Pablo Castrejon v. Andrew Horton and Cassy Horton

Affirmed and Memorandum Opinion filed October 24, 2017.

In The

Fourteenth Court of Appeals

NO. 14-16-00520-CV

PABLO CASTREJON, Appellant
V.
ANDREW HORTON AND CASSY HORTON, Appellees

On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 15-CV-0104

MEMORANDUM OPINION

Appellant Pablo Castrejon sued appellees Andrew Horton and Cassy Horton
to recover damages for personal injuries he sustained as a result of a dog bite. The
trial court granted summary judgment in the appellees’ favor, dismissing all of
appellant’s claims. In one issue (with several subparts), appellant argues that the
trial court erred in granting the appellees summary judgment. We affirm.
 I. Background

On March 29, 2013, appellant went with his girlfriend, Heather, to the
appellees’ house in League City, Texas, to meet Heather’s father, who was staying
with the appellees. Appellant did not know the appellees. The appellees did not
know that either Heather or appellant would be stopping by their residence.

Appellant and Heather stood on the appellees’ front porch and Heather
knocked on the door several times. Neither appellees nor her father were at the
house. When no one answered the door, Heather opened the unlocked front door
and walked inside the house. Upon opening the door, the appellees’ dog, Rusty, a
twenty-two month old Akita, which was inside the house, came to the door.
Appellant, who had remained on the front porch, attempted to close the door upon
seeing Rusty inside the house. Rusty, however, went through the threshold of the
open front door onto the front porch and bit appellant. Despite being bitten,
appellant was able to push Rusty back inside the appellees’ home and shut the door.
Appellant was taken to the hospital for his injuries.

In his original petition, filed in February 2015, appellant brought two claims
against the appellees, one for negligent handling of an animal and the other for strict
liability of a dangerous domesticated animal. In April 2015, appellant filed a second
amended petition, adding two new theories of negligence — negligence per se for
an alleged violation of the statutory duty outlined in section 822.042 of the Texas
Health and Safety Code1 and negligence based on premises liability. On October

1
Section 822.042 of the Texas Health & Safety Code, entitled “Requirements for Owner of
Dangerous Dog,” sets forth the requirements for an owner of a dangerous dog. This section requires, in
pertinent part, that within 30 days after a person learns he is the owner of a dangerous dog, the person shall
register the dangerous dog with animal control; restrain the dangerous dog at all times on a leash in the
immediate control of a person or in a secure enclosure; obtain liability insurance coverage or show fiscal
responsibility; and comply with any applicable municipal or county regulation, requirement or restriction
on dangerous dogs. See Tex. Health & Safety Code § 822.042 (a) (1)-(4).

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22, 2015, the appellees filed a no-evidence motion for summary judgment.
Thereafter, on March 18, 2016, appellant filed a third amended petition, including
another negligence theory —negligence per se based upon a violation of a League
City Code of Ordinances, Chapter 18.2

On May 9, 2016, the trial court granted the appellees’ no-evidence summary
judgment motion on all claims and signed a take-nothing judgment against appellant.
Thereafter, appellant filed a motion for new trial, which was denied. Appellant
timely filed this appeal.

II. Standard of Review

In a no-evidence motion for summary judgment, the movant must state the
specific element or elements of each cause of action on which it urges there is no
evidence. Johnson v. Brewer & Pritchard, P.C, 73 S.W.3d 193, 207 (Tex. 2002);
see Tex. R. Civ. P. 166a(i). In reviewing the no-evidence motion, we consider only
those grounds set forth in the motion. See Johnson v. Felts, 140 S.W.3d 702, 706
(Tex. App.—Houston [14th Dist.] 2004, pet. denied). To defeat a no-evidence
motion, the non-movant is not required to marshal all of its proof, but the non-
movant is required to point to evidence raising a fact issue on the challenged
elements of the cause of action. Johnson, 73 S.W.3d at 207.

2
The League City Code of Ordinances, Chapter 18-1, provides as its stated purpose as follows:
The primary function and intent of this chapter is protection of the health, safety and
welfare of the people of the city by controlling the animal population and establishing
uniform rules for the control and eradication of rabies.
Among other definitions, Chapter 18-8 prohibits an owner from allowing an animal from running
at large within city limits. The Chapter defines “running at large” as “. . . a dog . . . not under
direct physical control of its owner or keeper, on the streets, sidewalks or other public or private
places.” Chapter 18-11 defines “dangerous, vicious or mischievous animals,” ownership
requirements, prohibitions against dangerous animals running at large, and penalties for violation
of the Chapter.

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 We review the summary judgment de novo. See Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We take as true all evidence favorable
to the non-movant and we indulge every reasonable inference and resolve any doubts
in the non-movant’s favor. Id. Where, as here, the trial court’s order does not
specify the grounds for its ruling, we must affirm the summary judgment if any of
the grounds presented to the trial court are meritorious. Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

We sustain a no-evidence summary judgment when (a) there is a complete
absence of evidence of a vital fact, (b) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact, (c) the
evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the
evidence conclusively establishes the opposite of the vital fact. Merrell Dow
Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). “Less than a scintilla of
evidence exists when the evidence is ‘so weak as to do no more than create a mere
surmise or suspicion’ of a fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742,
751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.
1983)).

III. Analysis

In his brief, appellant identifies a single issue for review— “[w]hether the trial
court’s grant of summary judgment was error.” He argues the trial court erred in
granting appellees’ no-evidence motion for summary judgment because appellant
produced more than a scintilla of evidence on the challenged elements of his claims
for negligent handling, strict liability for injury caused by a dangerous domesticated
animal, and premises liability.

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 Appellant’s claims are predicated on the same set of facts: he was injured as
a result of Rusty’s aggressive behavior. An essential element of appellant’s strict-
liability claim is that appellees had actual or constructive knowledge of Rusty’s
vicious, dangerous, or mischievous nature. An essential element of all of appellant’s
other claims is proximate cause, which includes the foreseeability element of
proximate cause. We address each of these elements below.
A. Applicable law
1. Trial court did not err in granting summary judgment on the
negligence theory added in appellant’s third amended petition

Appellant argues that appellees failed to allege that appellant had no evidence
of a violation of the League City Code of Ordinances because that allegation was
added in appellant’s third amended petition, which was filed after appellees’ no-
evidence summary judgment. Appellant alleges that the trial court improperly
granted summary judgment on grounds not expressly presented to it and, thus,
committed reversible error.
“A summary-judgment motion must stand or fall on the grounds expressly
presented in the motion. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d
337, 341 (Tex. 1993). Nonetheless, if the summary judgment grounds expressly
presented in the motion are sufficiently broad to encompass claims or allegations
first asserted in an amended pleading filed after the motion, it is procedurally
appropriate for the trial court to grant summary judgment as to these new claims or
allegations, even if the movant does not amend the motion to address the new claims.
See Wilson v. Korthauer, 21 S.W.3d 573, 579 (Tex. App.—Houston [14th Dist.]
2000, pet. denied). To state a no-evidence ground the movant must assert clearly
that there is no evidence of one or more essential elements of a claim or defense on
which the adverse party would have the burden of proof at trial. See Tex. R. Civ. P.
166a(i) (stating that a no-evidence movant seeks “summary judgment on the ground
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that there is no evidence of one or more essential elements of a claim or defense on
which an adverse party would have the burden of proof at trial” and that “[t]he
motion must state the elements as to which there is no evidence”); BP Oil Pipeline
Co. v. Plains Pipeline, L.P., 472 S.W.3d 296, 315 (Tex. App.—Houston [14th Dist.]
2015, pet. denied).
In his third amended petition, appellant included another theory—negligence
per se based on a violation of a League City Code of Ordinances, Chapter 18.
Although this ordinance appeared for the first time in his third amended petition,
appellant alleged exactly the same underlying factual basis for the violation of the
League City Code of Ordinances as he did for the alleged violation of the Texas
Health and Safety Code, section 822—appellees’ failure to prevent their dog from
running at large and attacking appellant. This additional negligence theory continues
to attack the same failures. In appellees’ no-evidence motion for summary
judgment, the appellees specifically challenged the essential elements of the
negligence claim and noted that negligence per se is not a separate claim independent
of common-law negligence. Appellees’ no-evidence motion specifically challenged
both negligent handling and negligence per se. Appellant’s claims all depend on the
same set of facts. Appellees’ no-evidence motion sufficiently covered the negligence
per se theory based on the League City Code of Ordinances asserted in appellant’s
third amended petition. See Wilson, 21 S.W.3d at 579.
We overrule appellant’s issue.
2. Elements of common-law claims
Texas provides three potential common-law claims for individuals who have
been injured by a dog or other domestic animal: strict liability, negligence, and
premises liability.

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 To recover on a claim of strict liability for injury by a dangerous domesticated
animal, a plaintiff must prove: (1) the defendant was the owner or possessor of the
animal; (2) the animal had dangerous propensities abnormal to its class; (3) the
defendant knew or had reason to know the animal had dangerous propensities; and
(4) those propensities were a producing cause of the plaintiff’s injury. See Marshall
v. Renne, 511 S.W.2d 255, 258 (Tex. 1974)3; Thompson v. Curtis, 127 S.W.3d 446,
451 (Tex. App.—Dallas 2004, no pet.).

To recover for negligent handling of an animal, the plaintiff must show:
(1) the defendant was the owner or possessor of the animal; (2) the defendant owed
a duty to exercise reasonable care to prevent the animal from injuring others; (3) the
defendant breached that duty; and (4) the defendant’s breach proximately caused the
plaintiff’s injury. See City of Houston v. Jenkins, 363 S.W.3d 808, 816 (Tex. App.—
Houston [14th Dist.] 2012, pet. denied) (citing Williams v. Sable, No. 14–09–00806–
CV, 2011 WL 238288, at *3 (Tex. App.—Houston [14th Dist.] Jan. 25, 2011, no
pet.) (mem. op.) (setting forth, in a dog-bite case, the elements for “common-law
negligent handling of an animal”)).

Negligence per se is a common-law tort concept in which a statute defines the
standard of conduct. Thomas v. Uzoka, 290 S.W.3d 437, 444 (Tex. App.—Houston
[14th Dist.] 2009, pet. denied). Negligence per se is not a separate claim that exists
independently of a common-law negligence claim; rather, negligence per se is

3
In Marshall v. Renne, the Supreme Court adopted § 509 of the Restatement (First) of Torts which
states:
Except as stated in §517, a possessor of a domestic animal which he has reason to know
has dangerous propensities abnormal to its class, is subject to liability for harm caused
thereby to others, except trespassers on his land, although he has exercised the utmost care
to prevent it from doing harm.
511 S.W.2d 255, 258 (1974).

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merely one method of proving a breach of duty, a requisite element of any negligence
claim. See id. at 445. As explained by the Texas Supreme Court, “[n]egligence per
se is a tort concept whereby a legislatively imposed standard of conduct is adopted
by the civil courts as defining the conduct of a reasonably prudent person.” Carter
v. William Sommerville and Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979). Thus, when
claiming negligence per se, the plaintiff must show that such negligence was a
proximate cause of the injury or damages sustained. Williams v. Sable, No. 14-09-
00806-CV, 2011 WL 238288, at *3 (Tex. App.—Houston [14th Dist.] Jan. 20, 2011,
no pet.) (mem. op.); Searcy v. Brown, 607 S.W.2d 937, 941 (Tex. Civ. App.—
Houston [1st Dist.] 1980, no writ).

Lastly, injured parties may sue a property owner under a premises liability
theory. In cases where a person is injured on the premises of another, including dog-
bite cases, the duty owed by the landowner depends on the status of the person
injured on the premises. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.
1975); see Dunnings v. Castro, 881 S.W.2d 559, 563 (Tex. App.—Houston [1st
Dist.] 1994, writ denied); Gill v. Rosas, 821 S.W.2d 689, 691 (Tex. App.—El Paso
1991, no pet.); Searcy, 607 S.W.2d at 941; see also Baker v. Pennoak Properties,
Ltd., 874 S.W.2d 274, 277 (Tex. App.—Houston [14th Dist.] 1994, no writ).
Claimants traditionally have been classified as invitees, licensees,4 or trespassers.
Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 909 (Tex. App.—
Houston [14th Dist.] 2009, no pet.). A landowner or occupier is liable to a licensee
only if the owner or occupier has actual knowledge of the condition that injured the

4
Although appellant, arguably, could be considered a trespasser, he could have no greater status
than a licensee; appellant concedes in his brief to being a licensee. Licensees enter the premises solely for
their own purposes. Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 910 (Tex. App.—Houston
[14th Dist.] 2009, no pet.). Absent a relationship inuring to the mutual benefit of the claimant and the
owner, a claimant is classified as a licensee. Id. A licensee who exceeds the rights and privileges granted
by the license becomes a trespasser. Id.

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plaintiff. Wong v. Tenet Hosp., Ltd., 181 S.W.3d 532, 537 (Tex. App.—El Paso
2005, no pet.). The duty owed to a licensee is not to injure the licensee willfully,
wantonly, or through gross negligence, and, in cases in which the owner or occupier
has actual knowledge of a dangerous condition unknown to the licensee, to warn of
or make safe the dangerous condition. Lower Neches Valley Auth. v. Murphy, 536
S.W.2d 561, 563 (Tex. 1976); Mayer, 278 S.W.3d at 910.

Proximate cause consists of two elements: (1) cause in fact, and (2)
foreseeability. See Allen v. Albin, 97 S.W.3d 655, 668 (Tex. App.—Waco 2002, no
pet.) (dog-attack case) (citing Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d
472, 477 (Tex. 1995)). “Cause in fact means that the negligent act or omission was
a substantial factor in bringing about the injury and without which no harm would
have been incurred.” Searcy, 607 S.W.2d at 941. “[F]oreseeability requires that a
person of ordinary intelligence would have anticipated the danger created by a
negligent act or omission, although it is not required that such a person would
anticipate the precise manner in which injury will occur once he has created a
dangerous situation through his negligence.” Williams, 2011 WL 238288, at *3
(citing Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998); Choice v. Gibbs,
222 S.W.3d 832, 839 (Tex. App.—Houston [14th Dist.] 2007, no pet.)).
“Foreseeability requires more than someone, viewing the facts in retrospect,
theorizing an extraordinary sequence of events whereby the defendants’ conduct
brings about the injury.” Id. (citing Doe v. Boys Clubs of Greater Dallas, Inc., 907
S.W.2d 472, 478 (Tex. 1995)). Foreseeability cannot be established by mere
conjecture, guess, or speculation. Id. (citing W. Invs., Inc. v. Urena, 162 S.W.3d
547, 551 (Tex. 2005)). Instead, the question of foreseeability involves a practical
inquiry based on common experience applied to human conduct. Id. (citing Read,
990 S.W.2d at 737; Choice, 222 S.W.3d at 839).

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 In their no-evidence summary judgment motion, appellees asserted there is no
evidence that (1) their dog had dangerous propensities; (2) the appellees had reason
to know that their dog had dangerous propensities; (3) they breached any duty owed
to appellant; (4) they behaved differently than a reasonably prudent dog owner
would have under the same circumstances; (4) their alleged negligence proximately
caused appellant’s injury; (5) they violated any statutory duty; or (6) they injured
appellant willfully, wantonly, or through gross negligence.

B. Absence of a fact issue as to knowledge of dangerous propensities and/or
proximate cause
Applying these principles and viewing the summary-judgment evidence in the
light most favorable to appellant, we conclude the summary-judgment evidence did
not raise a fact issue as to either (1) the essential element of proximate cause for all
claims except the strict-liability claim, or (2) for the strict-liability claim, the
essential element that the appellees knew or had reason to know that Rusty had
dangerous propensities.

The summary judgment evidence submitted by appellant included the
following:

 Appellant and his girlfriend’s deposition testimony that the front door was left
unlocked by appellees.
 Cassy Horton’s deposition testimony that Rusty was left in the house behind
the unlocked front door.
 Cassy Horton’s deposition testimony that no sign warning of the dog’s
presence was displayed outside of appellees’ home.
 Andrew Horton’s alleged statement that no other barrier to the outside existed.
 Andrew Horton’s post on dog breeder website that “[Rusty] has become very
protective over my 8 and 3 year old daughters. Every night he sleeps at the
foot of their bed on guard for any would be attackers.”

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  Andrew Horton’s post on dog breeder website that “[t]he other day the gas
man came into the house unexpectedly and Rusty was quick to let the poor
guy know that strangers were not allowed uninvited.”
 Andrew Horton’s statement that “[t]he reason why, why I purchased the breed
is I spend 300 days a year offshore . . . . And my father-in-law works nightshift
. . . . We’ve had mul-, multiple b-, uh, burglaries in my driveway where people
have stolen stuff out of the cars and stuff. So we wanted a, a dog in the house
just, uh, as a, piece [sic] of mind.”
 Andrew Horton’s statement that he researched the breed before deciding to
get an Akita.
 Information about Akitas on appellees’ dog breeder’s website provides that
the breed is protective, poses a serious threat to intruders, may instinctively
attack, was bred to hunt, guard, and fight, is not submissive, will not obey its
owners’ every command, and is not the type of dog that will love animals and
strangers. The breed requires a firm, experienced master, will not be provided
to first-time dog owners, should only be entrusted to those willing and capable
of providing adequate care and training, and it is recommended that a potential
owner conduct thorough research on the breed before adopting.
 An affidavit from a League City Police officer that Rusty lunged through
appellees’ front door toward appellant’s face and attacked appellant on the
front porch, there was serious bleeding, the bites were severe.
 Appellant’s affidavit that he was in the hospital for six days and had to
undergo surgery.
 Photographs of appellant’s injury and scarring demonstrating that one year
following the incident, appellant shows deep scarring.
In addition, appellant submitted as summary-judgment evidence allegedly
inconsistent statements given in response to written discovery by Andrew Horton
that included the following:

 “[Andrew Horton] decided to get an Akita after researching the breed known
for their gentle nature around children and after watching a movie, Hachi,
about an Akita.”
 “[Appellees’] dog has never attacked or attempted to attack any person prior
to the incident made the basis of this suit.”

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  “[Andrew Horton] has never received a complaint . . . related to his dog,
Rusty.”
 Andrew Horton denied knowing his dog was aggressive prior to the incident.
 Andrew Horton denied that the dog has acted aggressively or attacked another
person prior to the day of the incident.
 Andrew Horton denied that one reason he chose to own an Akita was to
protect his home and property.
 Andrew Horton denied knowing prior to the incident that Akitas have
aggressive tendencies.
Whether the risk of injury from a dog bite is foreseeable depends in part on
the owner’s actual or constructive knowledge of the vicious propensities of his dog.
Dunnings, 881 S.W.2d at 564; Gill v. Rosas, 821 S.W.2d 689, 691 (Tex. App.—El
Paso 1991, no writ). Texas courts have held that the owner of a domestic animal is
not liable for injuries caused by it in a place where it has the right to be, absent actual
or constructive knowledge by the owner of the animal’s vicious or dangerous
propensities. Searcy, 607 S.W.2d at 941 (dog owner was not negligent if the injury
occurred where the dog had a right to be and the owner had no knowledge of any
dangerous propensities). In the absence of knowledge that a domestic animal is
vicious or dangerous, the property owner does not owe a duty to warn a licensee or
make any condition safe. Id.

Here, the summary-judgment evidence establishes that appellees’ dog was
restrained in a place it had a right to be—in appellees’ house, behind closed doors
with no access to the outside. The evidence further establishes that appellant, a
licensee, at best, opened the door to appellees’ house unannounced and uninvited
and was bitten by Rusty on appellees’ front porch. No evidence was presented that
Rusty had dangerous propensities abnormal to its class. Dunnings, 881 S.W.2d at
561. No summary-judgment evidence showed that appellees knew or had reason to
know that Rusty had dangerous propensities. No evidence was presented that

12
appellees had actual or constructive knowledge that Rusty posed an unreasonable
risk of harm on their premises. Searcy, 607 S.W.2d at 941. No evidence was
presented that appellees knew or should have known that Rusty would injure
someone, or that appellees behaved differently than reasonably prudent dog owners
would have under the same circumstances. Dunnings, 881 S.W.2d at 564.
Moreover, no evidence was presented that appellees injured appellant, a licensee,
willfully, wantonly, or through any gross negligence or had any duty to warn or make
safe. Searcy, 607 S.W.2d at 941; Jones v. Gill, No. 02-03-0298-CV, 2005 WL
503182, at *4 (Tex. App.—Fort Worth Mar. 3, 2005, no pet.). Rusty was on
appellees’ property at all relevant times and would have remained inside the house
behind closed doors (i.e., in a secure enclosure) but for appellant opening the door
to appellees’ house without permission. See Searcy, 607 S.W.2d at 942.

For the preceding reasons, we conclude that the summary-judgment evidence
did not raise a fact issue as to either (1) the essential element of proximate cause for
all claims except the strict-liability claim, or (2) for the strict-liability claim, the
essential element that the appellees knew or had reason to know that Rusty had
dangerous propensities. See Dunnings, 881 S.W.2d at 561. As such, the trial court
properly granted the no-evidence summary judgment on all of appellant’s claims.
Accordingly, we overrule appellant’s issues.

IV. Conclusion
Having overruled appellant’s issues, we affirm the judgment of the trial court.

/s/ John Donovan
Justice

Panel consists of Chief Justice Frost and Justices Donovan and Wise.

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