Levesque v. Wilkens

• Decision Date: 16 August 2001
• Docket Number: No. 14-00-00120-CV,14-00-00120-CV
• Citation: 57 S.W.3d 499
• Parties: <!--57 S.W.3d 499 (Tex.App.-Houston 2001) MATTHEW R. LEVESQUE, JO LYNN BARNETT, INDIVIDUALLY AND AS NEXT FRIEND OF CODIE MICHAEL BARNETT, SAMUEL GERARD ROMANO, INDIVIDUALLY AND AS NEXT FRIEND OF SAMUEL GERARD ROMANO, JR., AND THE ESTATE OF WILLIAM H. McEWIN, DECEASED, Appellants v. RICHARD B. WILKENS, III AND SUNNY WILKENS ERNST, Appellees Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 499

57 S.W.3d 499 (Tex.App.-Houston [14th Dist.] 2001)

MATTHEW R. LEVESQUE, JO LYNN BARNETT, INDIVIDUALLY AND AS NEXT FRIEND OF CODIE MICHAEL BARNETT, SAMUEL GERARD ROMANO, INDIVIDUALLY AND AS NEXT FRIEND OF SAMUEL GERARD ROMANO, JR., AND THE ESTATE OF WILLIAM H. McEWIN, DECEASED, Appellants v RICHARD B. WILKENS, III AND SUNNY WILKENS ERNST, Appellees

No. 14-00-00120-CV

Court of Appeals of Texas, Houston (14th Dist.).

August 16, 2001.

On Appeal from the 56th District Court Galveston County, Texas Trial Court Cause No. 97-CV-0226-B

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices Anderson, Hudson, and Seymore.

OPINION

Anderson, Justice

This appeal addresses whether a landowner as lessor is liable for damages caused by an escaped bull owned by the lessee.

Appellants, Plaintiffs below, Matthew R. Levesque, et. al., collectively Levesque, appeal the summary judgment granted by the trial court in favor of appellees, Richard B. Wilkens, III and Sunny Wilkens Ernst (Appellees/Landowners). In three points of error, Levesque contends: (1) case law supports the existence of a duty running from Landowners to Levesque; (2) a genuine issue of material fact exists concerning whether Landowners breached a duty of reasonable care to Levesque; and (3) the trial court erred in granting "no evidence" summary judgment in favor of Landowners. We affirm.

FACTUAL BACKGROUND

Landowners are a brother and sister who own ninety acres of land set back approximately 2,250 feet back from Interstate 45 in Galveston County. Landowners leased the land to James R. Frazier, who pastured cattle on the property, including the peripatetic bull at issue here. Under the express terms of the lease, Frazier as lessee was responsible for maintaining the fencing around the property. Landowners did not reserve the right under the lease to re-enter or inspect the property.

On or about August 15, 1996, Levesque, et. al. were occupants of three motor vehicles, each of which was traveling southbound on Interstate 45 in Galveston County. All three cars collided with a bull that suddenly appeared on the highway, causing serious personal injuries to the occupants of the vehicles. The bull, owned by Frazier, had escaped from the leased property. Over the course of the proceedings below, Levesque collectively sued seven defendants, including Landowners.

Defendant Landowners moved for summary judgment against all plaintiffs. On August 20, 1999, the trial court granted summary judgment for Landowners. On November 18, 1999, the trial court signed an Order of Severance and Final Judgment severing all claims presented by the plaintiffs against the Landowners. The severance order made the interlocutory summary judgment a final order for purposes of appeal. Thereafter Levesque brought this appeal.

In the first point of error, Levesque asks this Court to recognize a duty requiring Landowners to prevent their lessee's cattle from wandering onto the public highway. It is fundamental that the right of recovery for an injury sustained by the plaintiff as a result of the defendant's conduct must be founded upon a legal duty of some character owed to the plaintiff with respect to the injury, and a violation of that duty by the defendant. IDC, INC. v. County of Nueces, 814 S.W.2d 91, 93 (Tex. App. Corpus Christi 1991, pet. denied). The threshold inquiry is whether Landowners, as lessor, owed a legal duty to Levesque to prevent the danger that caused their injuries. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

I. Traditional Summary Judgment

Defendant Landowners moved for summary judgment under Rule 166a(b) of the Texas Rules of Civil Procedure and claim no duty is owed to Levesque because Texas Agricultural Code § 143.102 controls and places the duty squarely on the "person who owns or has responsibility for control" of the livestock.

Standard of Review

Summary judgment is proper for a defendant if its summary judgment proof establishes, as a matter of law, there is no genuine issue of material fact concerning one or more of the essential elements of the plaintiff's cause of action. Tex. R. Civ. P. 166a(c); Swilley v. Huges, 488 S.W.2d 64, 67 (Tex. 1972). The purpose of summary judgment is the elimination of patently unmeritorious claims or untenable defenses; it is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952). The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When deciding whether there is a disputed material fact issue precluding summary judgment, the appellate court must take as true all evidence favorable to the non-movant. Id. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id.

A defendant moving for summary judgment assumes the burden of showing as a matter of law that the plaintiff has no cause of action against him. Guereque v. Thompson, 953 S.W.2d 458, 462 (Tex. App. El Paso 1997, pet. denied). A trial court should grant a defendant's motion for summary judgment if the defendant disproves at least one essential element of the plaintiff's cause of action. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). When the trial court does not specify the grounds upon which it granted summary judgment, we will affirm if any of the movant's grounds support summary judgment. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

Statutory Authority

Texas has never recognized the common law rule requiring restraint of cattle, by tethering or enclosure. Clarendon Land, Inv. & Agency Co. v. McClelland, 23 S.W. 576, 577 (1896). Notwithstanding legislative duty imposed through stock laws, the owner of cattle or stock in Texas has traditionally had the freedom to allow those animals to roam without liability for damages the animals caused as trespassors upon the land of others. Gray v. Davis, 792 S.W.2d 856, 857 (Tex. App. Fort Worth, 1990) (finding no negligence or proximate cause where property owner adequately fenced his property). As a general rule, the rejection of the common law duty of animal owners to restrain their livestock rendered Texas "free range." Gibbs v. Jackson, 990 S.W. 2d 745, 747 (Tex. 1999) (holding that a person responsible for livestock has no common law duty to ensure that the animals do not stray onto farm-to-market roadways).

The framers of the 1876 Texas Constitution expressly delegated to the Legislature the power to deviate from the free-range rule by passing laws for the regulation and fencing of livestock. Tex. Const. art. XVI, § 23; Gibbs, 990 S.W.2d. at 748. Accordingly, the Legislature has, pursuant to its constitutional grant of authority, established and repeatedly revised and amended its own scheme for determining when duties of restraint should or should not be imposed upon livestock owners.¹ Id. at 750. When examining amendments to existing legislation, it is presumed that the Legislature was aware of case law affecting or relating to the statute. Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex. Crim. App. 1992). The Legislature's comprehensive statutory scheme is now addressed by Chapter 143 of the Texas Agriculture Code, entitled "Fences; Range Restrictions," which states that a person who owns or has responsibility for the control of livestock may not knowingly permit the animal to traverse or roam at large, unattended, on the right-of-way of a highway. Tex. Agric. Code § 143.101-102 (Vernon 1982). When determining legislative intent, we look to the language of the statute, its legislative history, and the objective sought. Crown Life, Inc. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex. 2000).

When a statute is unambiguous, we apply its plain meaning. Fleming Foods of Tex., Inc., v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). Statutory interpretation is a question of law over which the judge has no discretion. Lozano v. Lozano, 975 S.W.2d 63, 66 (Tex. App. Houston [14th Dist.] 1998, pet. denied). The Legislature has placed an affirmative duty to prevent livestock from roaming onto public highways on the person who owns or controls the animal. The statute reads as follows:

A person who owns or has responsibility for the control of a horse, mule, donkey, cow, bull, steer, hog, sheep, or goat may not knowingly permit the animal to traverse or roam at large, unattended, on the right-of-way of a highway.

Tex. Agric. Code § 143.102 (Vernon 1982) (emphasis added).

The purpose of statutory construction is always to ascertain legislative intent. Harlow v. Hayes, 991 S.W.2d 24 (Tex. App. Amarillo 1998). Every word in a statute must be presumed to have been used for a purpose and every word excluded for a purpose. Id. In harmony with the settled rules of statutory construction, words in common use will generally be given their plain, natural and ordinary meaning, unless a contrary intent is clearly apparent from the context of the statute. Byke v. City of Corpus Christi, 569 S.W.2d 927, 932 (Tex. Civ. App. Corpus Christi 1978, writ ref'd n.r.e.). In the language of this statute, the Legislature has specifically chosen to impose statutory liability on the person who owns or controls the animal, rather than on the owner of the land. If the Legislature had intended otherwise, it would have done so.

Lease Agreement

As a general rule, a lessor relinquishes possession or occupancy of the premises to the lessee. See Restatement (second) of Torts § 356 (1965). The law is well settled that when land is leased, the lessee becomes the possessor and occupier of the land, and the lessor's liability for dangerous conditions on the premises generally terminates. See Johnson County Sheriff's Posse, Inc. v. Endsley, 926...