Arraby Properties, LLC v. Paul Brown

Opinion issued October 10, 2023

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-20-00610-CV
———————————
ARRABY PROPERTIES, LLC, Appellant
V.
PAUL BROWN, Appellee

On Appeal from the 295th District Court
Harris County, Texas
Trial Court Case No. 2017-82986

OPINION

Appellee Paul Brown collided with a cow on a state highway. He sued the

alleged owners of the cow and Arraby Properties, LLC, the owner of the land on

which the roaming cow was alleged to be pastured. Following a bench trial, the trial

court held Arraby Properties, LLC had responsibility for control of the cow and
knowingly permitted the cow to roam at large on the state highway. The trial court

awarded damages to Brown.

In five issues, Appellant Arraby Properties, LLC argues (1) there is

insufficient evidence or no evidence to support the legal conclusion Arraby owed

Brown a duty because Arraby did not own or control the cow, (2) there is insufficient

evidence or no evidence Arraby breached a duty to Brown by knowingly permitting

the cow to roam at large on the state highway, (3) the trial court abused its discretion

in admitting and relying on the testimony of “Brown’s unqualified experts” Bob

Kingsberry and Floyd Luckett, (4) there is insufficient evidence or no evidence it

was foreseeable “the cow would escape,” and (5) the “trial court’s granular,

excessive findings prevented Arraby from properly presenting its appeal.”

Because there is legally insufficient evidence supporting the trial court’s

finding that Arraby was responsible for control of the cow or that it knowingly

permitted the cow to roam at large on a state highway, we hold the trial court erred

in concluding Arraby owed a duty to Brown under Section 143.102 of the Texas

Agriculture Code. We reverse the trial court’s judgment and render judgment that

Appellee take nothing on his claims.

Background

Paul Brown is a Houston ship channel maritime pilot. While driving home

after work during the early morning hours, Brown struck a cow roaming on State

2
Highway 225 in Harris County, Texas. Brown appeared to suffer no pressing injury

immediately after the crash. At a doctor’s appointment two months later, he reported

difficulty concentrating, thinking, and sleeping. He later reported difficulty

concentrating, difficulty sleeping, and inappropriate affect—as well as depression,

problems with anger, weakness, headaches, and dizziness. A neurologist diagnosed

Brown with mild cognitive impairment.

Eugene Ybarra and Mary Alice Ybarra (the “Ybarras”), an elderly married

couple, lived on a 5.8-acre tract of land (“Property”) located a few miles from State

Highway 225, near where Brown collided with the cow. Eugene and Mary Alice

purchased the Property in 1973 and for at least five years prior to the accident, they

lived in a house on the Property where they kept a “pet cow.” At the time of the

accident, the Property was owned by Arraby Properties, LLC, a company owned by

Victor Ybarra and Albert Troy Ybarra, two of the Ybarras’ children.1 In 2016,

Eugene and Mary Alice transferred the Property to Arraby via warranty deed, but

they continued to live on the Property.

The Property was divided into two parts, with a fence separating the front half

of the Property where the house was located, from the back half consisting of

undeveloped land generally kept as pasture. A separate fence enclosed the entire

1
The Ybarras have eight children, including Troy Ybarra, Victor Ybarra, and Alice
Chandler.

3
Property, with a metal gate at the front entrance. Two days before Brown’s accident,

a cow was reported missing from the Property.2 The cow was never recovered.

Brown filed suit against Eugene Ybarra for negligence and gross negligence,

claiming Eugene “owned” the cow that “was running at large on the State Highway.”

Brown alleged that Eugene was liable to him under Texas Agriculture Code Section

143.102 because he owed a “duty to Brown not to permit the cow that he owned

from traversing or roaming at-large, unattended, on the right-of way of State

Highway 225.” Brown further alleged Eugene was liable because Eugene “owed a

duty to Brown not to permit the cow that he owned from running at large in Harris

County, Texas pursuant to the Harris County stock law and [Texas Agriculture Code

Sections] 143.071, et. seq.” Brown sought to recover damages for personal injuries

and property damage. He also sought recovery of exemplary damages.

Brown later amended his petition to add the same negligence claims against

Mary Alice Ybarra, Victor Ybarra, Troy Ybarra, and Arraby.3 Brown alleged that

“he collided with a cow owned by Eugene [] and [Mary] Alice [] . . . and housed on

real properly owned by Arraby Properties, LLC, which was running at large on the

State Highway.” Brown alleged that upon “information and belief” the “cow was

2
In his closing argument, Brown’s counsel stated that the Ybarras’ nephew reported
the cow missing.
3
Brown also added claims for negligence per se, negligent entrustment, respondeat
superior, joint enterprise, and later, in his Seventh Amended Petition, he added
claims for “contract of agistment” and res ipsa loquitor.
4
jointly owned by Arraby Properties, LLC and by extension” Troy and Victor. Brown

claimed the Ybarras and Arraby owed him a duty under “Sections 143.101-102” and

“Sections 143.071, et. seq.” of the Texas Agriculture Code to not permit the cow

“from traversing or roaming at-large, unattended, on the right-of way of State

Highway 225” or “from running at large in Harris County.”

Brown later dismissed his claims against Eugene, who passed away, and Mary

Alice, who suffered from late-stage Alzheimer’s disease, leaving Arraby, Victor,

and Troy as the only remaining defendants. Arraby, Victor, and Troy filed a general

denial asserting various defenses, including that they were not “the owner[s] of the

cow . . . involved in the car accident” and that Arraby “has never owned livestock of

any kind.”4 They further alleged that Brown’s claims under Section 143.074 of the

Texas Agriculture Code were precluded because when an accident involving

livestock occurs on a state highway, Section 143.102 provides the exclusive

standard.

The Bench Trial

The trial court conducted a two-day bench trial. Relevant to the issues on

appeal, Victor, his sister Alice Chandler, and Brown’s expert witness, Bob

4
They also alleged that the cow involved in the accident was not “pastured on land
owned” by Arraby.

5
Kingsberry, testified at trial.5

A. Victor Ybarra

Victor testified that the Property, which Eugene and Mary Alice purchased in

1973, includes a home and a pasture which are enclosed by fences where Eugene

and Mary Alice kept their “pet” cow. Eugene and Mary Alice lived on the Property

for at least five years before the accident occurred in March 2017. In 2016, Eugene

and Mary Alice conveyed the Property to Arraby. When asked if there was a written

agreement between Arraby and the Ybarras that “allowed [Eugene and Mary Alice]

to keep the cow on the Property and pasture it there,” Victor testified:

It’s my parents’ house. All they did was sign it over to us. Nothing
changed. Like I said, it was their house, their property. They took care
of everything. The only thing they did was sign it over to us. That was
it.

Victor testified that Eugene “only signed [the Property] over to [Arraby

Properties in 2016] just in case something happened to him.” “That was it. But

nothing changed.” According to Victor, Eugene and Mary Alice “maintained

everything the way it was” and Eugene’s “workers came, cut the grass[,] took care

of the fence[, and ] took care of the cow.” Victor testified that Eugene and Mary

5
Other witnesses testified about the nature of the accident and Brown’s work and
medical condition, including Officer Roger Gonzalez, Dr. Floyd Luckett, M.D.,
Captain Mark Mitchum, Wallace Stanfill, Lee Wilson, Robert Johnson, Captain
Daniel Doty, Kenneth Jones, Sr., Matt White, Brown, and Brown’s wife Sheila
Brown. Because their testimony is not relevant to the issues on appeal, we do not
discuss their testimony in our opinion.

6
Alice were also responsible for paying the Property’s taxes after they conveyed the

Property to Arraby in 2016. Victor explained that while his father Eugene had some

physical limitations, Eugene “still had his mind” and Eugene went to work every

day because he “had his restaurant to run.” He testified that Arraby does not keep

maintenance records with respect to the fences on the Property because Eugene’s

“workers were the ones who took care of it.” According to Victor, Eugene “had

people that worked under him” and Eugene would send them to fix the Property’s

fences, cut the grass, change a light bulb, or address other maintenance concerns on

the Property. In addition to his restaurant, Eugene also owned ranches nearby and

Eugene employed “workers that handled his ranches,” including fixing the

properties’ fences. Victor added that Eugene “had his companies” and he had

“workers that handled his ranches.” Those workers “would go fix his fences if . . .

[Eugene] saw an issue with it” or “when he heard there was an issue with [the

fence].”

When asked if he had a duty to maintain the Property’s fences, Victor testified

that when Eugene and Mary Alice lived on the Property, he and his seven siblings

would visit and “[i]f there’s something wrong at the house, we fix it.” With respect

to the fence, Victor testified that he had no knowledge about “what’s required to

maintain the fence” because his father “had workers who would take care of it.” He

testified that he and his siblings “didn’t do the animals. I don’t do animals.” Eugene

7
and Mary Alice also “had people in the back” like “Ray [Gonzalez], who was

watching over the property, [and] called the police when he saw [the cow was

missing.]”6 Ray Gonzalez’s mother was also on the Property “to watch [Mary Alice

and] help her with the house chores and everything.”

B. Alice Chandler

Brown presented the deposition testimony of Alice Chandler, who is Victor’s

and Troy’s sister. Alice testified that Eugene and Mary Alice were not able to take

care of a cow. According to Alice, their father Eugene “was not able to walk very

well” and had been using a walker for a year before the accident. Alice had been

driving Eugene to work because he was no longer able to drive. Alice testified that

neither Eugene nor Mary Alice was physically able to go outside to mend fences or

make sure the cow was confined to the Property, and it would have been apparent to

Victor and Troy that Eugene and Mary Alice were “not best physically or mentally”

and unable to care for a cow. According to Alice, her mother Mary Alice had been

showing signs of Alzheimer’s for six or seven years before the accident, such as

forgetfulness and repeating herself.

C. Bob Kingsbery

Brown presented the deposition testimony of Bob Kingsbery, a livestock

fencing expert. Kingsbery testified that he is in the “livestock fencing business as

6
The record reflects that Ray Gonzalez is the Ybarras’ nephew.

8
an international sales manager for a company called Dare Products.” Based on his

review of affidavits from Victor and Troy, an aerial photograph of the Property,

Alice’s deposition testimony, and the deposition testimony of Officer Roger

Gonzalez,7 he concluded the cow involved in the accident “escaped from the pasture

where [it] was being kept on [the Property].”

Kingsbery was asked to opine based on his “experience, education, and

training and the files [he] reviewed,” who owned or had responsibility for

management of the cow on the Property. He responded:

Well, as I understand, the property was owned by Arraby. . . [a]nd that’s
where the cow was before it escaped. And that Mrs. Ybarra, their
mother, testified that she and her husband did not own the cow or could
not take care of the cow at the time. . . my opinion is that the cow was
owned by the owners of the property and they were responsible for
managing and taking care of it.

Kingsbery clarified that in referring to Mrs. Ybarra’s testimony, he was referring to

Mary Alice’s discovery responses where she said “[she and Eugene] did not own the

cow.” He testified, “Well, I haven’t seen any evidence that anybody else owned it.

And . . . the cow is on somebody’s property” and Troy and Victor “stated in their

affidavits, that they [knew] the cow was there.” Kingsbery thus concluded, “that’s

7
Officer Roger Gonzalez is a City of La Porte police officer. He was dispatched to
the scene of the accident, and he investigated the accident. His deposition testimony
and police report were admitted into evidence at the bench trial.

9
why . . . my opinion is [that] the owners of the property were responsible for . . .

managing the cow.”

Kingsbery also concluded that Troy and Victor acted “knowingly” in letting

the cow roam onto the highway because they knew Eugene and Mary Alice were not

“physically able” to check and inspect the fence on the Property, and thus Troy and

Victor knew the cow could get out. Kingsbery did not inspect the fence or visit the

Property. His conclusion was based on the fact the Ybarras were not physically

capable of “inspecting or maintaining the fence.” When asked what evidence he had

that the fence on the Property was not “being maintained properly,” he testified that

his opinion was based on “testimony or affidavits, that Mr. and Mrs. Ybarra were

responsible for maintaining the fence and that they were physically not capable of

doing that.”

When asked what evidence he had that Arraby owned the cow, he testified he

did not “have any evidence of that.” But he followed by stating the “cow was [on]

their property and the people that were living there said they did not own it.” He

stated that “Mrs. Ybarra testified she and her husband did not own a cow.”8

Kingsbery testified that “if somebody’s not responsible, or the result of a lease, or

something like that, then I would say the property owner would be responsible for

8
In referring to Mary Alice’s testimony, Kingsbery clarified he was referring to her
discovery responses.
10
the cattle.” “Absent some sort of lease or agreement that someone else would be

responsible” for livestock, Kingsbery testified that a “landowner is responsible for

cattle on its property” if he is aware of the cattle’s presence. He thus concluded that

in his opinion, Arraby “had control or responsibility for controlling the animal,

because they owned the property and . . . their parents, who lived on the property,

were not physically capable of . . . caring for a cow.”

D. Other Evidence

Prior to trial, Arraby, Troy, and Victor filed a motion for summary judgment

and in support of their motion, they submitted affidavits from Troy and Victor.

During the bench trial, Troy’s and Victor’s summary judgment affidavits were

admitted into evidence as Plaintiff’s Exhibit 7 and Plaintiff’s Exhibit 8.

Troy stated in his affidavit that his parents Eugene and Mary Alice kept two

or three cows on the Property before they conveyed the Property to Arraby in 2016.

Eugene and Mary Alice maintained the fencing and the animals on the Property.

According to Troy, Eugene and Mary Alice “continued to keep cattle at the property,

and they continued to maintain the fencing and the animals” after they conveyed the

Property to Arraby in 2016. Troy stated that, as Arraby’s Vice President, he “made

sure that arrangements had been made with my parents to maintain the fencing for

the pasture, which was entirely made of wood, and that my parents would take

responsibility to maintain the cow they kept on Arraby land.”

11
 In his affidavit, Victor stated that Eugene and Mary Alice kept a cow on the

Property and they “maintained the fencing for the cow and were responsible to

maintain the animal” when they owned the Property. According to Victor, after

Eugene and Mary Alice conveyed the Property to Arraby in 2016, they “continued

to keep a cow at the [P]roperty, and they continued to maintain the fencing and the

animal.” Victor further stated that as Arraby’s President, he had cooperated with

Troy to make sure that “arrangements had been made with my parents to maintain

the fencing for the pasture, which was entirely made of wood, and that my parents

would take responsibility to maintain the cow they kept on Arraby land.”

The trial court also admitted into evidence Mary Alice’s amended responses

to Brown’s interrogatories.9 The interrogatory responses were admitted into

evidence as Plaintiff’s Exhibit 27. When asked in an interrogatory to describe any

measures she had taken to ensure the Property’s fence was secure, Mary Alice stated,

“I was allowed to live on the property by my sons. I did not maintain or secure any

fence as I am not physically able to maintain this property.”

9
It is undisputed that Mary Alice was suffering from late-stage Alzheimer’s when
she served her amended interrogatory responses in April 2019. The trial court found
that Mary Alice had “advanced stage Alzheimer’s dementia disease” and that “Alice
saw signs of the disease in her mother from as early as 2010-2011 including
forgetfulness and repeating herself.” The amended interrogatory responses, served
in 2019, do not indicate whether Mary Alice received assistance in collecting the
data or the information included in the responses. The verification attached to the
interrogatory responses is signed by Mary Alice.

12
 At the conclusion of the bench trial, the trial court held that Arraby was

responsible for control of the cow, Arraby knowingly permitted the cow to roam at

large on the highway, the cow Arraby controlled was the cow involved in the

accident, and Brown suffered damages proximately caused by Arraby’s conduct.

The trial court awarded Brown $3,174,817 in damages for physical pain and

suffering, mental anguish, and loss of earning capacity. The trial court entered a

final judgment against Arraby and held that Victor and Troy were not personally

liable. This appeal followed.

Standard of Review

When a party appeals from a judgment rendered after a bench trial, the trial

court’s findings of fact have the same weight as a jury’s verdict, and we review the

sufficiency of the evidence supporting those findings by using the same standards

we use to review jury verdicts. See Tex. Outfitters Ltd., LLC v. Nicholson, 572

S.W.3d 647, 653 (Tex. 2019) (citing Anderson v. City of Seven Points, 806 S.W.2d

791, 794 (Tex. 1991)); see also BMC Software Belgium, N.V. v. Marchand, 83

S.W.3d 789, 795 (Tex. 2002). When, as here, there is a complete reporter’s record,

findings of fact are not conclusive, and they are binding only if supported by the

evidence. See BMC Software Belg., N.V., 83 S.W.3d at 795; see also HTS Servs.,

Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—Houston

[1st Dist.] 2005, no pet.).

13
 When a party attacks the legal sufficiency of an adverse finding on an issue

for which it did not have the burden of proof, it must demonstrate that there is no

evidence to support the adverse finding. Exxon Corp. v. Emerald Oil & Gas Co.,

L.C., 348 S.W.3d 194, 215 (Tex. 2011). In our legal sufficiency review, we credit

all evidence and inferences favorable to the trial court’s decision if a reasonable

factfinder could, and we disregard all evidence contrary to that decision unless a

reasonable factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 828

(Tex. 2005). We will sustain a no evidence challenge if (1) there is a complete

absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence

from giving weight to the only evidence offered to prove a vital fact, (3) the evidence

offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence

conclusively establishes the opposite of the vital fact. Id. at 810. “More than a

scintilla of evidence exists when the evidence ‘rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions.’” King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc.

v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). Evidence does not exceed a scintilla,

however, if it is so weak as to do no more than to create a mere surmise or suspicion

that the fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).

In reviewing a factual sufficiency challenge to a finding on an issue on which

the challenging party did not have the burden of proof, we consider and weigh all of

14
the evidence and set aside the verdict only if the evidence that supports the finding

is so weak or so contrary to the overwhelming weight of the evidence as to make the

verdict clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986); see also Figueroa v. Davis, 318 S.W.3d 53, 59 (Tex. App.—Houston

[1st Dist.] 2010, no pet.).

In a bench trial, the trial court is the sole judge of the witnesses’ credibility

and the weight to be given their testimony, and the court may choose to believe one

witness over another. See City of Keller, 168 S.W.3d at 819. We may not substitute

our judgment for that of the trial court. Id.; Golden Eagle Archery, Inc. v. Jackson,

116 S.W.3d 757, 761 (Tex. 2003). The trial court’s credibility assessment, however,

must be reasonable and the court “cannot ignore undisputed testimony that is clear,

positive, direct, otherwise credible, free from contradictions and inconsistencies, and

could have been readily controverted.” City of Keller, 168 S.W.3d at 820.

We review de novo a trial court’s conclusions of law, and we will uphold them

on appeal if the judgment can be sustained on any legal theory supported by the

evidence. BMC Software Belg., N.V., 83 S.W.3d at 794.

Applicable Law

There is no common-law duty requiring livestock owners to restrain their

animals within fences. Livestock owners generally may allow their animals to run

at large, rendering Texas a “free-range.” Pruski v. Garcia, 594 S.W.3d 322, 323

15
(Tex. 2020) (“From the time of the Republic of Texas, the default rule in this state

has been that livestock owners may allow their animals to run at large.”); Gibbs v.

Jackson, 990 S.W.2d 745, 747 (Tex. 1999). Texas does, however, impose two

statutory duties to restrain livestock. Pruski, 594 S.W.3d at 323; Gibbs, 990 S.W.2d

at 748; see also Billelo v. SLC McKinney Partners, L.P., 336 S.W.3d 852, 854 (Tex.

App.—Dallas 2011, no pet.) (stating duty to confine animals within fences is “purely

statutory in nature”).

Section 143.102 of the Texas Agriculture Code, entitled “Running at Large

on Highway Prohibited,” provides that a “person who owns or has responsibility for

the control of” certain livestock, including cows, “may not knowingly permit the

animal to traverse or roam at large, unattended, on the right-of-way of a highway.”

TEX. AGRIC. CODE § 143.102. And Section 143.074 provides that in counties that

have enacted stock laws, “a person may not permit any animal of the class mentioned

in the [stock law] proclamation to run at large in the county.” Id. § 143.074.

Although both sections impose criminal penalties for violations,10 courts have relied

on the statutes to address civil liability and the corresponding standard of care

10
See TEX. AGRIC. CODE § 143.082 (stating person commits Class C misdemeanor
when they “knowingly permit[] a head of cattle or a domestic turkey to run at large
in a county or area that has adopted this subchapter”); id. § 143.108(a)–(b) (stating
person commits Class C misdemeanor when they violate Section 143.102).
16
applicable to livestock owners whose animals stray onto state highways or areas

covered by a local stock law. Pruski, 594 S.W.3d at 325–26.

In Pruski v. Garcia, 594 S.W.3d 322 (Tex. 2020), the Texas Supreme Court

explained that “[w]hen cars collide with livestock on state highways in counties with

stock laws, the differing standards of livestock-owner liability imposed by section

143.102 and section 143.074 cannot both apply.” Id. at 324. Following the

Legislature’s direction on how to resolve the conflict, the Court held that when, as

here, accidents involving livestock occur on a state highway, Section 143.102

provides “the exclusive standard” for livestock-owner liability. Id. The difference

matters “a great deal [because] Section 143.102 is violated only when the livestock

owner knowingly permits the animal to run at large, while a violation of [S]ection

143.074 does not require the livestock owner’s ‘knowing’ mental state.” Id.

(emphasis in original).

In analyzing Section 143.102, the Pruski court noted that neither party had

addressed whether the statute “‘create[d] an appropriate standard of care for civil

liability purposes’” and that both the parties and the appellate court had assumed a

violation of the statute gave rise to a tort action. Id. at 326 (quoting Smith v. Merritt,

940 S.W.2d 602, 607 (Tex. 1997)). Because the issue was not before it, the Court

assumed, without deciding, that Section 143.102 creates an “appropriate standard of

care for civil liability purposes” and that “civil liability may therefore be imposed”

17
for its violation. Id.; see also Gibbs, 990 S.W.2d at 749 (noting that “Texas courts

have relied upon these two statutes, or their predecessors, to hold or assume that

livestock owners may be liable for negligence if their animals stray onto highways”).

As in Pruski, neither party here disputes that Section 143.102 creates a

standard of care for civil liability purposes for livestock owners whose animals stray

onto state highways. Both parties and the trial court assumed the application of the

statute to impose civil liability on Arraby. For purposes of this appeal, we similarly

assume, without deciding, that Section 143.102 establishes the applicable standard

of care. See Pruski, 594 S.W.3d at 326 (observing that Gibbs did not “accept or

reject” Section 143.102 “as a source of civil liability or make any holding about the

contours of the civil-liability rules that arise from [this] statute[]” and assuming “as

the parties do” that Section 143.102 creates standard of care for civil liability

purposes).

Discussion

In five issues, Arraby argues (1) there is insufficient evidence or no evidence

to support the legal conclusion Arraby owed Brown a duty because Arraby did not

own or control the cow, (2) there is insufficient evidence or no evidence Arraby

breached a duty to Brown by knowingly permitting the cow to roam at large on a

state highway, (3) the trial court abused its discretion in admitting and relying on the

testimony of “Brown’s unqualified experts” Bob Kingsbery and Floyd Luckett,

18
(4) there is insufficient evidence or no evidence it was foreseeable “the cow would

escape,” and (5) the “trial court’s granular, excessive findings prevented Arraby

from properly presenting its appeal.”

Because the first and second issues are dispositive, we do not reach the

remaining issues.

A. Analysis

The threshold inquiry in a negligence case is duty. Greater Hous. Transp. Co.

v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). A plaintiff must establish the

existence of “‘a legal duty owed by one person to another, a breach of that duty, and

damages proximately caused by the breach.’” Nabors Drilling, U.S.A., Inc. v.

Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (quoting D. Hous., Inc. v. Love, 92 S.W.3d

450, 453 (Tex. 2002)). The existence of duty is a question of law. See Nabors, 288

S.W.3d at 404. “The non-existence of a duty ends the inquiry.” Kennamer v. Estate

of Noblitt, 332 S.W.3d 559, 564 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

In rendering judgment for Brown, the trial court concluded that the

“applicable law is found in Texas Agriculture Code § 143.102.” It held that Arraby

was liable to Brown under Section 143.102 because “Arraby had responsibility for

the control of the cow” and “knowingly permitted the cow to roam at large,

unattended, on the right-of-way of Highway 225.” Arraby asserts there is

19
insufficient evidence or no evidence that Arraby had responsibility for control of the

cow or that it knowingly allowed the cow to roam at large.

A person violates Section 143.102 if he (1) owns the animal or has

responsibility for control of the animal, and (2) knowingly permits the animal to run

at large on the right-of-way of a highway.11 TEX. AGRIC. CODE § 143.102; see also

Pruski, 594 S.W.3d at 324 (“Section 143.102 requires a ‘knowing’ mental state as a

prerequisite to livestock-owner liability for highway accidents.”). We analyze each

element in turn.

B. Section 143.102: Ownership or Control

The trial court did not conclude that Arraby owned the cow involved in the

collision. Rather, in rendering judgment for Brown, the trial court concluded that

Arraby had responsibility for control of the cow. Arraby argues there is insufficient

evidence or no evidence it was responsible for control of the cow because Arraby

relinquished control of the Property to Eugene and Mary Alice. 12 Citing Levesque

v. Wilkens, 57 S.W.3d 499 (Tex. App.—Houston [14th Dist.] 2001, no pet.), Arraby

argues that, as landlord, it owed no duty to Brown under Section 143.102 because

11
Section 143.101 defines “highway” as a “U.S. highway or a state highway in this
state, but does not include a numbered farm-to-market road.” TEX. AGRIC. CODE
§ 143.101.
12
Arraby also argues there is insufficient evidence that the cow involved in the
accident was the Ybarras’ pet cow. For purposes of this opinion, we assume,
without deciding, that the cow Brown collided with was the cow being pastured on
the Property.

20
that statute “places the risk upon the owner of the livestock, not the owner of the

land.” Id. at 505 (emphasis in original).

In Levesque, landowners executed a lease agreement transferring their

exclusive possession of their property to the tenant. The tenant owned a bull that

escaped from the property and caused an automobile accident. Id. at 502. Levesque,

who was injured in the accident, sued the landowners of the property, among others.

The landowners moved for summary judgment arguing they did not owe a duty to

Levesque to prevent the bull from escaping their property because they had

relinquished their rights to the property to the tenant who owned the bull. See id.

(“The threshold inquiry is whether Landowners, as lessor, owed a legal duty to

Levesque to prevent the danger that caused their injuries.”). The trial court granted

summary judgment in favor of the landowners and Levesque appealed. The court

of appeals concluded that, “[b]ecause the lease agreement g[ave] [the tenant] the

exclusive right to occupy the land from which the bull escaped, it follows that [the

tenant] had exclusive possession and control of the land, the fence, and the bull.” Id.

at 505. The court further stated that “because section 143.102 [of the Texas

Agriculture Code] places the risk upon the owner of the livestock, not the owner of

the land, the statutory duty to prevent his livestock from wandering onto the highway

[fell on the tenant], as owner and possessor of the animal. Therefore, under the

21
statute and the lease agreement, Landowners have no responsibility for control of

the bull.” Id. (emphasis in original).

Brown argues that Arraby’s reliance on Levesque is misplaced because unlike

in Levesque, there is no evidence here that Arraby relinquished control of the

Property to Eugene and Mary Alice through a lease agreement or that a formal

landlord-tenant relationship existed between Arraby and Eugene and Mary Alice.

Brown further argues that Eugene and Mary Alice are not tenants because “[t]here

was no evidence of any lease, any other agreement, rental payments, or anything else

that would suggest a landlord-tenant relationship between Arraby and Eugene and

Mary Alice.”

We do not find Levesque instructive. In Levesque, it was not necessary for

the court to conduct a factual inquiry to determine who had responsibility for control

of the bull, because it was undisputed the tenant owned the bull and the written

lease—the legal document before the court and to which no party objected—

answered the question of possession over the land. Under the terms of the lease, the

tenant had exclusive possession of the land and thus, the court concluded, over the

fence and the bull it owned. Id. While we agree that a formal lease agreement can

be used as evidence to determine whether a landowner has exclusive possession of

property and control of any livestock pastured on the property, nothing in Levesque

suggests that a lease agreement is the only evidence relevant to the inquiry or that in

22
the absence of a formal lease agreement, a landowner is responsible for control of

livestock on its land.

We have not found, and the parties have not directed us to, any authority

requiring the existence of a formal landlord-tenant relationship or a formal lease

agreement to determine responsibility for control of livestock under Section

143.102. See generally TEX. AGRIC. CODE § 143.102 (prohibiting “person who owns

or has responsibility for the control of” certain livestock, including cow, from

“knowingly permit[ting] the animal to traverse or roam at large, unattended, on the

right-of-way of a highway”); see also Harlow v. Hayes, No. 07-95-0210-CV, 1996

WL 467464, at *3 (Tex. App.—Amarillo Aug. 16, 1996, no writ) (not designated

for publication) (explaining in case where lease existed, that landlord can be held

liable when circumstances indicate retention of control over premises). Thus,

whether Eugene and Mary Alice were Arraby’s “tenants” under the present

circumstances is not dispositive.

It is undisputed that Arraby owned the Property when the accident occurred.

But Section 143.102 does not place the risk upon the owner of the land on which

livestock is pastured. A landowner is liable under Section 143.102 only if it owns

the animal or has responsibility for control of the animal. TEX. AGRIC. CODE §

143.102.

23
 While the trial court found Victor’s testimony “for the most part, was not

credible,” a trial court is not at liberty to “ignore undisputed testimony that is clear,

positive, direct, otherwise credible, free from contradictions and inconsistencies, and

could have been readily controverted.” City of Keller, 168 S.W.3d at 820. Victor

consistently testified that Eugene and Mary Alice were responsible for the

maintenance of and repairs to the Property before and after they conveyed the

Property to Arraby in 2016. He testified that the only thing that changed after 2016

was who held title to the Property. According to Victor, his parents, who had owned

the Property since 1973, “only signed [the Property] over to [Arraby in 2016] in case

something happened to [Eugene].” Victor testified, “That was it. But nothing

changed.”13 Victor testified that “it was [Eugene’s and Mary Alice’s] house, their

property. . . . The only thing they did was sign it over to us. That was it.” Victor’s

undisputed testimony was that by informal agreement with Arraby, Eugene and

Mary Alice retained all the rights and obligations associated with the Property they

had before conveying the Property to Arraby, including the right to exclusive

possession and control of the Property.

Victor also testified that Arraby was not responsible for livestock on the

Property, and that before and after the conveyance of the Property, Eugene was

13
Victor also testified that Eugene and Mary Alice were responsible for paying the
Property’s taxes after they conveyed the Property to Arraby.

24
responsible for the cow. There is no evidence contradicting Victor’s testimony that

Eugene and Mary Alice retained the rights to the Property they had before the

conveyance (other than legal title), and that they were responsible for control of the

cow when the accident occurred in 2017.

There is also no evidence that Arraby had a right to enter the Property. See

Levesque, 57 S.W.3d at 505 (holding landowner who relinquished exclusive right to

occupy property through lease agreement and did not retain right of reentry did not

have control of livestock that had escaped from property). While Victor testified

that he and his siblings would visit their parents on the Property and fix anything

that was “wrong at the house,” there is no evidence Victor did so on behalf of Arraby,

as opposed to his individual capacity as a family member.

There is also no evidence that Eugene did not maintain the Property’s fences

or care for the cow pastured on the Property. Victor testified that Eugene had

workers for his restaurant and ranches, and he “would send” those workers to fix the

Property’s fences, take care of the cow, and address other maintenance concerns on

the Property. Victor explained that Ray Gonzalez and Ray’s mother were also

present to “watch[] over the Property” and to help Mary Alice “with the house chores

and everything.” There is no evidence contradicting Victor’s testimony.

Alice, Victor’s sister, testified that Eugene and Mary Alice were not

physically capable of inspecting or mending the fences on the Property or caring for

25
a cow. But Alice did not testify that Arraby was responsible for control of the cow.

Indeed, no one did. Kingsbery and the trial court appeared to reach the conclusion

that Arraby was responsible for control of the cow because Eugene and Mary Alice

were not physically capable of doing so. Even if that were true, nothing in Alice’s

testimony or any other anyone else’s testimony indicated that Eugene was not

capable of directing his employees to maintain the fences on the Property or care for

the cow pastured on the Property.

Mary Alice’s interrogatory responses merely demonstrate that she and Eugene

were not physically able to maintain or secure the Property’s fences or “physically

care for any livestock.” Nothing in her responses indicates that Eugene was not

capable of directing his employees to maintain the fences on the Property or care for

any livestock pastured on the Property, or that Eugene and Mary Alice had not

agreed to continue to be responsible for care of the Property or any livestock pastured

on the Property after they conveyed the Property to Arraby in 2016. Indeed, Ray

Gonzalez, who watched over the Property for the Ybarras, reported the cow missing

two days before Brown’s accident.

Victor’s undisputed testimony that Arraby informally relinquished its right to

exclusive possession of the Property to Eugene and Mary Alice and that Eugene

continued to take care of the cow and the Property, via his workers, after transferring

the Property to Arraby was “clear, positive, direct, otherwise credible, free from

26
contradictions and inconsistencies, and could have been readily controverted,” and

as such the trial court was not at liberty to disregard the testimony.14 See City of

Keller, 168 S.W.3d at 820. This evidence conclusively establishes that Eugene and

Mary Alice had responsibility for control of the cow and the Property, not Arraby.

See id. at 816 (“Evidence is conclusive only if reasonable people could not differ in

their conclusions.”).

Because the evidence conclusively establishes the opposite of a vital fact, in

this case Arraby’s responsibility for control of the cow, we conclude there is legally

insufficient evidence supporting the trial court’s finding that Arraby was responsible

for control of the cow Brown struck with his car. See id. at 810 (stating there is

legally insufficient evidence if evidence conclusively proves opposite of vital fact).

We hold the trial court erred by concluding that Arraby owed a duty to Brown under

Section 143.102 of the Texas Agriculture Code. See Pruski, 594 S.W.3d at 326;

Gibbs, 990 S.W.2d at 749.

We sustain Arraby’s first issue.

14
For example, the existence of this informal agreement could have been controverted
by Mary Alice in her discovery responses, by Ray Gonzalez who worked on the
Property and reported the cow missing, by Alice, or by another of Eugene’s and
Mary Alice’s children.

27
C. Section 143.102: Knowingly Permitting the Cow to Roam at Large

Even if the evidence established Arraby had responsibility for control of the

cow, there is legally insufficient evidence to support the trial court’s finding that

Arraby knowingly permitted the cow to roam at large on a state highway. For there

to be liability under Section 143.102, civil or criminal, it must be shown the

defendant “knowingly permitted” the animal to roam at large on the highway. See

Pruski, 594 S.W.3d at 326. Although the statute does not define the term

“knowingly,” under the Texas Penal Code

A person acts knowingly, or with knowledge, with respect to the nature
of his conduct or to circumstances surrounding his conduct when he is
aware of the nature of his conduct or that the circumstances exist. A
person acts knowingly, or with knowledge, with respect to a result of
his conduct when he is aware that his conduct is reasonably certain to
cause the result.

TEX. PENAL CODE § 6.03(b); see also Pruski, 594 S.W.3d at 326–27. Section

143.102 is thus violated only “if the livestock owner [or a person who has

responsibility for control of the livestock] permits the animal to traverse or roam at

large, unattended, on the right-of-way of a highway and does so with the knowing

mental state traditionally applied in criminal law.”15 Id. at 327. The term “permit”

15
The original predecessor to Section 143.102 prohibited livestock owners from
permitting their animals to traverse or roam unattended on the right-of-way of a
highway with fences on both sides. Pruski v. Garcia, 594 S.W.3d 322, 328–29
(Tex. 2020). In 1959, the prohibition was limited to “knowingly” permitting
animals to roam at large on highways, but the scope of the statute was extended to
cover highways whether “the adjacent land was fenced or not.” Id. This was a
“trade-off,” providing “ranchers the protection of the ‘knowingly’ standard,” but
28
usually “connotes awareness or assent, as opposed to mere oversight or negligence.”

Id.

Brown argues on appeal that Arraby is liable under Section 143.102 because

it “admitted [the] the cow []kept in Arraby’s pasture had gotten out,” Arraby did not

have “a planned response if the cow escaped from its [P]roperty,” and Arraby “never

talked to the La Porte police department about the cow that [] escaped.” According

to Brown, Kingsbery reviewed the evidence and “connected the dots.”16 He testified

that the “fence [on the Property] needs to be checked, inspected, and maintained on

a regular basis” and the cow “needs to be fed[,] watered, and the gates need to be

checked to ensure they are not left open.” Based on Kingsbery’s understanding “that

Eugene and Mary Alice were not physically capable of satisfying these

also expanding “their liability to include unfenced highways.” Id. at 329. Notably,
the 1959 amendment also added what is now Section 143.103, “which addresses the
opposite situation: when liability will attach for drivers who ‘strike[], kill[], or
damage[] an unattended animal running at large on a highway.’” Id. (quoting TEX.
AGRIC. CODE § 143.103) (emphasis in original). Section 143.103 provides that such
drivers are not liable “except on a finding of: (1) gross negligence in the operation
of the vehicle; or (2) wilful [sic] intent to strike, kill, injure, or damage the animal.”
TEX. AGRIC. CODE § 143.103. This “driver-liability” provision was part of another
“legislative trade-off.” Pruski, 594 S.W.3d at 329. “The Legislature decided that
in collisions between livestock and cars on U.S. and state highways, neither side
should be liable absent a heightened culpable mental state.” Id.
16
In its third issue, Arraby argues the trial court abused its discretion in admitting and
relying on the testimony of “Brown’s unqualified experts” Bob Kingsbery and
Floyd Luckett. In light of our disposition, we need not reach this issue.

29
requirements” Kingsbery testified “it was his opinion that Victor and Troy knew the

cow could get out of the pasture.”

Even if true, this evidence does not establish liability under the applicable

statute. Section 143.102 does not impose a duty to prevent all escapes of fenced

animals. Rather, as the statute expressly provides, the duty is to not “knowingly

permit the animal to traverse or roam at large, unattended, on the right-of-way of a

highway.” TEX. AGRIC. CODE § 143.102; see also Pruski, 594 S.W.3d at 327. The

mere fact an animal escapes and makes its way onto a highway does not support a

finding of culpability. Beck v. Sheppard, 566 S.W.2d 569, 572–73 (Tex. 1978)

(holding that neither ownership of horse nor ownership of land on which horse was

kept created presumption that horse’s presence on highway was due to negligence

of land or horse owner, and further holding that neither property nor horse owner

were liable because there was no evidence any fences were down or gates open, or

that horse had ever gotten out of pastures or had propensity for doing so). Similarly,

mere knowledge that a cow may escape from pastured land is insufficient to establish

the “knowingly” element under the statute. Garcia v. Pruski, 563 S.W.3d 333, 344

(Tex. App.—San Antonio 2018), reversed in part on other grounds, Pruski v. Garcia,

594 S.W.3d 322 (Tex. 2020) (holding that person “‘who should have known’—but

does not actually know—his bull was permitted to traverse or roam at large” on

30
highway “lacks the requisite awareness or understanding required by section

143.102”).

Brown argues the trial court’s finding that Arraby knowingly permitted the

cow to roam at large on the highway is supported by the evidence because “inaction

can support that finding.” In support, Brown cites to Dearbonne v. Courville, No.

09-16-00440-CV, 2018 WL 4354310 (Tex. App.—Beaumont Sept. 13, 2018, no

pet.) (mem. op.), Rodriguez v. Sandhill Cattle Co., L.P., 427 S.W.3d 507 (Tex.

App.—Amarillo 2014, no pet.), and Rose v. Ben C. Hebert Heis, 305 S.W.3d 874

(Tex. App.—Beaumont 2010, no pet.). But none of those cases support the

“knowingly” element required in this case. Indeed, none of the cases involve Section

143.102—the applicable statute here.

In Dearborne, the plaintiffs were traveling in a car at night when they collided

with horses on the roadway. They sued the alleged owner of the horses claiming he

had been negligent in “allowing his horses to run free on the public roads.” 2018

WL 4354310, at *1. Dearbonne involved livestock liability under Section 143.024,

which, unlike Section 143.102, does not require a showing the defendant

“knowingly” permitted the livestock to roam at large to establish liability. See id. at

*8 (discussing liability under Section 143.024); see also Pruski, 594 S.W.3d at 327–

28 (explaining that Section 143.102 requires finding of knowing conduct while

31
Section 143.074 does not).17 And even in that case, the court held that “an animal’s

escape is not alone evidence of misconduct on the part of its owner,” holding that to

establish “a breach under section 143.024” plaintiffs had to establish landowner had

consented, expressly or formally, “to his horse(s) running at large” or given leave to

“his horse(s) running at large.” Dearbonne, 2018 WL 4354310, at *8. The court

concluded there was no evidence to establish liability because, among other things,

there was no evidence that the property’s fences or gates were in disrepair or

unsuitable or that horses had escaped from the property’s enclosures in the past. Id.

at *10 (holding there was no evidence defendant “permitted” horse to escape as

prohibited by statute).

Rose and Rodriguez also involved the violation of Section 143.074, a stock

law involving a different standard than the standard required under Section 143.102.

See Rodriguez, 427 S.W.3d at 509–10 (discussing liability under Section 143.074);

Rose, 305 S.W.3d at 879–81 (same); see also Pruski, 594 S.W.3d at 324 (explaining

that “Section 143.102 is violated only when the livestock owner knowingly permits

the animal to run at large, while a violation of [S]ection 143.074 does not require the

livestock owner’s ‘knowing’ mental state” and noting difference matters “a great

17
Sections 143.024 and 143.074 are substantially the same and apply in counties
where stock laws have been adopted. The only difference between the two statutes
is the type of livestock involved. See TEX. AGRIC. CODE § 143.024 (applying to
horses, mules, jacks, jennets, donkeys, hogs, sheep, or goats); id. § 143.074
(applying to cattle and domestic turkeys).

32
deal”) (emphasis in original). In both cases, the courts clarified that even under that

statute, more is required for liability than the mere possibility livestock may escape

from its enclosure. Rose, 305 S.W.3d at 881 (“[W]e are skeptical that the Legislature

intended the duty it created in section 143.074 to extend to any person ‘who makes

possible’ the escape of cattle from a pasture.”); see also Rodriguez, 427 S.W.3d at

510 (adopting analysis in Rose). And in both cases, the courts rejected liability under

Section 143.074.

In Rose, the driver who collided with a bull on the road sued the landowner

claiming the landowner was negligent in permitting the bull to roam at large. Rose,

305 S.W.3d at 875. The court ultimately concluded the landowner was not liable

because, among other things, there was no evidence that the landowner had visited

the property or entered the property’s gate at any time relevant to the date of the

accident, that the landowner left the gate open, that the landowner authorized the

bull’s owner to leave the gate open, that any cattle had previously escaped from the

property or that the fence and its gate were not fit for the ordinary uses for which

they were intended. Id. at 881 (“In summary, there is no summary judgment

evidence to raise any inference that the Landowners ‘permitted’ the bull’s escape”

as prohibited under Section 143.074). The same result ensued in Rodriguez, where

a driver who collided with cattle on a roadway sued the landowner for negligence

under Section 143.074. Rodriguez, 427 S.W.3d at 508. The court held the

33
landowner was not liable because there was no evidence that the hot-wire fence used

to enclose the cattle was unsuitable, that the cattle had previously escaped from its

enclosure, that the landowner knew the hot-wire fence was inoperative, that the

landowner failed to inspect the fence once the cattle were left, that the landowner

allowed anyone to leave an opening in the hot-wire fence or that the landowner knew

the cattle had escaped and did nothing. Id. at 511.

We similarly hold the evidence in this case is legally insufficient to support

liability under Section 143.102. Kingsbery and the trial court focused significantly

on the health and abilities of Eugene and Mary Alice in reaching their conclusion

that Arraby breached Section 143.012.18 But whether the elderly couple could

physically care for the cow or the fence on the Property is irrelevant to establish

Arraby’s breach under Section 143.102. The question is not what Mary Alice and

Eugene were capable of doing, but rather what Arraby did or failed to do in

knowingly permitting the cow to roam on the highway.

Arraby presented testimony at trial that Eugene had workers to care for his

properties and that they took care of the fence on the Property if any issues arose.

Even if the trial court found this evidence not credible, there is no evidence the fence

18
When asked how Arraby “knowingly permitted livestock to remain at large on the
right-of-way of 225,” Kingsbery testified: “By expecting their parents to inspect,
maintain, and repair the fence.” Kingsbery similar testified that “Arraby was
responsible for the cow, and Arraby knowingly permitted the cow to wander by
leaving it with two infirm and elderly people.”

34
was not maintained or that there was anything wrong with the fence at the time of

the accident.19 Kingsbery never inspected the Property or the fence, and neither did

the investigating officers. Kingsbery was thus unable to testify about the condition

of the fence at the time of the accident or even after:

Q. You don’t know the condition of the fence right now or as it was

back in March of 2017, do you?

A. No.

...

Q. . . . What evidence do you have as we sit here today, that the fence,

or any part of the fence . . . was deficient in any way?

A. I have no evidence of that.

...

Q. . . . [Y]ou have no personal knowledge or evidence that this fence

had any deficiencies or was not maintained, is that correct?

A. That’s correct. I mean, I – my opinions are based on the fact the

people who were living there were not physically capable of

doing a good job of maintaining the fence.

19
In its findings of fact, the trial court found that Arraby had no records of
maintenance on the Property. But as Brown concedes, the absence of records is not
evidence that the fence was not maintained or in proper condition when the accident
occurred.

35
 Q. But – but you have no evidence as we sit here today that the fence

was not maintained properly, do you?

A. No personal knowledge, that’s correct.

Kingsbery was similarly unable to give any opinion as to how the cow got out:

Q. How do you think the cow got out assuming . . . it was on the

property, on the Ybarra property?

A. I don’t know how the cow got out.

There is thus no evidence that the Property’s fences and front gate were in

disrepair or unsuitable, that the fence and its gate were not fit for the ordinary uses

for which they were intended, that the fence had not been properly maintained, or

that any cattle had previously escaped from the Property. And while there was

testimony that Eugene and Mary Alice often left the front gate of the Property open,

there was also testimony that the cow on the Property was pastured on the back of

the Property which is enclosed by a separate fence. And as Kingsbery testified, he

was unaware “of any evidence that the cow got out through a gate.”

Because there is no more than a scintilla of evidence supporting Arraby’s

alleged knowing conduct, we conclude there is legally insufficient evidence

supporting the trial court’s finding that Arraby knowingly permitted the cow to roam

at large on a state highway. See City of Keller, 168 S.W.3d at 810 (stating evidence

36
is legally insufficient when “the evidence offered to prove a vital fact is no more

than a mere scintilla”).

We sustain Arraby’s second issue.

Conclusion

We reverse the trial court’s judgment and render judgment that Brown take

nothing on his claims against Arraby Properties, LLC.

Veronica Rivas-Molloy
Justice

Panel consists of Justices Goodman, Rivas-Molloy, and Farris.

Goodman, J., dissenting.

37