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Smith v. Province

Court of Appeals of Texas, Seventh District, Amarillo

April 25, 2019

KAREN LINDSEY SMITH, APPELLANT
v.
TERRY P. PROVINCE, APPELLEE

          On Appeal from the County Court at Law No. 2 Denton County, Texas[1] Trial Court No. CV-2016-00729, Honorable Robert Ramirez, Presiding

          Before CAMPBELL and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          Judy C. Parker, Justice

         Appellant, Karen Lindsey Smith, sued appellee, Terry P. Province, to recover damages for personal injuries after sustaining a dog bite from one of Province's dogs. The trial court granted summary judgment in Province's favor. In two issues, Smith asserts the trial court erred in excluding summary judgment evidence and in granting summary judgment. Because we conclude that the trial court properly granted Province's summary judgment motion, we affirm the judgment of the trial court.

         Background

         In January of 2016, Smith was working as a seasonal employee for United Parcel Service when she was dispatched to deliver a package to Province's home on a rural property near Ponder, Texas. While traveling to Province's property, a fellow employee advised Smith that Province had one or more dogs on the property, and she was instructed to leave the package on the outside of the gate. Smith approached the gate and was aware of two dogs that were close to the gate within the fenced-in property. While Smith was leaving the package, a third dog, Heidi, without any warning, bit Smith on the neck through the gate.

         At the time of the incident, Heidi was a six-year-old mixed breed dog weighing approximately 100 pounds.[2] Province acquired Heidi when she was a puppy, about eight weeks old. According to Province's affidavit, "Heidi is normally a well-behaved dog, having received formal training from a commercial dog trainer that made her obedient to the following commands: come, sit down, place, stay, off, quiet, and release." Province owns five dogs and three of the dogs, including Heidi, primarily stay outdoors. The dogs are kept within a fenced-in yard, with a gate at the primary point of ingress and egress. The gate is a five-panel steel farm gate with vertical bracing. The space between the horizontal gate slats is wide enough for a dog to stick its nose through. Because of the space between the slats, Province placed chicken wire along the bottom portion of the gate to keep two of his smaller Dachshunds in the yard.

         Province avers that Heidi "has no vicious tendencies and has never bitten anyone before the incident at issue." Province prefers for "delivery people to leave packages outside the gate." According to Province, "none of our dogs has ever attacked, chewed, or in any way damaged a package or piece of mail left at our property."

         Smith sued Province for negligence and gross negligence.[3] Province filed a traditional and no-evidence motion for summary judgment primarily contending that there was no evidence that the dog bite was foreseeable or that Province owed or breached any duty to Smith. In response, Smith points to evidence that German Shepherd dogs and Boxers have in-bred aggressive tendencies and argues for a heightened standard of care based on the breed of the dog in question. Smith claims that Province owed a duty to protect Smith from these in-bred tendencies and that Province breached his duty by failing to cover openings in his gate that permitted the dog to bite Smith. The trial court granted the motion for summary judgment without specifying the grounds, and Smith appeals.

         Standards of Review

         We review the trial court's decision to grant summary judgment de novo. 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 nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A trial court properly grants a motion for summary judgment when the movant has established that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). When the trial court does not specify the grounds for its summary judgment, the appellate court must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Id. at 216.

         In reviewing a no-evidence summary judgment, we must consider all the evidence in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Gonzalez v. Ramirez, 463 S.W.3d 499, 504 (Tex. 2015) (per curiam); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will affirm a no-evidence summary judgment if the record shows one of the following: (1) there is no evidence on the challenged element, (2) the evidence offered to prove the challenged element is no more than a scintilla, (3) the evidence establishes the opposite of the challenged element, or (4) the court is barred by law or the rules of evidence from considering the only evidence offered to prove the challenged element. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013); City of Keller, 168 S.W.3d at 810.

         Appellate courts review a trial court's ruling sustaining or overruling objections to summary judgment evidence for an abuse of discretion. Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d 559, 567 (Tex. App.-Fort Worth 2008, pet. denied). To determine whether a trial court abused its discretion, the court must decide whether the trial court acted without reference to any guiding rules or principles; in other words, the court must decide whether the act was arbitrary or unreasonable. Id. Merely because a trial court may decide a matter within its ...


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