Arraby Properties, LLC v. Paul Brown

Opinion

Opinion issued October 10, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00610-CV ——————————— ARRABY PROPERTIES, LLC, Appellant V. PAUL BROWN, Appellee

On Appeal from the 295th District Court Harris County, Texas Trial Court Case No. 2017-82986

DISSENTING OPINION

This case is about the rights and duties that come with property ownership.

“The right to acquire a known property and to deal with it and use it as the owner

chooses, so long as the use harms nobody, is a natural right.” Spann v. City of Dallas,

235 S.W. 513, 515 (Tex. 1921). A property owner’s duty to harm no one else through the use of his property creates, for example, a duty to invitees on his property to

make safe or warn of dangerous conditions on the property. Occidental Chem. Corp.

v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). That duty runs with the ownership or

control of the property. Id. A property owner can thus be liable when a guest enters

the property and is harmed by the dangerous condition on the property. See id. But

who is liable when the dangerous condition on a person’s property wanders off the

property and harms another?

The legislature has determined that, when the dangerous condition is

livestock, the owner or other person responsible for the livestock is liable. The

owners of and those responsible for livestock have a statutory duty to not knowingly

permit the livestock to roam on a highway. See TEX. AGRIC. CODE § 143.102. But

when there is a complete absence of evidence establishing an owner or other person

responsible for a livestock animal, I believe the owner of the property who

knowingly allows the animal to stay on the property is liable.

In this case, Arraby Properties, LLC, allowed a cow to be kept on its property.

Arraby provided no more than a scintilla of evidence that it relinquished control of

the property, including the cow kept there, or that any other person was responsible

for the cow. In the absence of such evidence, I believe Arraby, as the property owner,

is responsible for the control of the cow. This responsibility includes a duty to

maintain sufficient fencing on the property to not permit the cow to roam unattended

2 on the highway, as the cow in this case did, where Paul Brown eventually collided

with it.

Paul Brown was a well-respected maritime pilot driving to work early one

morning when the accident occurred. He was a pioneer in his industry as one of the

first Black cargo pilots in the United States. His coworkers described him as smart,

likeable, and a mentor to everyone around him. Brown loved his job and planned to

continue working until mandatory retirement. But all of that changed when he

collided with the cow from the Arraby property. He suffered a traumatic brain injury,

and his personality changed. He became depressed and had difficulty concentrating,

sleeping, and thinking. He could no longer work in the job he loved because it

required a high level of both physical and cognitive performance, and he had to take

an early retirement. Because the majority refuses to hold Arraby, the property owner

that permitted the cow to roam off its property and cause this collision, responsible,

I respectfully dissent.

Fences, Range Restrictions, and Running at Large on Highways

Though Texas was a free-range state at common law, the legislature has

imposed a duty to restrain livestock from roaming on highways by keeping the

animals confined within fences. See Pruski v. Garcia, 594 S.W.3d 322, 323 (Tex.

2020); Gibbs v. Jackson, 990 S.W.2d 745, 747–48 (Tex. 1999); see also Billelo v.

SLC McKinney Partners, L.P., 336 S.W.3d 852, 854 (Tex. App.—Dallas 2011, no

3 pet.) (explaining the duty to confine animals within fences is “purely statutory in

nature”). Under Section 143.102 of the Agriculture Code, a “person who owns or

has responsibility for the control of” certain livestock, including cows, “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. The law imposes a small

criminal penalty for violations, see id. § 143.108 (imposing Class C misdemeanor

for violation of Section 143.102), but Texas courts have relied on this statute to also

create a standard of care for civil liability purposes for owners and other persons

responsible for livestock when their animals stray onto highways. Pruski, 594

S.W.3d at 325–26. Therefore, a person who is injured by a livestock animal roaming

on a highway, as Brown was here, may recover under a negligence theory against

the (1) “person1 who owns or has responsibility for the control of” certain livestock

animals, who (2) “knowingly permit[s] the animal to traverse or roam at large,

unattended, on the right-of-way of a highway.” TEX. AGRIC. CODE § 143.102;

Pruski, 594 S.W.3d at 325–26.

In this case, as the trial court concluded, the evidence shows that Arraby is the

person who has responsibility for the control of the cow because it permitted the cow

to stay on its property and did not relinquish control to anyone else, and the evidence

1 In a statute, “person” includes a corporation. TEX. GOV’T CODE § 311.005(2). 4 shows Arraby knowingly permitted the cow to roam at large by making no effort to

keep the cow properly fenced in.

Responsibility for the Control of the Cow

Property ownership comes with a “bundle of rights” and duties, among which

are the right to exclusive control, possession, use, and enjoyment of the property and

the duty to refrain from using the property in a way that harms others. Evanston Ins.

Co. v. Legacy of Life, Inc., 370 S.W.3d 377, 383 (Tex. 2012); Ford v. Grand United

Ord. of Odd Fellows of State of Tex., 50 S.W.2d 856, 859–60 (Tex. App.—

Beaumont 1932, writ dism’d w.o.j.); see also Spann, 235 S.W. at 515.2 But a

property owner’s duty to others is limited if the property owner relinquishes some

or all of his possession and control of the property. See Gen. Elec. Co. v. Moritz, 257

S.W.3d 211, 215 (Tex. 2008). The property owner’s duty is commensurate with the

right of control over the property. See Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53

(Tex. 1997); Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993).

In this case, Arraby undisputedly owns the property on which Eugene and

Mary Alice Ybarra lived and on which they kept a cow. Victor Ybarra, testifying on

2 “The right to own and have exclusive dominion over private property is a sacred one, and it is a universal principle of law that the right to own property carries with it the right to control and dispose of same in such manner as not to contravene the statute law or public policy.” Ford, 50 S.W.2d at 859–60.

“Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal.” Spann, 235 S.W. at 514. 5 behalf of Arraby as its president and managing member, knew his parents kept a cow

on the property. There is no evidence, aside from Victor’s testimony that the trial

court found uncredible, that Arraby relinquished control of the property. Victor

claimed his parents lived there and took care of everything and said Arraby was

owner in name only, but he provided no specific evidence to support this claim.

There is, however, at least some evidence that Arraby did not relinquish control of

the property:

• Arraby owned the property where the cow was kept;

• Eugene’s health was declining, and he had to use a walker;

• Mary Alice was diagnosed with Alzheimer’s disease; and

• It was apparent to their children that Eugene and Mary Alice were not capable of taking care of a cow or a ranch. Though Eugene and Mary Alice lived on the property, the evidence suggests they

were not physically capable of controlling or managing the property. Thus, there was

sufficient evidence to support the trial court’s finding that Arraby was responsible

for the control of the property, including the cow kept on it.

There was no specific evidence of who cared for the cow on the property or

maintained the fences that kept the cow on the property. Victor explained that

Eugene, before his death, worked at the restaurant he owned every day and that

Eugene “had people that worked under him [that] he would send to . . . his house. If

[he] needed a light bulb changed, they’d change it. If [he] had something wrong with 6 the fence, they’d fix the fence.” When asked specifically about maintaining the

fences, Victor said, “My father’s workers were the ones who took care of it.” But he

did not name a single person, testify that he had ever seen or interacted with any of

these people whom he allowed onto the property he owned, provide any evidence

that Eugene or Arraby made arrangements to care for the cow or ever paid these

workers for the work they did, or provide any evidence that anyone at any time had

ever repaired the fence. His testimony amounts to no more than a scintilla of

evidence that anyone else was responsible for the cow or maintaining the fences

around it.

And the trial court found Victor’s testimony uncredible. Generally, the

testimony of an interested witness, even if not contradicted, does no more than raise

a fact issue, and whether to credit that testimony is a question for the factfinder. See

Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (per

curiam). Here, the factfinder evidently did not believe Victor’s testimony that

unidentified and seemingly unpaid workers were coming on to the property to

inspect and repair the fences. The majority claims the trial court was not entitled to

disbelieve Victor’s testimony because a trial court cannot “ignore undisputed

testimony that is clear, positive, direct, otherwise credible, free from contradictions

and inconsistencies, and could have been readily controverted.” See City of Keller v.

Wilson, 168 S.W.3d 802, 820 (Tex. 2005). Yet Victor’s unspecific, conclusory

7 testimony is anything but clear, positive, direct, otherwise credible, or readily

controverted. An assertion that unspecified people perform work unseen and unpaid

is not clear, positive, or direct. The testimony was not otherwise credible because

the trial court specifically found in its findings of fact and conclusions of law: “The

testimony of Victor Ybarra, for the most part, was not credible.” And there was no

way to contradict his claim that unseen, unidentified people who were seemingly

never paid were coming to the property on a regular basis to care for the cow and

repair the fence around it. The trial court, then, was not required to believe this

testimony.

On appeal, Arraby relies on Levesque v. Wilkens, 57 S.W.3d 499 (Tex. App.—

Houston [14th Dist.] 2001, no pet.), and the existence of a landlord–tenant

relationship to show that it relinquished control of the property. See id. at 505

(explaining when property owner leases property to tenant and gives him exclusive

right to occupy property, Section 143.102 places duty to restrain livestock on owner

of livestock, not property owner). But Arraby’s reliance on Levesque is misplaced

because the trial court did not find a landlord–tenant relationship, and whether one

exists is a question of fact. City of Irving v. Seppy, 301 S.W.3d 435, 445 n.2 (Tex.

App.—Dallas 2009, no pet.); see also Brown v. Johnson, 12 S.W.2d 543, 545 (Tex.

[Comm’n Op.] 1929). Here, there was no evidence of a lease, any other kind of rental

agreement, rental payments, or anything else that would suggest a landlord–tenant

8 relationship between Arraby and Eugene and Mary Alice. The trial court correctly

refused to find a landlord–tenant relationship. And without a lease transferring

control of the property, there is no evidence that Arraby relinquished its control of

the property, including the livestock and fences on it. The majority is correct that no

authority requires proof of a formal landlord–tenant relationship or a formal lease

agreement to determine responsibility for the control of a livestock animal. But such

proof would conclusively establish the property owner had relinquished control, and

that conclusive proof is missing here. See Levesque, 57 S.W.3d at 505 (“Because the

lease agreement gives [the tenant] the exclusive right to occupy the land from which

the bull escaped, it follows that [the tenant] had exclusive possession and control of

the land, the fence, and the bull.”). In the absence of conclusive proof, responsibility

for the control of the animal was an issue for the factfinder to decide, and the

factfinder here decided Arraby, as the property owner, had responsibility for control

of the cow.

Moreover, even if there were some sort of landlord–tenant relationship here,

a landlord can be held liable when he retains control over the leased premises. See

Tidwell, 867 S.W.2d at 21; see also Harlow v. Hayes, No. 07-95-0210-CV, 1996

WL 467464, at *3 (Tex. App.—Amarillo Aug. 16, 1996, no writ) (per curiam) (not

designated for publication) (“[A] landlord can be held liable when circumstances

9 indicate a retention of control over the premises.”). As discussed above, the

circumstances in this case indicate that Arraby retained control of the property.

Bob Kingsbery, the expert on the cattle industry and particularly livestock

fencing who testified at trial, succinctly summarized Arraby’s responsibility for the

cow: “[Arraby] owned the property. They knew there was a cow there. They knew

that their parents were not capable of properly maintaining the cow, inspecting the

fence.” He testified, “[S]omebody has to be responsible for the cattle. And if the

property owner knows the cattle are there, and absent somebody else being

responsible for the cattle, then, yeah. I’d say the property owner would be

responsible.” In this case, the property owner is Arraby.

I agree with the trial court—Arraby was responsible for the control of the

property and the cow. Arraby owned the property and knowingly allowed the cow

to be kept there, and there was no more than a scintilla of evidence to support

Victor’s claim that Arraby relinquished control of the property or of the cow

knowingly kept on it. Because Arraby knowingly allowed the cow to be kept on its

property and did not relinquish control or identify any other person responsible for

the control of the cow, Arraby, as the property owner, was responsible for the control

10 Knowingly Permit the Animal to Traverse or Roam on a Highway

A person with responsibility for the control of a livestock animal is only liable

under Section 143.102 of the Agriculture Code if that person “knowingly permit[s]

the animal to traverse or roam at large, unattended, on the right-of-way of a

highway.” TEX. AGRIC. CODE § 143.102. Here, Arraby knowingly permitted the cow

to roam at large because it made no effort to keep the cow fenced in.

The duty established by Section 143.102 of the Agriculture Code to not

knowingly permit livestock animals to roam at large encompasses the corollary duty

to properly fence those animals in. See Pruski, 594 S.W.3d at 324 (acknowledging

owner’s statutory liability for failure to fence livestock); see also Billelo, 336 S.W.3d

at 854 (explaining Section 143.102 creates duty to confine animals within fences);

Ceniceros v. Pletcher, No. 07-15-00427-CV, 2017 WL 2829325, at *6 (Tex. App.—

Amarillo June 29, 2017, pet. denied) (mem. op.) (explaining duty arising under stock

law also creates “statutory duty” to “non-negligently maintain suitable fencing”);

Van Horne v. Harris, No. 2-06-183-CV, 2007 WL 865801, at *3 (Tex. App.—Fort

Worth Mar. 22, 2007, no pet.) (mem. op.) (explaining “duty to not permit

the livestock to run at large encompasse[s] maintenance of the property’s fences and

gates”).

The law does not impose liability for accidental escapes. See Beck v.

Sheppard, 566 S.W.2d 569, 572 (Tex. 1978) (holding animal’s mere presence on

11 highway does not create presumption of negligence). A person responsible for the

control of a cow is only liable under Section 143.102 if that person permits the

animal to roam or fails to fence in the animal with a “knowing” mental state. See

Pruski, 594 S.W.3d at 330 (concluding Section 143.102’s “knowing” standard for

liability prevails when Section 143.102 and local stock law apply).

The Agriculture Code does not define “knowing,” but because the statute is

penal in nature, the Supreme Court has used the Penal Code definition of the

“knowing” culpable mental state to interpret Section 143.102. Id. at 326–27

(explaining livestock owner violates Section 143.102 by permitting animal to roam

at large on a highway “with the knowing mental state traditionally applied in

criminal law”). The Penal Code provides:

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

TEX. PENAL CODE § 6.03(b).

Here, circumstantial evidence allows the finding that Arraby knowingly

permitted the cow to roam at large on a highway because Arraby, with awareness of

the consequences, did not keep the cow fenced in. Arraby willingly did not fulfill its

duty, as owner of the property where the cow was kept, to inspect or maintain the

12 fences controlling the cow or make arrangements for their inspection and

maintenance.

The expert testimony of Bob Kingsbery, the cattle industry and fencing expert,

established that if fences around livestock are not properly inspected and maintained,

these fences can break down in as little as a week. Kingsbery testified that whenever

a cow is kept in a fenced property or pasture, “the fence needs to be checked,

inspected, and maintained on a regular basis.” That means “more than once a week,”

someone should “inspect the entire length of the fence.” Based on their children’s

descriptions of their infirmities, Kingsbery concluded Eugene and Mary Alice were

not capable of inspecting and maintain the fences themselves, nor were they capable

of performing any needed repairs on the fence.

Victor testified that Arraby, as property owner, also owned the fence on the

property. But Victor, the president and managing partner of Arraby, admitted he had

no familiarity with livestock, no familiarity with what was required to maintain a

fence around a livestock pasture, and no records for maintaining the fences on the

property. Victor plainly admitted he does not fix fences. Victor also testified that he

knew the purpose of the fence around the pasture was to keep the cow in the pasture

and that the cow could escape through a broken part of the fence. Victor’s testimony

shows he knew the cow on the property could escape, yet Arraby did nothing to

13 ensure the cow was properly fenced in. Arraby left that responsibility to Victor’s

elderly, physically and mentally infirm parents.

Victor testified that his father’s workers would come onto the property to take

care of the cow and maintain the fences around it. But again, Victor did not name a

single person, testify that he had ever seen or interacted with any of these people

whom he allowed onto the property he owned, provide any evidence that Eugene or

Arraby made arrangements to care for the cow or ever paid these workers for the

work they did, or provide any evidence that anyone at any time had ever repaired the

fence. His testimony amounts to no more than a scintilla of evidence that the fences

were maintained.

Where there is no evidence, aside from uncredible and unsupported interested

testimony, of the fences ever being maintained, there is expert testimony that fences

around livestock can fall into disrepair in as little as a week, and there is undisputed

evidence that the cow actually did escape from the property, then this circumstantial

evidence permits the inference that the cow escaped through a broken fence. Unlike

other livestock animals like horses, cows cannot simply jump over fences. Thus, a

cow can only escape a fenced area through a broken fence, so if the cow on the

Arraby property escaped, it must have been through a broken fence.

A person acts knowingly with regard to circumstances surrounding his

conduct when he is aware that the circumstances exist. TEX. PENAL CODE § 6.03(b);

14 see also Pruski, 594 S.W.3d at 326–27 (applying “knowing mental state” in criminal

law to Section 143.102 civil liability). Here, Victor, as president and managing

member of Arraby, was aware that there was a cow on Arraby’s property, that the

cow could escape through a broken fence, and that Arraby made no arrangements to

inspect and maintain the fence to make sure the fence was not broken. Thus, Arraby

knowingly permitted the cow to roam at large by not ensuring the animal was fenced

in, and it did nothing to prevent the cow from roaming onto a highway.

The law imposes no liability for the accidental and temporary escape of an

animal through no fault of its owner or keeper. Pruski, 594 S.W.3d at 327

(explaining that permitting animal to roam at large means more than temporary

escape); Beck, 566 S.W.2d at 572 (holding animal’s mere presence on highway does

not create presumption of negligence on part of property owner or animal’s owner).

But I believe that fault is shown here with Arraby’s conscious indifference to its

responsibility to keep the cow on its property properly fenced in. Section 143.102

imposes liability for permitting an animal to roam at large on a highway, and to

permit to roam means to allow an animal “to graze and move about freely in an

unconfined area.” Pruski, 594 S.W.3d at 327. Arraby made no effort to confine the

cow on its property. In that way, Arraby knowingly permitted the cow to roam at

large, and the cow wandered onto a highway where Brown collided with it, resulting

in serious injury. Therefore, Arraby is liable to Brown for the damage it caused.

15 The evidence in this case shows that Arraby, as property owner, was

responsible for the control of the cow on its property because it knowingly allowed

the cow to be kept there and did not relinquish that control to anyone else, and the

evidence shows Arraby knowingly permitted the cow to roam at large on a highway

because Arraby made no effort to keep the cow fenced in. Arraby had a duty to

confine the cow by inspecting and maintaining the fences around the cow but did

not do so and did not make arrangements for their inspection and maintenance. Thus,

Arraby is liable under Section 143.102 of the Agriculture Code, and the trial court

correctly found Arraby was negligent in knowingly permitting the cow to roam at

large on a highway and correctly awarded damages to Brown. Thus, I would affirm

the trial court’s judgment.

Gordon Goodman Justice

Panel consists of Justices Goodman, Rivas-Molloy, and Farris.

Goodman, J., dissenting.