where the item damaged has no market value, other relevant factors must be considered such as cost of repair, the original value, the loss of use, any special value to the owner, the loss of expected profits, and the cost of replacement.” (Emphasis added.) With Thatcher as precedent, the trial court awarded Burgess the cost of Murphy’s repair—$1,308.89 to reimburse Burgess for payment of Murphy’s veterinary bills. *460 Shampooch appeals the district court’s decision that a pet does not have a market value. To the contrary, Shampooch contends: “[W]hat is the value of a wet face licking received first thing in the morning? To a ‘cat person’ it is probably nothing but to a dog owner who has raised her friend from a puppy it is like the Master Card ad—priceless. What is the value of years of companionship, of training, of shared love? To put a value on a family pet all of this must be considered.” Burgess argues in support of the district court’s damage award, however, because by © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 Burgess v. Shampooch Pet Industries, Inc., 35 Kan.App.2d 458 (2006) 131 P.3d 1248 “allowing her the veterinary bills, the trial court put Burgess back into the position she was in prior to entering Shampooch Pet Grooming. She had a pet who could walk without pain, again. She did not have to find another pet, housebreak it, treat and care for it, feed it, walk it, love it and travel the many thousands of steps involved in a 13 year journey.” [3] The determination of whether the district court applied the correct measure of damages is a question of law, and therefore, this *461 court’s review is unlimited. Werdann v. Mel Hambelton Ford, Inc., 32 Kan.App.2d 118, 124, 79 P.3d 1081 (2003), rev. denied 277 Kan. 928 (2004) (citing Board of Johnson County Comm’rs v. Grant, 264 Kan. 58, 61, 954 P.2d 695 [1998] ). The question of the proper measure of damages recoverable for injury to a pet dog is one of first impression in Kansas. There exists in the United States a prevailing view regarding the proper measure of **1251 damages in cases involving the injury to or death of pet dogs. As one legal commentator summarized the legal landscape: “Companion animals have played a myriad of important roles in their human caregivers’ lives since prehistoric times. More than inanimate objects, they provide companionship, affection, solace, and uncritical acceptance of their human guardians. The law, however, has valued them as commodities by restricting recovery for their destruction or injury to their fair market value. The fair market value of ordinary pets, unless they have special qualities as breeding or working animals, is usually close to zero and, as a result, plaintiffs whose pets are destroyed through another’s negligent or intentional act are left with minimal damage recoveries.” Livingston, The Calculus of Animal Valuation: Crafting a Viable Remedy, 82 Neb. L.Rev. 783, 847 (2004). Another approach to evaluating damages in cases involving pet dogs is characterized as the “value to the owner” measure of damages: “The Restatement and most jurisdictions take a position that in such cases it would be unjust to limit damages to the fair market value and, instead, use the so-called ‘value to the owner’ (also known as the ‘actual value to the owner’ or ‘actual value’) as the measure of damages. See Restatement (Second) of Torts § 911, Comment e, at 474 (1965). The Restatement notes that where the subject matter cannot be replaced, the measure of the ‘value to the owner’ is left largely to the discretion of the trier of fact. See Restatement (Second) of Torts § 912, Comment c, at 481 (1965).” Anzalone v. Kragness, 356 Ill.App.3d 365, 370, 292 Ill.Dec. 331, 826 N.E.2d 472 (2005). This approach is contemplated by the language in Thatcher which allows consideration of “any special value to the owner.” Thatcher, 14 Kan.App.2d 613, Syl. ¶ 3, 797 P.2d 162. Several jurisdictions have found that where recovery is sought for a dog’s injury, however, the owner is entitled to recover the reasonable veterinary expenses incurred in treating those injuries. See Kaiser v. United States, 761 F.Supp. 150 (D.D.C.1991) *462 ($1786.50 in veterinary fees awarded pursuant to the Federal Tort Claims Act for injury to dog shot by United States Capitol Police officer); Kurash v. Layton, 251 N.J.Super. 412, 598 A.2d 535 (1991) ($851 in veterinary fees awarded to owner whose dog sustained injuries when it was impregnated by defendant’s trespassing dog); Goldberg v. Ruckstuhl, 408 So.2d 374 (La.App.1981) ($294.74 in veterinary fees awarded to owner due to treatment of serious wounds inflicted on a poodle); Brown v. Swindell, 198 So.2d 432 (La.1967) ($96 in veterinary fees awarded to owner for treatment of flesh wound and amputation of dog’s leg); Annot., Damages for Killing or Injuring Dog, 61 A.L.R.5th 635 § 11(a). Our review of Kansas case law did not identify any case analyzing the proper measure of damages to an injured pet dog. There is precedent, however, for employing a market value approach in measuring damages to an injured horse for hire. In Monroe v. Lattin, 25 Kan. 351, 1881 WL 827 (1881), a jury awarded plaintiff $173 for damages incurred when the defendant negligently allowed plaintiff’s horse to run away—damaging the horse, buggy, and harness. In addressing the proper measure of damages to the injured horse, Chief Justice Albert H. Horton wrote for a divided three-person Supreme Court: “So, also, the difference in the value of the horse before and after reasonable treatment, with the expense of the treatment, and the value of the use during the treatment, all not to exceed the value of the animal, is a correct mode of measuring the damage for the injury to the horse.” 25 Kan. at 356, 1881 WL 827, *2. This precedent, however, is not especially helpful. First, unlike Lattin’s damaged horse, Murphy, as a consequence of successful veterinary surgery, was restored to her former © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 Burgess v. Shampooch Pet Industries, Inc., 35 Kan.App.2d 458 (2006) 131 P.3d 1248 health. Assuming arguendo that Murphy had some market value prior to her hip dislocation, it was the same market value she had following her successful recovery from surgery. Second, we perceive a distinction between the purely economic value of a horse for hire and a pet dog, like Murphy. **1252 Whereas horses for hire are engaged in a business purpose conducive to economic valuations, the record reveals no such commercial relevance to Murphy. Finally, Lattin’s rule which provides that the recovery of damages must not “exceed the *463 value of the animal” makes sense in the economic marketplace but is certainly problematic in the case of a pet dog whose value is typically noneconomic. In evaluating the propriety of the district court’s award of the cost of veterinary bills as damages in this case, we are mindful of the practical, common-sense approach traditionally employed by Kansas courts in determining the appropriate measure of damages: [4] “While Kansas decisions give the courts a great deal of latitude in arriving at the proper measure of damages depending on the facts present, it appears that all of the various approaches at computing damages have the same ultimate goal: to make the damaged party whole.... ‘[T]he sundry rules for measuring damages are subordinate to the ultimate aim of making good the injury done or loss suffered and hence “[t]he answer rests in good sense rather than in a mechanical application of a single formula. [Citations omitted.]” ’ ” Thatcher, 14 Kan.App.2d at 617, 797 P.2d 162. [5] Consistent with this long-standing common-sense jurisprudence, we find the district court did not err in its award of damages to Burgess. We hold that when an injured pet dog with no discernable market value is restored to its previous health, the measure of damages may include, but is not limited to, the reasonable and customary cost of necessary veterinary care and treatment. Several factors compel this conclusion. [6] First, the district court properly found that, for purposes of determining the measure of damages, Murphy is personal property. Both our Supreme Court and legislature have previously treated dogs as personal property in a variety of contexts. K.S.A. 79–1301 (defining a dog as personal property for tax purposes); State v. Rodriguez, 269 Kan. 633, 638, 8 P.3d 712 (2000) (finding that a dog is personal property pursuant to criminal statutes); State v. Fenske, 144 Kan. 560, 61 P.2d 1368 (1936) (finding that a dog is personal property for purposes of larceny). [7] [8] Second, we are persuaded that a Yorkshire terrier kept by its owner as a household pet for 13 years has no discernable market value. “ ‘Market value means, generally, the price for which an article is bought and sold, and is ordinarily best established by sales in the ordinary course of business. In order for it to be said that a thing has a market value, it is necessary that there *464 shall be a market for such commodity—that is, a demand therefor and an ability from such demand to sell the same when a sale thereof is desired....’ [Citation omitted.]” Airight Sales, Inc. v. Graves Truck Lines, Inc., 207 Kan. 753, 756, 486 P.2d 835 (1971). In the instant case, unlike other types of personal property, there are no true marketplaces that routinely deal in the buying and selling of previously owned pet dogs. Moreover, Murphy’s real value to Burgess as a household pet is noneconomic and, as a result, is difficult if not impossible to appraise in the purely economic terms of market value. Or, as one court observed, “it is impossible to reduce to monetary terms the bond between man and dog, a relationship which has been more eloquently memorialized in literature and depicted on the motion picture screen.” Zager v. Dimilia, 138 Misc.2d 448, 524 N.Y.S.2d 968 (1988). Third, the district court’s reliance on veterinary bills as a measure of damages in this case was especially appropriate because Shampooch did not dispute the necessity for or amount of Burgess’ veterinary bills. As a result, the invoices for Murphy’s veterinary care and treatment provided the district court with substantial competent evidence to find that the veterinary services were necessary to repair Murphy’s dislocated hip and that the costs were reasonable and customary. The determination of the necessity for veterinary treatment and reasonableness of veterinary bills is also practical because it is readily ascertainable and provable. Indeed, in the context of human beings claiming damages for personal injuries, district courts and **1253 juries are routinely confronted with analogous damage determinations regarding “reasonable expenses of necessary medical care.” PIK Civ.3d 171.02. In short, the evidence relied upon by the district court in this case in awarding damages was uncontroverted, straightforward, and easily applicable to the facts of this case. Moreover, the award of the amount Burgess spent on veterinary bills is in accord with the very purpose of the law of damages—to make Burgess whole and return her to the position she was in prior to Shampooch’s tortious conduct. It can hardly be said that a lesser award—for example, Murphy’s original purchase price of $175 depreciated over 13 years—would “ ‘make good the injury done’ ” *465 14 Kan.App.2d at 618, 797 P.2d 162, or fairly and adequately compensate Burgess for her out-of-pocket © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 Burgess v. Shampooch Pet Industries, Inc., 35 Kan.App.2d 458 (2006) 131 P.3d 1248 expenses. receive extraordinary veterinary care and treatment or may incur veterinary costs that are unusual or unreasonable. Finally, Shampooch hyperbolically claims: “To allow this ruling to stand in its current state would open the proverbial ‘floodgates’ of high dollar litigation on behalf of animals with market value substantially less than the claims.” We disagree. Our holding is premised upon the finding that Murphy’s veterinary care and treatment were necessary and that the costs were reasonable and customary. We do not address those special cases wherein a pet dog may End of Document Affirmed. All Citations 35 Kan.App.2d 458, 131 P.3d 1248 © 2019 Thomson Reuters. No claim to original U.S. Government Works. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6