Phyllis McNeal and Mark Wright v. Hughes Thomas ( 2004 )

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                                    NUMBER 13-03-347-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

PHYLLIS McNEAL AND MARK WRIGHT,                                 Appellants,

v.

HUGHES THOMAS,                                                                       Appellee.

    On appeal from the 156th District Court

of San Patricio County, Texas.

    MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Castillo

Memorandum Opinion by Justice Castillo

         This is an appeal from a summary judgment. Appellants Phyliss McNeal and Mark Wright sued appellee Hughes Thomas for personal injuries and property damage after Wright's pickup truck ran into a cow on U.S. Highway 181 in San Patricio County. We affirm in part and reverse and remand in part.

I. BACKGROUND

         About 8:30 the evening of March 13, 2000, Wright was driving his truck northbound on U.S. Highway 181, less than a mile from county road 22 in San Patricio County. McNeal was his passenger. A cow started to cross the highway. The truck hit the cow. McNeal and Wright sued Thomas, alleging his negligence caused the accident. Thomas filed both traditional and no-evidence motions for summary judgment. See Tex. R. Civ. P. 166a(c), (i). The trial court granted summary judgment without specifying the grounds on which it did so. This appeal ensued.

II. SUMMARY-JUDGMENT ANALYSIS

         By seven issues, McNeal and Wright assert that the trial court erred in granting: (1) Thomas's traditional summary-judgment motion because there are genuine issues of material fact; (2) the traditional motion because it was legally insufficient; (3) the traditional motion because they can cure any deficiencies in their pleadings by amendment; (4) the no-evidence motion because they brought forth more than a scintilla of probative evidence to raise a genuine issue of material fact; (5) the no-evidence motion because it was legally insufficient; (6) the no-evidence motion because they can cure any deficiencies in the pleadings by amendment; and (7) the no-evidence motion because there had not been adequate opportunity for discovery.

A. Summary-Judgment Grounds and Response

1. Traditional Grounds

       In his traditional motion, Thomas asserted: (1) absent a common-law rule of restraining cattle, he cannot be held to a common-law duty; (2) even if McNeal and Wright pleaded a statutory cause of action under section 143.102 of the Texas Agriculture Code, there is no evidence Thomas owned the cow; (3) the owner of the livestock, not the owner of the land, has the statutory duty to prevent livestock from roaming onto a state or federal highway; (4) even if Thomas owned the cow, there was no evidence he knew or should have known that the cow was roaming at large on U.S. Highway 181. Thomas's traditional summary-judgment evidence included his affidavit:

                           I am not the owner of the cow hit by Mark Wright on March 13, 2000. I saw the dead cow and the brand was not mine. I have not owned cattle for 20 years. Prior to the accident there was a strong, windy storm. The wind was sufficient to blow down a tree which damaged part of the fence sufficient to allow the cow to escape. I have no knowledge of any prior incidents involving that tree. I had no reason to believe it would fall down. I am a part-owner of the land and I lease the land to another. I do not have right of control over the land. The brad [sic] recorded in San Patricio County in 1972 is still my brand. I have used no other brand. The brand on the cow is EH.

2. No-Evidence Grounds

         In his no-evidence motion, Thomas asserted there was no evidence to raise a genuine issue of material fact regarding duty. In his factual overview, he characterized McNeal and Wright's suit as claiming he had a duty to prevent the cow from wandering or escaping onto the highway.

3. Summary-Judgment Response

         In their summary-judgment response, McNeal and Wright argued that disputed issues of material fact precluded summary judgment, including: (1) ownership of the cow; and (2) ownership or lease of the land from which the cow roamed. In their summary-judgment affidavits, McNeal and Wright stated that they spoke to a deputy sheriff and a Texas Department of Public Safety ("DPS") trooper at the scene. Both affidavits stated: (1) each heard Thomas tell the trooper to bury the cow after the trooper stated that only the owner of the cow could direct how to dispose of it; (2) each verified that the brand on the cow matched Thomas's brand on file in the county clerk's records and on the gate to his property; (3) each heard Thomas admit he had called the cow from across the highway immediately before the collision; (4) Thomas did not tell the trooper he leased the land to anyone; (5) Thomas did not tell the trooper someone else owned the cow; (6) Thomas gave his address on the accident report as owner of the cow; (7) each heard Thomas say "it was one cow down and four to go"; and (8) each had been in the area several days and did not experience any storms.

B. Summary-Judgment Standards of Review

         On appeal, the standard of review for the grant of a motion for summary judgment is determined by whether the motion was brought on no-evidence or traditional grounds. Tex. R. Civ. P. 166a(i), (c); Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.–Corpus Christi 2003, no pet.). The difference in relative burdens between the parties in the two types of summary-judgment motions is significant. Id. Determination of the nature of the motion for summary judgment under analysis is critical. Id. Accordingly, we first address how we will review Thomas's motions.

         We note that the mere attachment of evidence to a no-evidence summary-judgment motion is not sufficient to allow the court to disregard the no-evidence motion. See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004) (holding that evidence attached to no-evidence motion shall not be considered, but motion should not be disregarded or treated as traditional motion); see also Oasis Oil Corp. v. Koch Ref. Co., 60 S.W.3d 248, 250 (Tex. App.–Corpus Christi 2001, pet. denied). The no-evidence portion of Thomas's motion contained no argument, analysis, or case law. Even so, "[i]f a motion clearly sets forth its grounds and otherwise meets rule 166a's requirements, it is sufficient." Jacobo, 135 S.W.3d at 651. Accordingly, we separately analyze Thomas's traditional and no-evidence motions.

          The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial. Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App.–Corpus Christi 2003, no pet.). In both traditional and no-evidence summary-judgment motions, we review the evidence "in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences." See KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.–Corpus Christi 2003, no pet.). The movant bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law.  Hoyt, 105 S.W.3d at 345. We affirm a trial court's ruling on a summary-judgment motion if any of the theories advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Boren v. Bullen, 972 S.W.2d 863, 865 (Tex. App.–Corpus Christi 1998, no pet.). We review a summary judgment de novo to determine whether a party established its right to prevail as a matter of law. Ortega, 97 S.W.3d at 771.

1. Traditional Motion under Rule 166a(c)

         The non-movant has the burden to respond to a traditional summary-judgment motion if the movant conclusively: (1) establishes each element of its cause of action or defense; or (2) negates at least one element of the non-movant's cause of action or defense. Hoyt, 105 S.W.3d at 345. Thus, summary judgment for a defendant is proper if the defendant disproves at least one element of each of the plaintiff's claims or affirmatively establishes each element of an affirmative defense to each claim. Id.                            2. No-Evidence Motion under Rule 166a(i)

         We review a no-evidence motion for summary judgment under the same legal-sufficiency standard as a directed verdict. See Tex. R. Civ. P. 166a(i); see also Branton, 100 S.W.3d at 646. The movant must assert that there is no evidence of an essential element of a particular claim or defense which the nonmovant would have the burden of proving at trial. Branton, 100 S.W.3d at 647. By definition, the movant does not produce any evidence. See Tex. R. Civ. P. 166a(i). Rather, the nonmovant must produce sufficient evidence to raise a genuine issue of material fact as to the challenged element. Id.; Branton, 100 S.W.3d at 647. We consider any quantum of evidence greater than a scintilla sufficient. Branton, 100 S.W.3d at 647. More than a scintilla of evidence exists when the proffered proof "would enable reasonable and fair-minded people to differ in their conclusions." Id. Conversely, less than a scintilla of evidence exists when the proffered proof merely "creates a . . . surmise or suspicion of a fact" as to the material elements. Id.

C. Disposition of Thomas's Traditional Summary-Judgment Motion

1. Roaming Livestock

         The Texas Legislature has not been oblivious to safety concerns raised by roaming livestock. Gibbs v. Jackson, 990 S.W.2d 745, 750 (Tex. 1999). Exercising its policymaking authority, the Legislature has considered livestock restraint and fencing laws along virtually every type of roadway in the State of Texas. Id. A landowner or occupier may have a duty to fence the property to keep livestock in or out. William V. Dorsaneo III, Texas Litigation Guide § 280.04 at 18-280 (2004). Livestock owners in Texas may be liable for negligence if their animals stray onto state or federal highways. Gibbs, 990 S.W.2d at 749; Beck v. Sheppard, 566 S.W.2d 569, 572-73 (Tex. 1978); see Weaver v. Brink, 613 S.W.2d 581, 583-84 (Tex. Civ. App.–Waco 1981, writ ref'd n.r.e.). However, there is no common-law duty in Texas for an owner of livestock to restrain the animals within fences. Gibbs, 990 S.W.2d at 747; Goode v. Bauer, 109 S.W.3d 788, 791 (Tex. App.–Corpus Christi 2003, pet. denied). Any duty to restrain livestock is statutory. Bauer, 109 S.W.3d at 791.

         Two types of statutes in Texas address an owner's obligation regarding the restraint of livestock: (1) section 143.102 of the agriculture code, which prohibits all owners of livestock from knowingly permitting their animals to roam at large on the right of way of a state or federal highway in Texas, regardless of whether the local county has adopted a stock law requiring the restraint of livestock; and (2) local option stock laws in those counties that have adopted them. Id. The presence of livestock on a roadway does not create a presumption that the owner was negligent. See Beck, 566 S.W.2d at 572. Whether under the statutory prohibition against livestock running at large on state or federal highways or under a local option stock law, fault must be attributed to the owner of an animal that strayed onto a highway for liability to attach. Id. at 792; Straitway Transport, Inc. v. Mundorf, 6 S.W.3d 734, 741 (Tex. App.–Corpus Christi 1999, pet. denied); Hanna v. Wright, 504 S.W.2d 779, 782-83 (Tex. Civ. App.–Tyler 1974, no writ). 2. Discussion

         In their first issue, McNeal and Wright assert generally that the trial court erred in granting Thomas's traditional motion for summary judgment because material issues of fact preclude summary judgment. The trial court's order granting Thomas summary judgment does not state the grounds on which the trial court did so.  Thus, McNeal and Wright, as the nonmovants, must show on appeal that each independent ground alleged by Thomas is insufficient to support the summary judgment. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Meru v. Huerta, 136 S.W.3d 383, 387 (Tex. App.–Corpus Christi 2004, no pet. h.).

a. Legal Sufficiency of Thomas's Traditional Motion

         As grounds for his traditional motion for summary judgment, Thomas asserted that his summary-judgment evidence proved he did not own the cow. Even if he owned the cow, he added, his summary-judgment evidence negated the "knowingly" element of any statutory cause of action McNeal and Wright asserted. In their second issue, McNeal and Wright contend that Thomas's traditional motion for summary judgment was legally insufficient. However, Thomas's traditional motion presented summary-judgment proof that disproved at least one element of each of McNeal and Wright's claims. See Hoyt, 105 S.W.3d at 345. We conclude that Thomas's motion for traditional summary judgment met the requirements of rule 166a(b). See id.; see also Tex. R. Civ. P. 166a(b). We overrule McNeal and Wright's second issue.

b. The "Knowingly" Element of McNeal and Wright's

Causes of Action for Failure to Maintain and Inspect the Fence and

Failure to Maintain a Proper Lookout over the Livestock and Enclosure

          Section 143.102 of the agriculture code requires a person who owns or has responsibility for the control of a cow not to "knowingly" permit the animal to traverse or roam at large, unattended, on the right-of-way of a state or federal highway. Tex. Agric. Code Ann. §143.102 (Vernon 1982). Construing the evidence favorable to McNeal and Wright as true, even if Thomas owned the cow, nothing in the summary judgment evidence established that he knowingly permitted the cow to traverse or roam at large, unattended, on the right-of-way of Highway 181. McNeal and Wright urge us to infer from evidence Thomas was on the scene, actively looking for loose cows, as evidence Thomas knowingly permitted the animals to roam at large, unattended, on U.S. Highway 181.

         A party may prove an ultimate fact by circumstantial evidence. See Briones v. Levine's Dep't Store, 446 S.W.2d 7, 10 (Tex. 1969). A fact issue is raised by circumstantial evidence if, from the evidence, a reasonable person would conclude that the existence of the fact is more reasonable than its nonexistence. Estate of Murphy, 694 S.W.2d 10, 12 (Tex. App.–Corpus Christi 1984, writ ref'd n.r.e.). "All that is required is that the circumstances point to ultimate facts sought to be established with such a degree of certainty as to make the conclusion reasonably probable." Id. (citing Smith v. Tenn. Life Ins. Co., 618 S.W.2d 829, 834 (Tex. Civ. App.–Houston [1st Dist.] 1981, no writ). However, any inference must be fairly drawn from the facts in evidence and not on surmise or speculation. See Briones, 446 S.W.2d at 10. The circumstances relied on must not be consistent equally with the non-existence of the ultimate fact. Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 25 (Tex. App.–Houston [1st Dist.] 1995, writ denied). Meager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and legally insufficient. Wal-Mart Stores, Inc. v. Gonzales, 968 S.W.2d 934, 936 (Tex. 1998).

         In this case, we find that McNeal and Wright's summary-judgment proof that Thomas knowingly permitted the cow to roam onto U.S. Highway 181 consisted solely of speculation. Thomas's summary-judgment motion advanced the theory and provided summary-judgment proof that he did not knowingly permit the cow to roam onto the highway. McNeal and Wright did not counter with controverting summary-judgment proof that Thomas knew that cows had a propensity for escaping from the property or that Thomas knowingly failed to maintain the fence. See Beck, 566 S.W.2d at 573. The evidence, at most, established that Thomas was alongside the highway in search of the cow after a windy storm downed the fence and allowed the cow to escape. The mere fact of the cow's escape does not establish Thomas's negligence. See Beck, 566 S.W.2d at 572.

         Accordingly, we hold that McNeal and Wright's summary-judgment proof did not raise a fact issue that Thomas knowingly failed to maintain and inspect the fence and maintain a proper lookout over the livestock and enclosure. See id. We overrule McNeal and Wright's first issue as it relates to a common-law or statutory failure-to-maintain cause of action.

D. Disposition of Thomas's No-Evidence Summary-Judgment Motion

1. Duty to Warn

         Texas law requires proof of three familiar elements to sustain a cause of action for negligence: (1) a legal duty owed by one party to another; (2) a breach of that duty; and (3) damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). The common law imposes a duty to warn the traveling public of livestock on the road. Tuloma Gas Prods. Co. v. Lehmberg, 430 S.W.2d 281, 283 (Tex. Civ. App.–San Antonio 1968, writ ref'd. n.r.e.).

2. Discussion

a. Legal Sufficiency of Thomas's No-Evidence Motion

         In their fifth issue, McNeal and Wright argue that Thomas's no-evidence motion was legally insufficient because it did not comply with Rule 166a's requirements. See Tex. R. Civ. P. 166a(i). The no-evidence portion of Thomas's motion contained no argument, analysis, or case law. Even so, we already have noted that "[i]f a motion clearly sets forth its grounds and otherwise meets Rule 166a's requirements, it is sufficient." See Jacobo, 135 S.W.3d at 651; see also Oasis Oil Corp., 60 S.W.3d at 250. Thomas's motion sufficiently challenged the "duty" element of McNeal and Wright's failure-to-maintain and failure-to-warn claims. We overrule McNeal and Wright's fifth issue.

b. The Duty Element of McNeal and Wright's Failure-to-Warn Cause of Action

         In response to Thomas's no-evidence motion, McNeal and Wright were required to produce sufficient evidence to raise a genuine issue of material fact as to Thomas's duty to warn. See Branton, 100 S.W.3d at 647. We consider any quantum of evidence greater than a scintilla sufficient to raise a genuine issue of material fact. Id.

In Lehmberg, the duty to warn attached to a person at the scene who did not own a bull that had roamed onto the highway. Lehmberg, 430 S.W.2d at 283. Here, McNeal and Wright's summary-judgment evidence: (1) placed Thomas at the scene before the accident; (2) showed that Thomas knew that five cows were astray; and (3) established that Thomas called the cow that caused the accident onto the roadway. We conclude that this summary-judgment proof constituted a quantum of evidence greater than a scintilla and was sufficient to raise a genuine issue of material fact on the duty element of McNeal and Wright's failure-to-warn cause of action. See Branton, 100 S.W.3d at 647; see also Lehmberg, 430 S.W.2d at 283. We sustain their fourth issue.

E. Disposition of Remaining Issues

1. Judgment on the Pleadings

         In his motion for summary judgment, Thomas asserted that "Plaintiffs have pled a cause of action which does not exist." In their third and sixth issues, McNeal and Wright complain that any pleading deficiencies could have been cured by amendment, making summary judgment improper on both traditional and no-evidence grounds.

         We note that Thomas filed special exceptions but did not pursue a ruling on them. Ordinarily, summary judgment cannot be based solely on the failure of a plaintiff to plead a cause of action unless the defendant levels a special exception to the deficiency. Austin v. Healthtrust, Inc., 951 S.W.2d 78, 79 (Tex. App.–Corpus Christi 1997), affirmed, 967 S.W.2d 400 (Tex. 1998). The trial court then must afford the plaintiff an opportunity to amend the pleading to state a cause of action. Id. Where the plaintiff pleads facts that affirmatively negate the cause of action, summary judgment on the pleadings is proper. Id. In this case, Thomas attached McNeal and Wright's live pleading to his summary-judgment motion. He contended that the facts as alleged did not plead a cause of action. See id. After Thomas filed his motion for summary judgment, McNeal and Wright did not replead or complain they were not given an opportunity to amend. See id. Accordingly, even if the trial court granted summary judgment on the pleadings, McNeal and Wright waived any complaint that it did so without giving them an opportunity to amend. See id.; see also Tex. R. App. P. 33.1(a). We overrule McNeal and Wright's third and sixth issues. However, we conclude that McNeal and Wright adequately pleaded their failure-to-warn cause of action. See Lehmberg, 430 S.W.2d at 283.

2. Adequate Time for Discovery

         In their seventh issue, McNeal and Wright argue that the trial court erred in granting Thomas's no-evidence motion because: (1) contrary to rule 166a(i), they did not have adequate time for discovery; (2) McNeal's injuries prevented her from participating or assisting in discovery; and (3) the parties had agreed to extend the time for Thomas to respond to discovery. We have sustained McNeal and Wright's fourth issue, which necessitates a remand of this case. Accordingly, we do not address their seventh issue, as it is unnecessary to our final disposition of the appeal. See Tex. R. App. P. 47.1.

III. CONCLUSION

         We affirm the trial court's judgment on McNeal and Wright's common-law and statutory claims that Thomas failed to: (1) maintain and inspect the livestock fences; and (2) maintain a proper lookout over the livestock and their enclosures. Having sustained McNeal and Wright's fourth issue, we reverse and remand for a trial on the merits of their failure-to-warn claim.

                                                      ERRLINDA CASTILLO

                                                      Justice

Memorandum Opinion delivered and

filed this 26th day of August, 2004.