john-l-kennamer-individually-and-john-l-kennamer-and-mora-kennamer-dba ( 2009 )

  Opinion issued July 24, 2009

In The  

Court of Appeals  

For The  

First District of Texas  

---

NO. 01-08-00134-CV

---

JOHN L. KENNAMER, INDIVIDUALLY, AND JOHN L. KENNAMER & MORA KENNAMER D/B/A K BAR LAND & CATTLE COMPANY, Appellants

v.

THE ESTATE OF JOHN ALWIN NOBLITT, DECEASED, CHARLES R. NOBLITT, JR., INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JOHN ALWIN NOBLITT, DECEASED, AND JOANN JONES, INDIVIDUALLY AND AS HEIR OF THE ESTATE OF JOHN ALWIN NOBLITT, DECEASED, Appellees

---

On Appeal from the County Court at Law No. 2 and Probate Court

Brazoria County, Texas

Trial Court Cause No. PR027065-A

---

OPINION DISSENTING FROM DENIAL OF EN BANC REVIEW

I respectfully dissent from denial of en banc review. The sole issue on which appellees moved for summary judgment in this case was ownership of the cow that attacked and injured appellant John Kennamer, upon which appellees' duty to Kennamer was predicated in this suit for damages for negligence. ⁽¹⁾ This was a hotly disputed fact issue, as the summary judgment proofs of both sides demonstrate. The standard of proof of traditional summary judgment is well-established. Specifically, summary judgment shall be granted if the summary judgment proofs and the pleadings establish show, "except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response." Tex. R. Civ. P. 166a(c) (emphasis added). The standard of review for a traditional summary judgment motion is threefold: (1) the movant must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true; and (3) the court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see Tex. R. Civ. P. 166a(c).

Here, the panel jumps through hoops to uphold the summary judgment, spending six pages of the slip opinion weighing the deposition testimony attached as summary judgment proof and determining for itself on the basis of its assessment of the credibility of the witnesses and the weight it assigns their deposition testimony that appellees did not own the cow. It concludes that appellees are entitled to summary judgment because they did not own the cow by disregarding all of the summary judgment evidence of ownership of the cow favorable to Kennamer, the non-movant, including his recognition of the cow as one owned by Noblitt, its age, its color, its skinniness, the length of its horns, the notches on the cow's ears, the brands and absence of brands on Noblitt's, Kennamer's, and Fitzgerald's cows, and by seizing upon Kennamer's testimony that the cow was branded and the movants', appellees', conflicting testimony that Noblitt's cows were not branded. It then credits as true Noblitt's testimony that his cows were not branded (although one deposition witness suggested that Noblitt might have owned some branded cattle), and, having credited the movant's self-serving testimony on one of many disputed fact issues as dispositive of ownership of the cow, the panel concludes that no reasonable jury, presented with all the evidence from witnesses subject to cross-examination in a courtroom where their demeanor might be observed and all the disputed indicia of ownership of the cow might be weighed, could have found that Noblitt owned the cow. Therefore, the panel holds that appellees were entitled to judgment as a matter of law declaring them not liable for Kennamer's injuries.

The panel purports to follow City of Keller v. Wilson in reaching its judgment. See slip op. at 12 (citing City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)). Yet its review of the summary judgment evidence, by weighing deposition testimony and making a determination as to its weight and credibility, directly contradicts the instruction in Keller that, in cases requiring the review of the legal sufficiency of the evidence, "[j]urors are the sole judges of the credibility of the witnesses and the weight to be given their testimony. They may choose to believe one witness and disbelieve another. Reviewing courts cannot impose their own opinions to the contrary." 168 S.W.3d at 819 (emphasis added). The Keller court concluded:

Whether a court begins by reviewing all the evidence or disregarding part in a legal-sufficiency review, there can be no disagreement about where that review should end. If the evidence at trial could enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement.

Id. at 822 (emphasis added).

Even more fundamentally, the panel opinion contravenes the long-standing mandate of Nixon v. Mr. Property Management. Co., Rhone-Poulenc, Inc. v. Steel, and Keller itself that, in deciding whether there is a disputed material fact issue in the summary judgment context, evidence favorable to the non-movant must be taken as true and every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Keller, 168 S.W.3d at 824; Rhone-Poulenc, 997 S.W.2d 221, 223 (Tex. 1999); Nixon, 680 S.W.2d at 548. Keller carries forward this mandate, stating, that "in the scope of review for summary judgment . . . , there is only one standard--a reviewing court must examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." 168 S.W.3d at 824-25.

The problem with the standard of review employed by the panel arises, I believe, from the Keller court's next statement: "Reviewing courts do not disregard the evidence supporting the motion; if they did, all summary judgments would be reversed." Id. The court went on to explain, however, that reviewing all of the evidence in a summary judgment case does not mean crediting the evidence that supports the movant and indulging inferences and resolving all reasonable doubts in the movant's favor. See id. at 825. Rather, "the standard for granting summary judgment 'mirrors' the standard for judgment as a matter of law," i.e., the standard for legal sufficiency of the evidence. Id. at 825. The court concluded, "Whether a reviewing court begins by considering all the evidence or only the evidence supporting the verdict, legal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id. at 827. The court explained, "Jurors . . . are not free to believe testimony that is conclusively negated by undisputed facts. But whenever reasonable jurors could decide what testimony to discard, a reviewing court must assume they did so in favor of their verdict, and disregard it in the course of legal sufficiency review." Id. at 820.

The critical difference between the legal sufficiency standard of review in a trial context, as described in Keller, and summary judgment review, in light of Keller, is, of course, that, in the summary judgment context, the reviewing court must review all evidence in a light favorable to the non-movant, rather than the (non-existent) verdict, discard all testimony favorable to the movant, and, unless the movant's evidence is conclusively negated by undisputed facts, disregard all evidence contrary to the non-movant in the course of its review. The panel in this case, misreading Keller, did just the opposite. It reviewed the evidence in a light favorable to the summary judgment; it discarded all testimony relevant to ownership of the cow favorable to Kennamer, the non-movant; and, weighing disputed evidence, it disregarded all evidence contrary to the movants' testimony that they did not own the cow.

To be entitled to summary judgment, appellees had the burden of proving that there was no genuine material issue as to who owned the cow that attacked Kennamer as a matter of law. They could have proved this only if Kennamer had not produced evidence that appellees owned red cows like the one that attacked him, that he had seen the cow that attacked him on appellants' ranch, that appellees' cows had gotten out of their enclosure and invaded Kennamer's ranch as recently as five months before the incident at bar, and that appellees' cattle often exhibited wild and aggressive behavior, including attacking a man on horseback and seriously injuring him, chasing a testifying witness for 400-500 yards, and attacking a rider on a 4-wheeler, and if Kennamer, the eye-witness to the attack, had not produced summary judgment evidence as to the age, size, condition, length of horns, branding, and ear notches of the attacking red cow and of appellees' cows. This evidence disputed the movants' evidence as to the identifying characteristics of the cow that attacked him, from which the ownership of the cow might be reasonably inferred.

If the panel had followed the mandate of Nixon, Rhone-Poulenc, and Keller, it would have had to have taken as true all of Kennamer's summary judgment evidence that appellees owned the cow, and it could not have credited for summary judgment purposes any of appellees' conflicting evidence. Instead, the panel discarded all of the non-movant's summary judgment evidence about the description and ownership of the cow except Kennamer's statement that the cow was branded, and it then credited as dispositive Noblitt's self-serving fact testimony that he did not brand his cows. In doing so, the panel fully usurped the role of the jury who could have heard that disputed testimony in the context of a trial.

If appellants' summary judgment evidence is taken as true and appellants' conflicting evidence is disregarded, as required by Texas law, the summary judgment in favor of appellees cannot be sustained. This Court should have reversed the summary judgment and sent the case back for trial on the disputed material fact issue of who owned the cow. It should not have weighed conflicting evidence, determined the credibility of witnesses from the summary judgment proofs, and determined for itself that the red cow was branded with an upside-down "U," that appellants' cows were not branded with an upside-down "U," and, therefore, no reasonable juror could have decided the case in favor of appellants.

The panel, however, reads Keller as requiring it to weigh the evidence for itself and to determine whether reasonable people could differ with its own judgment. I believe that this is a plainly erroneous interpretation of controlling law and that it misapplies the summary judgment rule in a way that subverts both the language and purpose of the rule, results in a miscarriage of justice in this case, and distorts summary judgment practice within the jurisdiction of this Court. I believe it wrongfully encourages parties to file summary judgment motions on fact issues as to which there is conflicting evidence in the hope that this Court, following its own precedent, will determine that no reasonable person could disagree with its own determination of disputed facts, transforming summary judgment practice from a means of disposing of cases that present only legal issues to a means of trying material fact issues by selected proofs submitted to the court, as in the continental European system. For those reasons, I believe this case satisfies the criteria for en banc review. See Tex. R. App. P. 41.2(c). ⁽²⁾

I would grant en banc review.

Evelyn V. Keyes

Justice  

Panel consists of Chief Justice Radack and Justices Higley and Nuchia. ⁽³⁾  

Appellants moved for rehearing to the panel and for en banc reconsideration to the Court. See Tex. R. App. P. 49.1, 49.7.

The panel denied the motion for rehearing addressed to it, leaving pending the motion for en banc reconsideration, which maintained the Court's plenary power over the case. See Tex. R. App. P. 19.1, 49.3.

During the pendency of the motion for en banc reconsideration, the Court sua sponte withdrew its opinion and judgment issued January 8, 2009, thus rendering moot the motion for en banc reconsideration. Cf. Brookshire Bros., Inc. V. Smith, 176 S.W.3d 30, 41 n.4 (Tex. App.--Houston [1st Dist.] 2004, pet. denied) (op. on reh'g).

After the Court's withdrawal of its January 8, 2009 opinion and judgment, during the pendency of the Court's plenary power over the case, and before another opinion and judgment had issued in the case, en banc consideration was requested from within the Court. See Tex. R. App. P. 41.2(c).

Chief Justice Radack and Justices Jennings, Keyes, Alcala, Hanks, Higley, Bland, Sharp, and Nuchia participated in the vote to determine en banc consideration.

A majority of the Justices of the Court voted to deny en banc consideration. See id.

Justice Keyes, joined by Justice Sharp, dissenting from the denial of en banc consideration. See id.

1. The panel opinion gratuitously states that there is no common law duty in Texas to fence livestock and that, although the Texas Agriculture Code imposes statutory duties that prohibit a stock owner from allowing livestock to run at large, that statute applies only if locally adopted. See Tex. Agric. Code Ann. § 143.071 (Vernon 2004). The panel appears to be making the argument sua sponte that section 143.071 does not impose a duty to keep animals on one's own property in Brazoria County and that there is no common law duty to protect against a dangerous animal that escapes from one's property and injures someone. There is absolutely no argument made either by appellees in their motion for summary judgment or by appellants in response that appellees did not owe a common law or statutory duty to appellants for which they could be liable in negligence if appellants owned the cow that attacked Kennamer on Kennamer's property. All that is at issue in this motion for summary judgment is a material fact issue: who owned the cow? This is a material fact issue because if appellees did not own the cow, no liability could attach to them. See Pierce v. Washington Mutual Bank, 226 S.W.3d 711, 714 (Tex. App.--Tyler 2007, pet. denied) ("A fact is 'material' if it affects the ultimate outcome of the suit under the governing law."). It is not an argument about the existence of legal duty. It is improper for a court to grant summary judgment on an issue (lack of legal duty) that is not pled or argued in the summary judgment pleadings. See Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993); Coastal Cement Sand Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562, 565 (Tex. App.--Houston [14th Dist.] 1997, pet. denied); see also Khan v. Yazdchi, No. 01-02-00918-CV, 2003 WL 21513628, at *4 (Tex. App.--Houston [1st Dist.] 2003, no pet.) (mem. op.). The only issue properly before this court is the fact-intensive issue of ownership of the cow.

2. Rule 41.2(c) provides:

En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court's decisions or unless extraordinary circumstances require en banc consideration.

Tex. R. App. P. 41.2(c).

3. The Honorable Samuel N. Nuchia, who was a member of the panel when this case was submitted on November 25, 2008, retired from the First Court of Appeals on January 1, 2009. Retired Justice Nuchia continues to participate in the disposition of this proceeding by assignment.