COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

SAMUEL MUEL A, Appellant,

v.
EL VI A GOMEZ , Appellee

. § § § § § § No. 08-09-00140- CV

Appea l from
384th District Court of El Paso County , Texas (TC # 2000-2101)

O P I N I O N
This appea l arises from a judgme nt for damag es resulting from a vicious attack by a pit bull. Following a bench trial, the trial court found that Samuel Muela and his mother we re j ointly and

sever ally liable to Elvia Gomez for damag es in the amount o f $ 3 0 ,279.45. Only Samuel appea ls, complaining that the evidenc e is leg ally insufficient to prove that he owned or possessed the pit bull
and had actua l or constructive knowledg e of the dog ’s propensity toward violence. We reve rse the judgme nt in part and re nder judg ment that Elvia Gomez take nothing ag ainst Samuel.

F ACTUAL BACK GR OUND
On J une 27, 1998, a pit bull attacke d E l v i a Go m ez while she rode bicy cles with her fivey ear -old daug hter and seven- y ear -old son near their home in S o corro, Texas. As they near ed the
mobile home of Samuel’s pare nts--Celia and Simon--a black dog and a brown pit bull ran out from
beneath it. Gomez told her son to r un for his f

ather , J aime Her

nandez. Gomez lifte d her daug hter
into the air and tried to position her bike to block the dog s. When the pit bull attacke d, Gomez tried
in vain to fig ht him off with her hands. The dog latched onto her leg and she could n o t p ry him
loose. Neig hbors arr ived to help and threw rocks at the animal. The attack lasted approximately tenminutes. When the dog let g o of his g rip on Gomez, he ran straig ht back to the same mobile home.

Gomez was driven to the hospital by her husba

nd.
The fo l l owing day , Her

nandez acc ompanied an animal control office r to Celia’s mobile home. They

found the pit bull and retrie ved him from beneath the trailer. The dog wor e tag s and

a collar, althoug h Gomez had not been able to see a name during the attack. Her nandez testified that
he and the animal control off icer hear d footsteps from inside, but no one ever answere d the door.
The off icer left a c itation and took the dog into custody

. 1
Samuel and Celia testified, as did Samuel’s s i s t er, Simona. All three acknow ledg ed that
Celia and Simon had a black dog living with them but the dog was alway s tied up in the y ar d
whene ver they wer e awa

y
. They had never owned a pit bull and had never seen the dog responsible
for the attack. At the time of the incident, Simona lived in East Texas with her husband. Samuel had
marrie d and moved from the family home some y ear s prior. Only Celia an d S imon lived at the
mobile home, but the couple wer e on aw ay o n a we ek -long trip to Mexi co. Celia lear ned of the
incident from he r son.
Samuel testified that at the time of the attac k he lived with his wife in Clint, Texas. Whil e
his pare nts wer e in Mexi co, he visited their home ever y evening to fee d the black dog but he never

saw the pit bull. He first lear ned of the incident when a neig hbor called his cell phone and told him
an animal c ontrol office r wa s at his pare nts’ trailer c oncer ning a canine attack.
Gomez suffe red injuries to fing ers on both of her hands. Doctors wer e able to re- attach the tip of her rig ht index fi n ger , b u t t h e ti p of her left m iddle fing er had to be amputated. During the attack, the dog also sunk its tee th into Gomez’s lower leg , brea king off a tooth in the proce ss. The

T h e d a y a f

t e r t h e d o g w a s s e i z e d , a n i m a l c o n t r o l a l s o i s s u e d a w a r n i n g n o t i c e t o t h e o c c u p a n t o f 1 1 1 9 7 1 S h e f f i e l d i n d i c a t i n g t h a t a n i m p o u n d e d d o g w a s “ p o s s i b l y y o u r s
. ” T h e M u e l a s l i v e d a t 1 1 1 5 2 S h e f f i e l d

. T h e a n i m a l
w a s e v e n t u a l l y e u t h a n i z e d

.injury to her leg was descr ibed in the medical repor ts as, “a larg e complex lace ration with loss of skin and tendons.” A skin g raf t was used to re pair the le g wound.
Gomez rema ined in th e h o s p it al for four day s and then continued her rec overy with outpatient
reha b i l i t ati on trea tments. Medica l bills totaled $18,234.25. Be cause of the injuries, she suffe red
from cons t an t p ai n an d loss of sleep for approximately six months. Her nandez testified as to the
eff ect of her injuries on he r life a s a mother, wif e, and te ache r. Orig inally Gomez broug ht suit ag ainst Simon, Celia, Simona, and S amuel. Sim o n passed

awa y prior to trial. No judgme nt was rende red ag ainst Simona. As we have mentioned, this appea l
is broug ht only by Samuel, who challeng es the leg al sufficie ncy of the evidenc e to prove neg lige nce.
STANDARD OF REVIEW
This appea l proce eds without benef it of formal finding s of fac t and conclusions of law.

T E X .R.C I V .P. 296. I n their absenc e, the judgme nt of the trial court m u s t b e af firmed if it can be upheld on any available leg al t heory that finds support in the evidenc e. Point Lookout W est, Inc.

v. W horton, 742 S.W .2d 277, 278 (Tex. 1987), In the Interest of W .E.R., 669 S.W .2d 716, 717 (Tex. 1984); Temperature Systems, Inc. v. Bill Pe pper, Inc., 854 S.W .2d 669, 372-73 (Tex.App.--Da llas 1993, writ dism’d). Absent finding s of fac t, it doesn’t make a ny differ ence whether

the trial cour

t
selec ted the rig ht approa ch or theory

. I f the appellate court deter mines the evidenc e supports a theory raised by the pleading s or tried by consent, then it is presumed tha t the trial court made the

nece ssary finding s and conclusions to support a rec overy on that theory

. Lemons v. EMW Mfg. Co.,
747 S.W .2d 37 2 (Tex. 1988). These presumptions are tantamount to implied finding s and can be challeng ed by leg al and fac tual insufficienc y points, provided a repor ter’s rec ord is broug ht forwa rd.
A leg al sufficie ncy or “no evidenc e” challeng e is a questio n o f law. Serrano v. Union
Planters Bank, N.A. , 162 S.W .3d 576, 579 (Tex.App.--El Paso 2004, pet. denied)

. When the partywithout the burden of proof suffe rs an u n favorable finding , the challeng e on appea l is one of “no

evidenc e to support the finding .” Truji llo v. Carrasco , 318 S.W .3d 455, 459 (Tex.App.--El Paso 2010, no pet.), citing Serrano, 162 S.W .3d at 579. A leg al sufficie ncy challeng e will be sustained

on ap peal if the rec ord shows: (1) the complete absenc e of a vital fac t; (2) the court is barr ed by
rules of law or evidenc e from g iving weig ht to the only evidenc e offe red to prove a vital fac t; (3) the

ev i d en ce o ff

er ed to prove a vital fac t is no more than a scintilla; or (4) the evidenc e establishes conclusively the opposite of the vital fac t. City of Keller v. W i lson , 168 S.W .3d 802, 810 (Tex. 2005); El Paso Indepe ndent School District v. Pabon , 214 S.W .3d 37, 41 (Tex.App.--El Paso 2006,

no pet.); Truji l l o , 318 S.W .3d at 459. We cre dit evidenc e favorable to the findi ng if a reasonable
fac t finder could do so, disreg ard contra ry evidenc e unless a rea sonable fac t finder could not do so,
and reve rse the fac t finder’s d et er m i n ation only if the evidenc e prese nted would not enable a

rea sonable and fair- minded person to rea ch the judgme nt under revie w. City of Keller , 168 S.W .3d

at 827; Pabon , 214 S.W .3d at 41. W h en a no-evide nce point rests on the competenc y of the
evidenc e, we may not disreg ard contra ry evidenc e showing it to be incompetent. City of Keller , 168
S.W .3d at 812; Pabon , 214 S.W .3d at 41. Although we indulge ever y rea sonable infere nce that would support the verdic t , i f the
evidenc e allows only one infere nce, neither the trier of fac t nor the revie wing court may disreg ard
it. See City of

Keller , 168 S.W .3d at 821-22; Pabon , 214 S.W .3d at 41. We are mindful that the trier
of fac t is the sole judge of the cre dibilit y of the witnesses and the weig ht to be g iven their testimony

. City of Keller , 168 S.W .3d at 819. When there is conflicting evidenc e, it is the province of the trier
of fac t to resolve such conflicts. Id

. at 820. I f more than a scintilla of evidenc e exis ts to support the finding , the evidenc e is leg ally sufficie nt. Ratsavong v. Mene vilay , 176 S.W .3d 661, 6 67-68 (Tex.App.--El Paso 2005, pet. denied)

. More than a scintilla of evidenc e exis ts wher e the evidenc eprese nted, as a whole, rises to the level that would enable rea sonable and fair- minded people to differ

in their conclusions. See Ford Motor Co. v. Ridgway , 135 S.W .3d 598, 601 (Tex. 2004); Ratsavong , 176 S.W .3d at 668, citing Burroughs W ellcome Co. v. Crye , 907 S.W .2d 497, 499 (Tex. 1995). We

are also g uided by the equal infere nce rule: when circ umstantial evidenc e prese nts two equally plausible, but opposite infere nces, neither can be inferr ed. See W al-Mart Stores, Inc. v. Gonzalez , 968 S.W .2d 934, 936 (Tex. 1998); Litt on Industrial Products, Inc. v. Gammage , 668 S.W .2d 319,
324 (Tex. 1984). When circ umstantial eviden ce i s so slight that the choice betwee n opposing plausible infere nces amounts to nothi n g m o re t h an specula tion, it is leg ally no evidenc e at all.

Lozano v. Lozano , 52 S.W .3d 141, 148 (Tex. 2001).
NEGLIG ENCE
The Texas Supreme Court has deter mined that neg lige nce can be a corr ect theory of rec overy
in a persona l injury action involving an animal. Marshall v. Ranne , 511 S.W .2d 255, 258-59 (Tex. 2 1974); see also Allen ex rel. B.A. v. Albin , 97 S.W .3d 655, 665 (Tex.App.--Waco 2002, no pet.). To

rec over on a neg lige nt handling claim, a plaintiff must prove: (1) the defe ndant owned or possessed

an animal; (2) the defe ndant owed a dut y t o ex er ci s e rea sonable car e to preve nt the animal from injuring others; (3) the defe ndant brea ched that duty ; and (4) the defe ndant’s brea ch p ro x i m ately

cause d plaintiff’s in

j ury
. Allen , 97 S.W .3d at 660. Unlike strict liability claims, to preva il in a
neg lige nce action the plaintiff does not have to prove that the animal was vicious or dang erous. Id .; Dunnings v. Castro , 881 S.W .2d 559, 562-63 (Tex.App.--Houston [1st Dist.] 1994, writ dism’d).
The Restate ment (Second) of Torts states:

A p e r s o n i n

j u r e d b y a d o g b i t e m a y s u e t h e o w n e r i n s t r i c t l i a b i l i t y o r n e g l i g e n c e
. A n o w n e r o f a v i c i o u s 2

a n i m a l m a y b e s t r i c t l y l i a b l e f o r d a m a g e s w h i l e a n o w n e r o f a n o n - v i c i o u s d o g m a y b e l i a b l e f o r n e g l i g e n t h a n d l i n g
. B u s h n e l l v

. M o t t , 2 5 4 S

. W

. 3 d 4 5 1 , 4 5 2 ( T e x
. 2 0 0 8 )

. G o m e z p l e d b o t h t h e o r i e s o f r e c o v e r y
. A l t h o u g h t h e t r i a l c o u r t d i d n o t e n t e r f

o r m a l f i n d i n g s o f f

a c t , t h e j u d g m e n t r e c i t e s t h a t “ t h e d o g b i t e
. . . w a s p r o x i m a t e l y c a u s e d b y t h e n e g l i g e n c e o f

. . . C E L I A M U E L A a n d S A M U E L M U E L A

. ”[O] ne who possesses or harbor s a domestic animal t h at h e d oes not know or have

rea son to know to be abnorma lly dang erous, is subjec t to liability for harm done by the animal if, but only if, (a) he intentionally cause s the animal to do the harm, or (b) he is neg lige nt in failing to pre vent the har m.
Restatement (Second) of Torts § 518 (1977); see also Allen , 97 S.W .3d at 665. Thus, a dog owner 3

may be liable for injuries cause d by the dog even if the animal is not vicious, so long as the plaintiff

can prove the owner ’s neg lige nt handling or keeping of the animal cause d the injury

. Dunnings , 881
S.W .2d at 562-63. L iability may also arise for injuries the dog inflicts while off the owner ’s proper ty
if it is shown that the owner had actua l or constructive knowledg e that would “put a person of ordinary prudenc e on notice that permitting his dog to r un at larg e might cause injury to a nother.”
Dakan v. Humphrey

s , 190 S.W .2d 371, 373 (Tex.Civ.App--Eastland 1945, no writ), disapproved on other grounds by Marshall v. Ranne , 511 S.W .2d 255, 257-58 (Te x . 1974).

DUTY
The threshold inquiry in a neg lige nce case is duty

. El Chico Corp. v. Poole , 732 S.W .2d 306,
311 (Tex. 1987). The plainti ff must establish both the ex istence and the vi olation of a duty owed

to the plaintiff by the defe ndant to establish liability in tort. Id

. Duty is a question of law for the
court to dec ide. Thapar v. Zezulka , 994 S.W .2d 635, 637 (Tex. 1999).

I n Marshall , the Texas Supreme Court rec og nized a duty owed by the owner or possessor of

I n M a r s h a l l , t h e T e x a s S u p r e m e C o u r t a d o p t e d S e c t i o n 5 1 8 o f t h e F i r s t S t a t e m e n t w h i c h p r o v i d e s : 3
[ O ] n e w h o p o s s e s s e s o r h a r b o r s a d o m e s t i c a n i m a l , w h i c h h e d o e s n o t h a v e r e a s o n t o k n o w t o b e a b n o r m a l l y d a n g e r o u s b u t w h i c h i s l i k e l y t o d o h a r m u n l e s s c o n t r o l l e d , i s s u b j e c t t o l i a b i l i t y f o r h a r m d o n e b y s u c h a n i m a l i f , b u t o n l y i f

, ( a ) h e f a i l s t o e x e r c i s e r e a s o n a b l e c a r e t o c o n f i n e o r o t h e r w i s e c o n t r o l i t , a n d ( b ) t h e h a r m i s o f a s o r t w h i c h i t i s n o r m a l f o r a n i m a l s o f i t s c l a s s t o d o
.
R e s t a t e m e n t o f

T o r t s § 5 1 8 ( 1 9 3 8 ) ; s e e a l s o M a r s h a l l , 5 1 1 S

. W

. 2 d a t 2 5 9

. I n 1 9 7 7 , t h r e e y e a r s a f t e r t h e C o u r t d e c i d e d M a r s h a l l , t h e A m e r i c a n L a w I n s t i t u t e p u b l i s h e d t h e R e s t a t e m e n t ( S e c o n d ) o f T o r t s
. B e c a u s e t h e M a r s h a l l C o u r t c i t e d S e c t i o n 5 1 8 w i t h a p p r o v a l , c o u r t s ( s u c h a s t h e W a c o C o u r t o f A p p e a l i n A l l e n ) l o o k t o S e c t i o n 5 1 8 o f t h e S e c o n d R e s t a t e m e n t f

o r a n e x p l a n a t i o n o f t h e d u t y o w e d t o o t h e r s b y a n o w n e r o f a d o m e s t i c a n i m a l

. S e e A l l e n , 9 7 S

. W

. 3 d a t 6 6 5

.a non-vi ci o u s animal to exercise rea sonable car e to preve nt the animal from injuring others.

Marshall , 511 S.W .2d at 258, citing Restatement (Second) of Torts § 518 (1938); see also Allen , 97
S.W .3d at 660. Whether a duty exis ts depends on some deg ree of proof that the risk of injury from

a dog bite is fore seea

ble, or s t at ed differ ently , whether the owner had actua l or constructive knowledg e of the dang er prese nted by the dog

. See Dunnings , 881 S.W .2d at 563-64. For esee ability
is satisfied by showing a person of ordinary intelligenc e should have anticipated the dang er to others by the ac tor’s neg lige nt behavior. Searcy v. Brown , 607 S.W .2d 937, 942 (Tex.Civ.App. 1980).

THE E VIDENCE

I n I ssue One, Samuel complains that the evidenc e is leg ally insufficient to pr ove he owned

or had possession of the pit bull at the time of the attac k

. T h e re p o rt er ’s rec ord is reple te with
differ ing testimony on almost ever y detail. The few undisputed fac ts establish that at the time of the
attack: (1) Celia and Simon lived in a trailer home on Sheffield Street; (2) they owned a black dog ; (3) they wer e out of town; and ( 4) Samuel stopped by daily to fee d the black dog

. Gomez testified that two dog s, a black one and t h e p i t b u ll who attacke d her, ran direc tly
from the Muelas’ trailer and that afte r the neig hbors pried the dog loose, he ran straig ht back to the

same trailer. Gomez claimed that she passed by the Muelas’ trailer daily and fre quently saw the pit
bull there

. Acc ording to her, the dog had a reputa tion for being “pre tty ag g ressive” and had attacke d

one time previously , althoug h t h e n ei gh b o r was not bitten. Her nandez had also seen the pit bull
befor e and believed it lived at the Muelas’ trailer. The pit bull was not tied up or restra ined, but the
Muelas did tie up their pet black dog

. And while Her nandez explained that the animal control office r
found the pit bull benea

th the trailer, Celia insisted that there was no cra wl space whatsoeve r. The
animal control office r d i d not testify , nor wer e photogr aphs of the mobile home admitted into
evidenc e. Although the dog wore a collar and tag s indicating that it belon ged t o someone-- asopposed to being homeless--no evidenc e of licensing , micro-c hipping, or reg istration was offe red. 4

The trial judge is the sole judge of the cre dibilit y and weig ht to g ive testimony and as suc h
is fre e to acc ept or reje ct any or all of the testimony offe red. See City of Keller , 168 S.W .3d at 819-
20. There was plenty of i nnuendo that Simon was involved in coc k fig hting a nd dog fig hting. At the beg inning of

the t rial, pl aintiff’s counsel told the court, “Now these defendants who claim not

to ow n any pit bulls, they not only owned the pit bull, they

foug ht the pit bull and they also foug ht fig hting cocks. And ever y body knows that.” Her

nandez testified that friends told him that Simon
had a pit bull for dog fig hting. He also claimed to have seen roosters in the Muelas’ y ard. Simona
said her fathe r did not raise cock- fig hting roosters but had hens and baby chicks which wer e kept in

a wire chicke n coop. Celia denied that they ever had chicke ns or a chicke n coop. She also denied
that Simon was ever in the cock fig hting business. No one even sug g ested that Samuel eng ag ed in dog fig hting or cock fig hting. Ba sed on the testimony offe red, the trial judge could have rea sonably
believed the pit bull lived at the Muelas’ trailer and there fore was owned by Celia. The same cannot
be said of Samue l.
Did He Live Th ere ?
There is no evidenc e, direc t or circ umstantial, tha t Samue l owned the proper ty

. There was conflicting evidenc e as to whether he resided at the trailer at the time o f the attack. Her nandez
testified that he went to high school with Samuel, that Samuel was never marrie d, and that he never
moved out of the family home. I n direc t contra diction, Samuel testified that he moved out of the
home on Sheffield and that on the day of the attack, he lived with his wife in Clint , Texas. Simona
and C elia also testified that Samuel lived in Cl int. Herna ndez claimed that Samuel’s F ord pi ckup

was at the trailer at the time of the attack, but Samuel did not drive a pickup althoug h his fathe r did.

P l a i n t i f f ’ s c o u n s e l r e f

e r r e d t o i t a s “ a w e l l

- g r o o m e d

- s o m e b o d y - l o v e s - h i m p i t b u l l

. ” 4Gomez posits in her briefing that if Samuel and Simona did not live in the trailer with their

pare nts, there wa s no rea son to be adding on to it as Hernande z described. Ye t as a ne ighbor who passed the Muelas’ home reg ularly , she was never

theless unable to rec og nize S i m o na in the

courtroom. When defe nse couns el at t em p ted to call Samuel’s wife to the stand, the trial judge
ref used t o allow her to testify noting that, “I can be confide nt as to what she will say ; it’d be surprising for her to contra dict her husband, so I ’ll just leave it at that.” By expecting Samuel’s wife

to corr obora t e h i s testimony , the court appar ently acc epted as true that the couple lived in Clint

. Her nandez’s testimony

offe rs nothing but the possibility of an equa l infere nce. We thus conc lude
there is no evidence that Samuel lived at the tra iler or owne d the pit bull.
Did He P ossess the P it Bull ?
Admitt ed l y , S am uel vi sited his pare nts’ home ni g htly to fee d their pet dog

. There was no
direc t evidenc e that he had ever seen the pit bull or knew of its exis tence

. Gomez points to the fac t
that neig hbors called Samuel on his cell p hone to tell him of the attack. I n her briefing , she
ch ar ac t eriz es t he testi mony as neighbors calling to advise S amuel “that the dog catcher had tak en
his pit bull to the pound” afte r the attack. The actua l testimony was that the neig hbors had Samuel’s
cell phone number and called to tell him that the dog catc her was at his pare nts’ home beca use they
knew Celia and Simon wer e not there

. These neig h b ors thought that the Muelas’ dog had bitten Gomez, but when Samuel went over to the t railer to chec k, the bl ack dogwas there. When asked why the neig hbors would ca ll him, S amuel explained that they knew he was watching his pa rents’
home. The call makes even more sense considering Gomez testified that the black dog acc ompanied the pit bull as it raced towa rd her , althoug h it did not participate in the mauling

. There is no evidence S am u el o wn ed the lot from which the dog esca ped. There is no
evidenc e that he stay ed at the house overnig ht or for long periods of time. There is no evidenc e thatSamuel interac ted with the pit bull or fed the pit bull. There is thus no evidenc e from which to infer

that he controlled the pit bull. We sustain I ssue One. Be cause of our dispositi on, it is unnece ssary

to consider the rema ining point of err or. Acc ording ly , we reve rse and rende r judgme nt that Gomez take nothing ag ainst Samuel.

Fe bruar y 23, 2011 ANN CRAWFORD McCL URE, J ustice

Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.