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Opinion issued January 8, 2009 





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In The

Court of Appeals

For The

First District of Texas





NO. 01-08-00134-CV





JOHN L. KENNAMER, INDIVIDUALLY, AND JOHN L. KENNAMER & MORA KENNAMER D/B/A K BAR LAND & CATTLE COMPANY, Appellants


v.


THE ESTATE OF JOHN ALWIN NOBLITT, DECEASED, CHARLES R. NOBLITT, JR., INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JOHN ALWIN NOBLITT, DECEASED, AND JOANN JONES, INDIVIDUALLY AND AS HEIR OF THE ESTATE OF JOHN ALWIN NOBLITT, DECEASED, Appellees





On Appeal from the County Court at Law No. 2 and Probate Court

Brazoria County, Texas

Trial Court Cause No. PR027065-A





MEMORANDUM OPINION

          Appellant, John L. Kennamer, was driving an all-terrain vehicle (“ATV”) on his ranch when he was attacked and injured by a cow, allegedly owned by appellees, the Estate of John Alwin Noblitt, Deceased, Charles R. Noblitt, Jr., Individually and as Administrator of the Estate of John Alwin Noblitt, Deceased, and Joann Jones, Individually and as Heir of the Estate of John Alwin Noblitt, Deceased. Appellants, Kennamer, Individually, and Kennamer & Mora Kennamer d/b/a K Bar Land & Cattle Company, sued appellees for negligence, alleging that appellees had failed to keep “their wild cows” on their property and had failed to warn Kennamer of the “wild cows and the injuries the wild cows could inflict.” Appellees moved for summary judgment on the ground that the evidence conclusively showed that they did not own the cow, which the trial court granted.

          In what we construe as one issue, appellants contend that the trial court erred by granting summary judgment in favor of appellees.

          We affirm.

Background

          John A. Noblitt, now deceased, raised cattle on his ranch in Brazoria County, Texas. Alan Fitzgerald grew up on an adjoining ranch. For nearly 50 years, Noblitt enlisted Fitzgerald’s help to work his cattle. When Noblitt became unable to take care of his cattle, Fitzgerald took over. In 2001, Fitzgerald began running his own cattle with Noblitt’s herd.

          After Noblitt’s death in 2003, Fitzgerald continued to look after the cattle. In April 2004, some of the cattle escaped onto another adjoining ranch, which was owned by appellant, Kennamer. Fitzgerald went to Kennamer’s ranch and, with the assistance of the sheriff’s department, identified Fitzgerald’s cattle and hauled them home. Fitzgerald contacted Noblitt’s daughter, Sue, about retrieving Noblitt’s cattle, and Sue insisted that she would retrieve the cattle herself.

          Five months later, on September 12, 2004, Kennamer was working on his ranch with James Sutton. The men were each driving ATVs and checking fences. Sutton was working on one side of the pasture, and Kennamer was working on the other. At some point, Sutton looked up and saw Kennamer racing toward the woods on his ATV with a red cow chasing after him. Sutton saw the cow hit the back of the ATV and flip it up, throwing Kennamer off. Sutton found Kennamer lying unconscious and not breathing. Sutton performed CPR and Kennamer was “life-flighted” to the hospital. Kennamer survived, but sustained severe injuries to his head, chest, and legs.

 

          Appellants sued Noblitt’s estate, asserting that Kennamer was “viciously attacked by wild cows belonging to [Noblitt],” and that his injuries, for which he sought $2 million in damages, were proximately caused by the negligence of appellees in failing to keep “their wild cows [sic]” on their property and failing to warn Kennamer of the “wild cows and the injuries these wild cows could inflict.”

          According to Kennamer, the cow that attacked him was branded with an “upside down U.” According to Fitzgerald and area ranchers, Fitzgerald’s, and not Noblitt’s, cows were branded with a “U.”

           Appellees moved for summary judgment on the ground that they did not own the “attacking cow.” To their motion, appellees appended, as their evidence, excerpts of the deposition testimony of Kennamer; Fitzerald; Sutton; Kenny Shaw, an area rancher who knew Noblitt; and Milton Sims and Johnny Hobbins, who knew Noblitt and were familiar with his cattle.

          In their response to the motion for summary judgment, appellants contended that “[t]he only issue at bar is the relationship between Noblitt and the cow,” that the evidence on the issue of ownership is conflicting, and that therefore a fact issue precludes summary judgment. To their response, appellants appended excerpts of the deposition testimony of Fitzgerald, Sutton, and Sims.

 

          On February 1, 2008, the trial court granted summary judgment in favor of appellees. This appeal ensued.Summary Judgment

          Appellants contend that the trial court erred by granting summary judgment in favor of appellees because a genuine issue of material fact exists that precludes summary judgment, namely, the ownership of the cow.

A.      Standard of Review

          We review a trial court’s ruling on a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A summary judgment under Rule of Civil Procedure 166a(c) is properly granted only when a movant establishes that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiffs’ cause of action or (2) plead and conclusively establish each essential element of an affirmative defense to rebut the plaintiffs’ cause. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

          First, the movant must conclusively establish its right to judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

          Then, if the movant conclusively establishes its right to judgment, the burden shifts to the non-movant to respond with evidence raising a genuine issue of material fact that would preclude summary judgment. See Rhone-Poulenc v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999) (explaining that non-movant has no burden to respond to summary judgment motion unless movant conclusively establishes its cause of action or defense). In deciding whether there is a disputed material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts must be resolved in favor of the non-movant. Dorsett, 164 S.W.3d at 661.

B.      Applicable Law

          To prevail on a negligence cause of action, a plaintiff must show proof of (1) a legal duty owed by one party to another, (2) a breach of that duty, and (3) damages proximately caused by that breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). The non-existence of a duty ends the inquiry. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).

 

          Texans do not have a common-law duty to fence in their livestock. Gibbs v. Jackson, 990 S.W.2d 745, 747–50 (Tex. 1999); Harlow v. Hayes, 991 S.W.2d 24, 27 (Tex. App.—Amarillo 1998, pet. denied). However, the Texas Agriculture Code imposes certain statutory duties, known as “stock laws,” that, inter alia, prohibit a stock owner from allowing livestock to run at large, if the local county adopts the law. See Tex. Agric. Code Ann. § 143.071 (Vernon 2004); Gibbs, 990 S.W.2d at 747–50 (examining stock owners’ duties to contain livestock).

C.      Analysis

          Here, appellants alleged in their petition that

[t]he attack of the wild cows [sic] owned by Defendants and resulting serious, permanent and disabling injuries to the Plaintiffs were each proximately caused by the negligence, ordinary and/or gross negligence, of the Defendants . . . including but not limited to: (1) In failing to keep their wild cows on Defendants’ property; (2) In failing to warn Plaintiffs of the wild cows and the injuries these wild cows could inflict; and (3) In other particulars to be shown by proper amendment prior to trial.

(Emphasis added.) There is not an allegation that appellees controlled the cow at issue other than through ownership. 

          In their motion for summary judgment, appellees state that they do not contest Kennamer’s claim that he suffered injuries caused by a cow. Rather, appellees contend that the evidence conclusively shows that they did not own the cow and therefore they did not have a duty or breach a duty to Kennamer. As evidence to support their contentions, appellees appended to their motion excerpts of the deposition testimony of Kennamer, Sutton, Fitzgerald, Sims, and Shaw, which they incorporated into their motion by reference. Depositions are proper summary judgment evidence when referred to or incorporated into a motion for summary judgment. Rangel v. Lapin, 177 S.W.3d 17, 21 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

          Kennamer testified that the cow that attacked him was “solid red” in color, was “Brahman and possibly Hereford” in breeding, had horns at least 18 inches in length; was branded with an “upside down U”; and “had some ear notches that were common to Noblitt cattle”—specifically, three or four V-shaped notches on the outer rim of the left ear. When asked how he knew it was Noblitt’s cow, Kennamer responded that it was by “just observing the cow for, hell, 10 years, I guess” and that “[i]t’s just the same way you would identify your son. You’d recognize him.”

          Kennamer first testified that he had seen the cow for several years and knew the cow, but that he had never complained to Noblitt about her. He later testified that the cow “didn’t come across the fence while [Noblitt] was alive.” Kennamer also testified that there were no breaks in the fencing between Noblitt and Kennamer; rather, the cow had been in another pasture on Kennamer’s own property and, on the day of the incident, there was a break in Kennamer’s own cross-fencing, which allowed the cow to get into the pasture with Kennamer and injure him.

          Sutton testified by deposition that, on the day of the incident, he and Kennamer were on ATVs, checking fences. Sutton was working on one side of the pasture, while Kennamer worked on the other. At some point, Sutton looked up and saw Kennamer racing toward the woods on his ATV with a red cow chasing him. Sutton saw the cow hit the back of the ATV and flip it up, throwing Kennamer off. Sutton found Kennamer lying unconscious and not breathing. Sutton testified that the cow was “ribby” and had “two real high horns on her,” about 12 inches long on each side.

          Sutton testified that he did not know whose cow it was or where it came from. After the incident, Sutton found a break in the common fence between Kennamer’s land and a wildlife preserve, known as “Hunt Woods,” that adjoined Kennamer’s land. Sutton testified that this was the only downed fence that he found and that he had frequently seen cattle on the government land.

          Fitzgerald’s deposition testimony was that he had been running his own cattle with Noblitt’s herd on Noblitt’s ranch since 2001. Fitzgerald described specific events that had occurred while working the herd and Fitzgerald explained that some of the cattle could get aggressive and were dangerous but that “you always got [sic] danger in cattle.” Fitzgerald testified that he and Noblitt would sell the unmanageable cattle at auction as they could catch them. Fitzgerald reported that, on one occasion, one of Noblitt’s cows (other than the one at issue) had injured a man on horseback at an auction barn. Fitzgerald noted that he had called the auction barn and warned them about the cow.

          Fitzgerald testified that, after Noblitt’s death in 2003, Fitzgerald continued to take care of the herd until April 2004, when they “got out and got into Kennamer’s.” When the cattle got out, Kennamer called Fitzgerald to retrieve them. Fitzgerald went to Kennamer’s ranch with sheriff’s deputies, who examined ear tags, loaded up Fitzgerald’s cattle, and brought them home. Fitzgerald said that Noblitt’s cattle were left on Kennamer’s property and that he contacted Noblitt’s daughter, Sue, about retrieving them. He told Sue that the cattle could get aggressive, but Sue insisted that she would retrieve them herself.

          Fitzgerald testified that Noblitt had some red Brangus crossbreds, that some had horns, and that none of them were branded. Noblitt typically, although not always, used a single notch on the bottom of the left ear and tipped the right. Fitzgerald further testified that his own cattle were red in color, had horns, and were branded with “a walking U right behind the left shoulder.” Fitzgerald testified that “[i]f [the cow] had a Walking U on her, it was mine.”

          Shaw also testified that Fitzgerald branded his own cattle with a “U with two little legs under it” and that Noblitt did not brand his herd. Shaw testified that Kennamer’s description of the cow that attacked him as “solid red with horns that were 18 inches or longer on each side” did not describe any of Noblitt’s cattle. Shaw further testified that Noblitt’s cattle were healthy and in good condition.

          Hobbins also testified that Fitzgerald branded his cattle with a “U,” that Noblitt did not brand his cattle, and that Kennamer’s description of a cow with a “U” brand would be Fitzgerald’s cow. Hobbins further testified that Noblitt did not own any solid red cows.

          Sims testified that Noblitt had a “hundred and some odd head of cattle”; that some were some “partly” red in color, but none were solid red; that some had horns, but that most of them were not over six or eight inches because they had been tipped; and that Noblitt did not brand his cattle.

          In their response to appellees’ motion for summary judgment, appellants contended that a material fact issue regarding the ownership of the cow precluded summary judgment. Appellants appended excerpts of the deposition testimony of Sutton, Fitzgerald, and Sims. Appellants contend that the evidence giving rise to an issue of material fact concerning whether appellees owned the cow at issue is Kennamer’s testimony that he had, on a prior occasion, seen the cow that attacked him on Noblitt’s ranch and that Noblitt’s cattle had come onto Kennamer’s ranch months before the incident; Fitzgerald’s testimony that some of the cows were aggressive and dangerous; and evidence concerning “whether the cow that attacked Kennamer was or was not branded.”

          We disagree that this evidence rises to a level that creates a genuine issue of material fact. The evidence shows that Noblitt and Fitzgerald had over a hundred head of cattle and, although Fitzgerald testified that some of the cattle could get aggressive and were dangerous, he explained that “you always got [sic] danger in cattle.” The evidence shows that Noblitt’s and Fitzgerald’s cattle were on Kennamer’s property in April 2004. This is not evidence, however, that the cow that attacked Kennamer five months later, in September 2004, was Noblitt’s cow. In addition, Kennamer testified that the only fence down was his own cross-fence. Sutton testified that the only fence down was between Kennamer’s land and the adjoining wildlife preserve, where cattle were known to be. Even if the cow that attacked Kennamer was one left behind when the Noblitt/Fitzgerald herd escaped some five months prior to the incident at issue, Kennamer unequivocally testified that the cow that attacked him was branded with a “U,” and Fitzgerald patently admitted that if the cow was branded with a “U,” she belonged to Fitzgerald. There is no evidence in the record that Noblitt used the “U” brand.

          We conclude that reasonable people could not differ as to the conclusion that the cow that caused Kennamer’s injuries was not owned by appellees. See Keller, 168 S.W.3d 802, 816. We conclude that, as a matter of law, appellees have carried their burden to disprove at least one element of appellants’ cause of action, namely, duty and breach. See Cathey, 900 S.W.2d at 341. We hold that the rendition of summary judgment on these grounds was proper. See Tex. R. Civ. P. 166a(c); KPMG Peat Marwick, 988 S.W.2d at 748.

          Accordingly, we overrule appellants’ sole issue.

ConclusionWe affirm the judgment of the trial court.





                                                             Laura Carter Higley 

                                                             Justice

 

Panel consists of Chief Justice Radack and Justices Nuchia and Higley.