                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-15-00352-CV
                           ____________________

                ANGELA OSORE, INDIVIDUALLY AND ON
                BEHALF OF B.W., B.E., AND Q.H., Appellant

                                        V.

                    LILY REED, WILLIAM WATSON
                  AND WATSON ENTERPRISES, Appellees

________________________________________________________________________

                   On Appeal from the 258th District Court
                            Polk County, Texas
                        Trial Cause No. CIV28799A
________________________________________________________________________

                         MEMORANDUM OPINION

      Angela Osore, individually and on behalf of her minor children B.W., B.E.,

and Q.H. (Appellant or Plaintiff), filed this appeal from the trial court’s summary

judgment in favor of Defendants Lily Reed, William Watson, and Watson

Enterprises (collectively Appellees or the Watson Defendants). We affirm.




                                        1
                                     Background

      Plaintiff filed suit on September 4, 2014. According to Plaintiff’s live petition

at the time of the summary judgment hearing (“the petition”), on September 2, 2012,

Jodi Sanders was locked out of the property that Sanders was renting as a residence,

and Sanders asked Angela Osore’s minor son to help Sanders get back into her

house. According to the petition, two of Angela Osore’s minor children attempted

to assist Sanders, and Sanders’s dog charged the children and attacked one of the

children. Plaintiff alleged that the child who was attacked received treatment for

severe wounds and plastic surgery for lacerations to the face. Plaintiff sued Sanders

and the Watson Defendants for negligence, negligence per se, negligent infliction of

emotional distress as to the minor child who was attacked, and as to Angela Osore

and the other minor children, negligent infliction of emotional distress as bystanders

who witnessed the attack. Plaintiff alleged that the Watson Defendants were strictly

liable because they retained control over the premises through a lease agreement that

required a pet deposit, they had “knowledge or constructive knowledge of Ms.

Sanders[’s] pit bull trait for attacking persons and other animals[,]” and they “failed

to make the premises safe[.]”

      The Watson Defendants filed an answer generally denying Plaintiff’s

allegations and asserting, among other things, that the accident “was proximately

                                          2
caused by the negligence of third-persons over whom [the Watson Defendants] had

no right of control” and the Watson Defendants were not legally responsible.

Appellees also asserted that they did not have actual knowledge that the dog had

vicious propensities.

      On April 30, 2015, the Watson Defendants filed Defendants’ Traditional and

No-Evidence Motions for Summary Judgment. The motion for summary judgment

alleged that Watson Enterprises was Osore’s and Reed’s landlord, Dr. William

Watson was an employee/owner of Watson Enterprises, and Reed was an employee

of Watson Enterprises. The motion asserted that the plaintiff could not prevail under

any of the tort claims against the Watson Defendants because “Watson Enterprises,

as landlord for Sanders, had no duty to [plaintiff] under Texas law[,]” and “[a]s

employees of Watson Enterprises, this defense would equally apply to Reed and Dr.

Watson.” The Watson Defendants attached the following to the motion as summary

judgment evidence: the petition, a transcript of Angela Osore’s April 15, 2015

deposition, the opinion in Batra v. Clark, 110 S.W.3d 126 (Tex. App.—Houston [1st

Dist.] 2003, no pet.), and an attorney’s affidavit stating that the copy of Angela

Osore’s deposition is a true and correct copy.

      On July 1, 2015, Plaintiff filed a response to the motion for summary

judgment and a motion for continuance. Plaintiff’s counsel alleged that “Ms. Osore

                                         3
has hindered his ability to conduct discovery because she may have a disability that

prevents her from being able to correctly and consistently provide evidence or

witnesses’ names[,]” and that Ms. Osore’s children are minors and “also possess

behavior disabilities.” Plaintiff’s counsel attached as an exhibit an “Affidavit of

Attempted Service” in support of his argument that Ms. Sanders was difficult to

serve with the lawsuit and that he was “attempting to garner an affidavit from a

witness who was attacked by the dog who has moved from the residence near Ms.

Sanders.” Plaintiff’s counsel argued that an adequate period of discovery had not yet

transpired and that the Watson Defendants’ summary judgment motion was

premature. Plaintiff also argued in her response that there were genuine issues of fact

that the dog was kept on the premises in violation of the lease provisions that outline

the characteristics of a dog that could be kept on the premises. Plaintiff asserted that

there is more than a scintilla of evidence in the pleadings and discovery as to the

Watson Defendants’ retaining substantial control of the premises and ability to

remove the dog but that they did not do so after having knowledge of the dog’s

dangerous propensities. According to Plaintiff, the knowledge of the dog’s

propensity for violence is established by written discovery showing “the dog[’]s

intimidating barking and destructive damage to the house blinds when anyone came

near the house[.]”

                                           4
      In her response to the motion for summary judgment, and at the summary

judgment hearing on July 6, 2015, Plaintiff argued that just because the Watson

Defendants are located offsite does not mean they are an “out-of possession”

landlord, and their own discovery answers and lease provisions affirmatively show

that they are an “in possession” landlord because they maintain control over the

premises such as repairs, inspection, lawn maintenance, and enforcement of

regulations of the lease provisions. After the hearing, the trial court denied Plaintiff’s

motion for continuance and granted the Watson Defendants’ motion for traditional

and no-evidence summary judgment. On July 28, 2015, the Watson Defendants filed

a motion requesting the trial court to sever all claims against them from the case

against Sanders and assign the severed cause a new cause number. The trial court

granted the motion. Plaintiff appealed.

                                   Issues on Appeal

      In her first issue, Appellant argues that the trial court erred in denying her

motion for continuance. In issues two, three, four, and five, she contends the trial

court erred in granting summary judgment because the Watson Defendants had a

duty to Appellant to remove the dog from the premises the Watson Defendants

controlled, the Watson Defendants had actual knowledge of the dog’s presence or

propensity for violence, the Watson Defendants had imputed knowledge of the dog’s

                                            5
presence or propensity for violence, and the Landlord was not an out-of-possession

landlord. In issue six, Appellant argues the trial court erred in granting Defendant

Reed’s and Defendant Watson’s motion to sever. In issue seven, Appellant contends

the trial court, in granting the summary judgment, demonstrated bias and “failed to

give due consideration to all the evidence and the Plaintiff’s pleadings[.]”

                         Denial of Motion for Continuance

      In her first issue, Appellant argues that the trial court erred in denying her

motion for continuance “given the complexity of the case, disability of all the

plaintiffs, and avoidance of process by [defendant] Jodi Sanders[.]” Appellant argues

that the trial court should have granted the continuance in order for Appellant to

serve Sanders “with discovery request and notice of depositions given her avoidance

of service of process and the materiality of her testimony.” Plaintiff’s counsel stated

in the motion for continuance that Angela Osore and her children suffer from

attention deficit disorder that “slows discovery.”

      Both a trial court’s denial of a motion for continuance and its determination

that there has been an adequate time for discovery are reviewed under an abuse of

discretion standard. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789,

800 (Tex. 2002) (stating that denial of motion for continuance is reviewed for abuse

of discretion standard); Rest. Teams Int’l, Inc. v. MG Secs. Corp., 95 S.W.3d 336,

                                          6
339 (Tex. App.—Dallas 2002, no pet.) (stating that trial court’s determination that

there has been adequate time for discovery is reviewed for abuse of discretion). A

trial court abuses its discretion if it acts in an arbitrary or unreasonable manner

“without reference to any guiding rules and principles.” See Garcia v. Martinez, 988

S.W.2d 219, 222 (Tex. 1999). “The mere fact that a trial judge may decide a matter

. . . in a different manner than an appellate judge in a similar circumstance does not

demonstrate that an abuse of discretion has occurred.” Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).

      Rule 166a(g) of the Texas Rules of Civil Procedure permits a trial court to

grant a continuance to the party opposing a motion for summary judgment if that

party files an affidavit setting forth the reasons the party cannot present the facts

necessary to respond to the summary judgment motion. Tex. R. Civ. P. 166a(g). An

affidavit seeking a continuance to obtain additional evidence must describe the

evidence sought, explain its materiality, and demonstrate that the party requesting

the continuance has used due diligence to timely obtain the evidence. D.R. Horton-

Tex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 222-23 (Tex. App.—

Fort Worth 2013, no pet.). In deciding whether the trial court abused its discretion

in denying a motion for continuance seeking additional time to conduct discovery or

to obtain evidence, a court should consider the following nonexclusive factors: the

                                          7
length of time the case has been on file, the materiality and purpose of the discovery

sought, and whether the party seeking the continuance exercised due diligence to

obtain the requested discovery. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d

150, 161 (Tex. 2004); D.R. Horton, 416 S.W.3d at 223 (citing Two Thirty Nine Joint

Venture, 145 S.W.3d at 161).

      Plaintiff’s case had been filed for approximately ten months when the trial

court denied the motion for continuance. In the motion for continuance, Plaintiff

alleged that Sanders “could provide testimony as to Landlord[’]s knowledge of the

dangerous propensities[.]” Plaintiff, however, failed to include an affidavit of her

attorney regarding the evidence sought, explaining the evidence’s materiality, or

demonstrating that Plaintiff had exercised due diligence in securing Sanders’s

deposition or discovery responses.1 In the motion for continuance, Plaintiff’s counsel

stated the process server had difficulty in serving Sanders with the suit, and

Plaintiff’s counsel attached an unsworn “affidavit” by the process server setting out

his attempts at service of interrogatories. However, the motion for continuance



      1
        Plaintiff’s counsel, however, did attach his affidavit to Plaintiff’s Motion for
Reconsideration and Amended Motion for Reconsideration. We note that the
affidavit was sworn to on July 28, 2015, after the trial court ruled on the motion for
continuance and summary judgment motion, and that the affidavit did not state what
attempts, if any, Plaintiff made to secure Sanders’s deposition or discovery
responses.
                                           8
lacked any affidavit from Plaintiff’s counsel explaining the efforts made to notice or

compel Sanders’s deposition or to obtain discovery responses, nor did it contain an

explanation regarding the evidence sought and its materiality, or any demonstration

regarding the exercise of due diligence.

      In denying the motion for continuance, the trial court could have determined

that Sanders’s testimony was immaterial because, as discussed below, the Watson

Defendants were out-of-possession landlords who owed no duty to Plaintiff. Even if

the trial court believed Sanders’s testimony was material, the trial court could have

also reasonably concluded any of the following: this dog-bite incident occurred years

before the hearing and the case had already been on file ten months, Plaintiff failed

to use due diligence in obtaining Sanders’s testimony or discovery responses, or

Plaintiff failed to attach an affidavit under Rule 166a(g) in support of her motion for

continuance. See Tex. R. Civ. P. 166a(g); see also, e.g., Schronk v. Laerdal Med.

Corp., 440 S.W.3d 250, 263-64 (Tex. App.—Waco 2013, pet. denied) (trial court

did not abuse its discretion in denying parties’ motion for continuance of summary

judgment hearing based on the need to conduct additional discovery where the

parties failed to demonstrate that they exercised due diligence in obtaining the

additional discovery needed); Landers v. State Farm Lloyds, 257 S.W.3d 740, 747

(Tex. App.—Houston [1st Dist.] 2008, no pet.) (party seeking continuance of a

                                           9
summary judgment hearing based on need to conduct further discovery must support

its motion with an affidavit stating with particularity what due diligence the part used

to obtain the needed evidence); Allen v. United of Omaha Life Ins. Co., 236 S.W.3d

315, 325-26 (Tex. App.—Fort Worth 2007, pet. denied) (no abuse of discretion in

denying party’s motion for continuance of summary judgment hearing based on the

need to take witness depositions where case was on file fourteen months before

summary judgment motion was filed). We conclude the trial court did not abuse its

discretion in denying Plaintiff’s motion for continuance. Issue one is overruled.

                                 Summary Judgment

      In issues two, three, four, and five, Appellant argues the trial court erred in

granting summary judgment because Appellant provided more than a scintilla of

proof that the Watson Defendants maintained control over Sanders’s residence and

that the Watson Defendants knew the dog was on the property and that Sanders often

hid the dog in other rooms to protect guests. Appellant also argues that the pit bull’s

“notoriety in the community” created genuine issues of fact as to whether the Watson

Defendants had actual or constructive knowledge of the dog’s propensity for

violence.

      In a traditional motion for summary judgment, if the movant’s motion and

summary-judgment evidence facially establish the movant’s right to judgment as a

                                          10
matter of law, the burden shifts to the nonmovant to raise a genuine, material fact

issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst.

v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In reviewing a no-evidence summary

judgment, we ascertain whether the nonmovant pointed out summary-judgment

evidence raising a genuine issue of fact as to the essential elements of the claim as

outlined in the no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d

193, 206-08 (Tex. 2002). In our de novo review of a trial court’s summary judgment,

we consider all the evidence in the light most favorable to the nonmovant, crediting

evidence favorable to the nonmovant if reasonable jurors could, and disregarding

contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez,

206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if

reasonable and fair-minded jurors could differ in their conclusions in light of all the

summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d

754, 755 (Tex. 2007). When, as in this case, the order granting summary judgment

does not specify the grounds upon which the trial court relied, we must affirm the

summary judgment if any of the independent summary-judgment grounds is

meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.

2000).




                                          11
       To prevail on a negligence claim, a plaintiff must establish that the defendant

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

Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). The

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

imposed if no duty exists. 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. Id.

       In the motion for summary judgment and on appeal, the Watson Defendants

argue that Plaintiff has produced no evidence that the Watson Defendants had actual

knowledge of the dog’s dangerous propensities, and therefore, the Watson

Defendants, as an out-of-possession landlord, had no duty to Plaintiff under Texas

law.

       In Baker v. Pennoak Properties, Ltd., the Fourteenth Court of Appeals held

that a landlord retaining control over premises used in common by different

occupants of his property has a duty to protect tenants from dog attacks in the

common areas of his property and will be held liable if (1) the injury occurred in a

common area under the control of the landlord and (2) the landlord had actual or

imputed knowledge of the dog’s vicious propensities. 874 S.W.2d 274, 275, 277

                                         12
(Tex. App.—Houston [14th Dist.] 1994, no writ). In Do v. Nguy, the Fourteenth

Court of Appeals noted that “[i]n Baker . . . we addressed a landlord’s duty to a third

party attacked in a common area of a multi-dwelling premises that was controlled by

the landlord, but we expressly declined to decide the duty owed by an out-of-

possession landlord of a single-dwelling premises.” No. 14-13-00848-CV, 2014

Tex. App. LEXIS 13842, at *7 n.1 (Tex. App.—Houston [14th Dist.] Dec. 30, 2014,

no pet.) (mem. op.) (emphasis added).

      In Batra v. Clark, cited by Appellees in the motion for summary judgment

and on appeal, the First Court of Appeals explained that:

            . . . Baker is distinguishable because it involved a landlord in
      possession with control over the common areas, whereas this case
      involves a landlord out of possession with arguably no, or limited,
      control over the premises. . . . Moreover, the Baker court expressly
      refused to decide the issue of whether an out-of-possession landlord
      may be liable for harm caused by a tenant’s dog to third parties. . . .

             ....

            We agree with the majority of cases that liability should be
      imposed on an out-of-possession landlord only when he has actual
      knowledge, rather than imputed knowledge, of the presence of a vicious
      animal on the leased premises. We hold that, if a landlord has actual
      knowledge of an animal’s dangerous propensities and presence on the
      leased property, and has the ability to control the premises, he owes a
      duty of ordinary care to third parties who are injured by this animal.

110 S.W.3d 126, 128, 130 (Tex. App.—Houston [1st Dist.] 2003, no pet).


                                          13
      We disagree with Plaintiff’s description of the Watson Defendants as

landlords in possession under the lease agreement between Sanders and Watson

Enterprises. Plaintiff argues that the Watson Defendants were in possession because:

Sanders’s lease stated that Watson Enterprises restricted the type and number of pets

and reserved the right to remove any violators, the lease stated that Watson

Enterprises would provide for the repairs and maintenance of property and lawn

areas, and the lease provided that Watson Enterprises maintained a right of entry

with or without permission to repair or perform quality checks. The record includes

no evidence that the residence in question was a multi-dwelling unit or property and

Baker is distinguishable on its facts. Baker involved a suit against a landlord of a

multi-dwelling premises controlled by the landlord. Appellant provides no authority,

nor are we aware of any, that would support Appellant’s argument that the lease

provisions at issue in some manner render Watson Enterprises a landlord in

possession.

      Appellees attached the deposition of Angela Osore to their motion for

summary judgment. Angela Osore testified that, prior to the incident at issue, she

had never informed Watson Enterprises that she believed a dangerous dog was at

Sanders’s residence, she was not aware of anyone who had complained about

Sanders’s dog to Watson Enterprises, and that she was not aware of any evidence

                                         14
that would show that any of the Watson Defendants had any actual knowledge of a

vicious animal on Sanders’s property. Plaintiff presented no evidence at the hearing

to contradict this deposition testimony. We conclude that there is no evidence that

the Watson Defendants had “actual knowledge” of the dangerous propensities of

Sanders’s dog, and the trial court did not err when it granted the Watson Defendants’

motion for summary judgment.2 Issues two, three, four, and five are overruled.




      2
        Because we have affirmed the granting of the Watson Defendants’ traditional
motion for summary judgment, we need not address the merits of the no-evidence
motion. See Tex. R. App. P. 47.1; see also FM Props. Operating Co. v. City of
Austin, 22 S.W.3d 868, 872 (Tex. 2000) (when the trial court’s order granting
summary judgment does not specify the basis for the ruling, we affirm the judgment
if any of the theories advanced are meritorious).
                                         15
                                   Motion to Sever

      In her sixth issue, Appellant contends that if this Court finds that the trial court

erred in its failure to grant Plaintiff’s motion for continuance and reverses the trial

court’s order granting summary judgment, the trial court’s severance would be

improper. Because we have determined that the trial court did not err in denying the

motion for continuance or in granting summary judgment, we also overrule the sixth

issue. See Tex. R. App. P. 47.1.

                     Allegations of Bias or Failure to Consider

      In her seventh issue, Appellant argues the trial court demonstrated bias and

failed to give due consideration to Appellant’s pleadings “given that it stated it

would read the cases but issued the order granting summary judgment before it left

the bench and its harsh sanction of dismissal with prejudice.” Appellant states that

“[i]t is hard to believe that the trial court judge reviewed the cases and the pleadings

and [was] able to give due consideration” to Appellant’s response to the summary

judgment motion. According to Appellant, the hearing “began at 10:00 a.m. or later

and there were other appearances in Court on that day[]” and the trial court judge

signed the order granting the Watson Defendants’ summary judgment “by 1:00 p.m.

on the day of the hearing.” Appellant also alleges that Polk County has a “nefarious

reputation[.]”

                                           16
      According to the documents in the appellate record, the Watson Defendants’

motion for summary judgment was filed on April 30, 2015. Plaintiff’s response and

motion for continuance were filed on July 1, 2015, and the hearing was held on July

6, 2015. The arguments made at the hearing were similar arguments to those made

in the pleadings previously filed with the court. Furthermore, a trial court is not

required to hold an oral hearing on a summary judgment motion. See Tex. R. Civ. P.

166a(c); Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.

1998). On this record, we cannot say that the trial court demonstrated bias or failed

to give due consideration to the arguments made by Osore. As for Appellant’s

allegations regarding Polk County’s “nefarious reputation[,]” we find no evidence

in the record to support such allegations and need not address such in any further

detail herein. See Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840,

841 (Tex. 1979) (appellate courts may not consider matters outside the appellate

record); see also Tex. R. App. P. 34.1 (appellate record is limited to clerk’s record

and reporter’s record); Tex. R. App. P. 38.1(i) (requiring an appellate brief to cite to

the record and to relevant legal authority). Issue seven is overruled.




                                          17
      The trial court’s judgment is affirmed.

      AFFIRMED.



                                                  _________________________
                                                     LEANNE JOHNSON
                                                           Justice


Submitted on September 22, 2016
Opinion Delivered January 26, 2017

Before McKeithen, C.J., Kreger and Johnson, JJ.




                                        18
