Opinion
NO. 01-15-00470-CV
06-02-2016
DANIEL LEON STEIN, Appellant v. JOHN REGER AND SHU W. REGER, Appellees
On Appeal from the 281st District Court Harris County, Texas
Trial Court Case No. 2014-25605
MEMORANDUM OPINION
Daniel Stein sued John and Shu Reger after being bitten by their dog, Bella. The Regers filed motions for summary judgment, which the trial court granted. We affirm.
Background
Stein, a UPS delivery person, walked to the Regers' house to retrieve a package at the Regers' request. For approximately four years before that day, the Regers owned a German Shepherd, Bella, which they kept in a "fenced, confined" area of their yard. They installed the fence when they built a swimming pool in their backyard and expected it to prevent the dogs from escaping if anyone approached their house. John averred in his affidavit that he "inspected the gates before, on the day of, and after the incident" to ensure that they were "closed, locked, and working." He testified that "[t]hey were always in good, functional condition and working properly." Until that day, Bella had never attempted to "jump over or otherwise escape from behind the fence." Both he and his wife, Shu, testified that they "could never have anticipated that Bella may have been able to jump over the fence." Shu also testified that, until the day Stein came to retrieve the package, "Bella had never bitten anyone, jumped on anyone, and/or escaped from behind the gated fence
Stein testified that he previously visited the Regers' property and that, although Bella would bark at him and jump against the fence, she never escaped from the fenced area or jumped the fence. But when Stein arrived to retrieve the package, Bella escaped the fence. According to Stein, Bella "started running towards" him. Stein turned around and started running from the dog, but it bit him several times. Stein was taken by ambulance to a nearby hospital to treat the injuries from the dog bites.
Although Stein's brief claims that he heard the "gate open," Stein testified that he did "not know what—what status of the gate was, if it was opened, if it was closed." An eyewitness saw Bella jump the fence.
Stein sued the Regers for damages, including medical expenses, diminished earnings, mental anguish, physical impairments, and disfigurement under negligence, strict liability, and premises defects causes of action.
The Regers responded by filing two motions for summary judgment to dismiss all three of Stein's causes of action: a traditional motion for summary judgment and a no-evidence motion for summary judgment. The Regers filed their traditional summary judgment motion first and in it argued that (1) the "one bite rule" (that a dog owner must know of a dog's vicious propensity before the owner can be held liable for that dog's bites) barred Stein's suit because the Regers had no prior knowledge of the dog's vicious propensity; (2) they had no legal duty to Stein; (3) if they had a duty to Stein, they did not breach it; and (4) any breach of their duty to Stein was not the proximate cause of his injuries.
A month later, on the same day, the Regers amended their traditional motion and filed a no-evidence motion for summary judgment, which repeated the same arguments as the traditional motion. Both motions requested that the trial court dismiss "all claims" that Stein asserted against them.
The trial court granted both motions. On April 22, the trial court issued an order granting the Regers' no-evidence motion for summary judgment, dismissing Stein's lawsuit, and ordering that "Plaintiff shall take nothing from defendants John Reger and Shu W. Reger." One day later, on April 23, the trial court issued a second order, granting the Regers' traditional motion for summary judgment, dismissing Stein's lawsuit, and ordering, again, that "Plaintiff shall take nothing for Defendants John Reger and Shu W. Reger."
Stein filed a notice of appeal but only appeals the "order signed and entered herein by the [trial court] on April 23, 2015, granting a Motion for Summary Judgment filed in this matter by the defendants . . . ." His notice of appeal did not list the trial court's earlier April 22 order granting the Regers' no-evidence motion for summary judgment.
Jurisdiction
The Regers argue that "this Court lacks jurisdiction to reverse the first judgment dismissing all of Stein's claims with prejudice" because Stein has not appealed that order. According to the Regers, "it does not matter how the Court rules with respect to the second judgment (the only one from which Stein appealed)" because the first summary judgment order still results in a dismissal of all of Stein's claims. Stein argues that, because "there can be only one final judgment in a case," the April 23 order "operates to vacate and replace the April 22 final judgment." And "because the no-evidence judgment was vacated by entry of the traditional judgment, the only issue before this court is the propriety of the traditional summary judgment; this court does not have jurisdiction to consider the no-evidence grounds."
A trial court can enter only one valid final judgment. TEX. R. CIV. P. 301. Generally, if a trial court attempts to enter a second judgment after issuing a final judgment, that second judgment is void. Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 40 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). But that default rule differs if the trial court retained plenary power when it issued the second order: in that circumstance, the second order "is not a nullity" but "is treated as a modified or reformed judgment that implicitly vacates and supersedes the prior judgment, unless the record indicates a contrary intent." SLT Dealer Grp., Ltd. v. AmeriCredit Fin. Servs., Inc., 336 S.W.3d 822, 832 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (emphasis added). Because 30 days had not yet passed after issuing the first order, the trial court had plenary power when, the day after issuing the first order, it issued the second order. See TEX. R. CIV. P. 329b(e) (trial court has plenary power for 30 days).
But the history of the case indicates that the trial court intended to modify—not vacate—the first order granting summary judgment. See SLT Dealer Grp., 336 S.W.3d at 831. The Regers filed their no-evidence motion for summary judgment and their amended traditional motion for summary judgment on the same day. Both motions rely on the same arguments. Stein responded to both motions in a single document. Except for stating the relevant standard for each type of summary judgment, his response does not differentiate between his response to the Regers' arguments in their traditional motion or in their no-evidence motion for summary judgment. Although the trial judge made hand-written modifications to the boilerplate orders granting the motions for summary judgment, the trial judge did not indicate on the April 23 order that she was vacating the April 22 order. Nor does the record provide any indication that some intervening event occurred that caused the trial court to reconsider the grounds on which it granted summary judgment. Cf. id. at 832 (trial court's original order stated that it would be "amended" at later date to include amount of attorney's fees; second order added attorney's fees); Abercia v. Kingvision Pay-Per-View, Ltd., 217 S.W.3d 688, 705 (Tex. App.—El Paso 2007, pet. denied) (party filed motion to modify or reform judgment between first and second "final" order); Wang v. Hsu, 899 S.W.2d 409, 411 (Tex. App.—Houston [14th Dist.] 1995, writ denied) (trial judge wrote that she "set aside" the earlier judgment on second order); Owens-Corning FiberglasCorp. v. Wasiak, 883 S.W.2d 402, 409-11 (Tex. App.—Austin 1994, no writ) (noting that trial court may have issued second order to change date on which post-judgment interest began accruing or because original signature date was incorrect).
Thus, the circumstances suggest that the trial court intended for the April 23 order to incorporate the April 22 order and grant both the traditional and no-evidence motions for summary judgment. Because Stein appeals that April 23 order, incorporating both grounds for summary judgment, we have jurisdiction to address the merits of the trial court's order granting summary judgment under both theories.
Negligence
Stein only challenges the trial court's summary judgment order insofar as it dismisses his negligence cause of action. Stein argues that there "is more than a scintilla of evidence that the Regers were negligent." He argues that he "does not have to prove that the animal was vicious or dangerous" to succeed on a negligence claim.
A. Standard of review
We review a trial court's judgment granting a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If the trial court does not specify the reasons it granted the summary judgment motion, we will affirm the trial court's judgment if any of the grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
In a traditional summary judgment motion, the movant must show that no genuine issue of material fact exists and that the trial court must grant its motion as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). In a no-evidence summary judgment motion, the movant must show that no evidence supports one or more elements of a claim or defense for which the nonmoving party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523-24 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
When we review a summary judgment motion, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
B. Breach
Even if a dog is not vicious, its owner may be liable for injuries the dog causes "if the plaintiff can prove the owner's negligent handling or keeping of the animal caused the injury." Labaj v. VanHouten, 322 S.W.3d 416, 420 (Tex. App.—Amarillo 2010, no pet.); see Dunnings v. Castro, 881 S.W.2d 559, 563 (Tex. App.—Houston [1st Dist.] 1994, writ denied) ("an owner of a dog may be liable for injuries caused by the dog even if the animal is not vicious, if the plaintiff can prove that the owner's negligent handling of the animal caused the animal to injure the plaintiff"). "Unlike strict liability claims, to prevail in a negligence action the plaintiff does not have to prove that the animal was vicious or dangerous." Muela v. Gomez, 343 S.W.3d 491, 496 (Tex. App.—El Paso 2011, no pet.); see Dunnings, 831 S.W.2d at 562 (although finding of viciousness is necessary in strict-liability claim, it is not necessary in negligence claim). To sustain such a claim, the victim of the dog bite must show: "(1) the defendant was the owner or possessor of the animal; (2) the defendant owed a duty to exercise reasonable care to prevent the animal from injuring others; (3) the defendant breached that duty; and (4) the defendant's breach proximately caused the plaintiff's injury." Labaj, 322 S.W.3d at 420-21.
"The threshold inquiry in a negligence case is duty." Muela, 343 S.W.3d at 497. The status of the plaintiff who was injured on the defendant's premises determines the scope of the defendant's duty. Labaj, 322 S.W.3d at 421. A mailman, like Stein, is an invitee and, thus, the Regers had a duty to "exercise ordinary care to keep [their] premises in a reasonably safe condition." Id.; see Dunnings, 881 S.W.2d at 563 (holding mailman is invitee in dog-bite negligence case).
The extent of the duty of "ordinary care" depends to a certain degree "on proof of whether the risk of injury from a dog bite is foreseeable, i.e., the dog owner's actual or constructive knowledge of the danger presented by his dog." Labaj, 322 S.W.3d at 421. To establish that a defendant, like the Regers, breached their duty, the plaintiff "must present evidence showing [the defendant] did not act as a 'reasonable prudent person' would have acted in the same or similar circumstances in handling the dog." Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 666 (Tex. App.—Waco 2002, no pet.) (affirming summary judgment in dog-bite case because plaintiff did not proffer evidence that dog owner breached duty).
Stein did not proffer evidence that the Regers breached any duty to Stein by failing to secure Bella. Stein did not identify any evidence that the Regers did not use "ordinary care" in securing Bella behind an iron-wrought fence. In response to the motions, Stein did not present any evidence concerning the height of the fence, Bella's size, the typical height a German Shepherd can jump, or that Bella had previously jumped the fence. In his brief, he makes one, conclusory statement regarding breach: that the Regers breached their duty by failing "to ensure that Bella, a large German shepherd, was properly secured in her enclosure." This conclusory statement does not analyze how the Regers breached their duty or how the Regers should have secured Bella beyond doing what they had already done, that is, securing her in a fenced area.
Nor did Stein present any evidence that the gate had any known issues or that the gate was unsecured. He only attempts to cast doubt on the Regers' credibility. For example, in his response to the Regers' motions for summary judgment, Stein merely states that he "has reason to disbelieve" that the gates were secured. But he testified in his deposition that he "did not know" the "status" of the gate.
Stein did not present any evidence to create a fact question on whether the Regers breached any duty to Stein. See Trujillo v. Carrasco, 318 S.W.3d 455, 460 (Tex. App.—El Paso 2010, no pet.) (evidence was insufficient to support finding of negligence when plaintiff only argued that defendant breached duty because dog escaped pen). Thus, the trial court did not err in granting the Regers' traditional summary judgment motion.
C. Proximate cause
Similarly, Stein did not present evidence that created a fact question on whether the Regers could have foreseen that Bella would attack him. To establish proximate cause, the plaintiff must show that a person of ordinary intelligence would have anticipated the danger created by a negligent act or omission. Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998). The "general character" of that injury must "reasonably have been anticipated" or foreseen to establish proximate cause. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995). An injury is foreseeable if, based on "common experience applied to human conduct," a person of ordinary intelligence could have predicted the injury. Read, 990 S.W.2d at 737.
A dog owner cannot reasonably foresee that a dog would attack a delivery person based solely on the dog's barking or the dog owner's actions in restraining the dog. See Williams v. Sable, No. 14-09-00806-CV, 2011 WL 238288, at *4-5 (Tex. App.—Houston [14th Dist.] Jan. 25, 2011, no pet.) (mem. op.). In Williams, the dog was "barking and jumping" at the delivery person who was waiting at the gate. Id. at *4. The dog had never bitten anyone, jumped on anyone, or "bolted" outside the gate. Id. The defendant's wife, who was holding the dog's collar, opened the gate, and the dog escaped and attacked the delivery person. Id. But because "[d]ogs bark for many reasons and sometimes for reasons known only to themselves" and the dog's previous barking had not led to an attack, the dog owner could not have foreseen that the dog would attack the delivery person. Id. at *4-5.
Similarly, Bella had previously barked at Stein and jumped at the fence but had never attacked Stein or jumped over the fence. She had never escaped the gated area on any of Stein's previous visits to the Regers' house. Nor had Bella ever attacked anyone else. Stein does not identify any evidence that the Regers could have foreseen that Bella would jump over the fence and attack him. Both of the Regers testified that they "could never have anticipated that Bella may have been able to jump over the fence." Nor did he proffer any evidence that a German Shepherd owner should have known that a German Shepherd could jump the fence to attack a visitor. Thus, because Stein did not present any evidence of foreseeability, the trial court did not err in granting the Regers' traditional summary judgment motion.
Because we affirm the trial court's judgment on the grounds raised in the Regers' traditional summary judgment motion, we do not consider the grounds raised in their no-evidence summary judgment motion. --------
Conclusion
We affirm the judgment of the trial court.
Harvey Brown
Justice Panel consists of Justices Bland, Brown, and Lloyd.