Court of Appeals of Texas, Sixth District, Texarkana
Submitted: June 5, 2017
Appeal from the 62nd District Court Lamar County, Texas Trial
Court No. 85921
Morriss, C.J., Moseley and Burgess, JJ.
K. Burgess, Justice
walking to her mailbox on July 10, 2014, Amy Bolton was
viciously attacked by two dogs owned by her neighbor, Mataba
Kisenda Tucker. After undergoing seven surgeries as a result
of the attack, Bolton sued Tucker and her landlord, George K.
Fisher, and asserted separate causes of action for
negligence, strict liability, public nuisance, and private
nuisance. Among other things, Bolton's petition alleged
that Fisher knew Tucker was harboring aggressive dogs on her
property, but failed to use reasonable care to prevent the
filed traditional and no-evidence motions for summary
judgment, arguing that (1) summary judgment on the negligence
claim was proper because (a) he was an out-of-possession
landlord who owed no duty to Bolton under the circumstances
of the attack, and (b) there was no evidence that Fisher owed
any legal duty to Bolton; (2) a landlord cannot be held strictly
liable for an attack by a lessee's dogs; and (3) Texas
law does not support a separate cause of action for public or
private nuisance. The trial court granted Fisher's
summary judgment motions and created a final, appealable
order by severing Bolton's claims against Fisher from her
claims against Tucker into a separate cause
number. Bolton appeals, arguing that the trial
court's summary judgment was erroneous.
that there are genuine issues of material fact as to whether
Fisher had actual knowledge of the presence of a vicious
animal on the leased premises. Therefore, we reverse the
trial court's summary judgment on Bolton's negligence
claim, but affirm the judgment in all other respects.
Standard of Review
review grants of summary judgment de novo." First
United Pentecostal Church of Beaumont, d/b/a the Anchor of
Beaumont v. Leigh Parker, 514 S.W.3d 214, 219 (Tex.
2017) (citing Cantey Hanger, LLP v. Byrd, 467 S.W.3d
477, 481 (Tex. 2015)). "In our review we take as true
all evidence favorable to the non-movant, indulge every
reasonable inference in favor of the non-movant, and resolve
any doubts in the non-movant's favor." Id.
(citing Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005)).
a party moves for both traditional and no-evidence summary
judgments, we first consider the no-evidence motion."
Id. (citing Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004)). "If the non-movant fails
to meet its burden under the no-evidence motion, there is no
need to address the challenge to the traditional motion as it
necessarily fails." Id. (citing Merriman v.
XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)).
"Thus, we first review each claim under the no-evidence
standard." Id. "To defeat a no-evidence
motion, the non-movant must produce evidence raising a
genuine issue of material fact as to the challenged
elements." Id. at 220 (citing Ridgway,
135 S.W.3d at 600). "A genuine issue of material fact
exists if the evidence 'rises to a level that would
enable reasonable and fair-minded people to differ in their
conclusions.'" Id. (quoting Merrell Dow
Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997)). "The evidence does not create an issue of
material fact if it is 'so weak as to do no more than
create a mere surmise or suspicion' that the fact
exists." Id. (quoting Kia Motors Corp. v.
Ruiz, 432 S.W.3d 865, 875 (Tex. 2014)).
claims that survive the no-evidence review will then be
reviewed under the traditional standard." Id.
at 119-20. "A traditional motion for summary judgment is
granted only when the movant establishes there are no genuine
issues of material fact and it is entitled to judgment as a
matter of law." Tipps v. Chinn Exploration Co.,
No. 06-13-00033-CV, 2014 WL 4377813, at *2 (Tex.
App-Texarkana Sept. 5, 2014, pets. denied) (mem. op.) (citing
Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009)).
The Summary Judgment Evidence
leased one of the twenty rental homes owned by Fisher on
Walker Street in Paris, Texas. Tucker and Fisher's
depositions established that Tucker owned dogs, but did not
have the money to pay for a pet deposit when she signed the
rental agreement. Consequently, Fisher testified that
Tucker's lease agreement prohibited her from keeping pets
on the premises of the single-family, detached rental home.
The lease agreement itself mentioned that Tucker had "2
outside dogs, " but also indicated that "NO
PETS" were allowed to reside on the property. In spite
of this prohibition, Tucker testified that she kept three
"watchdogs" on the premises, and summary judgment
evidence established that they had lived in Tucker's home
since at least March 2014.
to Bolton's attack, Tucker's home had been broken
into and burglarized. Pursuant to Tucker's request,
Fisher went to the home to repair the broken door and saw
three barking dogs in Tucker's yard. He told Tucker that
she would have to pay the pet deposit in order to keep the
dogs. During his deposition, Fisher testified that he never
saw the dogs fighting or attacking animals and that he had no
indication that the dogs were dangerous or vicious prior to
the attack on Bolton. Yet, Fisher's statement to his
Texas Farm Bureau insurance adjuster, Jessica Hill,
established that, prior to the attack, Fisher knew Tucker
kept the dogs as watchdogs to secure the premises. He further
told Hill that, when he first saw the dogs, they appeared to
be "aggressive, " "mixed breed dogs."
Fisher and Tucker testified in their depositions that Fisher
did not know of the dogs' presence on the property until
a few days before Bolton's attack. Yet, Fisher testified
that anyone driving by Tucker's home could see into the
backyard where the two Pitbull mixes and one "Shepherd
Cross" was kept, and Tucker told Hill in a recorded
statement that the dogs remained outside unless it was
raining. Bolton also testified that she saw Fisher at
Tucker's home at least three times before the attack and
opined that he must have been aware of the dogs'
dangerous propensities because they were barking and
"trying to get off the chain and eat him up that
neighbor, Cleba Joe Bridges, corroborated Bolton's
testimony that Fisher had noticed the dogs at least two weeks
before Bolton's attack, at a time when Tucker was not
home. Bridges testified that he watched Fisher approach the
house and witnessed the dogs "barking like crazy. . .
and growling." Bridges said that the "[v]ery
aggressive" dogs had a "rough growl, "
"were really getting after it, " and were
"raising the roof with [Fisher]." While two of the
dogs were in a pen in Tucker's backyard, Bridges said
that a Pitbull chained outside ...