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Turner v. Duggin

Court of Appeals of Texas, Sixth District, Texarkana

March 31, 2017


          Submitted: February 2, 2017

         On Appeal from the 415th District Court Parker County, Texas Trial Court No. CV14-1551

          Before Morriss, C.J., Moseley and Burgess, JJ.


          Bailey C. Moseley Justice

         Oscar was an eleven-year-old blue heeler mix canine owned by Timothy Ray Turner and his wife, Paula Kaye Turner. While the Turners were away on vacation, Oscar escaped their yard through a gate inadvertently left open by Paula's teenaged daughter, Makayela Fuller, and bit passerby Jennifer Duggin, causing her significant and irreparable injury. Duggins brought suit wherein she alleged that the Turners were negligent in the supervision and confinement of the dog (including negligent entrustment of that responsibility to a child), in exercising ordinary care by allowing the dog to escape the Turners' property, and in training the dog to be vicious and to attack people. They alleged that the Turners knew or should have known of the vicious propensities of the dog and were guilty of such gross negligence that they were strictly liable for the damages occasioned to Duggin by the attack. After hearing evidence that Oscar had bitten several other people and regularly escaped the Turner's yard, the jury found by clear and convincing evidence that the Turners had been grossly negligent. The jury awarded a total of $570, 000.00 in compensatory damages, $75, 000.00 in exemplary damages against Timothy, and $50, 000.00 in exemplary damages against Paula. After overruling the Turners' motion for new trial and motion for remittitur, the trial court entered a final judgment in accord with the jury's verdict, adding an award of $5, 731.51 in prejudgment interest, for a total award of $700, 731.51 to Duggin.

         On appeal, [1] the Turners question whether the evidence was legally and factually sufficient to support (1) the jury's award of $350, 000.00 for a line item that included both future pain and suffering and future mental anguish, (2) the jury's finding of gross negligence, and (3) both the award of and the amount of the award of exemplary damages. Because we find the evidence legally and factually sufficient to support all of the jury's findings, we affirm the trial court's judgment.[2]

         I. Standard of Review

         In determining legal sufficiency, the appellate court examines "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In looking at the evidence, we credit favorable evidence if a reasonable jury could and disregard contrary evidence unless a reasonable jury could not. Id. The evidence is legally insufficient if

(1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact.

Chesser v. LifeCare Mgmt. Servs., L.L.C., 356 S.W.3d 613, 618-19 (Tex. App.-Fort Worth 2011, pet. denied) (citing Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998)); see Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010).

         More than a scintilla of evidence exists when the evidence reaches a level enabling reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion' of a fact." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

         When reviewing a jury verdict for factual sufficiency of the evidence, we consider and weigh all the evidence and only set aside the verdict if "we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered." Chesser, 356 S.W.3d at 619 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)); see Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

         II. The Evidence at Trial

         A. Oscar's General Character and Training

         Timothy adopted Oscar while he was married to his former wife, Stacey Santibanez. Santibanez testified that Timothy trained Oscar "to bite on command" by using her son, Jason, and his daughter, Elizabeth, as the subjects of the attack. She informed the jury that even though Timothy had attempted to train Oscar to only put his mouth on people on command without actually biting them, Oscar would bite the children "every time" he attempted to train him in that fashion. According to Santibanez, the children believed that Oscar was vicious and did not want to participate in training the dog. She testified that Elizabeth still had scars from a puncture wound created by Oscar's bite. Yet, except for the one instance involving Elizabeth, Santibanez denied that Oscar drew blood when he bit the children.

          Santibanez described Oscar as a threat to people he did not know. She testified that she was forced to instruct guests to stay away from Oscar because she was concerned for their safety. According to Santibanez, even Paula said Oscar should have been put down a long time ago because of his tendency to bite people.

         Cheryl Collins, the sixty-five year-old woman who lived across the street from the Turners, described Oscar as a mean alpha male animal. Collins testified that the Turners regularly allowed Oscar and their other two dogs to roam the neighborhood and that the dogs' demeanor caused her to be afraid for her safety and that of her husband because the dogs had previously acted as if they were going to attack her. Collins and her husband were so afraid of Oscar that they each regularly carried a gun while going to their own mailbox. According to Collins, for several weeks before the incident, Oscar and another dog would come to their yard daily with their heads down and their ears pinned back as they growled, showed their teeth, and dug at her fence in an attempt to attack her four small dogs.

         James Kendall Harrison, who also lived next door to the Turners, testified that he was not surprised to hear of Oscar's attack on Duggin. He testified that the Turners' dogs were vicious and that they made him afraid because they seemed as if they wanted to attack. Harrison said that he became nervous when the dogs escaped the Turners' yard, mostly fearing for the safety of his three children, believing that the dogs were a threat to the safety of the entire community.

         Harrison's wife, Krystal, also testified that the Turners' dogs would come to her yard three or four times a week. Krystal was afraid for her children's safety because the dogs would bark, growl, and would "have evil in their eyes." Krystal also believed that the dogs stood ready to attack.

         Caleb Toles, a friend of Paula's children, Makayela Fuller and Dustin Fuller, testified that Oscar was vicious toward strangers and had bitten his wife, Jenna Toles. Caleb told the jury that he believed that he had also come close to getting bitten by Oscar, but that Oscar obeyed a command from Timothy to not attack. Caleb and Jenna both testified that they heard Timothy bragging about having trained Oscar to assist him in bar fights.

         Elizabeth denied that Oscar had been trained to attack, stated that she did not hate Oscar, and claimed that she was only nipped by Oscar twice during horseplay with her brother. Elizabeth clarified that she did not bleed when Oscar nipped her and stated that she had no scars from the incident. Makayela Fuller testified that Oscar caught her pant leg once when she was play-fighting with Dustin. Although she heard that Oscar had bitten others and had attacked a man named Cole Thomason, Makayela testified that Oscar was not dangerous and was a nice dog.

         Paula also described the dog as "laid back and easy going" and testified that she had never heard him growl. Timothy denied that he trained the dog to attack to assist him in bar fights. Instead, he explained that he used Oscar to "herd" the children and denied that Oscar had ever bitten Jason. Timothy testified that because he was not concerned about other people's safety around Oscar and (even though he was aware that the dog had bitten Duggin), he would not mind leaving the gate open for Oscar in the future.

          B. Prior Incidents Involving Oscar

         The jury heard that Oscar had bitten several non-family members prior to his attack on Duggin, including Jenna, Thomason, Kelly Wilfong, and Geno Santibanez. Jenna testified that Oscar was aggressive towards strangers. She testified that the first time she was around Oscar, she was reaching for the Turners' door when Oscar lunged towards her and sank his teeth into her skin. Jenna's grandmother, Gaile Comeau, and Caleb both testified that Jenna still had a scar from the deep puncture wound. Comeau testified that Paula was made aware of the wound inflicted by Oscar, being the person who cleaned the wound.

         It was also undisputed that Oscar had attacked Thomason. Santibanez described Thomason as an elderly man who was bitten when he was walking on the road of an RV park in New Braunfels. Timothy testified that Oscar bit Thomason because Thomason was walking just outside the front door of an RV owned by Timothy. Oscar was quarantined by Comal County as a result of the attack and was released to Timothy after seven days in quarantine.

         Paula and Timothy also admitted that Oscar had likewise bitten Paula's friend, Wilfong, on or about October 29, 2013. Paula testified that Wilfong required medical treatment as a result of the wound created by Oscar and that Oscar was once again quarantined as a result of the attack. According to Paula, Wilfong was returning the Turners' other two dogs to the Turners' backyard (from which they had escaped) when Oscar bit her.

         Santibanez testified that Oscar had attacked and bitten her friend's children as they were getting out of a car and that he had twice bitten her husband, Geno Santibanez (who is a longtime friend of Timothy's). On one occasion, Santibanez said that Oscar bit Geno on the leg when he was helping to take out the trash. On the second occasion, Santibanez said that Geno was in the Fast Lane Bar when Oscar was present. Geno reached to pet Oscar and was bitten on his arm even though Timothy had not directed Oscar to attack, this bite being sufficiently serious to cause him to bleed.

         Timothy admitted that Oscar bit someone in a bar once. However, when asked about the incident involving Geno, Timothy claimed that Geno had bitten Oscar prior to the attack. According to Santibanez, Geno bit Oscar only after the incident to teach him a lesson. Elizabeth also testified that she heard that Oscar bit Geno first.

         There was also testimony that Oscar had bitten family members. According to Caleb, Timothy became intoxicated a few times and would sometimes sic the dog on Dustin. Caleb testified that Oscar ripped through Dustin's jeans on one occasion, drawing blood. According to Jenna, Oscar had also bitten Makayela when she intervened in the dog's attack of her boyfriend. Jenna testified that Oscar could potentially be a threat to a stranger if he was left outside.

         C. The Neighbors Complain About Oscar to the Turners

         According to Jenna, both Makayela and Caleb informed Paula that the neighbors were complaining about Oscar. Other evidence at trial demonstrated that the Turners were aware of the neighbors' complaints.

         Collins testified that Oscar was in her yard every day for several weeks before Duggin was bitten, regardless of whether the Turners' gate was open or closed. Collins stated that her husband called Paula to inform her of their dogs' behavior and that Paula's response was simply, "[O]h, the kids probably left the gate open again." According to Collins, when she offered to show Paula the hole in the fence from which the dogs were escaping, Paula declined the offer as if she did not seem to care. Collins testified that she did not stress the issue further because she did not think Paula would act. Collins based this belief on the fact that she had informed Paula about the issue many previous times, but the dogs returned every day. Collins testified that she was so frustrated at the continued presence of the Turners' unfriendly dogs in her yard that she expended $16, 000.00 to construct a fence to keep them out.

         Harrison testified that he saw the Turners' dogs outside the Turners' yard "at least every other day" for "at least a week or two" prior to the incident involving Duggin. On two separate occasions, the dogs had gotten into Harrison's cow pasture. Harrison testified that he ran the dogs back into the hole in the Turners' fence after the dogs mauled the nose of a sick cow. According to Harrison, his uncle, Ralph Walker, had spoken to Paula about the hole in the fence that allowed the dogs to escape. Nevertheless, Harrison testified that he continued to see the dogs outside of the ...

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