Opinion
NO. 01-20-00610-CV
06-13-2024
ARRABY PROPERTIES, LLC, Appellant v. Paul BROWN, Appellee
Daniel Nesbitt Maclemore IV, Lauren Olivarez, Angus Earl McSwain, Waco, Herrick Lawrence Sovany, Victoria Whiddon, Houston, for Appellant. Herrick Lawrence Sovany, Victoria Whiddon, Houston, Reginald E. McKamie, Paxton Crew, League City, Timothy F. Lee, Philadelphia, for Appellee. Panel consists of Justices Goodman, Rivas-Molloy, and Farris.
On Appeal from the 295th District Court, Harris County, Texas, Trial Court Case No. 2017-82986
Daniel Nesbitt Maclemore IV, Lauren Olivarez, Angus Earl McSwain, Waco, Herrick Lawrence Sovany, Victoria Whiddon, Houston, for Appellant.
Herrick Lawrence Sovany, Victoria Whiddon, Houston, Reginald E. McKamie, Paxton Crew, League City, Timothy F. Lee, Philadelphia, for Appellee.
Panel consists of Justices Goodman, Rivas-Molloy, and Farris.
OPINION
Veronica Rivas-Molloy, Justice
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 Kingsbery 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 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. In 2016, Eugene and Mary Alice transferred the Property to Arraby via warranty deed, but they continued to live on the Property.
The Ybarras have eight children, including Troy Ybarra, Victor Ybarra, and Alice Chandler.
In a statute, "person" includes a corporation Tex Gov't Code § 311 005(2)
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 Property, with a metal gate at the front entrance. Two days before Brown’s accident, a cow was reported missing from the Property. The cow was never recovered.
In his closing argument, Brown's counsel stated that the Ybarras’ nephew reported the cow missing
"The right to own and have exclusive dominion over private property is a sacred one, and it is a universal principle of law that the right to own property carries with it the right to control and dispose of same in such manner as not to contravene the statute law or public policy." Ford, 50 S.W 2d at 859–60 "Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal " Spann, 235 S.W at 514
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, unattend- ed, 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. 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 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 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
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." 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.
They also alleged that the cow involved in the accident was not "pastured on land owned" by Arraby
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 Kingsbery, testified at trial.
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.
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 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 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.]" Ray Gonzalez’s mother was also on the Property "to watch [Mary Alice and] help her with the house chores and everything."
The record reflects that Ray Gonzalez is the Ybarras’ nephew
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 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, he concluded the cow involved in the accident "escaped from the pasture where [it] was being kept on [the Property]."
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.
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 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." 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 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."
In referring to Mary Alice's testimony, Kingsbery clarified he was referring to her discovery responses
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."
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. 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."
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.
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
[1, 2] 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, LP, 190 S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
[3–7] 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).
[8] 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 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.).
[9–11] 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.
[12] 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
[13, 14] 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 (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, courts have relied on the statutes to address civil liability and the corresponding standard of care 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.
See Tex Agric Code § 143082 (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).
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" 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, (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
[15–18] 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 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.
[19] 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. 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.
Section 143 101 defines "highway" as a "US. highway or a state highway in this state, but does not include a numbered farm-to-market road " Tex. Agric Code § 143101
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. 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 that statute "places the risk upon the owner of the livestock, not the owner of the land." Id. at 505 (emphasis in original).
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
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 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 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, unattend- ed, 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.
[20] 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.
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." 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 Eugene and Mary Alice were responsible for paying the Property’s taxes after they conveyed the Property to Arraby
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 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 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 contradictions and inconsistencies, and could have been readily controverted," and as such the trial court was not at liberty to disregard the testimony. 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.").
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
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.
C. Section 143.102: Knowingly Permitting the Cow to Roam at Large
[21, 22] 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." Id. at 327. The term "permit" usually "connotes awareness or assent, as opposed to mere oversight or negligence." Id.
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 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 tradeoff." 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
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." 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 requirements" Kingsbery testified "it was his opinion that Victor and Troy knew the cow could get out of the pasture."
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
[23, 24] 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 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 Heirs, 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 Dearbonne, 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 Section 143.074 does not). 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).
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).
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 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 road-way sued the landowner for negligence under Section 143.074. Rodriguez, 427 S.W.3d at 508. The court held the 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 hotwire 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.
[25] 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. 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.
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 "
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 was not maintained or that there was anything wrong with the fence at the time of the accident. 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:
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
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.
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 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.
Goodman, J., dissenting.
DISSENTING OPINION
Gordon Goodman, Justice
This case is about the rights and duties that come with property ownership. "The right to acquire a known property and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural right." Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 515 (1921). A property owner’s duty to harm no one else through the use of his property creates, for example, a duty to invitees on his property to make safe or warn of dangerous conditions on the property. Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). That duty runs with the ownership or control of the property. Id A property owner can thus be liable when a guest enters the property and is harmed by the dangerous condition on the property. See id. But who is liable when the dangerous condition on a person’s property wanders off the property and harms another?
The legislature has determined that, when the dangerous condition is livestock, the owner or other person responsible for the livestock is liable. The owners of and those responsible for livestock have a statutory duty to not knowingly permit the livestock to roam on a highway. See Tex. Agric Code § 143.102. But when there is a complete absence of evidence establishing an owner or other person responsible for a livestock animal, I believe the owner of the property who knowingly allows the animal to stay on the property is liable.
In this case, Arraby Properties, LLC, allowed a cow to be kept on its property. Arraby provided no more than a scintilla of evidence that it relinquished control of the property, including the cow kept there, or that any other person was responsible for the cow. In the absence of such evidence, I believe Arraby, as the property owner, is responsible for the control of the cow. This responsibility includes a duty to maintain sufficient fencing on the property to not permit the cow to roam unattended on the highway, as the cow in this case did, where Paul Brown eventually collided with it.
Paul Brown was a well-respected maritime pilot driving to work early one morning when the accident occurred. He was a pioneer in his industry as one of the first Black cargo pilots in the United States. His coworkers described him as smart, likeable, and a mentor to everyone around him. Brown loved his job and planned to continue working until mandatory retirement. But all of that changed when he collided with the cow from the Arraby property. He suffered a traumatic brain injury, and his personality changed. He became depressed and had difficulty concentrating, sleeping, and thinking. He could no longer work in the job he loved because it required a high level of both physical and cognitive performance, and he had to take an early retirement. Because the majority refuses to hold Arraby, the property owner that permitted the cow to roam off its property and cause this collision, responsible, I respectfully dissent.
Fences, Range Restrictions, and Running at Large on Highways
Though Texas was a free-range state at common law, the legislature has imposed a duty to restrain livestock from roaming on highways by keeping the animals confined within fences. See Pruski v. Garcia, 594 S.W.3d 322, 323 (Tex. 2020); Gibbs v. Jackson, 990 S.W.2d 745, 747–48 (Tex. 1999); see also Billelo v. SLC McKinney Partners, L.P., 336 S.W.3d 852, 854 (Tex. App.—Dallas 2011, no pet.) (explaining the duty to confine animals within fences is "purely statutory in nature"). Under Section 143.102 of the Agriculture Code, 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. The law imposes a small criminal penalty for violations, see id. § 143.108 (imposing Class C misdemeanor for violation of Section 143.102), but Texas courts have relied on this statute to also create a standard of care for civil liability purposes for owners and other persons responsible for livestock when their animals stray onto highways. Pruski, 594 S.W.3d at 325–26. Therefore, a person who is injured by a livestock animal roaming on a highway, as Brown was here, may recover under a negligence theory against the (1) "person1a who owns or has responsibility for the control of" certain livestock animals, who (2) "knowingly permit[s] the animal to traverse or roam at large, unattended, on the right-of-way of a highway." Tex Agric Code § 143.102; Pruski, 594 S.W.3d at 325–26.
In this case, as the trial court concluded, the evidence shows that Arraby is the person who has responsibility for the control of the cow because it permitted the cow to stay on its property and did not relinquish control to anyone else, and the evidence shows Arraby knowingly permitted the cow to roam at large by making no effort to keep the cow properly fenced in.
Responsibility for the Control of the Cow
Property ownership comes with a "bundle of rights" and duties, among which are the right to exclusive control, possession, use, and enjoyment of the property and the duty to refrain from using the property in a way that harms others. Evanston Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377, 383 (Tex. 2012); Ford v. Grand United Ord. of Odd Fellows of State of Tex., 50 S.W.2d 856, 859–60 (Tex. App.—Beaumont 1932, writ dism’d w.o.j.); see also Spann, 235 S.W. at 515.2a But a property owner’s duty to others is limited if the property owner relinquishes some or all of his possession and control of the property. See Gen. Elec. Co. v. Montz, 257 S.W.3d 211, 215 (Tex. 2008). The property owner’s duty is commensurate with the right of control over the property. See Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997); Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993).
In this case, Arraby undisputedly owns the property on which Eugene and Mary Alice Ybarra lived and on which they kept a cow. Victor Ybarra, testifying on behalf of Arraby as its president and managing member, knew his parents kept a cow on the property. There is no evidence, aside from Victor’s testimony that the trial court found uncredible, that Arraby relinquished control of the property. Victor claimed his parents lived there and took care of everything and said Arraby was owner in name only, but he provided no specific evidence to support this claim. There is, however, at least some evidence that Arraby did not relinquish control of the property:
• Arraby owned the property where the cow was kept;
• Eugene’s health was declining, and he had to use a walker;
• Mary Alice was diagnosed with Alzheimer’s disease; and
• It was apparent to their children that Eugene and Mary Alice were not capable of taking care of a cow or a ranch.
Though Eugene and Mary Alice lived on the property, the evidence suggests they were not physically capable of controlling or managing the property. Thus, there was sufficient evidence to support the trial court’s finding that Arraby was responsible for the control of the property, including the cow kept on it.
There was no specific evidence of who cared for the cow on the property or maintained the fences that kept the cow on the property. Victor explained that Eugene, before his death, worked at the restaurant he owned every day and that Eugene "had people that worked under him [that] he would send to … his house. If [he] needed a light bulb changed, they’d change it. If [he] had something wrong with the fence, they’d fix the fence." When asked specifically about maintaining the fences, Victor said, "My father’s workers were the ones who took care of it." But he did not name a single person, testify that he had ever seen or interacted with any of these people whom he allowed onto the property he owned, provide any evidence that Eugene or Arraby made arrangements to care for the cow or ever paid these workers for the work they did, or provide any evidence that anyone at any time had ever repaired the fence. His testimony amounts to no more than a scintilla of evidence that anyone else was responsible for the cow or maintaining the fences around it.
And the trial court found Victor’s testimony uncredible. Generally, the testimony of an interested witness, even if not contradicted, does no more than raise a fact issue, and whether to credit that testimony is a question for the factfinder. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (per curiam). Here, the factfinder evidently did not believe Victor’s testimony that unidentified and seemingly unpaid workers were coming on to the property to inspect and repair the fences. The majority claims the trial court was not entitled to disbelieve Victor’s testimony because a trial court cannot "ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted." See City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005). Yet Victor’s unspecific, conclusory testimony is anything but clear, positive, direct, otherwise credible, or readily controverted. An assertion that unspecified people perform work unseen and unpaid is not clear, positive, or direct. The testimony was not otherwise credible because the trial court specifically found in its findings of fact and conclusions of law: "The testimony of Victor Ybarra, for the most part, was not credible." And there was no way to contradict his claim that unseen, unidentified people who were seemingly never paid were coming to the property on a regular basis to care for the cow and repair the fence around it. The trial court, then, was not required to believe this testimony.
On appeal, Arraby relies on Levesque v. Wilkens, 57 S.W.3d 499 (Tex. App.—Houston [14th Dist.] 2001, no pet.), and the existence of a landlord-tenant relationship to show that it relinquished control of the property. See id. at 505 (explaining when property owner leases property to tenant and gives him exclusive right to occupy property, Section 143.102 places duty to restrain livestock on owner of livestock, not property owner). But Arraby’s reliance on Levesque is misplaced because the trial court did not find a landlord–tenant relationship, and whether one exists is a question of fact. City of Irving v. Seppy, 301 S.W.3d 435, 445 n.2 (Tex. App.—Dallas 2009, no pet.); see also Brown v. Johnson, 118 Tex. 143, 12 S.W.2d 543, 545 (Tex. [Comm’n Op.] 1929). Here, there was no evidence of a lease, any other kind of rental agreement, rental payments, or anything else that would suggest a land-lord–tenant relationship between Arraby and Eugene and Mary Alice. The trial court correctly refused to find a landlord-tenant relationship. And without a lease transferring control of the property, there is no evidence that Arraby relinquished its control of the property, including the livestock and fences on it. The majority is correct that no authority requires proof of a formal landlord–tenant relationship or a formal lease agreement to determine responsibility for the control of a livestock animal. But such proof would conclusively establish the property owner had relin- quished control, and that conclusive proof is missing here. See Levesque, 57 S.W.3d at 505 ("Because the lease agreement gives [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."). In the absence of conclusive proof, responsibility for the control of the animal was an issue for the factfinder to decide, and the factfinder here decided Arraby, as the property owner, had responsibility for control of the cow.
Moreover, even if there were some sort of landlord–tenant relationship here, a landlord can be held liable when he retains control over the leased premises. See Tidwell, 867 S.W.2d at 21; see also Harlow v. Hayes, No. 07-95-0210-CV, 1996 WL 467464, at *3 (Tex. App.—Amarillo Aug. 16, 1996, no writ) (per curiam) (not designated for publication) ("[A] landlord can be held liable when circumstances indicate a retention of control over the premises."). As discussed above, the circumstances in this case indicate that Arraby retained control of the property.
Bob Kingsbery, the expert on the cattle industry and particularly livestock fencing who testified at trial, succinctly summarized Arraby’s responsibility for the cow: "[Arraby] owned the property. They knew there was a cow there. They knew that their parents were not capable of properly maintaining the cow, inspecting the fence." He testified, "[S]omebody has to be responsible for the cattle. And if the property owner knows the cattle are there, and absent somebody else being responsible for the cattle, then, yeah. I’d say the property owner would be responsible." In this case, the property owner is Arraby.
I agree with the trial court—Arraby was responsible for the control of the property and the cow. Arraby owned the property and knowingly allowed the cow to be kept there, and there was no more than a scintilla of evidence to support Victor’s claim that Arraby relinquished control of the property or of the cow knowingly kept on it. Because Arraby knowingly allowed the cow to be kept on its property and did not relinquish control or identify any other person responsible for the control of the cow, Arraby, as the property owner, was responsible for the control of the cow.
Knowingly Permit the Animal to Traverse or Roam on a Highway
A person with responsibility for the control of a livestock animal is only liable under Section 143.102 of the Agriculture Code if that person "knowingly permit[s] the animal to traverse or roam at large, unattended, on the right-of-way of a highway." Tex Agric Code § 143.102. Here, Arraby knowingly permitted the cow to roam at large because it made no effort to keep the cow fenced in.
The duty established by Section 143.102 of the Agriculture Code to not knowingly permit livestock animals to roam at large encompasses the corollary duty to properly fence those animals in. See Pruski, 594 S.W.3d at 324 (acknowledging owner’s statutory liability for failure to fence livestock); see also Billelo, 336 S.W.3d at 854 (explaining Section 143.102 creates duty to confine animals within fences); Ceniceros v. Pletcher, No. 07-15-00427-CV, 2017 WL 2829325, at *6 (Tex. App.—Amarillo June 29, 2017, pet. denied) (mem. op.) (explaining duty arising under stock law also creates "statutory duty" to "non-negligently maintain suitable fencing"); Van Home v. Harris, No. 2-06-183-CV, 2007 WL 865801, at *3 (Tex. App.—Fort Worth Mar. 22, 2007, no pet.) (mem. op.) (explaining "duty to not permit the livestock to run at large encompasse[s] maintenance of the property’s fences and gates"). The law does not impose liability for accidental escapes. See Beck v. Sheppard, 566 S.W.2d 569, 572 (Tex. 1978) (holding animal’s mere presence on highway does not create presumption of negligence). A person responsible for the control of a cow is only liable under Section 143.102 if that person permits the animal to roam or fails to fence in the animal with a "knowing" mental state. See Pruski, 594 S.W.3d at 330 (concluding Section 143.102’s "knowing" standard for liability prevails when Section 143.102 and local stock law apply).
The Agriculture Code does not define "knowing," but because the statute is penal in nature, the Supreme Court has used the Penal Code definition of the "knowing" culpable mental state to interpret Section 143.102. Id. at 326–27 (explaining livestock owner violates Section 143.102 by permitting animal to roam at large on a highway "with the knowing mental state traditionally applied in criminal law"). The Penal Code provides:
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.
Here, circumstantial evidence allows the finding that Arraby knowingly permitted the cow to roam at large on a highway because Arraby, with awareness of the consequences, did not keep the cow fenced in. Arraby willingly did not fulfill its duty, as owner of the property where the cow was kept, to inspect or maintain the fences controlling the cow or make arrangements for their inspection and maintenance.
The expert testimony of Bob Kingsbery, the cattle industry and fencing expert, established that if fences around livestock are not properly inspected and maintained, these fences can break down in as little as a week. Kingsbery testified that whenever a cow is kept in a fenced property or pasture, "the fence needs to be checked, inspected, and maintained on a regular basis." That means "more than once a week," someone should "inspect the entire length of the fence." Based on their children’s descriptions of their infirmities, Kingsbery concluded Eugene and Mary Alice were not capable of inspecting and maintain the fences themselves, nor were they capable of performing any needed repairs on the fence.
Victor testified that Arraby, as property owner, also owned the fence on the property. But Victor, the president and managing partner of Arraby, admitted he had no familiarity with livestock, no familiarity with what was required to maintain a fence around a livestock pasture, and no records for maintaining the fences on the property. Victor plainly admitted he does not fix fences. Victor also testified that he knew the purpose of the fence around the pasture was to keep the cow in the pasture and that the cow could escape through a broken part of the fence. Victor’s testimony shows he knew the cow on the property could escape, yet Arraby did nothing to ensure the cow was properly fenced in. Arraby left that responsibility to Victor’s elderly, physically and mentally infirm parents.
Victor testified that his father’s workers would come onto the property to take care of the cow and maintain the fences around it. But again, Victor did not name a single person, testify that he had ever seen or interacted with any of these people whom he allowed onto the property he owned, provide any evidence that Eugene or Arraby made arrangements to care for the cow or ever paid these workers for the work they did, or provide any evidence that anyone at any time had ever repaired the fence. His testimony amounts to no more than a scintilla of evidence that the fences were maintained.
Where there is no evidence, aside from uncredible and unsupported interested testimony, of the fences ever being maintained, there is expert testimony that fences around livestock can fall into disrepair in as little as a week, and there is undisputed evidence that the cow actually did escape from the property, then this circumstantial evidence permits the inference that the cow escaped through a broken fence. Unlike other livestock animals like horses, cows cannot simply jump over fences. Thus, a cow can only escape a fenced area through a broken fence, so if the cow on the Arraby property escaped, it must have been through a broken fence.
A person acts knowingly with regard to circumstances surrounding his conduct when he is aware that the circumstances exist. Tex. Penal Code § 6.03(b); see also Pruski, 594 S.W.3d at 326–27 (applying "knowing mental state" in criminal law to Section 143.102 civil liability). Here, Victor, as president and managing member of Arraby, was aware that there was a cow on Arraby’s property, that the cow could escape through a broken fence, and that Arraby made no arrangements to inspect and maintain the fence to make sure the fence was not broken. Thus, Arraby knowingly permitted the cow to roam at large by not ensuring the animal was fenced in, and it did nothing to prevent the cow from roaming onto a highway.
The law imposes no liability for the accidental and temporary escape of an animal through no fault of its owner or keeper. Pruski, 594 S.W.3d at 327 (explaining that permitting animal to roam at large means more than temporary escape); Beck, 566 S.W.2d at 572 (holding animal’s mere presence on highway does not create presumption of negligence on part of property owner or animal’s owner). But I believe that fault is shown here with Arraby’s conscious indifference to its responsibility to keep the cow on its property properly fenced in. Section 143.102 imposes liability for permitting an animal to roam at large on a highway, and to permit to roam means to allow an animal "to graze and move about freely in an unconfined area." Pruski, 594 S.W.3d at 327. Arraby made no effort to confine the cow on its property. In that way, Arraby knowingly permitted the cow to roam at large, and the cow wandered onto a highway where Brown collided with it, resulting in serious injury. Therefore, Arraby is liable to Brown for the damage it caused.
The evidence in this case shows that Arraby, as property owner, was responsible for the control of the cow on its property because it knowingly allowed the cow to be kept there and did not relinquish that control to anyone else, and the evidence shows Arraby knowingly permitted the cow to roam at large on a highway because Arraby made no effort to keep the cow fenced in. Arraby had a duty to confine the cow by inspecting and maintaining the fences around the cow but did not do so and did not make arrangements for their inspection and maintenance. Thus, Arraby is liable under Section 143.102 of the Agriculture Code, and the trial court correctly found Arraby was negligent in knowingly permitting the cow to roam at large on a highway and correctly awarded damages to Brown. Thus, I would affirm the trial court’s judgment.