IN THE
TENTH COURT OF APPEALS
No. 10-01-063-CV
BILLIE ANN ALLEN,
AS NEXT FRIEND OF B.A., A MINOR,
Appellants
v.
FRANCES ALBIN
AND GLADYS HAFERKAMP,
Appellees
From the 170th District Court
McLennan County, Texas
Trial Court # 2000-1736-4
DISSENTING AND CONCURRING OPINION
There are two summary judgment orders under review in this case. Albin filed a no-evidence summary judgment motion as to Allen’s strict liability and negligence claims against Albin. Haferkamp filed a no-evidence summary judgment motion as to Allen’s negligence claim against Haferkamp. The majority reviews Albin’s no-evidence summary judgment motion and determines, based on challenged evidence, that the trial court erred in granting summary judgment for Albin regarding the strict liability claim, but did not err in granting summary judgment for Albin regarding Allen’s negligence claim against Albin. Then the majority determines the trial court erred in granting summary judgment for Haferkamp regarding Allen’s negligence claim against Haferkamp.
I believe the majority has erred in the following ways: (1) holding that Allen has produced evidence regarding each of the four required elements of strict liability, specifically, that Albin’s dog had vicious, dangerous, or aggressive propensities abnormal to its class and that Albin knew prior to B.A.’s injury that her dog had such propensities which were the producing cause of B.A.’s injury; (2) applying the traditional summary judgment standard of review to Haferkamp’s no-evidence motion for summary judgment; and (3) determining the trial court did not implicitly sustain Albin’s objections to Allen’s evidence based on the deadman’s statute. Tex. R. Evid. 601(b).
First, I will discuss the reasons I must respectfully dissent from the majority’s holding that the trial court erred in granting Albin’s no-evidence summary judgment motion regarding Allen’s strict liability claim. Next I will discuss my disagreement with the majority’s decision to review Haferkamp’s no-evidence summary judgment motion as a traditional summary judgment motion, and finally I will discuss the reasons why I believe the trial court sustained the objections regarding the deadman’s statute.
ALBIN’S NO-EVIDENCE SUMMARY JUDGMENT MOTION
Standard of Review
Because Albin filed a no-evidence summary judgment motion, the burden to produce evidence that would prevent the motion from being granted was placed on Allen. Tex. R. Civ. P. 166a(i). Allen must present more than a scintilla of probative evidence to raise a genuine issue of material fact on each of the challenged elements. Moore v. K-Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied). As the majority correctly stated, more than a scintilla of evidence exists “if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds” about a vital fact’s existence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). But no more than a scintilla of evidence “exists when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, and in legal effect is no evidence.” Coastal Conduit & Ditching v. Noram Energy, 29 S.W.3d 282, 284-85 (Tex. App.—Houston [14th Dist.] 2000, no pet.). And in the case of a no-evidence summary judgment motion, if reasonable minds could not differ as to the conclusion to be drawn from the non-movant’s evidence, the movant’s motion should be granted. See Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982); Ridenour v. Herrington, 47 S.W.3d 117, 120 (Tex. App.—Waco 2001, pet. denied).
Allen’s Burden
There are four elements that a plaintiff must prove to prevail in a strict liability action for injury by a dangerous domesticated animal: 1) the defendant was the possessor or owner of the animal; 2) the animal had vicious, dangerous, or aggressive propensities abnormal to its class; 3) the defendant knew or had reason to know the animal had such propensities; and 4) those propensities were the producing cause of the plaintiff’s injury. Wells v. Burns, 480 S.W.2d 31, 33 (Tex. App.—El Paso 1972, no pet.); Villarreal v. Elizondo, 831 S.W.2d 474, 477 (Tex. App.—Corpus Christi 1992, no pet.); Dunnings v. Castro, 881 S.W.2d 559, 561 (Tex. App.—Houston [1st Dist.] 1994, writ denied). A strict liability claim for damages caused by dangerous domesticated animals must be “predicated upon a showing of the vicious or aggressive tendencies of the animal and the owner’s knowledge of” those vicious or aggressive tendencies. Dunnings, 881 S.W.2d at 561; see Marshall v. Ranne, 511 S.W.2d 255, 258 (Tex. 1974).
Thus, Allen must produce evidence that would allow reasonable minds to differ that the dog that either bit or scratched B.A. had vicious, dangerous, or aggressive propensities that are abnormal when compared to other dogs; that Allen knew or had reason to know prior to the injury that the dog had such propensities; and it was the vicious, dangerous, or aggressive propensities of the dog that were the producing cause of B.A.’s injury. If the evidence Allen presents only creates a mere surmise or suspicion for any of the required elements it will not withstand Albin’s no-evidence summary judgment motion.
Evidence
Allen initially responded to Albin’s no-evidence motion for summary judgment with a transcript of a deposition of Haferkamp, a co-defendant in the case, taken on November 21, 2000. After the trial court granted Allen a continuance, she supplemented her response with a statement made by Haferkamp to Haferkamp’s attorney taken on April 28, 2000; a transcript of a phone conversation between Haferkamp and Lisa Simpson, an insurance representative, taken on January 17, 2000; and a transcript of a deposition of Michael Henderson, Albin’s grandson, taken on January 10, 2001.
Haferkamp’s deposition testimony and statements reveal she did not have personal knowledge of the dog or the dog’s propensities. Haferkamp’s description of the dog’s propensities reportedly come from statements made by Albin while Albin and Haferkamp stood in Haferkamp’s front yard after B.A. was injured. Henderson’s deposition testimony reveals he gave the dog to his grandmother as a present, played with the dog regularly when he visited his grandmother, and had no knowledge of the dog biting or scratching anyone.
The evidence submitted by Allen in response to Albin’s no-evidence motion for summary judgment fails to produce a scintilla of evidence that the dog had vicious, dangerous, or aggressive propensities that were abnormal when compared with other dogs or that Albin knew her dog had such propensities prior to the time B.A. was injured. What the evidence does show is that B.A. was standing by the fence holding a cookie in his hand; the dog either bit or scratched B.A. through the fence while B.A. was standing at the fence; the children in Haferkamp’s care had previously played with the dog without incident; Albin regularly cared for and played with her dog while in her yard; the dog sometimes tripped Albin; Henderson regularly played with the dog in Albin’s yard without incident; after B.A. was injured, Albin made statements to Haferkamp that the dog was bad, mean, ferocious, and did not like children. Missing from this evidence are any facts that would support Albin’s statement regarding the propensities of her dog; that the dog’s biting or scratching B.A. under the circumstances was abnormal when compared to other dogs; and that Albin was aware her dog would bite or scratch prior to B.A.’s injury. See Dunnings v. Castro, 881 S.W.2d 559, 561 (Tex. App.—Houston [1st Dist.] 1994, writ denied).
Allen presents evidence the dog had previously tripped Albin, but offers no evidence the dog had previously bitten or scratched anyone, much less a child. If B.A. had been injured by the dog tripping him, Allen could try to rely on the evidence presented to show that tripping is a vicious, dangerous, or aggressive propensity abnormal to dogs, that Albin was aware of the tripping prior to the injury, and the tripping was the producing cause of B.A.’s injury. However, Allen does not produce evidence that the dog had vicious, dangerous, or aggressive propensities that could be viewed as abnormal when compared to other dogs in regard to biting or scratching, which is the alleged producing cause of B.A.’s injury.
Even though the majority states “a jury might infer that even though the conversation between Albin and Haferkamp occurred after the attack, Albin was conveying what she already knew about the dog’s nature,” (maj. op. p.13) it was Allen’s burden to produce evidence that rises to more than a mere surmise or suspicion that Albin knew prior to the time of B.A.’s injury that her dog had vicious, dangerous, or aggressive propensities that were abnormal when compared to other dogs. And Allen was unable to produce evidence that even remotely showed Albin had knowledge of the dog biting or scratching anyone prior to B.A.’s injury. Just the opposite in fact. Allen produced evidence that to Albin’s knowledge, Albin, Henderson, and the children cared for by Haferkamp had all previously played with the dog without incident.
Based on the evidence, it is just as likely if not more likely that the dog was excited and exuberant as opposed to vicious, dangerous, or aggressive when B.A. was injured. I do not believe Allen met her burden to establish a scintilla of evidence that the dog had vicious, dangerous, or aggressive propensities that are abnormal when compared to other dogs, or that Albin knew of such propensities prior to B.A.’s injury. Because Allen was unable to present evidence for two of the four required elements, it was not error for the trial court to grant Albin’s no-evidence summary judgment motion.
HAFERKAMP’S NO-EVIDENCE SUMMARY JUDGMENT MOTION
Disagreement Regarding the Standard of Review
The majority chooses to examine Haferkamp’s motion as a traditional motion for summary judgment because Haferkamp presented her no-evidence summary judgment motion with documentary evidence she contended would conclusively show there was no genuine issue of material fact regarding the proximate cause of B.A.’s injury.
As I stated in my dissent of Jacobo, “[w]hat is clearly a no-evidence motion cannot be disregarded, or ‘treated’ as a traditional motion, because of a reference to summary judgment evidence on which the no-evidence motion does not rely—evidence which is unnecessary to properly grant the no-evidence summary judgment motion.” Jacobo v. Binur, 70 S.W.3d 330, 342 (Tex. App.—Waco 2002, pet. filed) (Gray, J. dissenting). Because a no-evidence summary judgment motion shifts the burden of presenting evidence to the non-movant, Haferkamp did not need any evidence presented with her motion for the motion to be granted. The evidence presented just reiterates Haferkamp’s assertion that there is no evidence to establish proximate cause, and that the only evidence available on the subject, and which she presented, is in fact to the contrary.
The majority’s treatment of Haferkamp’s no-evidence summary judgment motion as a traditional summary judgment motion causes the review to be conducted using an improper standard of review. This application of the traditional summary judgment standard disregards Rule 166a(i) and is not a proper reading of Williams and Ethridge. Jacobo, 70 S.W.3d at 341-42; Williams v. Bank One, Texas, 15 S.W.3d 110, 116 (Tex. App.—Waco 1999, no pet.); Ethridge v. Hamilton Co. Elec. Coop. Ass’n, 995 S.W.2d 292, 295 (Tex. App.—Waco 1999, no pet.).
As was the motion in Jacobo, Haferkamp’s motion was very explicit. Haferkamp’s motion is captioned as a no-evidence summary judgment motion. Allen responded to the motion as a no-evidence summary judgment motion by presenting evidence she believed raised more than a scintilla of evidence for each of the required elements of her negligence claim in both her original response and her supplemental response. Both Haferkamp and Allen argued the motion as a no-evidence summary judgment motion to the trial court and the trial court ruled on the motion as a no-evidence summary judgment motion. No one at the trial court level was confused or mislead by Allen’s filing even though it made reference to summary judgment evidence. This evidence was attached in support of Haferkamp’s assertion that Allen had no evidence regarding proximate cause because Haferkamp’s testimony that she had no knowledge of the dog’s presence prior to the injury was undisputed, and therefore, Allen could not establish the foreseeability element of proximate cause.
Until the precedential value of Jacobo is settled, I must continue to respectfully dissent to the majority’s review of what is clearly a no-evidence motion for summary judgment under the standard of review for traditional summary judgments.
Concurrence in the Result
Under a no-evidence summary judgment standard of review it was Allen’s burden to present more than a scintilla of probative evidence in order to raise a genuine issue of material fact for each of the required elements of negligence. Moore v. K-Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied). The evidence Allen presented to the trial court, including a deposition of Henderson and Haferkamp’s own descriptions of the event, meets this burden. Therefore, I concur in the majority’s result that it was error for the trial court to grant Haferkamp’s motion for summary judgment.
IMPLIED RULING BY THE TRIAL COURT
I believe the majority errs, however, in holding that the trail court did not implicitly sustain objections based on the deadman’s statute. Tex. R. Evid. 601(b). In Williams, we held that the trial court’s granting of the plaintiff’s summary judgment motion created an inference that the court implicitly overruled the defendant’s motion for continuance. Williams v. Bank One, Texas, 15 S.W.3d 110, 114-15 (Tex. App.—Waco 1999, no pet.).
Here, Albin objected to evidence presented by Allen in response to Albin’s no-evidence summary judgment motion. And there is ample indication in this case that the trial court considered the objection to Allen’s summary judgment evidence including a reference to the objections in the judgment. Similar to Williams, we can conclude that the trial court’s granting of Albin’s motion creates an inference that the trial court implicitly sustained Albin’s objections. Otherwise, the summary judgment would not have been granted. Therefore, I believe the trial court did implicitly sustain Albin’s objections to evidence based on the deadman’s statute regarding statements made by Haferkamp which she attributed to Albin, who is now deceased.
TOM GRAY
Justice
Dissenting and concurring opinion delivered and filed December 31, 2002
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