                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-16-00440-CV
                           ____________________

          THOMAS DEARBONNE AND ANN HARRIS, Appellants

                                        V.

                        SCOTT COURVILLE, Appellee

_______________________________________________________________________

                   On Appeal from the 136th District Court
                         Jefferson County, Texas
                        Trial Cause No. D-196,763
_______________________________________________________________________

                         MEMORANDUM OPINION

      Thomas Dearbonne and Ann Harris (Appellants or Plaintiffs) appeal the trial

court’s summary judgment in favor of Scott Courville (Courville or Appellee or

Defendant). We affirm the trial court’s judgment.

                                   Background

      Plaintiffs filed an Original Petition in which they alleged that they were

travelling in a vehicle at night on FM 365 when they were involved in an accident,


                                        1
and “they sustained personal injuries due to the negligence of the Defendant

recklessly allowing his horses to run free on the public roads.” Plaintiffs alleged that

Courville owned the horse and that Courville was negligent in failing to keep his

horses properly corralled, failing to maintain a sufficient fence, and in allowing his

horses to roam freely upon the public roads. Plaintiffs alleged that such acts or

omissions were a proximate cause of Plaintiffs’ injuries. Plaintiffs also asserted a

claim for negligence per se.

      Courville filed an answer denying the claims. Later, Courville filed

Defendant’s First Amended Answer to Plaintiffs’ Original Petition, in which

Courville generally denied the allegations and asserted that he was “not the owner

of the animal(s)/horse(s) allegedly struck by the Plaintiffs[,]” and he requested a jury

trial. Courville filed a no-evidence motion for summary judgment, arguing that, after

an adequate time for discovery, there was no evidence that Plaintiffs collided with a

horse, that Courville owned or controlled the horses involved in the collision, if any,

or that he owed any duty to Plaintiffs.

      Courville attached several items to his motion for summary judgment

including deposition transcript excerpts of Lisa King, Alan King, Sarah Smith,

Donald “Stretch” Metts, and Dr. Harvey Schneiter, as well as affidavits of Dr.

Schneiter and Courville. In Courville’s affidavit he asserted:

                                           2
       In March of 2014 (including March 1st and 2nd), I owned five (5)
horses (Bailey, Holly, Pearl, Bo and Oakey), all of which were pastured
on my property located at 8530 FM 365. All of the horses were
appropriately secured within their pastures. Further, all of the horses
were healthy.
       On the morning of Sunday, March 2, 2014, I again checked my
fences and gates and made sure all of my water tanks were full. As with
the day before, all of the fences and gates were in good working order
and suitable to contain my horses. Later that morning, we left for
vacation.
       We arrived at our hotel around 5:00 p.m. on Sunday, March 2 nd.
Later that evening, I received a phone call from my sister, Lisa King,
who is also my next-door neighbor. She told me there was a horse in
her backyard. After telling her I was out-of-town, I told her I would
have someone take care of the animal. I told my sister I was out[-]of[-]
town but would call someone to look into the horse in her back yard. I
immediately called Deputy Don Metts. Deputy Metts is the livestock
officer for the Jefferson County Sheriff’s Department. Deputy Metts
said he would head there at once. After giving him time to get to my
sister’s house, I called him for an update. He told me that all of my
horses, of which there are five, were accounted for and were healthy
and uninjured. He also told me a car had wrecked just to the west of my
property. I asked him to check that my horses were fine once again, and
he said that they were fine. Deputy Metts assured me that my horses
were fine and were not involved in any accident with a car. As a result
of my conversation with Deputy Metts, I considered the matter closed.
       When we arrived home on March 9, 2014, I checked each of my
five (5) horses and could easily see they were all healthy and uninjured
just as they had been on March 1st and 2nd.
       The fences on my property at 8530 FM 365 are constructed of
four (4) strands of barbed wire connected to wooden posts. I use
factory-made gates and install them with factory-made hardware and
fasten them with the provided chain and spring-loaded clip. I maintain
the fences and gates and keep them in good condition.
       I have never had an issue with any of my horses getting out of
their enclosure either through the fences or gates. The only time I have
had a horse get out of an enclosure was a horse pastured on another

                                   3
      property I leased five (5) or six (6) years ago. A storm caused a tree to
      fall and knock down a portion of the fence.
             I regularly inspect the fences and gates to make sure they are
      suitable to contain my horses within their pastures.

      Lisa King, Courville’s sister, testified that she and Courville are close but the

only time they are ever together is Christmas Eve at her mother’s. King explained

that although her backyard is not fenced, Courville’s property adjoins hers and his

fence line runs across the back of her yard. According to King, on the night of the

car accident she was inside her house when she heard her dogs barking. She looked

out of her door and she saw “a horse and then a shadow of another horse” in her

backyard, and then she called Courville.

      Alan King testified that two tannish brown horses were outside Courville’s

gate and were nose to nose with horses on the opposite side of the gate and wanted

to go inside the gate. According to the excerpt, Alan testified that he let the horses

back into the pasture.

      Sarah Smith’s deposition transcript excerpt includes testimony by Smith that

when she was returning home immediately prior to hearing the accident, she did not

see a horse on FM 365. She testified that she heard the accident happen seconds

before turning into her driveway, and as she turned into her driveway she observed

a shadow of what appeared to be a horse on Courville’s property near Lisa King’s


                                           4
backyard, and the horse was not on FM 365. According to Smith, she saw the shadow

moving towards Courville’s property within seconds of hearing the accident.

      Donald Metts testified in the deposition excerpt attached to Courville’s

motion that he talked to Courville’s daughter at the house, he asked her if there were

any horses out, and she said two were out. According to Metts, there were two horses

standing just outside the gate, not far from the house in the pasture on the right by

Courville’s barn, and Metts and Courville’s daughter let them back into the pasture.

He testified that Courville told him over the phone how many horses he was

supposed to have on his property, but Metts could not remember at his deposition

whether that number was four or five horses. Metts did remember that he accounted

for all the horses, that they were all on Courville’s property, and that he opened the

gate and let the two horses that had gotten out into a different pasture on the property

back into the pasture with the other horses. Metts testified that he had a chance to

examine Courville’s horses, that based on his experience and training with horses he

can determine whether a horse has been injured, and that the horses that were out of

the pasture exhibited no signs of injury. Metts testified that he observed Dearbonne’s

vehicle after it was involved in the accident and it was “very much” damaged with

front-end damage, windshield damage, and roof damage. Metts agreed that as a

livestock officer he has seen accidents with an automobile and horse, and that, based

                                           5
on his experience and training, he believed that if Dearbonne’s vehicle had struck a

horse that the horse would be severely injured. Metts also agreed that horses are

fragile in their legs and that if a vehicle like Dearbonne’s vehicle struck a horse in

the legs there would be a high probability the horse’s legs would be injured.

      Dr. Harvey Schneiter swore to the following in his affidavit attached to

Courville’s no-evidence motion for summary judgment:

             . . . I currently own and operate the Fannett Veterinary Clinic,
      which opened in 1991. I received a doctorate in Veterinary Medicine in
      1984 and completed a large animal internship at the University of
      Tennessee College of Veterinary Medicine. Furthermore, I completed
      a three-year Equine surgery residency program from Louisiana State
      University. As part of my Equine veterinary practice, I treat soft tissue
      and orthopedic injuries as well as engage in Equine sports medicine.
             I have extensive education and experience treating large animals,
      including horses. Over the last twenty-five years, I have treated and
      euthanized horses that have been injured in accidents, including being
      hit by automobiles. I am familiar with the types and severity of injuries
      to horses that have been struck by automobiles.
             I reviewed nine (9) photographs of an automobile (that are
      attached to this affidavit) that allegedly struck a horse. Based upon my
      education, training and experience, any horse struck by the car depicted
      in the photographs would have, in all probability, sustained the
      following injuries: 1) abrasions with hair loss on the legs at the level of
      the impact with the front of the car[, and] 2) bruising and swelling, and
      possibly hair loss, on the thorax and/or abdomen on the side of the body
      that impacted the windshield. Furthermore, the injuries would be
      visible immediately after the collision, and in all probability, the horse
      would appear visibly lame.
             I have never examined or treated any horse owned by Scott
      Courville for injuries received from an impact with an automobile.
      Furthermore, I did not treat or examine any horse owned by Scott
      Courville for any injury or illness in 2014 or 2015.
                                          6
Schneiter testified in his earlier deposition that, assuming the vehicle involved in this

accident struck a horse and the car suffered significant damage to the front end, hood,

windshield, and roof, the horse involved in the accident “definitely would have to

have some injury.”

      In response, Plaintiffs argued that “there are two distinct but supportable

possibilities” about what happened[:]

      In one scenario, the “fifth” horse was struck and injured and then
      vanished (or was otherwise[sic] “disappeared” at a later date); in
      another scenario, the horse that was struck was one of the two found
      shortly thereafter looking to get back into the Courville homestead
      pasture.”

Plaintiffs also argued that “there is sufficient evidence from which a reasonable jury

could conclude that Courville ‘permitted’ the horse to be outside of its pasture as

considered through the teachings of Rose v. Hebert Heirs, 305 S.W.3d 874 (Tex.

App.—Beaumont 2010, no [pet.]).” Plaintiffs attached to their response a copy of

the accident report, the affidavit of Ann Harris, and the deposition transcripts of Lisa

King, Sarah Smith, Scott Courville, Ray Chesson, George Dearbonne, Alan King,

Donald Metts, Lawrence Merendino, Jr., and Dr. Harvey Schneiter.1 In the


      1
          Courville filed objections to part of the deposition testimony of Ray
Chesson, George Dearbonne, and to some portions of Ann Harris’s affidavit that was
attached to Plaintiffs’ Response to Courville’s motion for summary judgment.
Appellants filed no response to the objections. In a letter ruling in the clerk’s record,
the trial court explicitly sustained the objections. On appeal, Appellants argue this
                                           7
deposition transcript of Courville, he testified that he owned five horses at the time

of the accident and he has three fenced areas on his property. According to Courville,

when he left on vacation, one horse was in the front pasture, two horses were in the

back pasture, and the other two were in the side pasture. Courville testified that Metts

was the Jefferson County Livestock Deputy and that Courville had asked Metts, as

a favor, to keep an eye on his horses while he was away. Courville testified that his

sister called him around 6:30 p.m. on his first day of vacation and informed him that

there was possibly a horse in her backyard. Courville told her he would call Metts.

Courville called Metts and asked Metts to see if there was a horse in his sister’s

backyard. Courville testified he called his sister back and said Metts was on his way.

According to Courville, a little while later he called Metts back and Metts was at

Courville’s house. According to Courville, Metts told Courville that all five of

Courville’s horses were in the pasture, that there had been a wreck with a horse up


Court should consider the objected-to evidence (despite the explicit ruling made in
the court’s letter) because the trial court did not issue a formal order granting the
objections and the summary judgment order and final take nothing judgment include
language stating the trial court considered the “pleadings, the motion, the response,
affidavits and other evidence on file.” Appellants failed to explain on appeal why
the excluded evidence is relevant or admissible, nor did they challenge the
evidentiary ruling of the trial court. Appellants waived any complaint about the
evidentiary ruling. Thus, we need not discuss in this memorandum opinion the
evidence excluded by the trial court. See Tex. R. App. P. 33.1(a); Hidalgo v. Surety
Sav. & Loan Assoc., 462 S.W.2d 540, 545 (Tex. 1971) (summary judgment evidence
must be admissible to be considered by the trial court or by a reviewing court).
                                           8
on the highway, but Metts did not identify whose horse or what kind of horse was

involved in the accident. Courville testified he asked Metts how the horses were and

Metts told him that he counted them and that all five of Courville’s horses were fine

and Metts would check on them again in the morning. Courville testified that when

he got back to town, he and Metts talked about the accident and that Metts told him

that due to the extent of the damage to the car that Metts had expected to find a dead

horse and looked for days and watched for buzzards but never saw anything.

Courville testified that he knows of at least three people within a mile along FM 365

that have had horses get out of their pastures in the past. According to Courville, he

had no knowledge or suspicion about whose horse might have been involved in that

accident, but he did not think it was any of his horses.

      Lisa King testified in her deposition that she is Courville’s older sister and

that she has lived at her residence on FM 365 for thirty years. According to Lisa, her

backyard is unfenced and after hearing her dogs bark on the night of the accident,

she looked outside, and she saw a horse and a shadow of another horse in her

backyard eating grass in the northwest corner of her yard. She assumed the horses

were Courville’s and she called him. Lisa testified he returned her call a few minutes

later and he told her he would get ahold of “Stretch.” Lisa testified Sarah Smith

called and they talked until Scott called back. Lisa went to sit on the porch, she heard

                                           9
a wreck to the west and told her husband, Alan. Lisa testified Scott called back to

ask if Stretch had gotten there yet, but she was not sure whether Scott called back

before or after she heard the wreck. Lisa testified that after the wreck she saw her

husband pull up at Courville’s property and talk to Stretch, and she walked over to

them. Her husband told her that two of Courville’s horses were standing at

Courville’s gate and that they opened the gate to let them in. Lisa testified that her

husband and Stretch went to check on the horses and that when her husband came

back home he said the horses were fine and in the gate. Lisa testified that “[t]here’s

a lot of people with horses[]” in their area, and she testified to at least one other horse

from another landowner’s property that she had seen running down the highway

about four months before her deposition.

       Sarah Smith testified in her deposition that she believed Courville kept some

of his horses on the Pitzola property on the same side of FM 365 as her property but

across FM 365 from Courville’s property. She admitted that she did not know

whether Courville had horses on that property and that if he testified otherwise, she

would have no reason to dispute the testimony. She believed that in a “period of ten

years [or] [h]owever long those horses have been there[]” the horses got out of the

Pitzolas’ pasture “no more than about three times that [she] know[s] of.” Smith

testified that on the night of the accident she was on her way home and was on the

                                            10
telephone with Lisa King when Lisa mentioned that Courville’s horses were out and

in Lisa’s backyard and Lisa was trying to get in touch with Courville. According to

Smith, Lisa then told her that Courville was calling her and Lisa took the call. Smith

testified that by then she was close to home and after a few minutes she heard a “very

loud” collision “very close” to Courville’s property. According to Smith, a minute

or two after King said she saw Courville’s horses in her backyard Smith heard the

collision. She testified she turned into her driveway and within seconds of the wreck

she saw a silhouette of what appeared to be a horse to her right near King’s backyard

and not on FM 365.

      Ray Chesson testified in his deposition that for the past nineteen years he has

served as the Justice of the Peace for Precinct 4 in Jefferson County. He testified that

on the night of the accident, dispatch put a call out to the patrol deputies that horses

were on FM 365 in Labelle, but the dispatch did not convey any information about

the owner of the horses. About five to ten minutes after he heard the call from

dispatch, he heard about the accident.

      George Dearbonne, Thomas Dearbonne’s son, testified that on the night of the

accident he was sleeping, and Ann called him and told him that they had hit a horse

on Highway 365 in Labelle. George testified that he went to the accident scene, it

was cold and raining, and emergency vehicles were at the scene.

                                          11
      Alan King testified that he is Courville’s brother-in-law and that his wife and

Courville both own property with frontage on FM 365. On the night of the accident,

his wife came inside and told Alan that a car had hit something down the road. After

going to the scene and trying to get oncoming cars to slow down, Alan went to the

Courvilles because “they had said something about horses” and there were “two

horses and horses on the inside of the fence; and they were all nose to nose, and [he]

opened the gate and let them in.” Alan testified that as he was letting the horses back

onto Courville’s property, Stretch, whom Alan believed worked with Jefferson

County Animal Control, arrived and “shined his light on them looking for any

injuries [and] [t]here w[ere] no injuries to the horses.” According to Alan, people

“[a]ll up and down the highway” have horses either on their property or pastured on

some other property.

      In his deposition attached to Plaintiffs’ response, Donald Metts testified that

he had been the livestock deputy for the Jefferson County Sheriff’s Department since

2009. Metts testified that on the night of the accident, Courville had called him.

Courville told Metts that Courville was in Cancun. Courville’s sister had called

Courville because she thought there was a horse loose. Metts testified that while he

was in route to Courville’s property, dispatch called and said a horse had been hit by

a vehicle on FM 365. Metts testified he went to the accident scene west of

                                          12
Courville’s house and asked if the people in the car were okay. They said they were

okay, that they had hit a horse, and they did not know where the horse was or in what

direction it left the scene. Metts testified that he checked the area because,

considering the condition of the car, he “figured there was going to be a dead horse

laying -- or a broken legged horse or something laying close by[,]” but he never

found the horse. Metts testified he went to Courville’s property and asked

Courville’s daughter if there were any horses out, and she responded that she had

found two. Metts testified that he and Courville’s daughter let “two or three horses[]”

that were standing at the gate back into the pasture. Metts could not remember

whether Courville had told him whether he had four or five horses, but Metts testified

that he accounted for all of Courville’s horses that night, and that Courville’s horses

that were loose exhibited no marks or scratches, were not limping, and exhibited no

signs of stress. Metts testified that he did not believe Courville’s horses were

involved in the accident and that whatever had been hit “would have signs of

damage, lots of damage.”

      The deposition of Lawrence Merendino, Jr. was also attached to Plaintiffs’

response. Merendino testified that he has owned a business and property south of

Courville’s property and that Merendino had seen Courville tending to as many as




                                          13
three horses on the Pitzola land, which is the fifteen or sixteen acres adjacent to

Merendino’s business.

      Plaintiffs also attached the deposition of Harvey Schneiter, DVM, to their

response. In addition to the deposition excerpt included by Defendant in his motion

for summary judgment, the deposition attached by Plaintiffs included testimony that

“it would make sense” that a horse would show injuries after a collision with a

vehicle with the kind of damage the vehicle in this case suffered, but that it would

not necessarily “absolutely definitely[]” show injuries. Dr. Schneiter testified, “You

would be amazed” at the range of injuries to a horse involved in a collision with a

car that suffered significant damage to the front end, the hood, the windshield, and

the roof. He had seen “horses get hit by a car like that, hit, roll, land on the ground,

get up and walk off and have little more than bruising and some mild abrasions.” He

had also seen some “catastrophic injuries.” Plaintiffs also attached a copy of the

accident report, which listed Scott Courville as the owner of the horse involved in

the accident. And, in a supplemental response, Plaintiffs attached a “certified copy

of Jefferson County’s stock law.”

      Plaintiffs argued in their response that in Rose this Court, in finding the

summary judgment evidence was no evidence of the landowners “permitting” a bull

to roam at large, relied on the following “factors[:]”

                                          14
      (1) the Hebert Defendants had not visited the property or entered the
          gate at any point in time relevant to the date of the collision;

      (2) there was no evidence that the Hebert Defendants left the gate open;

      (3) there was no evidence that the Hebert Defendants authorized [any
          third party] the right to leave the gate open;

      (4) there was no evidence that the Hebert Defendants authorized the
          owners of the bull to “the right to run cattle at large”;

      (5) there was no evidence that the Hebert Defendants had been notified
          of the bull’s escape prior to the collision;

      (6) there was no evidence that the Hebert Defendants were aware that
          any cattle had previously escaped from the pastures they leased; and

      (7) there was no evidence that the Hebert Defendants’ pasture’s fence
          and its gate were not fit for the ordinary uses for which they were
          intended.

      According to the Plaintiffs here, the evidence “demonstrates that as to six of

those seven points [in Rose], there is evidence in the affirmative, to wit:”

      (1) Mr. Courville lived at the property in question and in fact had been
         there the morning of the incident before he left for Mexico;

      (2) There is direct testimony that the gate was found either in an open
         position or in a way such that the horses could only have gotten out
         if it was open;

      (3) There is evidence that Courville arranged with “Stretch” Metts to
         “look after his [horse(s)]” while he was away;

      (4) Admittedly, there is no evidence of a specific intent to have the
         horses run at large;

                                          15
      (5) There was evidence that Courville and Metts had been notified of
         the horse’s escape for some time – no less than a few minutes, but
         up to a couple of hours – before the collision;

      (6) There was evidence that Courville’s horses, especially those on the
         “Smith/Pitzola” (South) side of 365, had escaped in the past,
         particularly in cold weather; and

      (7) There was evidence that the pasture on the “Smith/Pitzola” (South)
         side of 365 was in disrepair and as such allowed for the escapes.

      In his Reply to Plaintiffs’ Response, Courville asserted that Plaintiffs’

summary judgment evidence failed to create a genuine issue of material fact that

Courville owned or controlled the horse(s) allegedly involved in the accident in

question, and that all of the evidence set forth in Defendant’s No Evidence Motion

for Summary Judgment establishes that Defendant did not own or control the

horse(s). According to Courville, the only two experts in the case (Deputy Metts and

Dr. Schneiter) testified that in all probability any horse struck by the Plaintiffs’

vehicle would have sustained demonstrable injuries. Courville argued that the best

evidence confirms that he owned five horses on the day of the accident and all five

of his horses were healthy and unharmed immediately following the crash. Courville

also asserted that Plaintiffs failed to create a fact issue that he “permitted” a horse to

run at large. According to Courville, Plaintiffs “must prove something greater than

the mere presence of a horse on the road.” Courville argued that the Plaintiffs offered

no evidence of the condition of the gates and fences or that they were improperly
                                           16
secured or in disrepair, no evidence of how and when any gate was opened, no

evidence that Metts had the authority to leave the gate open, no evidence how

Courville’s horses escaped their enclosure, no evidence of how he is at fault other

than a horse being outside its pasture, no evidence that he acquiesced to his horse(s)

running at large, and no evidence that the horses that allegedly escaped from this

property the past ten years belonged to him, and no evidence that his horses have

ever escaped an enclosure on his homestead property, and no evidence of the

condition or suitability of the Smith/Pitzola fencing on the day of the accident.

      The trial court issued a letter ruling sustaining the objections by Courville to

some of Plaintiffs’ summary judgment evidence and stating the court’s intention to

grant the no-evidence summary judgment. The trial court noted that “[w]hile there

is, actually, some evidence suggesting that the horse did not belong to the defendant,

the analysis for purposes of defendant’s Motion is whether the plaintiff has produced

more than a scintilla of evidence that it was [the Defendant’s horse].” The trial court

signed an order granting summary judgment on all claims asserted by Plaintiffs. On

December 13, 2016, the trial court signed a Final Take-Nothing Judgment granting

Courville’s no-evidence motion for summary judgment as to all of Plaintiffs’ claims

and dismissing those claims with prejudice.




                                          17
                                   Appellate Issues

      Appellants argue that the trial court erred in granting Courville’s no-evidence

motion for summary judgment. According to Appellants, “in the case at bar there is

indisputable evidence of the wreck, and exceptionally strong circumstantial evidence

pointing towards the conclusion that the horse in front of Courville’s property during

a search for escaped horses known to belong to Courville – was in fact Courville’s

horse.” Appellants also argue that if this Court reaches “the second point raised in

[Defendant’s] motion . . . despite the [trial] Court’s letter ruling, there is sufficient

evidence for a jury to determine that Courville had in fact ‘permitted’ the horse to

be on the road as judged by the standards set forth in Rose v. Hebert Heirs[, 305

S.W.3d 874 (Tex. App.—Beaumont 2010, no pet.)].”

                                 Standard of Review

      The elements of a negligence claim are the existence of a legal duty, a breach

of that duty, and damages proximately caused by the breach. Gharda USA, Inc. v.

Control Solutions, Inc., 464 S.W.3d 338, 352 (Tex. 2015). After adequate time for

discovery, a party may move for a no-evidence summary judgment claiming no

evidence exists to support one or more essential elements of a claim or defense on

which the opposing party has the burden of proof. Tex. R. Civ. P. 166a(i). In

response to a no-evidence motion for summary judgment, the nonmovant must

                                           18
produce summary judgment evidence raising a genuine issue of material fact. Id. We

review a trial court’s summary judgment de novo. Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 600 (Tex. 2004). On appellate review, we view the evidence in the light

most favorable to the nonmovant. Id. at 601. Material facts can be established with

direct evidence, circumstantial evidence, or a combination of both. Id. More than a

scintilla of evidence exists if the evidence “would allow reasonable and fair-minded

people to differ in their conclusions.” Forbes Inc. v. Granada Biosci., Inc., 124

S.W.3d 167, 172 (Tex. 2003). “When the evidence offered to prove a vital fact is so

weak as to do no more than create a mere surmise or suspicion of its existence, the

evidence is no more than a scintilla and, in legal effect, is no evidence.” Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983); see also Ridgway, 135 S.W.3d at

601.

                                      Analysis

       On appeal, Plaintiffs argue that the trial court erred in granting summary

judgment because there is ample circumstantial evidence from which a reasonable

jury could determine that the horse involved in the accident was Courville’s horse.

Even assuming without deciding that Plaintiffs produced summary judgment

evidence raising a genuine issue of material fact that Courville owned or controlled

the horse(s) allegedly involved in the accident, summary judgment was proper

                                         19
because Plaintiffs have presented no evidence that Courville breached any duty

owed under a negligence or negligence per se claim as alleged in Plaintiffs’ petition.

      In Texas, there is no common law duty for an owner of livestock to ensure

that his animals do not roam at large, including straying onto farm-to-market

roadways. See Gibbs v. Jackson, 990 S.W.2d 745, 746 (Tex. 1999). Nevertheless,

under the Texas Agriculture Code, a local “stock law” created by an election may

limit a livestock owner’s ability to allow his animals to roam at large. See generally

Tex. Agric. Code Ann. §§ 143.021-.108 (West 2004 & Supp. 2017). Section 143.021

allows that the “freeholders of a county or an area within a county” may petition for

an election to decide “if horses, mules, jacks, jennets, donkeys, hogs, sheep, or goats

are to be permitted to run at large in the county or area.” Id. § 143.021 (West Supp.

2017). Section 143.024 provides that if such stock law is enacted, “a person may not

permit any animal of the class mentioned in the proclamation to run at large in the

county or area in which the election was held.” Id. § 143.024 (West 2004). Plaintiffs

assert that because Jefferson County enacted such a stock law in 1933, Courville had

a duty to not permit his horse(s) from running at large, and that Courville breached

that duty.2


      2
        We assume, without deciding, that the Jefferson County stock law is valid.
On appeal, Courville contends that the Jefferson County stock law is void as the
local election on the law was invalid because (1) the ballot failed to follow
                                          20
      Neither the ownership of the animal nor the ownership of the premises creates

a rebuttable presumption that the animal’s presence on the road was attributable to

the negligence of the owner of the animal or the premises. See Beck v. Sheppard,

566 S.W.2d 569, 572 (Tex. 1978). Animals may escape through no fault of their

owners. Schumacher v. Caldwell, 206 S.W.2d 243, 266-67 (Tex. 1947). The fact of

an animal’s escape is not alone evidence of misconduct on the part of its owner. Id.;

Van Horne v. Harris, No. 2-06-183-CV, 2007 Tex. App. LEXIS 2266, at *10 (Tex.

App.—Fort Worth March 22, 2007, no pet.) (mem. op.) (stating that a violation does

not occur solely because an owner’s livestock runs at large); Goode v. Bauer, 109

S.W.3d 788, 792 (Tex. App.—Corpus Christi 2003, pet. denied) (stating that liability

for the violation of livestock laws requires more than the presence of the animals in

a forbidden place).

      We first address the duty created by section 143.024. Courville contends that

because the Legislature in section 143.034 (titled “Penalty”) provides that the

statutory penalty for a violation of 143.024 is limited to an owner, agent, or person



mandatory ballot language by combining separate and distinct propositions for
horses and cattle, and (2) section 143.072 prohibits Jefferson County from
conducting a countywide election for the running at large of cattle. Because we
decide the dispute on another issue, we defer deciding whether the Jefferson County
stock law is void. See Rose v. Hebert Heirs, 305 S.W.3d 874, 877 n.7 (Tex. App.—
Beaumont 2010, no pet.).
                                         21
in control of the animal who “knowingly” permits the animal to run at large in an

area or county in which the animal is prohibited from running at large under the

subchapter, that “Appellants must establish, at a minimum, that Appellee

‘knowingly permitted’ a horse he owned or controlled to roam onto FM 365[]” for

him to be negligent under section 143.024, even though section 143.024 only states

a violation for an owner “permit[ting]” his livestock to roam at large. See Tex. Agr.

Code Ann. §§ 143.024 (“Effect of Election; Adoption of Subchapter”), 143.034

(“Penalty”). In Rose, this Court rejected the same argument relating to the same stock

law statutes applicable to the free range of cattle, sections 143.074 (“Effect of

Election; Adoption of Subchapter”) and 143.082 (“Penalty”). See Rose, 305 S.W.3d

at 880-81.

      In Rose, Rose drove a car that struck a black bull on a State Highway, and

Rose and her three minor passengers sustained injuries in the collision. Id. at 875.

The minors sued the landowner-defendants, alleging that the bull had escaped from

the landowners’ property, and that the landowners were negligent in permitting the

bull to roam at large, in failing to ensure that the gates on the premises were locked,

and in failing to install cattle guards at the pasture’s gate. Id. This Court noted that

although section 143.074 “does not utilize the terms ‘negligence’ or ‘knowingly’ to

define the scope of the duty created by section 143.074[,]” the penalty provision for

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section 143.074 limits the persons subject to being fined to those who “knowingly

permit[]” cattle to run at large. Id. at 880. Because the Legislature did not define the

term “permit” for purposes of section 143.074, this Court construed the term

according to its common meaning:

      In light of the Legislature’s choice to restrict the reach of the statute’s
      penalty provision to those who “knowingly” permit cattle to roam at
      large, we are skeptical that the Legislature intended the duty it created
      in section 143.074 to extend to any person “who makes possible” the
      escape of cattle from a pasture.
             We conclude that the Legislature likely intended “permit” to
      mean “to consent to expressly or formally,” or to mean “to give leave.”
      These two definitions of the word “permit” found in Webster’s Third
      New International Dictionary appear to us to be the word’s common
      meaning.

Id. at 880-81 (footnote omitted).

      Applying the same rationale here, in light of the Legislature’s choice to restrict

the reach of the statute’s penalty provision to those who “knowingly” permit

livestock to roam at large, we conclude that the Legislature intended that a breach

under section 143.024 requires that Courville “consent[ed] to expressly or formally”

to his horse(s) running at large or that he “g[a]ve leave” to his horse(s) running at

large. See id. To establish this, Dearbonne must provide evidence of something more

than ownership of the horse by Courville.




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      We next examine the record to determine whether there is more than a scintilla

of evidence that Courville “permitted” his horse(s) to run at large. In Rose, this Court

affirmed the trial court’s summary judgment in favor of the landowners and

concluded that there was no evidence showing that the landowners “permitted” the

bull to roam at large:

             Nothing in the record indicates the Landowners visited the
      property or that they had entered the gate at any point in time relevant
      to the date of the collision. There is no evidence that any of the
      Landowners left the gate open. We find no evidence that the
      Landowners authorized the bull’s owner, the lessee that was granted
      grazing rights, or any hunters that held hunting rights, the right to leave
      the gate open. There is no evidence that the Landowners authorized [the
      bull’s alleged owners] the right to run cattle at large. There is also no
      evidence that the Landowners had been notified of the bull’s escape
      prior to the collision, and there is no evidence that the Landowners were
      aware that any cattle had previously escaped from the pastures they
      leased. Finally, there is no evidence that the pasture’s fence and its gate
      were not fit for the ordinary uses for which they were intended.

Id. at 881.

      A similar analysis was used by the Amarillo Court of Appeals in Rodriguez v.

Sandhill Cattle Co., L.P., 427 S.W.3d 507 (Tex. App.—Amarillo 2014, no pet.). In

that case, Plaintiff Rodriguez sued Sandhill Cattle Co., L.P. for damages arising from

his colliding with cattle on a roadway after midnight. Rodriguez, 427 S.W.3d at 508.

The accident scene was several miles from where Sandhill, the cattle’s owner, had

pastured the cattle. Id. The pasture was surrounded by a functioning “hot-wire” when

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the cattle were left there. Id. Some cattle escaped the pasture and it was subsequently

discovered that the “hot-wire” had been broken. Id. At trial and after Rodriquez

“rested,” the trial court granted Sandhill’s motion for directed verdict because

Rodriguez had failed to prove a violation of the local stock law. Id. The Amarillo

Court of Appeals explained that because the case before it was a directed verdict it

required the same standard of review as a no-evidence summary judgment. Id. In

affirming the judgment in favor of Sandhill, the Amarillo Court of Appeals applied

this Court’s reasoning in Rose and concluded that “nothing of record supports a

reasonable inference” that Sandhill breached the local stock law by permitting its

cattle to run at large:

              Rodriguez cites us to evidence that the cattle in question weighed
       approximately 500 pounds each, 80 head were placed on 60 acres, only
       one hot-wire surrounded the pasture, the wire had only one power
       source, only that portion of the wire near the trough held additional
       marking, and some of the steers were “bulling.” Yet, absent is evidence
       that steers attempting to copulate with each other charge, wander,
       stampede, fall, fight, or the like. Nor is there evidence that such conduct
       was pervasive, happened near the wire, or was immune from impedance
       from a wire charged with electricity. Similarly missing is evidence that
       a single strand of 14 gauge electrified wire (like that present here) was
       insufficient to generally hold cattle like those being pastured. Indeed,
       the only evidence we found of record was that indicating a single strand
       of hot-wire was no less sufficient than a three, four, or five strand
       barbed wire fence.
              Evidence that the cattle were not trained to stay within the
       confines of a hot-wire fence is also missing from the record, as is
       evidence that the cattle in question had previously escaped from a hot-
       wire fence, that Sandhill knew the hot-wire fence was inoperative
                                           25
      before leaving the cattle, that Sandhill failed to inspect the hot-wire
      fence to determine if it was operative, that Sandhill failed to
      periodically inspect the wire once the cattle were left, that Sandhill
      knew the cattle escaped and did nothing, that Sandhill left or allowed
      anyone to leave an opening in the hot-wire fence, or that there were too
      many head of cattle on the 60 acres. Nor do we find evidence from
      anyone familiar with cattle or their pasturing that can be read as
      criticizing the pasturing technique used here.

Id. at 509-11 (footnote omitted).

      Here, there is no evidence that Courville left any gate open or authorized

anyone to leave any gate open. There is no evidence of how or when Courville’s

horse(s) escaped the enclosure. Plaintiffs presented no evidence that while on

vacation Courville made no effort to corral his horse upon learning horses were

outside their enclosure, no evidence that Courville’s fences or gates were in disrepair

or unsuitable, and no evidence that Courville’s horses had escaped from his

property’s enclosures on prior occasions. In summary, there is no evidence to show

that Courville breached section 143.024 and no summary judgment evidence to raise

any inference that Courville “permitted” the horse(s) to escape as prohibited by

section 143.024 of the Texas Agriculture Code.

      After a careful review of Courville’s motion for summary judgment and a

thorough examination of the Plaintiffs’ responses to the motion, we agree with the

trial court that the Plaintiffs have failed to meet their burden of producing more than

a scintilla of evidence to show that Courville breached section 143.024. See
                                          26
Rodriguez, 427 S.W.3d at 509-11; Rose, 305 S.W.3d at 881. We affirm the trial

court’s final summary judgment in favor of Defendant.

            AFFIRMED.


                                                 _________________________
                                                    LEANNE JOHNSON
                                                          Justice


Submitted on January 26, 2018
Opinion Delivered September 13, 2018

Before Kreger, Horton, and Johnson, JJ.




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