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
OPINION
Appellee Paul Brown collided with a cow on a state highway. He sued the
alleged owners of the cow and Arraby Properties, LLC, the owner of the land on
which the roaming cow was alleged to be pastured. Following a bench trial, the trial
court held Arraby Properties, LLC had responsibility for control of the cow and knowingly permitted the cow to roam at large on the state highway. The trial court
awarded damages to Brown.
In five issues, Appellant Arraby Properties, LLC argues (1) there is
insufficient evidence or no evidence to support the legal conclusion Arraby owed
Brown a duty because Arraby did not own or control the cow, (2) there is insufficient
evidence or no evidence Arraby breached a duty to Brown by knowingly permitting
the cow to roam at large on the state highway, (3) the trial court abused its discretion
in admitting and relying on the testimony of “Brown’s unqualified experts” Bob
Kingsberry and Floyd Luckett, (4) there is insufficient evidence or no evidence it
was foreseeable “the cow would escape,” and (5) the “trial court’s granular,
excessive findings prevented Arraby from properly presenting its appeal.”
Because there is legally insufficient evidence supporting the trial court’s
finding that Arraby was responsible for control of the cow or that it knowingly
permitted the cow to roam at large on a state highway, we hold the trial court erred
in concluding Arraby owed a duty to Brown under Section 143.102 of the Texas
Agriculture Code. We reverse the trial court’s judgment and render judgment that
Appellee take nothing on his claims.
Background
Paul Brown is a Houston ship channel maritime pilot. While driving home
after work during the early morning hours, Brown struck a cow roaming on State
2 Highway 225 in Harris County, Texas. Brown appeared to suffer no pressing injury
immediately after the crash. At a doctor’s appointment two months later, he reported
difficulty concentrating, thinking, and sleeping. He later reported difficulty
concentrating, difficulty sleeping, and inappropriate affect—as well as depression,
problems with anger, weakness, headaches, and dizziness. A neurologist diagnosed
Brown with mild cognitive impairment.
Eugene Ybarra and Mary Alice Ybarra (the “Ybarras”), an elderly married
couple, lived on a 5.8-acre tract of land (“Property”) located a few miles from State
Highway 225, near where Brown collided with the cow. Eugene and Mary Alice
purchased the Property in 1973 and for at least five years prior to the accident, they
lived in a house on the Property where they kept a “pet cow.” At the time of the
accident, the Property was owned by Arraby Properties, LLC, a company owned by
Victor Ybarra and Albert Troy Ybarra, two of the Ybarras’ children.1 In 2016,
Eugene and Mary Alice transferred the Property to Arraby via warranty deed, but
they continued to live on the Property.
The Property was divided into two parts, with a fence separating the front half
of the Property where the house was located, from the back half consisting of
undeveloped land generally kept as pasture. A separate fence enclosed the entire
1 The Ybarras have eight children, including Troy Ybarra, Victor Ybarra, and Alice Chandler.
3 Property, with a metal gate at the front entrance. Two days before Brown’s accident,
a cow was reported missing from the Property.2 The cow was never recovered.
Brown filed suit against Eugene Ybarra for negligence and gross negligence,
claiming Eugene “owned” the cow that “was running at large on the State Highway.”
Brown alleged that Eugene was liable to him under Texas Agriculture Code Section
143.102 because he owed a “duty to Brown not to permit the cow that he owned
from traversing or roaming at-large, unattended, on the right-of way of State
Highway 225.” Brown further alleged Eugene was liable because Eugene “owed a
duty to Brown not to permit the cow that he owned from running at large in Harris
County, Texas pursuant to the Harris County stock law and [Texas Agriculture Code
Sections] 143.071, et. seq.” Brown sought to recover damages for personal injuries
and property damage. He also sought recovery of exemplary damages.
Brown later amended his petition to add the same negligence claims against
Mary Alice Ybarra, Victor Ybarra, Troy Ybarra, and Arraby.3 Brown alleged that
“he collided with a cow owned by Eugene [] and [Mary] Alice [] . . . and housed on
real properly owned by Arraby Properties, LLC, which was running at large on the
State Highway.” Brown alleged that upon “information and belief” the “cow was
2 In his closing argument, Brown’s counsel stated that the Ybarras’ nephew reported the cow missing. 3 Brown also added claims for negligence per se, negligent entrustment, respondeat superior, joint enterprise, and later, in his Seventh Amended Petition, he added claims for “contract of agistment” and res ipsa loquitor. 4 jointly owned by Arraby Properties, LLC and by extension” Troy and Victor. Brown
claimed the Ybarras and Arraby owed him a duty under “Sections 143.101-102” and
“Sections 143.071, et. seq.” of the Texas Agriculture Code to not permit the cow
“from traversing or roaming at-large, unattended, on the right-of way of State
Highway 225” or “from running at large in Harris County.”
Brown later dismissed his claims against Eugene, who passed away, and Mary
Alice, who suffered from late-stage Alzheimer’s disease, leaving Arraby, Victor,
and Troy as the only remaining defendants. Arraby, Victor, and Troy filed a general
denial asserting various defenses, including that they were not “the owner[s] of the
cow . . . involved in the car accident” and that Arraby “has never owned livestock of
any kind.”4 They further alleged that Brown’s claims under Section 143.074 of the
Texas Agriculture Code were precluded because when an accident involving
livestock occurs on a state highway, Section 143.102 provides the exclusive
standard.
The Bench Trial
The trial court conducted a two-day bench trial. Relevant to the issues on
appeal, Victor, his sister Alice Chandler, and Brown’s expert witness, Bob
4 They also alleged that the cow involved in the accident was not “pastured on land owned” by Arraby.
5 Kingsberry, testified at trial.5
A. Victor Ybarra
Victor testified that the Property, which Eugene and Mary Alice purchased in
1973, includes a home and a pasture which are enclosed by fences where Eugene
and Mary Alice kept their “pet” cow. Eugene and Mary Alice lived on the Property
for at least five years before the accident occurred in March 2017. In 2016, Eugene
and Mary Alice conveyed the Property to Arraby. When asked if there was a written
agreement between Arraby and the Ybarras that “allowed [Eugene and Mary Alice]
to keep the cow on the Property and pasture it there,” Victor testified:
It’s my parents’ house. All they did was sign it over to us. Nothing changed. Like I said, it was their house, their property. They took care of everything. The only thing they did was sign it over to us. That was it.
Victor testified that Eugene “only signed [the Property] over to [Arraby
Properties in 2016] just in case something happened to him.” “That was it. But
nothing changed.” According to Victor, Eugene and Mary Alice “maintained
everything the way it was” and Eugene’s “workers came, cut the grass[,] took care
of the fence[, and ] took care of the cow.” Victor testified that Eugene and Mary
5 Other witnesses testified about the nature of the accident and Brown’s work and medical condition, including Officer Roger Gonzalez, Dr. Floyd Luckett, M.D., Captain Mark Mitchum, Wallace Stanfill, Lee Wilson, Robert Johnson, Captain Daniel Doty, Kenneth Jones, Sr., Matt White, Brown, and Brown’s wife Sheila Brown. Because their testimony is not relevant to the issues on appeal, we do not discuss their testimony in our opinion.
6 Alice were also responsible for paying the Property’s taxes after they conveyed the
Property to Arraby in 2016. Victor explained that while his father Eugene had some
physical limitations, Eugene “still had his mind” and Eugene went to work every
day because he “had his restaurant to run.” He testified that Arraby does not keep
maintenance records with respect to the fences on the Property because Eugene’s
“workers were the ones who took care of it.” According to Victor, Eugene “had
people that worked under him” and Eugene would send them to fix the Property’s
fences, cut the grass, change a light bulb, or address other maintenance concerns on
the Property. In addition to his restaurant, Eugene also owned ranches nearby and
Eugene employed “workers that handled his ranches,” including fixing the
properties’ fences. Victor added that Eugene “had his companies” and he had
“workers that handled his ranches.” Those workers “would go fix his fences if . . .
[Eugene] saw an issue with it” or “when he heard there was an issue with [the
fence].”
When asked if he had a duty to maintain the Property’s fences, Victor testified
that when Eugene and Mary Alice lived on the Property, he and his seven siblings
would visit and “[i]f there’s something wrong at the house, we fix it.” With respect
to the fence, Victor testified that he had no knowledge about “what’s required to
maintain the fence” because his father “had workers who would take care of it.” He
testified that he and his siblings “didn’t do the animals. I don’t do animals.” Eugene
7 and Mary Alice also “had people in the back” like “Ray [Gonzalez], who was
watching over the property, [and] called the police when he saw [the cow was
missing.]”6 Ray Gonzalez’s mother was also on the Property “to watch [Mary Alice
and] help her with the house chores and everything.”
B. Alice Chandler
Brown presented the deposition testimony of Alice Chandler, who is Victor’s
and Troy’s sister. Alice testified that Eugene and Mary Alice were not able to take
care of a cow. According to Alice, their father Eugene “was not able to walk very
well” and had been using a walker for a year before the accident. Alice had been
driving Eugene to work because he was no longer able to drive. Alice testified that
neither Eugene nor Mary Alice was physically able to go outside to mend fences or
make sure the cow was confined to the Property, and it would have been apparent to
Victor and Troy that Eugene and Mary Alice were “not best physically or mentally”
and unable to care for a cow. According to Alice, her mother Mary Alice had been
showing signs of Alzheimer’s for six or seven years before the accident, such as
forgetfulness and repeating herself.
C. Bob Kingsbery
Brown presented the deposition testimony of Bob Kingsbery, a livestock
fencing expert. Kingsbery testified that he is in the “livestock fencing business as
6 The record reflects that Ray Gonzalez is the Ybarras’ nephew.
8 an international sales manager for a company called Dare Products.” Based on his
review of affidavits from Victor and Troy, an aerial photograph of the Property,
Alice’s deposition testimony, and the deposition testimony of Officer Roger
Gonzalez,7 he concluded the cow involved in the accident “escaped from the pasture
where [it] was being kept on [the Property].”
Kingsbery was asked to opine based on his “experience, education, and
training and the files [he] reviewed,” who owned or had responsibility for
management of the cow on the Property. He responded:
Well, as I understand, the property was owned by Arraby. . . [a]nd that’s where the cow was before it escaped. And that Mrs. Ybarra, their mother, testified that she and her husband did not own the cow or could not take care of the cow at the time. . . my opinion is that the cow was owned by the owners of the property and they were responsible for managing and taking care of it.
Kingsbery clarified that in referring to Mrs. Ybarra’s testimony, he was referring to
Mary Alice’s discovery responses where she said “[she and Eugene] did not own the
cow.” He testified, “Well, I haven’t seen any evidence that anybody else owned it.
And . . . the cow is on somebody’s property” and Troy and Victor “stated in their
affidavits, that they [knew] the cow was there.” Kingsbery thus concluded, “that’s
7 Officer Roger Gonzalez is a City of La Porte police officer. He was dispatched to the scene of the accident, and he investigated the accident. His deposition testimony and police report were admitted into evidence at the bench trial.
9 why . . . my opinion is [that] the owners of the property were responsible for . . .
managing the cow.”
Kingsbery also concluded that Troy and Victor acted “knowingly” in letting
the cow roam onto the highway because they knew Eugene and Mary Alice were not
“physically able” to check and inspect the fence on the Property, and thus Troy and
Victor knew the cow could get out. Kingsbery did not inspect the fence or visit the
Property. His conclusion was based on the fact the Ybarras were not physically
capable of “inspecting or maintaining the fence.” When asked what evidence he had
that the fence on the Property was not “being maintained properly,” he testified that
his opinion was based on “testimony or affidavits, that Mr. and Mrs. Ybarra were
responsible for maintaining the fence and that they were physically not capable of
doing that.”
When asked what evidence he had that Arraby owned the cow, he testified he
did not “have any evidence of that.” But he followed by stating the “cow was [on]
their property and the people that were living there said they did not own it.” He
stated that “Mrs. Ybarra testified she and her husband did not own a cow.”8
Kingsbery testified that “if somebody’s not responsible, or the result of a lease, or
something like that, then I would say the property owner would be responsible for
8 In referring to Mary Alice’s testimony, Kingsbery clarified he was referring to her discovery responses. 10 the cattle.” “Absent some sort of lease or agreement that someone else would be
responsible” for livestock, Kingsbery testified that a “landowner is responsible for
cattle on its property” if he is aware of the cattle’s presence. He thus concluded that
in his opinion, Arraby “had control or responsibility for controlling the animal,
because they owned the property and . . . their parents, who lived on the property,
were not physically capable of . . . caring for a cow.”
D. Other Evidence
Prior to trial, Arraby, Troy, and Victor filed a motion for summary judgment
and in support of their motion, they submitted affidavits from Troy and Victor.
During the bench trial, Troy’s and Victor’s summary judgment affidavits were
admitted into evidence as Plaintiff’s Exhibit 7 and Plaintiff’s Exhibit 8.
Troy stated in his affidavit that his parents Eugene and Mary Alice kept two
or three cows on the Property before they conveyed the Property to Arraby in 2016.
Eugene and Mary Alice maintained the fencing and the animals on the Property.
According to Troy, Eugene and Mary Alice “continued to keep cattle at the property,
and they continued to maintain the fencing and the animals” after they conveyed the
Property to Arraby in 2016. Troy stated that, as Arraby’s Vice President, he “made
sure that arrangements had been made with my parents to maintain the fencing for
the pasture, which was entirely made of wood, and that my parents would take
responsibility to maintain the cow they kept on Arraby land.”
11 In his affidavit, Victor stated that Eugene and Mary Alice kept a cow on the
Property and they “maintained the fencing for the cow and were responsible to
maintain the animal” when they owned the Property. According to Victor, after
Eugene and Mary Alice conveyed the Property to Arraby in 2016, they “continued
to keep a cow at the [P]roperty, and they continued to maintain the fencing and the
animal.” Victor further stated that as Arraby’s President, he had cooperated with
Troy to make sure that “arrangements had been made with my parents to maintain
the fencing for the pasture, which was entirely made of wood, and that my parents
would take responsibility to maintain the cow they kept on Arraby land.”
The trial court also admitted into evidence Mary Alice’s amended responses
to Brown’s interrogatories.9 The interrogatory responses were admitted into
evidence as Plaintiff’s Exhibit 27. When asked in an interrogatory to describe any
measures she had taken to ensure the Property’s fence was secure, Mary Alice stated,
“I was allowed to live on the property by my sons. I did not maintain or secure any
fence as I am not physically able to maintain this property.”
9 It is undisputed that Mary Alice was suffering from late-stage Alzheimer’s when she served her amended interrogatory responses in April 2019. The trial court found that Mary Alice had “advanced stage Alzheimer’s dementia disease” and that “Alice saw signs of the disease in her mother from as early as 2010-2011 including forgetfulness and repeating herself.” The amended interrogatory responses, served in 2019, do not indicate whether Mary Alice received assistance in collecting the data or the information included in the responses. The verification attached to the interrogatory responses is signed by Mary Alice.
12 At the conclusion of the bench trial, the trial court held that Arraby was
responsible for control of the cow, Arraby knowingly permitted the cow to roam at
large on the highway, the cow Arraby controlled was the cow involved in the
accident, and Brown suffered damages proximately caused by Arraby’s conduct.
The trial court awarded Brown $3,174,817 in damages for physical pain and
suffering, mental anguish, and loss of earning capacity. The trial court entered a
final judgment against Arraby and held that Victor and Troy were not personally
liable. This appeal followed.
Standard of Review
When a party appeals from a judgment rendered after a bench trial, the trial
court’s findings of fact have the same weight as a jury’s verdict, and we review the
sufficiency of the evidence supporting those findings by using the same standards
we use to review jury verdicts. See Tex. Outfitters Ltd., LLC v. Nicholson, 572
S.W.3d 647, 653 (Tex. 2019) (citing Anderson v. City of Seven Points, 806 S.W.2d
791, 794 (Tex. 1991)); see also BMC Software Belgium, N.V. v. Marchand, 83
S.W.3d 789, 795 (Tex. 2002). When, as here, there is a complete reporter’s record,
findings of fact are not conclusive, and they are binding only if supported by the
evidence. See BMC Software Belg., N.V., 83 S.W.3d at 795; see also HTS Servs.,
Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—Houston
[1st Dist.] 2005, no pet.).
13 When a party attacks the legal sufficiency of an adverse finding on an issue
for which it did not have the burden of proof, it must demonstrate that there is no
evidence to support the adverse finding. Exxon Corp. v. Emerald Oil & Gas Co.,
L.C., 348 S.W.3d 194, 215 (Tex. 2011). In our legal sufficiency review, we credit
all evidence and inferences favorable to the trial court’s decision if a reasonable
factfinder could, and we disregard all evidence contrary to that decision unless a
reasonable factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 828
(Tex. 2005). We will sustain a no evidence challenge if (1) there is a complete
absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence
from giving weight to the only evidence offered to prove a vital fact, (3) the evidence
offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence
conclusively establishes the opposite of the vital fact. Id. at 810. “More than a
scintilla of evidence exists when the evidence ‘rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions.’” King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc.
v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). Evidence does not exceed a scintilla,
however, if it is so weak as to do no more than to create a mere surmise or suspicion
that the fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
In reviewing a factual sufficiency challenge to a finding on an issue on which
the challenging party did not have the burden of proof, we consider and weigh all of
14 the evidence and set aside the verdict only if the evidence that supports the finding
is so weak or so contrary to the overwhelming weight of the evidence as to make the
verdict clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986); see also Figueroa v. Davis, 318 S.W.3d 53, 59 (Tex. App.—Houston
[1st Dist.] 2010, no pet.).
In a bench trial, the trial court is the sole judge of the witnesses’ credibility
and the weight to be given their testimony, and the court may choose to believe one
witness over another. See City of Keller, 168 S.W.3d at 819. We may not substitute
our judgment for that of the trial court. Id.; Golden Eagle Archery, Inc. v. Jackson,
116 S.W.3d 757, 761 (Tex. 2003). The trial court’s credibility assessment, however,
must be reasonable and the court “cannot ignore undisputed testimony that is clear,
positive, direct, otherwise credible, free from contradictions and inconsistencies, and
could have been readily controverted.” City of Keller, 168 S.W.3d at 820.
We review de novo a trial court’s conclusions of law, and we will uphold them
on appeal if the judgment can be sustained on any legal theory supported by the
evidence. BMC Software Belg., N.V., 83 S.W.3d at 794.
Applicable Law
There is no common-law duty requiring livestock owners to restrain their
animals within fences. Livestock owners generally may allow their animals to run
at large, rendering Texas a “free-range.” Pruski v. Garcia, 594 S.W.3d 322, 323
15 (Tex. 2020) (“From the time of the Republic of Texas, the default rule in this state
has been that livestock owners may allow their animals to run at large.”); Gibbs v.
Jackson, 990 S.W.2d 745, 747 (Tex. 1999). Texas does, however, impose two
statutory duties to restrain livestock. Pruski, 594 S.W.3d at 323; Gibbs, 990 S.W.2d
at 748; see also Billelo v. SLC McKinney Partners, L.P., 336 S.W.3d 852, 854 (Tex.
App.—Dallas 2011, no pet.) (stating duty to confine animals within fences is “purely
statutory in nature”).
Section 143.102 of the Texas Agriculture Code, entitled “Running at Large
on Highway Prohibited,” provides that 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. And Section 143.074 provides that in counties that
have enacted stock laws, “a person may not permit any animal of the class mentioned
in the [stock law] proclamation to run at large in the county.” Id. § 143.074.
Although both sections impose criminal penalties for violations,10 courts have relied
on the statutes to address civil liability and the corresponding standard of care
10 See TEX. AGRIC. CODE § 143.082 (stating person commits Class C misdemeanor when they “knowingly permit[] a head of cattle or a domestic turkey to run at large in a county or area that has adopted this subchapter”); id. § 143.108(a)–(b) (stating person commits Class C misdemeanor when they violate Section 143.102). 16 applicable to livestock owners whose animals stray onto state highways or areas
covered by a local stock law. Pruski, 594 S.W.3d at 325–26.
In Pruski v. Garcia, 594 S.W.3d 322 (Tex. 2020), the Texas Supreme Court
explained that “[w]hen cars collide with livestock on state highways in counties with
stock laws, the differing standards of livestock-owner liability imposed by section
143.102 and section 143.074 cannot both apply.” Id. at 324. Following the
Legislature’s direction on how to resolve the conflict, the Court held that when, as
here, accidents involving livestock occur on a state highway, Section 143.102
provides “the exclusive standard” for livestock-owner liability. Id. The difference
matters “a great deal [because] Section 143.102 is violated only when the livestock
owner knowingly permits the animal to run at large, while a violation of [S]ection
143.074 does not require the livestock owner’s ‘knowing’ mental state.” Id.
(emphasis in original).
In analyzing Section 143.102, the Pruski court noted that neither party had
addressed whether the statute “‘create[d] an appropriate standard of care for civil
liability purposes’” and that both the parties and the appellate court had assumed a
violation of the statute gave rise to a tort action. Id. at 326 (quoting Smith v. Merritt,
940 S.W.2d 602, 607 (Tex. 1997)). Because the issue was not before it, the Court
assumed, without deciding, that Section 143.102 creates an “appropriate standard of
care for civil liability purposes” and that “civil liability may therefore be imposed”
17 for its violation. Id.; see also Gibbs, 990 S.W.2d at 749 (noting that “Texas courts
have relied upon these two statutes, or their predecessors, to hold or assume that
livestock owners may be liable for negligence if their animals stray onto highways”).
As in Pruski, neither party here disputes that Section 143.102 creates a
standard of care for civil liability purposes for livestock owners whose animals stray
onto state highways. Both parties and the trial court assumed the application of the
statute to impose civil liability on Arraby. For purposes of this appeal, we similarly
assume, without deciding, that Section 143.102 establishes the applicable standard
of care. See Pruski, 594 S.W.3d at 326 (observing that Gibbs did not “accept or
reject” Section 143.102 “as a source of civil liability or make any holding about the
contours of the civil-liability rules that arise from [this] statute[]” and assuming “as
the parties do” that Section 143.102 creates standard of care for civil liability
purposes).
Discussion
In five issues, Arraby argues (1) there is insufficient evidence or no evidence
to support the legal conclusion Arraby owed Brown a duty because Arraby did not
own or control the cow, (2) there is insufficient evidence or no evidence Arraby
breached a duty to Brown by knowingly permitting the cow to roam at large on a
state highway, (3) the trial court abused its discretion in admitting and relying on the
testimony of “Brown’s unqualified experts” Bob Kingsbery and Floyd Luckett,
18 (4) there is insufficient evidence or no evidence it was foreseeable “the cow would
escape,” and (5) the “trial court’s granular, excessive findings prevented Arraby
from properly presenting its appeal.”
Because the first and second issues are dispositive, we do not reach the
remaining issues.
A. Analysis
The threshold inquiry in a negligence case is duty. Greater Hous. Transp. Co.
v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). A plaintiff must establish the
existence of “‘a legal duty owed by one person to another, a breach of that duty, and
damages proximately caused by the breach.’” Nabors Drilling, U.S.A., Inc. v.
Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (quoting D. Hous., Inc. v. Love, 92 S.W.3d
450, 453 (Tex. 2002)). The existence of duty is a question of law. See Nabors, 288
S.W.3d at 404. “The non-existence of a duty ends the inquiry.” Kennamer v. Estate
of Noblitt, 332 S.W.3d 559, 564 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
In rendering judgment for Brown, the trial court concluded that the
“applicable law is found in Texas Agriculture Code § 143.102.” It held that Arraby
was liable to Brown under Section 143.102 because “Arraby had responsibility for
the control of the cow” and “knowingly permitted the cow to roam at large,
unattended, on the right-of-way of Highway 225.” Arraby asserts there is
19 insufficient evidence or no evidence that Arraby had responsibility for control of the
cow or that it knowingly allowed the cow to roam at large.
A person violates Section 143.102 if he (1) owns the animal or has
responsibility for control of the animal, and (2) knowingly permits the animal to run
at large on the right-of-way of a highway.11 TEX. AGRIC. CODE § 143.102; see also
Pruski, 594 S.W.3d at 324 (“Section 143.102 requires a ‘knowing’ mental state as a
prerequisite to livestock-owner liability for highway accidents.”). We analyze each
element in turn.
B. Section 143.102: Ownership or Control
The trial court did not conclude that Arraby owned the cow involved in the
collision. Rather, in rendering judgment for Brown, the trial court concluded that
Arraby had responsibility for control of the cow. Arraby argues there is insufficient
evidence or no evidence it was responsible for control of the cow because Arraby
relinquished control of the Property to Eugene and Mary Alice. 12 Citing Levesque
v. Wilkens, 57 S.W.3d 499 (Tex. App.—Houston [14th Dist.] 2001, no pet.), Arraby
argues that, as landlord, it owed no duty to Brown under Section 143.102 because
11 Section 143.101 defines “highway” as a “U.S. highway or a state highway in this state, but does not include a numbered farm-to-market road.” TEX. AGRIC. CODE § 143.101. 12 Arraby also argues there is insufficient evidence that the cow involved in the accident was the Ybarras’ pet cow. For purposes of this opinion, we assume, without deciding, that the cow Brown collided with was the cow being pastured on the Property.
20 that statute “places the risk upon the owner of the livestock, not the owner of the
land.” Id. at 505 (emphasis in original).
In Levesque, landowners executed a lease agreement transferring their
exclusive possession of their property to the tenant. The tenant owned a bull that
escaped from the property and caused an automobile accident. Id. at 502. Levesque,
who was injured in the accident, sued the landowners of the property, among others.
The landowners moved for summary judgment arguing they did not owe a duty to
Levesque to prevent the bull from escaping their property because they had
relinquished their rights to the property to the tenant who owned the bull. See id.
(“The threshold inquiry is whether Landowners, as lessor, owed a legal duty to
Levesque to prevent the danger that caused their injuries.”). The trial court granted
summary judgment in favor of the landowners and Levesque appealed. The court
of appeals concluded that, “[b]ecause the lease agreement g[ave] [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.” Id.
at 505. The court further stated that “because section 143.102 [of the Texas
Agriculture Code] places the risk upon the owner of the livestock, not the owner of
the land, the statutory duty to prevent his livestock from wandering onto the highway
[fell on the tenant], as owner and possessor of the animal. Therefore, under the
21 statute and the lease agreement, Landowners have no responsibility for control of
the bull.” Id. (emphasis in original).
Brown argues that Arraby’s reliance on Levesque is misplaced because unlike
in Levesque, there is no evidence here that Arraby relinquished control of the
Property to Eugene and Mary Alice through a lease agreement or that a formal
landlord-tenant relationship existed between Arraby and Eugene and Mary Alice.
Brown further argues that Eugene and Mary Alice are not tenants because “[t]here
was no evidence of any lease, any other agreement, rental payments, or anything else
that would suggest a landlord-tenant relationship between Arraby and Eugene and
Mary Alice.”
We do not find Levesque instructive. In Levesque, it was not necessary for
the court to conduct a factual inquiry to determine who had responsibility for control
of the bull, because it was undisputed the tenant owned the bull and the written
lease—the legal document before the court and to which no party objected—
answered the question of possession over the land. Under the terms of the lease, the
tenant had exclusive possession of the land and thus, the court concluded, over the
fence and the bull it owned. Id. While we agree that a formal lease agreement can
be used as evidence to determine whether a landowner has exclusive possession of
property and control of any livestock pastured on the property, nothing in Levesque
suggests that a lease agreement is the only evidence relevant to the inquiry or that in
22 the absence of a formal lease agreement, a landowner is responsible for control of
livestock on its land.
We have not found, and the parties have not directed us to, any authority
requiring the existence of a formal landlord-tenant relationship or a formal lease
agreement to determine responsibility for control of livestock under Section
143.102. See generally TEX. AGRIC. CODE § 143.102 (prohibiting “person who owns
or has responsibility for the control of” certain livestock, including cow, from
“knowingly permit[ting] the animal to traverse or roam at large, unattended, on the
right-of-way of a highway”); see also Harlow v. Hayes, No. 07-95-0210-CV, 1996
WL 467464, at *3 (Tex. App.—Amarillo Aug. 16, 1996, no writ) (not designated
for publication) (explaining in case where lease existed, that landlord can be held
liable when circumstances indicate retention of control over premises). Thus,
whether Eugene and Mary Alice were Arraby’s “tenants” under the present
circumstances is not dispositive.
It is undisputed that Arraby owned the Property when the accident occurred.
But Section 143.102 does not place the risk upon the owner of the land on which
livestock is pastured. A landowner is liable under Section 143.102 only if it owns
the animal or has responsibility for control of the animal. TEX. AGRIC. CODE §
143.102.
23 While the trial court found Victor’s testimony “for the most part, was not
credible,” a trial court is not at liberty to “ignore undisputed testimony that is clear,
positive, direct, otherwise credible, free from contradictions and inconsistencies, and
could have been readily controverted.” City of Keller, 168 S.W.3d at 820. Victor
consistently testified that Eugene and Mary Alice were responsible for the
maintenance of and repairs to the Property before and after they conveyed the
Property to Arraby in 2016. He testified that the only thing that changed after 2016
was who held title to the Property. According to Victor, his parents, who had owned
the Property since 1973, “only signed [the Property] over to [Arraby in 2016] in case
something happened to [Eugene].” Victor testified, “That was it. But nothing
changed.”13 Victor testified that “it was [Eugene’s and Mary Alice’s] house, their
property. . . . The only thing they did was sign it over to us. That was it.” Victor’s
undisputed testimony was that by informal agreement with Arraby, Eugene and
Mary Alice retained all the rights and obligations associated with the Property they
had before conveying the Property to Arraby, including the right to exclusive
possession and control of the Property.
Victor also testified that Arraby was not responsible for livestock on the
Property, and that before and after the conveyance of the Property, Eugene was
13 Victor also testified that Eugene and Mary Alice were responsible for paying the Property’s taxes after they conveyed the Property to Arraby.
24 responsible for the cow. There is no evidence contradicting Victor’s testimony that
Eugene and Mary Alice retained the rights to the Property they had before the
conveyance (other than legal title), and that they were responsible for control of the
cow when the accident occurred in 2017.
There is also no evidence that Arraby had a right to enter the Property. See
Levesque, 57 S.W.3d at 505 (holding landowner who relinquished exclusive right to
occupy property through lease agreement and did not retain right of reentry did not
have control of livestock that had escaped from property). While Victor testified
that he and his siblings would visit their parents on the Property and fix anything
that was “wrong at the house,” there is no evidence Victor did so on behalf of Arraby,
as opposed to his individual capacity as a family member.
There is also no evidence that Eugene did not maintain the Property’s fences
or care for the cow pastured on the Property. Victor testified that Eugene had
workers for his restaurant and ranches, and he “would send” those workers to fix the
Property’s fences, take care of the cow, and address other maintenance concerns on
the Property. Victor explained that Ray Gonzalez and Ray’s mother were also
present to “watch[] over the Property” and to help Mary Alice “with the house chores
and everything.” There is no evidence contradicting Victor’s testimony.
Alice, Victor’s sister, testified that Eugene and Mary Alice were not
physically capable of inspecting or mending the fences on the Property or caring for
25 a cow. But Alice did not testify that Arraby was responsible for control of the cow.
Indeed, no one did. Kingsbery and the trial court appeared to reach the conclusion
that Arraby was responsible for control of the cow because Eugene and Mary Alice
were not physically capable of doing so. Even if that were true, nothing in Alice’s
testimony or any other anyone else’s testimony indicated that Eugene was not
capable of directing his employees to maintain the fences on the Property or care for
the cow pastured on the Property.
Mary Alice’s interrogatory responses merely demonstrate that she and Eugene
were not physically able to maintain or secure the Property’s fences or “physically
care for any livestock.” Nothing in her responses indicates that Eugene was not
capable of directing his employees to maintain the fences on the Property or care for
any livestock pastured on the Property, or that Eugene and Mary Alice had not
agreed to continue to be responsible for care of the Property or any livestock pastured
on the Property after they conveyed the Property to Arraby in 2016. Indeed, Ray
Gonzalez, who watched over the Property for the Ybarras, reported the cow missing
two days before Brown’s accident.
Victor’s undisputed testimony that Arraby informally relinquished its right to
exclusive possession of the Property to Eugene and Mary Alice and that Eugene
continued to take care of the cow and the Property, via his workers, after transferring
the Property to Arraby was “clear, positive, direct, otherwise credible, free from
26 contradictions and inconsistencies, and could have been readily controverted,” and
as such the trial court was not at liberty to disregard the testimony.14 See City of
Keller, 168 S.W.3d at 820. This evidence conclusively establishes that Eugene and
Mary Alice had responsibility for control of the cow and the Property, not Arraby.
See id. at 816 (“Evidence is conclusive only if reasonable people could not differ in
their conclusions.”).
Because the evidence conclusively establishes the opposite of a vital fact, in
this case Arraby’s responsibility for control of the cow, we conclude there is legally
insufficient evidence supporting the trial court’s finding that Arraby was responsible
for control of the cow Brown struck with his car. See id. at 810 (stating there is
legally insufficient evidence if evidence conclusively proves opposite of vital fact).
We hold the trial court erred by concluding that Arraby owed a duty to Brown under
Section 143.102 of the Texas Agriculture Code. See Pruski, 594 S.W.3d at 326;
Gibbs, 990 S.W.2d at 749.
We sustain Arraby’s first issue.
14 For example, the existence of this informal agreement could have been controverted by Mary Alice in her discovery responses, by Ray Gonzalez who worked on the Property and reported the cow missing, by Alice, or by another of Eugene’s and Mary Alice’s children.
27 C. Section 143.102: Knowingly Permitting the Cow to Roam at Large
Even if the evidence established Arraby had responsibility for control of the
cow, there is legally insufficient evidence to support the trial court’s finding that
Arraby knowingly permitted the cow to roam at large on a state highway. For there
to be liability under Section 143.102, civil or criminal, it must be shown the
defendant “knowingly permitted” the animal to roam at large on the highway. See
Pruski, 594 S.W.3d at 326. Although the statute does not define the term
“knowingly,” under the Texas Penal Code
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); see also Pruski, 594 S.W.3d at 326–27. Section
143.102 is thus violated only “if the livestock owner [or a person who has
responsibility for control of the livestock] permits the animal to traverse or roam at
large, unattended, on the right-of-way of a highway and does so with the knowing
mental state traditionally applied in criminal law.”15 Id. at 327. The term “permit”
15 The original predecessor to Section 143.102 prohibited livestock owners from permitting their animals to traverse or roam unattended on the right-of-way of a highway with fences on both sides. Pruski v. Garcia, 594 S.W.3d 322, 328–29 (Tex. 2020). In 1959, the prohibition was limited to “knowingly” permitting animals to roam at large on highways, but the scope of the statute was extended to cover highways whether “the adjacent land was fenced or not.” Id. This was a “trade-off,” providing “ranchers the protection of the ‘knowingly’ standard,” but 28 usually “connotes awareness or assent, as opposed to mere oversight or negligence.”
Id.
Brown argues on appeal that Arraby is liable under Section 143.102 because
it “admitted [the] the cow []kept in Arraby’s pasture had gotten out,” Arraby did not
have “a planned response if the cow escaped from its [P]roperty,” and Arraby “never
talked to the La Porte police department about the cow that [] escaped.” According
to Brown, Kingsbery reviewed the evidence and “connected the dots.”16 He testified
that the “fence [on the Property] needs to be checked, inspected, and maintained on
a regular basis” and the cow “needs to be fed[,] watered, and the gates need to be
checked to ensure they are not left open.” Based on Kingsbery’s understanding “that
Eugene and Mary Alice were not physically capable of satisfying these
also expanding “their liability to include unfenced highways.” Id. at 329. Notably, the 1959 amendment also added what is now Section 143.103, “which addresses the opposite situation: when liability will attach for drivers who ‘strike[], kill[], or damage[] an unattended animal running at large on a highway.’” Id. (quoting TEX. AGRIC. CODE § 143.103) (emphasis in original). Section 143.103 provides that such drivers are not liable “except on a finding of: (1) gross negligence in the operation of the vehicle; or (2) wilful [sic] intent to strike, kill, injure, or damage the animal.” TEX. AGRIC. CODE § 143.103. This “driver-liability” provision was part of another “legislative trade-off.” Pruski, 594 S.W.3d at 329. “The Legislature decided that in collisions between livestock and cars on U.S. and state highways, neither side should be liable absent a heightened culpable mental state.” Id. 16 In its third issue, Arraby argues the trial court abused its discretion in admitting and relying on the testimony of “Brown’s unqualified experts” Bob Kingsbery and Floyd Luckett. In light of our disposition, we need not reach this issue.
29 requirements” Kingsbery testified “it was his opinion that Victor and Troy knew the
cow could get out of the pasture.”
Even if true, this evidence does not establish liability under the applicable
statute. Section 143.102 does not impose a duty to prevent all escapes of fenced
animals. Rather, as the statute expressly provides, the duty is to 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; see also Pruski, 594 S.W.3d at 327. The
mere fact an animal escapes and makes its way onto a highway does not support a
finding of culpability. Beck v. Sheppard, 566 S.W.2d 569, 572–73 (Tex. 1978)
(holding that neither ownership of horse nor ownership of land on which horse was
kept created presumption that horse’s presence on highway was due to negligence
of land or horse owner, and further holding that neither property nor horse owner
were liable because there was no evidence any fences were down or gates open, or
that horse had ever gotten out of pastures or had propensity for doing so). Similarly,
mere knowledge that a cow may escape from pastured land is insufficient to establish
the “knowingly” element under the statute. Garcia v. Pruski, 563 S.W.3d 333, 344
(Tex. App.—San Antonio 2018), reversed in part on other grounds, Pruski v. Garcia,
594 S.W.3d 322 (Tex. 2020) (holding that person “‘who should have known’—but
does not actually know—his bull was permitted to traverse or roam at large” on
30 highway “lacks the requisite awareness or understanding required by section
143.102”).
Brown argues the trial court’s finding that Arraby knowingly permitted the
cow to roam at large on the highway is supported by the evidence because “inaction
can support that finding.” In support, Brown cites to Dearbonne v. Courville, No.
09-16-00440-CV, 2018 WL 4354310 (Tex. App.—Beaumont Sept. 13, 2018, no
pet.) (mem. op.), Rodriguez v. Sandhill Cattle Co., L.P., 427 S.W.3d 507 (Tex.
App.—Amarillo 2014, no pet.), and Rose v. Ben C. Hebert Heis, 305 S.W.3d 874
(Tex. App.—Beaumont 2010, no pet.). But none of those cases support the
“knowingly” element required in this case. Indeed, none of the cases involve Section
143.102—the applicable statute here.
In Dearborne, the plaintiffs were traveling in a car at night when they collided
with horses on the roadway. They sued the alleged owner of the horses claiming he
had been negligent in “allowing his horses to run free on the public roads.” 2018
WL 4354310, at *1. Dearbonne involved livestock liability under Section 143.024,
which, unlike Section 143.102, does not require a showing the defendant
“knowingly” permitted the livestock to roam at large to establish liability. See id. at
*8 (discussing liability under Section 143.024); see also Pruski, 594 S.W.3d at 327–
28 (explaining that Section 143.102 requires finding of knowing conduct while
31 Section 143.074 does not).17 And even in that case, the court held that “an animal’s
escape is not alone evidence of misconduct on the part of its owner,” holding that to
establish “a breach under section 143.024” plaintiffs had to establish landowner had
consented, expressly or formally, “to his horse(s) running at large” or given leave to
“his horse(s) running at large.” Dearbonne, 2018 WL 4354310, at *8. The court
concluded there was no evidence to establish liability because, among other things,
there was no evidence that the property’s fences or gates were in disrepair or
unsuitable or that horses had escaped from the property’s enclosures in the past. Id.
at *10 (holding there was no evidence defendant “permitted” horse to escape as
prohibited by statute).
Rose and Rodriguez also involved the violation of Section 143.074, a stock
law involving a different standard than the standard required under Section 143.102.
See Rodriguez, 427 S.W.3d at 509–10 (discussing liability under Section 143.074);
Rose, 305 S.W.3d at 879–81 (same); see also Pruski, 594 S.W.3d at 324 (explaining
that “Section 143.102 is violated only when the livestock owner knowingly permits
the animal to run at large, while a violation of [S]ection 143.074 does not require the
livestock owner’s ‘knowing’ mental state” and noting difference matters “a great
17 Sections 143.024 and 143.074 are substantially the same and apply in counties where stock laws have been adopted. The only difference between the two statutes is the type of livestock involved. See TEX. AGRIC. CODE § 143.024 (applying to horses, mules, jacks, jennets, donkeys, hogs, sheep, or goats); id. § 143.074 (applying to cattle and domestic turkeys).
32 deal”) (emphasis in original). In both cases, the courts clarified that even under that
statute, more is required for liability than the mere possibility livestock may escape
from its enclosure. Rose, 305 S.W.3d at 881 (“[W]e are skeptical that the Legislature
intended the duty it created in section 143.074 to extend to any person ‘who makes
possible’ the escape of cattle from a pasture.”); see also Rodriguez, 427 S.W.3d at
510 (adopting analysis in Rose). And in both cases, the courts rejected liability under
Section 143.074.
In Rose, the driver who collided with a bull on the road sued the landowner
claiming the landowner was negligent in permitting the bull to roam at large. Rose,
305 S.W.3d at 875. The court ultimately concluded the landowner was not liable
because, among other things, there was no evidence that the landowner had visited
the property or entered the property’s gate at any time relevant to the date of the
accident, that the landowner left the gate open, that the landowner authorized the
bull’s owner to leave the gate open, that any cattle had previously escaped from the
property or that the fence and its gate were not fit for the ordinary uses for which
they were intended. Id. at 881 (“In summary, there is no summary judgment
evidence to raise any inference that the Landowners ‘permitted’ the bull’s escape”
as prohibited under Section 143.074). The same result ensued in Rodriguez, where
a driver who collided with cattle on a roadway sued the landowner for negligence
under Section 143.074. Rodriguez, 427 S.W.3d at 508. The court held the
33 landowner was not liable because there was no evidence that the hot-wire fence used
to enclose the cattle was unsuitable, that the cattle had previously escaped from its
enclosure, that the landowner knew the hot-wire fence was inoperative, that the
landowner failed to inspect the fence once the cattle were left, that the landowner
allowed anyone to leave an opening in the hot-wire fence or that the landowner knew
the cattle had escaped and did nothing. Id. at 511.
We similarly hold the evidence in this case is legally insufficient to support
liability under Section 143.102. Kingsbery and the trial court focused significantly
on the health and abilities of Eugene and Mary Alice in reaching their conclusion
that Arraby breached Section 143.012.18 But whether the elderly couple could
physically care for the cow or the fence on the Property is irrelevant to establish
Arraby’s breach under Section 143.102. The question is not what Mary Alice and
Eugene were capable of doing, but rather what Arraby did or failed to do in
knowingly permitting the cow to roam on the highway.
Arraby presented testimony at trial that Eugene had workers to care for his
properties and that they took care of the fence on the Property if any issues arose.
Even if the trial court found this evidence not credible, there is no evidence the fence
18 When asked how Arraby “knowingly permitted livestock to remain at large on the right-of-way of 225,” Kingsbery testified: “By expecting their parents to inspect, maintain, and repair the fence.” Kingsbery similar testified that “Arraby was responsible for the cow, and Arraby knowingly permitted the cow to wander by leaving it with two infirm and elderly people.”
34 was not maintained or that there was anything wrong with the fence at the time of
the accident.19 Kingsbery never inspected the Property or the fence, and neither did
the investigating officers. Kingsbery was thus unable to testify about the condition
of the fence at the time of the accident or even after:
Q. You don’t know the condition of the fence right now or as it was
back in March of 2017, do you?
A. No.
...
Q. . . . What evidence do you have as we sit here today, that the fence,
or any part of the fence . . . was deficient in any way?
A. I have no evidence of that.
Q. . . . [Y]ou have no personal knowledge or evidence that this fence
had any deficiencies or was not maintained, is that correct?
A. That’s correct. I mean, I – my opinions are based on the fact the
people who were living there were not physically capable of
doing a good job of maintaining the fence.
19 In its findings of fact, the trial court found that Arraby had no records of maintenance on the Property. But as Brown concedes, the absence of records is not evidence that the fence was not maintained or in proper condition when the accident occurred.
35 Q. But – but you have no evidence as we sit here today that the fence
was not maintained properly, do you?
A. No personal knowledge, that’s correct.
Kingsbery was similarly unable to give any opinion as to how the cow got out:
Q. How do you think the cow got out assuming . . . it was on the
property, on the Ybarra property?
A. I don’t know how the cow got out.
There is thus no evidence that the Property’s fences and front gate were in
disrepair or unsuitable, that the fence and its gate were not fit for the ordinary uses
for which they were intended, that the fence had not been properly maintained, or
that any cattle had previously escaped from the Property. And while there was
testimony that Eugene and Mary Alice often left the front gate of the Property open,
there was also testimony that the cow on the Property was pastured on the back of
the Property which is enclosed by a separate fence. And as Kingsbery testified, he
was unaware “of any evidence that the cow got out through a gate.”
Because there is no more than a scintilla of evidence supporting Arraby’s
alleged knowing conduct, we conclude there is legally insufficient evidence
supporting the trial court’s finding that Arraby knowingly permitted the cow to roam
at large on a state highway. See City of Keller, 168 S.W.3d at 810 (stating evidence
36 is legally insufficient when “the evidence offered to prove a vital fact is no more
than a mere scintilla”).
We sustain Arraby’s second issue.
Conclusion
We reverse the trial court’s judgment and render judgment that Brown take
nothing on his claims against Arraby Properties, LLC.
Veronica Rivas-Molloy Justice
Panel consists of Justices Goodman, Rivas-Molloy, and Farris.
Goodman, J., dissenting.