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.




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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
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                                                                             Pa ge 6
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                                                                                                                                                                      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:



                                                                                                                                    22 ((Pages
                                                                                                                                         Pages S5 to
                                                                                                                                                  to 8)
                                                                                                                                                     8)
                           GOODENOUGH
                           GOODEINOUGH &
                                       & ASSOCIATES
                                         ASSOCIATES                                                             (817)
                                                                                                                (817) 261-9095
                                                                                                                      261-9095


                                                                                     Page 264
                                                                                    EXHIBIT
                                                                                    EXHIBIT B
                                                                                            B

                                           KAREN
                                           KAREN LINDSEY
                                                 LINDSEY SMITH
                                                         SMITH                                                          08/26/2016
                                                                                                                        08/26/2016
                                                                              Page
                                                                              Pa 9 e 45
                                                                                     4 5                                                                                              Page
                                                                                                                                                                                      Pa ge 44 7
                                                                                                                                                                                               '7


     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




                                                                                                                                     12
                                                                                                                                     12 (Pages
                                                                                                                                        (Pages 45
                                                                                                                                               45 to
                                                                                                                                                  to 48)
                                                                                                                                                     48)
                           GOODENOUGH
                           GOODENOUGH &
                                      & ASSOCIATES
                                        ASSOCIATES                                                                      (817)
                                                                                                                        (817) 261-9095
                                                                                                                              261—9095


                                                                                        Page 265
                                                                                      EXHIBIT
                                                                                      EXHIBIT B
                                                                                              B


                                             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?




                                                                                                                                     13
                                                                                                                                     13 (Pages
                                                                                                                                        (Pages 49
                                                                                                                                               49 to
                                                                                                                                                  to 52)
                                                                                                                                                     52)
                           GOODENOUGH
                           GOO DENOUGH &
                                       & ASSOCIATES
                                         AS SOC IATES                                                                    (817)
                                                                                                                         (817) 261-9095
                                                                                                                               261—9095


                                                                                          Page 266
                                                                                                     EXHIBIT
                                                                                                     EXHIBIT B
                                                                                                             B

                                                           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                                                                        '



5

6

7

8

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
                                                             '\
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                                                                                                                               _




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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
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                                                                                                                                                                                                                                                         s 89"48'26"
                                                                                                                                                                                                                                                           _
                                                                                                                                                                                                                                                             89'48’26" W
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                                                                                                                                                                                                                                                                       w                             (N
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                                                                                                                                                                                                                                                                                                        895340" EE 984.70')
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                                                                                                                                                                                                                 l
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                                                                                                                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“
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                                                                                                                                                                                                                                                                                  SURVEY,
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                                                                                                                                                                                                                          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
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                                                                                                                                                                                                                                                                                                                                                                                  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><1
                                                                                                                    N WATER      VALVE                                                             --x---x--                                                    COUN1Y                  TEXAS
                                                                                              TRANSFORMER
                           1       1
                                                                            El                                                                                                        CALL
                                                                                                                                                                                                        X—X——                            WIRE
                                                                                                                                                                                                                                         W'RE FENCE
                                                                                                                                                                                                                                                                Egﬁﬁgsﬁg’igm"
  CASTLEROCK
  CASTLEROCK SURVEYING,
              TELEP
                        PLLC
             SURVEYING, PLLC
          P.O. BO X 232, ruSTN
                             I , TEXAS 76247
                    HONE: 940-242-1533
          P0BOX232-JUSTIN-TEXAS76247
              TELEPHONEIWM'IM
    EMAIL: ERIC@CASTLERO CKSURVEYO RS.C O M
    “ﬁﬁgﬁﬁgﬁgﬁ‘ﬁgﬁﬁﬁgw
      TEXAS BOARD OF P ROFES SIONAL LAND
             SURVEYING FIRM# 10194308
             sunvaymammmgms
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                                                                                      GAS
                                                                                      GAS METER
                                                                                      OIL
                                                                                      OIL &
                                                                                            METER
                                                                                           8c GAS
                                                                                      UTILl1Y
                                                                                      “WW POLE
                                                                                      GUY
                                                                                      CLEAN
                                                                                              GAS PIPELINE
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                                                                                            ANCHOR
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                                                                                              OUT
                                                                                                    PIPELINE MARKER
                                                                                                             MARKER
                                                                                                                    @)


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                                                                                                                     $
                                                                                                                     6
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                                                                                                                         WATER VALVE
                                                                                                                    ® WELLWELL
                                                                                                                         IRRIGATION
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                                                                                                                         LIGHT
                                                                                                                         ”cm    POLE
                                                                                                                                POLE
                                                                                                                          == FIRE
                                                                                                                                             VALVE
                                                                                                                                     CONTROL VALVE


                                                                                                                             FIRE HYDRANT
                                                                                                                                   HYDRANT
                                                                                                                                                            P.0.B. = POINT
                                                                                                                                                           P.O.B.
                                                                                                                                                           P.O.C.
                                                                                                                                                            P-O
                                                                                                                                                            U.E.
                                                                                                                                                            U.E. =
                                                                                                                                                            D.E.
                                                                                                                                                            DE =
                                                                                                                                                            AC =
                                                                                                                                                           Ac
                                                                                                                                                                  -
                                                                                                                                                                    =
                                                                                                                                                                    =
                                                                                                                                                                       POINT OF
                                                                                                                                                                    _ POINT
                                                                                                                                                                       PO'NT OF
                                                                                                                                                                  = UTILl1Y
                                                                                                                                                                  = DRAINAGE
                                                                                                                                                                               OF BEGINNING
                                                                                                                                                                                    BEGINNING
                                                                                                                                                                               0F COMMENCEMENT
                                                                                                                                                                             EASEMENT
                                                                                                                                                                     DRAINAGE EASEMENT
                                                                                                                                                                                EASEMENT
                                                                                                                                                                   AIR CONDITIONER
                                                                                                                                                                 = AIR
                                                                                                                                                           P.R.D.C.T. =
                                                                                                                                                           P.R.D.C.T.
                                                                                                                                                                        CONDITIONER PAD
                                                                                                                                                                       = PLAT
                                                                                                                                                                                       PAD
                                                                                                                                                                           PLAT RECORDS,
                                                                                                                                                                                               m—
                                                                                                                                                                                               _o_,_.__
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                                                                                                                                                                     UTILITY EASEMENT



                                                                                                                                                                                 RECORDS, DENTON
                                                                                                                                                                                                       ///——///
                                                                                                                                                                                                       ll
                                                                                                                                                                                                   --0---0------0-
                                                                                                                                                                                                   --0------0----0
                                                                                                                                                                                               — — — —
                                                                                                                                                                                            DENTON COUN1Y,
                                                                                                                                                                                                   COUNTY, TEXAS
                                                                                                                                                                                                            TEXAS
                                                                                                                                                                                                                  111--                  WOOD
                                                                                                                                                                                                                                         CHAIN
                                                                                                                                                                                                                                         METAL
                                                                                                                                                                                                                                                FENCE
                                                                                                                                                                                                                                         wooo FENCE
                                                                                                                                                                                                                                                 FENCE
                                                                                                                                                                                                                                         CHAIN LINK
                                                                                                                                                                                                                                                 LINK FENCE
                                                                                                                                                                                                                                         META" GATE
                                                                                                                                                                                                                                         GRAVEL
                                                                                                                                                                                                                                         GRAVEL
                                                                                                                                                                                                                                                 GATE
                                                                                                                                                                                                                                                        FENCE   R.P.R.D.C.T. =
                                                                                                                                                                                                                                                                R.P.R.D.C.T.
                                                                                                                                                                                                                                                                PROPER1Y RECORDS,
                                                                                                                                                                                                                                                                DENTON COUN1Y TEXAS
                                                                                                                                                                                                                                                                           Eﬁﬁigmoﬁcﬁﬁns
                                                                                                                                                                                                                                                                                            = REAL
                                                                                                                                                                                                                                                                                               REAL               ‘ (‘7:43.0;‘Ess\
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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
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            OTION FOR   UMMARY J
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                               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




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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.


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                  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.


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                                                       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.




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                                        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).




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      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


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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
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            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
      Brantlev@SaundersWalsh.com
      Abigail K. Christmann
      Abbv@SaundersWalsh.com


                                          /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     '



                                               ( ‘f              v‘w’                      J‘U fad                                       3?   ,

                                                                                                                                                     ”y      ,


                                            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



                               E
                                                         '
                                                                  .
                                                                  7


                                                                      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
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                                                                                             /            / Labradm Retriever Mix crossed with German Shepherd Dog Mix
               Research & Development Director




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           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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        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




                                                                     Forbes
                                                           © 2017 Forbes Media LLC. All Rights Reserved.




https://www.forbes.com/pictureslm|j45emjeg/4—german—shepherd-incl/#617c62f9259f                                                                               1/2
                                                                             Page 306
  11/7/2017                                                        8. Boxer - Most Dangerous Dogs




                                                      V




                                                          ,
                                                             or a rainy day. Let’s change           that.
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                                                  ,
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              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:


                                                                                  ”w
                                                                                                         TOP LISTS
                                                                                                         Top 10 Most liked

                              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

                                                                                                                                                        >
                                                                                                         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! 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


                                                                              TRENDING POSTS ON IDW




                        Source:
                        https://www.pinterest.com/pin/ 197032



                        Great Danes can be gentle
                        giants if properly trained and
                        cared for as they already

hnpzllwww.insidedogsworld.com/top10»most-dangerous-dog-breeds-in—theworld/                                                    2/14


                                                                             Page 310
  l1/6/2017                                            Top 10 Most Dangerous Dog Breeds in the World - Inside Dogs World




                                                                       '
                         'Bfin’sTBut, if notrtirarinéd and
                         socialized from an early age,
                         they can become quite
                         dangerous and aggressive!
                         Considering their massive
                         body height and weight, they
                         can bring about fatalities!




                        Source:
                        https://www.pinterest.com/pin/361484



                        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 perfect for protection! But,

http://wwwjnsidedogsworldoom/lop l 0-most»dangerous-dog-breeds-in»theworld/                                                3/14


                                                                              Page 311
  ll/6/2017                                             Top 10 Most Dangerous Dog Breeds in the World - Inside Dogs World




                       '                                            '
                           a   ¥é¢kérélAhBtEér tHihé t6
                           keep in mind while training
                           Boxers is to avoid harsh
                           treatment and punishment as
                           these factors can make the
                           situation even worse!

                           7. ALASKAN
                           MALAM UTE




                           Source:
                           https://www.pinterest.com/pin/232076




http://www.insidedogsworld.com/topl 0<most-dangerous»dog-breeds~in~theworldl                                                4/14


                                                                               Page 312
   l1/6/2017                                             Top 10 Most Dangerous Dog Breeds in the World - Inside Dogs World




                         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

http://www.insidedogsworld.com/top I 0-most-dangerous-dog-breeds-in4heworld/
                                                                                                                             5/14


                                                                               Page 313
   l1/6/2017                                          Top 10 Most Dangerous Dog Breeds in the World - Inside Dogs World




                                  '
                         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

hup://www.insidedogsworld com/top] 0—most-dangerous-dog—breedHn-theworld/
                                                                                                                          6/ 14


                                                                            Page 314
   MIG/2017                                              Top 10 Most Dangerous Dog Breeds in the World - Inside Dogs World




                          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




http://www.insidedogsworld .com/mpl 0-most»dangerous-dog-breeds—in»thewor]d/                                                 7/ I 4


                                                                               Page 315
   l   1/6/2017                                         Top 10 Most Dangerous Dog Breeds in the World - Inside Dogs World




                         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




                       Source:
                       https://www.pinterest.com/pin/497295

http://www.insidedogsworld.com/mpI O-mostidangerous-dog-breeds-in-Iheworld/
                                                                                                                            8/14


                                                                              Page 316
   [116/2017                                             Top 10 Most Dangerous Dog Breeds in the World   —
                                                                                                             Inside Dogs World




                         '
                             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


                                                                               Page 317
   l1/6/2017                                             Top 10 Most Dangerous Dog Breeds in the World - Inside Dogs World




                          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




http://www.insidedogsworld.com/Iop1 0-mosl-dangerous-dog»breeds-in—theworld/
                                                                                                                             10/14


                                                                               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




Imps://www.psychologymday.com/blog/canine—comer/ZO1405/ 14—dog—breeds-blacklisled-insuranceAcompanies                                   2/5


                                                                           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.

               Gwendolyn Parker & Associates, Inc.
                         214-747-8007

                            Page 326
                                                                 Page 2

                             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
          mark@f1anniganlawfirm.com
     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        brantley@saunderswalsh.com
13

     ALSO PRESENT:
14

          Ms. Renee      Province
15
16
17
18
19
20
21
22
23
24
25


                 Gwendolyn Parker & Associates, Inc.
                           214-747-8007

                             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

14

15

16

17

18

19

20

21

22

23

24

25




                   Gwendolyn Parker & Associates, Inc.
                             214-747-8007

                               Page 328
                                                                                            Page   4

                                       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

                          Gwendolyn Parker & Associates, Inc.
                                    214-747-8007

                                          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

                          Gwendolyn Parker & Associates, Inc.
                                    214-747-8007

                                                   Page 330
                                                                                                    Page    6

     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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             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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     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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     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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     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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     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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     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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     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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            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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     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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     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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          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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 |-'
       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
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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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     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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     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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     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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     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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     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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             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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            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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     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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            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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     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

24

25




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                         CHANGES AND SIGNATURE

     WITNESS NAME:    TERRY P.   PROVINCE

     DEPOSITION DATE:    SEPTEMBER      15, 2017
     PAGE      LINE      CHANGE              REASON




10

11

12

13

14

15

16

17

18

19

20

21

22

23

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25




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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

16

17
                                NOTARY PUBLIC             IN   AND FOR
18                              THE STATE OF
19

20

21

22

23

24

25



                    Gwendolyn Parker & Associates, Inc.
                              214-747-8007

                                       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

10

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)


                  Gwendolyn Parker & Associates, Inc.
                            214-747-8007

                                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
          mark@f1anniganlawfirm.com
     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        brantley@saunderswalsh.com
14

15

16

17

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.

                   Gwendolyn Parker & Associates, Inc.
                             214-747-8007

                               Page 372
                                                                    Page 48

             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                          gwenparker@gwenparkerinc.com
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                  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

19


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
                          gwenparker@gwenparkerinc.com
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



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 11


                                      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


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 33


                                      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.




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 44


                                       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 –
                                                         —



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 55


                                        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,

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 66


                                        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:




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 77


                                      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.


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 88


                                       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.

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 9


                                       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
                                        Abby@SaundersWalsh.c0m
                                        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
                                           _____________________________
                                                 }




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 11


                                    Page 385
