Dick W. Hicks, Jr. v. Miles Lee and Don Lee--Appeal from 216th Judicial District Court of Bandera County

MEMORANDUM OPINION
No. 04-02-00049-CV
Dick W. HICKS, Jr.,
Appellant
v.
Miles LEE and Don Lee,
Appellees
From the 216th Judicial District Court, Bandera County, Texas
Trial Court No. 7862-00
Honorable Stephen B. Ables, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: March 12, 2003

AFFIRMED

Dick W. Hicks, Jr. appeals the trial court's summary judgment against him on his claim that Miles and Don Lee negligently permitted the Lees' cows to trespass on Hicks' land and destroy his hay crop. We affirm.

1. Negligence-It is undisputed the property at issue is located in Commissioner's Precinct 3 of Bandera County; and this precinct has not adopted a local stock law. Therefore, "every owner of domestic animals is permitted to allow them to run at large unless they are known to him to be vicious in the matter of fence breaking or otherwise, or that they are afflicted with infectious or contagious diseases." Molton v. Young, 204 S.W.2d 636, 638 (Tex. Civ. App.-Amarillo 1947, no writ). (1) "[I]f landowners desire their lands or fields protected from livestock running at large, it is their duty to place the lands or fields under fence sufficient to afford protection against livestock of ordinary propensity." Id. "Failure to do so constitutes negligence and deprives them of the right to recover any damages that might result from the trespassing of such livestock." Id.; see generally Gibbs v. Jackson , 990 S.W.2d 745, 747-49 (Tex. 1999) (discussing the history of Texas' open range doctrine and local stock laws).

Because this case is not controlled by a local stock law, it was Hicks' duty to fence out the Lees' cattle. Nonetheless, Hicks argues that the Lees imposed a duty of reasonable care on themselves by repairing their common fence. However, "a person's duty to exercise reasonable care in performing a voluntarily assumed undertaking is limited to that undertaking, and will not normally give rise to an obligation to perform additional acts of assistance in the future." Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 397-98 (Tex. 1991). At best, therefore, repairing their common fence imposed upon the Lees the duty to exercise reasonable care in making the repairs. Hicks does not allege that the Lees made any repairs negligently. Nor does the Lees' lease impose upon them a duty to maintain the fence in a manner that would prevent their cows from entering onto Hicks' land; the lease merely requires the Lees to "maintain the fences to [their] satisfaction." The Lees' duty under the lease thus was not a duty undertaken for Hicks' benefit and cannot form the basis for an undertaking claim. See Torrington v. Stutzman, 46 S.W.3d 829, 838-39 (Tex. 2000).

2. Trespass-As discussed above, in the absence of a stock election law, the owner of cattle is allowed to let the animals run free. Thus, there cannot be a trespass as a matter of law. See Clarendon Land, Inv. & Agency Co. v. McClelland, 86 Tex. 179, 23 S.W. 576, 577 (Tex. 1893) ("if the cattle of one person wander upon the uninclosed [sic] lands of another, or upon his lands imperfectly inclosed, they are not trespassers").

3. Exemplary Damages-Because Hicks has no claim for actual damages, he cannot recover exemplary damages. See Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 665 (Tex.1995).

Sarah B. Duncan, Justice

Publish

1. Although Hicks' brief in this court argues that he raised a fact issue on whether the Lees knew their cattle were "vicious in the matter of fence breaking," he failed to raise this issue in his response to the motion for summary judgment. Therefore, the issue is waived. See Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).