DISSENT BY JUSTICE KEYES ON EN BANC MOTION

in Kennamer v. The Estate of Alwin Noblitt (Tex.App.- Houston [14th Dist.] Jul. 24, 2009)(Higley)
(summary judgment,
liability for injuries caused by cow on the loose, ownership of cow pivotal issue for liability
purposes) (
animal liability law)
AFFIRM TC JUDGMENT: Opinion by
Justice Higley  
Before Chief Justice Radack, Justices Nuchia and Higley
01-08-00134-CV John L. Kennamer, Individually and John L. Kennamer and Mora Kennamer d/b/a K-Bar land
and Cattle Company v. The Estate of John Alwin Noblitt, Deceased, Charles R. Noblitt, Jr., Individually and as
Administrator of the Estate of John Alwin Noblitt, Deceased, and Jo Ann Jones, Individually and as Heir of The
Estate of John Alwin Noblitt, Deceased
Appeal from County Court at Law No 2 & Probate Ct of Brazoria County
Trial Court Judge: Hon. Mark Holder
CASE WITH DISSENT: Dissenting Opinion by Justice Keyes  (Tex.App.- Houston [14th Dist.] Jul. 24, 2009)
(criticizing panel for subverting summary judgment standard and permitting resolution of issues of disputed fact
by summary judgment, crediting evidence submitted by movant).  

OPINION DISSENTING FROM DENIAL OF EN BANC REVIEW

I respectfully dissent from denial of en banc review. The sole issue on which appellees moved for summary
judgment in this case was ownership of the cow that attacked and injured appellant John Kennamer, upon which
appellees’ duty to Kennamer was predicated in this suit for damages for negligence. Footnote This was a hotly
disputed fact issue, as the summary judgment proofs of both sides demonstrate. The standard of proof of
traditional summary judgment is well-established. Specifically, summary judgment shall be granted if the summary
judgment proofs and the pleadings establish show, “except as to the amount of damages, there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues
expressly set out in the motion or in an answer or any other response.” Tex. R. Civ. P. 166a(c) (emphasis
added). The standard of review for a traditional summary judgment motion is threefold: (1) the movant must show
that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; (2) in
deciding whether there is a disputed material fact issue precluding summary judgment, the court must take
evidence favorable to the nonmovant as true; and (3) the court must indulge every reasonable inference in favor
of the nonmovant and resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d
546, 548–49 (Tex. 1985); see Tex. R. Civ. P. 166a(c).

Here, the panel jumps through hoops to uphold the summary judgment, spending six pages of the slip opinion
weighing the deposition testimony attached as summary judgment proof and determining for itself on the basis of
its assessment of the credibility of the witnesses and the weight it assigns their deposition testimony that
appellees did not own the cow. It concludes that appellees are entitled to summary judgment because they did
not own the cow by disregarding all of the summary judgment evidence of ownership of the cow favorable to
Kennamer, the non-movant, including his recognition of the cow as one owned by Noblitt, its age, its color, its
skinniness, the length of its horns, the notches on the cow’s ears, the brands and absence of brands on Noblitt’s,
Kennamer’s, and Fitzgerald’s cows, and by seizing upon Kennamer’s testimony that the cow was branded and the
movants’, appellees’, conflicting testimony that Noblitt’s cows were not branded. It then credits as true Noblitt’s
testimony that his cows were not branded (although one deposition witness suggested that Noblitt might have
owned some branded cattle), and, having credited the movant’s self-serving testimony on one of many disputed
fact issues as dispositive of ownership of the cow, the panel concludes that no reasonable jury, presented with all
the evidence from witnesses subject to cross-examination in a courtroom where their demeanor might be
observed and all the disputed indicia of ownership of the cow might be weighed, could have found that Noblitt
owned the cow. Therefore, the panel holds that appellees were entitled to judgment as a matter of law declaring
them not liable for Kennamer’s injuries.

The panel purports to follow City of Keller v. Wilson in reaching its judgment. See slip op. at 12 (citing City of
Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)). Yet its review of the summary judgment evidence, by
weighing deposition testimony and making a determination as to its weight and credibility, directly contradicts the
instruction in Keller that, in cases requiring the review of the legal sufficiency of the evidence, “[j]urors are the
sole judges of the credibility of the witnesses and the weight to be given their testimony. They may choose to
believe one witness and disbelieve another. Reviewing courts cannot impose their own opinions to the contrary.”
168 S.W.3d at 819 (emphasis added). The Keller court concluded:

Whether a court begins by reviewing all the evidence or disregarding part in a legal-sufficiency review, there can
be no disagreement about where that review should end. If the evidence at trial could enable reasonable and fair-
minded people to differ in their conclusions, then jurors must be allowed to do so. A reviewing court cannot
substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable
disagreement.

Id. at 822 (emphasis added).

Even more fundamentally, the panel opinion contravenes the long-standing mandate of Nixon v. Mr. Property
Management. Co., Rhone-Poulenc, Inc. v. Steel, and Keller itself that, in deciding whether there is a disputed
material fact issue in the summary judgment context, evidence favorable to the non-movant must be taken as true
and every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his
favor. Keller, 168 S.W.3d at 824; Rhone-Poulenc, 997 S.W.2d 221, 223 (Tex. 1999); Nixon, 680 S.W.2d at 548.
Keller carries forward this mandate, stating, that “in the scope of review for summary judgment . . . , there is only
one standard—a reviewing court must examine the entire record in the light most favorable to the nonmovant,
indulging every reasonable inference and resolving any doubts against the motion.” 168 S.W.3d at 824–25.

The problem with the standard of review employed by the panel arises, I believe, from the Keller court’s next
statement: “Reviewing courts do not disregard the evidence supporting the motion; if they did, all summary
judgments would be reversed.” Id. The court went on to explain, however, that reviewing all of the evidence in a
summary judgment case does not mean crediting the evidence that supports the movant and indulging
inferences and resolving all reasonable doubts in the movant’s favor. See id. at 825. Rather, “the standard for
granting summary judgment ‘mirrors’ the standard for judgment as a matter of law,” i.e., the standard for legal
sufficiency of the evidence. Id. at 825. The court concluded, “Whether a reviewing court begins by considering all
the evidence or only the evidence supporting the verdict, legal-sufficiency review in the proper light must credit
favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could
not.” Id. at 827. The court explained, “Jurors . . . are not free to believe testimony that is conclusively negated by
undisputed facts. But whenever reasonable jurors could decide what testimony to discard, a reviewing court must
assume they did so in favor of their verdict, and disregard it in the course of legal sufficiency review.” Id. at 820.

The critical difference between the legal sufficiency standard of review in a trial context, as described in Keller,
and summary judgment review, in light of Keller, is, of course, that, in the summary judgment context, the
reviewing court must review all evidence in a light favorable to the non-movant, rather than the (non-existent)
verdict, discard all testimony favorable to the movant, and, unless the movant’s evidence is conclusively negated
by undisputed facts, disregard all evidence contrary to the non-movant in the course of its review. The panel in
this case, misreading Keller, did just the opposite. It reviewed the evidence in a light favorable to the summary
judgment; it discarded all testimony relevant to ownership of the cow favorable to Kennamer, the non-movant;
and, weighing disputed evidence, it disregarded all evidence contrary to the movants’ testimony that they did not
own the cow.

To be entitled to summary judgment, appellees had the burden of proving that there was no genuine material
issue as to who owned the cow that attacked Kennamer as a matter of law. They could have proved this only if
Kennamer had not produced evidence that appellees owned red cows like the one that attacked him, that he had
seen the cow that attacked him on appellants’ ranch, that appellees’ cows had gotten out of their enclosure and
invaded Kennamer’s ranch as recently as five months before the incident at bar, and that appellees’ cattle often
exhibited wild and aggressive behavior, including attacking a man on horseback and seriously injuring him,
chasing a testifying witness for 400–500 yards, and attacking a rider on a 4-wheeler, and if Kennamer, the eye-
witness to the attack, had not produced summary judgment evidence as to the age, size, condition, length of
horns, branding, and ear notches of the attacking red cow and of appellees’ cows. This evidence disputed the
movants’ evidence as to the identifying characteristics of the cow that attacked him, from which the ownership of
the cow might be reasonably inferred.

If the panel had followed the mandate of Nixon, Rhone-Poulenc, and Keller, it would have had to have taken as
true all of Kennamer’s summary judgment evidence that appellees owned the cow, and it could not have credited
for summary judgment purposes any of appellees’ conflicting evidence. Instead, the panel discarded all of the
non-movant’s summary judgment evidence about the description and ownership of the cow except Kennamer’s
statement that the cow was branded, and it then credited as dispositive Noblitt’s self-serving fact testimony that
he did not brand his cows. In doing so, the panel fully usurped the role of the jury who could have heard that
disputed testimony in the context of a trial.

If appellants’ summary judgment evidence is taken as true and appellants’ conflicting evidence is disregarded, as
required by Texas law, the summary judgment in favor of appellees cannot be sustained. This Court should have
reversed the summary judgment and sent the case back for trial on the disputed material fact issue of who owned
the cow. It should not have weighed conflicting evidence, determined the credibility of witnesses from the
summary judgment proofs, and determined for itself that the red cow was branded with an upside-down “U,” that
appellants’ cows were not branded with an upside-down “U,” and, therefore, no reasonable juror could have
decided the case in favor of appellants.

The panel, however, reads Keller as requiring it to weigh the evidence for itself and to determine whether
reasonable people could differ with its own judgment. I believe that this is a plainly erroneous interpretation of
controlling law and that it misapplies the summary judgment rule in a way that subverts both the language and
purpose of the rule, results in a miscarriage of justice in this case, and distorts summary judgment practice within
the jurisdiction of this Court. I believe it wrongfully encourages parties to file summary judgment motions on fact
issues as to which there is conflicting evidence in the hope that this Court, following its own precedent, will
determine that no reasonable person could disagree with its own determination of disputed facts, transforming
summary judgment practice from a means of disposing of cases that present only legal issues to a means of
trying material fact issues by selected proofs submitted to the court, as in the continental European system. For
those reasons, I believe this case satisfies the criteria for en banc review. See Tex. R. App. P. 41.2(c). Footnote

I would grant en banc review.

Evelyn V. Keyes

Justice

Panel consists of Chief Justice Radack and Justices Higley and Nuchia. Footnote

Justice Keyes, dissenting to the denial of en banc review.

FN1

The panel opinion gratuitously states that there is no common law duty in Texas to fence livestock and that,
although the Texas Agriculture Code imposes statutory duties that prohibit a stock owner from allowing livestock
to run at large, that statute applies only if locally adopted. See Tex. Agric. Code Ann. § 143.071 (Vernon2004).
The panel appears to be making the argument sua sponte that section 143.071does not impose a duty to keep
animals on one’s own property in Brazoria County and that there is no common law duty to protect against a
dangerous animal that escapes from one’s property and injures someone. There is absolutely no argument made
either by appellees in their motion for summary judgment or by appellants in response that appellees did not owe
a common law or statutory duty to appellants for which they could be liable in negligence if appellants owned the
cow that attacked Kennameron Kennamer’s property. All that is at issue in this motion for summary judgment is a
material fact issue: who owned the cow? This is a material fact issue because if appellees did not own the cow, no
liability could attach to them. See Pierce v. Washington Mutual Bank, 226 S.W.3d 711, 714 (Tex. App.—Tyler
2007, pet. denied)(“A fact is ‘material’ if it affects the ultimate outcome of the suit under the governing law.”). It is
not an argument about the existence of legal duty. It is improper for a court to grant summary judgment on an
issue (lack of legal duty) that is not pled or argued in the summary judgment pleadings. See Tex. R. Civ. P. 166a
(c); McConnellv. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993); Coastal CementSand Inc. v. First
Interstate Credit Alliance, Inc., 956 S.W.2d 562, 565 (Tex.App.—Houston [14th Dist.] 1997, pet. denied); see also
Khan v. Yazdchi, No. 01-02-00918-CV, 2003 WL 21513628, at *4 (Tex. App.—Houston [1st Dist.] 2003, no pet.)
(mem. op.). The only issue properly before this court is the fact-intensive issue of ownership of the cow.

FN2

Rule 41.2(c) provides:

En banc consideration of a case is not favored and should not be ordered unless necessary to secure or
maintain uniformity of the court’s decisions or unless extraordinary circumstances require en banc consideration.

Tex. R. App. P. 41.2(c).

FN3

Justice Sam Nuchia, who retired from the First Court of Appeals on January 1, 2009, continues to sit by
assignment for the disposition of this case, which was submitted on November 25, 2008.