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 2005-07

James Louis Cook, Jr. v. Larry A. Newman and Gerald D. Newman, Jr. ( 2005 )


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    In The



    Court of Appeals



    Ninth District of Texas at Beaumont



    ____________________



    NO. 09-03-513 CV

    ____________________



    JAMES LOUIS COOK, JR., Appellant



    V.



    LARRY A. NEWMAN and GERALD D. NEWMAN, JR., Appellees



    On Appeal from the 410th District Court

    Montgomery County, Texas

    Trial Cause No. 01-04-02695-CV



    MEMORANDUM OPINION  

    Larry A. Newman and Gerald D. Newman, Jr. filed suit against James Louis Cook, Jr., Ulysess Manns, and Kevin Lincoln, individually and d/b/a/ Lincoln Logging, for trespass, unauthorized harvesting, conversion, negligence, and civil conspiracy. The Newmans further alleged the conduct of Manns and Cook was committed maliciously and knowingly, entitling them to punitive damages. Following trial to a jury, the trial court entered judgment against Cook and Manns, finding them jointly and severally liable for damages totaling $65,265. Punitive damages were assessed against Manns, but not Cook, and a take-nothing judgment was entered as to Lincoln. Cook is the only party appealing the judgment.

    Cook's brief raises seven issues. Cook conceded issues one, two and seven at oral argument. Issues three through six attack the jury's sole finding against Cook, which was for negligence. Cook claims the trial court erred in entering judgment that he was negligent and that his negligence proximately caused the Newmans' damages. We first address the question of causation, raised in issue six.

    The two elements of proximate cause are cause in fact and foreseeability. See IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). "Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred." Id. at 799 (citing Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995)). Where the actor's negligence only furnishes a condition which makes the damages possible, cause in fact is not established. Id. The actor's conduct may be too attenuated from the resulting injury to have been a substantial factor in giving rise to the harm. Id. In sum, "[w]here the initial act of negligence was not the active and efficient cause of plaintiffs' injuries, but merely created the condition by which the second act of negligence could occur, the resulting harm is too attenuated from the defendants' conduct to constitute the cause in fact of plaintiff's injuries." Id.

    The Newmans alleged Cook was negligent in failing to identify his property boundaries. On appeal, they further suggest Cook was negligent in failing to monitor Manns and in giving him access (through Cook's land) to their property. However, these lapses could have only, at most, furnished a condition which made it possible for Manns to commit the theft.

    The record reflects that prior to trial Manns pleaded guilty to theft and was sentenced to two year's confinement in a state jail. The sentence was suspended and Manns was placed under community supervision for a term of four years. At trial, Manns admitted to intentionally taking logs from the Newmans' property. Cook's alleged failure to adequately identify the property boundaries was irrelevant since Manns admitted to knowingly, rather than mistakenly, taking timber from the Newmans' property. Likewise Cook's alleged failure to watch Manns did not bring about the theft; it merely allowed it to happen. Likewise, Manns' presence on Cook's property gave Manns access to the Newmans' property, but did not cause the theft. The record does not establish Cook's negligence, if any, was the proximate cause of the Newmans' damages. The connection between Cook's conduct and the resulting injury is too attenuated to constitute legal cause. See Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 912 (Tex. App.--Beaumont 1999, pet. denied). Accordingly, issue six is sustained. We do not address appellant's other issues as they would afford no greater relief.

    We reverse that part of the judgment finding Cook jointly and severally liable for damages totaling $65,265 and render judgment that appellees take nothing as to Cook. In all other respects the judgment of the trial court is affirmed.

    REVERSED AND RENDERED IN PART; AFFIRMED IN PART





    CHARLES KREGER

    Justice



    Submitted on April 14, 2005

    Opinion Delivered July 14, 2005





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