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.