Opinion
02-22-00217-CV
11-27-2024
Paul Herchman Jr., Donna Herchman, and Paul Herchman III, Appellants v. Brittney Lee, Appellee
On Appeal from the 96th District Court Tarrant County, Texas Trial Court No. 096-293088-17
Before Birdwell, Bassel, and Walker, JJ.
MEMORANDUM OPINION
WADE BIRDWELL JUSTICE
This case centers on a Goldendoodle named Jake. After biting a child's face, Jake was adopted into the home of Appellants Donna and Paul Herchman Jr., where he bit their adult daughter's hand and arm. Later, Jake attacked Appellee Brittney Lee-the then-girlfriend of Paul and Donna's son, Appellant Paul "Trace" Herchman III-biting her face multiple times and leaving her with permanent scars and a downward-sloping smile. A jury found that the Herchmans (that is, Paul, Donna, and Trace) were strictly liable for Jake's attack on Brittney; that the Herchmans had been negligent; and that Jake's attack had caused Brittney approximately $2 million in disfigurement, pain, anguish, and impairment damages.
The Herchmans challenge nearly every aspect of this judgment. They dispute the evidentiary sufficiency of both of Brittney's claims; they contest the evidentiary sufficiency of the damage awards; they criticize various rulings on the admission of evidence at trial; they complain of the jury charge; and they argue that cumulative error warrants reversal in the interest of justice. None of these challenges pass muster. Because the Herchmans' evidentiary-sufficiency complaints turn on the jury's credibility determinations-which we cannot and will not override-and because their remaining challenges are unpreserved, we will affirm.
The facts are recited in light of the jury's implied credibility determinations, including its implied resolution of factual disputes in favor of the verdict. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
At the time of Jake's attack, Trace and Brittney were dating, and Trace was temporarily staying with his parents-and with Jake. After a date one night, Trace and Brittney returned to the Herchmans' home and began talking on the patio while Jake paced nearby. Brittney laid down on a patio bench, and at one point, she reached to the ground to pick up her drink. As she did, Jake-who Brittney later remembered being approximately six feet away-"came up really quickly and grabbed [her] face," biting her "over and over again" until Trace pulled him away. Brittney's bite wounds required 149 stitches, ultimately leaving her with multiple noticeable scars covering one side of her face, a walnut-sized "wad" of scar tissue intruding into her mouth, and a smile that slanted downward on one side.
Jake was quickly euthanized. Indeed, although Paul and Donna had been out of town at the time of Jake's attack, when Trace told them what had happened, they directed him to have Jake euthanized immediately-even before they returned home. As it turned out, their decision was informed by the fact that Jake had bitten two other people prior to attacking Brittney.
In fact, the catalyst for Jake's adoption by the Herchmans had been a biting incident. Jake's prior owner-Tammy-had run a home daycare facility, and Jake had bitten the face of a three- or four-year-old child at the daycare after the child climbed on Jake's back. The episode had prompted Tammy to put Jake up for adoption. Soon after Jake was adopted into the Herchmans' home, he jumped up and their adult daughter LeAnn pushed him down, prompting Jake to bite her on the hand. LeAnn reacted by kicking Jake to get him away from her, so Jake attacked a second time, biting her arm. In both biting incidents-the child's and LeAnn's-the bites were sufficiently severe as to warrant hospital visits and stitches.
Brittney sued the Herchmans, asserting claims for strict liability and negligence and seeking to recover for the noneconomic damages that Jake's attack had caused. By the time the case proceeded to a jury trial, more than six years had passed since Jake's attack.
All of the parties testified at trial, as did Jake's veterinarian and his former owner Tammy. Brittney described Jake's attack for the jury, walked through the various medical procedures and complications she had suffered, and explained how her facial wounds and deformity had impacted her life.
Although the veterinarian had cared for Jake in the past, he provided limited factual testimony, as he had only a vague memory of his alleged conversations regarding Jake.
The Herchmans, in turn, generally acknowledged that the attack on Brittney had been an unprovoked "horrible accident." But they denied that they had known of Jake's dangerousness prior to Brittney's attack, explaining why they had believed each of Jake's prior biting incidents to have been a justifiable reaction to a specific provocation-the child's climbing on Jake's back or LeAnn's pushing or kicking Jake-rather than symptoms of his dangerousness. Nonetheless, Paul and Donna acknowledged that, despite the perceived justifications for Jake's prior attacks, such incidents made them "[c]autious" in allowing Jake to interact with guests.
The jury found the Herchmans liable on both of Brittney's claims and awarded her $2 million in damages: (1) $600,000 for physical disfigurement, $500,000 of which was for the past and $100,000 for the future; (2) $1.2 million for physical pain and mental anguish, $800,000 of which was for the past and $400,000 for the future; and (3) $200,000 for physical impairment, split evenly between the past and the future.
The Herchmans appeal.
The Herchmans' seventy-five-page brief contains screenshots of text-based jury questions and answers, and those screenshots-which are not text-searchable, see Tex. R. App. P. 9.4(j)(1)-do not appear to be accounted for in the brief's word-count certification, see Tex. R. App. P. 9.4(i)(3). This practice is strongly disfavored, and although we did not return the Herchmans' brief for correction, practitioners would be wise to avoid such practices in the future.
The Herchmans first challenge the sufficiency of the evidence to prove (1) the elements of Brittney's strict-liability claim, (2) the elements of her negligence claim, and (3) the damage awards.
A. Standard of Review
In reviewing the factual sufficiency of a challenged jury finding-be it a finding on the elements of a claim or a finding quantifying damages-we assess whether the credible evidence supporting the finding is so weak or the finding is so contrary to the overwhelming weight of the evidence that it must be set aside as manifestly unjust. Windrum v. Kareh, 581 S.W.3d 761, 781-82 (Tex. 2019); City of Keller v. Wilson, 168 S.W.3d 802, 826 (Tex. 2005); Golden Eagle Archery, 116 S.W.3d at 761-62. Although we consider all of the evidence in making this assessment, we remain mindful of the jury's role as the sole arbiter of the witnesses' credibility and the weight to be given each witness's testimony. Golden Eagle Archery, 116 S.W.3d at 761-62; see Wilson v. Murphy, No. 02-23-00207-CV, 2024 WL 1561468, at *5 (Tex. App.-Fort Worth Apr. 11, 2024, no pet.) (mem. op.) (recognizing that, "[w]hen evidence conflicts, the jury's role is to evaluate the credibility of the witnesses and reconcile any inconsistencies, and as a general proposition, the jury may 'believe all or any part of the testimony of any witness and disregard all or any part of the testimony of any witness'" (quoting Anderson v. Durant, 550 S.W.3d 605, 616 (Tex. 2018)); Goff v. Rogers, No. 02-23-00356-CV, 2024 WL 1318249, at *2 (Tex. App.-Fort Worth Mar. 28, 2024, no pet.) (mem. op.) (same). We cannot substitute the jury's judgment with our own. Windrum, 581 S.W.3d at 781; Golden Eagle Archery, 116 S.W.3d at 761.
Legal sufficiency, meanwhile, is a lower bar than factual sufficiency; if the evidence is factually sufficient to support a jury finding then it is necessarily legally sufficient to do so. Walther v. Walther, No. 02-23-00393-CV, 2024 WL 3978045, at *2 (Tex. App.-Fort Worth Aug. 29, 2024, pet. filed) (mem. op.); cf. Windrum, 581 S.W.3d at 781 (noting that a court of appeals generally need not address factual sufficiency if it finds that evidence is legally insufficient). Here, then, we focus on the Herchmans' factual-sufficiency challenges, which as we shall see, dispose of their relevant legal-sufficiency challenges as well.
B. Strict-Liability Claim
First, the Herchmans challenge the evidentiary sufficiency of the three elements of Brittney's strict-liability claim: that (1) Jake had dangerous propensities; (2) the Herchmans knew or had reason to know of such propensities; and (3) the dangerous propensities caused Brittney's injuries. See Marshall, 511 S.W.2d at 258-59; Gonzalez v. Ahrens, No. 14-18-00417-CV, 2019 WL 4071925, at *3 (Tex. App.-Houston [14th Dist.] Aug. 29, 2019, no pet.) (mem. op.); Rodriguez v. Haddock, No. 2-01-386-CV, 2003 WL 1784923, at *2 (Tex. App.-Fort Worth Apr. 3, 2003, no pet.) (mem. op.); Restatement (First) of Torts § 509 (Am. L. Inst. 1938).
These elements apply to strict-liability claims asserted against the dog's owner or possessor. See Marshall v. Ranne, 511 S.W.2d 255, 258-59 (Tex. 1974); Restatement (First) of Torts § 509 (Am. L. Inst. 1938). The Herchmans do not dispute that they were Jake's owners or possessors.
1. Dangerous Propensities
The Herchmans contend that, despite Jake's prior biting incidents, there was insufficient evidence that he had dangerous propensities.
For purposes of a strict-liability dog-bite claim, a dog has "dangerous propensities" if the dog (1) "is vicious, that is, has a tendency to attack human beings or other animals which is abnormal in animals of its class" or (2) "is not vicious but has a dangerous tendency which is unusual and not necessary for the purposes for which such animals are usually kept." Restatement (First) of Torts § 509 cmt. c (Am. L. Inst. 1938); see Marshall, 511 S.W.2d at 258 (adopting Restatement (First) of Torts §§ 507, 509). The Herchmans-emphasizing their position that, when Jake bit the child and LeAnn, he did so out of fear as "react[ions]" to physical provocations- argue that Jake's actions were not abnormal for a dog.
But the jury was not required to believe the Herchmans' testimony, nor was the jury required to agree with the Herchmans' assessment of Jake's prior attacks as normal dog behavior. See Golden Eagle Archery, 116 S.W.3d at 761 (reiterating the "familiar principle" that "the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony"). And there was ample contrary evidence supporting the jury's finding that Jake's biting incidents-both before Brittney and involving Brittney-reflected an abnormal tendency to attack humans:
• Tammy told the jury that, when a boy at her daycare "got[] on top of [Jake's] back," Jake reacted by biting the child's face such that the child had "rips on both sides of [his] mouth" and required stitches. Tammy had been so upset by the attack that it prompted her to get rid of Jake and to close down her daycare "[f]or [her] own well-being." Tammy's response supported an inference that she did not view Jake's reaction to the child as normal dog behavior.
• Jake's veterinarian testified that, hypothetically, if he learned that a dog had attacked a three-year-old and bitten the child's face, he would regard the dog as abnormally dangerous-regardless of what prompted the attack. Then, when provided with the details of Jake's child-biting incident, the veterinarian confirmed that "[a]s a society, we don't call that [i.e., such an attack] normal."
• Tammy further testified that, even before Jake bit the child at her daycare, Jake chased another child's parent to his truck and bit the man's shorts, ripping them and forcing the man to jump into his truck to get away.
• Regarding Jake's attack on LeAnn, Donna explained that Jake had jumped up, and when LeAnn pushed him down, he bit her hand so severely as to require stitches. Then, when LeAnn "kicked [Jake] in the chest to get him back" as he was biting her hand, Jake bit her again in the arm-requiring more stitches.
• Donna testified that she did not blame LeAnn for Jake's bite and that, after Jake attacked LeAnn, she knew "there was something abnormal" about Jake and his "triggers." Such acknowledgement was evidence that Donna-a person very familiar with Jake-did not consider Jake's attack on LeAnn to be normal dog behavior.
• It was undisputed that Brittney did nothing to provoke Jake's attack on her and that there was no reasonable explanation for it.
• Despite the undisputed lack of provocation for Brittney's attack, Jake bit her face not just once but "over and over."
• Paul testified that he had owned numerous dogs throughout his life and that none of his other dogs had ever bitten anyone's face or sent anyone to the hospital. He conceded that Jake's behavior in "sen[ding] three people to the hospital" was "[n]ot normal."
While this evidence was met with contradicting testimony regarding Jake's good behavior on other occasions, it was the jury's role-not ours-to "reconcile any inconsistencies" in the evidence, Stone v. Christiansen, No. 02-22-00450-CV, 2023 WL 5766076, at *3 (Tex. App.-Fort Worth Sept. 7, 2023, no pet.) (mem. op.), and the evidence supporting the dangerous-propensities finding was not so weak as to render it manifestly unjust. See Windrum, 581 S.W.3d at 781-82; cf. Osburn v. Baker, No. 04-19-00568-CV, 2020 WL 2441426, at *2 (Tex. App.-San Antonio May 13, 2020, no pet.) (mem. op.) (holding in summary-judgment context that there was more than a scintilla of evidence of dog's dangerous propensities when dog did not take commands, was possessive of his owners, was leery around strangers, and nipped at people's ankles); Edmonds v. Cailloux, No. 04-05-00447-CV, 2006 WL 398033, at *2-3 (Tex. App.-San Antonio Feb. 22, 2006, no pet.) (mem. op.) (holding in summary-judgment context that there was more than a scintilla of evidence of dog's dangerous propensities when dog snapped at a person, knocked a person down, went "into [a] frenzy" upon seeing guests or squirrels, and was described as unpredictable and "crazy").
2. Knowledge
The Herchmans next claim that there was insufficient evidence that they knew or had reason to know of Jake's dangerous propensities. See Restatement (First) of Torts § 509 cmt. b (Am. L. Inst. 1938) (noting that "reason to know" is defined elsewhere in the Restatement as "mean[ing] that the person in question knows or from facts known to him should know"); see also Marshall, 511 S.W.2d at 258-59 (quoting Restatement's definition of "reason to know" and concluding that "[t]here is no essential distinction" between the phrase and "should have known"); Restatement (First) of Torts § 12(1) (Am. L. Inst. 1934) (defining "reason to know"). This is simply not the case.
The Herchmans point out that the jury did not make a finding on the knowledge element, but they concede that they did not object to the omission and that, consequently, the omitted element is deemed found by the trial court as long as there is sufficient evidence in the record to support it. See Tex. R. Civ. P. 279. They argue that there is insufficient evidence to support the deemed finding.
It was undisputed that all three Herchmans knew about Jake's prior biting incidents:
• Paul and Donna acknowledged that, before they adopted Jake, Tammy told them that Jake had bitten a child in the face.
• Paul and Donna further confirmed that they knew about Jake's attack on LeAnn and that they knew the attack had required LeAnn to visit the emergency room and to get stitches. They explained how they had notified animal control and called Jake's veterinarian after the attack.
• Trace conceded that he had been aware of Jake's attack on LeAnn. And Paul and Donna stated that they had engaged in "multiple discussions" with Trace about Jake's prior biting incidents and about the need to be "cautious" with the dog.
The Herchmans acknowledge much of this evidence but reassert their contention that Jake's prior biting incidents were no indication of his dangerous propensities; thus, they reason, they had no way to know Jake was dangerous. But as we have already held, the factfinder was not required to believe the Herchmans or agree with their belief that Jake's prior biting incidents were normal. See Golden Eagle Archery, 116 S.W.3d at 761; Stone, 2023 WL 5766076, at *3. Just as the jury could have viewed Jake's prior biting incidents as (in the veterinarian's words) not something that "[a]s a society[] we . . . call . . . normal," it could have found that, because the Herchmans knew of the prior biting incidents, they should have known of Jake's dangerous tendency to attack humans. See Restatement (First) of Torts § 509 cmt. b (Am. L. Inst. 1938); cf. Osborne v. Chocqueel [1896] 2 QB 109 at 110 (Eng.) (Lord Russell of Killowen CJ) (holding no evidence of scienter in dog-bite appeal when dog had not "on any previous occasion manifested any tendency to bite mankind" and "its record was quite clean except for [an] unhappy incident [with a] goat").
Plus, in truth, there was evidence that the Herchmans were either subjectively aware-or at least had been warned-that Jake's prior biting incidents reflected Jake's dangerousness:
• Donna admitted that, after Jake bit LeAnn, she knew "there was something abnormal" about Jake and his "triggers" and that the family needed to be "[c]autious and smart" with the dog.
• Donna testified that she had conversations with Trace "over and over" about Jake's prior biting incidents and about the need to be "cautious and smart" with Jake.
• After Jake bit LeAnn, Paul called Tammy to inform her, and Tammy broke down crying on the phone, telling Paul, "Put the dog down! Put it down! It's already bitten a child; now it's bitten your own daughter! Put the dog down!"
• Paul conceded that, after Jake's attack on LeAnn, the family recognized the need for "special caution" with the dog, they "tr[ied] to keep [Jake] isolated" from guests, and they even considered euthanizing him.
This evidence was plenty strong to support a finding that the Herchmans not only knew of Jake's prior biting incidents-and thus should have known of his dangerous propensities-but also had subjective awareness that the prior biting incidents were abnormal. See Osburn, 2020 WL 2441426, at *2 (holding in summary-judgment context that there was more than a scintilla of evidence that owners should have known of dangerous propensities when dog, among other things, was leery around strangers and nipped at people's ankles); cf. Pfeffer v. Simon, No. 05-02-01130-CV, 2003 WL 1545084, at *1-2 (Tex. App.-Dallas Mar. 26, 2003, no pet.) (mem. op.) (holding that dog's having eaten pet cockatiel bird under unexplained circumstances was no evidence that owners knew or should have known of dangerous propensities). The knowledge finding was not manifestly unjust.
3. Causation
In their final challenge to Brittney's strict-liability claim, the Herchmans argue that there was insufficient evidence to show that Jake's dangerous propensities were what caused him to attack Brittney. They claim that, even if Jake had dangerous propensities generally, his attack on Brittney was not a manifestation of those propensities but instead was Jake's "react[ing] as a normal dog would have reacted" when Brittney "startled" him. This argument has zero support in the record-much less enough support to show that the jury was manifestly unjust in finding to the contrary.
Not one witness testified that Jake's attack on Brittney was how "a normal dog would have reacted," as the Herchmans now argue. Trace was the only witness who referenced the possibility that "maybe" Jake attacked Brittney because he had been startled by her moving to pick up her drink, but Trace did not claim that biting Brittney's face over and over was how a normal dog would have reacted to being startled. And Trace was crystal clear that Brittney had done nothing wrong.
When Trace was asked if he believed "any dog would do something like this to somebody," he responded by repeatedly stating that he thought the attack was "a horrible accident."
In fact, from the very beginning of the case, the Herchmans all but conceded that Jake's reaction to Brittney had been abnormal. In their opening statement, the Herchmans' trial counsel told the jury that "[w]e don't know what was going on in [Jake's] mind" that caused him to attack Brittney and that the absence of a reasonable explanation for the attack was what had caused the Herchmans to euthanize Jake so quickly afterward. The jury's finding that Jake's dangerous propensities caused his attack on Brittney was thus consistent with the evidence and was not manifestly unjust. Cf. Edmonds, 2006 WL 398033, at *3 (holding in summary-judgment appeal that there was more than a scintilla of evidence that dog's dangerous propensities caused injuries when plaintiff's testimony and records indicated that she fell because dog "knocked [her] legs out from under [her]").
Having rejected the Herchmans' three challenges to the elements of Brittney's strict-liability claim, we overrule their overarching factual-sufficiency challenge to that claim, and with it, their legal-sufficiency challenge to that claim. See Walther, 2024 WL 3978045, at *2 ("If the evidence is factually sufficient, then it is necessarily legally sufficient.").
C. Negligence Claim
The Herchmans next challenge the legal and factual sufficiency of the evidence to support the elements of Brittney's negligence claim. But because we have already held that the evidence is sufficient to support Brittney's strict-liability claim, and because the strict-liability claim can support the judgment standing alone, we need not address the negligence claim. See DLA Piper LLP (US) v. Linegar, 539 S.W.3d 512, 520 (Tex. App.-Eastland 2017, pet. denied); Natho v. Shelton, No. 03-11-00661-CV, 2014 WL 2522051, at *1 (Tex. App.-Austin May 30, 2014, no pet.) (mem. op.); Calvin v. Neel, 191 S.W. 791, 794 (Tex. App.-Fort Worth 1916, writ ref'd) ("The fact that several reasons are given by the court for the verdict rendered, and that some of such reasons are not supported by the record, will not render such judgment bad, if it can be sustained by other reasons given."); see also Tex. R. App. P. 47.1. We overrule the Herchmans' challenges to the negligence claim.
D. Damage Awards
This brings us to damages. The jury awarded $2 million for Brittney's noneconomic injuries: (1) physical disfigurement damages of $500,000 for the past and $100,000 for the future; (2) physical pain and mental anguish damages of $800,000 for the past and $400,000 for the future; and (3) physical impairment damages of $100,000 for the past and $100,000 for the future. The Herchmans challenge the factual sufficiency of the evidence to support the amounts of each of these awards. But such challenges-much like the sufficiency complaints we have already addressed-ultimately turn on the jury's credibility determinations. See Golden Eagle Archery, 116 S.W.3d at 761 (reiterating that "a[n appellate] court must not merely substitute its judgment for that of the jury").
The Herchmans lodge a general complaint regarding Brittney's failure to present evidence of her economic damages, arguing that this choice "deprived the jury . . . of any opportunity to evaluate the subjective elements of damages by reference to the economic damages." "But the possibility that economic and noneconomic damages may correlate or inform one another in certain situations does not mean that they are necessarily connected in all cases or that the ratio between the two is always a useful tool," and the Herchmans have not explained why economic damages were an appropriate yardstick for measuring Brittney's noneconomic damages in this case. Gregory v. Chohan, 670 S.W.3d 546, 560 (Tex. 2023) (plurality op.).
1. Applicable Law
A jury "has great discretion" in awarding damages, and "[t]he more subjective the damages alleged, the more deference we give to jury findings on those damages." Stone, 2023 WL 5766076, at *2-3 (reviewing jury's findings on noneconomic damages in dog-bite case). "Assigning a dollar value to non-financial, emotional injuries such as mental anguish . . . will never be a matter of mathematical precision," and we review an award for noneconomic damages with this firmly in mind. Gregory, 670 S.W.3d at 550 (plurality op.); Boxer Prop. Mgmt. Corp. v. Dehnel, No. 02-22-00336-CV, 2024 WL 3282541, at *28 (Tex. App.-Fort Worth July 3, 2024, pet. filed) (mem. op.).
Yet, the jury's discretion is not boundless. Although the amount of a noneconomic damages award is "uniquely within the factfinder's discretion," the award must still "fairly and reasonably compensate" for the plaintiff's injury based on the evidence presented. Bennett v. Grant, 525 S.W.3d 642, 648 (Tex. 2017); Golden Eagle Archery, 116 S.W.3d at 772-73; see Stone, 2023 WL 5766076, at *2. If the jury's award "is so against the great weight and preponderance of the evidence as to be manifestly unjust," then it must be reversed. Golden Eagle Archery, 116 S.W.3d at 772-73.
A plurality of the Texas Supreme Court has proposed a new standard for reviewing the size of noneconomic damage awards, requiring a "rational connection, grounded in the evidence, between the injuries suffered and the dollar amount awarded." Id. at 550-51, 560-64 (plurality op.) (criticizing "shocks the conscience" test as "subjective," and referencing constitutional law's rational-basis standard). The plurality contemplated that the required rational connection could be provided by, among other things, an argument of counsel. Id. at 561-62 (plurality op.) (stating that "[a]n attorney . . . should be expected to articulate the reason why the amount sought is reasonable and just"). Here, Brittney's counsel compared Brittney's injuries to "a job that she didn't want . . . [-]to live with a disfigurement on her face for the rest of her life"-and thus proposed valuing her damages based on an hourly rate. Giving the minimum wage as an example, Brittney's counsel reasoned that, if Brittney were to be compensated for her hourly emotional struggles for the next forty years of her life, her future damages would total $2.14 million. Although, at first glance, the verdict's $2 million total appears to bear some resemblance to Brittney's hourly-rate calculation, further examination reveals that the jury did not fully adopt Brittney's method, as the future damages awarded totaled just $600,000-a far cry from the $2.14 million requested. Regardless, the Herchmans do not argue that Brittney's hourly-rate proposal constituted "unsubstantiated anchoring" or injected an "improper yardstick" into deliberations. Id. at 557-58 (plurality op.); id. at 576 (Bland, J., concurring); cf. Turner v. Duggin, 532 S.W.3d 473, 485-86 (Tex. App.-Texarkana 2017, no pet.) (affirming evidentiary sufficiency of noneconomic damages in dog-bite case when plaintiff proposed per-hour calculation).
2. Physical Disfigurement
The Herchmans first challenge the jury's awards of $500,000 for Brittney's past disfigurement and $100,000 for her future disfigurement. In the damages context, "disfigurement" refers to "that which impairs or injures the beauty, symmetry, or appearance of a person . . .; that which renders unsightly, misshapen[,] or imperfect, or deforms in some manner.'" Werner Co. v. DeVallee, No. 02-19-00043-CV, 2021 WL 1134387, at *11 (Tex. App.-Fort Worth Mar. 25, 2021, pet. denied) (mem. op.). Here, the Herchmans argue that the jury's awards were excessive, downplaying the severity of Brittney's scarring and claiming that her scars were "unnoticeable just four months after the incident."
But the Herchmans fail to acknowledge the significant amount of evidence to the contrary-evidence that the jury was entitled to believe. See Golden Eagle Archery, 116 S.W.3d at 761 (reiterating that "the jury is the sole judge of the credibility of witnesses"); Stone, 2023 WL 5766076, at *3 (noting in dog-bite case that "the jury may 'believe all or any part of the testimony of any witness and disregard all or any part of the testimony of any witness'" (quoting Anderson, 550 S.W.3d at 616)). Such evidence showed that Jake's bites left Brittney with a severe deformity on a prominent part of her body-her face:
• Photographs of Brittney without makeup showed that she had multiple scars covering the majority of her left cheek, spanning from just below her eye to her chin and extending from the side of her mouth to the back of her jaw.
• Brittney testified that she had to have her wound closed by a plastic surgeon and that closing it required more than 140 stitches in three layers.
• The jury saw photographs of Brittney's face right after the attack-with visible bite marks all over one cheek-and photographs of her face in various stages of bandaging and healing. Needless to say, the wounds were noticeable in the photographs.
• Brittney described how the wounds on her face had healed such that she had a walnut-sized "wad of extra flesh . . . inside [her] mouth."
• Brittney testified that, because a portion of her facial "muscle tissue [wa]s not working correctly" after Jake's attack, her "smile slant[ed] downward."
• Photographs admitted into evidence captured and confirmed the asymmetry of Brittney's smile.
• Perhaps most importantly, the jury saw Brittney testify in person without makeup, so it was able to gauge the severity of her facial deformity based on its firsthand observation.
Brittney had been just 28 years old at the time of Jake's attack, and there was evidence that her facial deformity was effectively permanent. Cf. SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 252-53 (Tex. App.-Texarkana 2005, no pet.) (suggesting remittitur of past-disfigurement damages to $100,000 when "the duration of the disfigurement . . . was only four days" before death but photographs showed "significant swelling, distortion, and discoloration of [the decedent's] face and hands" after falling). She told the jury that, although her surgeons had discussed the possibility of a corrective surgery, they estimated "a fifty-fifty shot of it healing better or it could heal worse," so Brittney was not planning to pursue the surgery.
The jury's $500,000 and $100,000 disfigurement awards were not significantly larger than those approved in other cases involving prominent deformities. See Werner, 2021 WL 1134387, at *8 ("Even though each case must be judged on its own unique facts, it is proper to consider other approved awards in similar cases to determine if an award for pain and suffering is excessive."); cf. Diamond Offshore Servs. Ltd. v. Williams, 510 S.W.3d 57, 76-77 (Tex. App.-Houston [1st Dist.] 2015) (affirming $575,000 for disfigurement when injured employee bore scars on back from surgeries and suffered nerve damage that caused him to walk with a limp), rev'd on other grounds, 542 S.W.3d 539 (Tex. 2018); Rentech Steel, L.L.C. v. Teel, 299 S.W.3d 155, 165 (Tex. App.- Eastland 2009, pet. dism'd) (affirming $1.5 million for past disfigurement and $50,000 for future disfigurement-in addition to awards for pain, suffering, and impairment- when plaintiff suffered bilateral hand injuries and jury saw photographs of hands and of other skin-graft scars). And given the "inherent indeterminacy" of disfigurement awards and the evidence presented-evidence that Brittney's deformity was on her face; that it had been conspicuous while the wounds were healing; that it remained noticeable after it had scarred; that it rendered her smile asymmetrical; that it altered the inside of her mouth; and that it was permanent-we cannot say that the $500,000 and $100,000 awards were manifestly unjust or that they did not "fairly and reasonably compensate" Brittney. See Gregory, 670 S.W.3d at 555 (plurality op.); Bennett, 525 S.W.3d at 648. The Herchmans' challenges to these awards fail.
3. Physical Pain and Mental Anguish
Next, the Herchmans challenge the jury's awards of $800,000 for Brittney's past physical pain and mental anguish and $400,000 for her future physical pain and mental anguish.
"The presence or absence of pain, either physical or mental, is an inherently subjective question," and thus "largely depend[s] on the plaintiff's word" and on the jury's credibility determinations. Wilson, 2024 WL 1561468, at *6; Turner, 532 S.W.3d at 484 (quoting Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 551 (Tex. App.-Fort Worth 2006, pet. denied) (op. on reh'g)). In addition to a plaintiff's testimony, evidence of a severe injury will support an inference that the plaintiff experienced pain and suffering. Gen. Motors Corp., 203 S.W.3d at 552. To establish mental anguish, meanwhile, a plaintiff must show-through her testimony or otherwise-the "nature, duration, and severity" of her anguish, demonstrating that it has "caused a substantial disruption in [her] daily routine or a high degree of mental pain and distress." Gregory, 670 S.W.3d at 555 (plurality op.); Boxer Prop. Mgmt., 2024 WL 3282541, at *29; Wilson, 2024 WL 1561468, at *7.
Here, the Herchmans claim that the $800,000 and $400,000 awards overcompensate Brittney. According to them, Brittney's "testimony regarding actual physical pain was that it lasted less than a month," and "the crux of [her mental-anguish] evidence . . . [was] that her son occasionally asks her about the scar." But this is an exaggeration of the record, and it overlooks Brittney's testimony to the contrary-testimony that, again, the jury was entitled to believe. See Wilson, 2024 WL 1561468, at *6-7 (stating that physical pain and mental anguish damages "turn[] on the plaintiff's credibility-the evaluation of which lies solely with the jury").
The Herchmans have not cited anywhere in the record where Brittney testified that her "physical pain . . . lasted less than a month."
Brittney testified to the physical pain that she had suffered as a result of Jake's attack:
• At the time of Jake's attack, the bites bled so much that, when Brittney saw the amount of blood she was losing, she fainted.
• Jake's bites were sufficiently severe as to cause nerve damage to Brittney's face. Brittney's medical records reflect that one of the wounds "almost completely penetrate[d] through [her] cheek." [Capitalization altered.]
• When Brittney was discharged from the hospital after the attack, she was prescribed hydrocodone.
• Brittney was awake for the 149 stitches to her face, which were done in "three different layers." She recalled being "extremely nauseous" during the procedure
such that the surgeon "kept having to take breaks because [Brittney] was almost going to throw up."
• Brittney's stitches were in place for three weeks, but it was not a seamless healing process; she developed an infection "a couple of days after the stitches" and required antibiotics.
• Brittney described how, in the weeks after the attack, it "hurt to open [her] mouth."
• Brittney stated that scar tissue from the stitches left "a wad of extra ¶esh . . . inside [her] mouth" the size of "a walnut." Although six years had passed by the time of trial, Brittney testified that she continued to accidentally bite the "wad" of tissue, causing it to bleed and leaving her with ulcers in her mouth.
Brittney also described the mental toll that Jake's attack had taken and continued to take on her:
• She stated that she had "really loved dogs" before the attack but that, after the incident, she "became so afraid of dogs."
• She recalled how, a few years after the attack, a random dog had jumped out of the back of a truck at a gas station and had been "snarling and trying to attack [her]," and she had "got[ten] on the ground, curled up in a ball[,] and was screaming and crying."
• Brittney opened up about how "ugly" and self-conscious her scarring made her feel. She stated that, after the attack, she began changing her positioning or clothing to cover the scarring, often donning a hat, wearing her hair down, turning her face, or standing to one side in photographs.
• She testified that she continued to worry that people would think her "scar face" looked like "Frankenstein" because, in her words, "it doesn't look normal."
• Brittney testified that, because her "smile slants downward," she "do[es]n't smile" and "tr[ies] not to smile with [her] teeth in pictures."
• Brittney explained that she had taken numerous makeup classes to "try to cover [the scarring] as much as [she] c[ould]," and that-even six years after Jake's
attack-she "still think[s] about it every day, especially when [she is] putting on [her] makeup and thinking about how much makeup [she] ha[s] to put on to cover it up or make it look less puckered and red."
• Brittney described how she has "bigger holes [on her face] where the threading came out" from her stitches, how the holes frequently fill "full of bacteria and makeup and debris," and how the bacteria causes her scarring to become "angry" and "get blackheads." She stated that, because "[s]car tissue doesn't heal the same as other skin," it can take up to two weeks for her scarring to heal from a breakout.
• Brittney explained that, because she was self-conscious about her scarring and wanted to look her best on social media, she felt the need to airbrush her photographs before posting them online. She estimated that she spent about "25, 30 minutes" per photograph airbrushing out her scarring.
Additionally, as already noted, Brittney confirmed that her scars-and the wad of flesh, the ulcers, and the mental anguish accompanying them-were permanent. Brittney's counsel encouraged the jury to consider this in awarding damages for physical pain and mental anguish, emphasizing that Brittney would be "looking in the mirror every single day" knowing she would never look the same.
The $800,000 and $400,000 awards were not outlandish in comparison to other approved pain-and-anguish awards for similarly prominent, permanent injuries. See Turner, 532 S.W.3d at 484-86 (affirming jury's award of $350,000 for future physical pain and mental anguish when dog bit plaintiff's leg, damaging veins and resulting in persistent leg swelling and pain); Diamond Offshore Servs., 510 S.W.3d at 79-80 (affirming $3.4 million for future pain and mental anguish when mechanic's back injury caused pain, limp, and depression); Rentech Steel, 299 S.W.3d at 165-66 (affirming $1.75 million for past mental anguish and $300,000 for future-in addition to damages for pain-when plaintiff suffered bilateral hand injuries and experienced depression and painkiller addiction); see also Gibbins v. Berlin, 162 S.W.3d 335, 344-45 (Tex. App.-Fort Worth 2005, no pet.) (affirming $100,000 award for future pain and mental anguish when assault left plaintiff with "a 'sloppy' smile"). While the awards were certainly significant, they reflected the combined sums for two types of damages-physical pain and mental anguish-both of which were "almost entirely subjective," making the jury's role in assessing such damages "paramount." Wilson, 2024 WL 1561468, at *7 (reviewing zero-damages award for pain and mental anguish). And based on the extensive evidence of Brittney's nauseating physical pain after the attack; the complications from her wound healing; the ongoing ulcers she suffered; her newfound fear of dogs; her reluctance to smile; and the self-consciousness she experienced on a daily basis as a young woman inflicted with a noticeable, permanent facial deformity, the awards were within the range of the jury's broad discretion. See Stone, 2023 WL 5766076, at *3 ("[T]he more subjective the damages alleged, the more deference we give to jury findings on those damages."). The Herchmans' challenges to these awards fail.
4. Physical Impairment
The Herchmans' final sufficiency challenge takes issue with the jury's award of $100,000 for Brittney's past physical impairment and $100,000 for her future physical impairment.
Physical-impairment damages compensate a plaintiff for "the loss of the injured party's former lifestyle" to the extent that such injuries "are distinct from, or extend beyond, injuries compensable through other damage elements" and "had a 'substantial' effect" on the plaintiff. Id. at *4. The Herchmans claim that Brittney did not suffer any impairment distinct from her mental anguish and physical disfigurement. According to them, "[t]he only evidence of physical impairment was that [Brittney] occasionally bites the inside of her cheek and [wa]s self-conscious of her smile-but this [wa]s not separate from her mental anguish damages claim [so it was] not evidence of an actual physical impairment."
But once again, the Herchmans overlook contrary evidence that the jury was entitled to credit:
• Brittney testified that, for several weeks after the attack, she "couldn't really wash [her] face that well," and she could not eat solid food.
• At the time of trial six years after the attack, Brittney continued to experience "numbness" such that she "c[ould not] feel the skin" on part of her face.
• Brittney testified that her scarring causes her to drool if she sleeps on her right side and that the drooling leaves her lips chapped and prone to cuts.
• Brittney stated that, because of the walnut-sized "wad of extra flesh . . . inside [her] mouth," she has had to change the way she eats to avoid biting the extra tissue, chewing slowly and carefully on the relevant side of her mouth.
Brittney's counsel discussed these impairments in closing argument, reminding the jury of "all the things that [Brittney] can't do now that [she] used to be able to," including Brittney's "very careful chewing" and how "her sleep has changed." Contrary to the Herchmans' contentions, these impairments were distinct from the physical disfigurement, physical pain, and mental anguish that Brittney had suffered. Yet, the Herchmans do not identify any other reason why they believe the physical-impairment damages require reversal.
Indeed, the $100,000 awards for past and future impairment were not excessive in light of other approved impairment awards. See Diamond Offshore Servs., 510 S.W.3d at 80 (affirming $1.7 million for future physical impairment-in addition to damages for disfigurement, pain, and mental anguish-when rig worker described hobbies he could no longer engage in after back injury); Rentech Steel, 299 S.W.3d at 165-66 (affirming $2 million for past impairment and $1 million for future-in addition to awards for pain, suffering, and disfigurement-when plaintiff suffered bilateral hand injuries that limited his ability to write and rendered him "unable to do many everyday tasks like open a water bottle"); SunBridge Healthcare, 160 S.W.3d at 253 (suggesting remittitur of past-impairment damages to approximately $100,000 when impairment lasted just four days before death but decedent was "deprived of her ability to communicate or function in any meaningful manner" for those four days). And given the credible evidence of Brittney's physical impairment, we cannot say that these awards were manifestly unjust or unreasonably compensated her for the permanent changes to her lifestyle. Cf. Stone, 2023 WL 5766076, at *5 (affirming lack of impairment damages in dog-bite case in part because evidence "was predominantly made up of [the appellant's] own testimony-which the jury, as the sole judge of a witness's credibility, was free to disbelieve" so jury's finding was not "clearly wrong [or] unjust"). The impairment awards were within the jury's discretion.
Having rejected the Herchmans' challenges to each of the damage awards, we overrule their broader factual-sufficiency issue.
III. Evidentiary Rulings
The Herchmans next challenge the trial court's rulings on the admissibility of evidence. Specifically, they take issue with (1) the exclusion of Brittney's medical expenses; (2) the admission of testimony referencing liability insurance; and (3) the admission of testimony from Paul regarding his "personal wealth." None of these complaints were preserved.
To the extent that the Herchmans intend to rely on their motion in limine for preservation purposes, they cannot do so. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 760 (Tex. 2013) (orig. proceeding) (explaining that "a protective limine order alone does not preserve error" and that when "the party that requested the limine order itself introduces the evidence into the record, and then fails to immediately object, . . . the party waives any subsequent alleged error on the point"); Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex. 1986) (op. on reh'g) (holding that "to preserve error as to an improper question asked in contravention of a sustained motion in limine, a timely objection is necessary").
A. Standard of Review
To preserve a complaint regarding the admission or exclusion of evidence, a party must present the trial court with a timely request, objection, or motion that states the specific grounds for the desired ruling (if not apparent from the context), and the party must obtain a ruling. See Tex. R. App. P. 33.1(a); Bushell v. Dean, 803 S.W.2d 711, 711-12 (Tex. 1991) (op. on reh'g) (holding that, because appellant failed to object to admission of testimony, her complaints regarding the testimony "were not before the appellate court for review").
B. Medical Expenses
The Herchmans complain that the trial court excluded their evidence of Brittney's medical expenses, insisting that Brittney's medical bills were relevant. But neither party has cited-nor has this court found-anywhere in the record where the bills were offered and the trial court excluded them as irrelevant. Because the Herchmans failed to offer or obtain a ruling on the evidence they claim should have been admitted, they have not preserved this issue for review. See Tex. R. App. P. 33.1(a)(1) (requiring "a timely request . . . or motion" as "a prerequisite to presenting a complaint for appellate review"); Tex. Dep't of Transp. v. Olson, 980 S.W.2d 890, 896-97 (Tex. App.-Fort Worth 1998, no pet.) (holding challenge to evidence's exclusion not preserved because appellant did not offer the evidence at trial).
The Herchmans point us to their pretrial exhibit lists, which mention Brittney's medical billing records. But the exhibit lists do not reflect a trial court ruling on the admission or exclusion of the bills.
C. Liability Insurance
The Herchmans also complain of Brittney's reference to insurance during her testimony. But the challenged testimony was elicited by the Herchmans' own counsel, and the Herchmans did not object to it. This challenge, like the last one, is not preserved for our review. See Tex. R. App. P. 33.1(a)(1) (requiring "a timely . . . objection" as "a prerequisite to presenting a complaint for appellate review"); Lee v. Boynton, No. 09-98-295 CV, 1999 WL 342780, at *3 (Tex. App.- Beaumont May 27, 1999, no pet.) (per curiam) (not designated for publication) (holding appellant failed to preserve challenge to insurance-related testimony because appellant did not object).
Specifically, Brittney explained that, although she had since been bitten by a second dog after Jake's attack, she had not sued the second dog's owner because that owner "did not have insurance."
D. Wealth
In their final evidentiary complaint, the Herchmans challenge the admission of testimony regarding Paul's sale of his company, which they characterize as evidence of Paul's wealth. But once again, the Herchmans did not object to the challenged testimony, so the issue is not preserved for our review. See Tex. R. App. P. 33.1. (a)(1); Morrison v. Quarrington, No. 12-22-00302-CV, 2024 WL 2858838, at *21 (Tex. App.-Tyler May 15, 2024, pets. denied) (mem. op. on reh'g) (holding appellant failed to preserve challenge to wealth-related testimony because she failed to object).
In their reply brief, the Herchmans claim that they "brought the[] errors to the attention of the trial court" in an off-the-record "sidebar." But the off-the-record discussion was, as the name implies, off the record. If the Herchmans lodged an objection off the record, that objection was not recorded and did not preserve the objected-to issue for appellate review. See Warrantech Corp. v. Comput. Adapters Servs., Inc., 134 S.W.3d 516, 529 (Tex. App.-Fort Worth 2004, no pet.) (holding challenge to admission of testimony not preserved when appellant made a general objection "followed by an off-the-record bench conference, [which] did not create a record sufficient to preserve the complaint for our review").
Because none of the Herchmans' three challenges to the trial court's evidentiary rulings were preserved, we overrule this issue.
IV. Jury Charge
The Herchmans next complain of the trial court's failure to submit a proportionate-responsibility question in the jury charge and of the corresponding imposition of joint-and-several liability without a supportive jury finding. Once again, though, the Herchmans have failed to preserve this issue.
Moreover, even if the Herchmans had preserved the issue in the trial court, the adequacy of their briefing is questionable. The Herchmans' argument on proportionate responsibility is entirely devoid of any record citations. See Tex. R. App. P. 38.1(i) (requiring an appellant's argument to include "appropriate citations . . . to the record"). "[W]e are not responsible for searching the record for facts that are favorable to the appellant[s'] position," and "[i]n the absence of appropriate record citations . . ., a brief does not present an adequate appellate issue." NexPoint Advisors, L.P. v. United Dev. Funding IV, 674 S.W.3d 437, 446-47 (Tex. App.-Fort Worth 2023, pets. denied) (holding issue inadequately briefed).
To preserve error on a jury-charge issue, the party must object to the charge. See Tex. R. App. P. 33.1(a)(1); Tex.R.Civ.P. 274, 278; King Fisher Marine Serv., L.P. v. Tamez, 443 S.W.3d 838, 843-45 (Tex. 2014). The Herchmans did not object to the lack of a proportionate-responsibility question in the jury charge, so their challenge to the question's omission is not preserved. See Anderson v. Hiley Cars Hurst, LP, No. 02-23-00091-CV, 2024 WL 3195094, at *3 (Tex. App.-Fort Worth June 27, 2024, no pet.) (mem. op.) (holding appellant failed to preserve challenge to charge's conditioning of proportionate-responsibility question on separate question); EYM Diner L.P. v. Yousef, No. 05-19-00636-CV, 2020 WL 6883171, at *11 (Tex. App.- Dallas Nov. 24, 2020, pet. dism'd) (mem. op.) (holding appellants did not preserve objection to party's exclusion from proportionate-responsibility charge instruction); Sears, Roebuck & Co. v. Abell, 157 S.W.3d 886, 891-93 (Tex. App.-El Paso 2005, pets. denied) (holding defendant waived complaint regarding lack of proportionate-responsibility question by failing to submit question or object to its absence in the charge).
Within their jury-charge issue, the Herchmans contend that, absent a jury finding on proportionate responsibility, there was no legal basis for the trial court to hold them jointly and severally liable for the judgment. To the extent that the Herchmans intend to raise this as a separate appellate issue, and putting aside their briefing deficiencies, see supra note 14, the imposition of joint and several liability was not erroneous. Texas has long recognized that, "[w]here the tortious acts of two or more wrongdoers join to produce an indivisible injury, . . . all of the wrongdoers will be held jointly and severally liable for the entire damages." Landers v. E. Tex. Salt Water Disposal Co., 248 S.W.2d 731, 734 (Tex. 1952); see Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984) (noting that plaintiff seeking to recover for defendants' negligence and strict liability had suffered "indivisible injury as a result of the tortious acts of two wrongdoers, [so] she had the option of proceeding to judgment against any one defendant separately or against all in one suit"). Here, the Herchmans were held strictly liable for a single, indivisible injury: Brittney's noneconomic damages from Jake's attack. Although the Herchmans claim that the jury could have apportioned responsibility based on their varying degrees of negligence, they do not address the jury's strict-liability findings, which were independently sufficient to support the judgment. See supra Sections II.B-C.
We overrule the Herchmans' challenge to the jury charge.
V. Interest of Justice
In their final appellate issue, the Herchmans assert that the interest of justice requires a new trial given the totality of the errors complained of-the allegedly "excessive, and perhaps punitive, damages in this case"; the allegedly erroneous evidentiary rulings; and the lack of a proportionate-responsibility question in the jury charge. But as we have already held, the evidence was sufficient to support the damages awarded, and the evidentiary-ruling and jury-charge issues were not preserved. See supra Sections II.D-IV. Unpreserved issues and non-errors do not transform into a preserved, reversible error when combined. See Arreola v. Union Pac. R.R., 657 S.W.3d 789, 825 (Tex. App.-El Paso 2022, no pet.) (holding no cumulative error when court had overruled all of appellant's challenges to individual errors); Univ. of Tex. at Austin v. Hinton, 822 S.W.2d 197, 205 (Tex. App.-Austin 1991, no writ) (similar); Boggus v. Miller, 388 S.W.2d 240, 243 (Tex. App.-Fort Worth 1965, writ ref'd n.r.e.) ("In view of our conclusions to the contrary of [the appellant's] contention that there was any individual error, we also overrule [his] final point which asserts that the 'accumulation of error' was such as deprived him of a fair trial.").
We overrule the Herchmans' final issue.
VI. Conclusion
Having overruled all of the Herchmans' appellate issues, we affirm the judgment. See Tex. R. App. P. 43.2(a).
DISSENTING MEMORANDUM OPINION
Dabney Bassel Justice
I. Introduction
I would sustain Appellants Paul Herchman Jr., Donna Herchman, and Paul (Trace) Herchman III's issue in which they challenge the sufficiency of the evidence to support the finding that the dog had "dangerous propensities abnormal to its class" and the finding of negligence. After reviewing the record and applying the appropriate standards of review, I would hold that the evidence is legally sufficient but factually insufficient to support the jury's dangerous-dog finding and the negligence finding. Therefore, I respectfully dissent and would grant relief by reversing the judgment and remanding the case for a new trial.
I will follow the majority's course in the use of first names. Because the three Appellants share the same last name, I refer to them by their first names. And for consistency, I refer to all of the other witnesses (except the veterinarian) by their first names as well.
The majority opinion provides appropriate background of the facts, so I will move directly to an explanation of why I dissent.
II. Sufficiency of the Evidence
In their first issue, Appellants argue as to the strict-liability claim that "[t]here is legally and factually insufficient evidence that Jake's general character was abnormally dangerous for a dog." As I discuss in more detail below, because there is more than a scintilla of evidence to support the jury's dangerous-dog finding but because the evidence supporting the finding is so weak or is so against the great weight and preponderance of the evidence that the finding is manifestly unjust, I conclude that the evidence is legally sufficient but factually insufficient as to Brittney's strict-liability claim.
Appellants filed a motion for new trial in which they argued that "the evidence is factually insufficient to support the jury's findings in Question 1, which asked whether the dog had dangerous propensities abnormal to its class." At the hearing on the motion for new trial, there was only a brief mention of the legal- and factual-sufficiency challenges to the sufficiency of the evidence; the focus of the hearing was on the joint-and-several liability issue, the evidentiary challenges, and the excess-damages issue.
Additionally, within their first issue, Appellants argue that the negligence finding should be set aside because the evidence is legally and factually insufficient to support the duty, breach, and causation elements of Brittney's negligence claim. Because knowledge of the dog's dangerous propensities comes into play with a negligence claim if the injury occurred where the dog had a right to be-as is the case here because the dog was in the owners' backyard-and because I would hold that there is legally sufficient but factually insufficient evidence to support the dangerous-dog finding, I similarly conclude that there is legally sufficient but factually insufficient evidence as to Brittney's claim against Appellants for negligent handling of an animal.
The majority opinion appropriately sets out the applicable legal- and factual-sufficiency standards of review.
A. Law on Recovering on a Claim of Strict Liability for an Injury by a Dangerous Domesticated Animal
I am not in disagreement with the majority on the standards that apply to the liability questions in issue but set out those standards to lend context to the discussion that follows. To recover on a claim of strict liability for injury by a dangerous domesticated animal, Brittney had to prove (1) that Appellants were owners or possessors of Jake, (2) that Jake had dangerous propensities abnormal to his class, (3) that Appellants knew or had reason to know that Jake had dangerous propensities, and (4) that those propensities were a producing cause of Brittney's injuries. See Marshall v. Ranne, 511 S.W.2d 255, 258 (Tex. 1974) (approving rule in Restatement (First) of Torts § 509 (Am. L. Inst. 1938) that "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 the harm").
Although the suit here was not brought pursuant to the Texas Health & Safety Code, I note that the subchapter on dangerous dogs includes the following helpful definition:
"Dangerous dog" means a dog that[]
(A) makes an unprovoked attack on a person that causes bodily injury and occurs in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own or
(B) commits unprovoked acts in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own and those acts cause a person to reasonably believe that the dog will attack and cause bodily injury to that person.Tex. Health & Safety Code Ann. § 822.041(2); cf. City of Houston v. Jenkins, 363 S.W.3d 808, 816-17 (Tex. App.-Houston [14th Dist.] 2012, pet. denied) (looking to the dangerous-dog statutes in Section 822 of the Texas Health and Safety Code, in addition to Marshall and Section 509 of the Restatement, in determining the scope of the duty in a suit for negligent handling of an animal).
B. Law on Recovering on a Claim for Negligent Handling of an Animal
I borrow from the Austin Court of Appeals's summary of the law on negligent handling of an animal:
"To recover on a claim of negligent handling of an animal, a plaintiff must prove[] (1) the defendant was the owner or possessor of an 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." Thompson v. Curtis, 127 S.W.3d 446, 451 (Tex. App.- Dallas 2004, no pet.). As in any negligence case, the threshold inquiry in a negligent handling case is whether there is a duty. Muela v. Gomez, 343 S.W.3d 491, 497 (Tex. App.-El Paso 2011, no pet.). "Whether a duty exists depends on some degree of proof that the risk of injury from a dog bite is foreseeable, or stated differently, whether the owner had actual or constructive knowledge of the danger presented by the dog. Foreseeability is satisfied by showing a person of ordinary intelligence should have anticipated the danger to others by the actor's negligent behavior." Id. (citations omitted). "A party should not be held responsible for the consequences of an act that cannot be reasonably foreseen, and there is no duty to warn of danger when no danger is anticipated." Labaj v. Van[H]outen, 322 S.W.3d 416, 421 (Tex. App.- Amarillo 2010, pet. denied).Rodriguez v. Reed, No. 03-11-00523-CV, 2013 WL 3186191, at *3 (Tex. App.-Austin June 19, 2013, no pet.) (mem. op.). Moreover, the owner of a domestic animal is not liable for "injuries caused by it in a place where it has a right to be" unless the owner knew or should have known of the vicious or unruly nature of the animal. Jones v. Gill, No. 2-03-298-CV, 2005 WL 503182, at *4 (Tex. App.-Fort Worth Mar. 3, 2005, no pet.) (mem. op.) (collecting cases with this holding).
C. Relevant Evidence
1. Paul's Testimony
Paul testified that Donna's friend knew Tammy Stierwalt, who was Jake's previous owner and the owner of a day care, and mentioned that she wanted to find a new home for a dog. Paul went to Tammy's house to meet Jake. Tammy told him that she had chosen to give up Jake. At trial, Paul was asked, "And did you know that [Jake] had mauled a kid in a day care?" He responded, "No. Maul? I did not." Paul said that Tammy had told him that Jake had bitten someone. Brittney's counsel further questioned Paul on his understanding of the situation involving the child who was bitten:
Q. And [Tammy] told you that the dog [had] bit[ten] the kid and [that the kid] had rips on [his] head and mouth[?]
A. Absolutely not.
Q. Did she tell you that the kid had stitches on [his] face?
A. No.
Q. Did she lie to you? Did she cover that up? Did she say, "Well, it just nipped somebody"?
A. Pretty much that the kid -- this kid got on the dog's back, wrapped his arms and legs around the dog and that the kid was a bit of a problem, and that [the dog], in defense, to get the child off his back, nipped [the child].
Paul's understanding from Tammy was that the child had been bitten on the lip; Tammy did not mention to him that "the rip was on both sides of the lips."
Tammy did not tell Paul that the dog was dangerous. When Brittney's counsel questioned him about whether the dog was abnormal, Paul thought that the dog's behavior toward the child was a normal reaction:
Q. Okay. Would you agree, [Paul], at least with this basic proposition, that a dog that -- whatever a kid does to it -- that bites its face bad enough to leave stitches is not a normal dog?
A. You know, based upon my little dog, who has also nipped at people[,] . . . [a]t that time, my feeling was dogs will defend themselves.
Q. Okay. But we're talking about biting in the face and leaving scars and stitches.
Do you think a dog that does something like that is a normal dog?
A. Well, as I mentioned to you, in defense.
And I wasn't aware of scars and stitches. I had no idea of that.
So I could see a dog wanting to get a small child off its back. I think any dog would probably want to get a child off [its] back.
Paul was also questioned about an incident when Jake had bitten his daughter LeAnn. Paul explained that he was not at home when the incident occurred, but
[i]t was relayed to [him] that [his] daughter, who didn't live there, came in the front door, . . . and she got the dog riled up and got, you know --apparently chasing squirrels or looking for squirrels, which he was kind of, you know, crazy about squirrels. And so then he stood up on her, and then she tried to get him down and slapped at him, and he -- and then she kicked him.
. . . .
. . .
And then when she slapped at him and kicked at him, that --that's when he reacted.
Paul reported the incident, and Jake was quarantined for approximately ten days with animal control in Grapevine. Paul said that there was no dangerous-dog hearing and that he was not required to put up any special signs after this incident.
Paul called Tammy to inform her of the incident and to find out the name of the veterinarian to whom she had previously taken Jake. Brittney's attorney further questioned Paul about what had transpired during the call:
Q. Did Tammy . . . at that point break down and start crying on the phone with you?
A. She did.
Q. And did she tell you -- plead with you: "Put the dog down! Put the dog down! It's already bitten a child; now it's bitten your own daughter! Put the dog down!" Did she say those words?
A. That's not the way I recall it. She said: "Do what you need to do. And if you feel like you need to put the dog down, then I understand."
Paul testified about picking up Jake from animal control and explained why he had decided not to euthanize Jake after this incident:
When I went to pick the dog up and spoke to the keeper and asked him how it went and how he behaved and, you know, that -- what he thought about it and that we were considering, you know, what we needed to do, he said -- he told me -- he said[,] "Well, if you're going to put the dog down, don't do it, because I would like the dog."
Q. Okay. So is that why you didn't put the dog down?
A. You know, we were considering what to do after that. And I was certainly considering that. That's why I called the vet and spoke --you know, spoke to the vet. We talked to, you know, the place where he was groomed and where they -- you know, when they would go out of town -- for years. . . . And I talked to the animal control person as well, and . . . his closing comment to me was if we were going to consider that, that he would like us to consider letting him take the dog[] because he thought the dog was a good dog.
Paul said that after Jake bit his daughter, they "were more careful" and tried "to keep him isolated." If they had a guest that Jake was unfamiliar with, they tried to put him in the backyard or tried to keep him calm.
With regard to the incident involving Brittney, Paul was not at home when the incident occurred. Paul's understanding was that Brittney was on a bench, that she had reached over Jake to grab her wine glass, and that Jake had bitten her. Brittney's counsel used the phrasing "that she was 'savagely mauled in the face,'" but Paul disagreed with that characterization. Paul said, "She was bitten. I don't know, you know, mauled. It was not good." When Trace called and told him that Jake had bitten Brittney in the face, Paul told Trace to take her to the emergency room. Paul also told Trace to call the city and have them pick up Jake to be euthanized.
Brittney's counsel questioned Paul about whether Jake, who had "sent three people to the hospital," was abnormally dangerous. Paul agreed that the three incidents were not normal, but he did not agree that the incidents made Jake abnormally dangerous.
2. Trace's Testimony
When Trace was asked whether he had observed Jake to be aggressive toward any individuals, he said that Jake had barked at delivery men and squirrels but that he had not shown aggression toward any guests. Trace had taken Jake on walks and said that "he was pretty good on walks" and did not bark at other dogs. Trace had never seen Jake bite their smaller dog Lexi or be aggressive toward her. No one had ever expressed to Trace that Jake was dangerous.
Trace testified that he was dating Brittney at the time of the dog-biting incident. On the night in question, they went out on a date and then came to Trace's parents' house where he was staying at the time. They got a bottle of wine and went outside. They sat on a bench on the patio with Brittney's head at one end and her feet in Trace's lap on the other end of the bench. Trace said that they had been petting Jake while they sat on the patio and that Jake had been going back and forth between sleeping by Trace's feet and putting his head in Trace's lap. Jake did not show any aggression toward Brittney; he did not bark or growl at her. Trace explained that right before Jake bit Brittney, she reached for her wine glass. Trace testified that he did not "think that there was any provocation except for maybe moving a little too quickly and startling the dog." When asked whether the dog went after Brittney's face, Trace said, "It was very fast. And he went after the first -- closest object."
Trace could not recall how long they had been at the house before the incident happened but said that they "had not just arrived."
Trace was aware that Jake had bitten his sister before he had bitten Brittney. Trace did not agree that Jake had attacked his sister's friend when she came in the house. Instead, Trace believed that Jake had jumped on his sister's friend (prior to his sister's pushing and kicking Jake to get him off her friend) because he was excited; Trace did not believe that Jake's behavior was violent or aggressive. Trace had spoken with his sister, who had taken full responsibility for her actions and believed that the bite was her fault. Trace thought that Jake's response was not abnormal for the way that he had been treated by his sister; he explained that his sister had "used force to get the dog off in an unreasonable manner . . . and that the dog [had] reacted."
3. Donna's Testimony
Donna said that when Tammy had brought Jake to the Herchman home for a visit, she had told her about the dog bite that had occurred at her day care:
[S]he had had a rambunctious three-year-old child who had been there the entire time, she had raised Jake from a puppy for five years, and that he had jumped on the back -- on Jake's back and [had] pulled his ears and [had] wrapped his legs [around Jake] and [had] tried to ride him.
Q. Did she tell you that Jake had bitten a child in the face and --
A. Yes.
Q. -- left scars?
A. She said he turned around and bit the child on the lip.
Q. Did she tell you it was on both sides or it was also above his ears --
A. She never said anything to me that day about anything on the head. It was a bite on the lip.
Donna testified about the second biting incident, which involved her daughter. When asked if it was her understanding that her daughter LeAnn was protecting her friend from being attacked by Jake, she explained what she knew about the event:
My understanding is that
Well, for one thing, I didn't see it. I was in the shower and did not hear anything.
And he had curled up outside my door.
I did not know my daughter and her roommate -- They both lived in Dallas. I did not know they were coming to the home at all. It was a Sunday afternoon.
What she has told me, since I didn't witness it, was that . . . she and [her friend] McKenzie came in the door. She wanted to show McKenzie Jake's tricks, which were basically run through our doggy door that we had had inserted in our glass door and tell him to "Go get the squirrels!" and then come back in, "Go get the squirrels!" and come back in. And that was -- He didn't bring squirrels in; that was just his running out, running in. And about the third time he came in, he started to jump up on shoulders, no growling, no nothing, and she pushed him away -- on McKenzie's shoulders. She just pushed him -- with her hand -- away.
Q. Did you know that she -- your daughter -- kicked the dog?
A. This is what -- She pushed him away. He bit her. So to get --While -- Since she was being bit, she kicked him in the chest to get him back, and then he stopped and -- No. Then he bit her again in the arm, I believe -- I think it was here first and then maybe her arm -- and then stopped. And when they ran out the door, he came back and curled up at my bedroom door. That's when my phone was ringing[,] and I came out and saw him there. They were outside.
Donna summarized that LeAnn had pushed Jake so that he would not jump on McKenzie's shoulders and that he had bitten LeAnn's hand; LeAnn then kicked him in the chest, and he bit her arm. LeAnn told Donna that she had gotten Jake "totally riled up" but that he was not about to bite McKenzie; instead, "[h]e had just run back in and [had] tried to jump up on her shoulders or was going up to jump on her shoulders."
Brittney's counsel questioned Donna about whether she considered Jake's behavior to be abnormally dangerous in light of the second bite:
Q. Okay. But at least at this point, you know that this dog has some kind of trigger and there's something that's abnormal about the dog. Would you agree?
A. At this point, yes, I will say there was something abnormal.
Q. It's abnormally dangerous, and you don't know exactly what triggers it. Fair to say?
A. Well, it seems like -- What I knew at the time was, from a little boy jumping on him and then my daughter aggressively slapping him away, --
Q. Okay.
A. -- if that's triggers, yes.
Q. Would you agree that that's not normal: for a dog to react by biting the way that this dog did?
A. I guess it would depend on the dog. I know our little -- I know our little dog maybe nipped before, but her teeth were this big. So that's a bigger dog. And I don't know that it's abnormal.
Q. Well, a little dog is not very dangerous[] because it has little-bitty teeth, right?
A. Right.
And a bigger dog is dangerous[] because it has bigger teeth.
Q. So if you have a bigger dog that has bigger jaws, bigger teeth, it can do a lot more damage, right?
A. Right. But I'm not saying it's abnormal.
. . . .
Q. Okay. So don't you think that that makes this dog abnormally dangerous?
A. Yes. After those incidences, I would -- I mean, "abnormally dangerous"? "Cautious" is what I would say with the dog.
Q. Okay. You knew you had to be cautious and careful with this dog because it was at least unpredictable, right?
A. Right. Cautious and smart.
As for how they had handled Jake after the incident with LeAnn and her roommate, Donna said that they started putting him outside if they knew a repairman or someone they did not know well was coming over; they did not just let him run to the door and greet people.
Donna said that Jake interacted well with all their friends.
Donna was recalled during the defense's case in chief. She testified about various photos that showed Jake with different people. Donna described Jake as a lapdog who always wanted to be petted, and she said that despite the size difference between Jake and their Maltipoo Lexi, Lexi was the alpha dog. Donna said that a woman who was like a daughter to her had brought her young daughters over on the weekends "a lot," and a photo was admitted into evidence showing one of the girls holding the leash for Jake and Lexi while they were on a walk. Donna testified that if she had any concerns about whether Jake or Lexi would have been safe around the children, she would not have had them around the girls. She said that Paul would often tether the dogs in the front yard while he did yard work and that Jake did not show any aggression (e.g., growl, snarl, or bark viciously) if someone approached. Donna agreed that Jake would bark at delivery people, but she said that "Lexi was the mo[re] active barker of the two." A video was introduced during which LeAnn yelled "Go get the duck!"-similar to the incident in which she had told Jake, "Go get the squirrel!" and had been bitten-and it showed that Lexi was the "lead barker" and that Jake stood calmly, never pulled on the leash, and only barked a few times.
The photo did not have a date on it, and Donna did not know when it was taken, but she believed that the young girl had probably been around Jake after the second bite.
Appellants' counsel asked Donna if she recalled that after LeAnn was bitten by Jake, Paul had contacted the vet that Tammy had used. Donna said that she did and that afterwards, from what she could remember, Paul said that the vet had said that Jake was a fear biter and that they should probably get him neutered because that would help. Donna recalled that they had gotten Jake from Tammy in May 2012; that he had bitten LeAnn on August 12, 2012; and that he was neutered on August 23, 2012, after he completed his time in quarantine.
4. Tammy's Testimony
Tammy testified that she had Jake in her home for over five years and that he "grew up with all the children in [her] day care, with multiple people in and out of [her] house." She said that he was always a well-behaved dog and had played with the kids during recess. She said that in the mornings when kids were being dropped off, she would tell Jake, "Place," and he would go to his place and stay there until he was released.
Brittney's counsel questioned Tammy about an incident in which Jake had chased a friend of hers to his truck and ripped his shorts, causing the man to jump into his truck. When Appellants' counsel explored this incident in more detail, Tammy said that the man's children attended her day care and that he was a regular visitor. She explained that what was different on the day this incident occurred was that the man had come to the door wearing a ball cap and very dark sunglasses; the children answered the door before she did; and "Jake didn't recognize him" and gave chase. She called Jake, and he immediately came back into the house. When the man came back to the door to pick up his children, Tammy apologized profusely, and the man said, "Don't apologize. Your dog did exactly what I would have wanted my dog to do. Your dog was protecting my child in your care."
There is no indication in the record that Appellants knew of this incident.
Brittney's counsel also questioned Tammy about the incident in which Jake had bitten a three- or four-year-old boy at her day care. She said that
[t]he child had gotten on top of [Jake's] back and [had] wrapped his legs around his stomach area and his arms around his back -- his neck and was riding him like a horse. But from what his -- The child who was bit, his older sister was also in my care, and she said that the little boy would not get off his back; and Jake was bucking like a horse trying to get him off, but he couldn't shake him off of his back; the little boy would not release.She explained that the boy had rips on both sides of his mouth, which required stitches, and a small cut above his ear. Tammy reported the incident to the state regulatory agency that governed her day care, and they said that she did "not have to get rid of the dog because the mother admitted that her child had done wrong[ and] because she [had] talked to her older daughter as well and the daughter [had] explained what had occurred." The regulatory agency did not make Tammy close her day care for even one day. Tammy said that no one-not the vet, the state regulatory agency, the city, or anyone else-had told her that she needed to euthanize Jake after the child had been bitten. Instead, the people who worked at animal control fell in love with Jake while he was in quarantine and told her that when she picked him up. However, the event was traumatic to her and caused her to find a new home for Jake, close her day care, and pursue a new career in sales.
Tammy said that after Jake had bitten Paul's daughter, Paul called her. When she heard about that bite, she began sobbing because she was upset that Jake had bitten and had hurt someone. When asked whether she had told Paul, "Put the dog down! Put it down! It's already bitten a child; now it's bitten your own daughter! Put the dog down!" she responded, "When emotions were high, yes, I did."
Sometime later when Tammy took one of her other dogs to the vet, the vet told her that he had been contacted by Paul. The vet told her that the conversation was
regarding Jake's temperament and that Jake was not an aggressive dog, but that he was a fear biter, and that he's either, you know, fight or flight. That's typical with animals. If they're scared, they're either going to run[,] or they're going to react. And he was a "react."
. . . .
Q. . . . Did the vet indicate to you in that conversation by implication that he did not tell [Paul] to put the -- the dog down?
A. I don't -- It's been so many years, I don't remember exactly if my vet recommended that he put him down. I do not remember that.
Q. Do you remember if the vet told you that he told [Paul] to get the dog fixed?
A. Yes. My vet did say that.
Q. In fact, you had -- you had made the same recommendation to [Paul] after he called you, correct?
A. I had asked if he had him fixed.
Q. Okay. . . . Certainly you would agree that if the vet said[,] "I told [Paul] to get the dog fixed," that would imply not putting the dog down, correct?
A. That is correct.
On redirect examination, Brittney's counsel attempted to get the name of the boy who had been bitten at her day care. Brittney's counsel also made assumptions about what had happened to the boy who was bitten, but Tammy corrected him, saying that she was not aware of scarring and that she had only assumed that he had received stitches:
Q. This child, he was scarred badly enough that it traumatized you to the point that you closed down your day care. Is it surprising to you that you don't remember the child's name?
A. No.
I don't -- I don't know what you're -- what you're implying here.
When you say he was scarred, he was bit[ten]. I never saw the child after that day. I don't know how his scars were.
Is that what you're --
Q. Well, he had stitches.
A. I'm assuming he had to have stitches.
5. The Veterinarian's Testimony
Dr. Bruce Fusselman testified that he had seen Jake when Jake lived with Tammy. Brittney's counsel asked about the incident involving the child who was bitten at Tammy's day care, but due to the time that had elapsed, he did not remember the dog and could only assume that "it had to be this dog":
Q. And did you learn at some point that -- that the dog had mauled a child in her home day care?
A. She was a client back then and had called me that a dog of hers -- that she had had a day care -- had done something to a child. But I wasn't -- My recollection is -- I don't remember which one, but obviously, from what you're saying, it -- it had to be this dog.
Q. This is many years ago; is that right?
A. Many. Last time, apparently, I saw the dog was 2011.
Although Dr. Fusselman had reviewed his records and found Jake listed under Tammy's last name, he said that the records provided only "computer information as to what services were provided [to] the dog"; he did not have information on Jake's demeanor. Without such information or any specific recollection of Jake, Dr. Fusselman did not provide any testimony related to any specific behavior or demeanor that he had observed in Jake. As to Jake's breed, Dr. Fusselman confirmed that a Goldendoodle is a cross between a Golden Retriever and a Standard Poodle and claimed generally that "many of these dogs [Goldendoodles] are not getting th[e] benefit of the temperament" of a Golden Retriever.
According to Dr. Fusselman, regardless of what the child did to the dog prior to the incident, he would consider the dog to be abnormally dangerous. Dr. Fusselman's belief was that a dog that bites a child's face does not have a disposition that can be fixed and that it should be euthanized. Dr. Fusselman testified that it would not have been his recommendation to neuter the dog because it would not change the dog's behavior. Dr. Fusselman, however, admitted that he did not recall having a conversation with Paul about this. Dr. Fusselman claimed that if he had received a call from Paul regarding a second attack, his recommendation would have been to euthanize the dog.
On cross-examination, Appellants' counsel questioned Dr. Fusselman about whether Paul's and Tammy's testimony about his prior recommendation to neuter was a lie:
Q. Okay. So in ten years -- the ten years that it's been since 2011, if we do the math[ of your seeing approximately 1,500 animals per year], that's 15,000 patients that you've interacted with -- ballpark -- correct?
A. Possibly more.
Q. And if the testimony in this case by Tammy . . . is that she talked to you and you told her that you told [Paul] to get the dog fixed, and if [Paul] testified that he [had] spoke[n] with you and you [had] told him to get the dog fixed, you would agree that that's one conversation that they remember about one dog rather than trying to remember something about 15,000 dogs, correct?
A. If -- If they say I had that conversation with -- with them, I --I very possibly could have.
Q. Okay. You're certainly not saying that -- If both Tammy . . . and Paul . . . said that you told them to -- that -- that you had told [Paul] that the dog needed to be fixed, you're not saying that either one of them is lying or that their memory is inaccurate, correct?
A. No, sir.
. . . .
Q. Do you remember telling [Tammy] that you told [Paul] that dogs fall into the category of "fight" or "flight" and that Jake was a -- a fear biter?
A. I guess I'm at a loss.
I -- I do not recall any ownership of this dog other than Tammy . . . .
Q. And -- And so you also don't recall telling [Paul] that Jake was a fear biter?
A. I do not recall that.
. . . .
Q. But, again, with -- with regard to the comment and the testimony in this case that you said that Jake was a fear biter, if Tammy . . . testified that that's what you told her, you're not disagreeing with her testimony or saying that she's wrong or remembering that conversation incorrectly, are you?
A. No, sir.
Q. And if [Paul's] testimony is that you specifically told him that Jake was a fear biter, you're not saying that [Paul] is wrong or is misremembering the conversation, correct?
A. No, sir.
Q. That is correct?
A. That is correct.
Q. You just don't remember the conversation.
A. That is correct.
Appellants' counsel asked whether Dr. Fusselman recalled an incident of the child's being bitten, and he said that he recalled that one of Tammy's dogs had bitten a child who was in her day care, but he could "only assume that it was this dog we're talking about." He did not know any of the details about that bite. Appellants' counsel supplied some of the details and questioned Dr. Fusselman further about his opinion on whether Jake's behavior was abnormal:
Q. In either one of those conversations[ when you met with Brittney's counsel after you were subpoenaed], did he tell you what happened when that child got bit, the child that was under [Tammy's] care?
A. He used the phrase "a mauling of the face."
Q. Did he explain to you the -- the child had climbed onto Jake's back, had wrapped his arms around Jake's neck and had wrapped his legs around Jake's body and was riding Jake like a horse?
A. That was not shared with me.
Q. You think that it should have been shared with you? That would make a difference in your opinion, wouldn't it?
A. Not entirely.
Q. Okay. Do you think that it's abnormal for a dog who has a child who has climbed on his back, that's holding onto his neck and has his legs wrapped around his body -- do you think that it's abnormal for a dog in that situation to be afraid?
A. Dogs have such a variety of individual -- individual personalities. I -- How each one responds is totally individual.
[APPELLANTS' COUNSEL]: I object as nonresponsive.
THE COURT: I'll sustain the objection.
If you would, just listen to the question and --
. . . .
THE COURT: -- answer the question, and then he'll give you the next question. Thank you.
Q. . . . My question is: It would not be abnormal for a dog who has a child on his back for that dog to be afraid, would it?
A. That is possible.
. . . .
Q. That in and of itself -- A dog who has a child on his back, who is trying to get away and bites the child, that would not make that dog in and of itself abnormally dangerous, would it?
A. If the dog nipped the child and sought to run away, that would be the typical response I think most dogs would give.
Appellants' counsel also questioned Dr. Fusselman about Jake's response to being slapped and kicked by the Herchmans' daughter:
Q. And if -- if a dog was --
You understand that dogs can get riled up, wound up playing, correct?
A. Yes, sir.
Q. Okay. And if a dog got riled up playing and then was slapped and kicked, it would not be abnormal for that dog to be afraid, would it?
A. Yes, sir.
Q. Okay. And -- And I think we can agree -- You would certainly agree that a dog shouldn't be kicked, correct?
A. No, sir.
Q. And a dog shouldn't be hit at, correct?
A. No, sir.
Q. And if a dog who is used to being petted and snuggled is hit or kicked, that could cause fear in the dog.
A. Yes.
Q. And -- And if that dog in response bit, that would not be an abnormal reaction, correct? It might not be the normal reaction, but it wouldn't be abnormal either.
A. Yes.
On redirect, Brittney's counsel stated that no one had witnessed the attack at the day care but gave his own description of the event and questioned Dr. Fusselman about his opinion on Jake's behavior:
Q. If -- If a dog -- Let's just take the example of the three-year-old [boy] in the day care that nobody actually witnessed being attacked -- but let's just say that the dog had ripped both sides of the kid's face to where he had stitches going down both sides of his lip and obviously bit at least twice because the kid also had wounds on [his] head. Would you regard that as an attack or a nip or a defensive bite?
A. That sounds like an attack.
Q. And it's not normal for any dog to attack a child no matter what the child did to it; would you agree with that?
A. As a society, we don't call that normal.
Brittney's counsel also allowed Dr. Fusselman to reiterate his stance on how neutering would not correct aggressive behavior:
Q. Now, the whole business about the conversation with the Herchmans and you said that you couldn't disagree, you don't remember the conversation at all, do you?
A. I do not specifically.
Q. If you had --
And when I told you about this and what their story was, did you find it very puzzling to hear that they were saying that you recommended neutering?
A. Well, I would say this: 80, 90 percent plus of -- of my patients are neutered. So for me to recommend neutering is pretty standard procedure. But to say that neutering is going to somehow change and --and correct an aggressive behavior in a dog, I would never give an indication that that's the likelihood.
Q. So in other words, you can't disagree if -- if there is a comment saying that you recommended neutering; but what you can strongly disagree with is anybody saying that you would have given that advice -- that advice to -- to solve the problem of a dangerous dog. Is that fair?
A. Yes, sir.
Q. Because you -- No matter what -- No matter what you remember or don't remember, you would never give that advice as a solution to a dangerous dog.
A. No, sir.
Q. If you had been told that the dog had actually mauled a child in a day care, biting it repeatedly in the face, leaving wounds on the child after the dog had chased somebody to a truck, ripped his pants, made the guy jump into the truck, and when it went to the new home, the Herchmans' home, had bitten their daughter not once but twice, biting her once leaving a scar that required stitches when she shoved it and kicked it to get it away, it lunged again and latched on and left a J-shaped scar on her forearm that sent her to the hospital, would you have ever given any advice other than this dog needs to be euthanized?
A. No, sir.
Brittney's counsel used this phrasing, but when he had questioned Paul about "the family joke . . . that the dog [had] left its initials" and that LeAnn had "a big J-shaped scar," Paul said that he had never heard that and did not recall the shape of her scar. Similarly, Donna did not confirm the shape of LeAnn's scar; she said that LeAnn "has a massive scar across her arm from childhood surgery." Only Brittney testified that Jake's bite had left a "'J' mark" on LeAnn's arm.
D. Sufficiency Analysis of Strict-Liability Claim
1. Legal-Sufficiency Analysis
As explained above, in evaluating the legal sufficiency of the evidence, I will focus on evidence favorable to the dangerous-dog finding and disregard contrary evidence. A summary of the evidence favorable to the dangerous-dog finding follows:
• The veterinarian testified that no matter what the child at the day care had done to Jake, the veterinarian would have regarded Jake as abnormally dangerous due to the attack on the child;
• The veterinarian believed that a dog who attacks a child should be euthanized;
• The veterinarian also believed that he would have told Paul to euthanize Jake after he had bitten LeAnn;
• Tammy told Paul to euthanize Jake after she learned that he had bitten his daughter;
• Donna said that "there was something abnormal" about Jake after he had bitten LeAnn; and
• Paul agreed that it was not normal for a dog to have "sent three people to the hospital."
Brittney's counsel, who represented her at trial and also represents her on appeal, posed questions to witnesses about whether Jake was abnormally dangerous and consolidated the attack on Brittney with the two prior attacks. Similarly, in Brittney's appellate brief, her counsel argues that "the viciousness of the attack itself" is more than a scintilla of evidence to support a reasonable inference that the dog had dangerous propensities "of which Appellants were aware prior to [Brittney's] mauling." This, however, begs the question of how the unprovoked attack on Brittney would have been foreseeable by Appellants.
Using the legal-sufficiency lens, there is more than a scintilla of evidence that Jake had dangerous propensities abnormal to his class. Cf. Osburn v. Baker, No. 04-19-00568-CV, 2020 WL 2441426, at *2 (Tex. App.-San Antonio May 13, 2020, no pet.) (mem. op.) (holding, in summary-judgment appeal, that there was more than a scintilla of evidence that dog had dangerous propensities abnormal to his breed because dog refused to take commands, was "too playful" to serve as a working dog, was known to be particularly possessive of his family, was leery around strangers, and had nipped at people's ankles and heels); Edmonds v. Cailloux, No. 04-05-00447-CV, 2006 WL 398033, at *2-3 (Tex. App.-San Antonio Feb. 22, 2006, no pet.) (mem. op.) (holding, in summary-judgment appeal, that there was more than a scintilla of evidence to support elements of strict-liability claim because dog had snapped at a person, had run through the house, had knocked down a person on two occasions, had gone "bizzerk" [sic] when it saw birds or squirrels, was unpredictable, and was described as "crazy" and "vicious"). Accordingly, I conclude that the portion of Appellants' first issue challenging the legal sufficiency of the evidence to support the jury's dangerous-dog finding should be overruled.
2. Factual-Sufficiency Analysis
When engaging in a factual-sufficiency analysis, a reviewing court considers and weighs all the pertinent record evidence. So in addition to the evidence set forth in the preceding subsection that was favorable to the dangerous-dog finding, a reviewing court considers and weighs the following:
• With regard to the bite that occurred at the day care, Paul was told by Tammy that Jake had nipped the child to get the child off his back-not that the child had been "mauled," had rips on his head and mouth, and had stitches on his face;
• Paul believed that Jake's behavior toward the child was a normal reaction and thought that "any dog would probably want to get a child off [its] back";
• Similarly, the veterinarian said that if the dog had nipped the child and had sought to run away, "that would be the typical response I think most dogs" would give after a child was on its back;
• The child's mother admitted that "her child had done wrong" by trying to ride the dog like a horse;
• Tammy testified that she never saw the child after the incident, so she had no idea if he had scarring and had only assumed that he had received stitches for his injuries;
• After Tammy reported the incident to the day care's state regulatory agency, she was not required to close her day care for even one day, nor did they require her to get rid of Jake;
• Tammy said that no one-not the vet, the state regulatory agency, the city, or anyone else-had told her that she needed to euthanize Jake after the child had been bitten;
• When Tammy picked up Jake from animal control, the people there said that they had fallen in love with Jake;
• The photos admitted into evidence demonstrated that while Jake was in Appellants' care, he had been around numerous people, including children, and had not attacked them but rather had acted as a lapdog and always wanted to be petted;
• Jake had not shown aggression toward any guests and interacted well with Paul and Donna's friends;
• Appellants had not been warned by neighbors that Jake had shown aggression or that they feared him;
• When Paul tethered Jake in the front yard while doing lawn work, Jake did not show aggression toward people who approached;
• Although Jake barked at delivery men and squirrels, he "was pretty good on walks" and did not bark at other dogs;
• As between the two dogs in Appellants' household, the Maltipoo Lexi was the alpha dog and the lead barker;
• Jake was not aggressive toward Lexi;
• The evidence demonstrated that LeAnn had taken responsibility for the incident when she was bitten by Jake;
• After LeAnn was bitten, Jake was quarantined for ten days with animal control, but there was no dangerous-dog hearing;
• An animal control employee told Paul not to euthanize Jake because the employee thought that Jake was a good dog and wanted to have him as his pet;
• Paul testified that he had called Tammy after the incident with LeAnn to obtain the name of Jake's prior veterinarian, and Tammy told him to do what he needed to do and that she would understand if he felt like he needed to euthanize the dog;
• According to Donna, the veterinarian had told Paul that Jake was a fear biter and that they needed to get him neutered to help with that;
• Tammy also testified that the veterinarian had told her that he had recommended that Paul get Jake fixed, which would imply not putting the dog down;
• Tammy further testified that the veterinarian had told her that Jake "was not an aggressive dog[] but that he was a fear biter," which was "typical with animals";
• Although Donna believed that there was something abnormal after the second bite involving LeAnn, she did not consider Jake abnormally dangerous;
• The last time that the veterinarian had seen Jake was approximately ten years prior to the trial, and he did not recall which of Tammy's dogs "had done something to a child" but assumed it "had to be this dog";
• Similarly, the veterinarian had no recollection of having a conversation with Paul after Jake had bitten LeAnn;
• The veterinarian testified that he "very possibly could have" told Paul to get the dog fixed after LeAnn's bite;
• The veterinarian agreed that it would not be abnormal for a dog to bite if it were hit and kicked;
• Trace testified that no one had ever expressed to him that Jake was dangerous;
• Trace thought Jake's response to LeAnn's hitting and kicking him was not abnormal;
• Three years elapsed between the time that Jake had responded to LeAnn's hitting and kicking him by biting her and when he had attacked Brittney;
• With regard to Brittney's prior interactions with Jake, the evidence showed that she had been to the house on a prior occasion and had petted Jake without incident, and thus Jake was familiar with her;
• On the night that Brittney was attacked, she and Trace had been at the house for some time petting Jake and drinking wine before the incident;
• The record demonstrates that Jake did not bark or give any warning before he attacked Brittney;
• Trace believed that Brittney's movement in reaching for her wine glass had startled Jake and that he went for the closest object, which was Brittney; and
• When Brittney's counsel questioned Paul about whether Jake (who had, according to Brittney's counsel, "sent three people to the hospital") was abnormally dangerous, Paul did not agree that the incidents made Jake abnormally dangerous, only that the incidents were not normal.
Looking at the whole record, it is clear that the two biting incidents prior to Jake's attack on Brittney were provoked and thus would not have put Appellants on notice that Jake, who was normally not aggressive toward Appellants' friends, was a dangerous dog who was likely to attack Brittney after she had been petting him without incident for some time before the attack occurred. See generally Tex. Health & Safety Code Ann. § 822.041(2) (defining "[d]angerous dog" in terms of unprovoked attacks). Additionally, no dangerous-dog hearing was held after the second quarantine to declare Jake a dangerous dog. Moreover, neither Tammy nor Appellants had been told by animal control or the veterinarian that Jake was abnormally dangerous. Instead, animal control expressed to Tammy after the first bite and to Appellants after the second bite that they loved the dog and did not want him to be put down, and the veterinarian's recommendation following the second bite (as testified to by both Paul and Tammy) was for Jake to be neutered. Paul therefore had both animal control in Grapevine (explicitly) and the veterinarian (implicitly through his recommendation to neuter the dog) tell him not to euthanize the dog after the second bite; thus, it was a reasonable inference that Paul would put more weight in their experience-based recommendations than in Tammy's emotional outburst, during which she told him to put the dog down. Furthermore, the veterinarian's testimony was merely hypothetical as he had no recollection of speaking to Paul and had no personal recollection of Jake because he had not seen him for over ten years and had seen approximately 15,000 animals since then.
I also note that statements were injected into the trial that are not evidence. More than twenty times during the trial-from his opening statement, throughout his questioning of the witnesses, and in his closing argument-Brittney's counsel said that the child at day care was "mauled" by Jake. The record further demonstrates that Brittney's counsel had met with the veterinarian twice about the case after he was subpoenaed and had used the phrase "a mauling of the face" when telling him what had happened to the child at Tammy's day care. Brittney's counsel's statements do not constitute evidence, and such term was not used by Tammy when she described the bite.
After considering and weighing all the pertinent record evidence, I would hold that the evidence supporting the dangerous-dog finding is so weak or is so against the great weight and preponderance of the evidence that the finding is manifestly unjust. Cf. Bowman v. Davidson, No. 06-14-00094-CV, 2015 WL 3988675, at *2, *4-5, *8 (Tex. App.-Texarkana July 1, 2015, no pet.) (mem. op.) (holding evidence factually sufficient to support jury's finding that owners did not have reason to know that their dog had dangerous propensities even though the dog had previously bitten someone who had "moved too fast" and even though "there were clearly red flags" because the dog was very protective of female owner and aggressive toward strangers; veterinarian behaviorist testified that she would not have considered the dog to be dangerous until it had bitten the second person); cf. also Gonzalez v. Ahrens, No. 14-18-00417-CV, 2019 WL 4071925, at *4 (Tex. App.-Houston [14th Dist.] Aug. 29, 2019, no pet.) (mem. op.) (holding evidence factually sufficient to support trial court's implied finding regarding owner's lack of knowledge of pet sheep's dangerous propensities despite evidence that owner knew about his pet's tendency to butt when provoked or agitated). I would therefore sustain the portion of Appellants' first issue challenging the factual sufficiency of the evidence to support the jury's dangerous-dog finding.
E. Sufficiency Analysis of Negligence Claim
1. Legal-Sufficiency Analysis
As set forth in the applicable-law section above, the crux of Brittney's negligent-handling claim is whether the injuries were caused by the animal in a place where it had a right to be. That is the case here: Jake had a right to be in Appellants' backyard at the time of the incident. Brittney therefore was required to show more than a scintilla of evidence that Appellants knew or should have known of Jake's dangerous nature. My analysis therefore turns on the holdings above regarding the sufficiency of the evidence to support the dangerous-dog finding. Because I have held that there is more than a scintilla of evidence to support the jury's dangerous-dog finding, I would likewise hold that there is more than a scintilla of evidence that Appellants knew or should have known of Jake's dangerous nature. Cf. Osburn, 2020 WL 2441426, at *3 (holding that trial court erred by granting a no-evidence summary judgment on a claim for negligent handling of an animal when the evidence showed that the owners knew the way their dog acted around strangers put strangers at risk but they chose to leave their dog loose and, as a result, their dog bit an individual who came to the home to provide a quote). Accordingly, I would overrule the portion of Appellants' first issue challenging the legal sufficiency of the evidence to support the jury's negligence finding.
2. Factual-Sufficiency Analysis
My factual-sufficiency analysis of Brittney's negligent-handling claim similarly turns on the holding above that the evidence is factually insufficient to support the jury's dangerous-dog finding. Appellants were aware that Jake would bite if he were ridden like a horse, hit, or kicked, but up until Jake bit Brittney, they had no knowledge that he would bite without provocation. Without such knowledge, Appellants are not negligent because the injury occurred in their backyard-a location where Jake had a right to be. See Petry v. Gasca, No. A14-93-00433-CV, 1994 WL 132772, at *3 (Tex. App.-Houston [14th Dist.] Apr. 14, 1994, no writ) (not designated for publication) (reversing judgment awarding damages for dog bite because owner could not have reasonably foreseen that the dog would cause injury and therefore had no duty to protect appellee from an unanticipated attack by the dog); cf. Jones, 2005 WL 503182, at *4-5 (collecting cases holding that dog owners were not negligent if the injury occurred where the dog had a right to be and the owner did not have knowledge of the dog's dangerous propensities). I would conclude that the evidence supporting the negligence finding is so weak or is so against the great weight and preponderance of the evidence that the finding is manifestly unjust, and I would sustain the remainder of Appellants' first issue challenging the factual sufficiency of the evidence to support the jury's negligence finding.
For purposes of this analysis, I assume that Brittney's action in reaching for her wine glass was not an attempt to provoke Jake.
III. Conclusion
"We walk a fine line on factual[-]sufficiency review, mindful both of our duty not to merely substitute our judgment for that of the jury while at the same time recognizing that our strong deference to a jury's verdict does not make that verdict totally unreviewable." Cartwright v. Armendariz, 583 S.W.3d 798, 803 (Tex. App.- El Paso 2019, pet. denied). My able colleagues in the majority fall on one side of the line in their conclusion that the evidence is factually sufficient to support the jury's liability findings; I fall on the other side of that line. Thus, I was compelled to detail the testimony and express my dissent. I would overrule Appellants' legal-sufficiency challenge but sustain their factual-sufficiency challenges to Brittany's claims and would, therefore, reverse the judgment and remand the case for a new trial.