Angela Osore, Individually and on Behalf of B.W., B.E. and Q.H. v. Lily Reed, William Watson and Watson Enterprises
09-15-00352-CV
| Tex. App. | Jan 26, 2017Background
- Plaintiff Angela Osore (and on behalf of her minor children) sued after one of her children was allegedly attacked by a tenant’s dog at a residence rented from Watson Enterprises. Suit named landlord Watson Enterprises and employees Reed and Dr. Watson among defendants.
- Plaintiff alleged negligence, negligence per se, and negligent infliction of emotional distress, and asserted landlord liability based on lease provisions (pet deposit, right of entry, repair/maintenance obligations) and alleged landlord knowledge or constructive knowledge of the dog’s vicious propensities.
- Watson Defendants moved for traditional and no‑evidence summary judgment, asserting they were out‑of‑possession landlords who owed no duty absent actual knowledge of a dangerous animal; they submitted the plaintiff’s deposition and Batra v. Clark as evidence/authority.
- Plaintiff filed a response and a motion for continuance seeking additional discovery (notably testimony from tenant Sanders), alleging disabilities impeded discovery; the motion lacked the Rule 166a(g) affidavit showing due diligence and particularity about the evidence sought.
- The trial court denied the continuance, granted summary judgment for Watson Defendants, and later severed claims against them; plaintiff appealed raising continuance, duty/knowledge, severance, and judicial bias issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion for continuance to obtain discovery (Rule 166a(g)) | Needed more time to depose tenant Sanders and obtain material testimony; disabilities slowed discovery | Plaintiff failed to provide affidavit showing what evidence was sought, its materiality, or due diligence | Denial affirmed — no abuse of discretion; plaintiff failed Rule 166a(g) showing and case had been pending ~10 months |
| Whether Watson owed a duty as a landlord (possession/control) | Lease terms (repair, right of entry, pet rules) show Watson was "in possession" or retained control, creating duty to remove dangerous dog | Watson were out‑of‑possession landlords and owe no duty absent actual knowledge of a dangerous animal | Summary judgment affirmed — lease provisions did not make Watson landlords in possession; Baker (multi‑dwelling) distinguishable |
| Actual vs. imputed knowledge of dog’s viciousness | Community notoriety and signs (barking, damage to blinds) created fact issues as to actual or constructive knowledge | Out‑of‑possession landlord is liable only if it had actual knowledge; no evidence of actual knowledge in record (plaintiff’s deposition contradicted knowledge) | Summary judgment affirmed — no evidence Watson had actual knowledge; imputed knowledge insufficient for out‑of‑possession landlord |
| Severance and alleged judicial bias/failure to consider response | Severance was improper if earlier rulings reversed; judge rushed ruling and showed bias | Severance proper as court granted summary judgment; no record evidence of bias and court need not hold oral hearing | Issues overruled — severance and bias claims rejected; record does not support bias and appellate review affirms judgment |
Key Cases Cited
- Baker v. Pennoak Properties, Ltd., 874 S.W.2d 274 (Tex. App.—Houston [14th Dist.] 1994) (landlord in possession may be liable for dog attacks in common areas if landlord controls premises and has knowledge)
- Batra v. Clark, 110 S.W.3d 126 (Tex. App.—Houston [1st Dist.] 2003) (out‑of‑possession landlord liability limited to situations with actual knowledge and ability to control premises)
- M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22 (Tex. 2000) (burden shifting in traditional summary judgment)
- FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000) (affirmance of summary judgment if any pleaded ground is meritorious)
- Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007) (definition of "genuine issue" for summary judgment review)
- Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002) (no‑evidence summary judgment standard)