# Karen Lindsey Smith v. Terry P. Province > Court of Criminal Appeals of Texas · March 23, 2018 URL: https://www.frixlaw.com/law-library/cases/4258348 ## Case - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 23, 2018 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4258348 ## How later opinions describe it (automated extraction) - holding mailman is invitee in dog-bite negligence case - holding mailman is invitee in dog—bite negligence case ## Opinion text 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 v. 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 paul@flanniganlawfirm.com MARK D. JOHNSON State Bar No. 10770175 mark@flanniganlawfirm.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 APPELLANT ORAL ARGUMENT NOT REQUESTED IDENTITIES OF PARTIES AND COUNSEL Appellant Karen Lindsey Smith Counsel for Appellant Paul Flannigan Paul@Flanniganlawfirm.com Mark D. Johnson Mark@Flanniganlawfirm.com FLANNIGAN & JOHNSON, P.L.L.C. 5600 Tennyson Parkway, Suite 330 Plano, Texas 75024 Appellee Terry P. Province Counsel for Appellee Brantley J. Saunders Brantley@SaundersWalsh.com Abigail K. Christmann Abby@SaundersWalsh.com 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 paul@flanniganlawfirm.com MARK D. JOHNSON State Bar No. 10770175 mark@flanniganlawfirm.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 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 Brantley@SaundersWalsh.com Abigail K. Christmann Abby@SaundersWalsh.com /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: I. 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 Brantley@SaundersWalsh.com Abby@SaundersWalsh.com 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 paul@flanniganlawfirm.com paul@flanniganlawfirm.com Mark D. Johnson mark@flanniganlawfirm.com mark@flanniganlawfirm.com Nick Tedford nick@flanniganlawfirm.com 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. �� NOTARY NOTARY PUBLIC PUBLIC IN IN AND AND FOR FOR THE THE STATE STATE OF OF TEXAS TEXAS QM Po, DEVIN ERICKSON ‘m‘rrrr g (g, Notary Public ‘d} t va A ‘LL -W ”PM“ |§§a§§?6§§§%57 . My Comm. Expires 03‘22-2021 1 u, .Lbu. AFFIDAVIT AFFIDAVIT OF OF TERRY TERRY PROVINCE PROVINCE PAGE2 PAGE 2 Page 260 EXHIBIT A-11 E X H B H A. .. ,;· r I.�&.• ·, . . :� ·" .,• .,t.. . ':. · , -,·-; ;-> ' Vhe� e:r& M dMdc-MM n ' Pew Y‘W? 36 = MWWWW u...��lil ‘ 7 '\11 rtl-- f:) I? line, lH\ 17:) l11:t'e., ' WHZ Wmmla' ;. hdvtt Mme f}eqj� needed PAVE) Pj-:L'=> [M0, i W \0\�tavi.d JiA 'PZ'-v�). 93163 l�e., vv VI Or w�-r½S1 • 8 "f KYksfdnc‘ ~. wingtwm’fi'i’in n_ wr,.,,t ?- 0 1 9‘0 \'� t.tu L” l"'\tlYI(... ,.,., \ \ I lLVJ·tI· o t. ,-c}.o:, bi t;e.tr,.;1\'f\i''G) YI cleo t V},Ol'V'- !ti� to � /A . t We“. VJ J./;'v� ooe-f�e.ve 1qecol.\S� ,. 9 “‘9” «lwrwfzimi’mw cr Jzégzémgwwwof ,t�f> h�Jifl'.(4,l� 10 O�,r�')- f->ju _-l � J v�\P :,;:.,. G ,, \' ,ti.A.()) Jdj \\ Rub) b�ce. t· Vml\TI\JVicAeo w; 4:59 bug· '-1:vt?mfr}9y:;leo .· oV\.$�“65k 4 rL..��'blt'il '5‘?“t WNW)- -l- \OQLlfi Like/6 Sile e,t- , «eer' mm 99 La! l new . r- 13 14 15 ·. 16 17 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 ’ \“\’:. ‘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 -- 983.99, .‘ ...........‘ - In fi" ,4 . 6, ::4.6' o ‘ \� ,. u *Q . ‘ 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 "'\\ 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 — igfafiig MARKER LELNEE mg 523 MANHOLE R-O-W- = R.O.W. = RIGHT R'GHT OF0" WAY — — @ TELEPHONE TELEPHONE RISER EASEMENT � CONCRETE WAY DRAWN BY:EZ DATE: 08-11-2017 ® SM SM STORM STORM SEWER SEWER MANHOLE FF = FINISHED FINISHED FLOOR — RISER ‘ EASEMENT 'tJ FF = UTILl1Y UTILITY EASEMENT CONCRETE BURIED BUR'ED CABLE CABLE MARKER 08—11—2017 MANHOLE _ _ — DRAWN EIY:EZ DATE: FLOOR CHECKED CHECKED BY:EZ DATE: DATE.' 08-11-2017 U MARKER CULVERT CM = CM = CONTROLLING CONTROLLING MONUMENT _ . EASEMENT . mu BUILDING BUILDING LINE D.R.D.C.T. = DEED MONUMENT 05 _ 11 _ 2017 @ ELECTRIC ELECTRIC RISER CULVERT ' ® RISER @ WATER WATER METER = BASE t* = BASE BEARING LINE D.R.D.C.T. = DEED -- --OHE-- OVERHEAD ELECTR'C RECORDS, DENTON OVERHEAD ELECTRIC BEARING SCALE: SCALE: 1"= 300’ PAGE 1 OF 300' PAGE or 1 rc:;:i L=!..l ELECTRIC ELECTRIC TRANSFORMER —— OHE—— (( )) = = PLAT PLAT OR0R DEED DEED CALL 1": @ METER ER'CMZOLUNGER 1> LATEST ON IDW 20 Secrets Why Dogs Make Us Happy LATEST ON IDW Top 10 Most Liked Bull Terrier Photos and Captions On Facebook! fywaw] SHARL IWLLI SHARLLVIAIL ,~,_ TOP LISTS 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! 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