                                NO. 07-09-0241-CV

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                  AT AMARILLO

                                     PANEL A

                               SEPTEMBER 1, 2010




                KELLY KANTON LABAJ AND THIRD COAST AUTO
                         GROUP, LP, APPELLANTS

                                         v.

                        DEEANN VANHOUTEN, APPELLEE



             FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY;

          NO. D-1-GN-08-000492; HONORABLE SCOTT JENKINS, JUDGE




Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                     OPINION

      Appellants, Kelly Kanton Labaj and Third Coast Auto Group, LP (collectively

"TCAG"), appeal from a judgment rendered in favor of Appellee, DeeAnn VanHouten,

following a jury trial of her dog bite case. VanHouten was awarded $50,000 in actual

damages. TCAG asserts the trial court erred in failing to grant its motions for: (1)

summary judgment; (2) directed verdict; and (3) a new trial because there was no
evidence that the dog in question had dangerous propensities that were abnormal for an

animal of her class. We affirm.


                                       Background


       In May 2007, TCAG operated a used car lot in Travis County, Texas. VanHouten

was a TCAG employee working at the lot as a title clerk. On May 30, VanHouten left

the front office to check her car for licensing papers. 1 When she reached the garage,

she asked Jose Salguero where her car was located. He indicated her car was in the

back lot. VanHouten was unaware there was a dog on the back lot.


       As VanHouten was walking through the back lot, she saw a Ford Mustang in the

"make ready" area 2 that she thought she might like to purchase. As she was looking in

the Mustang, she heard a movement or rustle and observed the roof of a doghouse

through the car's rear window. Believing a dog might be nearby, she decided to walk

away. At that moment, a dog came from behind the Mustang and startled VanHouten.

She froze and the dog lunged, attached its jaws to her leg, began shaking her, and

pulled her to the ground. When her screams were heard in the repair garage, Jose

approached and removed the dog. A portion of VanHouten's leg muscle had been

detached from her leg during the attack. An ambulance was called and VanHouten was

taken to a local hospital.


1
 Her vehicle was on the lot for the purpose of being repaired. VanHouten was responsible for
any repair costs.
2
 The "make ready" area of the car lot was where TCAG serviced and cleaned used cars in
anticipation of offering them for sale.

                                             2
       VanHouten subsequently filed suit alleging in her amended petition three theories

of liability against TCAG: (1) strict liability, (2) negligent handling, and (3) negligence.

Under the first theory, she alleged TCAG was liable for her injuries because they knew

or should have known of the dog's dangerous and vicious propensities. Her second

theory alleged TCAG failed to exercise reasonable care to prevent the dog from injuring

her. And, her third theory alleged TCAG failed to keep the premises safe, properly

contain the dog, or warn others of its presence.


       Following a two day trial, the trial court submitted the following Questions to the

jury, in pertinent part, and received the following answers:


       QUESTION NO. 2.
             At the time of the occurrence in question, did [the dog] have
       dangerous propensities abnormal to its class?
       ANSWER: No.
       QUESTION NO. 5.
             On the occasion in question, was VanHouten an invitee on that part
       of [TCAG's] premises under consideration?
       ANSWER: Yes.
       QUESTION NO. 6.
              Did the negligence, if any, of those named below proximately cause
       the occurrence in question?
       ANSWER: Yes [as to Labaj and TCAG].




       In accord with the jury's verdict, the trial court issued a judgment awarding

$50,000 in actual damages to VanHouten. Thereafter, TCAG filed a motion for new

trial asserting VanHouten's evidence was legally insufficient because she failed to
                                             3
show the dog had dangerous propensities.           TCAG's motion was denied and this

appeal followed.


       Issues One and Two: Summary Judgment and Directed Verdict


       TCAG appeals the trial court's denial of its motions for summary judgment and

directed verdict asserting VanHouten failed to prove as a matter of law that the dog in

question had dangerous propensities that were abnormal for an animal of her class.


       Neither ruling by the trial court is reviewable on appeal. Texas law is settled

that the denial of a motion for summary judgment may not be challenged on appeal

from a final judgment following trial. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365

(Tex. 1966).    See Moore v. Jet Stream Investments, LTD., 261 S.W.3d 412, 427

(Tex.App.--Texarkana 2008, pet. denied) (collected cases cited therein). 3 Texas law is

also settled that a defendant who moves for a directed verdict after the plaintiff rests,

but thereafter elects not to stand on his motion for directed verdict and proceeds with

the presentation of evidence, waives any complaint regarding the denial of that motion.

Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 412 (Tex.App.--

Amarillo 2003, pet. denied) (citing Cliffs Drilling Co. v. Burrows, 930 S.W.2d 709, 712

(Tex.App.--Houston [1st Dist.] 1996, no writ)). See Vermillion Constr. Co. v. Fidelity &

Deposit Co. of Maryland, 526 S.W.2d 744, 748 (Tex.App.--Corpus Christi 1975, no

writ) (collected cases cited therein).      Accordingly, TCAG's first two issues are

overruled.
3
 TCAG argues no exception to the general rule that a denial of summary judgment is
interlocutory and unappealable. See, e.g., Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d
1, 5 (Tex. 1999); Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980).

                                              4
      Issue Three


      TCAG asserts the trial court erred in denying its motion for a new trial for the

single reason that the jury did not find that the dog in question had dangerous

propensities which were abnormal for an animal of her class. A motion for a new trial

is a proper predicate for preserving a legal sufficiency challenge. Aero Energy, Inc. v.

Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985). See Allison v. Acel Parks, 763

S.W.2d 606, 607 (Tex.App.--Fort Worth 1989, pet. denied).


      Standard of review


      In reviewing rulings on motions for directed verdicts, motions for new trial based

on no-evidence and judgments notwithstanding the verdict, appellate courts apply the

no-evidence standard. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005);

McGuire, Craddock, Strother & Hale, P.C. v. Transcontinental Realty, 251 S.W.3d 890,

895 (Tex.App.BDallas 2008, pet. denied); Arroyo Shrimp Farm, Inc. v. Hung Shrimp

Farm, Inc., 927 S.W.2d 146, 149 (Tex.App.--Corpus Christi 1996, no pet.). The court

considers the evidence in a light most favorable to the challenged finding, indulges

every reasonable inference to support it; Wilson, 168 S.W.3d at 822, credits favorable

evidence if reasonable jurors would and disregards contrary evidence unless

reasonable jurors would not. Id. at 827.


      A challenge to the legal sufficiency of evidence will be sustained when, among

other things, the evidence offered to establish a vital fact does not exceed a scintilla.

Kroger Tex. Ltd. P=ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006). Evidence does

not exceed a scintilla if it is Aso weak as to do no more than create a mere surmise or
                                            5
suspicion@ that the fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.

2004)(quoting Kindred v. Con/Chem, Inc. 650 S.W.2d 61, 63 (Tex. 1983)). And, so

long as the evidence falls within the zone of reasonable disagreement, we may not

invade the fact-finding role of jurors, who alone determine the credibility of witnesses,

the weight to be given their testimony, and whether to accept or reject all or part of

their testimony. Wilson, 168 S.W.3d at 822.


       Negligent Handling


       TCAG asserts VanHouten could only establish her negligence action if she

proved TCAG knew or should have known the dog had dangerous propensities that

were abnormal to her class. Because the jury answered "No" to Question 2 and

determined that the dog did not have dangerous propensities abnormal to her class,

TCAG asserts VanHouten's evidence was legally insufficient to establish TCAG was

negligent in handling or keeping the dog.


       If an animal is vicious or has aggressive tendencies and the owner has

knowledge of that propensity, the owner can be subject to liability under the law of strict

liability. Marshall v. Rannes, 511 S.W.2d 255, 258 (Tex. 1974); Belger v. Sweeney, 836

S.W.2d 752, 754 (Tex.App.--Houston [1st Dist.] 1992, writ denied).         However, if an

animal is non-vicious, the owner may still be subject to liability for negligent handling of

the animal. Marshall, 511 S.W.2d at 258. Therefore, generally, "[t]he gist of an action

to recover for injury caused by a domestic animal, resulting from something other than

known propensities, is usually negligence of the owner or keeper in the keeping or

handling of the animal." Koepke v. Martinez, 84 S.W.3d 393, 396 (Tex.App.--Corpus

                                             6
Christi 2002, pet. denied) (citing Dunnings v. Castro, 881 S.W.2d 559, 562 (Tex.App.--

Houston [1st Dist.] 1994, pet. denied)).


       The Restatement (Second) of Torts addresses the liability for harm caused by

domestic animals that are not abnormally dangerous and provides that "one who

possesses . . . a domestic animal that he does not know or have reason to know to be

abnormally dangerous, is subject to liability for harm caused by the animal if, but only if,

(a) he intentionally causes the animal to do harm, or (b) he is negligent in failing to

prevent harm." Restatement (Second) of Torts § 518 (1977). Comment (h) to section

518 states:


       One who keeps a domestic animal that possesses only those dangerous
       propensities that are normal to its class is required to know its normal
       habits and tendencies. He is therefore required to realize that even
       ordinary gentle animals are likely to be dangerous under particular
       circumstances and to exercise reasonable care to prevent foreseeable
       harm . . . . So, too, the keeper of an ordinary bitch or cat is required to
       know that while caring for her puppies or kittens she is likely to attack
       other animals and human beings.

Id. § 518 cmt. (h).


       Thus, 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 the owner's negligent handling or keeping

of the animal caused the injury. Dunnings, 881 S.W.2d at 562-63. To recover on such

a claim, a plaintiff must prove: (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. Thompson v. Curtis, 127 S.W.3d 446,

                                             7
451 (Tex.App.--Dallas 2004, no pet.) (citing Allen ex rel. B.A. v. Albin, 97 S.W.3d 655,

660 (Tex.App.--Waco 2002, no pet.)).


       Whether a duty exists is a threshold question of law that we decide from the facts

surrounding the case. Allen, 97 S.W.3d at 665 (citing Thapar v. Zezulka, 994 S.W.2d

635, 637 (Tex. 1999)). In cases where a person is injured on the premises of another,

including dog bite cases, the duty owed by the landowner depends on the status of the

person injured on the premises. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536

(Tex. 1975). See Dunnings, 881 S.W.2d at 563; Gill v. Rosas, 821 S.W.2d 689, 691

(Tex.App.--El Paso 1991, no pet.); Searcy v. Brown, 607 S.W.2d 937, 941 (Tex.App.--

Houston [1st Dist.] 1980, no writ); Arrington Funeral Home v. Taylor, 474 S.W.2d 299,

302 (Tex.Civ.App.--Eastland 1971, writ ref'd n.r.e.). "If the plaintiff [is] on the premises

as an invitee, it [is] the defendant's duty to exercise ordinary care to keep his premises

in a reasonably safe condition, so that the plaintiff would not be injured; on the other

hand, if the plaintiff [is] on the premises merely as a licensee, the only duty that the

defendant owe[s] him [is] not to injure him willfully, wantonly or through gross

negligence." Searcy, 607 S.W.2d at 941. Here, TCAG does not contest the jury's

determination that VanHouten was an invitee. 4         Accordingly, TCAG owed a duty to

VanHouten to exercise reasonable care to keep its premises in a reasonably safe


4
The jury charge defined an "invitee" as follows:

       [A] person who is on the premises at the express or implied invitation of the
       possessor of the premises and who has entered thereon either as a member of
       the public for a purpose for which the premises are held open to the public or for
       a purpose connected with the business of the possessor that does or may result
       in their mutual economic benefit.

                                               8
condition so as not to injure her. See Dunnings, 881 S.W.2d at 563; Gill, 821 S.W.2d at

689; Rosas, 518 S.W.2d at 536.


       Whether a duty exists, in dog bite cases, also depends to some 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. Gill, 821 S.W.2d at 691;

see Dunnings, 881 S.W.2d at 564. A party should not be held responsible for the

consequences of an act that cannot be reasonably foreseen; Dawkins, 375 S.W.2d at

344, and there is no duty to warn of danger when no danger is anticipated. Watkins v.

Beiker, 579 S.W.2d 519, 522 (Tex.Civ.App.--Tyler 1979, no writ).


       Where the owner or keeper of a dog owes someone a duty of reasonable care to

prevent the animal from harming them, the law is clear that liability may attach even

though the injured person does not establish the dog had dangerous propensities

abnormal to its class. Bushnell v. Mott, 254 S.W.3d 451, 452 (Tex. 2008); Marshall, 511

S.W.2d at 259. See Allen, 97 S.W.3d at 660; Dunnings, 881 S.W.2d at 562-63. Thus,

a plaintiff satisfies his burden of proof by establishing that the owner had actual or

constructive notice of facts that would put an ordinary person on notice that the animal

could cause harm and the owner was negligent in preventing such harm. Hill v. Palms,

237 S.W.2d 455, 456 (Tex.App.--Amarillo 1950, no writ.). See Dunnings, 881 S.W.2d at

563-64; Dawkins v. Van Winkle, 375 S.W.2d 341, 344 (Tex.Civ.App.--Waco), writ dism'd

w.o.j., 377 S.W.2d 830 (Tex. 1964).       Whether the owner had actual or constructive

notice is a question of fact for the jury. See Pate v. Yeager, 552 S.W.2d 513, 516

(Tex.Civ.App.--Corpus Christi 1977, writ ref'd n.r.e.).

                                             9
       Steven Quiroz, TCAG's manager, testified at trial that the dog had been on the lot

for several weeks before the incident. 5 The dog was on the lot as a guard dog and was

intended to deter anyone from vandalizing or stealing parts from cars parked on its lot.

Quiroz testified the dog was chained to a fence nine to twelve hours a day and let loose

in the lot at night. He described the dog as an aggressive security guard who he "just

didn't want to have an encounter with . . . period." He also described the dog as a pit

bull, a "more aggressive breed than [an] average dog." "It was a big dog, he would not

have gone up to the dog specifically to pet it." "His main thought was during the day

that thing--the dog better be, you know, put up because, obviously, we have clientele

and we have workers there, so that was my main concern."


       Quiroz went on to testify he had no knowledge of the dog's history but the dog

had "no known biting [or] dangerous propensities" prior to the incident. That said, when

asked if he forgot something at the lot whether he would return at night, Quiroz

answered he "would not go into the office if the pit bull were free," but would "wait until

the next morning." He also testified that, approximately a week and a half before the

incident, the pit bull had puppies and "generally a dog that has just had puppies is going

to be in the frame of mind to protect those puppies." He also admitted he "didn't take

any precautions" to protect employees or customers from the dog, and that "anybody

could have come through the gate" into the area where the dog was kept chained during

the day. There were no signs warning of the presence of a guard dog on the lot. Gina

5
 TCAG does not dispute the ownership of the dog or that it was a "keeper" of that dog. With
TCAG's permission, the actual owner of the dog, Jose Salguero, a mechanic at TCAG, kept the
dog on the lot as a guard dog. Jose chained the dog up in the morning when he arrived and let
the dog loose at night when he left work.

                                             10
Salguero, Jose's wife, testified that, prior to the incident, the dog had escaped from

TCAG's lot and was hit by a car. The dog suffered a cracked hip in two places and a

bladder injury but was recuperating on its own. 6


       Under these circumstances, we cannot say that the evidence is "so weak as to

do no more than create a mere surmise or suspicion" that Quiroz had actual or

constructive notice of facts that would lead a reasonable person to the conclusion that

the dog could cause harm, or react with aggression, if an employee or customer

unwittingly came upon the dog at the lot. Quiroz characterized the dog as "big" and

"aggressive."     He also described the dog's breed as "more aggressive" than the

average dog. Although he was concerned for his own safety around the dog as well as

the safety of his clientele and employees, he testified he took no precautions to protect

them. Furthermore, the dog was injured and caring for its pups.


       Quiroz's testimony establishes that, without adequate precautions, it was

foreseeable that the dog might harm the public and/or TCAG's employees. 7

Accordingly, we find TCAG owed a duty to see that invitees were adequately warned of

the dog's presence and the dog was in no position to attack such persons.                       See

Arrington Funeral Home, 474 S.W.2d at 302. See also Dunnings, 881 S.W.2d at 563-

64. Having reviewed the entire record, we also find there is more than a scintilla of


6
A veterinarian recommended surgery and placing pins in the dog's hip, however, the treatment
was not performed.
7
 Foreseeability is satisfied by showing the actor as a person of ordinary intelligence should have
anticipated the danger to others by his negligent act. Searcy, 607 S.W.2d at 942. It is not
required that the actor anticipate just how the injury will grow out of the particular situation. Id.
(citing Missouri Pacific Railroad Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex. 1977)).

                                                 11
evidence to support the jury's determination that TCAG breached its duty and

proximately caused VanHouten's injuries. Accordingly, we hold VanHouten's evidence

of TCAG's negligence was legally sufficient.


         "Where it was supposed to be"


         TCAG also contends that because VanHouten did not prove the dog had

dangerous propensities that were abnormal for that class of animal, it cannot be held

liable for the incident because the dog "was where it was supposed to be."


         The "where it is supposed to be" rule is simply a restatement of the test for strict

liability. 8   This rule was first stated in Lewis v. Great Southwest Corporation, 473

S.W.2d 228, 231 (Tex.Civ.App.--Fort Worth 1971, writ ref'd n.r.e.) in that portion of the

opinion analyzing the plaintiff's strict liability claim as follows:


         With regard to an animal not naturally vicious, the general rule, in the
         absence of a statute, is that the owner of the animal is not answerable for
         injuries done by it when in a place where it had a right to be, unless, it
         was, in fact and to the owner's knowledge, vicious or dangerous. If being
         therefore of a peaceable disposition, it suddenly and unexpectedly, while
         in the charge of its owner or his servants, inflicts injury on another, neither,
         if at that time due care was exercised, is answerable. 4 Am.Jur.2d,
         Animals, § 86, p. 332.
Id. at 231.

         Further, the cases cited by TCAG are inapposite. In these cases, a pet dog

either bit someone on the homeowner's premises; Searcy, 607 S.W.2d at 939, 941


8
 Suits for damages caused by known vicious animals are governed by principles of strict liability,
predicated upon a showing of the vicious or aggressive tendencies of the animal and the
owner's knowledge of that propensity. Marshall, 511 S.W.2d at 258; Dunnings, 881 S.W.2d at
562.

                                                12
(licensee on the owner's property); Rodriquez v. Haddock, No. 02-01-0386-CV, 2003

Tex. App. LEXIS 2940, at *2 (Tex.App.--Fort Worth April 3, 2003, no pet.) (not

designated for publication) (guest bitten in owner's home); Petry v. Gasca, No. A14-93-

00433-CV, 1994 Tex. App. LEXIS 821, at *1-2 (Tex.App.--Houston [14th Dist.] April 14,

1994, no writ.) (not designated for publication) (guest bitten in owner's home), or in a

closed store without invitation and contrary to instructions to wait in the car. Jones v.

Gill, No. 02-03-0298-CV, 2005 Tex. App. LEXIS 1726, at *2-3 (Tex.App.--Fort Worth

March 3, 2005, no pet.).


      In Searcy, the court discussed the injured person's status while on the owner's

property and determined the injured person was a licensee; Searcy, 607 S.W.2d at 941-

42, while, in Jones, the court noted the person was in the store while it was closed and

uninvited. Jones, 2005 Tex. App. LEXIS 1726, at *17. Because the persons bitten in

Searcy and Jones were licensees, the defendant had no common law duty to either

warn the licensee or make the conditions safe and the plaintiff's standard of proof was

much higher---willful, wanton, or gross negligent conduct; Searcy, 607 S.W.2d at 941,

than simple negligence. Marshall, 511 S.W.2d at 259.


      Here, the dog in question was not being subjected to treatment normally

accorded a domestic dog or family pet in his owner's home or on his property. On the

contrary, the dog was an aggressive, guard dog whose purpose was to protect TCAG's

commercial property from vandalism and theft. The dog was chained for hours a day,

exposed to the elements, seeking shelter under vehicles, injured and taking care of her

young. Animals subjected to this type of treatment may well become frightened, overly

                                           13
protective and dangerous.     As the dog's owner or keeper, TCAG is charged with

knowledge of these facts. See Restatement (Second) of Torts § 518 cmt. (h) (1977).

Further, unlike the cases cited by TCAG, VanHouten was an invitee to whom TCAG

owed a duty to warn and to keep the premises in a reasonably, safe condition.

Accordingly, TCAG's third issue is overruled.


                                      Conclusion


      The trial court’s judgment is affirmed.



                                                   Patrick A. Pirtle
                                                       Justice




                                            14
