Karen Lindsey Smith v. Terry P. Province

Court of Criminal Appeals of Texas March 23, 2018

Opinion

07-18-00026-CV ACCEPTED SEVENTH COURT OF APPEALS AMARILLO, TEXAS 3/23/2018 7:09 PM Vivian Long, Clerk

NO. 07-18-00026-CV FILED IN SEVENTH DISTRICT COURT OF APPEALS 7th COURT OF APPEALS AMARILLO, TEXAS Amarillo, Texas 3/23/2018 7:09:40 PM __________________________________________VIVIAN LONG CLERK

KAREN LINDSEY SMITH

TERRY P. PROVINCE

__________________________________________

On Appeal from Cause No. CV-2016-00729 County Court of Law #2, Denton County, Texas Honorable Robert Ramirez, Judge Presiding

APPELLANT’S BRIEF

PAUL FLANNIGAN State Bar No. 24012633 [email protected] MARK D. JOHNSON State Bar No. 10770175 [email protected]

FLANNIGAN & JOHNSON, P.L.L.C. 5600 Tennyson Parkway, Suite 330 Plano, Texas 75024 Phone: (972) 383-9377 Fax: (844) 287-8882

ATTORNEYS FOR APPELLANT

ORAL ARGUMENT NOT REQUESTED IDENTITIES OF PARTIES AND COUNSEL

Appellant Karen Lindsey Smith

Counsel for Appellant Paul Flannigan [email protected] Mark D. Johnson [email protected] FLANNIGAN & JOHNSON, P.L.L.C. 5600 Tennyson Parkway, Suite 330 Plano, Texas 75024

Appellee Terry P. Province

Counsel for Appellee Brantley J. Saunders [email protected] Abigail K. Christmann [email protected] SAUNDERS, WALSH & BEARD Craig Ranch Professional Plaza 6850 TPC Drive, Suite 210 McKinney, Texas 75070

i TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL i

TABLE OF CONTENTS ii

INDEX OF AUTHORITIES iv

STATEMENT OF THE CASE vi

STATEMENT REGARDING ORAL ARGUMENT vii

ISSUES PRESENTED viii

STATEMENT OF FACTS ix

SUMMARY OF ARGUMENT xiii

STANDARD OF REVIEW xiv

ARGUMENT 1

Issue 1 -- This Court should reverse and remand because the Trial Court erred when it struck

evidence offered by Smith regarding the well-known tendencies of the breeds (German

Shepherd Dog and Boxer) making up the Attack Dog. 1

Issue 2 – This Court should reverse and remand because the Trial Court erred when it granted

summary judgment to Province, despite the fact that Smith offered competent summary

judgment evidence (some of which Province did not oppose) indicating (a) the aggressive

tendencies of the breeds (in part German Shepherd Dog and Boxer) comprising the Attack Dog,

(b) that Province permitted a hole to exist in his gate, at the main point of ingress and egress to

his property, (c) that Province knew the Attack Dog could stick its head through the hole, and

ii potentially could bite anyone (including a licensee such as Smith) who came to the gate, and (d)

Smith was seriously injured when the Attack Dog in fact stuck its head through the hole, and bit

her in the neck. 4

PRAYER 10

iii INDEX OF AUTHORITIES

Cases

Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 666 (Tex. App.—Waco 2002, no pet.) .................... xxii

Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989) ...................................................................... xvi

Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.—Houston [14th Dist.] 2000, pet.

denied) (op. on reh'g) .............................................................................................................. xvii

Dunnings v. Castro, 881 S.W.2d 559, 563 (Tex. App.—Houston [1st Dist.] 1994, writ denied) . xx

El Dorado Motors, Inc. v. Koch, 168 S.W.3d 360, 366 (Tex. App.—Dallas 2005, no pet.) ........ xvi

Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396, 32 Tex. Sup. Ct. J. 217 (Tex. 1989). ... xiv

Labaj v. VanHouten, 322 S.W.3d 416, 420 (Tex. App.—Amarillo 2010, no pet.) ........................ xx

Lewis v. Great Southwestern Corporation, 473 S.W.2d 228, 230 (Tex.Civ.App.—Fort Worth 1971,

writ ref’d n.r.e.) ........................................................................................................................ xix

LSR Joint Venture No. 2 v. Callewart, 837 S.W.2d 693, 698 (Tex. App.-Dallas 1992, writ denied)

(op. on reh'g). ........................................................................................................................... xiv

Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974) ......................................................................... xix

Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied) ........ xv

Muela v. Gomez, 343 S.W.3d 491, 496 (Tex. App.—El Paso 2011, no pet.) ................................ xx

Robinson v. Warner-Lambert Co., 998 S.W.2d 407, 410 (Tex. App.--Waco 1999, no pet.) ........ xiv

Rodriguez v. Haddock, 2003 WL 1784923 at *2 (Tex.App.—Fort Worth, April 3, 2003, no pet.)

.................................................................................................................................................. xix

Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex. App.--Waco 2000, pet. denied) ...... xiv

Sasser v. Dantex Oil & Gas, Inc., 906 S.W.2d 599, 602 (Tex. App.--San Antonio 1995, writ denied)

iv .................................................................................................................................................. xiv

Stein v. Reger, 2016 Tex. App. LEXIS 5961, 2016 WL 3162589 (Tex. App.—Houston [1st Dist.]

2016) ........................................................................................................................................ xix

Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997) ................................................ xvi

Yzaguirre v. KCS Res., Inc., 47 S.W.3d 532, 543 (Tex. App.-Dallas 2000), aff'd, 53 S.W.3d 368, 44

Tex. Sup. Ct. J. 973, 44 Tex. Sup. Ct. J. 1122 (Tex. 2001) ...................................................... xiv

Statutes

TEX. R. APP. P. 44.1(a)(1)........................................................................................................... xiv

TEX. R. EVID. 801(d) ................................................................................................................... xvii

TEX. R. EVID. 803(21) ................................................................................................................. xvii

v STATEMENT OF THE CASE

The Appellant, KAREN LINDSEY SMITH (“Smith”), Plaintiff below, filed

this negligence action on March 30, 2016 for damages caused when she was bitten

by a dog owned by the Appellee, TERRY P. PROVINCE (“Province”), Defendant

below.

Province filed a Second Amended Motion for Summary Judgment (the

“Motion”) on or about October 5, 2017. (CR 243-275). In the Motion, Province

contended that he was not liable for damages caused by his dog. Smith responded

to the Motion (the “Response”) on or about November 7, 2017. (CR 282-374).

Province filed a reply to the Motion on or about November 10, 2017. (CR 375-385).

Judge Robert Ramirez of County Court No. 2 of Denton County, Texas (the

“Trial Court”) heard the Motion. Judge Ramirez granted the Motion on November

13, 2017. (CR 386). Judge Ramirez also sustained Province’s objections to certain

summary judgment evidence offered by Smith in her response. (CR 387-388).

vi STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

vii ISSUES PRESENTED

Issue 1 – Whether the Trial Court erred when it struck evidence by Smith regarding

the well-known tendencies of the breeds (in part German Shepherd Dog and Boxer)

making up the Attack Dog.

Issue 2 – Whether the Trial Court erred when it granted summary judgment to

Province, despite the fact that Smith offered competent summary judgment evidence

(some of which Province did not oppose) indicating (a) the aggressive tendencies of

the breeds (in part German Shepherd Dog and Boxer) making up the Attack Dog, (b)

that Province permitted a hole to exist in his gate, at the main point of ingress and

egress to his property, (c) that Province knew the Attack Dog could stick its head

through the hole, and potentially could bite anyone (including a licensee such as

Smith) who came to the gate, and (d) Smith was seriously injured when the Attack

Dog in fact stuck its head through the hole, and bit her in the neck.

viii STATEMENT OF FACTS

1. This lawsuit involves a vicious attack (the “Attack”) by one of

Province’s dogs upon Smith. (C.R. 7-39; Plaintiff’s Original Petition). On January

4, 2016, Smith was working for United Parcel Service (“U.P.S.”). Id. Smith was a

temporary, holiday season employee for U.P.S., but was working with an

experienced driver. Id.

2. Smith and her co-worker were dispatched to Province's home in Ponder

to deliver a package. (C.R. 7-39; Plaintiff’s Original Petition). Smith's co-worker

warned Smith that Province kept dogs on his property. Id. To avoid any interaction

with Province's dogs, Province's wife claims “before the incident at issue, [she] told

delivery persons to put packages on the ground outside the gate/fence, and not

attempt to put them over the fence.” (C.R. 246, 274). In the Motion (but not in the

Original Motion), Province claims this instruction was given not because of the dogs’

violent tendencies, but instead because “[Province and his wife] do not like strangers

coming onto [their] property. [Province and his wife] also fear that someone opening

the gate and entering [their] property might not close and secure the gate properly

when leaving the property, thereby making it possible for [their] dogs to escape

[their] property.” (C.R. 260, 274).

3. After driving to Province's home, Smith exited the U.P.S. truck. (C.R.

285). Smith saw two dogs on Province's property, but did not see a third dog. Id. ix Smith set the package outside the gate, as she was instructed by her U.P.S. co-worker.

Id. Smith does not specifically recall whether she laid the package on the ground,

leaned the package against the gate post, or gently tossed the package to the ground.

Id.

4. While Smith was leaving the package outside the gate, a third dog (the

“Attack Dog”) approached. (C.R. 285). Without any warning, the Attack Dog stuck

its head through an opening in the gate, and bit Smith in the neck. Id. No one knows

precisely why the Attack Dog acted this way, but Smith (who was the only person in

direct proximity with the Attack Dog) has testified “the [Attack Dog] obviously

wanted the package or wanted some type of toy or something. It was a little bit

aggressive more than the norm. So it made a point of coming through the fence

more than like a worst-case scenario.” Id.

5. Unfortunately, the Attack was both foreseeable and preventable. The

Attack Dog is a large dog, weighing approximately 100 pounds. The Attack Dog is

a mixed breed dog, comprised primarily of German Shepherd Dog and Boxer. (C.R.

299-304; see DNA Analysis, a copy of which is attached as Exhibit A to the

Response). Statistically, these dogs are extraordinarily dangerous. (C.R. 306-307;

see 14 Dog Breeds Blacklisted by Insurance Companies [Psychology Today, May

27, 2014], a copy of which is attached as Exhibit B to the Response). In fact,

according to Forbes and Dog’s World, the German Shepherd Dog is the fourth most

x dangerous breed, and the Boxer is the eighth most dangerous breed. (C.R. 308-322;

see Exhibits C and D to the Response). This does not mean that a particular dog of

these breeds may be vicious; it does mean, however, that these breeds present a

heightened risk, requiring greater care.

6. At very little time or expense, Province could have protected Smith

from the Attack Dog, but chose not to do so. Province has a wire fence around his

property, with a gate at the primary point of ingress/egress. (C.R. 358-359; see T.

Province Depo [excerpts of which are attached as Exhibit F to the Response] at p.

33, l. 17 to p. 34, l. 8). There are gaps in the gate. Id. Province knew there were

openings in the gate “large enough for a dog that felt threatened, like [the Attack

Dog], to stick its nose through.” Id.

7. Province and his wife have several dogs, some of which are “outside”

dogs. In order to keep the smaller dogs on Defendant’s property, he installed chicken

wire over lower gaps in the gate. (C.R. 353-354; see T. Province Depo [excerpts of

which are attached as Exhibit F to the Response] at p. 28, l. 21 to p. 29, l. 8).

However, he did not cover the entire gate with chicken wire because “that’s just how

much wire [he] had at the time." Id. Had he done so, the Attack Dog would not

have been able to stick his snout through the gate, and would not have been able to

bite Smith.

xi 8. Province's indifference to the public's safety is clearly shown by his

actions following the Attack. During his deposition, Smith's counsel asked Province

what repairs, if any, he made to the gate after the Attack:

Q. Sir, since the time of the [Attack], have you made any changes to the gate?

A. No.

Q. You haven't put chicken wire all the way up?

A. No.

Q. So if someone came to the gate and dropped a package again, this same thing, [the Attack Dog] could bite that person again?

A. I – I have no expectation that that would happen at all.

Q. But it would be possible.

A. It would be, in my opinion, monumentally improbable, but not impossible.

(C.R. 368; see T. Province Depo [excerpts of which are attached as Exhibit F to the

Response] at p. 43, ll. 1-14).

xii SUMMARY OF ARGUMENT

Issue 1 – Smith respectfully submits that this Court should reverse and remand

because the Trial Court erred when it struck evidence by Smith regarding the well-

known tendencies of the breeds (in part German Shepherd Dog and Boxer)

comprising the Attack Dog.

Issue 2 – Smith respectfully submits that this Court should reverse and remand

because the Trial Court erred when it granted summary judgment to Province,

despite the fact that Smith offered competent summary judgment evidence (some of

which Province did not oppose) indicating (a) the aggressive tendencies of the breeds

(in part German Shepherd Dog and Boxer) comprising the Attack Dog, (b) that

Province permitted a hole to exist in his gate, at the main point of ingress and egress

to his property, (c) that Province knew the Attack Dog could stick its head through

the hole, and potentially could bite anyone (including a licensee such as Smith) who

came to the gate, and (d) Smith was seriously injured when the Attack Dog in fact

stuck its head through the hole, and bit her in the neck.

xiii STANDARD OF REVIEW

Issue 1 – This Court reviews a trial court's decision on the admission

of evidence under an abuse of discretion standard. Yzaguirre v. KCS Res., Inc., 47 S.W.3d 532, 543 (Tex. App.-Dallas 2000), aff'd, 53 S.W.3d 368, 44 Tex. Sup. Ct. J.

973, 44 Tex. Sup. Ct. J. 1122 (Tex. 2001); LSR Joint Venture No. 2 v. Callewart, 837 S.W.2d 693, 698 (Tex. App.-Dallas 1992, writ denied) (op. on reh'g). To obtain

reversal of a judgment based on the admission or exclusion of evidence, the

appellant must show the trial court's ruling was in error and the error probably caused

the rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1); Gee v. Liberty

Mut. Fire Ins. Co., 765 S.W.2d 394, 396, 32 Tex. Sup. Ct. J. 217 (Tex. 1989).

Issue 2 – This Court reviews summary judgment de novo. Rucker v. Bank One Texas,

N.A., 36 S.W.3d 649, 653 (Tex. App.--Waco 2000, pet. denied) (citing Sasser v.

Dantex Oil & Gas, Inc., 906 S.W.2d 599, 602 (Tex. App.--San Antonio 1995, writ

denied)) . This Court applies the same standard in reviewing a no-

evidence summary judgment as it would in reviewing a directed verdict. Robinson

v. Warner-Lambert Co., 998 S.W.2d 407, 410 (Tex. App.--Waco 1999, no pet.)

. This Court reviews the summary-judgment evidence in the light most favorable to

the nonmovant, disregarding all contrary evidence and inferences. Id. A no-

evidence summary judgment will be defeated if the non-movant produces more than

xiv a scintilla of probative evidence to raise a genuine issue of material fact on the

elements challenged by the movant. Moore v. K Mart Corp., 981 S.W.2d 266, 269

(Tex. App.--San Antonio 1998, pet. denied) .

xv ARGUMENT

I. This Court should reverse and remand because the Trial Court erred when it struck evidence offered by Smith regarding the well-known tendencies of the breeds (German Shepherd Dog and Boxer) making up the Attack Dog.

1. One of the primary issues in this lawsuit is whether the Attack Dog had

vicious tendencies prior to the Attack. In order to demonstrate the Attack Dog’s

“peacefulness,” Province offered (a) a picture of the Attack Dog lying next to a cat

and (b) affidavits of Province and his wife stating “[the Attack Dog] has no vicious

tendencies and had never bitten anyone before the incident at issue.” (CR 259-260,

274-275; see Affidavit of Terry Province [Motion at Exh. A] [emphasis added] and

Affidavit of Renee Province [Motion at Exh. D] [emphasis added]).

2. Plaintiff objected to the Affidavits of Terry Province and Renee

Province on the grounds they are self-serving and conclusory. (C.R. 288-289).

Under Texas law, a self-serving affidavit (i.e. an affidavit offered by a person with

an interest in the outcome of the lawsuit) can be admissible summary judgment

evidence, but must contain statements that may be confirmed or denied by

independent evidence. Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.

1997); Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989)Similarly, conclusory

statements in affidavits are not proper summary judgment evidence if there are no

facts to support the conclusions. El Dorado Motors, Inc. v. Koch, 168 S.W.3d 360, 366 (Tex. App.—Dallas 2005, no pet.) ; Dolcefino v. Randolph, 19 S.W.3d 906, 930

1 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (op. on reh'g).

3. In order to refute Province’s unsupported (and self-serving) contention

that he was unaware of any “vicious tendencies” the Attack Dog might have, Smith

offered internet articles regarding the well-known tendencies of German Shepherd

Dogs and Boxers. (C.R. 305-322; Response at Exhs. B, C, and D). Province

objected to these articles, claiming they were hearsay. (C.R. 375-384). The Trial

Court sustained these objections, and struck Exhibits B, C, and D from the Response.

(C.R. 387-388).

4. Under Texas law, an out-of-court statement constitutes hearsay if it is

used to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Exhibits B, C,

and D are not hearsay for the simple reason that they are not offered to prove that

German Shepherd Dogs and Boxers in fact are hyper-aggressive breeds. Instead,

these Exhibits are offered to demonstrate that it is common knowledge that members

of these breeds may have aggressive traits. In this way, Exhibits B, C, and D speak

to the breeds’ “reputation.” “Reputation” is an exception to the general rule

regarding hearsay. TEX. R. EVID. 803(21).

5. German Shepherd Dogs’ and Boxers’ “reputation” for aggressiveness

is relevant to Smith’s negligence claims in this lawsuit. Smith has called into

question whether Province acted as a reasonable and responsible property owner

when he intentionally left large holes in the gate to his property – holes large enough

2 that the Attack Dog could stick her head through them. If the Attack Dog had been

a teacup poodle, Province could argue persuasively that such breed’s reputation for

aggressiveness (i.e. none) negated the need for any special care to protect invitees.

The converse of such an argument is equally true; if the Attack Dog’s breeds had a

reputation for aggressiveness, Province should have taken that reputation into

account in deciding how to maintain his gate. In that Exhibits B, C, and D were

offered to show the common belief that German Shepherd Dogs and Boxers may be

aggressive breeds, and not to actually prove the truth of such beliefs, these Exhibits

should not have been stricken from the summary judgment record.

6. However, even if this Court were to sustain the Trial Court’s evidentiary

ruling, the summary judgment record still contains evidence of the Attack Dog's

aggressiveness. For example, the DNA report (to which Province did not object)

states "[t]here have been reported incidents of German Shepherd Dogs being

aggressive with other pets or people." (C.R. 301; Response at Exh. A). Likewise,

the DNA report states that Boxers have a "[t]endency to jump up on people . . . ."

(C.R. 302; Response at Exh. A). The DNA report (which was produced by Province

in the course of discovery) is dated April 11, 2011 – before the Attack. Id. As such,

the DNA report confirms not simply that a German Shepherd Dog/Boxer mix has

well-known aggressive tendencies, but that Province himself was aware of such

tendencies before the Attack.

3 Issue 2 – This Court should reverse and remand because the Trial Court erred when it granted summary judgment to Province, despite the fact that Smith offered competent summary judgment evidence (some of which Province did not oppose) indicating (a) the aggressive tendencies of the breeds (in part German Shepherd Dog and Boxer) comprising the Attack Dog, (b) that Province permitted a hole to exist in his gate, at the main point of ingress and egress to his property, (c) that Province knew the Attack Dog could stick its head through the hole, and potentially could bite anyone (including a licensee such as Smith) who came to the gate, and (d) Smith was seriously injured when the Attack Dog in fact stuck its head through the hole, and bit her in the neck.

7. Texas adheres to the so-called “one bite” rule with respect to dog bites.

Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974). This name is misleading. A dog

owner is not free of liability the first time his or her dog attacks a person. Instead,

as the court noted in Lewis v. Great Southwestern Corporation, 473 S.W.2d 228, 230

(Tex.Civ.App.—Fort Worth 1971, writ ref’d n.r.e.) (emphasis added), “the owner of

the dog is not liable for injuries caused by it, unless it is vicious and knowledge or

constructive knowledge of that fact is shown or brought home to the owner.” In other

words, if a man knows or should know that his best friend has vicious tendencies,

that man cannot escape liability simply because his dog has not yet hurt someone.

See Rodriguez v. Haddock, 2003 WL 1784923 at *2 (Tex.App.—Fort Worth, April

3, 2003, no pet.) (emphasis added).

8. As recently recognized in Stein v. Reger, 2016 Tex. App. LEXIS 5961,

2016 WL 3162589 (Tex. App.—Houston [1st Dist.] 2016), a dog’s breed can have a

direct impact on whether a homeowner is liable for an attack. In Stein, as in this 4 case, the plaintiff was a U.P.S. worker who was attacked by a German Shepherd.

Although the defendants kept the German Shepherd in a fenced area, the dog jumped

the fence and attacked the plaintiff. The defendants filed a Motion for Summary

Judgment, including affidavits stating that the dog never had bitten anyone before,

and had not previously attempted to jump the fence. Based in part on the defendants’

statements that they “could never have anticipated that [the dog] may have been able

to jump the fence,” the court granted the defendants’ traditional and no-evidence

Motion for Summary Judgment.

9. Even if a dog is not vicious, its owner may be liable for injuries the dog

causes “if the plaintiff can prove the owner’s negligent handling or keeping of the

animal caused the injury.” Labaj v. VanHouten, 322 S.W.3d 416, 420 (Tex. App.—

Amarillo 2010, no pet.); see Dunnings v. Castro, 881 S.W.2d 559, 563 (Tex. App.—

Houston [1st Dist.] 1994, writ denied) (“an owner of a dog may be liable for injuries

caused by the dog even if the animal is not vicious, if the plaintiff can prove that the

owner's negligent handling of the animal caused the animal to injure the plaintiff”).

“Unlike strict liability claims, to prevail in a negligence action the plaintiff does not

have to prove that the animal was vicious or dangerous.” Muela v. Gomez, 343 S.W.3d 491, 496 (Tex. App.—El Paso 2011, no pet.); see Dunnings, 881 S.W.2d at 562 (although finding of viciousness is necessary in strict-liability claim, it is not

necessary in negligence claim). To sustain such a claim, the victim of the dog bite

5 must show: "(1) the defendant was the owner or possessor of the animal; (2) the

defendant owed a duty to exercise reasonable care to prevent the animal from

injuring others; (3) the defendant breached that duty; and (4) the defendant's breach

proximately caused the plaintiff's injury." Labaj, 322 S.W.3d at 420-21.

10. Although the Stein court found the defendant did not breach a duty to

the plaintiff, its decision is instructive in this lawsuit. "The threshold inquiry in a

negligence case is duty." Muela, 343 S.W.3d at 497. “The status of the plaintiff who

was injured on the defendant's premises determines the scope of the defendant's

duty.” Labaj, 322 S.W.3d at 421. “A mailman, like Stein, is an invitee and, thus,

the Regers had a duty to ‘exercise ordinary care to keep [their] premises in a

reasonably safe condition.’” Id.; see Dunnings, 881 S.W.2d at 563 (holding

mailman is invitee in dog-bite negligence case).

11. The extent of the duty of “ordinary care” depends to a certain degree

“on proof of whether the risk of injury from a dog bite is foreseeable, i.e., the dog

owner's actual or constructive knowledge of the danger presented by his

dog.” Labaj, 322 S.W.3d at 421 (emphasis added). To establish that a defendant

breached its duty, the plaintiff “must present evidence showing [the defendant] did

not act as a ‘reasonable prudent person’ would have acted in the same or similar

circumstances in handling the dog”:

[The plaintiff] did not proffer evidence that the [defendants] breached any duty to [the plaintiff] by failing 6 to secure [the dog]. [The plaintiff] did not identify any evidence that the [defendants] did not use ‘ordinary care’ in securing [their dog] behind an iron-wrought fence. In response to the motions, [the plaintiff] did not present any evidence concerning the height of the fence, [the dog’s] size, the typical height a German Shepherd can jump, or that [the dog] had previously jumped the fence. In his brief, he makes one, conclusory statement regarding breach: that the [defendants] breached their duty by failing ‘to ensure that [their dog], a large German shepherd, was properly secured in her enclosure.’ This conclusory statement does not analyze how the [defendants] breached their duty or how the [defendants] should have secured [their dog] beyond doing what they had already done, that is, securing her in a fenced area. Stein, 2016 Tex. App. LEXIS 5961 at p. 11 (emphasis added), citing Allen ex rel.

B.A. v. Albin, 97 S.W.3d 655, 666 (Tex. App.—Waco 2002, no pet.).

12. Unlike the plaintiff in Stein, Smith has offered summary judgment

evidence regarding the well-known characteristics of the dog in question. The

Attack Dog is a mixed breed dog comprised primarily of German Shepherd Dog and

Boxer. (C.R. 300-304; see DNA Analysis [Response Exh. A]). These breeds are

commonly known to be aggressive and territorial. In Forbes Magazine, German

Shepherds Dogs are ranked as the fourth most-dangerous breed, and are described

as “a powerful dog that is loyal when well-trained but can be fierce.” (C.R. 306;

Response Exh. B). Boxers likewise made the list at Number 8, and are described in

Dogs World as “Boxers are hunting dogs and they have been used as attack and

guard dogs ever since being bred! They have a powerful jaw and bite – which is

7 perfect for protection!” (C.R. 307; Response Exh. B) (emphasis added). These

statements certainly are not meant to suggest that all German Shepherds Dogs and

Boxers are vicious.1 However, a responsible pet owner cannot ignore these in-bred

traits when determining how to protect invitees such as Smith from these animals.

13. With the Attack Dog’s inbred characteristics in mind, a fact issue exists

regarding whether Province’s negligent maintenance of his gate was a cause of the

Attack. The gate to Province's property has large openings through which the Attack

Dog could place its head. (C.R. 358-359; T. Province Depo [Response Exh. F] at p.

33, l. 17 to p. 34, l. 8). Province was aware of these openings. Id. Province could

have covered these openings with chicken wire – which he did for certain openings

– but did not cover all openings for the simple fact that he ran out of wire. (C.R.

353-354; T. Province Depo [Response Exh. F] at p. 28, l. 21 to p. 29, l. 8). This

allowed the Attack Dog to poke his head outside the fence, and bite Smith. Province

should not be permitted to excuse his carelessness on the so-called “one bite rule,”

when he knew or should have known the Attack Dog might do exactly what it was

bred to do, and he gave the Attack Dog the ability to do so (by knowingly leaving an

open gap in the gate).

1 In the interest of candor, the undersigned counsel states that he personally owns a German Shepherd and a Pit Bull mix (the most “dangerous” breed on all three attached lists). The undersigned counsel’s dogs are well-trained and well-behaved. That said, the undersigned counsel certainly would not leave a hole in his fence such that the dogs could bite at passers-by. These dogs are simply too powerful, territorial, and loyal for their owner to take that kind of a chance with someone else’s life.

8 14. In addition to his traditional Motion for Summary Judgment, Province

sought a no-evidence summary judgment. (CR 255-257). The evidence attached to

Smith's Response (including excerpts from Province's deposition transcript)

establishes that Province owed a duty to protect Smith (as an invitee) from the Attack

Dog’s dangerous and in-bred (i.e. foreseeable) tendencies. This evidence also

establishes that Province breached this duty by failing to cover known openings in

the gate when he easily could have done so. Finally, this evidence establishes that

Province's breach of his duty was a proximate cause of Smith's injuries. Therefore,

for the same reasons that the trial should have denied the traditional Motion for

Summary Judgment, it likewise should have denied the no-evidence Motion for

Summary Judgment.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant KAREN LINDSEY

SMITH prays that this Court sustain both issues raised herein, reverse the Trial

Court’s summary judgment, and remand this case for trial. Appellant further prays

for such other and further relief to which she is justly entitled.

Respectfully submitted,

/s/ Mark D. Johnson PAUL FLANNIGAN State Bar No. 24012633

9 [email protected] MARK D. JOHNSON State Bar No. 10770175 [email protected]

FLANNIGAN & JOHNSON, P.L.L.C. 5600 Tennyson Parkway, Suite 330 Plano, Texas 75024 Phone: (972) 383-9377 Fax: (844) 287-8882

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF COMPLIANCE I certify that the word count function on Microsoft Word indicates that this brief contains

4807 words. TEX. R. APP. P. 9.4(I)(3).

/s/ Mark D. Johnson

10 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served upon the following party via the means indicated on March 23, 2018:

Via E-mail and E-Service J. Brantley Saunders [email protected] Abigail K. Christmann [email protected]

/s/ Mark D. Johnson Mark D. Johnson

11 APPENDIX FILE FOR RECORD DENTON couuw CLERK

NOV 1 3 2017

JULI LUKE Cause No. CV-2016-00729 __Mn_DEPUTY

KAREN LINDSEY SMITH, § IN THE COUNTY COURT Plaintiff, § § v. § NO. 2 § TERRY P. PROVINCE § Defendant. § DENTON COUNTY, TEXAS

ORDER GRANTING DEFENDANT TERRY PROVINCE’S SECOND AMENDED MOTION FOR SUMMARY JUDGMENT

CAME TO BE HEARD, Defendant Terry Province’s Second Amended Motion for

Summary Judgment in the above captioned matter. After reviewing the Motion, the

Response, the Reply, the competent summary judgment evidence, and the Court’s ﬁle, the

Court ﬁnds that the Motion should be Granted.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Defendant

Terry Province’s Second Amended Motion for Summary Judgment is GRANTED. All

claims made by Plaintiff against Terry Province are hereby dismissed with prejudice. Court

costs of Terry Province are to be borne by Plaintiff, for which let execution issue.

SIGNED THIS 1 l DAY OF [Z Zl/(wh 2017.

/ JWGéKESIDING

ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 1

Page 386 FILE FOR RECORD DENTON counw CLERK

NOV 1 3 2017 JULl LUKE Cause No. CV-2016-00729 m’ DEPUTY

KAREN LINDSEY SMITH, § IN THE COUNTY COURT Plaintiff, § § v. § NO. 2 § TERRY P. PROVINCE § Defendant. § DENTON COUNTY, TEXAS

ORDER ON DEFENDANT TERRY PROVINCE’S OBJECTIONS TO PLAINTIFF ’S SUMMARY JUDGMENT EVIDENCE

CAME ON TO BE CONSIDERED, Defendant Terrjy Province ’s Objections

to Plaintiff’s Summary Judgment Evidence. After reviewing the Objections and the

evidence, the parties’ pleadings, and hearing the argument of counsel, it is the

Opinion of the Court that the Objections should be sustained, and the same hereby is

GRANTED as indicated below. The Court rules on Defendant’s objections to

Exhibit B, Exhibit C and Exhibit D Of Plaintiff’s Response to Defendant’s Second

Amended Motion for Summary Judgment as follows:

Objection NO. 1: Defendant Objects to the use Of Exhibit B, in its entirety, it is

inadmissible hearsay pursuyttJ/Texas Rule of Civil Procedure 802.

Granted Denied

The Court hereby strikes Exhibit B, in its entirety, from the record.

ORDER ON DEFENDANT’S OBJECTlONS TO SUMMARY JUDGMENT EVIDENCE Page 1

Page 387 Objection No. 2: Defendant objects to the use of Exhibit C, in its entirety, it is

inadmissible hearsay pursuant to Texas Rule of Civil Procedure 802.

Granted Denied

The Court hereby strikes Exhibit C, in its entirety, from the record.

Objection No. 3: Defendant objects to the use of Exhibit D, in its entirety, it is

inadmissible hearsay pursuant to exas Rule of Civil Procedure 802.

Granted Denied

The Court hereby strikes Exhibit D, in its entirety, from the record.

JUDyy/FKKESIDING

ORDER ON DEFENDANT’S OBJECTIONS TO SUMMARY JUDGMENT EVIDENCE Page 2

Page 388 Filed: Filed: 10/5/2017 10/5/2017 4:58 PM Juli Luke Denton County, County, County Clerk By: By: Sandra Erp, Deputy

Cause No. CV-2016-00729

KAREN LINDSEY SMITH, §§ IN THE COUNTY COURT Plaintiff, §§ §§ v. V. §§ NO. 2 §§ TERRY P. PROVINCE §§ Defendant. §§ DENTON COUNTY, TEXAS

DEFENDANT’S DEF ENDANT’S SECOND AMENDED MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT: COURT:

COMES NOW Defendant, Terry Province (hereinafter (hereinafter “the “the Defendant”), and and makes, makes,

files ﬁles and serves this Defendant’s Second Amended Motion for Summary Judgment pursuant to

Texas Rule of Civil CiVil Procedure Rule 166a, 166a, and in support thereof would respectfully show this

Honorable Court the following: following:

I. FACTUAL BACKGROUND

This is an an unfortunate dog bite case case involving the Province’s family dog, dog, Heidi; aa dog

that had no prior instances of biting or attacking anyone and, and, at the time of the incident, was

inside inside Defendant’s Defendant’s yard, yard, aa place place she she had had aa right right to to be. be. Plaintiff has alleged that Defendant was

negligent when Plaintiff was allegedly bitten by by Heidi as as she placed a a UPS package at the rural

property, on or about January 4, & 4, 2016. See Plaintiff’s Plaintz‘fj‘"s Original Original Petition, pages 5-6. Petition, pages

A A dog dog owner owner is is not not negligent negligent for for allowing allowing their their dog dog to to run run at at large large on on the the owner’s owner’s own own

property. Bushnell v. property. v. Mott, 254 S.W.3d 451, 452 (Tex. 2008); Searcy v. v. Brown, 607 S.W.2d 937, 937,

940-41 940-41 (Tex. Civ. CiV. App.–Houston Apprﬂouston [1st [lst Dist.] Dist] 1980, 1980, no writ). The owner of aa dog is is not liable for

injuries caused caused by by it in aa place it has has the right to be, be, unless the owner knew or should have

known that the dog had vicious Vicious propensities or aa Vicious vicious or unruly nature. Rodriguez v. v. Haddock,

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 11

Page 243 2003 WL 1784923 1784923 at *2 Apeort Worth, April 3, *2 (Tex. App.–Fort 3, 2003, no pet); pet.); Lewis v. v. Great S.W. SW.

Corp., 473 S.W.2d 228, 230 (Tex. Civ. Corp, 473 Apeort Worth CiV. App.–Fort Worth 1971, 1971, writ writ ref’d ref’d n.r.e.). n.r.e.).

This This is is Heidi Heidi (pictured (pictured next next to to Defendant’s Defendant’s cat): cat):

mwmw

Heidi is aa black, seven-year-old, seven—year—old, 100 100 pound, mixed breed dog that Defendant acquired as as

aa puppy puppy and has has owned the entire time since.E since. See ExhibitA – Affidavit of Exhibit A iAﬁﬁdavit of Terry Province; Exhibit , D – Aﬁdavit Affidavit of of the incident, Heidi was Renee Province. At the time of of Renee was approximately six years years

E old and had lived with Defendant on the property since he got her. See id. Heidi had never bitten

anyone, anyone, including the various delivery people that delivered packages to the property, before the

E incident at issue. See id. id. In fact, Heidi is normally a well-behaved dog with no Vicious a well—behaved vicious

E tendencies. See id. Defendant currently owns five ﬁve dogs, of which, including Heidi, are dogs, three of

E mostly outdoors. See id. Defendant’s Defendant’s dogs dogs bark whenever someone bark Whenever passes by the yard someone passes yard or

approaches the gate. E approaches the gate. See id.

Importantly, at all times relevant to the incident, Heidi was contained within Importantly, Within the fence

& , and on property. See Exhibit A – Aﬁdavir Affidavit of of Terry Province. Heidi had no vicious Vicious tendencies

and Defendant had no reason to know that she posed aa danger to anyone she posed anyone on the other side of of the

fence or gate.& gate. See id.

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY JUDGMENT SUMMARY JUDGMENT PAGE 2

Page 244 It is undisputed that on January 4, 4, 2016, Plaintiff was working as as a a temporary, holiday

season season employee employee of of United United Parcel Parcel Service Service (“UPS”) (“UPS”) and and was was dispatched dispatched to to Defendant’s Defendant’s home home in in

Ponder to deliver aa package. & package. See Plaintiff’s Plaintz‘fj‘"s Original Original Petition, Petition, page 3, 3, para. 9. 9. While traveling to

Defendant’s Defendant’s property, property, aa fellow UPS employee advised Plaintiff that Defendant kept one or more

dogs dogs on on his his property property and and instructed instructed Plaintiff Plaintiff to to leave leave the package by the package by Defendant’s Defendant’s front front gate. gate. See E Plaintiff’s Plaintz‘fj‘"s Original Petition, page 3, Original Petition, 3, para. 10. 10.

Plaintiff admits that, upon arriving at at Defendant’s property, she Defendant’s property, she could could see see one one or or more more

dogs dogs on on their their feet behind Defendant’s feet behind Defendant’s fence fence and and gate gate as as she she approached approached the the gate gate on on foot foot to to

& deliver the package. See Plaintiff’s Responses to Plaintz‘fj‘"s Responses Defendant’s’5 Requests to Defendant for Admission, Requests fbr Admission, Nos. 11 and

2. Plaintiff says says that, at first ﬁrst she she noticed two dogs close behind the gate, gate, later becoming aware of

E aa third. See Exhibit B –7 Plaintiff’s Plaintiff’s Depo Depo Excerpts, Excerpts, 48:11-49:10. 48:11-49:10. The third dog that Plaintiff

& claims appeared later was black, and is the one that allegedly bit her. See Exhibit B –7 Plaintiff’s Plaints’s

147:3-11. Plaintiff agrees that she Depo Excerpts, 147:3-11. she didn’t didn’t look look specifically speciﬁcally at at the the gate gate to to

Defendant’s Defendant’s property, property, and and wasn’t wasn’t paying paying close enough attention to the gate to notice that it had

metal slats with openings in it wide Wide enough for aa dog to stick its nose through or that the dogs

& – Plaintz‘fj‘"s were close to the gate. See Exhibit B 7 Plaintiff’s Depo Depo Excerpts, Excerpts, 126:4-127:11. 126:4-127:1 1.

The gate to Defendant’s Defendant’s property is recessed approximately aa foot behind the fence line

on the property. & A –7 Afﬁdavit property. See Exhibit A of Terry Province; Exhibit C 7– Affidavit of Affidavit of of Eric

& – Survey. The fence itself is at or behind the actual property line. See id. Zollinger; Exhibit C-1 7

Photographs Photographs attached attached to to Defendant’s Defendant’s affidavit affidavit as as Exhibit A-2, accurately depicts the fence and

& – Affidavit of gate. See Exhibit A 7 gate. of Terry Province; Exhibit A-2 –7 Photograph of Defendant’s ofDefendant’s

Property.

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 33

Page 245 Defendant’s Defendant’s wife Wife told told delivery delivery people, including UPS, UPS, to leave packages outside the gate.

& See Exhibit D 7– Afﬁdavit Affidavit of of Renee Province. Defendant and his wife generally do not like Renee and his do

strangers coming onto their property. strangers E Exhibit A –7 Affidavit ofof Terry Province; Exhibit D –7 property. See A

Affidavit of Afﬁdavit Renee Province. Additionally, Defendant and his wife fear that someone opening the ofRenee

gate and entering the property might not close and secure the gate properly when leaving,

& thereby making it possible for their dogs to escape their property. See id. None of Defendant’s Defendant’s

dogs has has ever attacked, chewed, or in any any way damaged aa package or piece of mail left at their

E property. See id. The package that Plaintiff delivered on the date of the incident contained printer property.

E – Afﬁdavit ink. See Exhibit D 7 ink. Affidavit of Renee Province. ofRenee Province.

II. SUMMARY OF ARGUMENT

Defendant is entitled to summary judgment on Plaintiff’s claims for negligence because:

1. 1. Heidi was within her fenced in yard, yard, aa place she had aa right to be. be. She had no

dangerous tendencies and, and, therefore, Defendant was certainly not aware of

dangerous propensities or vicious Vicious tendencies. Because Heidi biting Plaintiff was

not foreseeable, foreseeable, Defendant cannot be liable. Defendant’s be liable. Defendant’s summary judgment summary judgment

evidence affirmatively afﬁrmatively disproves that Defendant owed or breached any duty

allegedly owed to Plaintiff or that Defendant was the proximate cause of

Plaintiff’s Plaintiff’ s injuries. injuries. Defendant acted as as a a reasonable prudent person under the

circumstances and, and, therefore, is not liable to Plaintiff for her injuries.

Alternatively, Plaintiff cannot produce sufficient sufﬁcient evidence on these issues issues to

create aa fact issue, issue, as as no such evidence exists.

2. As “the “the existence existence of of negligent negligent conduct conduct is is aa prerequisite prerequisite to to the the establishment establishment of of

gross negligence,” Defendant cannot be be found to have been been grossly negligent

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 4

Page 246 because he did not act negligently at all. because g See In re J.H. J.H. Walker, Inc., 2016 Tex. Walker, Inc,

(AppiDallas Jan. 15, App. LEXIS 483 (App.—Dallas 15, 2016). Further, Defendant did not

consciously disregard any any extreme risk with regard to Plaintiff and, and, therefore, was

not grossly negligent.

3. 3. Plaintiff has has insufficient or no evidence to establish that Defendant knew or

should have known that Heidi had any any dangerous propensities or that the incident

was foreseeable. Therefore, Plaintiff has was has insufficient or no evidence that

Defendant owed or breached any any duty allegedly owed to Plaintiff or that

Defendant’s Defendant’s alleged alleged breach caused the damages of which Plaintiff complains.

Therefore, Therefore, Summary Summary Judgment Judgment is is requested requested as as to to all all of of Plaintiffs’ Plaintiffs’ claims. claims.

III. SUMMARY JUDGMENT EVIDENCE

In support of the Motion for Summary Judgment, Defendant relies on all pleadings and

discovery produced in this case, case, including but not limited to the following Exhibits which are

attached hereto and fully incorporated herein by this specific speciﬁc reference: reference:

Exhibit A: Affidavit Afﬁdavit ofof Terry Province A-l: Exhibit A-1: Photograph of Heidi Exhibit A-2: Photograph Photograph ofof Defendant’s Defendant’s Property Property Exhibit B: Plaintiff Plaintiff Karen Karen Lindsey Lindsey Smith’s Smith’s Deposition Deposition Excerpts Excerpts Exhibit C: Affidavit Afﬁdavit ofof Eric Zollinger C-l: Exhibit C-1: Survey Survey of of Defendant’s Defendant’s Property Property Exhibit D: Affidavit Afﬁdavit ofof Renee Province

IV. TRADITIONAL MOTION FOR SUMMARY JUDGMENT STANDARD

A A defendant defendant is is entitled entitled to to summary judgment on summary judgment on aa plaintiff’s plaintiff’s cause cause of of action action if the the

defendant defendant can can disprove disprove at at least least one one element element of of the the plaintiff’s plaintiff’s cause cause of of action action as as a a matter matter of of law. law.

Henkel v. v. Norman, 441 441 S.W.3d 249, 249, 251 251 (Tex. 2014); 2014); Boerjan Boeijan v. v. Rodriguez, 436 S.W.3d 307, 307,

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 55

Page 247 310 (Tex. 2014); Nall v. v. Plunkett, 404 S.W.3d 552, Randall’s Food 552, 555 (Tex. 2013); Randall’s Mkts, Inc. Food Mkts, Inc.

v. v. Johnson, 891 891 S.W.2d 640, 640, 644 (Tex. 1995); 1995); see see Tex. R. Civ. CiV. P. P. 166a(c). 166a(c). Once aa defendant

produces sufficient sufﬁcient evidence to establish the right to summary judgment, the burden shifts to aa

plaintiff to come forward with competent controverting evidence raising aa genuine issue of

material fact with regard to the element challenged by aa defendant. Centeq Realty, Realty, Inc. Inc. v. v. Siegler,

899 S.W.2d 195, 195, 197 197 (Tex. 1995). 1995). A defendant is entitled to summary judgment on an an

affirmative afﬁrmative defense if the defendant conclusively proves all the elements of the affirmative afﬁrmative

defense. Rhone-Poulenc, Inc. v. Rhone-Poulenc, Inc. v. Ramirez, 997 S.W.2d 217, 223 (Tex. 1999). 1999). The defendant must

present summary judgment evidence that establishes each element of the affirmative afﬁrmative defense as as a a

matter of law. Ryland Group, oflaw. Inc. v. Group, Inc. v. Hood, 924 S.W.2d 120, 120, 121 121 (Tex. 1996). 1996).

V. PLAINTIFF ’S CLAIMS TRADITIONAL MOTION FOR SUMMARY JUDGMENT FOR PLAINTIFF’S

In order to prove that Defendant was negligent, Plaintiff must prove: prove:

1. 1. Defendant was the owner or the possessor of the animal; 2. 2. Defendant owed a a duty to exercise reasonable care to prevent the animal from injuring others; 3. 3. Defendant breached that duty; duty; and 4. Defendant’s breach 4. Defendant’s breach proximately proximately caused caused Plaintiff’s Plaintiff’s injury injury Labaj v. v. VanHouten, VanHouten, 322 S.W.3d 416, 420-21 420-21 (Tex. App.–Amarillo ApprAmarillo 2010, no pet); pet.);

Thompson v. v. Curtis, 127 127 S.W.3d 446, 451 451 (Tex. App.–Dallas ApprDallas 2004, no pet); pet.); Allen ex ex rel. B.A. v. rel. BA. v.

Albin, 97 S.W.3d 655, Apeaco 2002, no pet.). 655, 660 (Tex. App.–Waco pet).

Defendant’s summary judgment evidence disproves that Defendant breached aa duty to

Plaintiff or that any any alleged breach by by Defendant was the proximate cause of Plaintiff’s injury.

And, because “the “the existence of negligent conduct is aa prerequisite to the establishment of gross

& negligence,” Plaintiff cannot establish that Defendant was grossly negligent. See In re J.H. J.H.

Walker, (AppiDallas Jan. Inc., 2016 Tex. App. LEXIS 483 (App.—Dallas Walker, Inc, 15, 2016). Defendant’s Jan. 15, Defendant’s summary summary

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 66

Page 248 judgment evidence further affirmatively afﬁrmatively disproves that Defendant consciously disregarded an

extreme risk by by leaving Heidi outside, enclosed within Within his property.

A. Heidi was on on Defendant’s Defendant’s Property Property at at the the Time Time of of the the Incident; Incident; Defendant Defendant Did Not Know that Heidi had Vicious Propensities or a Vicious or 0r Unruly Nature.

In In Texas, Texas, absent absent some some showing showing that that the the dog dog was was aa “dangerous “dangerous dog,” dog,” aa dog dog owner owner is is not not

liable for simply allowing his dogs to be contained within & Within his fenced-in yard. See Bushnell v. v.

Mott, 254 S.W.3d 451, 452 (Tex. 2008); Searcy v. v. Brown, 607 S.W.2d 937, 937, 940-41 940-41 (Tex. Civ. CiV.

App.–Houston Apprﬂouston [1st [lst Dist.] Dist] 1980, 1980, no writ). Furthermore, Furthermore, the owner of aa dog is not liable for

injuries caused by by it in aa place it has has the right to be, be, unless the owner knew or should have

known that the dog had vicious Vicious propensities or aa Vicious vicious or unruly nature. Rodriguez v. v. Haddock,

2003 WL 1784923 1784923 at *2 Apeort Worth, April 3, *2 (Tex. App.–Fort 3, 2003, no pet); pet.); Lewis v. v. Great S.W. SW.

Corp., Corp, 473 S.W.2d 228, 230 (Tex. Civ. Apeort Worth CiV. App.–Fort Worth 1971, 1971, writ writ ref’d n.r.e.). n.r.e.).

The facts and controlling case case law in this case case are clear, and reasonable minds could not

differ differ in in applying applying them, them, so so summary judgment in summary judgment in Defendant’s Defendant’s favor, favor, the the equivalent equivalent of of an an

instructed verdict at trial, is proper. At the time of the incident, Heidi was enclosed Within within aa

fence on on Defendant’s property, aa place Defendant’s property, & be. See Exhibit A 7– Afﬁdavit place she has aa right to be. Affidavit of of Terry – Afﬁdavit Province; Exhibit C 7 Affidavit of Eric Zollinger; Exhibit C-1 7– Survey. ofEric Survey. Heidi had never bitten

anyone before the incident at issue in this case, case, so so Defendant neither knew nor should have

known the dog was vicious E A 7– Afﬁdavit Vicious or unruly. See Exhibit A Affidavit of of Terry Province. In fact, Heidi was neither vicious Vicious nor unruly, but professionally-trained and normally well-behaved. & well-behaved. See id.

As As Defendant’s Defendant’s summary judgment evidence summary judgment evidence affirmatively afﬁrmatively shows, shows, Heidi was, was, at all

relevant relevant times, times, enclosed within Defendant’s enclosed within Defendant’s property, property, in in aa place place she she had had aa right right to to be. be. Heidi is is

not vicious Vicious and Defendant did not know that Heidi would bite anyone anyone as as she she had never bitten

anyone anyone in the approximately six years years he owned her prior to the incident. incident. Defendant cannot be be

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 77

Page 249 held held liable liable for for Plaintiff’s Plaintiff’s injuries under these injuries under these circumstances. circumstances. And, although Plaintiff has has not

plead premises plead premises liability, liability, Defendant’s Defendant’s lack lack of of knowledge knowledge of of any any dangerous propensities by dangerous propensities by Heidi Heidi

& also precludes liability on aa premises liability theory. theory. See Keetch v. v. Kroger Co., Ca, 845 S.W.2d 262, 264 (Tex. 1992) 1992) (elements of premises liability). Therefore, Defendant requests that this court

grant grant its its Motion Motion for for Summary Summary Judgment Judgment as as to to all all of of Plaintiff’s Plaintiff’s claims. claims.

B. Defendant Did Not Owe Any Duty to Plaintiff.

In In dog dog bite bite cases, cases, the the existence existence of of aa duty duty “depends “depends to to some some degree degree on proof of on proof of whether Whether

the the risk risk of of injury injury from from aa dog bite is dog bite is foreseeable, foreseeable, i.e., i.e., the the dog dog owner’s owner’s actual actual or or constructive constructive

knowledge knowledge of of the the danger presented by danger presented by his his dog.” dog.” Labaj, 322 S.W.3d at 421. In other words,

Defendant Defendant “should “should not not be be held held responsible responsible for for the the consequences consequences of of an an act act that that cannot cannot be be

reasonably reasonably foreseen.” Id. foreseen.” Id.

This incident, however, was not foreseeable. foreseeable. Defendant did not know that allowing his

dogs, dogs, including Heidi, to be on his property within Within an enclosed fence presented any any danger. It

was certainly not foreseeable that Heidi would attempt to bite someone on the other side of the

fence as as Defendant was not aware that Heidi had any vicious propensities or tendencies. See any Vicious E A –7 Afﬁdavit Exhibit A Affidavit of of Terry Province. Province. To the contrary, Heidi had never bitten anyone prior to

& this incident and was normally aa well-behaved dog. See id. The risk Heidi would bite someone

on the other side of the fence or gate while While secured within Defendant’s secured Within Defendant’s yard yard was was not not foreseeable foreseeable

and, and, therefore, Defendant did not owe any any duty to Plaintiff. To impose aa duty on every owner of

non-Vicious dog to tie up the aa non-vicious the dog dog on on the the owner’s owner’s own own fenced-in property or to install chicken

wire over the Whole Wire whole fence surrounding his property to protect passersby passersby is is not and should not be be

the public policy of the State State of Texas. Texas.

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 88

Page 250 C. Defendant Did Not Breach Any Duty Allegedly Owed to Plaintiff.

A dog owner only has has a a general duty to exercise reasonable care to avoid foreseeable

& injury to others. See Kehler v. AppiFort Worth 1996, v. Eudaly, 933 S.W.2d 321, 330 (Tex. App.—Fort 1996, writ

denied). Therefore, Defendant Defendant is is simply simply required required to to act act as as a a “reasonable “reasonable prudent person” would prudent person” would

“under “under same same or or similar similar circumstances circumstances regarding regarding any any reasonably reasonably foreseeable foreseeable risk.” Allen v. v. Albin,

97 S.W.3d 655, 655, 666 (Tex. App—Waco App7Waco 2002) (citing Colin v. v. Red Steel Co., Ca, 682 S.W.2d 243, 245 (Tex. 1984)). 1984)).

As has already been established, this incident was not foreseeable. foreseeable. Defendant was not

aware that allowing his dogs, dogs, including Heidi, to be on his property Within within an an enclosed fence

presented any any danger. It was certainly not foreseeable that Heidi would attempt to bite someone

on the other side of the fence or gate as as Defendant was not aware that Heidi had any any vicious Vicious

propensities or tendencies. E A 7– Afﬁdavit tendencies. See Exhibit A Affidavit of of Terry Province. Province. To the contrary, Heidi

& had never bitten anyone prior to this incident and was normally aa well-behaved dog. See id. The

risk Heidi would bite someone on the other side of the fence or gate while While secured within Within

Defendant’s yard was Defendant’s yard was not not foreseeable foreseeable and, and, therefore, therefore, Defendant Defendant did did not breach any any duty

allegedly owed to Plaintiff.

By keeping his dogs, dogs, including Heidi, enclosed Within within his property, Defendant acted as as a a

reasonably prudent person would have under the same or similar circumstances. circumstances. Because

Defendant could not have foreseen that Heidi would bite someone on the other side of the fence,

Defendant Defendant should should not be held not be held responsible responsible for for Plaintiff’s Plaintiff’s injuries injuries and, and, therefore, therefore, summary summary

is requested and proper on all of Plaintiff’s judgment is Plaintiff’s claims. claims.

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 99

Page 251 D. Defendant’s Defendant’s Actions Actions or Inactions Did Did Not Not Cause Cause Plaintiff’s Plaintiff’s Injuries. Injuries.

Proximate cause requires that two elements be be present: present: (1) (1) cause in fact, and (2) (2)

foreseeability. foreseeability. Western Invs. v. Western Invs. v. Urena, Urena, 162 162 S.W.3d 547, 547, 551 551 (Tex. 2005); [HS IHS Cedars Treatment

Ctr. Ctr. v. v. Mason, 143 143 S.W.3d 794, 794, 798 (Tex. 2004); D. D. Houston, Inc. v. Houston, Inc. v. Love, 92 S.W.3d 450, 454

(Tex. 2002). 2002). The test for cause-in-fact is Whether whether the negligent act or omission was was aa substantial

factor in bringing about injury and whether the injury would have occurred Without without the act or

omission. Del Lago Partners v. v. Smith, 307 S.W.3d 762, 762, 774 (Tex. 2010); Western Western Invs., 162 162 S.W.3d at 551; [HS IHS Cedars Treatment Ctr., 143 143 S.W.3d at 799. There is no cause-in-fact when

the the defendant’s defendant’s negligence negligence did did nothing nothing more more than than furnish furnish aa condition condition that that made made the the injury injury

possible. [HS possible. IHS Cedars Treatment Ctr., 143 143 S.W.3d at 799. To prove foreseeability, Plaintiff must

establish that aa person of ordinary intelligence should have anticipated the danger created by the

negligent act or omission. Doe v. Boys Clubs, 907 S.W.2d 472, 478 (Tex. 1995). v. Boys 1995).

Defendant was not the proximate cause of Plaintiff’s Plaintiff’s injuries. injuries. As As has been established, has been established,

Defendant could not have foreseen that anyone on the outside of the fence or gate, gate, including

Plaintiff, would have been bitten by Heidi. Defendant was not aware that Heidi had any vicious any Vicious

E A 7– Affidavit of propensities or dangerous tendencies. See Exhibit A of Terry Province. To the contrary, Heidi had never bitten anyone prior to this incident and was normally aa well-behaved

& dog. See id. Defendant could not have anticipated that leaving the dogs, dogs, including Heidi,

enclosed on his property by aa fence would have created any any danger to those on the other side of

the fence.

Defendant’s Defendant’s summary judgment evidence summary judgment evidence affirmatively afﬁrmatively disproves disproves that that Defendant was the Defendant was the

proximate cause proximate cause of of Plaintiff’s Plaintiff’s injuries. injuries. As aa result, Defendant requests that this Court grant this

Motion Motion for for Summary Summary Judgment Judgment as as to to Plaintiff’s Plaintiff’s claims claims against against Defendant. Defendant.

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 10

Page 252 E. Defendant Did Not Consciously Disregard Any Extreme Risk.

Gross negligence is an an act or omission that, when viewed Viewed objectively from the standpoint

of the actor at the time of its occurrence, involves an an extreme degree of risk, and of which the

actor has has actual, subjective awareness of the risk involved but nevertheless proceeds with With

conscious indifference to the rights, safety, safety, or welfare of others. See T & EX. C TEX. IV. P CIV. RAC. & R PRAC. EM. REM.

C ODE § 41.001(11); CODE§ 41.00101); U-Haul Int’l v. U-Haullnt’l v. Waldrip, Waldrip, 380 S.W.3d 118, 118, 137 137 (Tex. 2012); Columbia Med. Med.

Ctr. Ctr. v. v. Hogue, Hague, 271 271 S.W.3d 238, 248 (Tex. 2008); Fairﬁeld Fairfield Ins. Ins. v. v. Stephens Martin Paving, Paving, LP,

246 S.W.3d 653, 653, 657 (Tex. 2008); Coastal Transp. Transp. Co. Co. v. v. Crown Cent. Pet. Corp., Cent. Pet. Corp, 136 136 S.W.3d 227, 231 231 (Tex. 2004).

To To establish establish gross gross negligence, negligence, “the act act or or omission omission complained complained of of must must depart depart from from the the

ordinary standard of care to such an an extent that it creates an an extreme degree of risk of harming

others.” others.” Hogue, Hague, 271 271 S.W.3d at 248. An extreme degree of risk is more than aa remote possibility

of injury or even aa high probability of minor harm; it is the likelihood of serious injury to the

E plaintiff. See Mobil Oil Corp. Corp. v. v. Ellender, 968 S.W.2d 917, 921 921 (Tex. 1998). 1998). To prove that aa

defendant had actual, subjective awareness of the risk but proceeded with With conscious indifference,

the plaintiff must show the defendant knew of the risk but acted anyway. & anyway. See id. This conscious

indifference refers to the rights, safety, & safety, or welfare of others. See id.

Here, Defendant was not aware of any risk associated with With allowing his dogs, dogs, including

Heidi, Heidi, to to roam roam Defendant’s property within Defendant’s property Within an an enclosed enclosed fence. fence. As As has has been been established, established,

Defendant did not know that Heidi had any vicious propensities or tendencies. any Vicious & – tendencies. See Exhibit A 7

Affidavit of Afﬁdavit of Terry Province. To the contrary, Heidi had never bitten anyone anyone prior to this incident

& and was normally well-behaved. See id. Furthermore, Defendant did not act with With conscious

indifference indifference to to anyone’s anyone’s rights, rights, safety safety or or welfare, welfare, including including Plaintiff. Plaintiff. Defendant Defendant kept kept his dogs, dogs,

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 11 11

Page 253 & including Heidi, contained in aa fence surrounding his property. See id. Defendant did not depart

from the ordinary standard of care by keeping his pet dogs, dogs, including Heidi, enclosed in aa fence

on his property. property.

Because Defendant was unaware of any any risks involved in leaving Heidi inside his fenced-

in yard and did not act With with conscious disregard of any any alleged risk, Defendant simply could not

have anticipated that anyone, anyone, including Plaintiff, would have been been bitten by by Heidi from behind

the fence or gate. Therefore, Defendant was not grossly negligent.

Defendant’s Defendant’s summary judgment evidence summary judgment evidence affirmatively afﬁrmatively disproves disproves that that Defendant Defendant was

negligent or grossly negligent under these circumstances. circumstances. Therefore, Defendant requests the

Court Court grant grant this this Motion Motion for for Summary Summary Judgment Judgment as as to to all all of of Plaintiff’s Plaintiff’s claims claims against against Defendant. Defendant.

VI. NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT STANDARD

A court may grant aa no-evidence no-eVidence motion for summary judgment if the movant can show

that adequate time for discovery has passed passed and the non-movant has no evidence to support one

or more essential elements of its claim or defense. Tex. R. Civ. CiV. P. P. 166a(i); & 166a(i); see Boerjan v. v.

307, 310 (Tex. 2014); Fort Rodriguez, 436 S.W.3d 307, Rodriguez, Fort Brown Brown Villas Villas III Condo. Ass’n Condo. Ass ’71 v. v. Gillenwater, Gillenwater,

285 S.W.3d 879, 879, 882 (Tex. 2009). To determine Whether whether an adequate time for discovery has

passed, “courts passed, “courts consider consider the the following following nonexclusive nonexclusive factors: factors: (1) (1) the the nature nature of of the the suit, suit, (2) (2) the the

evidence necessary to controvert the motion, (3) (3) the length of time the case has been on file, ﬁle, (4) (4)

the length of time the motion has been on file, ﬁle, (5) (5) the amount of discovery that has has already taken

place, (6) place, whether the movant requested stricter deadlines for discovery, and (7) (6) Whether whether the (7) Whether

discovery deadlines in place were specific place were specific or or vague.” vague.” Cmty. Initiatives, Inc. Cmty. Initiatives, Inc. v. v. Chase Bank, 153 153 S.W.3d 270, AppiEl Paso 270, 278 (Tex. App.—El Paso 2004, no pet); ﬂ pet.); see Mclnnis McInnis v. v. Mallia, 261 261 S.W.3d 197, 197,

th 201 Appiﬂouston [14 201 (Tex. App.—Houston [14th Dist.] Dist] 2008, no pet). pet.).

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 12

Page 254 Under Texas Rule of Civil CiVil Procedure 166a(i), 166a(i), when aa party files ﬁles aa no-evidence no-eVidence motion

for summary judgment, the burden shifts to the non-moving party to present evidence raising an an

issue of material fact as as to the elements specified speciﬁed in the motion. Mack Trucks, Inc. v. Tmcks, Inc. v. Tamez, Tamez, 206

572, 582 (Tex. S.W.3d 572, (Tex. 2006). “A no 2006). “A no evidence evidence point will be point Will be sustained sustained when when (a) (a) there there is is aa

complete lack of evidence of aa Vital vital fact, (b) (b) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove aa Vital vital fact, (c) (0) the evidence offered to

prove aa vital Vital fact is not more than aa mere scintilla, or (d) (d) the evidence conclusively establishes

the the opposite opposite of of the vital fact.” the Vital Ranch, Inc. fact.” King Ranch, Inc. v. v. Chapman, 118 118 S.W.3d 742, 751 751 (Tex. 2003).

In order to defeat this no-evidence no-eVidence motion for summary judgment, Plaintiffs must bring

forth more than aa scintilla of probative evidence to raise aa genuine issue of material fact. Tex. R.

Civ. CiV. P. P. 166a(i); 166a(i); Wal-Mart Wal—Mart Stores, Inc. v. Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 502, 506 (Tex. 2002);

see see Boerjan, Boeijan, 436 S.W.3d at 312; Forbes, Forbes, Inc. Inc. v. v. Granada Biosciences, Inc., 124 Biosciences, Inc, 124 S.W.3d 167, 167, 172 172

(Tex. (Tex. 2003). 2003). The The evidence evidence must must be be sufficient sufﬁcient to to “allow reasonable reasonable and and fair-minded fair-minded people to

differ differ in in their their conclusions” conclusions” on on whether whether the the challenged challenged fact fact exists; exists; evidence evidence that that raises raises only only aa

speculation or surmise is insufficient. Forbes, Inc, insufﬁcient. Forbes, Inc., 124 124 S.W.3d at 172. 172. If less than aa scintilla of

evidence evidence is is produced, produced, the the defendant defendant is is entitled entitled to to aa summary judgment on summary judgment on the the plaintiff’s plaintiff’ 5 cause cause of of

action.

Pursuant to Rule 166a(i) 166a(i) of the Texas Rules of Civil CiVil Procedure, Defendant would show

that this case case has has been on file ﬁle since March 30, 30, 2016, and more than an adequate time for

discovery has has passed, passed, but that Plaintiff has has failed to produce evidence on one or more of the

essential elements of her claims.

VII. NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT FOR PLAINTIFF’S CLAIMS

In order to prove that Defendant was negligent, Plaintiff must prove: prove:

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 13 13

Page 255 1. 1. Defendant was the owner or the possessor of the animal; 2. Defendant owed aa duty to exercise reasonable care to prevent the animal from injuring others; 3. 3. Defendant breached that duty; and 4. Defendant’s breach proximately Defendant’s breach proximately caused caused Plaintiff’s Plaintiff’s injury injury Labaj v. v. VanHouten, VanHouten, 322 S.W.3d 416, 420-21 420-21 (Tex. App.–Amarillo ApprAmarillo 2010, no pet); pet.);

Thompson v. v. Curtis, 127 127 S.W.3d 446, 451 451 (Tex. App.–Dallas ApprDallas 2004, no pet); pet.); Allen ex ex rel. B.A. v. rel. BA. v.

Albin, 97 97 S.W.3d 655, Apeaco 2002, no pet.). 655, 660 (Tex. App.–Waco pet).

The owner of aa dog is is not liable for injuries caused by by it in aa place it has has the right to be, be,

unless the owner knew or should have known that the dog had vicious Vicious propensities or aa vicious Vicious

or unruly nature. Rodriguez v. v. Haddock, 2003 WL 1784923 1784923 at at *2 Apeort Worth, April *2 (Tex. App.–Fort

3, 3, 2003, no pet); pet.); Lewis v. v. Great S.W. S. W. Corp., Corp, 473 S.W.2d 228, 230 (Tex. Civ. Apeort Worth CiV. App.–Fort

1971, writ ref’d 1971, writ ref’d n.r.e.). n.r.e.). Plaintiff Plaintiff has has insufficient insufﬁcient or or no no evidence evidence to to establish establish that that the the dog was in dog was in aa

place that it did not have the right to be be at the time of the accident. accident. Plaintiff has has insufficient insufﬁcient or no

evidence that Defendant knew or should have known that the dog had Vicious vicious propensities or aa

vicious or unruly nature. Vicious

Because Plaintiff cannot present sufficient evidence as as to these elements, Defendant

cannot be held liable for her injuries. injuries. Furthermore, because because Plaintiff has has no evidence that

Defendant was negligent, Defendant cannot be found to have been grossly negligent. See In re E J.H. Walker, J.H. Walker, Inc, (AppiDallas Jan. Inc., 2016 Tex. App. LEXIS 483 (App.—Dallas Jan. 15, 15, 2016). Further, Plaintiff

has has insufficient insufﬁcient or no evidence that Defendant consciously disregarded an an extreme degree of risk

with regard to the incident. And, And, although although Plaintiff Plaintiff has has not plead premises not plead premises liability, liability, Defendant’s Defendant’s

lack of knowledge of any any dangerous propensities by by Heidi also precludes liability on aa premises

liability theory. & theory. See Keetch v. v. Kroger Co., Ca, 845 S.W.2d 262, 264 (Tex. 1992) 1992) (elements of

premises liability).

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 14

Page 256 Plaintiff presents presents insufficient insufﬁcient or no evidence that Defendant owed Plaintiff any any duty,

insufficient insufﬁcient or no evidence that Defendant breached aa duty owed to the Plaintiff (if any), any), and

insufﬁcient or no evidence that Defendant’s insufficient Defendant’s actions or inactions proximately caused the

Plaintiff’s Plaintiff’ s injuries. There is therefore insufficient insufﬁcient or no evidence tending to prove the breach of

duty or proximate cause elements of Plaintiff’s Plaintiff’ s negligence and gross negligence causes causes of action.

Because Plaintiff cannot meet her burden on either of these elements, this motion must be

granted. Tex. R. Civ. CiV. P. P. 166a(i). 166a(i). On this basis, basis, Defendant requests the Court grant summary

judgment in favor of Defendant pursuant to Texas Rule of Civil CiVil Procedure 166a(i) 166a(i) as as adequate

time for discovery has passed. passed.

VIII. PRAYER

WHEREFORE, WHEREF ORE, PREMISES CONSIDERED, Defendant Terry P. P. Province

respectfully requests that this Court grant his Motion for Summary Judgment against Plaintiff’s

claims of negligence, gross negligence, and any any other cause of action. Defendant further prays prays

for all such other and further relief, both general and special, in law and in equity, including costs

and and attorney’s attorney’s fees, fees, to to which which he has has proved himself to be be justly entitled.

Respectfully submitted,

ﬂux; Mn 0\ xx \x ____________________________ c__1_L~Lqi\\._; K:- \ J. J. Brantley Brant‘lley Saunders State Bar No. 17681500 17681500 Abigail K. Christmann State Bar No. 24097523

SSAUNDERS, AUNDERS, W ALSH & B WALSH EARD BEARD Craig Ranch Professional Plaza 6850 TPC Drive, Suite 210 McKinney, Texas 75070

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 15

Page 257 (214) (214) 919-3555 Telephone (214) (214) 615-9019 Telecopier [email protected] [email protected] ATTORNEYS FOR DEFENDANT

CERTIFICATE CERTIFICATE OF SERVICE

This is to certify that aa true and correct copy of the foregoing document, Defendant’s Second Amended Motion for Summary Judgment, was was served upon all counsel of record on th this the 55th day day of October 2017, pursuant to Texas Rules of Civil CiVil Procedure 21 21 and 21a.

Paul Flannigan F lannigan [email protected] paul@ﬂanniganlawfirm.com Mark D. Johnson [email protected] mark@ﬂanniganlawﬁrm.com Nick Tedford [email protected] nick@ﬂanniganlawfirm.com F LANNIGAN L FLANNIGAN AW FIRM LAW IRM,, P.L.L.C. 3350 Parkwood Boulevard, Suite A201A201 Frisco, Texas 75034 Phone: (972) (972) 383-9377 Fax: (844) (844) 287-8882 ATTORNEYS FOR PLAINTIFF

ﬂlcd K“ Qr£’\rk-¥'Aj‘t\\\ 0K ______________________________ K \ \ \}

DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT PAGE 16

Page 258 / EXHIBIT A EXHIBIT A

Cause No. Cause No. CV-2016-00729 CV-2016-00729

KAREN KAREN LINDSEY LINDSEY SMITH, SMITH, §§ IN IN THE THE COUNTY COURT COUNTY COURT Plaintiff, Plaintiff, §§ §§ v. v. §§ N0.2 NO. 2 §§ TERRY TERRY P. P. PROVINCE PROVINCE §§ Defendant. Defendant. §§ DENTON DENTON COUNTY, COUNTY, TEXAS TEXAS

AFFIDAVIT AFFIDAVIT OF OF TERRY TERRY PROVINCE PROVINCE

STATE STATE OF OF TEXAS TEXAS §§

COU NTY OF COUNTY '. OF scLe 'D ﬂ’oh §§ 2g }'\toY\ §§

BEFORE BEFORE ME, the undersigned ME, the undersigned notary, notary, on this day on this personally appeared day personally appeared Terry Terry Province, Province, aa person whose person whose identity identity is is known known to to me. me. After After I I administered administered an an oath oath to to affiant, afﬁant, affiant afﬁant testified: testiﬁed:

"My “My name name is is Terry Terry Province. Province. II am the Defendant am the Defendant in this suit. in this suit. II am am over over the the age age of of 18 18 years, years, competent competent inin all all respects to make respects to this affidavit, make this afﬁdavit, have have personal personal knowledge knowledge of of the the facts facts stated stated herein, herein, and and everything everything stated stated herein herein is true and is true and correct. correct.

The The dog dog that that Plaintiff Plaintiff has has identified identiﬁed as the "black as the “black dog" dog” that that bit bit her her is is named named "Heidi." “Heidi.” Heidi Heidi is is now now seven seven years old, years old, weighs weighs approximately approximately 100 100 pounds, pounds, and and is is a a mixed mixed breed. breed. At At the the time of time the incident, of the incident, Heidi Heidi was was six six years years old. old. Attached Attached hereto hereto as as Exhibit Exhibit A-1 A—l is is a photograph of a photograph of Heidi Heidi lying lying beside beside one one ofof our our cats. cats. Attached Attached hereto hereto asas Exhibit Exhibit A-2 A-2 is is a photograph that a photograph that accurately accurately depicts the fence depicts the fence and and gate gate on on my my property property on on the the day day of of the the incident incident atat issue. issue. Both Both of of these photos these photos are true and are true and accurate accurate depictions depictions ofof what they purport what they purport to to show show asas stated stated above. above.

The The gate to my gate to my property property isis recessed recessed about about aa foot foot behind behind the the fence fence line. line. The The fence fence immediately immediately surrounding surrounding thethe gate gate is is at, at, or or behind, the actual behind, the property line. actual property line. The The location location ofof the the gate gate and and the portions of the portions of the the fence fence surrounding the gate surrounding the gate has has been been confirmed conﬁrmed by by a a professional professional surveyor, surveyor, Eric Eric M. M. Zollinger, to be Zollinger, to be wholly wholly onon my property. Based my property. Based upon the Plaintiffs upon the Plaintiff’s description description of the incident, of the incident, Heidi was within Heidi was within aa place place that that she she had had a a right right to to be be on on my my property property at the time at the time of of the incident. the incident.

Heidi Heidi has has no no vicious tendencies and Vicious tendencies and had had never never bitten bitten anyone anyone before before the the incident incident at at issue. issue.

II acquired acquired Heidi Heidi when when she she was was just just aa puppy, puppy, about about eight eight weeks weeks old. old. II have have owned owned Heidi Heidi the the entire entire time time since then. Heidi since then. Heidi is is normally normally aa well-behaved well-behaved dog, dog, having having received received formal formal training training from from aa commercial commercial dog dog trainer that made trainer that made her her obedient obedient to to the the following following commands: commands: come, come, sit, sit, down, place, stay, down, place, stay, off, off, quiet, quiet, and and release. release. My My wife, wife, Renee, Renee, and and II currently currently own own five five dogs, dogs, three three of of which, which, including including Heidi, Heidi, are are mostly mostly outdoors. outdoors. The The dogs dogs are are kept kept within within our our fenced-in fenced—in yard. yard. The The dogs dogs run run along the fence along the fence and and bark whenever someone bark whenever passes by someone passes by the the yard yard or or approaches the gate. approaches the gate.

AFFIDAVIT AFFIDAVIT OF OF TERRY TERRY PROVINCE PROVINCE PAGE PAGE 1 1

Page 259 EXHIBIT A EXHIBIT A

II was was not not present present on my property on my property when the incident when the incident at at issue issue occurred. occurred. My My wife wife and and II were were away together running away together running errands. errands. When my wife When my wife and and II returned returned home, home, all all of of the the dogs were still dogs were still contained within the contained within the fence fence on on our our property. property.

My My wife, wife, Renee, Renee, and and II preferred preferred for for delivery people to delivery people to leave leave packages packages outside the gate outside the gate to to our our property. property. We We do do not not like like strangers strangers coming coming onto onto our our property. property. We We also also fear that someone fear that someone opening the gate opening the gate and and entering entering ourour property property might not close might not close and and secure secure the the gate properly when gate properly when leaving, leaving, thereby thereby making making it possible for it possible for our our dogs to escape dogs to escape our property. None our property. None of of our our dogs dogs has has ever ever attacked, attacked, chewed, chewed, or or in in any way damaged any way damaged aa package package or piece of or piece mail left of mail left at at our our property. property.

The The information information contained contained in this affidavit in this afﬁdavit is is true true and and correct correct and and based based on my personal on my personal knowledge." knowledge.”

FURTHER FURTHER AFFIANT AFFIANT SAYETH NOT. SAYETH NOT.

Terr ov

SWORN SWORN TO TO AND AND SUBSCRIBED SUBSCRIBED TOTO before before me, the undersigned me, the undersigned authority, authority, by the said by the said Terry Terry Province Province on the �" day of Septern't>er day of m Seﬂembcr ,,2017.

MW on the 2017.

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AFFIDAVIT AFFIDAVIT OF OF TERRY TERRY PROVINCE PROVINCE PAGE2 PAGE 2

Page 260 EXHIBIT A-11 E X H B H A.

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Page 261 EXHIBIT A-2 EXHIBIT A—2

Page 262 EXHIBIT EXHIBIT B B

KAREN KAREN LINDSEY LINDSEY SMITH SMITH 08/26/2016 08/26/2016

Page Page 11 NO. NO. CV-2016-00729 CV—20l6—OO729

KAREN KAREN LINDSEY LINDSEY SMITH, SMITH, ) IN IN THE THE COUNTY COUNTY COURT COURT } Plaintiff, Plaintiff, )

vs. } VS. J DENTON DENTON COUNTY, COUNTY, TEXAS TEXAS )

TERRY TERRY P P PROVINCE, PROVINCE, )

)

Defendant. Defendant. ) AT AT LAW LAW NO. NO. 2 2

ORAL ORAL DEPOSITION DEPOSITION OF OF

KAREN KAREN LINDSEY LINDSEY SMITH SMITH

AUGUST AUGUST 26, 26, 2016 2016

VOLUME VOLUME 1 1

ORAL ORAL DEPOSITION DEPOSITION OF OF KAREN KAREN LINDSEY LINDSEY SMITH, SMITH, produced produced as as

a a witness witness at at the the instance instance of of the the Defendant, Defendant, and and duly duly sworn, sworn, was was taken taken in in the the above-styled above—styled and and numbered numbered cause cause on on August August 26, 26, 2016, 2016, from from 12:27 12:27 p.m. p.m. to to 3:50 3:50 p.m., p.m., before before Elizabeth Elizabeth Goodenough, Goodenough, CSR CSR in in and and for for the the State State of of Texas, Texas, reported reported by by machine machine shorthand, shorthand, at at the the offices offices of of Flannigan Flannigan Law Law Firm, Firm, 3550 3550 Parkwood Parkwood Boulevard, Boulevard, Suite Suite S201, S201,

Frisco, Frisco, Texas, Texas, pursuant pursuant to to the the Texas Texas Rules Rules of of Civil Civil Procedure. Procedure.

GOODENOUGH GOODENOUGH && ASSOCIATES ASSOCIATES (817) (817) 261-9095 261-9095

Page 263 EXHIBIT EXHIBIT B B

KAREN KAREN LINDSEY LINDSEY SMITH SMITH 08/26/2016 08/26/2016 Page Pa ge 5 5 Page Page 7'I 11 PROCEEDI P R O C F, E D I NGS N GS 11 would would prevent prevent you you fr om giving from giving truth fol answers lrulhfnl answers toto my my ?.P THE THE REPORTER: REPORTER: Agreements Agxtemenls on on the the record? record? 22 questions? questions? 33 tv!R. MR. HANSEN: HANSEN: l'm going to I'm going to let let you you be be the the 33 A. A. No,sir. No, sir. 44 custodian, custodian, because because II don't don't need need it it to to bulk bulkupup my my file. ﬁle. 44 Q. Q, Arc Are }'Oll )0” on on any any kind kind ofmedical. ofnwdicmiun i(in today? today? 55 lfyou'll ”you'll let let me me know know within within 3030 days days of any changes, ofﬁny changes. 55 A A None. None. 66 sending sending me me thethe signature signature and the correction and the confection page page if if 66 (). Q. When When is is the the last last time lune you you took look any any medication medication 77 there then: are are any any changes changes --.. 77 because because ofof the the incident Incident we're we're here here about? about? 88 MR. MR. TEDFORD: TEDFORD: Sure. Sum, 88 /\. A. Over Over three three to to four four months momhs ago.ago, 99 MR. MR. HANSEN: HANSEN: -- -- that that will will relieve reiieve the the court coun 99 Q. Q. Do Do you you remember remember what what you you took? Iook‘? l 100 reporter reporter of any other orally other responsibility. responsibility. Otherwise, Olhenvise. under under 10 1 0 A A. It ll was just the WXISjUSI the scar scar cream cream that that would would go go on on the the 11 l1 the the Rules. Rules. Okay? Okay? 11 l1 outside. outside. So50 nothing nothing internal. intemal‘ The The only only internal internal like like 12 1 2 MR. MR. TEDFORD: TEDFORD: That's That's correct. correcL 12 12 medication medication was was pain pain reliever mlievcr and and that that was was !he {he week \vcck aller nﬂcr 13 l3 KAREN KAREN LINDSEY LINDSEY SMITH,SMITH, 13 l3 the event. the event. 14 14 having having been been j]rsl duly swam, ﬁrst duly sworn, testified testiﬁed asas follows: follows: 14 1 4 Q. Q‘ You You stopped stopped taking lakmg pain medication aa week paim‘nedicalion week aft er after 15 1 S EXAl'v!INATION EXAMINATION 15 1 5 the the dog bite"1 dog biie' 16 l6 BY BY MR. MR HANSEN: HANSEN: 16 1 6 A A Correct. Correct 17 1 ‘7 Q. Q‘ What What is is your your nmne'/ name? 17 1 7 Q. Q AndAnd yon you haven't haven" had had toto take take ,my my p,1in pain 18 1 8 A. A. Karen Karen Lindsey Lindsey Smith. Smith. 18 1B medication, modication, overover the the counter counter or or prescription, presuiption, aHer alter that [hat 19 1 9 Q. Q. Ms. Ms. Smith, Smith, I'mI‘m Mark Malk Hansen, represent Hansen lIreprecem 19 l9 one week? oneweek? 20 2 0 Mr. Mr. Province, Province. Ifl [fl ask ask you you aa question question tod,1y today that that you you 20 2O A A What What waswas ---- 1'111 I'm trying trying to think, these to think, these little little 21 2 1 don't don't understand, understand, willwill yon you bebe sure sure toto make make me me repeat repeat it it 21 2 1 tablets, tablets. what what they're they're called. called‘ They They were were the the metabolic metabolic 22 2 2 or or rephrase rephrase it it until until you do understand you do understand it? it? 22 22 ones ones that that would would help, help, but but II had had an an allergic reaction to allergic reaction to 23 2 3 A. A. Yes. Yes. 23 2 3 them them soso II had had toto stop stop taking them. mkinglhem. 24 24 Q. Q. Make Make suresum you you answer answer outout loud loud for for our our court court 24 24 Q. Q LetLet me me ask ask my my question question again. again. As As far far as as pain pain 25 25 reporter. reponcr. Don't Don‘t nod110d your your head head up up and down or and down or shake shake it it 25 2 5 1.nedication -- medication --

!--------------·-------------+------------------·-· -------1 Page Pa ge 6 6 Page Pa ge 8 8

l1 side side to10 side. side. Don't Don't say say uh-huh uh-huh or or huh-uh huh—uh becnusebecause after aller 1l A. A‘ Yes_ Yes,; as as far far as as pain pain medication, medication, a3 week week after afler f 22 this [his is is typed typed up, up, wewe won't wun't know know whether whether that's that's a yes 21 yes or or 22 the event the event II haven't haven‘t taken taken any any like like Ibupro en or Ibuprofen 01'

33 aa no. no. Okay? Okay? 33 hydrocodeine hydrocodeine [sic] [sic] oror anything anything like like that. that. 44 A A. Okay Okuy . 44 Q. Q. Let Let me me get gel mymy question question out.out, For For one one week week aller aﬁcr 55 Q. Q. TryTry not not toto cut cut me me off off lrefore before I'm I'm done done asking asking 55 the the incident, incidenL you you took pain medication? took pain medication? 66 you you one one of my ofmy' que5tions. questions. Sometimes Sometimes I'll I'll get get started, started, 66 A. A. Y cs, for Yes, for hvo two or or three three days days alter. after. 77 you'll you’ll think think you know where. you know where I'mI‘m headed headed ,md and you you answer, answer, 77 Q. Q. For For only only two two or or three three days? days? 88 but then when but then when II getget to to the the end end of the question, ol‘lhc question, it it was was 88 A. A Uh-huh. Uh-huh. 99 something something other other than than you you thought thought it it was was going going to to be. be. 99 Q. Q‘ Yes? c'? 10 1.0 So So if you'll just ifyou‘ll just bebe sure sure that that I'm done I'm done 10 10 A. A. TI mean, mean, notnot the the whole whole week. week LikeLike II took look thethe 11 lI talking talking before before you you talk, talk, we'll we'll have have aa clear clear record. record. 11 1 1 higher higher prescribed prescribed like like hydrocodcine hydrocodcinc because because it it still still 1.2 12 Okay? Okay? 12 l2 hurl hurl from from those those stitches stitches forfor the the first ﬁrst two two or or three three .. 13 13 A. A, Okay. Okay. 13 13 days, days, and and then just lbupi: lhenjusl ofen after. Ibupmfen aftex: Because Because lI didn't didn't 14 l4 Q. Q. lfyou Ifyou need need toto take take a break 21 break at a! auy any time during time during 14 1 4 want want toto stay stay onon the the high high pain pain meds meds asas long long as as II could. could. 15 1.5 your your deposition, deposition. just just let let us us know. know We'll We‘ll stop, slop, you you can can 15 1 5 That That was was not not the goal. the goal. 16 1 6 go out go out of01' the the room room andand dodo whatever whatever you you need need to do. (0 do. 16 1 6 Q. Q. Let Let me me see see ififlI understand understand your your answer. answer For For 17 1 7 Okay? Okay? 17 l7 two two or or three three days after the bite, daysztfier||18 bilc‘ you you took look prescription prescription 18 1 8 A A‘ AllAll right right 18 1 8 hydrocodonc? lxydrocodonc? 19 1 9 Q. Q, YouYou understand understand your your testimony testimony today today is just the isjusl the 19 1 9 A. A‘ Or Or pain pain mcds, mcds‘ yes.yes 20 2 0 same same as as ifwe ifwc werewere sitting sitting inin the the courtroom courtroum with with the [he 20 2 0 Q. Q. Or Or some some other other kind kind of prescription - of'prescription -«

21 2 l judge judge and and thethe jury jury present? present? 21 2 1 A. A. Yes. Yes‘ 2?. 22 A A‘ Uh-huh. Uh-huh. 22 2 2 Q. Q. -· pain medication "pain medication -- ~-

23 23 Q. Q. Yes? Yes‘? 23 2 3 A. A. AndAnd then then over-the-counter over-lhc-counter from from then then onon out. out. 24 24 A. A. Yes,Yes, sir. sir. 24 2 4 Q, Q. Let me fiﬁnish Letme nish mymy quest. ion before question belble you you answer. answer. 25 25 Q. Q Okay.Okay" Are Are you you onon any any medication today tliat medication Iodaylllal 25 25 A. A. Okay. Okay:

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11 around around whenwhen we we would would meetmeet up.up. So So at m 9:30 930 or or so so hehe would would 1l would would be. be. 22 pick pick me me up up from from theIhe church. church. 22 Q. Q, Wliat What record :ecord would would you you look look at?m? 33 Q. Q. Which Which church? church? 33 A AV Whatever Whatever his his little little device device would would be. he. That That 44 A A. First First Baptist Baptist Church of Ponder. So Church oi‘l’ondcr. So it's it's onon 156156 44 would would havehave to to be be UPS UPS themselves themselves or or Brandon. Brandon. They They would would 55 and and 2449. 2449. 55 have have tu to look look back back through through nnd and get get anan accurate accurate count couuL 66 Q. Q. AndAnd is is that that sometimes sometimes abbreviated abbreviated FBC FBC Pond· er? IPOnder',7 6 6 Q. Q YouYou do,n don't have. have that that record yoursel!'? record yourself? 77 A. A Yes,Yes, correct. corrccl. So So that Ihm waswas the the meeting meeting location location 77 A. A. No, No, sir. sir. 8 8 where where I'd I'd park park mymy car car and and hehe would would pull pull upup in in his his lrnck truck 88 Q. Q. All right. So All nght. So now now we're wc‘rc upup toto you're you're 9 9 and and then then we we would would take take crff off fr om there ﬁom them to 10 run run the the route route 99 approaching approaching the the Provinces' Provinccs' property? properly? 10 10 for for the the day. day. 10 10 A. A. Correct. Correct. 11 11 Q. Q Is Is that that what what you you think think happened happened the the dayday of ofthe the. 11 11 Q. Q. All All right. right TellTell me me what what haf)pened. happened 12 l2 incident? incident? 12 12 A. A. Province, Province, is is that Ihnt their their last last name name?? 13 13 A A. Correct. Correct. 13 13 Q. Q. You You don't know don‘t know the the last lasx names names of 01. the the people people you you 14 14 Q. Q. SoSo yon you metmet Brandon Brandon at m the the parking parking lot lot ofofthc the 14 1 4 are are suing? suing? 15 15 First First Baptist Baptist Church. ChurclL Did Did you you have have aa uniform uniform 011'1 on? JS 15 A A. II had had heard heard it once. It's it once. H's -- .. II don't don‘l recollect recollect 16 16 A A. Yes. Yes. I[would would putput it it Oil whenever T left on wheneverl lcﬂ the (he 16 16 itit now. now 17 17 house, house, pack pack my my lunch lunch andand then then drive drive to to the Ihe church. church. Or Or 17 17 Q. 0. Okay. Okay. My My client's clicnl's name name is Teny Province. is‘I‘eny Province. 18 18 srnimtimes, sometinws, II think Ihink like like maybe maybe for foraa week, week, he he would would pick pick 18 18 A A. Okay. Okay. I've only heard itit once I’veonlyheard once before, just so beﬁarc,Jusl so 19 19 me me up up from from my my house. house. ButBut that that day, we had (Jay, W: had nietmet at at the the 19 1 9 we're we're clear. clear. Maybe Maybe twice, twice. 20 2. location. location. Because Because sometimes sometimes ifhe ifhc waswas passing pawng by, by; he he 20 20 Q. Q, Tell Tell me me what what ycuyin recall recall happening happening as as you you 21 21 would just grab me. wouldjnstgmb me. That That wayway!I didn1 didn‘t have have to to waste waste 21 2 1 approached approached the the Provinces' Provinccs‘ property. property 22 22 money money on on gas gas to to drive drive upup toto the the church. church. 22 22 A. A‘ So 30 we drove up we drove up to to where when: my do.or was my door was ·facing facing like like 23 23 But But that that date date II had had drove drove to to the the parking parking 233 .7. the house or the house or property property and and then then wewe stopped. stopped. Brandon went Brandon went 2.4 24 lot lot because because II think think my my dad dad had had to to go go back back and and get get my my car car 24 24 to to the the back back to gel the to gel Ihe package. package. Sometimes Sometimes he he would would have have 25 25 1.later ater that that day. day" 25 25 them them already already on on the the dashboard, dashboard, bul but that that time lime hehe hadn't, hadn't,

Page Page 46 4 6 Pi'ige Page 44 88 1 Q. Q, AllAll right. right Well,Well, what what happened happened afler nﬂcr youyou met met 11 so so he had to hehad to go go back. back. He He camecame forward forward and and scanned scanned it i1

2 Brandon Brandon in in the the parking parking lot lot at at the the church? church? 22 while whlleljustljust satsat there there andand waited waited ttntiJuntil he he would wouldhand hand itH 3 A A_ Usually Usually he he would would checkcheck his his little litllc device device that [hm 33 off to me. offlo me. 4 told told him him allall the Ihc addresses addresses and and places places that that he, he had had toIn run run 44 As As wewe were were driving driving up, up, he he just just said, said, youyou 5 packages packages for for the the day day andand he hi: would would start.off start oiTon on the (he 5 know; drm't know, don't go go into (mo thethe prope1ty. pmpcny. Just Just setset itit 011 on thethe 6 route. mum UsuaUy, Usually, we we would would head head down down back back towards towards 24492449 66 outside ofthc outside of the gate. gate. Point Point casecase blank. blank. So So he just hejust 7 and and clear that side clezuthm side ofthc ofthc railroad railroad tracks tracks and and then then move move 77 basically basically said said set set it it by by the Ihe gate and then gatc and then come come back. back. 8 out out to to the the countryside. countryside. lliat's just the way Tlml'sjusuhc waythm that hehe 88 So So he he drove drove up, up‘ went want back hack and and got got the the package, package» scannedscanned 99 liked liked toto run run things things in in sequence. sequence. 99 it, It. came came forward, forward. handed handed it it to to me. me. ![jumped junlped out out andand 10 10 Q. Q, Do Do you you have have anyany reason reason to to think think the the day day of ofourour 10 10 walked walked towards towards the gate. the gmc. 11 11 incident incident he he did did something something differe11t? diffelem? 11 1 1 fI was was aware aware of of two Iwo dogsdogs that that \\' ere close were close to Io 12 12 A. A_ NQpe. Nope. Just Just nonnal nomml placesplaces that that would would go go on on 122 1 the the gate. gmc. ThisThis was only like was only like tltethe second second time link: that lhnl we we 13 13 route. route. That's That's just just howhow it it happened happened to to be. he. 13 13 had had everever delivered delivered lo to this this house house out out of the whole ofthe whole entire entire 14 14 Q. Q. HowHow manymany deliveries deliveries wouldwould you you think think you you inade made 14 14 like like winter break. The wintcrbrcak. The other other" -- first ﬁrst timetime that that we wchadhad 15 15 bel\vcen between 9:30 9:30 andand when when the the incident incident happened? happened? 15 1 5 ever ever visited visited that that house, house. Brandon Brandon made mad: the the stop stop because because 16 16 A. A. Ilmean, mean, whatever \vlmteverwe we could could fit ﬁt inin within within an an hour hour 16 16 itit was was mymy first ﬁrsl week, week, II think, [Junk So 50 he he waswas kind ofjust kind ot‘just 17 17‘ to to an an hour hour andand aa halt' halli The The incident incident didn't didn'l happen happen lllltil until 17 1 7 wanting wanting to to do do as as much much as as he he could could .iinn places places thatthat he he may may 18 18 like, like, what, what, 10:30 10:30 or 01 11 :00? So l1100‘? So whenever whenever we we started started al at 18 1 3 not nm havehave been been asas com fort able with comfonable with meme going going up up toto or or not not 19 19 like like 9:30, 930‘ about about an an hour's hour's worth worlh of stops. ItIt just ofsmps‘ just 19 19 knowing knowing how how to to approach approach it. it. SoSo this this was was like like theIhe second second 20 varies varies on on how how many . that in that time time frame. 20 time lime we we delivered deliveml there. 20 many houses houses we we bit hit with within frame. 20 (here. 21 21 Q. Q Do Do you you have have anyany recollection recollection of how many ofhmv many 21 21 Anyway. Auyxmy‘. so so he he said said basically, basically, here'shere's thethe 22 22 deliveries deliveries you you made made the the day day of our incident ofour incident beforebefore thethe 22 22 package. package. Just Just set scl it it on (m the the outside outside of ofthc the gate. gate. So 50 II 23 23 incident incident happened? happened? 23 2 made made my my wayway upup with with like like aa light light jog Jog to lo the the .g ak. It gnlc. II 24 24} A. 1\_ Nope, Nope. not not without \vilhoui looking looking at at aa record. record. II mean, mean, 24 24 wasn't wasn't thatthat for off Like {an off: Like less less than than 5050 yards, yards. It It was was 25 25 II could muld take take aa guess guess but but I'm I'm not nol sure sure howhow accurate accumtc that that 25 25 pretty close. We preliyclose. We were were right right on on the the road. road, It It was was aa

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KAREN KAREN LINDSEY LINDSEY SMITH SMITH 08/26/2016 08/26/2016 Page Pa ge 44 9 9 Page Page 51 51 l short short little lime driveway drivmvay to [0 tbe the gate. gate. l1 like like --~~ somct. sometimes imes people people le!l let} aa preference preference on on where where theythey 22 lI was was aware aware out out ol01' like like peripheral peripheral visioi1,vision, 22 want want packages packages delivered. delivered. So So thislhis one one was was toto behe 33 two two dogs dogs that that were were there. there. I saw 1saw like like aa tall [all pole pole by by the the 33 delivered delivered on on the the outside outSide of the gate. ofthc gale. 44 gate gale like like fence fence post. post. Set Set it it do,\iJ1 down without wilhoul having having to[0 be be 4’1 Q. Q‘ DidDid Brandon Brandon tell tell you specifically to you speciﬁcally to lean lean the lhe 55 too too close close but but still slill like like entmgh enough to to where where ii it was was kind kind ofof 55 package package up up against against the the g<1te gate postpost"? 66 out out of reacb, l[guess ofrcuch‘ guess you you could say, and could say. and then then got got up up toto 66 A A, He He j\lSL just said, said, set se‘ itit by by the[he gate. gal; He didn't Hedidn'l 77 tum lum around. around And And as as II did, did. lI felt something come IE1150111c111i|1gc01m 77 specify lean specify lean it 1'! up up against against the the gate gate or or don't don't . .Just l ust

88 through. through And And itit was was like,like, whoa, whoa. okay, okay, tl1ere's there‘s something something 88 leave leave it it by by the the gate. gate 99 like like out out of of the the corner corner ofmy ofmy eye, eye, like likcll still still see see those those 99 Q, Q. He He just jusl told [old you you to to set set itit by by the the gate? gate? 10 10 two two dogs, dogs, butbut now now there{here is is aa third one in third one in view. View. 10 1 O A. A. Or Or atat the the gate. gum By By at a1 -- -- II mean, mean, I'I'm m not not going going 11 Like, Like, ouch, ouch. something something is is grabbing grabbing onto me. 111 to to be be picky picky on on word word selection. selection That was like eight r, 11 011101116, 1 That was like eight 12 12 Like Like here's here's the the gate gate up up here, here: butbut yet yet it' it’ss reaching reaching 12 1 2 months months ago. ago He.just, He just. said, said. go go up up toto the the gate gate andand set set

13 13 through. through. Okay, Okay, likelike I've I’ve go.t got toto get get itit off ofTofnm ofme. So So 13 13 the the package package clown.clown. 14 14 like like}1 pushed pushed up up and and just just kind kind of of like like turned lumed around around andand 14 l ’1 Q. Q So So hehe did did not not tell tell you specifically to you speciﬁcally to lean lean itit 15 15 like like walked walked back back kind kind of like stunned, oflike slunncd, II guess guess was was aa 15 l5 up up against against the lhe gate gale post? post? 16 16 good good word, word. or or like like in in shock shock like, like, okay, okay, what whatjusljust 16 J 6 A A. He He bbasically asically saidjusl said just don't don't cross cross the the gate. gate. 17 17 happened"9 happened 17 1 7 You You cai1can set it up set it up anywhere anywhere by by the the gate, gate, you you can can go go up up to to 18 1 3 II knew knew what what 1I was was doing. doing II was was going going up up to to 18 lB it, just don't I'Ljusl don't gogo over over the[he gate gate and and into into their their property. property. 19 l9 the [he gate gale to lo put put down down aa package package and and yet yet there's there‘s sort1ething something 19 1 9 There There was was no no specification speciﬁcation on 0n leaning leaning up up against agmnsl it. il. 20 2 0 that that II had had not not accounted accounted for for that that kind kind ofof took look me me by by 20 2 0 don't. don'l. He He said said thethe gate gate waswas fair fair territory, territory, basically. basically. 21 2 l surprise. surpnsc. 21 2 1 Set Set ii' It at at the the gate. gait: 22 22 So So II got got back back ioto the the van or the van or [he bus, hus‘ 22 22 Q, Q. Itll was was youryour decision decision to to actually actually place place the the 23 23 whatever whateveryou you call call it, it, apd and was like reaching was like reaching upup towards towards 23 2 3 package package up up against against the the gate gate postpost or or tlie the fence fence post? post? 24 2 41 my my face face and and felt fell pain. pain. I'm['11] like okay, there's like okay. there‘s some some 24 24 A A, In In training lmimng -- -- 25 2 5 blood. blood, l waswas like, 1 like, ouch. OLICIL Okay. Okay. Brandon, something's Brandon, somethings 25 25 MR. MR. TEDFORD: TEDFORD: Objection. Objection. Fonn. Fonn

Page Page 50 50 Page 52 11 up. up. So So he he came came outout and and IQoked looked al at me. me H. e's like, He's like, yeah, yeah, 11 A. A‘ InIn training, training, tl1eylhey would would tell tell youyou to (0 putput it it as as

22 here, here, apply apply pressure. pressure‘ So 80 he he jllst jnsl took Look my my hand hand mid zmd 22 close close to10 the [he gate gate as as possible possible becallse, because, A, A‘ if someone il'someone 33 pushed pushed it it up. up }Ie's He‘s l.ike, like okay, okay, sit sit down down now.now. 33 else else comes along, they comes along, they would would mess mess with with it it or or if the wind iflhe wind 44 And And he he closed closed the lhc door door and and hehe pulled pulled out out 44 would would blow blow itin over. oven So So the the goal goal in in traii1ing.or training or 55 his his phone phone while while we're we're stillstill parked parked tbere there and and as a: I'm just I'mjusl 55 orientation orientalion is is always always to (0 put put thethe package package as as close close asas

66 sitting there, he's siltingthere, he‘s like, like. okay, okay. don'don'tt stop stop app. lyiug applying 6 6 possible. possible. ButBut [I myself myselt'did did not not put pul myself myselflike like atthc at the 77 pressure. pressuw Just Just sitsit there there andand don't don‘t remove remove your your hands.handm 77 gate. gale. MyMy arms arms are are reaching reaching out out to to setset it down. itdown. 88 Just Jusl sit sit still. still. Nothing Nothing rrntjor. major Just Just calm calm do\\11. dmm. You'll You'll 8 8 So·if So ifil'sit's leaning leaning against againsx it it or or not, not, II 99 be be fine. ﬁne, Ok,1y. Okay. So So lj\lst 1 waited while just waited while he he called called it it in in 99 don't don’t remember remember or or recall. recall. lt 1: might might have have been. been. That' That'ss 10 10 to 10 his his boss boss because because he he couldn't couldn’t be be calling callingand and driving driving 10 10 what what the the videotape videotape II guess guess will will bebe helpfj helpful rl for for now now at at

11 11 al at the the same same time. time. He He communicated communicated that that very very clearly. clearly. 11 I1 this this point poinl tolo tell where itit was tell where was at at. 12 1?. So So hehe did did what what he he was was supposed supposed to. to. 12 12 Q. Q. (BY (BY MR.MR. HANSEN) HANSEN) You You don'tdon't recall whether you recall whclhcr you 13 1 3 Do Do youyou want want me me to to keep keep continuing? continuing? 13 l3 .rctually leaned the actuallyleaned the package package up up against against the the gategate post post or or 14 14 Q. Q. Let's Let's stop stop there (here and and letlet me me ask ask you you another another 14 14 not? not? 15 15 question. question What What did did Brandon Brandon tell tell you you to to do do when when you you 1.5 15 A. A II might might have have setset itit -- -- II might might have have likelike gently gently 16 1 6 arrived arrived at at the (he Provinces'? Provinces"? 16 l6 tossed tossed it and just wherever I was, andjuslwhereverl 1'1 was. [[set set itil down. down. I'm I‘m

17 1 7 A A. TheThe second second time,lime, he he basically basically just just said said go go up up 17 17 not not sure sure on on the the specifications. speciﬁcations. 18 18 to to the the gate gate and and setset it it on on the the O\ltside. outside. He He hadhad ,m an 18 1B Q. Q. AsAs you yousil sit here here today. loday. you you do do not not know know if you it'you 19 1 9 emphasis emphasis on on don't don‘t gogo inside. inside. l think 1 think in in the the past past when when 19 19 specifically specifically leaned leaned the the package package up up against against the the gate gut: 20 20 we we were “we driving driving by by thethe first first time, time, he he had had mentioned mentioned that that 20 20 post? post? 21 21 the the dogs dogs might might havehave beenbeen likelike aa little bit rowdy lilLle hi1 rowdy and and 21 2 l A. A. Not Not asa»: what wlml [I recall. recallv l[set set itit down. down. I[might might 22 2 2 could could tear (ear packages. packages. So So he he just just said, said, youyou know, know, 22 22 have have leaned leaned it. it. lI got got itit as as close close lI guess gums as as possible possible 23 23 bas. ically don't basically don't go go into into thethe gate. gate. JustJust leave leave it 1': on on the the 23 23 within within what what feltfelt safe. safe 24 2 41 outside. outside, 24 24 Q. Q. You You diddid notjust noljusl lay lay itit on on the the ground your“! outside outside 25 2 5 That That the the o,mers owners had always wanted had always wanted it it 25 25 the the gate? gate?

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KAREN KAREN LINDSEY LINDSEY SMITH SMITH 08/26/2016 08/26/2016 Page Page 125 125 Page Page 127 127 1 Q. Q. HaveHave you you been been backback to to the the Provinces' l’ruvinces' property properly 11 fit ﬁt through through ornm or not fit(it through lluuugh it. it. 2 since since the the incident? 2 Q. Q, Request Requcst tor for Admission Admission Number Number 77 askedasked you you to NH

incident? 2 lo 3 A. A. NotNot besides bcsidcsjust just driving driving by by like like on on a:1 daily daily - -- 33 admit admitllml, that, quote, quote, allall three three of defendant's dogs ofdefendanl‘s dogs werewere 4 like like ifI if I have have to to go go byby there. there. Like Like} I have have aa friend fliend 44 close close to lo the the gate gate when when you you leaned lczlncd down down to to place place ihc lhc 5 that lhal lives lives kind kind of back in ofback in that that area. areal So So likelike toIn go g0 to 10 55 package package by by it, ii, end and quote. quote. You You denied denied that. that. Wl1y? Why? 6 Teresa's Teresa's house, house, one and time lime II drove drove by by it. 66 A. A. Because Because II was was only only aware aware of two dogs dogs that were wummbw

it. uflwo lhatwcre 7 Q. Q Who Who is is Teresa? Teresa? 77 just just like like in in the yard. Seemed lhc yard. Seemed ve1y veny cairn. calm. TI didn't didn'l know know 8 A. A. Teresa Teresa Scofield. Scoﬁeld. She's She‘sjusljust another another 88 -rhere there were were three. lhrcc. IIjust just was wm aware of two and aware of‘lwo and they they 99 home-schooling home-schooling friend friend thatthat II have have thatlhnl lives lives in in Ponder. Ponder. 99 weren't that-that weren‘t that-that close close to 10 the lhc gate. gale. TheyThey were were just jusl 10 10 So So her her house house is just kind is just kind of of along along the.the way of the route. way ofthe route, 10 10 somewhere somewhere around around it. it. SoSo II wasn't wasn't paying exact attention paying exacl ntlenlion 11 ‘11 Q. Q‘ So So youyou havehave been been by by the lhe Provinces' l’rovinces‘ house house since since 11: to to how how closeclose they they were. went. 12 12 the lhe day day of of the lhe incident'/ incident" 12 12 Q. Q. HaveHIIVC youyou viewed viewed the security camera the security camera videovideo of of 13 13 A. A Once, Once, yeah.yeah. And And then then bike bike rjding, riding, sometimes sunmtimes my my 13 1 3 tbe [he incident incidcnt that that we've we‘ve given your lawyer? given your lawyer? 14 14 bike bike route mule goesgoes backback that Illa! way. way. 14 1 4 A. A Ve1y briefly. My Verybxieﬂy. My mom mom watched watched it it more more thanIhan II 15 15 Q. Q, I-lave Have you you ridden ridden by by the lhc Provinces' l’rovinces‘ property properly on on 15 15 did. did. 16 16 your your bicycle? bicycle? 16 1 6 Q. Q. Did Did you you secsee inin that that video video that that all all three three of of 17 17 A. A. Like once, but Like once, but never stopped so never stopped so itit would would be be 17 1 7 the -- the -- all all three lhrcc ofmy ofmy client's client‘s dogs dogs were were atan the the gate gate at at 18 18 like, like, oh, Oh, look, look, likelike that's that's what's what‘s goinggoing on. on. 18 1 8 the the time? lime? 19 19 Q. Q. Okay. Okay. So So since since then, then, youyou havehave beenbeen ableable to to see see 19 1 MR. TEDFORD: Objection. MR.TEDFORD: Objection. f'onn.Form. 20 20 that lhal there there is is a a metal main] -- -- 20 20 A. A. f[only only sawsaw two. lwo. l[didn't didn't seesee three. lhrce. ButBut II 21 21 A. A. II haven't haven't stopped stopped and and looked looked at at it. it 21. 21 watched wulchcd it it very very bJiefly brieﬂy then then soso nope, nope, lI didn't didn‘t knowknow 22 22 Q. Q. -- -- ranch ranch gate gate on on the the front front of of their their property, property, 22 22 there there were wcm three. lhrcc. IIjust just knewknew that llml there (here were were two two that llml 23 23 correct? correcl? 23 23 were were close. close. So So after alter watching watching the the video, video, fI guess. guess. 24 24 MR. MR. TEDFORD: TEDFORD: Objection. Objection Form Form 24 ? Q Q. (BY (BY MR.MR HANSEN) HANSEN) After After watching watching the the video vide - ~-

25 25 A. A. II haven't haven't stopped stopped to to look look at at it H puqioseful. plu‘poseful 25 25 I'm sorry. l'm sorry Let Let meme back back up. up,

Page Page 126 126 Page Page 128 128 1 Like Like Iljusl just go go tolo finish ﬁnish my my workout workout or-toor to visit visil my my 11 When When you you watched watched the the video, video, didn't didn‘t you you seesee 2 ffriend. riend. 22 three lhree dogs dogs right lhcre · at righl there at the the gate gale the lhc whole whole timetime ns as you you 3 Q. Q. (BY (BY MR. MR, HANSEN) HANSEN) You You have never noticed noticed since? 33 jumped Jumped out out of the delivery delivery truck muck and and ranran toto the gate?1 the gate' “2mg

have never sincc? ofthc 4 A. A. Besides Besides the picture, l.ike [he piclure. like staring slaring atat itit in in 44 MR. MR. TEDFORD: TEDFORD; Objection. Objection. Fom1. Fonn. 5 depth, deplh, lI mean, mean, lI know know there's there‘s metal metal slais slats now now but but II 55 Q. Q (BY(BY MR. MR. HANSEN) HANSEN) You You may may answer. answer 6 wasn't mm“ aware aware at at the the time time oror when when II went went by by toto visit. visxl, It[I 66 A. A CanCan we rcwatch it? we rcwatch it? Like, Like, I don't I don't recall. recall. I !

7 Lamumulu;

is is not \tin no! within my my area. area. JI don't don‘l have have anyany interest mlerest to Lo 77 mem1, mean, it's just like il'sjusl like watching watching aa movie.movie. U11less Unless]I could could 8 know. know 88 go go back back herehere and and watch \valch it it mid and could could tell you right tell you right away. away 9 Q. Q. Because Because you you just jusl weren't weren‘t paying paving close enough close enough 99 II mean, mean: it'sil‘s been.l been likeike two weeks sii1ce two weeks since ['veI‘ve seen seen it.it. 10 ane.ntion to unenlion to it it at u\ the lhc time (Ime of the incident'1 ofthe incidenl" 10 1 0 Q. Q. Request Request for for Admission Admission Number Number 8, 8. we we asked asked you you to to 11 MR. MR‘ TEDFORD: TEDFORD: Objection.Objection. Fonn.Form. 11 1 1 admit admit that, lhal. quote, quote, one one or or more more of defendant's dogs ofdefendanl's dogs waswas 12 A. 1I ·w A. ould say would say that's lhul's aa fair fair assumption. assumption lIdidn‘l didn't 12 1 2 still still barking barking closeclose to to the lhe gate gale when when you you leaned leaned down down to to 13 have have a a reason reason to to pay attention or or look look atall it il until until nciw. 13 place place thelhc package package by by it, it. end quote. HHHHHH

Ln.:»mm»—o

payallenlion now. 1 3 and quote. 14 Q. Q. (BY (BY MR. MR HANSEN) HANSEN) Request cucsl for for Admission Admission NumberNumhcr 14 1 4 You You said said youyou could could neither neilher admit admit nor nor deny deny 15 5S asked asked you you to10 admit admit that,Ihal. quote, quotc‘ os as you you approached approached it, ll, 15 1 5 that that request. request. Why Why not? nol'?

16 15 you you could could see see that that the the openings between the openlngsbclwccn lhe metal metal slats Sluts 16 1 6 A. A. I don't 1 don't even even know know the the dogs dogs were were barking barking in in the lhc 17 17 in in the the gate gate were \xcn: wide wide cn0l1gh enough forfor aa dog dog to to stick stick its its nose nuse 17 1 7 first ﬁns! place. place, How How could could [I tell{all you you if one or ifonc or more more werewere 18 18 1hrough, Ihrough, end end quole. qunlc. Why Why did you deny did you deny that one"1 that one' 18 18 still still barking? barking? l1 don't don‘t recall. recall. 19 19 A. A. [I didn't didn't even even know knowthalthat -- ~- [mean, I mean, there there were were 199 '1 Q. Q. Request Requcsl for Admission Number fbrAdmission Numbcr 9, 9, we we asked asked you you to to 20 20 two two dogs dogs [I was was aware of [I didn't aware 01‘. didn’t know know there lherc was was a a 20 20 admit admit that, quote, you that, quole, you leaned leaned downdown so so close close to 10 the the gate gate 21 2L third. third. [I didn't didn't even even know know what \vhal the lhe gate gale looked looked like like 21 2]. that one of that on: of defendant's defcndzlnl's dogs dogs waswas able able to to make make contact contact 22 22 much much less less that that there there was was aa gate gate there. lhere. So So [I didn't didn‘t stop slop 22 22 with with youyou through through the the metal metal slats slais inin the lhc gate, gmc, close close 23 '7 and examine and examine if there were It‘lhere uerc holes holes oror not. Hal. 23 23 quote. quolc. 24 24 So So ifIf]I didn't didn't know know what what t.he (In: gate slots gale slots 24 2 I. You You mademade objection objection to that.rI eequcsl to than quest and and saidsaid 25 25 looked looked like, like, then then [I wouldn't wouldn‘t know know ifaifu dog's dog‘s head head could could 25 25 you you could could neither admit nor neither admit nor deny deny it it as as worded. worded.

32 32 (Pages (Pages 125 125 to to 128) 128) GOODENOUGH GOODENOUGH && ASSOCIATES ASSOCIATES (817) (817) 261-9095 261—9095

Page 267 EXHIBIT EXHIBIT B B

KAREN KAREN LINDSEY LINDSEY SMITH SMITH 08/26/2016 08/26/2016 Page Page 145 145 Page Page 147 14’]

11 Q. Q. Here Here is is Exhibit Exhibit 20 20 to your deposition. [0 your deposition. Whentn 11 22 Q. Q. IsIx the the dog dog depicted depicted in in Exhibit Exhibﬂ 20 2. the the one one that {hat 22 was was that that photograph photograph taken? taken? bit bit you? you? 33 A. A, After After the[he incident, incident, II thinkthink Brandon Brandon had had gone gone 33 A. A, Recalling Recalling backback to to the the incident, incida yes. ,Vcs. [lkncwknew 4A1 back back and and putpm thethe package package down down to lo make make aa picture picture of it ofit. 44 the the dog dog wa5 W23 black. black. A fted turned After] turned away away to 10 leave leave andand Il 55 Because Because we we never never took look aa picture picture of ofthethe gate gale right right atml the the 55 had had the the bite, bile, [knew I knew that lll‘dt it it was was a a black black dog dog that that had had 66 event. event. II think think he he bud had gonegone backback to to gel get aa picture. picture. 66 bit bit me. me. I[didn't didn't know know whatwhat type type of dog. ofdog. 77 Q. Q, What What do do you you mean mean he he put put thethe package package down?down? 77 Q. Q. How HOW manymany black black dogs dogs were weretherethere onon the the

88 A. A, Well, Well, like like he he moved movcd it it over over to to get gel like like aa photo photo 88 Provinces' Provinces‘ property property on on the the day day of the incident'/ ofthe incident? 9 .9 off of the area. offoflhe area. II didn‘t didn't put put the the package package -- --1I mean, mean, it it 99 A. A. One. One, There There were were two that r[was (\VOIlIat was aware aware of and ofaud 10 1 O was was in in that area. I'm Ilmtaren. not sure where l'n1nolsure where I gel 1 set it it but but it it 10 1 0 then after it then after it had had bitten bitten me me and and II turned turned tolo leave, leave. I was 1 was 11 1 1 was was within within th.at that general general area. area. So So II !11ink think hehe went went back back 11 1 1 aware . that aware that there there were were tlu·ee. lhrec‘ 12 1 2 just just to to get gel a a picture piclum of of‘hethe dog dog after after thethe eve. event nl had had 12 1 2 Q, Q. So50 wewe cau can conclude conclude as as a'd matter maltCl’ of 01‘ logic logic - -~

13 1 3 happened happened sometime sometime when when ll was. was in in the the waiting waiting room. room. 13 1 3 A. A. Yes, Yes. 14 14 Q. Q. So So you you think think this this photograph photograph marked marked as as Exhibit Iixllibil 14 1 4 Q. Q. ---~ that this dog lllﬂllllis dog depicted depicted in in Exhibit20 Exhibit 20 is is the the 15 15 20 20 was was taken taken thethe day day of oflhethe incident incidem after after it it occurred? manual? 15 1 5 one one that that bityou') bit you? 16 1 6 A. A. Correct. Correct, 1I think think Brandon Brandon took look a a picture piclure to to 16 1 '5 A. A, Correct. Correct, 17 1 7 show Show whatWhat the the dog dog looked luukcd like.like. Or Or it it could could have have been been 17 1 7 Q. Q, Here Here is is Exhibit Exhibit 21 21 ‘0to your deposition. Who yourdeposilim, Who 18 18 the the anima1 animal cop cop police police lady.Indy. It 1! was was either either Brandon Brandon or or 18 1 3 took 100k that tlml photograph? photograph? 19 1 9 her. her. I'mI'm not not sure sure who who took took it, but evenhially it it, bulevenlually it got got 19 1 9 A. A. Not N01 sure, but I know sure, but 1know it's “'5 now now the the prope1ty. propeﬂy. 20 2O texted texted toto me. me, 20 20 Q. Q. When When was was this this photograph photograph marked marked as as Exhibit Exhibit 21 2! 21 2 1 Q. Q. WhoWho texted lcxled it it to to you? you? 21 2 1 taken? taken? 22 2 2 A. A. Either Either Brandon Brandon or or my my mom. mom. 22 2 2 A. A. Sometime Sometime after after thelhc: event. event. 23 23 Q. Q. DidDid your your mommom tell tell you you thatthat anan animal animal control control 23 2 3 Q. Q- DoDO you YOU know know when? when? 24 2 '1 officer ofﬁcer sentsent her her this this photograph? photograph? 24 2 4 A. AA No. N0. 25 2 5 A. A, No. No. l mean 1menu -- -- 25 2 5 Q, Q. Do you know Do you know whowho took look Exhibit Exhibit 21?2 l ‘.’

1--------------------------1----------------------·-·--·······.

Page Page 146 146 Page Page 148 148 11 Q. Q. Why Why did did you)ou mention mention an an animal animal control control officer? omccr‘? 1l A A. No,sir. N0, sir. 22 A. A. Becm1se Because she she was was in in the the hospital hospital and·she and she was was 22 Q Q Here Here is is Exhibit Exlnbit 2222 to10 your your deposition. deposition Who Who 33 trying trying lo to inquire inquireabout about thethe dog dog andand that that she she waswas going going 33 took took that that photograph? pholograph‘.’ 44 to go oufto to go out Iolhethe house house and and laketake pictures pictures of of itit and and 44 A. A. II don't don’t know. know. II never never took took any any pictures. pictures. 55 denote what type denolcwlmt type of of dog dog it it was. was. 55 Q. Q. When When was \ms Exhibit Exhibit 22 22 taken? taken? 66 Q. Q. DoDo you you kHow know who who took look this this photograph photograph marked marked as as 56 A. A. After Aﬁcr the (he event, evenl. 77 Exhibit20? Exhibit 20? 77 Q. Q Do Do you you know know what whm day day itit was was taken? taken? 88 A A. No,! No, I do do not. not, 8B A. A. No, s.ir. No, sir 99 Q. Q. DoDo you you know know that that Brandon Brandon moved moved the the package package from from 99 Q. Q. DoDo you you know what Exhibit know wha‘ Exhibn 22 22 is is meant meant to to shm1 Show?1/

10 ID somewhere somewhere and and placed placed it it - -- 10 10 A A, The The fonce. fence,, II would would gt1css guess because because that's that‘s the the 11 L1 A. A, No. No. 11 11 center center point point of of viewpoint. Vlewpoinl, 12 L2 Q. Q. -- up —- up against against the the gate gate in in this [his photograph� photograph? 12 12 Q. Q. DoDo you you know know ,,11y why Exhibits Exhibits 22k[ and and 2222 were um taken? mkcn" 13 13 A. A. Your Your guess guess is is as as good good as as mine. mine. 13 13 A. A. One One shows shows thethe acttrnl actual gate. gate. One One shows shows the“10 14 l4 Q. Q, Okay. Okayv Is Is that that where where you you placed placed thethe package package at at 14 14 fence. fence. So So I would 1 would guess guess that that they're they're just just trying trying toto l 15S the the time time of of the the incident ineldcnl on on the [he day day of of the the incident incident as as 15 15 piece vice: together together whatwhat the the property properly lookedlooked like. like. 16 16 shown shown in in Exhibit Exhibil20’? 20? 16 1 6 Q. Q. \Vho Who is is "they"? "they"? 17 1 7 AA, II know know it it was was somewhere somewhere around around thatthat area. area 1 I 17'i 1 A A, Whoever Wlmewr took took the the picture. picturc. l 188 don't don‘t know knmv if if]I set so! it it against against the lhc fence fence or or on on !hethe 18 1 8 Q. Q. Okay. Okay. So So you you don't don‘t honestly honestly know know why why it i! was was 19 1 9 ground, ground, butInn I know 1 know it it was was somewhere somewhere close, closc,1lmtthat general general 19 1 9 taken, taken, dodo you? you? 20 20 realm. realm, 20 2U A. A. Besides showing the Besides showing the fence fence or or the the gate. gate. 21 21 Q. Q. Okay. Okay. You You can't can't say say for for sure sure that that itit wa� was 21 2 1 Q. Q. Herc's Here‘s Exhibit Exhibit 23 23 to your deposition. to your deposition. Who Who tooktook 22 22 leaning leaning upup against against the the gale gate post post like like it' it‘ss shown shown here here in in 22 2 2 that? Illaﬁ’ 23 23 Exhibit Exhibit 20? 20? 23 23 A A. 2323 lI know know was was taken taken thethe same same timetime llS as - -- 24 24 A. A, No. No, Burl But I do do know know that lhat picture picture was was after. aﬁer. II 24 2 4 Q. Q, MyMy question question is who took is who took it?il'! 25 25 can can tell tell you you that. that. That's That‘s clear clear discretion. discretion. 25 2 5 A. A. lI don't don't know. know.

37 37 (Pages (Pages 145 145 to to 148) 148) GOODENOUGH GOODENOUGH && ASSOCIATES ASSOCIATES (817) (817) 261-9095 261—9095

Page 268 EXHIBIT EXHIBIT B B

KAREN KAREN LINDSEY LINDSEY SM· ITH SMITH 08/26/2016: 87 1-187

1 I, KAREN LINDSEY SMITH� .have ,1 ..J�, • 2 foregoing deposition and llereby affi'x '!1Y s'tgnature that 33 same same is 1‘s true true and and correct, correct, e·except xcept as as rioted noted ··above. above. 4 '

9 THE STATE OF TEX.I'\) 10 11

Page 269 EXHIBIT EXHIBIT B B

KAREN KAREN LINDSEY LINDSEY SMITH SMITH 08/26/2016 08/26/2016 186 186

l J

1 CHANGES CHANGES AND AND SIGNATURE SIGNATURE

2 WITNESS WITNESS NAME: NAME: KAREN KAREN LINDSEY LINDSEY SMITH SMITH

3 DATE: DATE: AUGUST AUGUST 26, 26, 2016 2015

4 PAGE PAGE LINE LINE CHANGE CHANGR REASON REASON '\ s ?a" _

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Page 270 EXHIBIT EXHIBIT C C

Cause No. CV-2016-00729

KAREN LINDSEY SMITH, §§ IN THE COUNTY COURT Plaintiff, §§ §§ v. V. §§ NO. 22 §§ TERRY P. PROVINCE §§ Defendant. §§ DENTON COUNTY, TEXAS

AFFIDAVIT OF ERIC M. ZOLLINGER

STATE OF TEXAS §§ §§ COUNTY OF DENTON §§

BEFORE ME, the undersigned notary, on this day day personally appeared Eric Zollinger, who WhO being by by me duly sworn upon his oath, affiant afﬁant testified: testified:

“My name is Eric M. Zollinger. I am over the age age of 18 years, competent in all respects 18 years, to make this affidavit, afﬁdavit, have personal knowledge of the facts stated herein, and everything stated herein is true and correct.

I am the managing member of CastleRock Surveying, PLLC in Justin, Texas. Texas. I am the custodian of the records of CastleRock Surveying, PLLC. Attached to this affidavit afﬁdavit is 11 page page of records. The attached record is aa part of this affidavit. afﬁdavit.

The attached record is kept by by CastleRock Surveying, PLLC in the regular course of business, and it was in the regular course of business for an business, an employee or representative of CastleRock Surveying, PLLC With with knowledge of the act, act, event, condition, opinion, or diagnosis recorded to make the record or transmit information to bebe included in the records. The record was made in the regular course of business at or near the time or reasonably soon after the time the service was provided. provided. The record attached hereto is the original or exact duplicate of the original.

I am aa licensed surveyor in the State of Texas and have been been licensed and registered as as a a professional land surveyor in the State of Texas since June 20,20, 2012. My license number is R.P.L.S. 6357.

I performed aa survey of the property located at at 6749 H. Lively Road, Ponder, Texas (the “Property”) on August 11,11, 2017. Based on the survey I1 performed of the Property, the metal gate located at the front of the Property is approximately 0.6 feet inside the property line on the West and approximately 1.2 1.2 feet inside the property line on the East. The portions of the fence depicted in the detail of the survey are at at or within the property line.

AFFIDAVIT OF ERIC M. ZOLLINGER PAGE 11

Page 271 EXHIBIT EXHIBIT C C

Attached hereto as Exhibit C-l is a true and correct copy of the survey I perfonned on the Property. The survey depicts the location of the metal gate, the fence, and the property line on the Property.

The information contained in this afﬁdavit is true and correct and based on my personal knowledge.”

FURTHER AF F [ANT SAYETH NOT.

ﬂag/4,2 Eric M. 11'1n

SWORN TO AND SUBSCRIBED TO before me, the undersigned authority, by the said Eric M. Zollinger on the 3&“day of . , 2017.Mk

WW mu OT RY PUBLIC IN AND FOR Nnrary Puhlu: T TATE OF TEXAS STATE OF ’I EXAS Notary ID it 1188124-3 My Comm Exp Anal 12‘ 2020

AFFIDAVIT OF ERIC M. ZOLLINGER PAGE 2

Page 272 EXHIBIT EXHIBIT C-1 C-l

DETAIL DETAIL S s 89"48'26" _ 89'48’26" W _ 208.87' 208.87’ w (N (N 89"58'40" 895340" EE 984.70') N 8g950'36• *N 89'50’36' EE 984-70') 983.99' 983.99’ SEE SEE DETAIL D/LETAIL /i-- / '\N I/ 1——\ • _\N\ 89"50'41" 89'50’41" EE 311.47' 311.47’

«3 // 7 \ 092/91. 7/9 ’ \“\’< {£3 5!: /’80 “i: H. LIVELY H. UVELY ROAD (POSTED) ROAD (POSTED) 11n éurzgs «3° LOT LOT 24, 24, \\ $6 p' 38* z m“ 21.5' ASPHALT SURFACE 21.5' ASPHALT O§7°7<—‘ A BLOCK BLOCK 1,’ Cl) ,,......,

...0.0.. SURFACE z 1 w EAST EAST PONDER PONDER ESTATES 0 (/) .

agar-r" o go qg ESTATES 3 o CABINET CABINET C, PAGE 397, C, PAGE ﬁg 93 US. 3 397, 08 g; 0.“! .83——N—* P.R.D.C.T. P.R.D.C.T. d” 33:10;

I' ........... :1 _: N• $0 • rr,• a: 4: °: ..... -I>:. ‘4‘? 201m 5 5 TERRY PAUL TERRY PAUL PROVINCE PROVINCE mm 223:: S AND RENEE RENEE PROVINCE ....... .... ............. . AND PROVINCE ﬁg ............ ...... ...... ............ ............. . 1-) 3 g o \l INSTRUMENT INSTRUMENT NUMBER NUMBER 95-RO014779 95—ROO14779 " .0 g .-‘ (0 ' g 2 ............. '43 9% ............. a) (D R.P.R.D.C.T R.P.R.D.C.T.. 50 , E—dv' EU VLo_

"""W"" ..... · 3 .... ragga? u' 49’° a u;- :;:;,, Wpéé ""U..:�"" '0. :�:·:·:·:·: � -:-:-:·?· ggg" LOT LOT 3 LOT LOT 4 DRIVE

g3 \:::::::·::::: «3 0 4 ,, � 3

:: : ..01 : :;:� : : : : : '. m 7'93? 5 JOHN McGOWEN SURVEY, JOHN McGOWEN + 1, 46> \\.\ .22 --< SURVEY, (T,

.·.·.·.‘2 AVEL:

w·i;r:;·.·.·.·.· ABSTRACT NUMBER ABSTRACT NUMBER 798, 798, 3 \\ 488.39' 488.39’ "- 495.89' 495.89’ ’33.. - L1 DENTON COUNTY, TEXAS DENTON COUNTY, ‘5% "’ w f: 7 7

............ ... O:::.(.') ............ CR..... TEXAS s 89·s1•42• 8 89.51.42. W 984.28' 984' 8' LOT 9, BLOCK 1, ............ (S 89"58'47" 89 58 47 W 984.70 984.70)) EAST PONDER ESTATES EASL‘IpTPgNDEI-ROEETA‘II'ES ............ . CABINET CABINET C, C, PAGE PAGE 397, (S W

4" PVC 4" PVC PIPE PIPE .............

CULVERT a: — —.. CULVERT=== ...... .... ............. · .- . - .· _· -.-_-_-_. - . ............ ........... . - }=° - = 0 _ 10· LOT LOT 7R2, .5 :5 ,_ 3 P.R.D.C.T. P.R.D.C.T. 397,

t,� . . __ 7R2, ..... .. ... BLOCK BLOCK 1, O 0°.

...... r .... ti! no.

........... 3mm 1, Lama, ............ ...........‘ KELLY KELLY ESTATES .

(N 89"58'40" (N 895340" EE 984.70') HORIZ SCALE IN FEET ) ESTATES CABINET Y, PAGE 298, 984-70') .mEg ............ 0 ,0 0 .0 HORIZ. SCALE IN FEET . .MEE . 298' N 8g-so•35• N 89°50'36' EE 983.99' P.R.D.C.T. géaéagﬁgéz- • .1‘:...... ....1‘ CAB'NEE.{'D.E’?$F > 983.99, .‘ ...........‘ - In ﬁ" ,4 . 6, ::4.6' o ‘

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x" x" . ,.x ~o: .... ....... x" x" x" I � 6" WOOD 6”

l ·.-.-.-.�· 1··:1 l xI\ I\ A I\ A 8" WOOD POST a” wooo POST I ~‘ ‘ wooo POST 8" WOOD 8" WOOD POST §§2§3§532§25 ....... .... POST :;o .A ‘ POST Q ............ � 553 55; 0 .‘. . 2 . . . . .Q. . . . ..; LOT 2 LOT 4, TERRY PAUL PAUL PROVINCE AND ¢$a ,, � 1, 00 >rr 9; 9&20 6&2 "'\\ <c Q)�� O?. ...... � .... 24. TERRY PROVINCE AND �Co zz--1 Egg Z 0

l b1 in' WQ’é BLOCK BLOCK 1 1.' RENEE RENEE PROVINCE G) JOHN JOHN McGOWEN McGOWEN SURVEY, EAST EAST PONDER PONDER ESTATES PROVINCE INSTRUMENT INSTRUMENT NUMBER X :u� 132210“ .i,. SURVEY, g E � I" ABSTRACT NUMBER NUMBER 798, ESTATES :;o :T’Iz—E} L” NUMBER .b.?=rcn ABSTRACT 798, CABINET C, PAGE CABINET C, 397, -

PAGE 397, 95-ROO14779 95—ROO14779 '5'; r5'9r 0 "'O (/) 0 DENTON DENTON COUNTY, TEXAS COUNTY, TEXAS METAL METAL GATE GATE P.R.D.C.T. P.R.D.C.T. R.P.R.D.C.T. R.P.R.D.C.T. :-ti!;>Q HE>§

IIhave have this Block this date Block 1, Plat 1, of date 08-11-2017 of EAST 08—11—2017 directed EAST PONDER recorded in Plat recorded directed aa survey PONDER ESTATES, in Cabinet Cabinet C, ESTATES, an C, PAGE PAGE 397, survey made made on on the an Addition 397, Plat the ground Addition to Plat Records, ground of to Denton Records, Denton of the property located the property County, Texas, Denton County, Danton County, located at Texas, according Texas. County, Texas. at Lot according to Lot 24, the to the 24, Note: Note: Address Note: Address observed Note: Bearings Bearings are posted as observed posted based upon are based 6749 H. as 6749

upon the H. LIVELY LIVELY ROAD. the Texas Texas State ROAD. State Plane Plane Coordinate Coordinate System, System, rr,O mu s:2� ‘5: :,Jo � -I• No2 0 O

:2: WRIZ. SCALE IORIZ. SCALE IN FEET IN FEET � 1 300' 300'

North Central Zone, North Central Zone, North North American American Datum Datum 1983, 1983, U.S. US. Survey Survey Feet Feet from from This This survey represents the survey represents results of the results of an an on-the-ground on—the—ground survey survey made made under my direction under my direction and and GPS GPS observations. observations. All A11 distances distances shown shown are are grid measurements. Combined grid measurements. Combined supervision supervision on on 08-11-2017. There are 08—11—2017. There no visible are no visible or or apparent apparent intrusions, intrusions, protrusions protrusions oror easements easements 0°° 40' scale scale factor: factor: 0.99987457, Convergence angle: 099987457, Convergence angle: 0 40' 29". 29". except except as as shown shown hereon. hereon. This This survey survey was was performed without the performed without the benefit beneﬁt of of aa commitment commitment for title for title insurance. insurance. There There may may be be other other easements easements that that may may affect affect this property. this property. Note: Note: Field Field work work completed completed on on 08-11-2017. 08-11-2017. Eric Eric M. M. Zollinger Zollinger R.P.l.J. R.P.Lﬁ. No. 6357/ Date Date 08-14-2017 LEGEND LEG E N D 08—14—2017

•0 IRF = IRON IRON ROD ROD FOUND @ SEPTIC SEPTIC LID B.L. = B.L. = BUILDING BUILDING LINE . · 1'·..· ...- ..· ..· .· 1· GRAVEL JOB JOB NO. NO. 2017061 2017061 ' • IRFC IRF = 'RFC = WITH CAP FOUND = IRON ROD FOUND FOUND © ss LID SS SANITARY SANITARY SEWER SEWER MANHOLE GPLS GPLS = = OIL/GAS LINE OIL/GAS PIPELINE PIPELINE MARKER PROPER1Y LINE ADJOINER LINE GRAVEL

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Page 273 / EXHIBIT EXHIBIT D D

Cause Cause No. No. CV-2016-00729 CV-2016-00729

KAREN KAREN LINDSEY LINDSEY SMITH, SMITH, §§ IN IN THE THE COUNTY COUNTY COURT COURT Plaintiff, Plaintiff, §§ §§ v. v. §§ N0.2 NO. 2 §§ TERRY TERRY P. P. PROVINCE PROVINCE §§ Defendant. Defendant. §§ DENTON DENTON COUNTY, COUNTY, TEXAS TEXAS

AFFIDAVIT AFFIDAVIT OF OF RENEE RENEE PROVINCE PROVINCE

STA TE OF STATE OF TEXAS TEXAS §§ §§ COU NTY oF COUNTY OF Oevt Oéman±on §§

BEFORE BEFORE ME, the undersigned ME, the undersigned notary, notary, on on this this day day personally personally appeared appeared Renee Renee Province, Province, aa person whose person whose identity identity is is known known to me. After to me. After II administered administered an an oath to affiant, oath to afﬁant, affiant testified: aﬁiant testiﬁed:

"My “My name name isis Renee Renee Province. Province. II am the wife am the wife of of Terry Terry Province, the Defendant Province, the Defendant in this suit. in this suit. II am am over over the the age age of of 18 18 years, years, competent competent inin all all respects respects to make this to make this affidavit, afﬁdavit, have personal have personal knowledge knowledge of the facts of the facts stated stated herein, herein, and and everything everything stated stated herein herein is true and is true and correct. correct.

The The dog dog that that Plaintiff Plaintiff has has identified identiﬁed as the "black as the “black dog" that bit dog” that bit her her is is named named "Heidi." “Heidi.” Heidi Heidi is is now now seven seven years years old, old, weighs weighs approximately approximately 100 pounds, and 100 pounds, and is is aa mixed mixed breed. breed. At the time At the time of of the incident, the incident, Heidi was six years Heidi was six years old. old.

Heidi Heidi has has no no vicious vicious tendencies tendencies and and had had never never bitten bitten anyone anyone before the incident before the incident at at issue. issue.

My My husband, husband, Terry, Terry, and and II currently currently own own five ﬁve dogs, three of dogs, three which, including of which, including Heidi, Heidi, are are mostly mostly outdoors. outdoors. The The dogs dogs are are kept kept within within our our fenced-in fenced-in yard. yard. The The dogs dogs run run along along the the fence fence and and bark whenever someone bark whenever passes by someone passes by the the yard yard or or approaches the gate. approaches the gate.

II was was not not present present on on my property when my property when the the incident incident at at issue issue occurred. occurred. My My husband husband and and II were away were away together together running running errands. errands. When When my my husband husband and and II returned returned home, home, all all of the dogs of the were dogs were still still contained contained within the fence within the fence on on our our property. property.

II asked asked delivery people, including delivery people, including UPS, to leave UPS, to leave packages packages outside the gate outside the gate to to our property. our property.

My My husband, husband, Terry, Terry, and and II preferred preferred for for delivery delivery people people to to leave leave packages packages outside outside the the gate gate to to our property. We our property. We dodo not not like like strangers strangers corning coming onto onto our our property. property. We We also also fear that someone fear that someone opening the gate opening the gate and and entering entering our our property might not property might not close close and and secure secure the the gate properly when gate properly when leaving, thereby making it possible for our dogs to escape our property. leaving, thereby making it possible for our dogs to escape our property. None of our dogs has ever None of our dogs has ever attacked, attacked, chewed, chewed, or or in in any any way way damaged damaged aa package package or piece of or piece mail left of mail left at at our our property. property.

The package Ms. The package Ms. Smith was delivering Smith was delivering on on the the day day of the incident of the incident contained printer ink. contained printer ink.

AFFIDAVIT AFFIDAVIT OF OF RENEE RENEE PROVINCE PROVINCE PAGE PAGE 1 1

Page 274 EXHIBIT EXHIBIT D D

The The information mformatlon contained contamed in this affidavit 1n this afﬁdavit is is true true and and correct correct and and based based on on my my personal personal knowledge." knowledge.’

FURTHER FURTHER AFFIANT AFFIANT SAYETHNOT. SAYETH NOT

Renee Renee Province Province

SWORN SWORN TO TO AND AND SUBSCRIBED SUBSCRIBED TO TO before before me, the undersigned me, the under31gned authority, authorlty, by the said by the sad Renee Renee Province Province on the 2"'1 on the 2?“ day of Septern day of Scpgmbcrber ,, 2017. 2017

NOTARY DI/WW NOTARY PUBLIC PUBLIC IN IN AND AND FOR FOR WW THE THE STA TE OF STATE OF TEXAS TEXAS

“RY Pg’ DEVIN ENCKSON '3“ Notary Public n Sxate ofTexas WM ‘$"Ng,

€’ “ ID 13105328--7 4‘ ’[uf‘¢ My Comm. Expires 03- 22 20 21

AFFIDAVIT AFFIDAVIT OF OF RENEE PROVINCE RENEE VPROVINCE PAGE2 PAGE 2

Page 275 Filed: Filed: 11/7/2017 11/7/2017 2:09 PM Juli Luke Denton County, County, County Clerk By: By: Alexa Hagenbucher, Hagenbucher, Deputy

CAUSE CAUSE NO. NO. CV-2016-00729 CV—2016-00729

KAREN KAREN LINDSEY LINDSEY SMITH, SMITH, § IN IN THE THE COUNTY COUNTY COURT COURT § Plaintiff, Plaintiff, § § v. V. § mmmmmmmmm NO. NO. 2 2 § TERRY TERRY P. P. PROVINCE, PROVINCE, § § Defendant. Defendant. § DENTON DENTON COUNTY, COUNTY, TEXAS TEXAS

PLAINTIFF’S PLAINTIFF’S RESPONSE RESPONSE TO TO DEFENDANT’S DEFENDANT’S SECOND SECOND AMENDED AMENDED MOTION MOTION FOR FOR SUMMARY SUMMARY JUDGMENT JUDGMENT

Plaintiff Plaintiff Karen Karen Lindsey Lindsey Smith Smith (“Plaintiff”) (“Plaintiff”) files ﬁles this this Response Response to to Defendant’s Defendant’s

Second Amended Motion Second Amended Motion for for Summary Summary Judgment Judgment (the (the “Motion”), “Motion”), and respectfully and respectfully

states states the the following: following:

I. I. INTRODUCTION INTRODUCTION

1. 1. Summary judgment is Summary judgment is appropriate appropriate only where reasonable only Where reasonable minds minds could could

not disagree not disagree on on relevant relevant facts, facts, and and applicable applicable law. law. In In other words, summary other words, summary

judgment is judgment is appropriate appropriate where Where aa parties’ patties” right right to judgment is to judgment is obvious obvious and and

indisputable. indisputable.

PLAINTIFF’S R PLAINTIFF’S RESPONSE TO D ESPONSE TO EFENDANT’S S DEFENDANT’S ECOND SECOND PAGE 1 PAGE 1 A MENDED M AMENDED MOTION FOR S OTION FOR UMMARY J SUMMARY UDGMENT JUDGMENT

Page 282 2. 2. Defendant recently filed Defendant recently ﬁled his his third third Motion Motion for for Summary Summary Judgment. Judgment.

These These motions motions all all are based on are based on the the same same causes causes of of action, action, and and on on the the same same “facts.” “facts.”11

Defendant has not Defendant has not explained, nor could explained, nor could he, why he he, Why he believed believed it it was necessary to was necessary to file ﬁle

three three motions motions to to explain his “obvious explain his “obvious and and indisputable” indisputable” right right to judgment. to judgment.

3. 3. The The truth tmth is, is, the the relevant relevant facts facts and and applicable applicable law law are are far far from from “obvious “obvious

and and indisputable.” indisputable.” Plaintiff’s Plaintiff” 3 dog dog is part German is part German Shepherd Shepherd and part Boxer and part Boxer – — both both of of which which are are widely widely recognized recognized as as “dangerous” ”dangerous” breeds. breeds. While While the the dog’s dog’s breed breed does does

not necessarily not necessarily make make the the vicious, Vicious, it it should have put should have put Defendant Defendant on notice that on notice that he he

needed to needed use additional to use additional care care to to protect protect Plaintiff Plaintiff and and the the general general public public from from the the

dog's dog's inbred inbred tendencies. tendencies.

4. Defendant has no Defendant has no legitimate legitimate excuse excuse for for failing failing to to protect protect Plaintiff. Plaintiff.

During his recent During his recent deposition deposition (which (which Defendant Defendant only only gave gave after after the the Court Court ordered ordered

him to him to do do so), so), Defendant Defendant testified testiﬁed that he installed that he installed chicken chicken wire Wire over over aa portion portion of of the the

gate gate to his property to his – the property — the main point of main point of ingress ingress and and egress. egress. If Defendant Defendant had had installed installed

chicken chicken wire Wire over over the the entire entire gate, gate, his his dog dog could could not not have bitten Plaintiff have bitten Plaintiff or or anyone anyone

else else who Who came came to to the the gate. gate. And yet Defendant And yet Defendant did did not not do do so so for for the the sole sole reason reason that that

1 1

Incredibly, Defendant previously claimed to know what his dog was thinking at the time it viciously attacked Plaintiff. Defendant makes makes no no mention mention of of this this “fact” in in his his most most recent recent Motion for Summary Judgment.

PLAINTIFF’S R PLAINTIFF’S RESPONSE TO D ESPONSE TO EFENDANT’S S DEFENDANT’S ECOND SECOND PAGE 2 PAGE 2 A MENDED M AMENDED MOTION FOR S OTION FOR UMMARY J SUMMARY UDGMENT JUDGMENT

Page 283 he ran he ran out out of of chicken wire. In chicken Wire. In other other words, words, Defendant Defendant exposed exposed Plaintiff Plaintiff to to life life

threatening threatening injuries injuries simply simply to to save save a a few few dollars dollars and and avoid avoid aa trip trip to to aa hardware hardware store. store.

5. 5. As explained As explained below, below, and and in in Plaintiff’s Plaintiff’s responses responses to to Defendant’s Defendant’s other other

motions, motions, Defendant Defendant is not entitled is not entitled to to summary judgment. This summary judgment. This lawsuit needs to lawsuit needs to

proceed to proceed to trial, trial, at which time at which time aa jury jury will need need to to determine determine whether Whether Defendant Defendant is is

responsible for responsible his dog's for his dog's attack attack on on Plaintiff. Plaintiff.

II. FACTS FACTS

6. 6. This This lawsuit lawsuit involves involves aa vicious Vicious attack attack (the (the “Attack”) “Attack”) by by one one of of

Defendant Defendant Terry Terry P. P. Province’s Province’s dogs dogs upon upon Plaintiff. Plaintiff. On On January January 4, 4, 2016, 2016, Plaintiff Plaintiff

was working was working for for United United Parcel Parcel Service Service (“U.P.S.”). (“U.P.S.”). Plaintiff Plaintiff was was aa temporary, temporary, holiday holiday

season season employee employee for U.P.S., but for UPS, but was working With was working with an an experienced experienced driver. driver.

7. 7. Plaintiff Plaintiff and and her her co-worker were dispatched co-worker were dispatched to to Defendant’s Defendant’s home home in in

Ponder Ponder to to deliver deliver aa package. package. Plaintiff’s Plaintiff’s co-worker warned Plaintiff co-worker warned Plaintiff that that Defendant Defendant

kept kept dogs dogs on on his his property. property. To To avoid avoid any any interaction with Defendant’s interaction with Defendant’s dogs, dogs,

Defendant’s wife claims Defendant’s Wife claims “before “before the the incident incident at at issue, issue, [she] [she] told told delivery persons to delivery persons to

put packages put packages on on the the ground ground outside outside the the gate/fence, gate/ fence, and not attempt and not attempt to put them to put them over over

the the fence.” Amended Motion fence.” Amended Motion at at Exhibit Exhibit E. E. In In the the Third Third Motion Motion (but (but not not in in the the

Original Original Motion), Motion), Defendant Defendant claims claims this this instruction was given instruction was not because given not because of of the the

dogs’ dogs” violent Violent tendencies, but instead tendencies, but instead because “ [Defendant and because “ [Defendant his Wife] and his wife] do not like do not like

PLAINTIFF’S R PLAINTIFF’S RESPONSE TO D ESPONSE TO EFENDANT’S S DEFENDANT’S ECOND SECOND PAGE 3 PAGE 3 A MENDED M AMENDED MOTION FOR S OTION FOR UMMARY J SUMMARY UDGMENT JUDGMENT

Page 284 strangers strangers coming coming onto onto [their] property. [Defendant [their] property. [Defendant and his Wife] and his wife] also also fear fear that that

someone someone opening opening the the gate gate and and entering entering [their] property might [their] property not close might not close and and secure secure

the the gate gate properly properly when when leaving leaving the property, thereby the property, thereby making making it possible for it possible for [their] [their]

dogs dogs to to escape escape [their] property.” Motion [their] property.” Motion at at Exhibit Exhibit D. D. This This “explanation” “explanation” for for

Defendant’s Defendant’s instruction instruction in in no no way way explains explains why Why Defendant’s Defendant’s wife Wife would have would have

instructed instructed delivery persons to delivery persons to place packages on place packages on the the ground ground outside outside the the gate/fence, gate/fence,

and not on and not on the the ground ground inside inside the the gate/fence. gate/fence.

8. 8. After driving After driving to to Defendant’s home, Plaintiff Defendant’s home, Plaintiff exited exited the the U.P.S. UPS. truck. truck.

Plaintiff Plaintiff saw saw two two dogs dogs on on Defendant's property, but Defendant's property, but did did not not see see a a third third dog. Motion dog. Motion

at at Exh. Exh. B, B, at at p. p. 48, 48, ll. 11. 11-14. 11-14. Plaintiff Plaintiff set set the package outside the package outside the the gate, gate, as as she was she was

instructed instructed by her U.P.S. by her U.P.S. co-worker. Id. at co—worker. Id. p. 48, at p. 48, l. 1. 21 21 to to p. p. 49, 49, l. 1. 1; p. 50, 1; p. 50, l. 1. 17 17 to to p. p.

53, 53, l. 1. 3. 3. Plaintiff Plaintiff does does not not specifically recall whether speciﬁcally recall Whether she she laid laid the package on the package on the the

ground, ground, leaned leaned the the package package against against the the gate gate post, post, or or gently gently tossed tossed the package to the package to the the

ground. Id. at ground. Id. at p. p. 52, 52, l. 1. 8 8 to to p. p. 53, 53, l. 1. 3. 3.

9. 9. While While Plaintiff was leaving Plaintiff was leaving the package outside the package outside the the gate, gate, a a third third dog dog

(the (the “Attack “Attack Dog”) Dog”) approached. approached. Without Without any any warning, warning, the Attack Dog the Attack Dog stuck stuck its its head head

through through an an opening opening in in the the gate, gate, and bit Plaintiff and bit Plaintiff in in the neck. No the neck. No one one knows knows precisely precisely

why the Why Attack Dog the Attack Dog acted acted this this way, way, but but Plaintiff Plaintiff (who was the (who was the only person in only person in direct direct

proximity with proximity with the the Attack Attack Dog) Dog) has has testified testiﬁed “the “the [Attack [Attack Dog] Dog] obviously obviously wanted wanted the the

PLAINTIFF’S R PLAINTIFF’S RESPONSE TO D ESPONSE TO EFENDANT’S S DEFENDANT’S ECOND SECOND PAGE 4 PAGE 4 A MENDED M AMENDED MOTION FOR S OTION FOR UMMARY J SUMMARY UDGMENT JUDGMENT

Page 285 package or package wanted some or wanted some type type of of toy toy or or something. something. It was aa little It was bit aggressive little bit aggressive more more

than than the the norm. norm. So So it it made made aa point point of of coming coming through through the the fence fence more more than than like like aa

worst-case scenario.” worst—case scenario.” Motion at Motion at Exh. Exh. B, B, at at p. p. 129, 129, ll. 11. 4-8. 4-8.

10. 10. Unfortunately, the Unfortunately, the Attack was both Attack was both foreseeable foreseeable and and preventable. preventable. The The

Attack Dog Attack Dog is is aa large large dog, weighing approximately dog, weighing approximately 100 pounds. The 100 pounds. Attack Dog The Attack Dog is is

aa mixed breed dog, mixed breed dog, comprised comprised primarily primarily of of German German Shepherd Shepherd and and Boxer. Boxer. See DNA See DNA

Analysis, aa copy Analysis, copy of of which which is is attached attached as as Exhibit Exhibit A. A. Statistically, Statistically, these these dogs dogs are are

extraordinarily extraordinarily dangerous. dangerous. See See 14 Dog Breeds I 4 Dog Breeds Blacklisted Blacklisted by Insurance Companies, by Insurance Companies,

Psychology Psychology Today, Today, May May 27, 27, 2014 2014 (a (a copy copy of of which which is is attached attached as as Exhibit Exhibit B). B). In In fact, fact,

according according to to Forbes Forbes and and Dog’s Dog’s World, World, the the German German Shepherd Shepherd is is the the fourth fourth most most

dangerous breed, and dangerous breed, and the the Boxer Boxer is is the the eighth eighth most most dangerous breed. See dangerous breed. See Exhibits Exhibits C C

and and D. D. This This does does not not mean mean that that aa particular particular dog dog of of these breeds may these breeds may be be vicious; Vicious; it it

does does mean, however, that mean, however, that these breeds present these breeds present aa heightened risk, requiring heightened risk, requiring greater greater

care. care.

11. 11. At very At very little little time time or or expense, expense, Defendant Defendant could have protected could have protected Plaintiff Plaintiff

from from the the Attack Attack Dog, but chose Dog, but chose not not to to do do so. so. Defendant has aa wire Defendant has Wire fence fence around around his his

property, with property, with aa gate gate at at the the primary primary point point of of ingress/egress. ingress/egress. T. Province Depo T Province Depo

(excerpts (excerpts of of which which are are attached attached as as Exhibit Exhibit F) F) at at p. p. 33, 33, l. 1. 17 17 to p. 34, to p. 34, l. 1. 8. 8. There There are are

PLAINTIFF’S R PLAINTIFF’S RESPONSE TO D ESPONSE TO EFENDANT’S S DEFENDANT’S ECOND SECOND PAGE 5 PAGE 5 A MENDED M AMENDED MOTION FOR S OTION FOR UMMARY J SUMMARY UDGMENT JUDGMENT

Page 286 gaps gaps in in the the gate. Id. Defendant gate. Id. Defendant knew knew there there were were openings openings in in the the gate gate “large “large enough enough

for for aa dog dog that that felt felt threatened, threatened, like like [the [the Attack Attack Dog], Dog], to to stick stick its nose through.” its nose Id. through.” Id.

12. 12. Defendant Defendant and and his his wife Wife have have several several dogs, dogs, some some of of which which are are “outside”

dogs. dogs. In In order order to to keep keep the the smaller smaller dogs dogs on on Defendant’s property, he Defendant’s property, he installed installed chicken chicken

wire over Wire over lower lower gaps gaps in in the the gate. gate. However, However, he he did did not not cover cover the the entire entire gate with gate with

chicken chicken wire because “that’s just Wire because just how how much wire [he] much Wire had at [he] had at the the time." time." T. Province T Province

Depo at Depo at p. p. 28, 28, l. 1. 21 21 to p. 29, to p. 29, l. 1. 8. 8. Had he done Had he done so, so, the Attack Dog the Attack would not Dog would not have have

been able been able to to stick stick his his snout snout through through the the gate, gate, and and would would not have been not have been able able to to bite bite

Plaintiff. Plaintiff.

13. 13. Defendant's Defendant's indifference indifference to to the the public's public's safety safety is is clearly clearly shown shown by his by his

actions actions following following the the Attack. Attack. During his deposition, During his deposition, Plaintiff’s Plaintiff” s counsel counsel asked asked

Defendant what repairs, Defendant What repairs, if any, any, he he made made to to the the gate gate after after the the Attack: Attack:

Q. Q. Sir, Sir, since since the the time time of of the the [Attack], [Attack], have you made have you made any any changes changes to to the the gate? gate?

A. No. No.

Q. You You haven't haven't put put chicken wire all chicken Wire all the the way up? way up? CPO?

A. No. No.

Q. So So if if someone someone came came to to the gate and the gate and dropped dropped a package again, a package again, this same thing, this same thing, [the Attack Dog] [the Attack Dog] could could bite bite that person again? that person again?

A. A. I – I have — have no no expectation expectation that that that that would would happen happen at at all. all.

PLAINTIFF’S R PLAINTIFF’S RESPONSE TO D ESPONSE TO EFENDANT’S S DEFENDANT’S ECOND SECOND PAGE 6 PAGE 6 A MENDED M AMENDED MOTION FOR S OTION FOR UMMARY J SUMMARY UDGMENT JUDGMENT

Page 287 Q. Q. But it But it would would be possible. be possible.

A. A. It would would be, be, in in my my opinion, opinion, monumentally monumentally improbable, improbable, but but not not impossible. impossible.

T. Province Depo T Province Depo at p. 43, at p. 43, ll. 11. 1-14. 1-14.

III. OBJECTION OBJECTION TO TO SUMMARY SUMMARY JUDGMENT JUDGMENT EVIDENCE EVIDENCE

14. 14. One One of of the the primary primary issues issues in in this this lawsuit lawsuit is is whether Whether the the Attack Attack Dog Dog had had

vicious Vicious tendencies prior to tendencies prior to the the Attack. Attack. In In order order to to demonstrate demonstrate the the Attack Attack Dog’s Dog’s

“peacefulness,” “peacefulness,” Defendant Defendant offers offers (a) (a) aa picture picture of of the the Attack Attack Dog Dog lying next to lying next to aa cat cat22

and and (b) (b) affidavits afﬁdavits of of Defendant Defendant and his wife and his Wife stating stating “[the “[the Attack Attack Dog] Dog] has no vicious has no Vicious

tendencies tendencies and and had never bitten had never bitten anyone anyone before before the the incident incident at at issue.” issue.” See Affidavit See Afﬁdavit

of of Terry Province (Motion Terry Province (Motion at at Exh. Exh. A) A) and Affidavit of and Afﬁdavit Renee Province of Renee Province (Motion (Motion at at

Exh. Exh. D). D).

15. 15. Plaintiff Plaintiff objects objects to to the Affidavits of the Afﬁdavits of Terry Terry Province Province and and Renee Renee Province Province

on on the the grounds grounds they they are are self-serving self—serving and and conclusory. conclusory. Under Under Texas Texas law, law, aa self-serving self—serving

affidavit afﬁdavit (i.e. (i. e. an an affidavit afﬁdavit offered offered by by aa person with an person with an interest interest in in the the outcome outcome of of the the

lawsuit) lawsuit) can be admissible can be admissible summary judgment evidence, summary judgment evidence, but but must must contain contain statements statements

22 Plaintiff’s Plaintiff's counsel counsel cannot cannot fathom fathom how how aa picture picture of aa dog and aa cat is relevant to this lawsuit, or in any any way supports the Motion for Summary Judgment. Plaintiff does not contend the cat was responsible for the Attack. Nevertheless, Plaintiff offers aa photograph of her wounds (a (a copy copy of which is attached as as Exhibit E) E) to show the damage caused byby the Attack Dog. Plaintiff does not offer any opinion regarding the “peacefulness” “peacefulness” ofof the the cat. cat.

PLAINTIFF’S R PLAINTIFF’S RESPONSE TO D ESPONSE TO EFENDANT’S S DEFENDANT’S ECOND SECOND PAGE 7 PAGE 7 A MENDED M AMENDED MOTION FOR S OTION FOR UMMARY J SUMMARY UDGMENT JUDGMENT

Page 288 that that may may be be confirmed conﬁrmed or or denied by independent denied by independent evidence. evidence. Trico Trico Techs. Techs. Corp. Corp. v. v.

Montiel, 949 Montiel, 949 S.W.2d S.W.2d 308, 308, 310 310 (Tex. (Tex. 1997); 1997); Casso Casso v. Brand, 776 v. Brand, 776 S.W.2d S.W.2d 551, 551, 558 558

(Tex. (Tex. 1989). 1989). Similarly, Similarly, conclusory conclusory statements statements in in affidavits afﬁdavits are are not not proper proper summary summary

judgment evidence judgment evidence if there there are no facts are no facts to to support support the the conclusions. El Dorado conclusions. El Dorado

Motors, Inc. Motors, Inc. v. Koch, 168 v. Koch, 168 S.W.3d S.W.3d 360, 360, 366 366 (Tex. (Tex. App.—Dallas App—Dallas 2005, 2005, no no

pet.); Dolcefmo pet); Dolcefino v. Randolph, 19 v. Randolph, 19 S.W.3d S.W.3d 906, 906, 930 930 (Tex. App.—Houston [14th (Tex. App—Houston [14th Dist.] Dist]

2000, 2000, pet. pet. denied) denied) (op. (Op. on 011 reh'g). reh'g).

16. 16. In In their their affidavits, afﬁdavits, Defendant Defendant and his wife and his Wife state state “[the “[the Attack Attack Dog] Dog] has has

no vicious no Vicious tendencies tendencies and and had had never bitten anyone never bitten before the anyone before the incident incident at at issue.” Aff. issue.” Aﬂ.

of Terry Province ofTerry Province (Motion (Motion at at Exh. A) at Exh. A) p. 1; at p. Aff. of 1; Aﬂ. Renee Province 0fRenee Province (Motion (Motion at at Exh. Exh.

D) D) at p. 1. at p. Although Defendant 1. Although Defendant and his wife and his Wife clearly clearly are are interested persons, they interested persons, they have have

not offered not offered any any evidence evidence (e.g. (e. g. the the testimony testimony of of aa disinterested person) to disinterested person) to verify verify their their

statements. statements. In In fact, fact, the the Mr. Mr. and and Mrs. Mrs. Province’s Province’s statement statement that that the the Attack Attack Dog Dog “has “has

no vicious no Vicious tendencies” tendencies” is is so so vague vague and and conclusory conclusory that that it would be it would be impossible impossible to to

confirm conﬁrm or negate such or negate such aa statement. As such, statement. As such, Mr. Mr. and and Mrs. Mrs. Province’s Province’s affidavits afﬁdavits do do

not constitute not constitute admissible admissible summary judgment evidence. summary judgment evidence.

PLAINTIFF’S R PLAINTIFF’S RESPONSE TO D ESPONSE TO EFENDANT’S S DEFENDANT’S ECOND SECOND PAGE 8 PAGE 8 A MENDED M AMENDED MOTION FOR S OTION FOR UMMARY J SUMMARY UDGMENT JUDGMENT

Page 289 IV. IV. ARGUMENT ARGUMENT

A. Traditional Traditional Motion Motion for for Summary Summary Judgment. Judgment.

17. 17. In his previous In his previous Amended Amended Motion, Motion, Defendant Defendant stated stated “[t]he “[t]he facts facts and and

controlling controlling law law in in this this case case are are clear, clear, and reasonable minds and reasonable minds could not differ could not differ in in

applying applying them, them, so so summary judgment in summary judgment in Defendant’s Defendant’s favor, favor, the the equivalent equivalent of of an an

instructed instructed verdict verdict at at trial, trial, is is proper.” Amended Motion proper.” Amended Motion at at p. p. 5. Nothing could 5. Nothing could be be

further further from from the the truth. truth.

18. 18. Texas Texas adheres adheres to to the the so-called so—called “one “one bite” rule with respect rule with respect to to dog dog bites. bites.

Marshall v. Marshall Ranne, 511 v. Ranne, 511 S.W.2d S.W.2d 255 255 (Tex. (Tex. 1974). 1974). This This name name is is misleading. misleading. A A dog dog

owner owner is not free is not free of of liability liability the the first ﬁrst time time his his or her dog or her dog attacks attacks aa person. person. Instead, Instead,

as as the the court noted in court noted Lewis v. in Lewis v. Great Great Southwestern Southwestern Corporation, Corporation, 473 473 S.W.2d S.W.2d 228, 228, 230 230

(Tex.Civ.App.—Fort (Tex.CiV.App.—F011 Worth Worth 1971, 1971, writ writ ref’d n.r.e.) n.r.e.) (emphasis (emphasis added), added), “the “the owner owner of of

the the dog dog is is not not liable liable for for injuries injuries caused caused by by it, it, unless unless it it is is vicious Vicious and and knowledge knowledge or or

constructive constructive knowledge knowledge of of that that fact fact is is shown shown or brought home or brought home to to the the owner.” owner.” In In other other

words, if aa man words, man knows knows or should know or Should know that his best that his best friend has vicious friend has Vicious tendencies, tendencies,

that that man man cannot cannot escape escape liability liability simply because his simply because his dog dog has has not not yet hurt someone. yet hurt someone.

See Rodriguez v. See Rodriguez Haddock, 2003 v. Haddock, 2003 WL WL 1784923 1784923 at at *2 *2 (Tex.App.—Fort (Tex.App.—F011 Worth, April Worth, April

3, 3, 2003, 2003, no pet.) (emphasis no pet.) (emphasis added). added).

PLAINTIFF’S R PLAINTIFF’S RESPONSE TO D ESPONSE TO EFENDANT’S S DEFENDANT’S ECOND SECOND PAGE 9 PAGE 9 A MENDED M AMENDED MOTION FOR S OTION FOR UMMARY J SUMMARY UDGMENT JUDGMENT

Page 290 19. 19. As the As the court recently recognized court recently recognized in in Stein Stein v. Reger, 2016 v. Reger, 2016 Tex. App. Tex. App.

st LEXIS LEXIS 5961, 5961, 2016 2016 WL WL 3162589 3162589 (Tex. App.—Houston [1 (Tex. App—Houston [1St Dist.] Dist] 2016), 2016), aa dog’s dog’s

breed can breed have aa direct can have direct impact impact on on whether Whether aa homeowner homeowner is is liable liable for for an an attack. attack. In In

Stein, Stein, as as in in this this case, case, the plaintiff was the plaintiff was aa UPS. U.P.S. worker worker who Who was was attacked by aa German attacked by German

Shepherd. Although the Shepherd. Although the defendants defendants kept kept the the German German Shepherd Shepherd in in aa fenced fenced area, area, the the

dog jumped the dog jumped the fence fence and and attacked attacked the the plaintiff. plaintiff. The The defendants defendants filed ﬁled aa Motion Motion for for

Summary Summary Judgment, Judgment, including including affidavits afﬁdavits stating stating that that the the dog never had dog never bitten anyone had bitten anyone

before, and before, had not and had not previously previously attempted attempted to jump the to jump the fence. fence. Based Based in part on in part on the the

defendants’ defendants’ statements statements that that they they “could “could never never have have anticipated anticipated that that [the [the dog] dog] may may

have been have been able able to jump the to jump the fence,” fence,” the the court court granted granted the the defendants’ defendants’ traditional traditional and and

no-evidence no—evidence Motion Motion for for Summary Summary Judgment. Judgment.

20. Even Even if if aa dog dog is is not not vicious, Vicious, its its owner owner may may be be liable liable for for injuries injuries the the dog dog

causes causes “if the plaintiff can the plaintiff prove the can prove the owner's owner's negligent negligent handling handling or or keeping keeping of of the the

animal animal caused caused the the injury.” Labaj v. injury.” Labaj v. VanHouten, VanHouten, 322 322 S.W.3d S.W.3d 416, 416, 420 420 (Tex. (Tex. App.— App.—

Amarillo 2010, Amarillo no pet.); 2010, no pet); see Dunnings v. see Dunnings v. Castro, Castro, 881 881 S.W.2d S.W.2d 559, 559, 563 563 (Tex. App.— (Tex. App.—

Houston Houston [1st [lst Dist.] Dist] 1994, 1994, writ writ denied) denied) (“an (“an owner owner of of aa dog dog may may be be liable liable for for injuries injuries

caused by the caused by the dog dog even even if the the animal animal is is not not vicious, Vicious, if the the plaintiff plaintiff can can prove prove that that the the

owner's owner's negligent negligent handling handling of of the the animal animal caused caused the the animal animal to to injure injure the the plaintiff”). plaintiff ’).

“Unlike “Unlike strict strict liability liability claims, claims, to prevail in to prevail in aa negligence negligence action action the plaintiff does the plaintiff does not not

PLAINTIFF’S R PLAINTIFF’S RESPONSE TO D ESPONSE TO EFENDANT’S S DEFENDANT’S ECOND SECOND PAGE 10 PAGE 10 A MENDED M AMENDED MOTION FOR S OTION FOR UMMARY J SUMMARY UDGMENT JUDGMENT

Page 291 have to prove that the animal was Vicious or dangerous.” Muela v. Gomez, 343 S.W.3d 491, 496 (Tex. App.—El Paso 2011, no pet); see Dunnings, 881 S.W.2d at 562 (although ﬁnding of Viciousness is necessary in strict-liability claim, it is not

necessary in negligence claim). To sustain such a claim, the Victim of the dog bite

must show: "( 1) the defendant was the owner or possessor of the animal; (2) the

defendant owed a duty to exercise reasonable care to prevent the animal from

injuring others; (3) the defendant breached that duty; and (4) the defendant's breach

proximately caused the plaintiff‘s injury." M, 322 S.W.3d at 420-21.

21. Although the Stein court found the defendant did not breach a duty to

the plaintiff, its decision is instructive in this lawsuit. "The threshold inquiry in a

negligence case is duty." Mu_ela, 343 S.W.3d at 497. The status of the plaintiff who

was injured on the defendant's premises determines the scope of the defendant's

duty. My; 322 S.W.3d at 421. A mailman, like Stein, is an invitee and, thus, the

Regers had a duty to "exercise ordinary care to keep [their] premises in a reasonably

safe condition." 161.; see Dunnings, 881 S.W.2d at 563 (holding mailman is invitee in

dog—bite negligence case). The extent of the duty of “ordinary care” depends to a

certain degree “on proof of whether the risk of injury from a dog bite is foreseeable,

i. e. , the dog owner's actual or constructive knowledge of the danger presented by his

dog.” Labai, 322 S.W.3d at 421. To establish that a defendant breached their duty,

PLAINTIFF’S RESPONSE TO DEFENDANT’S SECOND PAGE 11 AMENDED MOTION FOR SUMMARY JUDGMENT

Page 292 the plaintiff “must the plaintiff “must present present evidence evidence showing showing [the [the defendant] defendant] did did not not act act as as a a

‘reasonable prudent person’ ‘reasonable prudent person’ would would have have acted acted in in the the same same or or similar similar circumstances circumstances

in in handling handling the the dog”: dog”:

[The plaintiff] did [The plaintiff] did not not proffer proffer evidence evidence that that the the [defendants] [defendants] breached breached any any duty duty toto [the [the plaintiff] by failing plaintiff] by failing to to secure secure [the [the dog]. dog]. [The [The plaintiff] plaintiff] diddid not not identify identify any any evidence evidence thatthat the the [defendants] [defendants] did did not use ‘ordinary not use ‘ordinary care’ care’ in in securing securing [their [their dog] dog] behind behind an an iron-wrought iron—wrought fence.fence. In In response to response to the the motions, motions, [the plaintiff] did [the plaintiff] did not not present present anyany evidence evidence concerning concerning the the height height of of the the fence, fence, [the [the dog’s] dog’s] size, size, the the typical typical height height a a German German Shepherd Shepherd can jump, or can jump, or that that [the [the dog] dog] hadhad previously jumped the previously jumped the fence. fence. In In his his brief, he brief, he makes makes one, one, conclusory conclusory statement statement regarding regarding breach: that breach: that the the [defendants] [defendants] breached breached theirtheir duty duty by by failing failing ‘to ‘to ensure ensure that that [their [their dog], dog], aa large large German German shepherd, shepherd, waswas properly secured properly secured in in her her enclosure.’ enclosure.’ This This conclusory conclusory statement statement doesdoes notnot analyze analyze howhow thethe [defendants] breached [defendants] breached their their duty duty or or how how the the [defendants] [defendants] shouldshould have have secured secured [their [their dog] beyond doing dog] beyond doing what What they they hadhad already already done, done, that that is, is, securing securing her her inin aa fenced fenced area. area.

Stein, Stein, 2016 2016 Tex. Tex. App. App. LEXIS LEXIS 5961 5961 at p. 11, at p. 11, citing Allen ex citing Allen ex rel. B.A. v. rel. B.A. Albin, 97 v. Albin, 97

S.W.3d S.W.3d 655, 655, 666 666 (Tex. App.—Waco 2002, (Tex. App—Waco no pet.). 2002, no pet).

22. Unlike Unlike in in Stein, Stein, the the Plaintiff Plaintiff in in this this lawsuit has offered lawsuit has offered summary summary

judgment evidence judgment regarding the evidence regarding the well-known well—known characteristics characteristics of of the the dog dog in in question. question.

The The Attack Attack Dog Dog is is aa mixed mixed breed breed dog dog comprised comprised primarily primarily of of German German Shepherd Shepherd and and

Boxer. Boxer. See DNA Analysis See DNA Analysis (Exh. A). These (Exh. A). These breeds breeds are are commonly commonly known known to be to be

aggressive aggressive and and territorial. territorial. In In Forbes Forbes Magazine, Magazine, German German Shepherds Shepherds are are ranked ranked as as the the

PLAINTIFF’S R PLAINTIFF’S RESPONSE TO D ESPONSE TO EFENDANT’S S DEFENDANT’S ECOND SECOND PAGE 12 PAGE 12 AMENDED M AMENDED MOTION FOR S OTION FOR UMMARY J SUMMARY UDGMENT JUDGMENT

Page 293 fourth fourth most-dangerous most—dangerous breed, breed, and and are are described described as as “a “a powerful powerful dog dog that that is is loyal loyal when when

well-trained but well—trained but can can be fierce.” Exh. be ﬁerce.” Exh. B. B. Boxers Boxers likewise likewise made made the the list list at at Number Number 8, 8,

and and are are described described in in Dogs Dogs World World as as “Boxers “Boxers are are hunting hunting dogs dogs and and they have been they have been

used as used as attack attack and guard dogs and guard dogs ever since being ever Since being bred! bred! They They have have aa powerful powerful jaw jaw and and

bite –— which bite which is perfect for is perfect for protection! protection!” Exh. Exh. C. ” C. These These statements statements certainly certainly are not are not

meant meant to to suggest suggest that that all all German German Shepherds Shepherds and and Boxers Boxers are are vicious. Vicious.33 However, However, aa

responsible pet responsible pet owner owner cannot cannot ignore ignore these these in-bred in-bred traits traits when when determining how to determining how to

protect the protect the public public from from these these animals. animals.

23. With With the the Attack Attack Dog’s Dog’s inbred inbred characteristics characteristics in in mind, mind, the the Defendant’s Defendant’s

negligence clearly negligence clearly was was aa cause cause of of the the Attack. Attack. The The gate gate to to the the Defendant’s Defendant’s property property

has large has large openings openings through through which which the Attack Dog the Attack Dog could could place place its its head. head. T. Province T Province

Depo at Depo p. 33, at p. 33, l. 1. 17 17 to p. 34, to p. 34, l. 1. 8. 8. The The Defendant was aware Defendant was aware of of these these openings. Id. openings. Id.

The The Defendant Defendant could could have have covered covered these these openings openings with With chicken chicken wire Wire – — which which he he did did

for certain for certain openings openings – but did — but did not not cover cover all all openings openings for for the the simple simple fact fact that that he ran he ran

out out of wire. Id. of Wire. Id. at at p. p. 28, 28, l. 1. 21 21 to p. 29, to p. 29, l. 1. 8. 8. This This allowed allowed the Attack Dog the Attack Dog to to poke his poke his

head outside head outside the the fence, fence, and bite the and bite the Plaintiff. Plaintiff. The The Defendant Defendant should should not be permitted not be permitted

33 In the interest of candor, the undersigned counsel states states that he he personally owns a a German Shepherd and a a Pit Pit Bull Bull mix mix (the (the most most “dangerous” “dangerous” breed breed on on all all three three attached attached lists). lists). The undersigned counsel’s The undersigned counsel’s These These dogs dogs are are well- well- trained and well-behaved. well-behaved. That said, the undersigned counsel certainly would not leave aa hole in his fence such that the dogs could bite at passers-by. passers-by. These dogs are simply too powerful and protective for their owner to take that kind of of aa chance chance with with someone someone else’s else’s life. life.

PLAINTIFF’S R PLAINTIFF’S RESPONSE TO D ESPONSE TO EFENDANT’S S DEFENDANT’S ECOND SECOND PAGE 13 PAGE 13 A MENDED M AMENDED MOTION FOR S OTION FOR UMMARY J SUMMARY UDGMENT JUDGMENT

Page 294 to to excuse his carelessness excuse his carelessness on on the the so-called so—called “one bite rule,” “one bite when he rule,” when he knew knew or or should should

have known have known the Attack Dog the Attack Dog might might do do exactly exactly what What it it was bred to was bred to do, do, and he gave and he gave

the Attack Dog the Attack Dog the the ability ability to to do do so so (by (by knowingly knowingly leaving leaving an an open open gap gap in in the the gate). gate).

B. No No Evidence Evidence Motion Motion for for Summary Summary Judgment. Judgment.

24. In In addition addition to his traditional to his traditional Motion Motion for for Summary Summary Judgment, Judgment, the the

Defendant Defendant seeks seeks a a no-evidence no—evidence summary judgment. The summary judgment. The evidence evidence attached attached to to this this

Response Response (including (including excerpts excerpts from from Defendant’s Defendant’s deposition deposition transcript) transcript) establishes establishes

that that Defendant Defendant owed owed aa duty duty to protect Plaintiff to protect Plaintiff (as (as an an invitee) invitee) from from the Attack Dog’s the Attack Dog ’s

dangerous dangerous and and in-bred in—bred (i.e. (Le. foreseeable) foreseeable) tendencies. tendencies. This This evidence evidence also also establishes establishes

that that Defendant breached this Defendant breached this duty duty by by failing failing to to cover cover known known openings openings in in the the gate gate

when he when he easily easily could could have have done done so. so. Finally, Finally, this this evidence evidence establishes establishes that that

Defendant’s Defendant’s breach breach of of his his duty was aa proximate duty was proximate cause cause of of Plaintiff’s Plaintiff’s injuries. injuries.

Therefore, Therefore, for for the the same reasons that same reasons that the the Court Court should should deny deny the the traditional traditional Motion Motion

for for Summary Summary Judgment, Judgment, it it likewise likewise should should deny deny the the no-evidence no—evidence Motion Motion for for

Summary Summary Judgment. Judgment.

WHEREFORE, WHEREFORE, PREMISES PREMISES CONSIDERED, CONSIDERED, Plaintiff Plaintiff requests requests the the Court CouIT to to

deny deny the the Second Amended Motion, Second Amended Motion, and and grant grant Plaintiff Plaintiff all relief to all relief which she to which she may may be be

entitled. entitled.

PLAINTIFF’S R PLAINTIFF’S RESPONSE TO D ESPONSE TO EFENDANT’S S DEFENDANT’S ECOND SECOND PAGE 14 PAGE 14 A MENDED M AMENDED MOTION FOR S OTION FOR UMMARY J SUMMARY UDGMENT JUDGMENT

Page 295 Respectfully submitted,

/S/ Mark D. Johnson PAUL FLANNIGAN State Bar No. 24012633 paul@ﬂanniganlawﬁrm.com MARK D. JOHNSON State Bar No. 10770175 mark@ﬂanniganlawﬂrm.com

FLANNIGAN & JOHNSON, P.L.L.C. 5600 Tennyson Parkway, Suite 330 Plano, Texas 75024 Phone: (972) 383—9377 Fax: (844) 287-8882

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served upon the following party via the means indicated on November 7, 2017:

Via E—mail and E—Service J. Brantley Saunders [email protected] Abigail K. Christmann [email protected]

/s/ Mark D. Johnson Mark D. Johnson

PLAINTIFF’S RESPONSE TO DEFENDANT’S SECOND PAGE 15 AMENDED MOTION FOR SUMMARY JUDGMENT

Page 296 CAUSE N O. CV—2016-00729

KAREN LINDSEY SMITH, § IN THE COUNTY COURT § Plaintiff, § § v. § NO. 2 § TERRY P. PROVINCE, § § Defendant. § DENTON COUNTY, TEXAS

AFFIDAVIT OF MARK D. JOHNSON BEFORE ME, the undersigned notary, on this day personally appeared Mark D. Johnson, a person Whose identity is known to me. After I administered an oath to afﬁant, afﬁant testiﬁed:

“My name is Mark D. Johnson. I am an attorney representing Plaintiff Karen Lindsey Smith in this lawsuit. I am over the age of 18 years, competent in all respects to make this afﬁdavit, have personal knowledge of the facts stated herein, and everything stated herein is true and correct.

Attached to Plaintiff’s Response to Defendant’s Second Amended Motion for Summary Judgment are the following exhibits:

0 Exhibit A: DNA Analysis;

0 Exhibit B: Excerpts from a Forbes Magazine on-line aﬁicle entitled “Most Dangerous Dogs”;

0 Exhibit C: Excepts from an Inside Dogs World on-line article entitled “Top 10 Most Dangerous Dog Breeds in the World”;

0 Exhibit D: A Psychology Today on—line article entitled “14 Dog Breeds Blacklisted by Insurance Companies”; and

0 Exhibit E: Photograph of Karen Lindsey Smith.

Exhibits B, C, and D are true and correct copies of articles, or portions of articles, I downloaded from the internet from the websites for Forbes Magazine, Inside Dogs World, and Psychology Today, respectively.

Exhibit A is a true and correct copy of a document produced by Defendant in this lawsuit. Exhibit E is a true and correct copy of a photograph produced by Plaintiff in this lawsuit.”

AFFIDAVIT OF MARK D. JOHNSON PAGE 1

Page 297 Further sayeth afﬁant naught.

Wig/M 1.

Mérk D. Johnson

SWORN TO AND SUBSCRIBED TO before mehe'undersigned authority, by the said Mark D. Johnson on the 7th day of November 2017.

BEATHXZ E LOPEZ Notary|D#131257254 My Commission Expires Augusm,2oz1 7’6 Z/ NOTARY PuﬁLIC IN AND FOR THE STATE OF TEXAS ’2”O

AFFIDAVIT OF MARK D. JOHNSON PAGE 2

Page 298 EXHIBIT A

Page 299 ginsramf’am

§n81ghts Wha+ breeds me up midi? The Wisdom Panelm Insights compute! algorithm performed over seven million calculations using 1 1 different models (from a single breed to complex combinations of breeds) to predict the most likely combination of pure and mixed breed dogs‘In the last 3 ancestral generations that best ﬁt the DNA marker pattern observed'In Heidi. The ancestry chart depicting the best statistical result of this analysis‘IS shown in the picture below

33‘ e ‘wxagmnz’ '1 ﬂmammal '4

Wamn/ r "I '

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labrador Mixed Mixeq Mixed German German Reuiever Breed' Erecd' Brecd’ Shephctd Dog Shepherd Dog

Gmat Grandparents L__J , L__l _‘Gmat Gnndparemsl—

A ‘ 'r' ‘3 A ., ) —-—- Grandparents

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31": ““4 ‘ ““50 BREED —— Grandparents

German Baker/ Labvador 2 Collie Cross Retriever Mix Shepherd Dog

/' \ .‘ Parents l - 'Hl‘nm/ J‘ﬁd

/ Boxer Collie / German Shepherd LabradurRexriever Mix Dog Mix

Boxer/ Collie/ Labrador Retriever Mix crossed with German Shepherd Dog Mix

at n MIXED any, / ' Mixed bleed Ancestor. See next page for more details... _/ ”Breed detected. however at a lower conﬁdence. Such results are not included in accuracy calculations.

Page 300 Helght: 22 -26 in

Weight (Show): 48 - 89 lb

Weight (Pet): 48 - 97 1b

Ears:

The modem day German Shepherd breed is a cross between the long-haired, short-haired and wire-haired shepherd dogs of the German regions of Wijrttemberg, Thuringia and Bavaria. Initially bred for herding. due to their strength, intelligence and excellent temperament, they became popular as guard dogs, guide dogs, search and rescue dogs, police dogs and military dogs. Max Emil Von Stephanitz sought to protect and reﬁne the German Shepherd breed at the end of the nineteenth Century. German Shepherds were used as German police and military clogs during World Wars | and II. Allied soldiers during World War I took notice of the Shepherd’s use as messenger dogs or search and rescue dogs as they were very good at locating wounded soldiers. Some soldiers introduced the breed to their home countries and the popularity of the German Shepherd took off, making it one of the most popular breeds in the world today. The German Shepherd Dog was recognized by the American Kennel Club in 1908. German Shepherd Dogs are generally a combination of black and tan, though more or less black may be seen. There is also a "gray' variant where the tip of the hair is black and the rest is tan. A black mask and a black "saddle" are both common traits in this breed. Although not an AKC variant, a||~white German Shepherds exist as a separate FCI breed. The coat comes in long and short varieties.

Do you recognize any of these German Shepherd Dog traits in HEIDI? Personalities can vary from calm and Enjoy participating in dog sports such as agility, watchful/observant to energetic \ " tracking, ﬂyball. and competitive obedience.

There have been reported incidents of German Eager to learn and respond well to reward-based ‘ t '1 Shepherd Dogs being aggressive with other pets or training. people.

Page 301 Ewﬁc§iﬁhts

Height: 21 - 25 in

Weight (Show): 55 - 66 lb

Weigh! (Pet): 49 - 77 lb

Ears:

The history of the Boxer dates back to nineteenth century Germany. where they were used for hunting deer and boar. The ancestors of the Boxer include the Bullenbeiszer and the Barenbeiszer, which are now both extinct. The crossing of those breeds with the English Bulldogs of the 1830's resulted in the Boxer as we know it today. Boxers were bred to be hunting dogs and they earned their name from the 'boxing' pose they are known to take when standing on their hind legs. Later in the breed's development, it was made apparent that they were also well-suited for herding and the Boxer was used in more than a few circus acts due to its ability to learn tricks quickIy and perform them on command. The popularity of Boxers started to increase rapidly in the 1860’s when the German Boxer Klub was founded. At the turn of the twentieth century the Boxer made its way to the United States and the American Kennel Club recognized the 80e as a breed in 1904.

The AKC breed standard for boxers requires that they come only in fawn and brindle (black and brown stripes) with the fawn ranging from a light tan to mahogany and restricts the amount of white seen on the dog. Accepted traits include a black mask commonly seen in the breed. White boxers also have a following; though do not meet the breed standard.

Do you recognize any of these Boxer traits in HEIDI?

{1 Intelligent, hard working, and playful dogs, with a high “ G' Boxers seem to enjoy dog sports such as agility, ﬂyball. amount of energy. rally and competitive obedience.

I , Eager to learn and respond well to reward-based . . Tendency tojump up on people, sometimes boxing ' training using treats and favorite toys. with their front feet when doing so.

Page 302 - WWW? Owner's name: Renee Province Ni, "a q LIL”; talk. Dog's name: -w I»- 1:...“ Pd _, Heidi Ir Date: April 6, 201 1 Lamb—J WWW dog an? A , '3 F“ a —- Grandpa-nu —- ~

Mont 0!d ’* ~ 2" J . " x x; ““4 - This certiﬁes the authenticityof Heidi's canine genetic background as determined followlng careful analysis of more than 300 . genetic

Page 303 m'arkers using Wisdom Panel Insights. The purebred dog breed sighature matches included in this analysis are those that were Plum: Pm I detected in the last three generations of Heidi's ancestry using the l

_ proprietan/ breed detection algorithm at Mars Veterinary. ‘ n. , .. . “-1 .“Zn-o ‘ .— —_ J-‘d m. 4 if Dr. Ngale Fretwell Boxer Collie / / Labradm Retriever Mix crossed with German Shepherd Dog Mix Research & Development Director

Wmmuwl 3 msug his Important: Completed top sheetmus: be Included in _ enveiope for mailng with swab samples. PLEASE PRINT. 3 Dam; .43”? ._LL ' E-mail Address .. ‘ ‘ (REQUIRED): m -5_.,.'_~ .‘- :n 1.: " - i.1,'.,»v O Mmmrmmuumwwmunwmw mmmmmmmmnumm f

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Phase common 11,171,118. _ ‘

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Pleasedlowadequmtimeforyomdog'smpletouﬂveat our [wanna-y. Your dog's med Identiﬁcation report should be available onllne within 3 weeks after receipt ofthe sample. '

An e-maﬂ will be sent to the address provided above 3 notifying you that your dog's report is available for downbad. : To chedubestatus ofyourdog's repornhroughoutthe ;' process, visit our status link at: WisdomPanellnsig hts.com.

Page 304 EXHIBIT B

Page 305 11/7/2017 4. German Shepherd (including mixes) - Most Dangerous Dogs

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Se e reg. L :lts {sury‘eatriptan r1333! [JIMMY] . lschemic coronary artery disease (CAD) LANDMARK N mg gm nos-apiece grporongry artery vaso§_p-a_s~m_, inqudlng C” N! CA LTRiAL © 2017 Avanir Pharmaceuticals, Inc. All rights reserved.

Most Dangerous Dogs

4. German Shepherd (including mixes) Germans developed this breed from herding and hunting stock in the 19th century, producing a powerful dog that is loyal when well-trained but can be fierce. Fatal attacks since 1982: 26 Maimings: 137

https://www.forbes.com/pictureslm|j45emjeg/4—german—shepherd-incl/#617c62f9259f 1/2 Page 306 11/7/2017 8. Boxer - Most Dangerous Dogs

, or a rainy day. Let’s change that. \ , 'Quau-mgmu-umun—u—wu—r— ..

Most Dangerous Dogs 4 of 11 LIVE

A member of the Molossian family named after an ancient city In Albania, the Boxer was developed in Germany in the 19th century from hunting breeds. Fatal attacks since 1982: 10 Maimings: 45

httpszllwwwforbes.com/pictures/mlj45emjegl8—boxerl#550e81042167 1/2 Page 307 EXHIBIT C

Page 308 11/6/2017 Top 10 Most Dangerous Dog Breeds in the World - Inside Dogs World

HOME LATEST DOC BREEDS BREED C! Q f

TOP LISTS — EDITOR'S PICK DOG TRAINING & BEHAVIOUR

To p 1 0 Essentials to Know of a Dog Play

M ost Dan ge ro u:

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Dog " .. Doberman Photos & Captions On Facebook o B re e d s I n _ -___._.__ . -mwwm... m-“ “w. LATEST ON IDW M .

the World ‘Lixgizzizzassszm friends of babies

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12 Celebrities With Bull Terriers Almost all dogs can cause unimaginable damage and danger, but certain breeds are . STORIES more prone to showmg K9 Dog Dies After Rescuing dangerous reactions and cause fatalities! These breeds 7 People From Earthquake /\ ‘1" TM

http://www.insidedogsworld .com/lop l 0-most-dangerous»dog-breeds-in»theworld/ 1/ 14

Page 309 l 1/6/2017 Top 10 Most Dangerous Dog Breeds in the World — Inside Dogs World

,, 7 bBédriiérhEéﬁsro that they can We happily in various households and situations!

Although, aggressive traits are in the nature of these dog breeds, proper nurture can play a huge role in turning them into loving and loyal companions!

10. GREAT DANE

7. ALASKAN MALAM UTE

Source: https://www.pinterest.com/pin/232076

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7’

energy dbés inbt ﬁe? positiVeiil used, they can turn into quite aggressive dogs! They have an emphasized need to hunt for prey, therefore, should be carefully looked after! One other important thing is that they are slow learners, which requires for a lot of patience while training them!

6. SIBERIAN HUSKY

Source: https://www.pinterest.com/pin/493847

Siberian Huskies,just like the Alaskan Malamutes, have been bred as working dogs, and that is the reason they are not very social! But, with the right approach and training, you can make them become more friendly and calm! Poor socialization and training will

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' dogé!

5. BULLMASTIFF

Source: https://www.pinterest.com/pin/339177

As guard dogs, Bullmastiffs have a natural aggressive temperament, which if not properly cared for can turn out fatal! They are large dogs, therefore, training them and making them obedient is a

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8. WOLF HYBRID

Source: httpszl/www.pinterest.com/pin/314970

As you may have already understood, these dogs are a cross between grey wolves and dogs and this makes them quite unpredictable! They have a head of their own, wild and demanding! Many states have already banned the possibility of owning a Wolf Hybrid as a house pet!

4. DOBERMAN N PINSCHER

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Sou rce: https://www.pinterest.com/pin/407435

Doberman Pinschers are very intelligent, strong and very sensitive to sound! They will sense danger and will react on their own! They are naturally aggressive towards strangers and also their size plays a role in making them even more dangerous! If not properly trained and obedient, they can cause quite some damage!

3. GERMAN SHEPHERD

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' German Shephéids can”react on great speed and are extremely focused towards taking the danger down, they can cause fatal damage! Their aggressive nature can be’ somewhat toned down by appropriate training, socialization and affection! In this way, you will get a loyal and a very loving household pet!

2. ROTTWEILER

Source: https://www.pinterest.com/pin/459648

Rottweilers have one of the worst tempers, and are also, considered unsuitable family dogs, especially for families where the owner is an amateur, without a calm and assertive nature! They need to be continuously trained and attentive to, in order to avoid dangerous reactions!

1. PIT BULL http://wwwjnsidadogsworld ,com/lop l0-mosl-dangerous-dog-breeds-in-lheworld/ 9/14

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Source: https://www.pinterest.com/pin/258605

Pit Bulls are ﬁghter dogs and they will enthusiastically go after their task until completed! They have a very powerfuljaw and bite and are well—known to not release their bite so easily! Therefore, they should be trained and socialized from an early age in order to avoid unnecessary dangerous situations!

RECOMMENDED FOR YOU

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Page 318 EXHIBIT D

Page 319 11/6/2017 14 Dog Breeds Blacklisted by Insurance Companies Psychology Today |

—_ rcounsellor [ I City or Pasta] de' ‘ " ,_ 7 ~ , ,7 . q,

Stanley Coren PhD., DSc, FRSC Canine Corner

Breeds Blacklisted by Insurance 14 Dog Companies Homes containing certain breeds of dogs have been iqﬁuke‘a declared uninsurable Posted May 27, 2014

§ HAR E iiﬁééﬁ ..

Whi'e You might 19Y§.I1t_t__§i/_/_‘l‘!‘!‘!¥3’;_f:_Eh‘i'P._.J99?!_:9,9!F1{'3?§i9§{[9'§3i90§h[_E- VOW dog, the companies that carry the insurance for your house, apartment, or condominium might not. In fact, your dog's breed might determine whether or not an insurance company is even willing to provide coverage for your home.

The WIFE/51199.1U???.Sl/MYY;E§X9h9lQ9X39q§X-99T_/_'9§§i9§_/_rﬂ9’£‘!§t_i9fllf°r denying insurance to households with certain breeds of dogs is based upon ﬁnancial considerations. As one representative of Allstate Insurance told me, "We are in the business of evaluating risk, and based on what we know the dogs on our 'uninsurable list’ pose a higher risk." She went on to tell me that dog bites are a major ﬁnancial burden for the insurance industry. "Dog bite related claims accounted for more than one third of all homeowners insurance liability claims paid out in 2013. That amounted to about $490 million, with the average claim costing close to $30,000. But actual costs can be much higher. In 2011 A Washington State Superior Court jury awarded a $2.2 million verdict to a woman who was attacked by two neighborhood pitbulls near her home in Tacoma, Washington. The woman sued the dogs' owners whose homeowners policies were unfortunately limited to $100,000 each."

In association with National Dog Bite Prevention Week (which occurs in the month of May each year) a number of insurance companies have issued their lists of dog breeds which they consider dangerous and according to their rules k.. https://www,psychologytoday‘com/bloglcanine-comer/201405/I4~dog-breedsAblacklisKed—insurance-companies 1/5

Page 320 11/6/2017

a mm 14 Dog Breeds Blacklisted by Insurance Companies l Psychology Today

as "excluded dog breeds," "aggressive dog list," "insurance list of dangerous dogs," "prohibited dog breeds," and one simply labels it their "bad dog list." The dog breeds which can be found on these lists seem to be drawn from a series of research studies such as one commissioned by the US. National Center for Injury Prevention and Control that was published in 2000. It looked at the Presa Canario statistics on fatal dog bites (click here to read more source: about this (httpszllwww.p§ychologytoday.com/blog/canine- corner/200810/biting-dogs-and—dangerous-breeds1). However, it seems as though any dog bite incident that receives wide media coverage can also land a dog breed on such a list; Thus the Presa Canario was a dog breed that few people had heard of prior to the media coverage of a 2001 incident in San Francisco. The media luridly described how a woman was viciously mauled to death by two of these big dogs in the hallway of her apartment building. As a result the owner of these dogs is now serving a sentence of 15 years to life in prison. Although the Presa Canario remains a quite rare breed in North America, it now seems to appear on every prohibited dog breed list issued by the insurance companies.

The use of such lists is not acceptable everywhere. In America the states of Michigan and Pennsylvania have restricted i pro ;urar 5. Te have pending Find a Therapist Topics GBt Help Magazine E) legwgaﬁan that bit 0« 0 de to SC only ogetﬁg bree of dog owned by their household. These laws propose that insurance companies should only be allowed to deny or revoke a policy or to increase the premium, based on the risk associated with a speciﬁcally named dog. That means that the individual dog must have a known history of being aggressive or must have been ofﬁcially designated as dangerous.

The insurance companies counter by saying that such laws will not work. They argue that by the time the dog has bitten someone, and has therefore been deemed dangerous, there has already been a claim ﬁled. That means that it's already too late for the insurance company since they will have to cover the claim under the pre—existing unrestricted policy. The companies argue that the only way to reduce their ﬁnancial risk is to ban certain dog breeds from coverage. Nonetheless there are some insurers that do not use a banned dog list, and some other companies that will allow a household to be insured simply by excluding coverage for liabilities due to damage caused by a dog.

ARTICLE CONTINUES AFTER ADVERTISEMENT

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Page 321 11/6/2017 14 Dog Breeds Blacklisted by Insurance Companies 1 Psychology Today

m lis .n v1". 1 u v." v1 Most of these blacklisted not only the speciﬁc breed but any mixed breed that . UVMPWWWW V ,

presumably included a genetic relationship to one of the banned breeds. The 14 most often blacklisted dog breeds were:

- Pit Bull Terriers

- Staffordshire Terriers

. Rottweilers

- German Shepherds

- Presa Canarios

. Chows Chows

. Doberman Pinschers

. Akitas

. Wolf-hybrids

- Mastiffs

- Cane Corsos

- Great Danes

. Alaskan Malamutes

. Siberian Huskies

Nonetheless you must remember that each company draws up its own list based upon its opinion of the risk the dog breed presents. No speciﬁc scientiﬁc criteria are required for a dog breed to be blacklisted, and it is possible that simply one report in the media might be enough to cause an ofﬁcial in an insurance company to decide that one or another dog breed is dangerous. That situation is bound to lead to some odd choices as to which breeds are uninsurable. For example, take the experience of Michael WE‘__, hnps://www‘psychologytoday‘com/blog/canine»comer/201405/14—dog-breeds-blacklisted—insurance—companies 3/5

Page 322 EXHIBIT E

Page 323 Page 324 EXHIBIT F

Page 325 Page 1 CAUSE NO. CV-2016-00729 KAREN LINDSEY SMITH ) IN THE COUNTY COURT ) Plaintiff, ) ) VS. ) NO. 2 ) TERRY P. PROVINCE ) ) Defendant. ) DENTON COUNTY, TEXAS ******************************************************* ORAL DEPOSITION OF

TERRY P. PROVINCE

SEPTEMBER 15, 2017

*******************************************************

ORAL DEPOSITION OF TERRY P. PROVINCE, produced as a witness at the instance of the Plaintiff, and duly sworn, was taken in the above-styled and -numbered cause on the 15th day of September, 2017, from 10:12 a.m. to 11:17 a.m., before Chrissa K. Hollingsworth, CSR in and for the State of Texas, reported by machine shorthand, at the offices of Saunders, Walsh & Beard, located at Craig Ranch Professional Plaza, 6850 TPC Drive, Suite 210, McKinney, Texas, pursuant to the Texas Rules of Civil Procedure.

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A P P E A R A N C E S FOR THE PLAINTIFF: MR. MARK D. JOHNSON FLANNIGAN & JOHNSON, PLLC 5600 Tennyson Parkway Suite 330 Plano, Texas 75024 972.383.9377 [email protected] FOR THE DEFENDANT:

MR. J. BRANTLEY SAUNDERS SAUNDERS, WALSH & BEARD Craig Ranch Professional Plaza 10 6850 TPC Drive Suite 210 11 McKinney, Texas 75070 214.919.3555 12 [email protected] 13

ALSO PRESENT: 14

Ms. Renee Province 15 16 17 18 19 20 21 22 23 24 25

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Page 327 Page 3 INDEX

Appearances ............................... 02

Stipulations ..............................

TERRY P. PROVINCE Examination by Mr. Johnson........... 04

Signature and Changes ..................... 44

Reporter's Certificate .................... 46

10 EXHIBIT INDEX 11 No. DESCRIPTION PAGE 12 (NONE) 13

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TERRY P. PROVINCE, having been first duly sworn, testified as follows: EXAMINATION BY MR. JOHNSON:

Q. Sir, would you state your name for the record, please. A.Terry Paul Province. Q. And, Mr. Province, my name is Mark Johnson and I represent Ms. Smith, the Plaintiff, in this case. Do 10 you understand that I am not here on behalf of you, I do 11 not represent you and you have your own attorney? 12 A. Yes. 13 Q. Have you ever been deposed before? 14 A. No. 15 Q. Let me tell you a little bit about what today 16 will be and what it won't be. It's not what you see on 17 television and it's also not a conversation. It's going 18 to be -- I'm going to ask a series of questions, and 19 what I'm looking for is answers to the questions that I 20 ask. It won't -- there won't be a lot of back and 21 forth. So because of that -- and I know it's a -- it's 22 an unusual way Normally, you know what I'm of talking. 23 going to say before I say it, but I have to be able to 24 say it so that the court reporter can get down and it 25 everything's clear on the record. So would you agree

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Page 329 Page 5 that when I'm asking you a question, let me finish the question before you start answering? A. Yes. Q. And, likewise, I will try to not ask the next question until you've completed your answer. Is that fair? A. Fair enough. Q. Also, Okay. if there's -- because we're trying to get a clear record for the Court. So there's if 10 anything that I ask you that you don't understand, will 11 you ask me to rephrase it? 12 A. Yes. 13 Q. Okay. And if I -- if you don't ask me to 14 rephrase it, is it fair for me to assume that you 15 understood my question? 16 A. Yeah. 17 Q. Okay. If you need to take a break, just let me 18 know. This isn't a marathon. All I'd is that ask 19 before we break, that you answer the question that's on 20 the table. Would you agree to that? 21 A. Yes. 22 Q. Okay. Now, last thing. And this is very 23 important for the court reporter and you don't want to 24 get her mad. Look at her. She's tough. When you're 25 giving your answers, it's important that you say yes or

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no as opposed to uh-huh or huh-uh or shaking your head, because the court reporter can't always get that down clearly. Would you agree to try to do that? A. Yes. Q. Okay. Now, sir, would you state your home address, please. A. 6749 H. Lively Road, Ponder, Texas 76259. K) And how long have you lived there? p Since spring of 1995. 10 K) Okay. Now, you understand that this -- I'm and 11 sorry. You live there with your wife; is that correct? 12 Yes. 13 And her name's Renee? 14 Yes. 15 Okay. Do you have any children? .onauuonauowuona-

16 Yes. 17 Do they live there as well? 18 No, they don't. 19 Okay. When -- when was the last time your kids 20 lived at home? 21 A. Gosh, it's been 12 years, 13 years. 22 Q. Okay. Okay. So your -- your dog, the dog 23 that's a t issue in this case, Heidi, I think is her 24 name. H ow old is Heidi?

25 A. She'll be seven now. At the time, she was five

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and a half, six. Q. Okay. So at -- when you got Heidi -- and you've had Heidi all her life; is that correct? A. Yes. Q. So at the time that you've had Heidi, no one lived in your house other than you and your wife; is that correct? A. Yes. Q. Okay. the two of you, you and your As between 10 wife, which one would you say is the principal caregiver 11 for the dogs or is shared? it 12 A. It's pretty -- I think it's shared pretty 13 evenly -- 14 Q. Okay. 15 A. -- I mean, in my opinion. 16 Q. Well, I guess I'll -- 17 A. I think it's shared. 18 Q. I guess I'll ask your wife about that -- 19 A. It's shared pretty evenly. 20 Q. Did you -- I'm sorry. Now, the -- Heidi, she's 21 a mixed breed? 22 A. Yes. 23 Q. Do you know what breeds she's a mix of? 24 A. I don't. I take her to be -- I would call her 25 a black lab mix.

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Q. Okay. Do you know what she's mixed with? A. No. I'm just asking because I have a -- I have a Q. dog who's a mix and it's half lab and half pit, and Heidi looks an awful lot like my dog. I didn't know if you knew whether she was -- or what the black lab was mixed with. A. I don't know. I don't know. Q Okay. Okay. Did you -- did you adopt her? 10 A I __

11 Q. Get her from a shelter? 12 A I got —— no, we didn't get her from a shelter. 13 Q Did you buy her? 14 A No. 15 Q How did you come across Heidi? 16 A. My daughter saw Heidi in a road ditch, I 17 believe, near ——

18 Q. Okay. 19 A. -- the Denton airport, came home and told my 20 wife about it. They went back -- I don't know, so this 21 is -- 22 Q. Sure. 23 A. -- my bad memory. They went back and the 24 result was we gained another dog. She was a little 25 black ball of fur.

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Q. Well, when —— when we got our most recent dog, and we already have a German shepherd, my daughters -- when my daughter was in town, she decided that our shepherd needed a buddy and that I needed another buddy. So I got -- they came home with another dog for me, so I know how that goes. The -- when y'all -- if it's just you and your wife, when you're traveling, who takes care of Heidi other dogs? and your A. The -- we usually try to take one or two or 10 three of them with us and leave two or three at home. 11 Q. Okay. 12 We usually take some with us and leave some at 13 home. 14 Q. Okay. 15 A. And we have -- they're able to get in the shop, 16 and we leave food and water for them. 17 Q. they're outdoor dogs primarily? So 18 A. Two of them are indoor practically all the time 19 and then three of them are outdoor or in the shop. 20 Q. Oh, so you have five dogs? 21 A. Yes. 22 Q. Okay. Okay. Is Heidi an outdoor dog generally 23 or an indoor dog? 24 A. You mean indoor like in the house? 25 Q. Yes, sir.

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Page 334 Page 10 A. There are times when she's in the house, but it's a minimal amount of time. Mostly, she's in the shop building. Q. Okay. So if you're not at the -- at the house and your wife's not at the house, generally no one's looking after -- after the dogs? They can just kind of ——

A. They're just on the property in the yard, yes. Q. Okay. You don't have neighbors come by and 10 check in on them? 11 A. No. 12 Q. Okay. 13 A. We've never left them that long, no. 14 Q. long have you left them, like an Okay. How 15 overnight thing or just a couple of days? 16 A. Maybe three days, two or three days. 17 Q. Okay. Have you -- have you ever boarded Heidi? 18 A. Not that I recall. 19 Q. Okay. But Heidi's been to the -- obviously, 20 she goes to the vet's? 21 A. Yes. 22 Q. Okay. And I saw that -- that vet you had a 23 listed on your responses to the requests for disclosure 24 that was at a PetSmart, ban -- well, I forgot the name 25 of it, but it's a vet that's through PetSmart. Is that

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Page 335 Page 11 the principal vet that you use? A. No. The principal vet has been Tim Hawkins. He calls himself The Mobile Vet. Q. He calls himself the what, sir?

The Mobile Vet. 5""9?’ Okay. He has a motorhome and he will come to your house and ——

Q. Oh. 10 A. —— do vet stuff. 11 Q. Makes house calls? 12 A. Yes. 13 Q. That's convenient. 14 A. Well, it's nice if you have five dogs. 15 Q. Uh—huh. 16 A. And Randy Wunche and the Denton Animal Clinic. 17 Q. Okay. The it's stated in your —— —— by the 18 way, let's go ahead and it's ——

19 MR. JOHNSON: It's already part of the 20 record, so I don't that we need to make know an it 21 exhibit, but I'll be referring to it. Unless you want 22 to make it part of make an exhibit. —— it 23 MR. SAUNDERS: We'll see. 24 MR. JOHNSON: Here's an extra copy for you. 25 MR. SAUNDERS: Thank you.

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Q. (By Mr. Johnson) Have you seen that -- that document, sir? A. Let me look at it for a minute. Q Okay. A. Yeah, I believe so. Q In that -- in that -- and Okay. just I'll refer to that as the motion. In the motion, you -- you mentioned that Heidi had received formal training from a commercial dog trainer that made her obedient to basic 10 commands, come, sit, down, play, stay, off, quiet and 11 release. That's correct? 12 A. Yes. 13 Q. Who was it who trained her? 14 A. I think it was —— you mean the company or the 15 individual? 16 Q. Just the company's fine. 17 A. Oh, gosh. I don't remember the name of the 18 company. 19 Q. Okay. Do you know when she was trained? 20 A. No, I don't remember the dates. 21 Q. Do you remember the year? I know it's been 22 awhile. 23 A. Well, right. And I'm horrible with dates. 24 Q. Was she a puppy at the time? 25 A. As I can prove, I'm horrible with dates. No,

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Page 337 Page 13 she wasn't. She wasn't a puppy. This would have been, gosh, four or five years ago, I'm thinking. I mean, she was young at the time, but she was not a puppy. Q. Why did you take her in for training? A. My wife likes them to go through the training mostly to socialize them with other dogs and to socialize them with other -- put them into the hands of somebody else who's going to train them, not just us, in other words. 10 Q. I understand. 11 A. But they learn to be -- get along with other 12 people better because then they're in a situation —— 13 that's basically why. 14 Q. Okay. Did -- were the other dogs trained as 15 well? 16 A. I'm not sure what you mean. At that same 17 place? 18 Q. Had the other dogs -- and let's just focus on 19 the outdoor dogs for now. There -- as I understand it, 20 there are three dogs that are principally outdoor dogs. 21 A. Right. 22 Q. Were those other outdoor dogs also commercially 23 trained? 24 A. I guess I would have to go back and -- I don't 25 recall exactly, honestly. Frank, who's also an outdoor

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dog, I can tell you he definitely was not. He's blind. Q. Okay. A. he's -- I don't know how you'd go about So training him. It could be done, I suppose, but he's -- he is -- lives in his own blind dog world. Q. Okay. Is he pretty calm? A. Totally calm. Q. Okay. Was -- was there something about Heidi that made you seek training for her but not for -- you 10 said his name is Frank? 11 A. You mean something that was different about 12 Heidi ——

13 Q. Yeah. 14 in comparison to -- no. It was just -- I ——

15 mean, we have taken quite a few of our dogs -- not every 16 last one of them, but quite a few of them to training 17 just to socialize them with other dogs and to put them 18 in the hands of other people to -- so they get along 19 with other dogs and other people. 20 Q. Okay. 21 A. I that's the primary. mean, 22 Q. Now, other than -- how close do you live to 23 your neighbors? You're out in the country, aren't you? 24 A. Yes. Our closest neighbor to the north is 25 probably close to a mile away.

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Q. Okay. A. Other -- our closest neighbor to the west would be over a thousand feet. Q. Okay. A. Three city blocks. the closest neighbor to So the east would be a couple hundred feet, and to the south would be close to half a mile. Q. Okay. Do any of your neighbors interact with your dogs? 10 A. No. 11 Q. So if -- if there's anybody who's going to know 12 whether Heidi was -- about Heidi's behavior and 13 background, it would be you and your wife? 14 A. Yes. 15 Q. Okay. Now, on the -- prior to the date when 16 Heidi had a run-in with Karen Smith, had Heidi ever -- 17 ever bit anyone or tried to bite anyone? 18 A. No. 19 Q. Had any of the other dogs? 20 A. No. 21 Q. Okay. Had they ever tried to, you know, tear a 22 package or try to get to a package? 23 A. Never. 24 Q. Okay. That's one thing I was -- I was a little 25 confused about, because in your motion you mention

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Page 340 Page 16 that -- that you had instructed or your wife had instructed delivery services not to come on the property -- A. Yes. Q. —— when making deliveries; is that correct? A. Absolutely. Q. Now, why didn't you want people coming on the property to make deliveries? A. I don't want anybody coming on my property -- 10 Fair enough. Q. 11 A. -- to deliver or just come and knock on the 12 door. That's me. I'm old well, when we lived in ——

13 Irving, I hated the fact that people could walk up to my 14 front door. 15 Q. Okay. 16 A. That's me. 17 Q. Well ——

18 A. And, I mean, I understand your wondering about 19 that. 20 Did you want to have -- Q. if somebody came and 21 was dropping off a package, did you have a problem with 22 them opening up the gate and dropping off the package 23 and doing that? 24 A. Yeah, I don't want them to do that. Where I 25 come from, that's -- you don't do that. You don't open

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Page 341 Page 17 somebody's gate. your horn and you wait and You honk see if they come out. If they don't, then you leave maybe a, you know, message on the mailbox or something. You don't open somebody's gate and just go in their yard. That's just me. Q. Well, where's your mailbox? Is it outside your gate? A. mailbox is on the shoulder of the road. The It's outside of the fence. 10 Q. Okay. The -- did the presence of the dogs have 11 any bearing on why you didn't want people coming into 12 the -- onto your yard? 13 A. Well, there's some concern especially with 14 Frank. If he gets out, he can't find his way back home. 15 He can't see. In his brain, he has that yard -- 16 Q. Yeah. 17 A. -- but in the rest of the world, he has 18 absolutely no idea. 19 Q. Okay. part of your concern, then, was So you 20 didn't want Frank and the other dogs getting out? 21 A. Exactly. 22 Q. Okay. 23 A. I don't want them to get out, because that 24 would be -- no, I don't want them to get out. 25 Q. Then why would it have been -- because I notice

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Page 342 Page 18 that in the -- oh, and I'd have to find in your it motion, but one of the things that you said that you didn't want delivery services to do was leaving a package -- dropping off a package over the gate onto the ground inside the gate, inside the fence. A. Yeah. Q. Why would that be an issue? A. Well, for me, it's —— if you tell them, okay, yeah, drop it over the fence, then, to me, that's -- 10 there's only a semantic difference between telling them 11 to come over the fence. I don't want them on my 12 property either reaching over my fence or opening the 13 gate and coming on my property. Maybe, you know, that's 14 me. I'm ——

15 Q. Would you have -- I'm sorry. I interrupted. I 16 apologize. 17 A. Oh, no. That's a good place to interpret. 18 Q. Would you have had a problem with them putting 19 a package through the gate, assuming the package would 20 fit, of course, through the gate and onto your property? 21 A. Well, they've done that. They've tied -- 22 they've tied packages in plastic bags to the gate and 23 hung it over the inside of the gate and stuff like that, 24 but why they do that, I don't know, but I don't want 25 them to do that.

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Q. Okay. Did you -- did you or, to your knowledge, your wife tell UPS, Do not put packages inside the -- inside the fence? A. I've told them and she's told them, yes. Q. Okay. Did you tell them to put the package outside your fence? A. Yes. Q. Did you tell them to not put the package up against the fence? 10 A. I believe that I told them to leave packages by 11 the mailbox, which would be 20 feet from the fence. 12 Q. Okay. Why would you want the package left by 13 the mailbox as opposed to by your fence? 14 A. Several. Because we would come home at the end 15 of the day, get the mail and pick packages up from the 16 same location. I'm honestly not any more worried about 17 somebody passing by and stealing a package that's by the 18 mailbox any more than I'm worried about them passing by 19 and stealing one that's hanging from the gate or one 20 that's just inside the fence. 21 Q. Okay. 22 A. I'd be equally concerned. 23 Q. Okay. The -- 24 A. So that's not a -- 25 Q. In the —- in the motion, it states -- and this

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Page 344 Page 20 is on Page 2. It says, Plaintiff was told by her fellow employees to not enter Defendant's property but just set the package outside the front gate because Defendants preferred it that way. Is that correct? A. Yeah. Q. Okay. A. I would -- Q. And then it to say, She was not goes on specifically instructed to get so close to the gate that 10 she could lean the package against the gatepost, but 11 admits she might have leaned it. Was -- is that -- 12 well, was that something that you did not want her to 13 do, to lean packages against the post? 14 Well, I A. no, I wouldn't want her to lean ——

15 packages against the post. 16 Q. Why not? 17 A. not -- I mean, it's -- it's not necessary. It's 18 I wanted them to leave packages by the -- near the 19 mailbox or -- it's not an issue. It has never been an 20 issue. 21 Q. Okay. 22 A. I mean -- 23 Q. So you never instructed her -- or instructed 24 UPS, Don't put packages by the gate? You instructed 25 them that you'd like them over by the mailbox?

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Page 345 Page 21 A. Yeah. Or -- yeah. Pretty much on the ground -- Q. Okay. A. —— in the driveway, and yeah. Q. Did you think there was a problem leaving packages -- other than your convenience, did you think that it presented a problem to put a package that close to the gate? A. Probably not. 10 Q. Okay. Were you at all concerned that if 11 someone came up with a package close to the gate, that 12 one of the dogs might snap at them? 13 A. I would never have expected that to happen. 14 Q. In the motion, and Okay. have to find it, I'll 15 and this is on Page 6, you state that, The dog that bit 16 Plaintiff, and I'm assuming that was Heidi, was on 17 Defendant's own property in a place had a right to it 18 be. Just so we can get the record clear, was -- at the 19 time that Heidi bit Ms. Smith, was Heidi outside the 20 fence? 21 A. No. 22 Q. Was Heidi's mouth outside the fence? 23 A. -- I mean, if what the Plaintiff said Her 24 happened, her -- her mouth would have had to have been 25 outside the vertical plane, I guess you'd call it, of

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Page 346 Page 22 the gate. Q. Okay. A. It inside of the vertical plane of the was fence, which I believe is also the property line by a foot. Q. Okay. But the dog's nose or its snout was through the fence -- A. No. Q. -- to your knowledge? 10 A. No, it was not through the fence. It was 11 through the gate. 12 Q. Correct. I'm sorry. 13 A. And the gate is inside of the fence by about a 14 foot. 15 Q. The -- there's no fence immediately to the -- 16 immediately outside of the gate? 17 A. No. 18 Q. The gate basically serves as a connector 19 between the fences; fence on one side, fence on the 20 other side and the gate in the middle? 21 A. Well, if you can visualize, the fence is a 22 vertical plane that, as far as I know, is right on the 23 property line. 24 Q. Okay. 25 A. The gate is set inside of that about a foot --

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Okay. —— is what I'm trying to tell you. wowo

How do you -- So -- Q. How do you know that the fence is on the property line? A. Because when I getting ready to build the was fence, the surveyors or the phone company, I think it was I think —— it was Centel, I'm not positive. There 10 was a fairly large survey crew out there and they 11 were -- they surveyed pretty much the whole area -- 12 Q. Okay. 13 A. for putting in telephone poles. I went out ——

14 there and I thought I would capitalize on surveyors 15 being there and find out where my property line is and 16 where I could build the fence, because there were 17 different versions of, you know, talking to ranchers and 18 other people around there where you could build a fence. 19 So I went out and I asked -- the guy who I think was the 20 supervisor told me, When we're done, your property line 21 will be about 12 inches from the south side of our 22 telephone pole. You go there, you're good. You'll be 23 on the property. And that's what I did, basically. I 24 measured with a ruler and got about a foot -- I 25 believe -- I don't know, but I believe that I'm within

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Page 348 Page 24 inches. Q. And that was my point. Your -- so any statements about -- about, you know, where the fence was in connection with the property line, that was based on something you had heard from somebody else? A. Yes. Q. Okay. You didn't do an independent survey on that? A. I have not, no. 10 Q. Okay. When -- in that same paragraph, it 11 states, Plaintiff, being Ms. Smith, was bitten because 12 in a rush to make a delivery to Defendant's properly and 13 heedless of the risk involved, she ran toward the gate 14 where Defendant's dogs were already barking. What is 15 that statement based on? 16 A. It's based on the video -- 17 Q Okay. 18 A. of what happened at the estate. ——

19 Q Does that video have sound? 20 A No, it doesn't have sound. I didn't -- it 21 could possibly, but I didn't set it up for sound. 22 Q. Okay. So when you say that the dogs were 23 already barking, that would have been based on whether 24 you could see the dog's mouths going up and down? 25 A. Right.

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Q. Okay. It then says -- but there's -- going back to that, that previous statement, other than the video, there's -- you don't have any evidence that -- that would show that that was what happened? A. No. I wasn't there. Q. Okay. And your wife wasn't there as well, correct? A. Correct. Q. -- it goes on to say that -- that, The 10 Plaintiff failed to notice that Defendant's gate had 11 openings in it large enough for a dog that felt 12 threatened. Now, I'd like you to -- on the motion -- 13 let's go to the back. And I'm going to in particular 14 point to a -- it's Exhibit 5 and it looks like it's 15 probably, oh, eight or nine pages from the back. 16 A. Okay. 17 Q The —— this is your gate, correct? 18 A. Yes. 19 Q. And the dog that's shown there, is that Heidi? 20 A Yes. 21 Q. Okay. And was -- the package that's there, do 22 you know, was that the package that was left by 23 Ms. Smith or do you know? 24 A. It looks exactly like it. 25 Q. Okay.

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Page 350 Page 26 A. I don't -- I don't know if that picture in this N photograph is it. I don't know. Q. Sir, in that package? what was A. Let me think about that for a minute. I'm not absolutely positive, but I believe it was ink cartridges for a printer, a colored printer. Q. But you don't know for sure? A. I'm not absolutely positive. Q. And that's fine. 10 A. Pretty sure, not absolutely positive. 11 Q. That's fine. The -- I'm looking at this gate. 12 And it appears that -- the fence that goes around your 13 property is a wire fence, correct? 14 A. Yes. 15 Q. And that same wire appears to go across the 16 front of the gate, a portion of it; is that correct? 17 A. Yes. 18 Q. Now, can you tell me why between the first 19 slat, the slat that's closest to the ground and the next 20 slat there is no wire? Why is that? 21 A. I didn't have wire to go down there at the 22 time. Primarily, the we have different sizes of ——

23 dogs -- 24 Q. Uh-huh. 25 A. -- and -- that have come and gone over the

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years. The chicken wire at the -- that goes from the bar hanging below the bottom of the gate up to just above the second slat -- Q. Uh-huh. A. -- that is to keep a couple of very small Dachshunds in the yard. Q. Okay. A. If to the right side of the gate you look between the gate and the telephone pole, there's a 10 two-by-four vertically there. 11 Q. Yes, sir. 12 A. That's to keep another dog from squeezing 13 between the gate and the telephone pole. 14 Q. Okay. 15 A. larger wire going up, it's also to keep him The 16 from going through —- that same dog from going between 17 the second rail or whatever you call it of the fence and 18 the third one, because he would squeeze himself over 19 there. 20 Q. Okay. So the -- so the purpose of this wire on 21 the gate -- 22 A. To keep the dogs in the yard. 23 Q -- is to keep the dogs inside? 24 A. Yeah. 25 Q If the wire had been -- had extended down

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Page 352 Page 28 |-' between the first horizontal slat and the second one, N could Heidi have gotten through -- gotten her nose through that area? A. You mean at the bottom or at the top? Q At the bottom. A. I'm not sure I understand your question. Q. Well, I'm going to point to it. A Okay. Q. I'll see if I can describe it. From the 10 ground, you have the first horizontal slat. 11 A. Right. 12 Q. horizontal slat and Then you have the second 13 the wire starts at the top of the second horizontal slat 14 and runs up. 15 A. Yes .

16 Q. Between the first and second slat, there's no 17 wire. 18 There's chicken wire. A. 19 Q. I don't see any wire there, sir. 20 A. That's chicken wire, definitely. 21 Q. That's chicken wire? 22 A. Yeah. There's chicken wire that goes down to 23 the —— that bar that runs along the bottom of the gate. 24 Q. Oh, okay. 25 A. And then it goes up to just above -- well, it Gwendolyn Parker & Associates, Inc. 214-747-8007

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goes up to about halfway between the second rail of the gate and the third. Q. Okay. A. that just happened to be -- I mean, Because there's no reason for it to -- I mean, that's just how much wire I had at the time. Q. Okay. A. It's a -- it's a patchwork wire job. Q. I understand. the -- If 10 A. But the wire -- sorry to interrupt. 11 Q. Please. 12 A. But the chicken wire is there to keep small 13 dogs, and the bar on the right is to keep -- it's to 14 keep dogs in the yard, all of it. 15 Q. Okay. If there had been chicken wire and ——

16 this gate, is that the only -- the only entranceway to 17 your property? 18 A. For everybody else in the world, yes. 19 Q. Who is everyone other -— 20 A. You mean for visitors or ——

21 Q. Yes, for visitors. 22 A. Yes. 23 Q. Okay. So anybody who's going to visit your 24 property is going to go to that gate? 25 A. Yes.

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Q. Is there a hell on there they can ring or ——

A. No. Q. They just have to call you or yell in there to tell you -- Generally speaking, A. we know if they're coming or they honk their horn. Q. Okay. If somebody were leaving something for you, and let's say it was not someone with UPS or some delivery service ——

10 A. Uh-huh. 11 Q. -- to leave that package by the and they wanted 12 gate for you, would they have been subject to the same 13 risk as Ms. Smith of getting hit by a dog? 14 A. No. 15 MR. SAUNDERS: Objection, form. You can 16 answer. 17 THE WITNESS: What? 18 Q. (By Mr. Johnson) You can answer. He just -- 19 if I say something that's not -- that he has an 20 objection to, he has to say to put it on the record, it 21 but you can answer. 22 A. I had no expectation for anybody to be at any 23 risk. I mean, I'd have to say no. I mean -- 24 Q. Well, sir, I'm I'm a little confused, then, ——

25 because in -- in -- this is, once again, under the

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Page 355 Page 31 arguments section of your motion. It says that -- and it's at the end of that paragraph, that, Ms. Smith failed to notice that Defendant's gate had openings in it large enough for a dog that felt threatened, like the one that hit her, to stick its nose through or unlike at least one prior occasion when she had made a delivery to Defendant's property without mishap. This time she simply bent down too close to the gate without leaving the package to be delivered, failing to keep a proper 10 lookout for her own safety. If the dogs didn't present 11 a risk, then how was how was —— it that Ms. Smith failed 12 to keep a proper lookout for her own safety? 13 A. I think that it -- she changed the dynamic of 14 everything by running toward the gate. 15 Q. Okay. And that's -- that's based on the video? 16 A. Based on the video and her own statements. 17 Q. Had anyone ever run up to your gate? 18 A. Not to the best of my knowledge. 19 Q. Are there kids in the neighborhood? 20 A. There are, and they never run up to the gate. 21 Q. Do you ever have, like, a kid on a bike or just 22 running run past the front of your property? 23 A. Yeah. 24 Q. Do the dogs go crazy? 25 A. If they have another dog with them, they'll run

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Page 356 Page 32 along the fence and bark at the dog. Q. What if they don't have a dog with them? A. Generally, they ignore them. Q. Do you know why, then, Heidi wouldn't have

ignored Ms. Smith? A. The truck, and the fact that she truck, the UPS

ran at the gate. I mean, the trucks get attention from all the dogs I've ever had. So that's like a big noise and a big truck. The dogs come to look. 10 Q. Okay. 11 A. And she's running from the truck to the gate, I 12 think. 13 Q. People have left packages at that gate before, 14 haven't they? 15 A. Not like that, no. They leave them on the 16 ground a couple feet from the gate. I'm at a loss as to 17 why you would leave it like that, frankly. 18 Q. So is it your position that Mrs. Smith or ——

19 Ms. Smith was -- because she jogged up to the gate and 20 put down the package, it's your position that that's why 21 she got hit? 22 A. I think it definitely contributed. I don't 23 think it's I think it definitely contributed, yes. ——

24 Q. Okay. Do you have any -- and I'm -- I don't 25 mean to be a smart aleck about this, it's just a

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Page 357 Page 33 question. Are you in any way trained in animal psychology? A. No. Q. So you don't know what was going on in your dog's mind at the time that she hit Ms. Smith? A. No, I don't. Q. Did there anything that prohibited you —— was from having -- other than simply not having the wire, from having chicken wire run up the full extent of the 10 gate? 11 A. I that anything like that had no expectation 12 was needed. There was -- I had no cause, in other 13 words, to make me think it was needed. And that -- I 14 mean, to me, the logical extension of that would be to 15 cover not only the gate but the entire perimeter of the 16 property with chicken wire. 17 Well, sir, the only place where someone was Q. 18 going to enter or leave your property was at the gate, 19 correct? 20 A. Or approach the property, yeah, I mean, at or 21 around the gate. 22 Q. Okay. So the only place where the person —— if 23 someone was coming onto your property or leaving 24 something right outside your property, the only place 25 that they would come into contact, potentially, with

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your dogs was at the gate? A. Yeah. Q. Did you know that, as stated in the Okay. argument section of the motion, that the gate had openings in it large enough for a dog that felt threatened, like the one that bit Ms. Smith, to stick its nose through? A. Yes. Q. Okay. Had anyone ever come -- well, let me 10 rephrase that. Do you know whether your dogs act 11 differently when you're at home as opposed to when 12 you're not at home? 13 A. I'm not sure I understand. 14 Q. Do you have -- and I understand that if —— if 15 you and your wife aren't home, you're not going to have 16 firsthand knowledge of how the dogs are acting. 17 A. Yes. 18 Q.But do you -- do you have any videos or have 19 you reviewed any videos or spoken to any of your 20 neighbors who have said that the dogs will act more 21 aggressively when you're not home as opposed to when you 22 are home? 23 A. No. 24 Q. Okay. 25 A. I mean, could -- sorry to interrupt you. The

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Page 359 Page 35 video -- I mean, now that you mention it, I have looked at videos of the dogs' behavior, I mean, incidentally in, you know, curiosity about other things. I've looked at videos and the dogs almost seem less active when we're not there. Frankly, I've wondered where the dogs are. Q. When were those videos taken? A. Up over a period of time before and after the incident. 10 Q. Okay. Were they taken at the time of 11 deliveries? 12 A. There are videos of delivery times, yes. 13 Q. Okay. At the time of the previous deliveries, 14 did the dogs bark? 15 A. Yes. 16 Q. Did they run to the fence? 17 A. Sometimes, yes. 18 Q. Okay. they were running to the fence, When 19 were they acting aggressively towards the person who was 20 coming to make the delivery? 21 A. Not in my opinion. They were acting like dogs 22 in their yard. 23 Q. Okay. Now, at no time during those deliveries 24 did —— well, I'll ask you: During those deliveries, did 25 Heidi ever go up to the fence and stick her nose through

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Page 360 Page 36 the -- through the wire? A. Not that I saw, no. Q. Just a second. Sir, you produced a Okay. video of -- of the -- what you say is the incident and some previous deliveries, correct? A. And I think some subsequent -- Q. You're familiar with that video? A. Yes. Q. That video was taken by a camera located on 10 your property; is that correct? 11 A. Yes. 12 Q. The dates on the video are wrong. 13 A. Yes. 14 Q. Correct? The -- how do you know that the 15 incident that's shown on the video was the same as when 16 Heidi bit Ms. Smith? 17 A. Well, because it -- I to find the mean, 18 incident, literally, I went from the end of the video 19 and went back in 24-hour increments -- 20 Q. Okay. 21 A. -- just counting back days. 22 Q. Okay. 23 Disregard the date because it's wrong. A. 24 Q. So you knew when the last date was and then you 25 just counted back from there?

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Page 361 Page 37 A. Yes. Q. Okay. A. And ended up at the incident. Q. Okay. And that's how you determined what -- what you believe the dates to be of the different -- A. Yes. -- things that are shown? In that video, you Q. state that -- or in your motion, you state that the video shows prior deliveries by Ms. Smith. 10 A. Yes. 11 Q. I've looked at the video and I couldn't tell 12 who it was. did you know How was Ms. Smith? it 13 A. Because I believe -- I don't know absolutely 14 for a fact, but I believe that she was the only female 15 working during that period of time in that area. And I 16 could tell that it was a female in the video. 17 Q. How do you know she was the only only female ——

18 working? 19 A. I believe she said that. I'm not positive. 20 Q. Okay. So she said it in her deposition. 21 That's what your statement would have been based on? 22 A. Yes. 23 Q. Okay. Just one second, please. What are your 24 dogs -- do they have toys that they play with, chew 25 toys?

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Page 362 Page 38 A. toys. They do have Q. Okay. What kind of toys are they generally? A. Well, Shooter doesn't play with toys. He's never been interested in toys. I don't know. Q. I'm sorry. That dog's name again? A. Shooter, the little Red Healer/Dachshund -- Q. Oh, okay. A. -- mix dog, whatever that is. Frank is blind. He doesn't know what a toy is except that he gets hit 10 with them once in awhile. Heidi loves to play ball, so 11 the large tennis balls. 12 Q. Okay. 13 A. I guess that's what they are. I think they're 14 called Kong balls or something like that. And she likes 15 for you to throw them and she brings it back and gives 16 it to you and you can throw it again. 17 Q. Okay. 18 A. She likes to get the ball. 19 Q. When -- you're throwing to Heidi -- and I when 20 know with my dogs, if I don't throw quick enough, it 21 they'll come up and try to -- try to take out of my it 22 hand. Does that ever happen with Heidi? 23 A. Well, she has been trained. And we tell her to 24 sit, and we throw the ball and she goes. 25 Q. Okay. If you don't say sit, will she come to

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you? A. She -- if -- you mean come after the ball -- Q. Yeah. A. —— in your hand? Q. Yeah. Yes. A. stays back a couple feet and watches, I She mean, anxiously for you to -- you know, what are you going to do with the ball. Q. Okay. 10 A. When possession, it's my ball. its in my 11 That's our -- the understanding. I mean, she doesn't 12 grab it back out of my hand. 13 Q. Okay. Do you think it's possible that Heidi ——

14 at the time that she hit Ms. Smith, that she was simply 15 trying to get what was in Ms. Smith's hand? 16 MR. SAUNDERS: Objection, form. You can 17 answer. 18 A. No. 19 Q. (By Mr. Johnson) Why not? 20 A. I think that she was -- I think that -- well, 21 again, I'm ——

22 Q. I understand that you're not -- 23 A. I'm not qualified to speculate. So, I mean, 24 what I would speculate on it would probably be -- 25 Q. And the only reason I'm asking is because in

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Page 364 Page 40 the motion, you do speculate as to what was that it caused this. So I'm asking you: Is —— is it it possible that she was simply going for whatever was in —— in Ms. Smith's hand or was she -- A. No. Q. -- going for Ms. Smith? MR. SAUNDERS: Objection, form. A. I don't think it was either. Q. (By Mr. Johnson) Do you have any opinion as to 10 why she attacked? 11 MR. Objection, form. SAUNDERS: 12 A. I disagree with the term attack. 13 Q. (By Mr. Johnson) You're saying Heidi did not 14 attack Ms. Smith? 15 A. I'm saying that in my opinion, probably what 16 happened was there was a collision between 17 Ms. Smith's -- an extremely regrettable collision 18 between Ms. Smith's neck and Heidi's nose/mouth. 19 Q. Okay. 20 A. Like I said, it was a horrible event and I wish 21 it would never have happened. I wish nothing like this 22 on anybody ever at all. Heidi's has been a great, 23 wonderful dog . 24 Q. And since this event, there's been nothing ——

25 no additional problems with Heidi?

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Page 365 Page 41 A. No. Q. In your motion, you state that, Okay. Plaintiff was bitten because in a rush to make a delivery to Defendant's property, and heedless of the risk involved, she ran towards the gate where the dogs were already barking. What risk are you talking about? A. Well, I guess if -- frankly, I personally if composed this, I wouldn't have put that statement in there. I think that on the other hand -- 10 MR. SAUNDERS: Let me stop you real quick 11 because I'm confused. The statement -- are we talking 12 about something the lawyer wrote in argument or have we 13 gotten to him and his affidavit? I don't see that 14 statement in the affidavit. 15 MR. I haven't JOHNSON: gone to the 16 affidavit yet, but this was -- 17 Q. (By Mr. Johnson) But you had said that you 18 read -- you had read that motion. 19 MR. SAUNDERS: I just object to the term 20 that it's his statement. It's the argument that the 21 lawyer made. I thought you were referring to -- sorry. 22 I thought you were referring to his affidavit here. I 23 didn't see that there. 24 THE WITNESS: Page 6, I think. 25 MR. SAUNDERS: Got you. You can rephrase

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Page 366 Page 42 it and I'll withdraw my objection. MR. JOHNSON: Okay. Q. (By Mr. Johnson) Do you agree with that statement that's contained -- that I just read that's contained in the motion? A. I would probably -- like I said, I would probably modify the part that says, Heedless of risk involved. I'm not sure what I would modify to, but it that's -- 10 Q.Well, are you saying that Heidi did not present 11 any risk to Ms. Smith? 12 A. Gosh, I've got to tell you that the fence 13 probably and the fence posts and the wasps that have a 14 nest built into the telephone pole right there presented 15 a risk. But, in my mind, I had never conceived of or 16 considered that the dogs were a risk. I mean, that's if 17 the -- that would be one way to read that statement, was 18 that the risk was purely of the dogs. And I would 19 disagree with reading it that way, is what I'm saying ——

20 Q. Okay. 21 A. -- frankly. 22 MR. JOHNSON: Go off the record for a 23 second. 24 (Recess from 11:09 a.m. to 11:11 a.m.) 25 MR. JOHNSON: Back on the record.

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Q. Sir, since the time of the (By Mr. Johnson) incident, we'll just call it that, with Ms. Smith and Heidi, have you made any changes to the gate? A. No. Q. You haven't put chicken wire all the way up? A. No. Q. So if someone came to the gate and dropped down a package again, this same thing -- Heidi could bite that person again? 10 A. I —— I have no expectation that that would 11 happen at all. 12 Q. But it would be possible? 13 A. It would be, in opinion, monumentally my 14 improbable, but not impossible. 15 Q. Okay. Because the hole in the gate where 16 the -- between where the wire is is still there? 17 A. Yeah. It has not changed. 18 Q. Okay. 19 MR. JOHNSON: Passthe witness. 20 MR. SAUNDERS: We'll reserve ours until 21 trial. 22 (Deposition concluded at 11:17 a.m.) 23

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Page 368 Page 44 CHANGES AND SIGNATURE

WITNESS NAME: TERRY P. PROVINCE

DEPOSITION DATE: SEPTEMBER 15, 2017 PAGE LINE CHANGE REASON

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I, TERRY P. PROVINCE, have read the foregoing deposition and hereby affix my signature that same is true and correct, except as noted above.

TERRY P. PROVINCE

THE STATE OF ) COUNTY OF )

Before me, on , 10 this day personally appeared TERRY P. PROVINCE, known to me (or proved to me under oath or through 11 ) (description of identity card or other document) to be the person whose name is 12 subscribed to the foregoing instrument and acknowledged to me that they executed the same for the purposes and 13 consideration therein expressed. 14 Given under my hand and seal of office this day of I 15

17 NOTARY PUBLIC IN AND FOR 18 THE STATE OF 19

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Page 370 Page 46 CAUSE NO. CV-2016-00729 KAREN LINDSEY SMITH ) IN THE COUNTY COURT

Plaintiff, ;

VS. ; NO. 2

TERRY P. PROVINCE ;

Defendant. ; DENTON COUNTY, TEXAS

REPORTER'S CERTIFICATION DEPOSITION OF TERRY P. PROVINCE SEPTEMBER 15, 2017

11 I,Chrissa K. Hollingsworth, Certified Shorthand 12 Reporter in and for the State of Texas, hereby certify 13 to the following: 14 That the witness, TERRY P. PROVINCE, was duly sworn 15 by the officer and that the transcript of the oral 16 deposition is a true record of the testimony given by 17 the witness; 18 That the deposition transcript was submitted on 19 to the witness or to the attorney for the 20 witness for examination, signature and return to me by 21

22 That the amount of time used by each party at the 23 deposition is as follows: 24 MR. MARK D. JOHNSON ....... 01 HOUR(S):03 MINUTE(S) 25 MR. J. BRANTLEY SAUNDERS..00 HOUR(S):00 MINUTE(S)

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Page 371 Page 47 That pursuant to information given to the deposition officer at the time said testimony was taken, the following includes counsel for all parties of record: FOR THE PLAINTIFF:

MR. MARK D. JOHNSON FLANNIGAN & JOHNSON, PLLC 5600 Tennyson Parkway Suite 330 Plano, Texas 75024 972.383.9377 [email protected] FOR THE DEFENDANT:

MR. J. BRANTLEY SAUNDERS 10 SAUNDERS, WALSH & BEARD Craig Ranch Professional Plaza 11 6850 TPC Drive Suite 210 12 McKinney, Texas 75070 214.919.3555 13 [email protected] 14

18 I further certify that I am neither counsel for, 19 related to, nor employed by any of the parties or 20 attorneys in the action in which this proceeding was 21 taken, and further that I am not financially or 22 otherwise interested in the outcome of the action. 23 Further certification requirements pursuant to Rule 24 203 of TRCP will be certified to after they have 25 occurred.

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Certified to by me this 29th day of September, 2017.

Chrissa K. Hollingsworth Texas CSR No. 8269 Expiration Date: 12/31/17 Gwendolyn Parker & Associates Firm Registration No. 244 4144 North Central Expressway Suite 600 Dallas, Texas 75204 1.877.747.8007 10 [email protected] 11

Gwendolyn Parker & Associates, Inc. 21 4-747-8007

Page 373 Page 49 FURTHER CERTIFICATION UNDER RULE 203 TRCP

The original deposition was/was not returned to the deposition officer on ;

If returned, the attached Changes and Signature page contains any changes and the reasons therefor; If returned, the original deposition was delivered to Mr. Mark D. Johnson, Custodial Attorney; That $ is the deposition officer's 10 charges to the Plaintiff for preparing the original 11 deposition transcript and any copies of exhibits; 12 That the deposition was delivered in accordance 13 with Rule 203.3, and that a copy of this certificate was 14 served on all parties shown herein on and 15 filed with the Clerk. 16 Certified to by me this day of 17 , 2017. 18

20 Chrissa K. Hollingsworth Texas CSR No. 8269 21 Expiration Date: 12/31/17 Gwendolyn Parker & Associates 22 Firm Registration No. 244 4144 North Central Expressway 23 Suite 600 Dallas, Texas 75204 24 1.877.747.8007 [email protected] 25

Gwendolyn Parker & Associates, Inc. 214-747-8007

Page 374 Filed: Filed: 11/10/2017 12:10 PM 11/10/201712210 Juli Luke Denton County, County, County Clerk By: By: Alexa Hagenbucher, Hagenbucher, Deputy

Cause No. CV-2016-00729

KAREN LINDSEY SMITH, §§ IN THE COUNTY COURT Plaintiff, §§ §§ v. V. §§ NO. 22 §§ TERRY P. PROVINCE §§ Defendant. §§ DENTON COUNTY, TEXAS

DEFENDANT’S REPLY REPLY TO

w TO PLAINTIFF’S RESPONSE RESPONSE TO DEFENDANT’S SECOND AMENDED MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT: TO

COMES NOW Defendant, Terry Terry Province Province (hereinafter (hereinafter “Province”), “Province”), and and

ﬁles and serves this his Reply makes, files Reply to to Plaintiff’s Plaintiff’s Response Response to to Defendant’s Defendant’s

Second Amended Motion for Summary Judgment pursuant to Texas Rule of of Civil

Procedure Rule 166a, 166a, and in support thereof would respectfully show this

Honorable Court the following:

I. Plaintiff’s Response Fails to Raise a Genuine Issue of Material Fact 21

This Reply is ﬁled filed solely to point out how and why Plaintiff’s Response why Plaintiﬂ’s Response to

Defendant’s Second Defendant’s Amended Motion Second Amended Motion for for Summary Judgment (“Plaintiff’s Summary Judgment (”Plaintiﬂ’s

Response”), Response ”), even even when viewed in the light most favorable favorable to Plaintiff, fails Plaintiff fails to raise

a genuine issue of of material fact. Plaintiff’s creative fact. Plaintiﬂ’s creative use use of of terms such as terms such as “the ”the

attack attack dog” and and “vicious “vicious attack” attack” does does not change the fact fact that She she has not

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Page 375 produced any produced any credible evidence to create a fact issue. a fact issue. The facts of The facts of this case simply do not merit putting putting Mr. Mr. Province through trial. trial.

II. Plaintiff Fails to Raise a 21 of Material Fact IssuIeI.0f Genuine Issue Fact as as to to all all of of Plaintiff’s Plaintiff’s Claims Against Defendant

Plaintiff’s – whether Plaintiff’s claims all revolve around the same issue — Whether Heidi sticking

part of her snout between the slats of of the gate and biting Plaintiff was foreseeable. foreseeable.

E See Labaj v. VanHouten, 322 S.W.3d 416, 421 (Tex. App—Amarillo v. VanHouten, 322 App.—Amarillo 2010, no 416, 421 2010,

pet.) (the pet.) (the extent extent of of aa dog dog owner’s owner’s duty duty depends depends “on “on proof proof of whether the of Whether the risk risk of of

foreseeable, i.e. injury from aa dog bite is foreseeable, i.e. the the dog dog owner’s owner’s actual or constructive

knowledge of of the the danger presented by danger presented by his his dog”) dog”) (emphasis (emphasis added). added). This incident,

involving this dog, dog, which had no prior violence-related Violence—related issues, issues, ever, ever, was not

foreseeable and Plaintiff has has failed to provide any any proof to the contrary, as as no such

evidence exists. exists.

Province has owned Heidi since she was aa puppy puppy and had no reason to think

that Heidi had any any vicious E Defendant’s Motion propensities. See Defendant’s Vicious propensities. Motion for for Summary Summary

Judgment, Exhibit A. Heidi had never bitten anyone prior to the incident and is

normally aa well—behaved E well-behaved dog. See id. id. Province cannot be liable for injuries caused

by Heidi in aa place she had the right to be by – inside the Provinces’ be — Provinces” yard – because yard —

he did not know that Heidi had any any vicious E Vicious propensities. See Rodriguez v. v.

*2 (Tex. App—F011 Haddock, 2003 Tex. App. LEXIS 2940 at *2 App.—Fort Worth, April 3, 3,

DEFENDANT’S DEFENDANT’S REPLY REPLY TO TO PLAINTIFF’S PLAINTIFF’S RESPONSE RESPONSE TO TO DEFENDANT’S DEFENDANT’S SECOND AMENDED MOTION FOR SUMMARY JUDGMENT PAGE 22

Page 376 2003). In fact, prior to that day, day, Heidi had no vicious Vicious propensities, and that is Why why

Plaintiff cannot produce any any evidence on this point. point.

A. Plaintiﬁr A. Plaintiff Fails to Produce Any Evidence that Heidi was a Vicious Dog. Vicious Dog.

Plaintiff’s Plaintiff’s assertion that Heidi’s Heidi’s alleged “inbred “inbred characteristics” characteristics” somehow somehow

automatically mean that Heidi may may have vicious Vicious characteristics is not only without Without

merit, it would create new law that simply does not, and should not ever, exist. In

Plaintiff’s Plaintiff’s Response, Response, Plaintiff Plaintiff asserts asserts that Heidi is primarily German Shephard and

E Plaintiff’s Response. Boxer. See Plaintiﬂ’s Response. However, the DNA test Plaintiff relies on for this

assertion indicates that Heidi is aa mix of Boxer, Collie, Labrador Retriever,

German Shephard, and other unknown mixed breeds. E Plaintiff’s Response, breeds. See Plaintiﬂ’s Response,

Exhibit A.

Additionally, Plaintiff produced several articles listing and describing Additionally,

dangerous dog breeds, including German Shephard and Boxer. E Plaintiff’s Boxer. See Plaintiﬂ’s

Response. However, these articles are all inadmissible hearsay and Province Response.

objects to them on this basis. Furthermore, regardless of their credibility, the

articles do not establish that Heidi, specifically, speciﬁcally, had any any vicious propensities. Vicious propensities.

Plaintiff acknowledges acknowledges that that these these articles articles “do[] “d0[] not mean that aa particular dog of

these breeds may be vicious.” E Vicious.” See id. Province agrees. Even if they were

admissible, they have no value in this case. case. The articles Plaintiff relies on simply

cannot and do not establish that Heidi had any any vicious Vicious tendencies because they are

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Page 377 inadmissible hearsay hearsay and are wholly unrelated to whether are Wholly Whether Heidi, specifically, was speciﬁcally, was

dangerous. dangerous.

Plaintiff also relies on her self-serving, uncorroborated deposition testimony

in an an attempt to imply that Heidi was a Vicious dog. However, a vicious However, Plaintiff’s Plaintiff” s testimony testimony

that that “[Heidi] “[Heidi] obviously obviously wanted wanted the package or the package wanted some or wanted some type type of of toy toy or or

something. something. It It was was aa little bit aggressive little bit aggressive more more than than the the norm” cannot and does not

establish that Heidi had any any vicious Vicious tendencies. E Plaintiff’s Response. tendencies. See Plaintiﬂ’s Response. It is

simply simply Plaintiff’s Plaintiff’s opinion opinion as as an an interested interested party based on one unfortunate party based

With Heidi and encounter with and Province Province objects objects to to the the use use of of Plaintiff’s Plaintiff’s deposition deposition

testimony to prove that Heidi was was vicious. Vicious.

Furthermore, regardless of Plaintiff’s Plaintiff’s objections objections as as to to the the Provinces’ Provinces”

affidavits, afﬁdavits, it it is is not not Province’s job to Province’s job to produce produce evidence evidence that that Heidi Heidi is is not not vicious. Vicious. To To

the contrary, it it is Plaintiff’s burden is Plaintiﬂ’s burden to produce evidence to produce evidence that Heidi had that Heidi had vicious vicious

tendencies of of which Province knew or Should should have known. known. However, no such

evidence exists. Plaintiff has failed to produce any any credible evidence and, and,

therefore, has has failed to meet her burden on the issue of whether Whether Heidi had any any

vicious Vicious tendencies and, so, Province’s and, if so, Province’s knowledge knowledge thereof. thereof. Simply put, Plaintiff

has not has raised aa fact issue whether Whether Heidi had any any vicious Vicious tendencies. tendencies.

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Page 378 B. PlaintWHas B. Plaintiff Has Presented No Evidence that Province Knew or 0r Should Have Known that Heidi had Vicious Propensities. Vicious Propensities.

None of the evidence cited by by Plaintiff creates aa fact issue as as to whether Whether

Province knew or should Should have known that Heidi might present aa danger because no

such evidence exists.

Again, Plaintiff attempts to rely on various articles about dangerous dog

breeds as breeds as some some “evidence well-known characteristics “evidence regarding the well—known characteristics of of [Heidi].” [Heidi].”

E Plaintiff’s Response. However, as asserted above, these articles are nothing See Plaintiﬂ’s Response. as asserted above, these are

hearsay and more than hearsay and are are not not in in any way credible any way credible evidence evidence of of Heidi’s Heidi’s specific speciﬁc

characteristics and propensities. propensities. Province objects to the use of these articles as as

summary judgment evidence on this basis.

Plaintiff also claims that because because of of Heidi’s Heidi’s genetic genetic makeup, makeup, Province

“knew “knew or or should should have have known known [Heidi] [Heidi] might might do do exactly exactly what What [she] [she] was bred to

do…” do...” However, this statement is conclusory and completely unsubstantiated by by

any any credible evidence. In fact, Province testified testiﬁed to the contrary:

Deposition of Terry Province, Page 42, Lines 10-19 10—19 (emphasis added)

Q. Q. Well, are youyou saying that Heidi did not present anyany risk to Ms. Smith? A. Gosh, Gosh, I’ve got got to to tell you that tell you that the the fence probably and fence probably and the the fence fence posts and the wasps that have aa nest built into the telephone pole right there presented aa risk. But, in mymy mind, I had never conceived of 0f or considered that the dogs were aa risk. I mean, mean, if that’s that’s the the – that would be — be one way way to read read that statement, was that the risk was purely of the dogs. And I would disagree with With reading it reading it that that way, way, is is what What I’m saying saying – —

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Page 379 E See Plaintiﬂ’s Plaintiff’s Response, Exhibit F Response, F

In an apparent attempt to establish that Province breached any any alleged duty

owed, owed, Plaintiff Plaintiff relies relies on on Province’s Province’s actions prior to actions prior to the the incident, incident, arguing arguing that that

Province’s Province’s failure failure to to put put chicken wire all chicken Wire all the the way up the way up the gate gate means means that that Province Province

was indifferent to public safety. However, as was has already been established and as as has as

Province has has testified, testiﬁed, he was not aware of of any any risk associated with not putting

chicken Wire wire all the way up the gate:

Deposition of Terry Province, Page 33, 33, Lines 7-16 7—16 (emphasis added)

Q. Q. Did –— was there anything that prohibited you from having — – other than simply not having the Wire,wire, from having chicken wire run up the full extent of the gate? Wire gate? A. I had no expectation that anything like that was needed. There was –— I had no cause, cause, in other words, to make me think it was needed. was needed. And that — – I mean, mean, to me, me, the logical extension of of that would be to cover not only the gate but the entire perimeter of of the property with With chicken Wire. wire.

E See Plaintiﬂ’s Plaintiff’s Response, Exhibit F Response, F

Province had no obligation to do any any more than he did with the gate and

fence fence around his yard. around his yard. Province’s Province’s only only duty duty was was to to act act as as a reasonable prudent a reasonable pmdent

person under person under the the same same circumstances circumstances “regarding “regarding any any reasonably foreseeable

ﬁAllen risk.” See Allen v. ri_sk.” v. Albin, 97 97 S.W.3d 655, 655, 666 (Tex. App—Waco App.—Waco 2002) (emphasis

added). Plaintiff’s added). Plaintiff’s argument argument would would create create new new Texas Texas law law requiring requiring what What amounts amounts

non—Vicious dogs. Plaintiff’s to strict liability for owners of non-vicious Plaintiff’s attempt attempt to to argue argue that that

Province was under aa heightened duty to put chicken wire Wire all the way up the gate, gate,

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Page 380 despite the fact that Plaintiff has produced no credible evidence that Province was was

aware that Heidi posed aa danger to anyone on the other side of the gate, gate, is not

Texas law.

v. Reger for Additionally, Plaintiff relies on Stein v. Additionally, for her her assertion assertion that that aa dog’s dog’s

breed can breed can impact impact the the owner’s owner’s liability liability for for aa dog dog bite. EPlaintiff’s Response. bite. See Plaintiﬂ’s Response.

However, the court in Stein does not hold, as as Plaintiff Plaintiff asserts, asserts, that that “a “a dog’s dog’s breed breed

can have aa direct can have direct impact impact on on whether Whether aa homeowner homeowner is is liable liable for for an an attack.” attack.” See E Plaintiff’s Response; Plaintiﬂ’s Response; Stein v. Reger, 2016 Tex. App. LEXIS 5961, 2016 WL v. Reger,

3162589 (Tex. (Tex. App.—Houston App—Houston [1st [lst Dist.] Dist] 2016). 2016). Instead, the court in Stein held

because the that because the plaintiff plaintiff “d[id] not present “d[id] not present any any evidence evidence of of foreseeability,” foreseeability,”

summary judgment was was appropriate. E appropriate. See Stein, 2016 Tex. App. LEXIS 5961 5961 at

*13. The same analysis is applicable here as as Plaintiff has failed to produce any any

credible evidence that the incident at issue was foreseeable.

The defendants in Stein testified testiﬁed that the dog at issue had never attacked

anyone else and that they they “could “could never have anticipated never have anticipated that that [the [the dog] dog] may may have have

been jump over been able to jump over the the fence.” E fence.” See id. id. at *12. *12. As in Stein, Stein, Province has attested

(ﬂDefendant’s Motion to the fact that Heidi has never bitten anyone else (see Defendant’s Motion for for

Summary Judgment, Exhibit A) and testified testiﬁed that he could not have anticipated that

any any of the dogs, dogs, including Heidi, would snap at someone close to the gate:

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Page 381 Deposition of Terry Province, Page 21, Lines 10-13 10—13 (emphasis added)

Q. Q. Okay. Were you you at all concerned that if someone came up with aa package close to the gate, gate, that one of the dogs might snap at them? A. I would never have expected that to happen.

E See Plaintiﬂ’s Plaintiff’s Response, Exhibit F Response, F

The bottom line is that Province did not know and had no reason to know

that Heidi presented any any danger and, and, therefore, the incident was most certainly not

foreseeable. Plaintiff has produced no evidence to dispute this fact. The fact that

Province neither knew nor should have known that Heidi presented aa danger to

Plaintiff is enough, on its own, to defeat Plaintiff’s claims. Therefore, Defendant

requests the Court grant Defendant’s Defendant’s Motion for Summary Judgment in its entirety. entirety.

C. Plaintiff’s Argument C. Plaintiff’s Argument that Province Acted that Province Acted with Indifference to with Indijﬂrence t0 the Public’s the Public ’s Safety is Without Merit. Without Merit.

Because Plaintiff has has not produced credible evidence that Province was was

negligent, she she cannot succeed on a E a gross negligence claim. See In re J.H. J.H. Walker, Walker,

(App—Dallas Jan. Inc., 2016 Tex. App. LEXIS 483 (App.—Dallas Jan. 15, 15, 2016) 2016) (“the (“the existence existence of of

negligent conduct is aa prerequisite to to the the establishment establishment of of gross negligence.”). gross negligence.”).

Regardless, in order to establish gross negligence, Plaintiff is required to prove that

Province had actual, subjective subiective awareness of the risk but proceeded with

E conscience indifference. See Mobil Oil Corp v. v. Ellender, 968 S.W.2d 917, 917, 921 921

(Tex. (Tex. 1998). 1998). Plaintiff, however, has has not produced any any evidence on this issue.

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Page 382 Furthermore, Furthermore, gross negligence requires gross negligence requires that that Province’s Province’s conduct conduct “create[d] “create[d] an an

extreme extreme degree degree of of risk risk of of harming harming others.” others.” Columbia Med. Med. Ctr. Ctr. v. Hogue, 271 v. Hague, 271 S.W.3d 238, 248 (Tex. 2008). 2008). An extreme degree of risk is more than aa remote

possibility of injury or even aa high probability of minor harm; it is the likelihood of

E M serious injury to the plaintiff. See Ellender, 968 S.W.2d at 921. Plaintiff cannot

establish that Province’s Province’s failure failure to put chicken to put wire all the way up the gate (before chicken Wire

or after the incident) creates the likelihood of serious injury because Province did

not have actual knowledge of any any extreme risk. As has has been established, Province

did not know that Heidi posed aa danger to anyone on the other side of the gate and, and,

therefore, did not consciously disregard any any extreme risk. Plaintiff has produced no

evidence to the contrary. Therefore, Therefore, Plaintiff’s Plaintiff’s gross gross negligence negligence claim claim must must fail fail

and summary judgment is proper. proper.

II. No Evidence Summary Judgment is Appropriate

Province Province moved moved for for summary judgment on summary judgment on Plaintiff’s Plaintiff’s claims claims on on the the grounds grounds

that there is insufficient insufﬁcient or no evidence of any any essential elements of those claims.

Plaintiff failed to produce summary judgment evidence raising aa genuine issue of

material fact for any any elements of any any claim against Province. Province. Further, Plaintiff

failed to provide actual, proper summary judgment evidence in her response. response. The

exhibits provided by by Plaintiff were hearsay, hearsay, speculative deposition testimony,

and/or not evidence of each and every element of the causes causes of action as required. as required.

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Page 383 Therefore, the granting of Defendant’s no—evidence motion for summary judgment

is requested and proper.

WHEREFORE, Defendant, Terry Province, prays that this Court GRANT

his Second Amended Motion for Summary Judgment in all respects. Further,

Defendant prays for all other relief, both general and special, in law or equity, to

which he has proved itself justly entitled.

Respectfully submitted,

(\1 Q QLxHLgl’VVM ﬁg C~vl\( K Ox \»\ xv J. Braﬁtley Saunders State Bar No. 17681500 Abigail K. Christmann State Bar No. 24097523 SAUNDERS, WALSH & BEARD Craig Ranch Professional Plaza 6850 TPC Drive, Suite 210 McKinney, Texas 75070 (214) 919—3555 Telephone (214) 615-9019 Telecopier Brantlev@ SaundersWalsh.c0m [email protected] Attorneys for Defendant Terry Province

DEFENDANT’S REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S SECOND AMENDED MOTION FOR SUMMARY JUDGMENT PAGE 10

Page 384 CERTIFICATE OF SERVICE

This is to certify that aa true tme and correct copy copy of of the foregoing document, Defendant’s Defendant’s Reply Reply to to Plaintiff’s Plaintiff’s Response to Defendant’s Second Amended Motion for Summary Judgment, was served upon all counsel of of record on this th the 10 10th day day of November, 2017, pursuant to Texas Rules of Civil Procedure 21 21

and 21a.

M‘u‘x (‘s K. C Q'vklbfli'Vu 0x, \ \ \ U _____________________________ }

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Page 385

Reference

Status: Published