
                            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.

       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 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.

      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.(Dallas 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 (so weak as  to  do  no  more  than  create  a  mere
surmise or  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 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, 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 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.).

      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  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 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  (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  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










-----------------------
[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.

[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]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.

[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.

[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)).

[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.



