Van Phac Nguyen and Phi Thin Nguyen, Individullay and as Sole Heirs at Law of Bac Dinh Nguyen v. Dinh Hung Nguyen and Hong Van Nguyen

Affirmed and Memorandum Opinion filed October 5, 2006 Affirmed and Memorandum Opinion filed October 5, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00518-CV ____________ VAN PHAC NGUYEN and PHI THIN NGUYEN, Individually and as Sole Heirs at Law of BAC DINH NGUYEN, DECEASED, Appellants V. DINH HUNG NGUYEN and HONG VAN NGUYEN, Appellees On Appeal from the 125th District Court Harris County, Texas Trial Court Cause No. 03-56337 M E M O R A N D U M    P I N I O N This appeal arises from a negligence suit brought by Van Phac Nguyen and Phi Thin Nguyen (the AGrandparents@), against their son and daughter-in-law, Dinh Hung Nguyen and Hong Van Nguyen (the AParents@). The Grandparents claimed the Parents failed to properly control and supervise their fourteen-year-old son, Huy Dinh Nguyen, who shot and killed his uncle, Bac Dinh Nguyen. The Parents filed a hybrid traditional and no-evidence motion for summary judgment, claiming they neither owed nor breached any duty. The trial court granted summary judgment, and the Grandparents appeal. We affirm. Factual and Procedural Background The Nguyen familyCincluding Huy=s grandmother (Phi), Huy=s parents, Huy, and BacCoccupied a home on Redding Road.[1] Bac, who was Dinh=s younger brother and the Grandparents= adult son, paid rent to the family and lived in a garage apartment on the property. Bac was not close with Huy=s mother, Hong, and he limited his visits to the house. In April of 2003, Huy=s father began serving a prison sentence for credit card fraud. In May of 2003, Huy received eighteen months= probation for mischief and unlawful use of a motor vehicle; he was released into his mother=s custody and restricted to an 8:00 p.m. curfew. Huy had already shoplifted on more than one occasion and was a truant which caused him to fail classes. He physically fought with his mother once (a fight his grandmother broke up). Marynna Nguyen, Huy=s aunt, said it appeared Huy was becoming violent and angry at the slightest things.[2] Hong admitted Huy was increasingly difficult to control due to disobedience and disrespectfulness, especially without his father at home. Hong was typically away from home to work at her dry cleaning business from 5:00 a.m. until 8:00 or 9:00 p.m.. Further, her store was located across town from the Redding Road home. When asked whether Hong disciplined Huy, Phi replied, AOnly giving him teachings, but not punishment.@ Phi=s deposition continued: Q. Would you say that [Hong] did all she could to discipline [Huy]? A. Yes. Let me tell you this. His uncle [Bac] . . . told me and his mother that he has been rotten for a few months already and said that he should be sent away to that place for a few months so he will be less rotten. Phi said Hong called home four or five times a day to check on Huy, Aand she got me.@ She said Hong called right after Huy got out of school and asked Phi to feed him, remind him to do his homework, and go with him if he left the house, but that Ait was so hard because he would not listen.@ Huy said his mother would call his cell phone to check up on him and ask what he was doing, but that he would lie if he did not want her to know where he was. Huy admitted he did not follow his curfew. Phi said Huy Ararely@ came home and that she, Hong, and an aunt of Huy=s would drive around looking for him: [S]ometimes we found him, bring him home. Then we were kind of sweet talking to him and tell him that, AYou ought to obey the law because the law has really put on you because if you don=t do that, then I must have you put away in jail or so. On July 13, 2003, Huy phoned his cousin, Khanh Tran, and told Khanh to instruct Phi to move out of the Redding Road home because she was causing too many problems between Huy and his mother. Phi moved out the next day. On July 16th, Khanh brought Phi back to retrieve some of her jewelry; Bac and Huy were at home. When Phi could not find all of her jewelry, she believed Huy had stolen it and asked where it was. Huy began arguing with Phi. Bac stepped in and told Huy he would Akick his butt@ if Huy did not stop. Huy shouted obscenities at Bac and his grandmother and punched the wall. Khanh described Huy as Aenraged.@ Huy said he was not afraid, he would punch Bac Aright now,@ and AI=m going to cap your ass,@ meaning he would shoot Bac. Huy did not have a gun at that time. Bac hit Huy and wrestled him to the ground, bruising Huy=s face over his eye. During the scuffle, Huy repeatedly said he would Acap@ Bac. That night, Huy and Hong called Khanh. Hong was upset and said she intended to press charges against Bac for using force against her son (she did, in fact, file a report with Children=s Protective Services, or ACPS@). Huy asked Khanh AHow come you didn=t help me fight him? I don=t care if he=s blood or not, I=ll bust a cap on him.@ Khanh did not believe Huy would carry out this threat because Huy was young, and Bac was his uncle. Hong told Huy not to worry about the fight, and sent him to stay with his uncle Trinh for a few days until everything Acooled down.@ Hong explained: . . . everybody have a high temper, and B and I=m in the middle. I don=t know what happen. You know, I=m trying to listen on this side; and I try to listen my son side, you know, try to figure out who wrong. . . . A couple of days after the fight, Huy returned to the Redding Road home with two friends. He stood outside and threatened to kill Bac, who became concerned and told his brothers and sisters. A couple of days later, one of the side mirrors on Bac=s car was broken out. A few days after that incident, Bac confided in a nephew and friends that he was concerned for his safety and, if anything happened to him, the family should question Huy. On July 25, 2003, Huy returned to the Redding Road home with two friends, together they shot and killed Bac. Huy admitted he was responsible for Bac=s death because he Apumped@ Bac up into hitting him, and because he Apumped@ others into helping him kill Bac. Huy surrendered to police on August 7th.[3] The Grandparents sued Huy=s parents for negligence, claiming the failure to control and supervise Huy proximately caused Bac=s death. The Parents filed a hybrid motion for traditional and no-evidence summary judgment, contending they owed no duty because Huy=s act was not foreseeable, and they breached no duty because there was nothing more they could have done to prevent Huy=s act. The Grandparents responded that Huy=s historyCincluding car theft, shoplifting, truancy, breaking curfew, and at least one physical fight with his motherCshow his act was foreseeable and that Hong, knowing of these many problems, breached her duty to protect third parties from Huy because she made no effort to properly supervise her son. The trial court granted summary judgment. The Grandparents appeal, arguing generally, in a single issue, that more than a scintilla of evidence exists to support their negligence claim, and that a material question of fact remains.[4] Standard of Review We review the granting of a traditional motion for summary judgment to determine whether no genuine issue of material fact exists so that judgment should be granted as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant-movant is entitled to summary judgment if one element of the plaintiff=s theory of recovery is disproved, or if the defendant pleads and conclusively establishes each essential element of an affirmative defense, thereby rebutting the plaintiff=s cause of action. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). Our review is de novo, taking as true all evidence favorable to the nonmovant and indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A no‑evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence raising a genuine issue of material fact. Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Our review is de novo, taking the evidence in a light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). When, as here, the trial court=s order does not specify the grounds upon which it relied, we must affirm if any ground is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). Parental Duty To establish negligence, the Grandparents must show the Parents owed a duty, and that damages suffered were proximately caused by a breach of that duty. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). We begin by addressing the Parents= contention they owed no duty. As the Parents= attorney agreed at oral argument, there is no evidence that Huy=s father was negligent. We limit our inquiry, therefore, to Hong=s negligence. When a Parental Duty is Imposed The existence of a duty is a question of law for the court based on the specific facts of the case. Rodriguez v. Spencer, 902 S.W.2d 37, 41 (Tex. App.CHouston [1st Dist.] 1995, no writ). AThe mere fact of paternity or maternity does not make a parent liable to third parties for the torts of his or her minor child.@ Id. at 42. While minors are generally liable for their own torts, a parent may be held directly liable by permitting the minor to act in a manner likely to cause injury to another. Id. For example, a parent may be liable in negligence for carelessly failing to restrain a child known to have dangerous tendencies. Id. A child is known to have dangerous tendencies if the parent can anticipate the danger the child may pose to third parties. Id. AActual knowledge is not required if the parent should, under the circumstances, reasonably anticipate the consequences of his or her actions.@ Id. (emphasis in original). To determine whether a duty exists, courts apply a risk-utility balancing test involving several factors, including risk, foreseeability, likelihood of injury weighed against the social utility of the defendant=s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden on the defendant. Id. at 41. A parent=s duty to protect third parties from their minor child=s acts Adepends on whether the injury to the third party is reasonably foreseeable under the circumstances as evidenced by the parent=s knowledge, consent, sanction, or participation in the child=s activities.@ Id. at 43. The most important factor in determining whether to impose a duty is foreseeability.[5] Id. Foreseeability is what a defendant should, under the circumstances, reasonably anticipate as a consequence of certain conductCit does not mean a defendant must anticipate the precise manner of injury. Id.; see also Isbell v. Ryan, 983 S.W.2d 335, 341 (Tex. App.CHouston [14th Dist.] 1998, no pet.) (holding that the basis of the parent=s duty to third persons is the parent=s knowledge, consent, sanction, or participation in the child=s tendencies to commit bad acts). Could Hong Have Reasonably Foreseen Huy=s Crime? We look first to determine whether Hong=s knowledge, consent, sanction or participation in Huy=s activities evidences Bac=s injury was reasonably foreseeable under the circumstances. Once we determine whether Hong should have reasonably foreseen Huy=s act, we look to the other risk-utility factors to determine whether Hong owed a duty. There is no evidence Hong ever encouraged, sanctioned, approved, or participated in Huy=s activities. We must, therefore, determine whether her knowledge, under the circumstances, shows she should have reasonably foreseen Huy=s criminal act. Hong had no specific knowledge about Huy=s activities because he consistently lied to her about his actions and whereabouts. She was away from home from 5:00 a.m. until 8:00 or 9:00 p.m., and depended on family members and phone calls to check up on her son. Hong knew about Huy=s prior criminal and other bad acts; however, evidence that Huy shoplifted, stole a car, was truant from school, violated curfew, and Ahung out@ with friends Hong believed were bad influences amounts to no evidence she should have reasonably foreseen Huy would kill his uncle.[6] Hong knew that Huy had threatened Bac=s life during the June 16th fight. It is undisputed, however, that Huy had no gun at the time of the first threat. In fact, there is no evidence Huy ever possessed or had access to any gun prior to Bac=s murder, or that he had ever threatened to shoot or harm anyone before June 16th.[7] Hong=s reaction to the fight, including filing a report with CPS, shows she was more concerned about Huy=s safety than Bac=s.[8] Regarding Huy=s subsequent threats, Bac told his Abrothers and sisters@ about Huy=s second threat, and Bac told friends and a nephew that he was concerned for his safety. There is no evidence that Bac=s sister-in-law Hong knew about any threats made after June 16th. Assuming Hong did know, however, this is insufficient to show she should have reasonably anticipated Huy would harm Bac. Even Huy=s cousin, Khanh, told police he did not believe Huy would follow through with his threats. Despite Huy=s anger and disobedience, he did not have a violent past. There is no evidence Huy was ever involved in fights at school (on the contrary, aside from his truancy, there is evidence Huy behaved well in school and was never suspended), or that he had ever harmed, threatened, or attempted to harm anyone. Under these circumstances, when a child has no prior, similar history of violence, and no prior, similar history of following through with violent threats, we cannot find that a parent should reasonably foresee that his or her child would commit murder. See Sanders v. Herold, No. 01-04-00709-CV, 2006 WL 1766833, *5 (Tex. App.CHouston [1st Dist.] no pet. h.) (noting foreseeability is often determined by whether the defendant is aware of prior, similar behavior such as similarity between scoutmaster=s history of Amessing with@ boys and later act of molestation).[9] We find the Grandparents have provided no evidence that Hong could have reasonably anticipated Huy=s participation in Bac=s murder. Foreseeability, the most important factor when determining a defendant=s duty, therefore weighs against a finding that Hong owed a duty to protect Bac from Huy. Other Factors in Determining Duty Without foreseeability, the bulk of the remaining factors also weigh against imposing a duty. In hindsight, it is clear that Huy posed a significant risk to Bac. However, at the time, it did not appear likely that Huy would follow through with his threats. While Bac may have believed Huy might attempt to harm him and Khanh did not believe it possible, Huy had no similar violent history to make his threats appear serious. Hong=s conductCthat is, working up to sixteen hours a day and sending her son to live with his uncleCappeared reasonable and socially useful under the circumstances. Imposing a burden upon Hong to Achange her priorities@ and spend more time with Huy, as the Grandparents= appellate counsel suggested during oral argument, does not guarantee any difference in Huy=s conduct, especially when Hong admitted she had difficulty controlling Huy. These factors, considered together, weigh against a finding of duty and in favor of affirmance. Conclusion Having evaluated all relevant factors, we find Hong owed no duty to protect Bac from Huy=s criminal act. Taking as true all evidence favorable to the nonmovant and making all reasonable inferences and resolving any doubts in the nonmovant=s favor, we find there is no genuine issue of material fact that Hong owed any duty. Construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences, we find there is no evidence Hong owed any duty. We therefore need not address appellants= argument regarding breach of duty. We overrule the Grandparents= sole issue on appeal and affirm the trial court=s judgment. /s/ J. Harvey Hudson Justice Judgment rendered and Memorandum Opinion filed October 5, 2006. Panel consists of Justices Hudson, Fowler, and Seymore. [1] It is not clear on this record whether appellant Van Phac also occupied the Redding Road home. [2] Although the Parents posed hearsay objections (a complaint to the form of the affidavit) to affidavit summary judgment evidence, they obtained no rulings. Tex. R. Civ. P. 166a. They have, therefore, failed to preserve their objections to form on appeal. Dolcefino v. Randolph, 19 S.W.3d 906, 925 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). [3] On August 5th, Huy and his mother visited with Huy=s probation officer. Neither mentioned Bac=s death. Huy=s mother falsely reported that Huy=s father had moved to Saigon to work for a year. She also reported that she and Huy had just moved to be closer to her dry cleaning business. Huy worked at his mother=s store every day after the shooting until his arrest. [4] Although Huy=s parents also argue a lack of causation in their appellate brief, they made no such argument in their motion for summary judgment. We cannot address their causation argument when the record does not reflect it was ever made to the trial court. Tex. R. Civ. P. 166a(c), (i). [5] Foreseeability can, in some cases, trigger a fact question sufficient to defeat a motion for summary judgment. See Kendrick v. Allright Parking, 846 S.W.2d 453, 457 (Tex. App.CSan Antonio 1992, writ denied) (considering whether the summary judgment evidence conclusively established that appellees did not know or could not have known from their past experience or from the character of their business that criminal acts like those involved in this case were likely to occur, either generally or at some particular time). However where, as here, the facts are undisputed, foreseeability remains a question of law before this Court. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996) (holding the existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question); see also Mitchell v. Misouri-Kansas, Texas R.R. Co., 786 S.W.2d 659, 662 (Tex. 1990) (quoting Bennett v. Span Indus., Inc., 628 S.W.2d 470, 474 (Tex. App.CTexarkana 1981, writ ref=d n.r.e.)) (AThe existence of duty is a question of law when all of the essential facts are undisputed, but when the evidence does not conclusively establish the pertinent facts or the reasonable inferences to be drawn therefrom, the question becomes one of fact for the jury.@). [6] See Doe, 907 S.W.2d at 478 (finding Boys Club volunteer=s prior convictions for driving while intoxicated could not lead Club to reasonably anticipate risk he would sexually abuse child member); Rodriguez, 902 S.W.2d at 44B5 (acknowledging mother knew child shoplifted cassette tape but finding she could not foresee murder son participated in); see Kennedy v. Baird, 682 S.W.2d 377, 379 (Tex. App.CEl Paso 1984, no writ) (finding father had no forewarning adult son would shoot at driver despite appellants= claim son had pushed a fifteen-year-old boy and was reputed for having a violent temper). But see Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 36B7 (Tex. 2002) (finding special relationship existed between facility and mentally impaired patient and fact issue remained about whether facility could foresee danger in allowing patient to visit his mother when child had history of criminal mischief, evading arrest, theft, burglary, verbal and physical abuse to staff and patients, seven assaults on students at his school including cutting one student with a piece of glass, and brandishing a gun while trespassing on private property); Isbell v. Ryan, 983 S.W.2d 335, 341 (Tex. App.CHouston [14th Dist.] 1998, no pet.) (finding CPS letter to mother that there was reason to believe her son sexually abused a cousin raised fact issue as to whether she owed a duty to warn family to prevent his attack on stepsisters). [7] The Grandparents allege Huy was involved in home robberies, and the gun used to kill Bac was stolen in one of these robberies. To support this claim, they cite to a segment of Huy=s deposition that they failed to include in the appellate record. Although Khanh told police Bac had a small chrome handgun and that Huy must have had access to it because Huy admitted to once finding marijuana in Bac=s room (which Bac kept locked), there is no evidence Huy ever knew about or had access to this gun. [8] Huy was approximately 5'1" and weighed 115 pounds; Bac was a few inches taller than Huy. [9] The Montana Supreme Court, in addressing this issue, cited to Rodriguez in noting that most courts declining to adopt section 316 of the Second Restatement of Torts Ahave involved teenaged children and serious crimes like rape or murder. . . . The opinions rejecting ' 316 may thus reflect at least in part a judicial disinclination to hold parents liable for being unable to stop serious delinquency in older children.@ Crisafulli v. Bass, 308 Mont. 40, 38 P.3d 842, 845 (2001) (quoting Dinsmore-Poff v. Alvord, 972 P.2d 978, 981 (Alaska 1999)). The court also pointed out that negligence in controlling one=s child should not, in and of itself, be grounds for parental liability because this A>would be extending the hardships of harassed and exasperated parents too far to hold them liable for general incorrigibility, a bad education and upbringing, or the fact that the child turns out to have a nasty disposition.=@ Id. (quoting Lanterman v. Wilson, 354 A.2d 432, 436 (Alaska 1976).