Bruce Perryman and Vicki Leah Perryman v. Scott Dean Beaty--Appeal from 74th District Court of McLennan County

Bruce & Vicky Perryman v. Scott Beaty /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-00-311-CV

 

BRUCE PERRYMAN

AND VICKY LEAH PERRYMAN,

Appellants

v.

 

SCOTT DEAN BEATY,

Appellee

 

From the 74th District Court

McLennan County, Texas

Trial Court # 99-1289-3

O P I N I O N

This is an appeal from a jury trial for trespass, negligence, and intentional infliction of emotional distress. The trial court rendered judgment on the verdict for the defendant. The plaintiff brings this appeal. We affirm the trial court s judgment.

I. Background

Bruce and Leah Perryman owned two dogs. One night the dogs were on the Perrymans property, enclosed by a four-foot chain link fence, when a stray dog jumped the fence and attacked them. The Beatys lived on the adjoining piece of property and heard loud, strange cries coming from the Perryman land that night. Scott Beaty, the grown son of the Beatys, was visiting his parents and decided to investigate the cries. Beaty had been a military policeman for over a year in the Marines, before transferring to the Army, and was therefore trained in the use of firearms. He grabbed a flashlight and a loaded gun and went next door. What he found was a terrible scene. The stray dog had attacked one of the Perrymans two dogs and that dog was lying, injured, with its head stuck in a wrought-iron railing. There was so much blood that Beaty could smell it when he approached. Beaty jumped over the chain link fence and walked closer to the injured dog. He heard growls and shined his flashlight in the direction of the noise. He saw the stray dog and the Perrymans other dog running towards him. Beaty ran towards the fence and jumped back over it. The two dogs kept charging and he shot each one as it attempted to clear the fence. The stray dog turned after being shot, jumped over the fence on the other side of the yard, and ran away. The Perrymans dog lay where it had fallen and was later shot and killed by a police officer in what the officer described as an act of mercy.

II. Procedure

Perryman sued Beaty for intentional infliction of emotional distress, negligence, and trespass. The case proceeded to trial and the jury found that Beaty was not a trespasser on the Perryman property that night. In addition, the jury answered five other questions:

1) Was Scott Beaty s entry onto the Perrymans property justified?...........Yes

2) Was the negligence, if any, of Scott Beaty a proximate cause of the death of the Perrymans dog?..............No

3) What was the market value, if any, of the Perrymans dog in McLennan County, Texas at the time of the occurrence in question?..................$50

4) At the time of the occurrence in question what was the reasonable special value of the Perrymans dog, taking into consideration the feelings of the owners for such dog? In answering this question do not include any amount for mental anguish, if any, suffered by the Perrymans...................$5,000

5) What amount of money, if any, if now paid in cash, would fairly and reasonably compensate the Perrymans for mental anguish, if any, that they suffered as a result of the death of their dog?.........................$0

The trial court rendered judgment for Beaty and ordered that Perryman take nothing.

Perryman appeals eight issues to this Court. The first is whether the trial court erred by not granting Perryman an instructed verdict on the question of whether Beaty was a trespasser that night, or alternatively, whether the evidence was legally insufficient to support a finding that Beaty was not a trespasser. The second is whether the trial court erred as a matter of law by submitting a jury question on a necessity, or justification, defense to that trespass. Perryman then submits two issues that address the legal and factual sufficiency of the evidence supporting the jury s answer to the necessity question, and two issues that address the legal and factual sufficiency of the evidence supporting the jury s answer to the negligence question. The final two issues are concerned with whether the trial court erred as a matter of law by refusing Perryman s submission of jury questions on conversion and gross negligence, or alternatively, by refusing to grant leave to Perryman to file a trial amendment after the close of evidence, thereby not allowing a jury question on conversion or gross negligence.

Beaty responds by raising an alternative ground for affirming the trial court s judgment and denying recovery to Perryman. Because Beaty obtained a favorable judgment on the verdict, he may now raise such an independent ground for affirmance in this Court. See Oak Park Townhouses v. Brazosport Bank of Texas, N.A., 851 S.W.2d 189, 190 (Tex. 1993). Beaty argues that there was no evidence to support the jury findings of market value or special value for Perryman s dog. We sustain Perryman s first issue and hold that Beaty was a trespasser as a matter of law, but, for the reasons explained below, we affirm the trial court s judgment.

III. Trespass

In his first issue, Perryman argues that the trial court should have granted his oral motion for an instructed verdict and ruled as a matter of law that Beaty was a trespasser. Beaty argues that this complaint was not sufficiently presented or preserved. Further, Beaty argues that there was legally sufficient evidence to create a fact issue about whether Beaty was a trespasser.

a. Preservation of objection

There is no requirement that a motion for an instructed verdict be a written one. Tex. R. Civ. P. 268; Pride Petroleum Servs., Inc. v. Criswell, 924 S.W.2d 720, 721 (Tex. App. El Paso 1996, writ denied). It must, however, state the specific grounds for the motion. Tex. R. Civ. P. 268. In order to preserve the objection, there is no requirement that the trial court must memorialize in a written order a fully recorded motion and oral ruling. Tex. R. App. P. 33.1(a); Criswell, 924 S.W.2d at 721. Perryman specifically objected to the submission of a jury question on trespass and argued to the trial court that trespass had been established as a matter of law. The trial court overruled his objection. We hold that this was sufficient to preserve Perryman s objection.

b. Trespass rule of law and application

This Court has previously stated that a proper definition of trespasser is:

one who enters on the property of another without having consent of the owner. To constitute a trespass, entry upon another s property need not be in person but may be made by causing or permitting a thing to cross the boundary of the premises. Every unauthorized entry upon land of another is a trespass and the intent or motive prompting the trespass is immaterial.

 

Watson v. Brazos Elec. Power Co-op, Inc., 918 S.W.2d 639, 646 (Tex. App. Waco 1996, writ denied). Not only is intent immaterial, the question of whether damage was done is immaterial. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 827 (Tex. 1997) (citing McDaniel Bros. v. Wilson, 70 S.W.2d 618, 621 (Tex. Civ. App. Beaumont 1934, writ ref d)). Beaty admitted that he entered Perryman s land uninvited. We hold that as a matter of law, Beaty was a trespasser. Therefore, we sustain Perryman s first issue.

IV. Necessity Defense

In his second issue, Perryman argues that the trial court erred in submitting a question to the jury on a necessity, or justification, defense to the trespass. His argument to this Court is that in order to deserve a question on a necessity defense, Beaty would have to admit the trespass. In support of this proposition, Perryman points us to criminal law, specifically Chapter 9 of the Texas Penal Code and its interpretative case law. Tex. Pen. Code Ann. 9.22 (Vernon 1994); Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999).

The Supreme Court of Texas has stated that there should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling. State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). In this case, Perryman argued to the trial court that a jury question on the necessity defense should not be submitted to the jury because Beaty s own voluntary conduct cause[d] the actions. Perryman did not argue that Beaty would have to admit to the trespass before the necessity defense would be available to him. We hold that Perryman waived this argument by not making it to the trial court. Tex. R. App. P. 33.1(a). We overrule Perryman s second issue.

V. Necessity finding legal and factual sufficiency

In his next two issues, Perryman challenges the legal and factual sufficiency of the evidence supporting the jury s finding of a necessity defense for Beaty.

a. Legal sufficiency standard of review

When the party complaining of legal sufficiency did not have the burden of proof at trial, as in this case, we conduct our review by considering only the evidence and inferences that support the finding, and disregard contrary evidence and inferences. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). We can find the evidence legally insufficient if: 1) there is a complete absence of evidence for the finding; 2) there is evidence to support the finding, but rules of law or evidence bar the court from giving any weight to the evidence; 3) there is no more than a mere scintilla of evidence to support the finding; or 4) the evidence conclusively establishes the opposite of the finding. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citations omitted).

b. Factual sufficiency standard of review

When the party complaining of factual insufficiency did not have the burden of proof at trial, as in this case, we conduct our review by considering all the evidence in the record both for and against the finding, and we can find the evidence factually insufficient only if we conclude that the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App. Waco 2000, pet. denied). We may not pass upon the witnesses credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Checker Bag, 27 S.W.3d at 633. Reversal could occur because the finding was based on weak evidence, or because the proponent s proof, although adequate if taken alone, is overwhelmed by the opponent s contrary proof. Id. (citations omitted). If we find the evidence to be factually sufficient, we are not required to detail all the evidence supporting the finding. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998) (citations omitted). However, if we find the evidence to be factually insufficient, we must detail all the evidence relevant to the issue and clearly state why the finding is so against the great weight and preponderance of the evidence that it is manifestly unjust. Id.

c. Necessity finding legal and factual sufficiency

Perryman first argues that the evidence is legally insufficient to support a necessity defense because Texas case law does not recognize a defense of necessity to trespass in a civil lawsuit. We disagree. At least one other court of appeals has stated that an entry upon the land of another may be justified by necessity. Buffalo Marine Serv., Inc. v. Monteau, 761 S.W.2d 416, 420 (Tex. App. Houston [14th Dist.] 1988, no writ). Section 197 of the Restatement of Torts describes the privilege of private necessity:

(1) One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to . . . (b) the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.

 

Restatement (Second) Torts 197(1)(b). In fact, the Restatement contains an illustration that is particularly instructive: A enters B s burning kennels to save B s dogs from the flames. A s entry on the land is privileged, and A is not liable for reasonably necessary harm. Id. 197 cmt. j. We hold that there is a defense of necessity to trespass in civil cases.

Next, Perryman argues that the evidence is legally and factually insufficient in this case to support the jury s finding of necessity, or justification. The justification instruction, which was not objected to by either party, was as follows:

The conduct of a person is justified if a reasonable person under the same or similar circumstances would reasonably believe the conduct is immediately necessary to avoid imminent harm, and the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law forbidding entry onto the land of another without permission.

 

The jury heard evidence that Beaty heard shrill cries, wailing, and distressful hollering that sounded like a human being attacked. When he reached the Perryman property, he saw an injured dog, blood on the wall of the house, the patio, and the surrounding grass. Beaty testified that there was so much blood at the scene that he could smell it. Perryman points to the fact that Beaty knew that the police were being called to the scene, as evidence that his entrance onto the Perryman land was unnecessary. Without deciding the correctness of the submitted jury instruction, we hold the evidence legally and factually sufficient to support the jury s finding that Beaty was justified in his trespass on Perryman s land. Accordingly, we overrule Perryman s issues three and five.

VI. Negligence finding legal and factual sufficiency

In Perryman s next two issues, he challenges the legal and factual sufficiency of the evidence supporting the jury s finding on negligence.

a. Legal sufficiency standard of review

When the party that had the burden of proof at trial complains of legal insufficiency of an adverse finding, as in this case, that party must demonstrate that the evidence establishes conclusively, i.e., as a matter of law, all vital facts in support of the finding sought. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). We first examine the record for evidence supporting the adverse finding, ignoring all evidence to the contrary. Id. If more than a scintilla of evidence supports the adverse finding, our inquiry ends. Id. More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (citations omitted).

b. Factual sufficiency standard of review

When the party complaining of the factual sufficiency of the evidence had the burden of proof at trial, as in this case, it must demonstrate that the adverse finding is contrary to the great weight and preponderance of the evidence. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We weigh all the evidence, and we can set aside the adverse finding only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id. In doing so, we must detail the evidence and state in what regard the contrary evidence greatly outweighs the evidence in support of the adverse finding. Id.

c. Negligence finding legal and factual sufficiency

Perryman argues that there is no evidence to support the jury s refusal to find negligence was a proximate cause of the dog s death. Both Perryman and Beaty argue extensively about whether Beaty s actions were a proximate cause of the dog s death. The police officer who fired the final shot that ended the dog s life testified that he did so only to end the dog s suffering and that he would not have shot the dog if he had thought the dog would have been able to recover from the wound inflicted by Beaty. The question here is not whether Beaty s actions were a proximate cause of the dog s death; they clearly were. The question is whether Beaty acted negligently. The jury found that Beaty was justified in entering the Perryman property that night. We must then look to see if Beaty s actions, once on the property, were negligent. The negligence definition provided to the jury was as follows:

Negligence means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. Ordinary care means that degree of care that a person of ordinary prudence would use under the same or similar circumstances.

 

Beaty testified that he ran from the charging dogs and jumped over a four-foot fence to attempt to escape them. He further testified that the dogs did not end their pursuit, but rather, attempted to jump and climb over the chain link fence, and came close to succeeding. The dogs had blood on their coats and were growling at Beaty. He had seen the results of at least one of the dog s previous attacks. There is not only more than a scintilla of evidence supporting the jury s finding on the negligence question, we hold that the evidence is factually sufficient to support the jury s finding that Beaty was not negligent in his actions leading to the death of the dog. Accordingly, we overrule Perryman s issues four and six.

VII. Conversion and gross negligence issues

In his final two issues, Perryman complains that the trial court erred by not submitting his proposed jury questions on conversion and gross negligence. Alternatively, Perryman argues that the trial court abused its discretion by refusing Perryman s trial amendment after the close of evidence, thereby not allowing jury questions on conversion or gross negligence. Beaty counters with the argument that Perryman s objection to the omission of the jury questions was not properly preserved. Further, Beaty argues that Perryman s trial amendment was properly refused by the trial court because it attempted to add new causes of action and therefore was prejudicial on its face. Because of the jury finding of no liability due to negligence on the part of Beaty, we need not consider Perryman s complaint regarding the issue of gross negligence. See Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex. 1981). We overrule Perryman s issue eight. We will, however, examine the omission of a jury question on the issue of conversion.

a. Preservation of error on omitted question

Perryman submitted a proposed jury charge before the trial began. This charge included a jury question on conversion. The trial court omitted this question in its charge and Perryman orally objected to the omission at the charge conference. The trial court overruled the objection. This is almost exactly the situation found in Alaniz v. Jones & Neuse, Inc. 907 S.W.2d 450 (Tex. 1995). In Alaniz, the Supreme Court of Texas held that Alaniz had properly preserved his objection to the trial court s omission in the charge by submitting his request in a complete proposed charge at the beginning of the trial as long as it is not obscured and then raising the objection orally after the trial court had prepared its charge. Id. at 451. The Supreme Court stated that a party should not be penalized for also raising [its objection] earlier, and that Alaniz written request was clearly separate from his oral objection. Id. Likewise, we hold that Perryman preserved his objection to the omission of this question from the charge.

b. Omission of question rule of law

Rule 278 of the Texas rules of Civil Procedure requires a court to submit questions to the jury which are raised by the written pleadings and the evidence. Tex. R. Civ. P. 278. The Supreme Court has interpreted this as a substantive, non-discretionary directive to trial courts, requiring them to submit requested questions to the jury if the pleadings and evidence support them. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). The question in this case would appear to be whether the pleadings support the requested submission.

The Supreme Court has held that, absent special exceptions, a petition should be construed liberally in favor of the pleader. Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993) (citing Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982)). The Supreme Court further states that a cause of action may be inferred from that which is specifically stated even when an element is not specifically alleged. Id. But, when an entire cause of action is omitted the Supreme Court has held that the petition did not give the defendant fair notice that the plaintiff was going to seek to recover under that separate cause of action. Id.

c. Application

In Perryman s First Amended Original Petition, he puts forth three causes of action: 1) intentional infliction of emotional distress; 2) negligence; and 3) trespass. In his proposed jury charge, he submitted an additional jury question on conversion. We hold that his petition did not give Beaty fair notice that he would seek to recover under this separate cause of action, and therefore his pleadings did not support a jury question on conversion. Accordingly, the trial court did not err by refusing to submit this jury question.

d. Trial amendment rule of law

The rules of Civil Procedure require the trial court to allow amendment of the pleadings unless: 1) there is a showing of surprise by the opposing party; or 2) the amendment is prejudicial on its face. See Tex. R. Civ. P. 63, 66; Parker v. Parker, 897 S.W.2d 918, 927 (Tex. App. Ft. Worth 1995, writ denied); Trailways, Inc. v. Clark, 794 S.W.2d 479, 492 (Tex. App. Corpus Christi 1990, writ denied). If either of these factors is present, the decision to permit or deny the amendment is within the discretion of the trial court, and may be reversed only if there is a clear abuse of discretion. Parker, 897 S.W.2d at 927. The fact that an amendment asserts a new cause of action or defense makes it prejudicial on its face. Id. Further, it is not an abuse of discretion for a trial court to deny a trial amendment in the case of lack of diligence. Trailways, 794 S.W.2d at 492; In re Marriage of Loftis, 40 S.W.3d 160, 164 (Tex. App. Texarkana 2001, no pet.). If the amendment is not based on any newly discovered facts, but rather on matters that appear to have been known by the party seeking the amendment, the trial court does not abuse its discretion in disallowing the amendment. Trailways, 794 S.W.2d at 492; Loftis, 40 S.W.3d at 164.

e. Application

Perryman appears to have contemplated seeking recovery from Beaty under a theory of conversion from the beginning of the trial. He submitted a question on conversion in his proposed jury charge, which was submitted before the jury was empaneled. Yet, he did not attempt to amend his pleadings until after the close of the evidence. We hold that the trial court did not abuse its discretion in refusing to grant leave to Perryman to file his trial amendment. We further hold that there was no trial by consent in this case. Evidence to support a theory of conversion in this case was also relevant to theories of trespass, negligence, and the subsequent injury. Therefore, the presentation of such evidence did not put Beaty on notice that Perryman was seeking to recover under such a theory. See Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993). This did not constitute trial by consent. We overrule issue seven.VIII. Conclusion

We sustain Perryman s first issue and hold that Beaty was a trespasser as a matter of law. But, because of the jury s finding on necessity, Beaty was not liable to Perryman for this trespass. We overrule the rest of Perryman s issues. Because of our disposition of Perryman s complaints, we need not consider Beaty s cross-points. We affirm the trial court s judgment.

TOM GRAY

Justice

 

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed December 31, 2002

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