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Bolton v. Fisher

Court of Appeals of Texas, Sixth District, Texarkana

July 26, 2017

AMY BOLTON, Appellant
v.
GEORGE K. FISHER, Appellee

          Date Submitted: June 5, 2017

         On Appeal from the 62nd District Court Lamar County, Texas Trial Court No. 85921

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

          OPINION

          Ralph K. Burgess, Justice

         While 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 attack.

         Fisher 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;[1] (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.[2] Bolton appeals, arguing that the trial court's summary judgment was erroneous.

         We find 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.

         I. Standard of Review

         "We 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)).

         "When 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)).

         "Any 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)).

         II. The Summary Judgment Evidence

         Tucker 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.

         Prior 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."

         Both 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 day."

         Bolton's 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 ...


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