Opinion issued June 9, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-15-00676-CV
                           ———————————
 IRMA K. ORTEGA, AS NEXT FRIEND OF A.G.T., A MINOR, Appellant
                                       V.
  PHAN-TRAN PROPERTY MANAGEMENT, LLC, MINH PHAN AND
                 MISTY TRAN, Appellees


                   On Appeal from the 334th District Court
                            Harris County, Texas
                      Trial Court Case No. 2013-74660


                         MEMORANDUM OPINION

      Appellant, Irma K. Ortega, as Next Friend of A.G.T., a minor, challenges the

trial court’s rendition of summary judgment in favor of appellees, Phan-Tran

Property Management, LLC, Minh Phan, and Misty Tran (collectively, “Phan-

Tran”), in Ortega’s suit against them for negligence and public nuisance. In two
issues, Ortega contends that the trial court erred in granting Phan-Tran summary

judgment.

      We affirm.

                                    Background

      In her petition, Ortega alleged that on October 30, 2012, as A.G.T. walked to

school, she “pass[ed] by” 2903 Red Bluff Road, Pasadena, Texas 77506 (the

“property”), which is owned by Phan-Tran and leased to Sergio Castillo.1 As A.G.T.

walked by the property, “two pit bull dogs,” owned by Castillo, “ran out of a fenced

area” and “viciously attacked” her. As a result of the “attack[],” she sustained

“serious bodily injuries.”

      Ortega asserted claims against Phan-Tran for negligence and public nuisance,

seeking damages for the injuries that A.G.T. sustained. Specifically, Ortega alleged

that A.G.T. “suffered physical and mental pain, suffering and anguish, and physical

impairment,” her injuries “resulted in disfigurement,” and she has “incurred

reasonable and necessary medical [expenses].”

      In its no-evidence summary-judgment motion, Phan-Tran argued that it was

entitled to summary judgment on Ortega’s negligence claim because, even assuming

that Phan-Tran “knew about” Castillo’s dogs, “there is no evidence” that Phan-Tran


1
      Although Ortega also asserted negligence and public-nuisance claims against
      Castillo, the trial court dismissed the claims without prejudice following Ortega’s
      motion to non-suit them.


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was “aware that the dogs . . . had any dangerous propensit[ies].” Phan-Tran further

argued that it was entitled to summary judgment on Ortega’s public-nuisance claim

because “there is no evidence” that Castillo’s dogs “caused the type of community-

wide harm that gives rise to claims for public nuisance” or that Phan-Tran “caused

such harm intentionally, through negligence, or by conduct out-of-place with its

surroundings.”

      In her response to Phan-Tran’s motion, Ortega asserted that evidence existed

that Phan-Tran “had actual knowledge of the presence and dangerous propensities

of the pit bulls on the[] property” and Phan-Tran’s “conduct made [them] liable for

a public nuisance.”

      After a hearing, the trial court granted Phan-Tran’s no-evidence summary-

judgment motion, ordering that Ortega take nothing on her claims against Phan-Tran

and dismissing them with prejudice.

                               Standard of Review

      We review a no-evidence summary judgment de novo under the same legal-

sufficiency standard used to review a directed verdict. Provident Life & Accident

Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); King Ranch, Inc. v. Chapman,

118 S.W.3d 742, 750–51 (Tex. 2003). To prevail on a no-evidence summary-

judgment motion, a movant must establish that there is no evidence of an essential

element of the non-movant’s cause of action or affirmative defense. TEX. R. CIV. P.



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166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex.

2004). The burden then shifts to the non-movant to present evidence raising a

genuine issue of material fact as to each of the elements challenged in the motion.

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Hahn v. Love, 321

S.W.3d 517, 524 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Although the

non-movant is not required to marshal her proof, she must present evidence that

raises a genuine issue of material fact on each of the challenged elements. TEX. R.

CIV. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Mott

v. Red’s Safe & Lock Servs., Inc., 249 S.W.3d 90, 95 (Tex. App.—Houston [1st

Dist.] 2007, no pet.). A no-evidence summary-judgment motion may not be granted

if the non-movant brings forth more than a scintilla of evidence to raise a genuine

issue of material fact on the challenged elements. See Ridgway, 135 S.W.3d at 600.

More than a scintilla of evidence exists when the evidence “rises to a level that would

enable reasonable and fair-minded people to differ in their conclusions.” Merrell

Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (internal quotations

omitted). When reviewing a no-evidence summary-judgment motion, we assume

that all evidence favorable to the non-movant is true and indulge every reasonable

inference and resolve all doubts in favor of the non-movant. Spradlin v. State, 100

S.W.3d 372, 377 (Tex. App.—Houston [1st Dist.] 2002, no pet.).




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                               Summary Judgment

      In her first issue, Ortega argues that the trial court erred in granting Phan-Tran

summary judgment on her negligence claim because there is “more than a scintilla

of evidence that [Phan-Tran] had actual knowledge” of Castillo’s dogs and “the

dangerous propensities of the dogs.” In her second issue, Ortega argues that the trial

court erred in granting Phan-Tran summary judgment on her public-nuisance claim

because “vicious dog[s] roaming at large [are] a public nuisance” and there is “more

than a scintilla of evidence that [Phan-Tran] allowed a public nuisance” on the

property.

Negligence

      To prevail on a negligence claim, a plaintiff must prove the existence of a

legal duty, a breach of that duty, and damages proximately caused by the breach. D.

Hous., Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002); Aleman v. Ben E. Keith Co.,

227 S.W.3d 304, 310 (Tex. App.—Houston [1st Dist.] 2007, no pet.). The plaintiff

bears the burden to produce evidence of duty, and liability cannot be imposed where

no duty exists. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006); Lee Lewis

Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001); E.I. DuPont de Nemours

& Co. v. Roye, 447 S.W.3d 48, 58 (Tex. App.—Houston [14th Dist.] 2014, pet.

dism’d). Whether a duty exists is a question of law for the court to decide from the

facts surrounding the occurrence at issue. Roye, 447 S.W.3d at 58; see also Elwood,



                                           5
197 S.W.3d at 794; Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v.

Akins, 926 S.W.2d 287, 289 (Tex. 1996).

      We have previously held that an out-of-possession landlord owes a duty of

ordinary care to third parties who are injured by a tenant’s dog where the landlord

has (1) the ability to control the premises and (2) actual knowledge of the particular

animal’s dangerous propensities and its presence on the leased premises.2 Batra v.

Clark, 110 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Here,

as in Batra, the parties’ central dispute concerns whether Phan-Tran had “actual

knowledge” of the dogs’ “dangerous propensities.” Cf. id.

      In Batra, a pit bull dog attacked a nine-year-old girl at a house, which was

owned by Dinesh Batra, the landlord, and occupied by Martha Torres, the tenant.

Id. at 127. After the dog, owned by Torres’s son, bit the girl, Tammy Clark,

individually and as next friend of the girl, sued Batra and Torres for negligence. Id.

at 126–27. On appeal, Batra argued that he owed no duty to the girl because, as an

out-of-possession landlord, he had no control over the dog or the rental property. Id.

at 127. In agreeing with Batra, we held that, in order for an out-of-possession

landlord to owe a duty of ordinary care to a third party injured by an animal, he must

have “actual knowledge,” rather than imputed knowledge, of the particular animal’s


2
      The parties appear to agree that Phan-Tran is an out-of-possession landlord and the
      issues presented in the instant case are controlled by this Court’s decision in Batra
      v. Clark, 110 S.W.3d 126 (Tex. App.—Houston [1st Dist.] 2003, no pet.).


                                            6
dangerous propensities. Id. at 130. And because the evidence only showed that

Batra had “actual knowledge of the dog’s presence on the property,” and not that he

had “actual knowledge of the dog’s vicious propensities,” Batra owed no duty to the

girl. Id. Further, we noted that although Batra had previously been on the property

when the dog was barking, this did not serve to establish his “actual knowledge” of

the dog’s “dangerous propensities.” Id.

      Here, Ortega argues that Phan-Tran had “actual knowledge” of the dangerous

propensities of Castillo’s dogs because Phan-Tran, and their property manager,

“visit[ed]” the property “constantly” during the month that A.G.T. was attacked and,

on “12 different” occasions, the City of Pasadena Animal Control Department

(“PACD”) “dispatched officers” after neighbors had lodged complaints against the

dogs. Thus, according to Ortega, “[r]easonable minds could infer that while” Phan-

Tran was at the property, they “must have seen” that Castillo’s dogs “were getting

out, roaming the neighborhood, and causing problems.”

      “Actual knowledge . . . is what a person actually knows, as distinguished from

constructive knowledge, or what a person should have known.” Oiltanking Hous.,

L.P. v. Delgado, No. 14-14-00158-CV, --- S.W.3d ---, 2016 WL 354439, at *7 (Tex.

App.—Houston [14th Dist.] Jan. 28, 2016, no pet.) (internal quotations omitted); see

also Jasek v. Tex. Dep’t of Family & Protective Servs., 348 S.W.3d 523, 532 (Tex.

App.—Austin 2011, no pet.). However, in response to Phan-Tran’s summary-



                                          7
judgment motion, Ortega presented no evidence to establish that Phan-Tran had

“actual knowledge” of the dangerous propensities of Castillo’s dogs. See Batra, 110

S.W.3d at 130; cf. Villarreal v. Elizondo, 831 S.W.2d 474, 477 (Tex. App.—Corpus

Christi 1992, no writ) (party had actual knowledge of dog’s vicious nature where he

admitted “dog was dangerous,” used dog “as a guard . . . to protect his tools,” and

knew dog “bit another man” “[y]ears before”).

      Ortega did present evidence that Phan-Tran, and their property manager, may

have visited the property prior to the attack of Castillo’s dogs on A.G.T. However,

even were we to assume that Phan-Tran had actual knowledge that Castillo had the

dogs on the property, such evidence, standing alone, does not establish that Phan-

Tran had “actual knowledge” of the dangerous propensities of the dogs. See Batra,

110 S.W.3d at 130 (actual knowledge of dog’s presence on property did not establish

out-of-possession landlord had “actual knowledge of the dog’s vicious

propensities”); see also Mattox v. Timmerman, No. 03-13-00107-CV, 2013 WL

4516125, at *3 (Tex. App.—Austin Aug. 22, 2013, no pet.) (mem. op.) (although

landlord saw dog, asked about dog’s owner, and went to owner’s apartment, such

evidence did not establish actual knowledge of dangerousness); Pfeffer v. Simon,

No. 05-02-01130-CV, 2003 WL 1545084, at *1–2 (Tex. App.—Dallas Mar. 26,

2003, no pet.) (mem. op.) (evidence dog had eaten “pet cockatiel bird” before dog-

bite incident not enough to establish actual knowledge of viciousness).



                                         8
      Further, although Phan, as he testified in his deposition, may have “heard” of

the pit bull breed of dog and that pit bull dogs are considered to be “potentially

dangerous,” this evidence did not serve to establish that Phan had “actual

knowledge” that Castillo’s dogs possessed any dangerous propensities. See Batra,

110 S.W.3d at 130 (out-of-possession landlord must “actually kn[o]w that the

particular dog that attacked [third party] had vicious propensities” (emphasis

added)); see also Do v. Nguy, No. 14-13-00848-CV, 2014 WL 7409746, at *3 (Tex.

App.—Houston [14th Dist.] Dec. 30, 2014, no pet.) (mem. op.) (evidence did not

establish out-of-possession landlord had actual knowledge of particular dog or

particular dog’s dangerous propensities); Dunnings v. Castro, 881 S.W.2d 559, 561

(Tex. App.—Houston [1st Dist.] 1994, writ denied) (evidence owner knew “a five-

year-old Weimaraner . . . left outside” “might behave aggressively” did not establish

owner had actual knowledge of her dog’s dangerous propensities). “Awareness of

a potential problem” does not constitute “actual knowledge” of danger. Reyes v.

City of Laredo, 335 S.W.3d 605, 609 (Tex. 2010); see also Univ. of Tex. at Austin v.

Hayes, 327 S.W.3d 113, 117–18 (Tex. 2010) (“hypothetical knowledge” is not

“actual knowledge”).

      Additionally, although PACD records and the deposition testimony of PACD

Officer C. Sublett show that, prior to the attack of Castillo’s dogs on A.G.T.,

neighbors had lodged complaints against the dogs and reported a previous biting



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incident involving the dogs, there is no evidence that Phan-Tran was made aware of

these complaints or reports.3 In fact, Sublett specifically testified that in regard to

the complaints and the biting incident, he only spoke with and issued citations to the

dogs’ owner, Castillo. Sublett noted that he was not “aware of who” owned the

property, he was not “required to notify the landowner” about the complaints and

the incident, and PACD incident reports are not “publicized anywhere.” See Univ.

of Tex. at Austin v. Bellinghausen, No. 03-14-00749-CV, 2016 WL 462735, at *3

(Tex. App.—Austin Feb. 3, 2016, no pet.) (mem. op.) (university had no “actual

knowledge” of dangerous condition without receipt of prior reports of accidents or

injuries); Baker v. Pennoak Props., Ltd., 874 S.W.2d 274, 277–78 (Tex. App.—

Houston [14th Dist.] 1994, no writ) (landlord had no actual knowledge of dog’s

vicious propensities based on affidavit testimony “no incidents had been reported

concerning this particular dog”); see also Univ. of Tex.–Pan Am. v. Aguilar, 251

S.W.3d 511, 513 (Tex. 2008) (“Although there is no test for determining actual

knowledge that a condition presents an unreasonable risk of harm, courts generally

consider whether the premises owner has received reports of prior injuries or reports

of the potential danger presented by the condition.”).



3
      In her reply brief, Ortega admits that Phan-Tran “had clearly not seen” PACD’s
      records. Further, at the hearing on Phan-Tran’s summary-judgment motion,
      Ortega’s counsel informed the trial court that there is no evidence that Phan-Tran
      had “received . . . complaints from the neighbors.”


                                          10
         Finally, although we may make “reasonable inferences” in determining

whether Phan-Tran had “actual knowledge” of the dangerous propensities of

Castillo’s dogs, “[u]nreasonable inferences do not constitute . . . evidence

of . . . actual knowledge.” Am. Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126,

132, 141–42 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). And “actual

knowledge” cannot be established by stacking one inference upon another.

Ruvalcaba, 64 S.W.3d at 142; see also Schlumberger Well Surveying Corp. v. Nortex

Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex. 1968) (“[A] vital fact may not be

established by piling inference upon inference, as would be required in this case.”);

Tex. & N. O. R. Co. v. Burden, 203 S.W.2d 522, 531 (Tex. 1947) (explaining “an

inference may not be drawn from another inference” and “[i]nferences cannot be

pyramided”).

         Because there is no evidence that Phan-Tran had “actual knowledge” of the

dangerous propensities of Castillo’s dogs, we hold that Phan-Tran owed no duty to

A.G.T. See Batra, 110 S.W.3d at 130. Accordingly, we further hold that the trial

court did not err in granting Phan-Tran summary judgment on Ortega’s negligence

claim.

         We overrule Ortega’s first issue.




                                             11
Public Nuisance

      “A nuisance is a condition that substantially interferes with the use and

enjoyment of land by causing unreasonable discomfort or annoyance to persons of

ordinary sensibilities.” Barnes v. Mathis, 353 S.W.3d 760, 763 (Tex. 2011). A

public nuisance “affects the public at large” by “adversely affect[ing] either the

entire community, a public gathering place, or even a considerable portion of the

citizenry.” Walker v. Tex. Elec. Serv. Co., 499 S.W.2d 20, 27 (Tex. Civ. App.—Fort

Worth 1973, no writ) (internal quotations omitted); cf. Mathis v. Barnes, 377 S.W.3d

926, 930 (Tex. App.—Tyler 2012, no pet.) (“A private nuisance affects an individual

or a small number of individuals rather than the public at large.”).

        Generally, for an actionable nuisance to arise, “a defendant must . . . engage

in one of three kinds of activity: (1) intentional invasion of another’s interest;

(2) negligent invasion of another’s interests; or (3) other conduct, culpable because

[it is] abnormal and out of place in its surroundings, that invades another’s interest.”

Tex. Woman’s Univ. v. Methodist Hosp., 221 S.W.3d 267, 285 (Tex. App.—Houston

[1st Dist.] 2006, no pet.) (internal quotations omitted); see also City of Tyler v. Likes,

962 S.W.2d 489, 503–04 (Tex. 1997). When, as here, a claim of public nuisance is

grounded in negligence, the plaintiff must allege and prove a legal duty owed to her,

a breach of that duty by the defendants, and damage proximately resulting from the




                                           12
breach.4 Sage v. Wong, 720 S.W.2d 882, 885 (Tex. App.—Fort Worth 1986, writ

ref’d n.r.e.); see also Collins Constr. Co. of Tex. v. Tindall, 386 S.W.2d 218, 220

(Tex. Civ. App.—Eastland 1965, writ ref’d n.r.e.) (“[W]here an act or a condition

can become a nuisance solely by reason of the negligent manner in which it [was]

performed or permitted, . . . no right of recovery can be shown independently of the

existence of negligence . . . .” (internal quotations omitted)).

      Having held that Phan-Tran owed no duty to A.G.T. in regard to the

negligence claim, we further hold that the trial court did not err in granting Phan-

Tran summary judgment on Ortega’s public-nuisance claim. See Randall Noe

Chrysler Dodge, LLP v. Oakley Tire Co., 308 S.W.3d 542, 548–49 (Tex. App.—

Dallas 2010, pet. denied) (holding summary judgment proper on nuisance claim after

holding summary judgment proper on negligence claim); Weingarten Realty Inv’rs.

v. Universal Servs. Co., No. 01-96-01400-CV, 1997 WL 689435, at *7 (Tex. App.—

Houston [1st Dist.] Oct. 23, 1997, pet. denied) (not designated for publication)

(holding summary judgment proper on claim of nuisance grounded in negligent

conduct “in light of [prior] holding that no duty existed”); see also Sage, 720 S.W.2d

at 885–86 (affirming dismissal of nuisance claim based on negligence where party


4
      Ortega does not allege in her petition, and she does not contend on appeal, that her
      nuisance claim is grounded in intentional conduct or conduct that is abnormal and
      out of place in its surroundings. See City of Tyler v. Likes, 962 S.W.2d 489, 503–
      04 (Tex. 1997); Tex. Woman’s Univ. v. Methodist Hosp., 221 S.W.3d 267, 285 (Tex.
      App.—Houston [1st Dist.] 2006, no pet.).


                                           13
failed to allege breach of legal duty or proximate cause); cf. Tex. Woman’s Univ.,

221 S.W.3d at 285 (holding summary judgment improper on party’s nuisance claim

where summary judgment improper on party’s negligence claim because fact issue

raised as to whether duty owed).

      We overrule Ortega’s second issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                             Terry Jennings
                                             Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.




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