Wednesday, July 29, 2009

SJ Standard & Review on Appeal: Justice Keyes Chides Appellate Panel for Approving Resolution of Disputed Pivotal Fact Issues by Summary Judgment

Kennamer v. The Estate of Alwin Noblitt
(Tex.App.- Houston [14th Dist.] 2009)(Higley) (liability for personal injury damages caused by animals)

In a sharply worded dissent from denial of en banc rehearing of a summary judgment appeal from a personal injury suit occasioned by a cow gone wild, Justice Evelyn Keyes takes three of her colleagues to task for "jumping through hoops" and turning established standards of summary judgment review upside down by allowing a key fact issue - whether the defendant owned the cow that went on the rampage - be resolved by summary judgment.



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.

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.

* * *

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).

I would grant en banc review.

Evelyn V. Keyes


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

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

Kennamer v. The Estate of Alwin Noblitt (Tex.App.- Houston [14th Dist.] 2009)(Higley)
animal law, liability of injuries caused by cow running loose, ownership of cow disputed, summary judgment, no ownership, no duty, no liability)
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 Court of Brazoria County
Trial Court Judge: Hon. Mark Holder
Dissenting Opinion by Justice Keyes (criticizing panel for subverting summary
judgment standard and permitting resolution of issues of disputed fact by summary judgment, crediting
evidence submitted by movant).

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