Aaron Matthew Estrada, Individually and as Next Friend of M.K.L.E., a Minor v. Luke Mix and Maria Mix

Opinion filed January 9, 2025

In The

Eleventh Court of Appeals
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No. 11-23-00182-CV
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AARON MATTHEW ESTRADA, INDIVIDUALLY AND AS
NEXT FRIEND OF M.K.L.E., A MINOR, Appellant
V.
LUKE MIX AND MARIA MIX, Appellees

On Appeal from the 220th District Court
Comanche County, Texas
Trial Court Cause No. CV14221

MEMORANDUM OPINION
As a result of a dog attacking a neighborhood child, out-of-possession rental
property landlords were sued for damages. Appellant, Aaron Matthew Estrada,
individually and as next friend of M.K.L.E., a minor, appeals the trial court’s order
granting Appellees, Luke Mix’s and Maria Mix’s no-evidence motion for summary
judgment. In a single issue, Appellant argues that he produced sufficient evidence
to create a question of fact as to whether Appellees knew that their two dogs,
including the one determined to have attacked M.K.L.E., possessed vicious
propensities. We affirm.
Factual and Procedural History
In his original petition, Appellant alleged that on September 14, 2019, one of
Travas and NeCole Stogsdill’s dogs mauled M.K.L.E. Appellant asserted that the
Stogsdills rented their home from Appellees, and that Appellees were liable for
negligence from the attack by breaching their duty to maintain the safety of the home
and to “ensure the safety of common areas for surrounding residents of the
neighborhood” by failing to restrict, acknowledge, or inquire about vicious dogs on
the property. Appellant further alleged that the Stogsdills’ and Appellees’ actions
constituted negligence per se, that they were strictly liable, and that res ipsa loquitur
established liability.
Appellees filed a no-evidence motion for summary judgment. Appellees
challenged Appellant’s suit on the grounds that no evidence existed that they
possessed actual knowledge of the dogs’ vicious propensities, which is necessary to
hold an out-of-possession landlord liable for the acts of a tenant’s dogs. Appellees
further contended that imputed or constructive knowledge was insufficient to
establish liability.
Appellant responded by arguing that the Stogsdills’ neighbors had interactions
with the dogs wherein they demonstrated vicious propensities. Appellant attached
NeCole’s deposition wherein she averred that Appellees were aware that their
tenants had dogs and had visited the home. NeCole stated that when Appellees were
visiting the home, the dogs were outside barking. Appellant also included affidavits
from three neighbors who had past encounters with the dogs, and described the dogs
as aggressive.

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The trial court granted Appellees’ no-evidence motion for summary judgment
and severed the remaining claims and parties, establishing a final, appealable order.
This appeal followed.
Standard of Review
We review the trial court’s grant of summary judgment de novo. Lujan v.
Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). Under the Texas Rules of Civil
Procedure, a no-evidence motion for summary judgment is required to “state the
elements as to which there is no evidence.” TEX. R. CIV. P. 166a(i). Importantly,
the nonmovant has the entire burden to produce evidence raising a genuine issue of
material fact once the movant files a no-evidence motion. Id.; see Town of Dish v.
Atmos Energy Corp., 519 S.W.3d 605, 608 (Tex. 2017) (summary judgment was
proper when the nonmovant did not respond to no-evidence motion).
In reviewing a no-evidence summary judgment, we apply the same legal
sufficiency standard that we apply in reviewing a directed verdict. Amwins Specialty
Auto, Inc. v. Cabral, 582 S.W.3d 602, 607 (Tex. App.—Eastland 2019, no pet.)
(citing Merriam v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)); see also
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). Therefore, we
consider the evidence “in the light most favorable to the non-movant, disregarding
all contrary evidence and inferences.” King Ranch, 118 S.W.3d at 751 (citing
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “A no
evidence point will be sustained when (a) there is a complete absence of evidence of
a vital fact, (b) the court is barred by the rules of law or evidence from giving weight
to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a
vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes
the opposite of the vital fact.” Id. (quoting Merrell Dow Pharm., 953 S.W.2d at
711).
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The burden is on the nonmovant to raise a genuine issue of material fact about
the elements challenged in the no-evidence motion for summary judgment. TEX. R.
CIV. P. 166a(i); First United Pentecostal Church v. Parker, 514 S.W.3d 214, 220
(Tex. 2017). A fact is “material” only if it affects the outcome of the suit under the
governing law; a material fact issue is “genuine” only if the evidence is such that a
reasonable jury could find the fact in favor of the nonmovant. Rayon v. Energy
Specialties, Inc., 121 S.W.3d 7, 11–12 (Tex. App.—Fort Worth 2002, no pet.). The
nonmovant must produce more than a scintilla of evidence to raise a genuine issue
of material fact on the challenged elements. First United Pentecostal Church, 514
S.W.3d at 220. A nonmovant produces more than a scintilla of evidence when the
evidence rises to a level that would enable reasonable and fair-minded people to
differ in their conclusions. Ford Motor Co. v. Ridgeway, 135 S.W.3d 598, 601 (Tex.
2004). A nonmovant produces no more than a scintilla of evidence when the
evidence is “so weak as to do no more than create a mere surmise or suspicion of a
fact.” Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003)
(quoting King Ranch, 118 S.W.3d at 751).
Applicable Law
To impose liability on an out-of-possession landlord for his or her tenant’s
vicious dog, the plaintiff must prove that the landlord possessed (1) actual
knowledge of the animal’s presence, (2) actual knowledge of the animal’s vicious
propensities, and (3) the ability to control the premises. 1 Batra v. Clark, 110 S.W.3d

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In his brief, Appellant mentions that he also “asserted a cause of action for . . . negligence per se,
strict liability and res ipsa loquitor,” [sic] but he does not address the trial court’s summary judgment on
those claims in favor of Appellees. Instead, he merely states that “[e]ach of these causes of action required
evidence supporting the existence of a legal duty,” without more. As a result of Appellant’s inadequate
briefing on the remainder of his claims, we will not address such claims and will restrict our analysis to the
only issue Appellant raised on appeal: whether Appellees had actual knowledge of the dogs’ dangerous
propensities. See TEX. R. APP. P. 38.1(i); Cowan v. Worrell, 638 S.W.3d 244, 262 n.2 (Tex. App.—Eastland
2022, no pet.) (“Rule 38.1 requires both citation to authority and substantive analysis in regard to an issue,

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126, 130 (Tex. App.—Houston [1st Dist.] 2003, no pet.). “[I]f a landlord has actual
knowledge of an animal’s dangerous propensities and presence on the leased
property, and has the ability to control the premises, he owes a duty of ordinary care
to third parties who are injured by this animal.” Id. As to the second element, the
one in dispute on appeal, the plaintiff must demonstrate that the landlord had actual
knowledge of the animal’s vicious propensities—imputed or constructive
knowledge is not sufficient. Id. “Actual knowledge . . . is what a person actually
knows, as distinguished from constructive knowledge, or what a person should have
known.” Bolton v. Fisher, 528 S.W.3d 770, 775–76 (Tex. App.—Texarkana 2017,
pet. denied) (quoting Ortega v. Phan-Tran Prop. Mgmt., L.L.C., No. 01-15-00676-
CV, 2016 WL 3221423, at *3 (Tex. App.—Houston [1st Dist.] June 9, 2016, pet.
denied) (mem. op.)).
Analysis
Appellant argues that the evidence he presented was sufficient to create a
genuine issue of material fact as to whether Appellees possessed actual knowledge
that the Stogsdills’ dogs were vicious. Appellant points to NeCole’s deposition
testimony that Appellees were aware of the dogs’ presence in their home and that
the dogs were barking during a visit. Appellant also points to the affidavits of three
of the Stogsdills’ neighbors who described the dogs as aggressive based on those
neighbors’ interactions with the dogs. Appellant contends that:
[he] will . . . be able to prove that anyone who met or simply observed
the dogs would conclude that the dogs had dangerous propensities
based on their general demeanor, their aggressiveness, the launching,
barking, growling, their size, their threatening body language, and that
[this] behavior was their usual behavior without provocation.

and failure to provide either constitutes a waiver of the issue on appeal.”). Furthermore, because we hold
that Appellees did not have actual knowledge of the dogs’ dangerous propensities—and therefore did not
owe a duty of ordinary care to a third party injured by the dogs— we need not address the other claims.
See TEX. R. APP. P. 47.1.
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[And he] will be able to prove that Appellees had plenty of
contact with the dogs; that they were close to the dogs, that the dogs
had to be put up when they visited; that the dogs did behave in their
usual aggressive manner; and that the dogs [would] bark and launch at
the Appellees through the fence.
From this, a jury could conclude that the Appellees had close
interaction and knew about the dogs and knew the dogs had vicious
propensities.
However, as Appellees argue, Appellant’s evidence does no more than
establish that Appellees were aware of the dogs’ presence and that the Stogsdills and
their neighbors—not Appellees—might have been aware of the dog’s vicious
propensities. There is no evidence that any person notified Appellees that the dogs
were vicious or possessed vicious propensities. See Batra, 110 S.W.3d at 130.
Although Appellant makes a conclusory claim that the dogs behaved in an
aggressive manner by barking and launching at Appellees during a visit, there is no
such evidence in the record supporting Appellant’s claim of the landlords’ actual
knowledge. See id. Although the entire burden to produce evidence raising a
genuine issue of material fact is on Appellant, he only produced evidence that the
dogs, unbeknownst to Appellees, had demonstrated some aggressive propensities
toward the Stogsdills’ neighbors. See id. (concluding landlord did not owe a duty to
third party where landlord knew of dog’s presence and maintained control over the
property, but the trial court only found that the landlord possessed imputed
knowledge of the dog’s vicious propensities); Bolton, 528 S.W.3d at 775 (adopting
the standard set out in Batra); see also Mattox v. Timmerman, No. 03-13-00107-CV,
2013 WL 4516125, at *3 (Tex. App.—Austin Aug. 22, 2013, no pet.) (mem. op.)
(holding that plaintiff’s summary judgment evidence was insufficient where an
affidavit established only that the landlord was aware of the dog’s presence but not
that it posed any kind of threat). Such evidence supports only imputed knowledge

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at best and creates no more than a suspicion or surmise that Appellees had actual
knowledge of the dogs’ vicious nature. See Mattox, 2013 WL 4516125, at *3.
Because Appellant did not put forth any evidence on this essential element of his
claim, summary judgment was proper. See TEX. R. CIV. P. 166a(i). Accordingly,
Appellant’s sole issue is overruled.
This Court’s Ruling
We affirm the judgment of the trial court.

W. BRUCE WILLIAMS
JUSTICE

January 9, 2025
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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