                                                                                     ACCEPTED
                                                                                 06-14-00094-CV
                                                                      SIXTH COURT OF APPEALS
                                                                            TEXARKANA, TEXAS
                                                                           5/19/2015 12:42:04 PM
                                                                                DEBBIE AUTREY
                                                                                          CLERK




                 CASE NO. 06-14-00094-CV
                                                           FILED IN
__________________________________________________________________
                                                  6th COURT OF APPEALS
                                                       TEXARKANA, TEXAS
                 IN THE SIXTH COURT OF APPEALS       5/19/2015 12:42:04 PM
                                                          DEBBIE AUTREY
                       TEXARKANA, TEXAS                       Clerk
__________________________________________________________________

                       Nancy Elizabeth Bowman,

                              Appellant,

                                 vs.

                          Jerry Davidson and
                            Diana Davidson,

                             Appellees.
__________________________________________________________________

                 On Appeal from the 71st Judicial District
                        Harrison County, Texas
                          Cause No. 13-0618
                  The Honorable Brad Morin, Presiding
__________________________________________________________________

                   APPELLANT’S REPLY BRIEF
__________________________________________________________________

                                       JACK M. SANDERS, JR.
                                       109 East Houston Street
                                       P.O. Box 1387
                                       Marshall, Texas 75671-1387
                                       (903) 935-7172
                                       (903) 938-8616 (Fax)
                                       sanders.jack@sbcblobal.net
                                       ATTORNEY FOR APPELLANT
                                   PREAMBLE

      COMES NOW NANCY ELIZABETH BOWMAN, Appellant herein, who

hereby respectfully makes and files this, her Reply Brief.

      In the interest of clarity, Nancy Elizabeth Bowman will be referred to as

“Bowman,” while JERRY DAVIDSON, Appellee herein, will be referred to as

“Jerry”, and DIANA DAVIDSON, the other Appellee herein, will be referred to as

“Diana.” Collectively, the Appellees will be referred to as “the Davidsons.”

      In this Reply Brief, the Reporter’s Record will be cited by volume and

page:line as “___ RR ___:___”, and the Clerk’s Record will be cited by page as “CR

_____.” The Appendix will be referred to as “Appx. ___ ___:___”.




                                         ii
                                         TABLE OF CONTENTS

PREAMBLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES CITED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

REPLY ISSUE PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE REPLY ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REPLY ISSUE

         The Davidsons’ uncontroverted admissions regarding Bubba’s
         dangerous tendencies and warnings to stay away from Bubba prove
         Bowman’s strict liability claim.

A.       Strict Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B.       Clear, Direct, Positive and Uncontradicted Testimony in Support
         of Strict Liability Justifies the Reversal of the Jury’s Answer on
         Strict Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

                  1.        The Evidence of the Davidsons’ Knowledge of
                            Bubba’s Dangerous Propensities is Uncontroverted. . . . . . . . . 5

                  2.        The Evidence that the Davidsons Knew Bubba Had
                            Laid His Teeth on a Human Being Prior to the Attack
                            on Bowman is Uncontroverted.. . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                            iii
                  3.        The Davidsons’ Warnings Add Up to More Evidence
                            the Davidsons Knew or Had Reason to Know Bubba
                            had Dangerous Propensities. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C.       The Davidsons Put Forth No Evidence to Controvert the Evidence in
         Support of Strict Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

         1.       The Davidsons Incorrectly Suggest There Must be a Prior
                  Incident in Bubba’s Past that Would Put the Davidsons on Notice.. 13

         2.       Bowman and the Davidsons’ Friends Testimony is Irrelevant to
                  What the Davidsons Knew About Bubba.. . . . . . . . . . . . . . . . . . . . . 14

         3.       The Davidsons Take Dr. Haug’s Testimony Out of Context.. . . . . . 17

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23




                                                           iv
                              INDEX OF AUTHORITIES CITED

TEXAS CASES

SUPREME COURT

Collora v. Navarro,
      574 S.W.2d 65 (Tex. 1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Marshall v. Ranne,
     511 S.W.2d 255 (Tex. 1974).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Mendoza v. Fidelity and Guaranty Ins. Underwriters, Inc.,
     606 S.W.2d 692 (Tex. 1980).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

COURTS OF APPEAL

Hamilton v. Motor Coach Industries, Inc.,
     569 S.W.2d 571 (Tex. App. — Texarkana 1978, no writ). . . . . . . . . . . . . . . 2

Hill v. Spencer & Son, Inc., 973 S.W.2d 772
        (Tex. App. — Texarkana 1998, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . 4


RULES

TEXAS RULES OF APPELLATE PROCEDURE

Tex. R. App. Pro. 9.4(i)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Tex. R. App. Pro. 9.5(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

OTHER AUTHORITIES

Restatement (Second) of Torts § 509. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13



                                                         v
                  REPLY ISSUE PRESENTED FOR REVIEW

                                       Reply Issue

       The Davidsons’ uncontroverted admissions regarding Bubba’s
       dangerous tendencies and warnings to stay away from Bubba prove
       Bowman’s strict liability claim.

                   SUMMARY OF THE REPLY ARGUMENT

       In the Appellees’ Brief, the Davidsons claim the evidence at trial

“overwhelmingly” supports the jury verdict. But the Davidsons’ brief references

incorrect standards and irrelevant evidence. Further and most importantly, the

Appellees’ brief fails to cite any evidence that controverts the Davidsons’ own

admissions regarding what they knew about Bubba prior to the attack. Even if the

Court finds some evidence in the record that Bubba’s aggressive, protective and

possessive nature did not amount to dangerous tendencies, Bubba’s prior bite and

clear dislike of strangers put the Davidsons on notice of Bubba’s dangerous

propensities. The evidence is “overwhelmingly” in support of holding the Davidsons

strictly liable for their dog’s attack. Accordingly, the jury’s verdict on strict liability

should be reversed and the cause remanded back to the trial court for a determination

of damages.




                                            1
                         ARGUMENT AND AUTHORITIES

                                  First Reply Issue
                                      (Restated)

      The Davidsons’ uncontroverted admissions regarding Bubba’s
      dangerous tendencies and warnings to stay away from Bubba prove
      Bowman’s strict liability claim.

A.    Strict Liability

      The purpose of imposing strict liability in the context of products liability is

to protect the consumer who uses a product for the first time from dangerously

defective products. Hamilton v. Motor Coach Industries, Inc., 569 S.W.2d 571, 577

(Tex. App. — Texarkana 1978, no writ). The consumer has a right to expect a safe

product from a manufacturer. Id. The same rationale is applied in the context of strict

liability and domestic animals:

      One who keeps a domestic animal which to his knowledge is vicious, or
      which though not vicious possesses dangerous propensities that are
      abnormal, thereby introduces a danger which is not usual to the
      community, and which, furthermore, is not necessary to the proper
      functioning of the animal for the purposes which it serves.

Restatement (Second) of Torts § 509 cmt. d. Just as with a product offered into the

marketplace, Bowman had a right to expect that the Davidsons’ dogs would be

friendly, docile dogs or at least to expect if they weren’t, that the Davidsons would

remove them from the party. Although one of the dogs was friendly, the Davidsons

                                          2
knew that Bubba was different. Because of their prior knowledge, they were required

to put Bubba up and not chance that he would act on his dangerous tendencies.

      The strict liability charge in this case was taken from the Texas Supreme

Court’s opinion in Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974). The question

was “did the Davidsons know or have reason to know that their dog had dangerous

propensities not normal for a dog?” CR 1201. Thus, Bowman had to prove either: (1)

the Davidsons knew that Bubba had dangerous propensities, or (2) the Davidsons had

information from which a person of reasonable intelligence would infer that Bubba

had a dangerous character. Id.

      Further, the jury was instructed that it was enough to be held strictly liable, if

on other occasions, Bubba exhibited such a tendency to attack human beings or

otherwise do harm as should apprise the Davidsons of Bubba’s dangerous

propensities. Id. A tendency to attack humans or otherwise do harm is sufficient to

hold a defendant liable. Id. Further, any form of ill temper displayed in the presence

of man which would apprise a reasonable man that the dog, if uncontrolled, would

make an attack is also sufficient. Id. “Dangerous Propensities” were also defined as

“vicious or aggressive tendencies that are not normal for a dog.” Id.




                                           3
B.    Clear, Direct, Positive and Uncontradicted Testimony in Support of Strict
      Liability Justifies the Reversal of the Jury’s Answer on Strict Liability

      As set forth by the Texas Supreme Court in Collora v. Navarro, a directed

verdict may be based on the uncontroverted testimony of a party to the lawsuit when

the testimony is clear, direct, positive and uncontradicted, is devoid of inconsistencies

and is uncontradicted. Collora, 574 S.W.2d 65, 69 (Tex. 1978). Similar to the

uncontradicted testimony in the Collora case, Texas courts have also found a party’s

uncontradicted testimony can rise to the level of a judicial admission. A judicial

admission is conclusive on the party making it and it relieves the opposing party’s

burden of proving the admitted fact, and bars the admitting party from disputing it.

Mendoza v. Fidelity and Guaranty Ins. Underwriters, Inc., 606 S.W.2d 692, 694

(Tex. 1980). A party’s testimony is given conclusive effect and is treated as a judicial

admission if the statement of fact is: (1) made during a judicial proceeding, (2)

contrary to an essential fact embraced in the theory of the prosecution or defense of

person giving the testimony, (3) deliberate, clear, and unequivocal, giving conclusive

effect to the declaration will be consistent with public policy, and (4) not destructive

of the opposing party’s theory of recovery. Id.; Hill v. Spencer & Son, Inc., 973

S.W.2d 772, 776 (Tex. App. — Texarkana 1998, no pet.). The Davidsons’ factual

statements regarding Bubba’s dangerous behavior and why they gave warnings



                                           4
qualify as judicial admissions, and they justify reversing the jury’s verdict on strict

liability in this case.

       1.     The Evidence of the Davidsons’ Knowledge of Bubba’s Dangerous
              Propensities is Uncontroverted

       At trial, Diana Davidson testified that Bubba acted aggressively toward

strangers and Bubba was aggressive, possessive, and protective of her. She repeated

the statements throughout her testimony and did not change or contradict her

testimony during her case in chief. A few of her exact responses are as follows:

       A:     The dog is aggressive, you know, if he doesn’t know someone.

4 RR 94:10-11.

       Q:     You said protective also?

       A:     He is.

       Q:     So we have aggressive, protective, and possessive; is that correct?

       A:     Yes.

4 RR 94:15-19.

       Q:     How do you know about the dog’s aggression?

       A:     He is very verbal when strangers come up. He barks, jumps at the
              fence, he gives us the indication that, you know, he tells us that
              someone he is there and all.

4 RR 94:20-23.



                                           5
      Q:    So the cause of your warnings is him being aggressive?

      A:    Yes.

4 RR 95:21-23.

      Q:    It is strangers that he has a problem with.

      A:    Yes.

      Q:    How long have you known that?

      A:    All of his life.

4 RR 100:21-24.

      Q:    You just didn’t know when the dog might show this
            aggressiveness and bite somebody?

      A:    Didn’t know when or if.

      Q:    Okay. But you had reason to know. You didn’t know if it was
            going to happen, but you had reason to know that it would
            happen; correct?

      A:    Correct.

      Q:    Now if you have reason to know that it may happen, that is reason
            to know that he may bite, then you have reason to know that he
            may be dangerous; correct?

      A:    Correct.

4 RR 101:16-102:2. On the other hand, Jerry testified that Bubba was more

protective and possessive than aggressive. 4 RR 130:22-131:6, 138:21-25. Jerry liked



                                         6
the fact that Bubba was protective. 4 RR 139:11-13. He wanted a dog that would

protect Diana if an intruder came into the home while he was away, and Bubba gave

him that security. Id. However, Bubba was never taught to differentiate between

when Diana needed protection and when she did not.            5 RR 26:17-27:21.

Additionally, Bubba had a clear dislike of strangers that came to the house. 4 RR

136:16-20, 149:25-150:6. Bubba was different and not a normal dog. 4 RR 147:23-

148:1. At times, the Davidsons would put Bubba up if Diana could not see him so

as to control him. 4 RR 149:17-21. That is also why Diana gives the warnings about

Bubba because she cannot see him all of the time. 4 RR 150:3-9. Danny Alexander,

a family friend and neighbor, testified that Diana cannot protect someone from

Bubba’s aggressive nature if she is not around the dog and he believed that Bubba

should have been put up.      Appx. 2 35:11-36:3; 1 R. Supp. R Index, Video

Deposition of Danny Alexander.

      In addition to Bubba’s protectiveness, Bubba was possessive of Diana. Jerry

described specific instances in the past when Bubba would bark and push him away

from Diana when they danced and Bubba did the same to anyone else that tried to get

between the dog and Diana. 4 RR 138:21-25, 139:5-7. Protective and possessive

behavior can be just as dangerous to guests as aggressive behavior as Dr. Haug,

Bowman’s dog behavior expert, testified, 5 RR 28:7-18, and the Davidsons never

                                         7
discouraged Bubba’s protective or possessive behavior. 4 RR 139:8-11. The

following exchange demonstrates that Jerry knew Bubba would be aggressive if he,

the dog, thought Diana was threatened.

      Q:     Do you believe that he would get aggressive if he, the dog,
             thought that Diana was in danger?

      A:     Yes.

4 RR 139:20-22.

       As a result of the foregoing, the Davidsons admitted they knew for a long time

before the attack on Bowman that Bubba:

      •      disliked strangers and acted aggressively toward them;

      •      was very protective of Diana;

      •      was possessive of Diana to the point he barked and pushed people
             he was familiar with away from her; and

      •      Diana could not control Bubba if she could not see him.

      No one contradicted this testimony at trial. Accordingly, the Davidsons

admitted at trial they knew Bubba was aggressive toward strangers, protective,

possessive, and difficult to control outside of Diana’s presence prior to the attack on

Bowman.




                                          8
       2.      The Evidence that the Davidsons Knew Bubba Had Laid His Teeth
               on a Human Being Prior to the Attack on Bowman is Uncontroverted

       In addition to the Davidsons’ testimony regarding Bubba’s aggressive,

protective, and possessive behavior, the Davidsons also admitted they knew Bubba

had previously bitten their friend, Billy Strong (“Strong”). Although the Davidsons

call it a “nip,” their uncontroverted testimony shows that Bubba used his teeth on

another human being causing a red mark and bruise prior to biting Bowman. In fact,

Diana admitted she witnessed the bite. 4 RR 99:17-19. By refusing to call the

incident a “bite,” the Davidsons are able to say that Bubba never bit anyone before

Bowman. But the truth is Bubba intentionally ran after Strong and bit him on the leg.

Appx. 1 30:21-31:1. Although Bubba may not have been motivated by protectiveness

when he bit Strong,1 there is no dispute that Bubba laid teeth on a human being hard

enough to cause a mark and bruise. 4 RR 100:2-10. No one can say for sure why

Bubba latched on to Strong. But the “bite,” “nip,” or whatever you want to call it,

should have put the Davidsons on notice that Bubba, without provocation, could bite

a human being and leave a mark. It is reason to know.



       1
        The Davidsons suggest that Bubba was just following his herding instincts when he
“nipped” Strong, but Dr. Haug testified that cattle dogs are bred to drive cattle not people and
dogs are certainly smart enough to know the difference. 5 RR 38:13-15. Further, this was the
only instance that Bubba ever “nipped” a person so Bubba, being at least 9 years old when he
“nipped” Strong likely understood the difference between cattle and a person.

                                                 9
         3.    The Davidsons’ Warnings Add Up to More Evidence the Davidsons
               Knew or Had Reason to Know Bubba had Dangerous Propensities

         Last and most importantly, the Davidsons did not cite any evidence in their

Brief that contradicted the fact that they gave all new guests a serious warning not to

interact with Bubba and that the warning was for the safety of guests and to prevent

a bite. That is what a warning is for, to avoid danger. Diana stated the following at

trial:

         Q:    It is fair to say you didn’t want to take a chance of the dog biting
               somebody?

         A:    That is right.

4 RR 95:9-11.

         Q:    Your warning is to avoid a bite; correct?

         A:    Yes.

4 RR 95: 24-25.

         Q:    That is why you give the warnings to avoid a bite; right?

         A:    Right.

4 RR 114:2-4. Jerry testified as follows:

         Q:    And you agree with your wife when she says those warnings or
               the reason that gave warnings we didn’t want him to bite
               anybody?

         A:    That is right.

                                            10
4 RR 131:12-15.

      Q:     If you give warnings and the reason that you are giving those
             warnings is because you don’t want the dog to bite?

      A:     Right

4 RR 131:20-23.

      Q:     Well, that is why you gave the warnings is because you knew that
             the propensity was there for it to happen?

      A:     Yes, there is the reason that they give the warning.

4 RR 140:10-13.

      In the Appellees’ Brief, the Davidsons claim “[t]he warnings given to visitors

are not because of any history of the dog, but because Bubba is very protective of

Diana and if he does not know someone, he will bark at them.” Appellees’ Brief, pg.

6. First of all, protectiveness and a dislike of strangers is part of Bubba’s history.

Second, the Davidsons do not cite any specific testimony that supports this was the

reason for the warnings despite Bowman’s numerous cites to testimony which shows

the warnings were to prevent a bite.

      In the Appellees’ Brief, the Davidsons also try to minimize the warnings by

citing Diana’s testimony that she gave the warning to new guests about all of their

dogs. Appellees’ Brief, pg. 6. However, as the exchange immediately after the cited

testimony in the Davidsons’ brief demonstrates, the discussion was clearly about

                                         11
Bubba. 4 RR 95:19-25. Bubba was different and not what is considered a normal

dog. 4 RR 147:23-148:1. The warnings were because of Bubba. 5 RR 122:16-22.

Diana stated the following:

      Q:    So his aggressiveness is to the point that you give a warning?

      A:    I give a warning with all of my dogs.

      Q:    Okay, but we are talking about Bubba here?

      A:    Yea, I know.

      Q:    So the cause of your warning is him being aggressive?

      A:    Yes.

      Q:    Your warning is to avoid a bite; correct?

      A:    Yes.

4 RR 95:16-25.

      In Dr. Haug’s opinion, the fact that the Davidsons spent years warning people

about Bubba’s behavior and telling people not to look at him, don’t touch him, don’t

pet him showed the Davidsons knew something about Bubba that predicted

something bad would happen. 5 RR 23:21-24. Thus, the warnings themselves prove

that the Davidsons knew Bubba had dangerous propensities.




                                        12
C.    The Davidsons Put Forth No Evidence to Controvert the Evidence in Support
      of Strict Liability

      In the Appellees’ Brief, the Davidsons claim the record “reveals overwhelming

evidence that Bubba never exhibited dangerous or vicious propensities.” Appellees’

Brief, pg. 4. It is as if the Davidsons did not attend the trial or review the record.

Briefly, Bowman will demonstrate why the points made in the Appellees’ Brief are

either blatantly incorrect or irrelevant to whether the Davidsons had or had reason to

know of Bubba’s dangerous propensities.

      1.     The Davidsons Incorrectly Suggest There Must be a Prior Incident
             in Bubba’s Past that Would Put the Davidsons on Notice

      In the Appellees’ Brief, the Davidsons argue that “there were no prior incidents

involving Bubba that would have put a reasonable person on notice that there was any

likelihood or any probability that Bubba would ever bite or attack anyone.”

Appellees’ Brief, pg. 4. First, there does not have to be a prior incident in order to

find a defendant strictly liable. That is the point being made in the comment section

of Section 509 of the Restatement (Second) Torts. Further, “reason to know” was

defined for the jury as “information from which a person of reasonable intelligence

would infer that the fact in question exists.” CR 1201. There does not need to be a

prior bite or specific instance which put the Davidsons on notice of Bubba’s




                                         13
dangerous propensities. Accordingly, tendencies, without a prior incident, can

support a finding of strict liability.

       Second, this case involves tendencies and prior incidents that should have put

the Davidsons on notice. The Strong “nip” should have told the Davidsons that

Bubba is clearly aggressive enough to bite a human being, whatever the motivation.

Additionally, Bubba’s prior incidents of aggressive behavior with strangers and when

Bubba would push Jerry away from Diana should have put the Davidsons on notice

that Bubba could act aggressively with a stranger if he thought that a stranger was too

close to Diana. 4 RR 138:21-25, 139:5-7; 5 RR 28:7-18.              Accordingly, the

Davidsons’ prior incident standard is improper.

       2.     Bowman and the Davidsons’ Friends Testimony is Irrelevant to What
              the Davidsons Knew About Bubba

       In the Appellees’ Brief, the Davidsons rely on Bowman’s testimony regarding

how Bubba acted the night of the attack and their close friends’ testimony regarding

Bubba’s behavior. Appellees’ Brief, pgs. 5-7. Bowman’s testimony regarding

Bubba’s behavior has no bearing on what the Davidsons knew or had reason to know

about Bubba’s dangerous propensities.

       Additionally, the Davidsons’ friends’ testimony of what they observed is

irrelevant. Dogs act differently with frequent visitors than with strangers. 5 RR



                                          14
18:15-19:5. Just because the dog is okay with frequent visitors does not mean the

dog is going to be okay with a new person. Id. Even the Davidsons admit that it is

strangers that Bubba has a problem with. 4 RR 100-21-22. Bubba has no problem

with people he knows. 4 RR 100:17-2. Further, the friends’ testimony is not

sufficient to contradict the Davidsons’ own testimony regarding Bubba’s prior

behavior.

        Lastly, although the majority of the Davidsons’ friends’ testimony was positive

(as you would expect), even they made some statements at trial which revealed they

even knew about Bubba’s dangerous propensities. 5 RR 25:10-15. The Davidsons

want to paint a picture of a dog that is described as aggressive based on his barking

at the fence, but even the Davidsons’ friends made statements at trial which show

Bubba’s volatile nature. Anitta Scott, the Davidsons’ next door neighbor and a

person very familiar to Bubba, covers Bubba’s eyes when she pets him and will not

pick up a napkin off the floor when Bubba is present. 5 RR 143:4-15, 5 RR 144:16-

25. Strong, a long time friend of the Davidsons and a neighbor, believes Bubba can

be dangerous and he had a real concern about Bubba biting people. Strong has

known Bubba all his life. Strong stated the following in his deposition played to the

jury:




                                           15
      Q:     Okay. Do you believe Bubba is dangerous?

      A:     I believe he can be.

      Q:     Okay.

      A:     Yes.

      Q:     Obvious – obviously, you know, you know he’s now bitten, right?

      A:     Yes.

      Q:     Okay. Before he bit Ms. Bowman, did you have any real concern
             about him biting people?

      A:     Yes.

      Q:     Okay. That he – that he might?

      A:     Yeah, that he might. I . . .

      Q:     And what –what made you sort of feel that way?

      A:     Well, he liked to nip me that day, so, you know, I’m thinking,
             well, he nipped me, you know.

      Q:     He might get somebody else?

      A:     Yeah. He might get somebody. I’ve known him, you know, since
             he was brought there, a puppy, so . . .

Appx. 1 37:11-38:4. Danny Alexander, another long-time friend and neighbor,

testified by deposition to the following:

      Q:     Ms. Davidson can’t be around the dog all the time; is that correct?



                                            16
      A:     Right.

      Q:     And the period of time when she’s not around the dog, the dog
             still has this aggressive nature; correct?

      A:     Correct.

      Q:     And if Ms. Davidson’s not around the dog, she can’t protect
             someone else from the dog being aggressive, can she?

      A:     No.

      Q:     Is that another reason the dog should have been put up?

      A:     Well, if they think it needs to be put up, yes.

      Q:     Do you think it needed to be put up?

      A:     I would have.

Appx. 2 35:11-36:3. Bowman contends the Davidsons’ friends’ testimony is not

relevant to the Davidsons’ knowledge, but if the Davidsons want to use their friends

testimony as evidence of how others observed Bubba, then the Court should know

that their close friends even hinted that Bubba had a dangerous nature that had to be

controlled by Diana.

      3.     The Davidsons Take Dr. Haug’s Testimony Out of Context

      Lastly, the Davidsons rely on portions of Dr. Haug’s testimony for support that

Bubba did not have dangerous propensities and the Davidsons did not know about

them. Appellees’ Brief, pgs. 9-11. Dr. Haug stated she felt, based on her review of

                                          17
the Davidsons’ deposition testimony, that they had adequate knowledge to know that

something bad was going to happen. 5 RR 14:3-12, 5 RR 17:3-7, 5 RR 24:2-4, 5 RR

24:17-22. It is the reason she believes the Davidsons warned people for so long about

Bubba. 5 RR 14:23-24. People who have normal, friendly dogs do not warn visitors

not to interact with them. 5 RR 17:8-14. They felt so adamantly about their warnings

that their friends repeated the warnings even before new guests arrived at the home.

5 RR 25:4-7. Further, the Davidsons also put Bubba up when children came over.

5 RR 19:11-20:4. There had to be something bad the Davidsons were trying to avoid.

5 RR 17:3-7.

      Additionally, the Davidsons claim that Dr. Haug “agreed that the nipping at the

heel incident with Strong, or nipping at the heels in general, for herding dogs is

second nature to them.” Appellees’ Brief, pg. 9. But Dr. Haug testified that Blue

heelers are bred to herd cattle and not people and they are certainly smart enough to

know the difference. 5 RR 38:10-14.

      Next, the Davidsons state that Dr. Haug only went as far as to say that the

Davidsons knew or had reason to know that something “may” happen, and Dr. Haug

said that the Davidsons probably did not foresee this severe of a bite occurring.

Appellees’ Brief, pg. 10. The strict liability standard is not whether the Davidsons

know or have reason to know a “severe” bite will happen. Further, Dr. Haug testified

                                         18
that the Davidsons warned guests because they knew something bad was going to

happen. 5 RR 17:3-7, 24:1-4. They may not know exactly what type of bad incident

will happen, but the Davidsons felt confident enough that something bad would

happen to make sure the guest does not interact with the dog. Something bad with

a dog is generally a bite. Based on her experience, people generate warnings because

they know something bad happened in a similar circumstance in the past. 5 RR 17:3-

14. Although Dr. Haug did state, as the Davidsons contend, that alarm barking is not

necessarily problematic, she also testified that Bubba’s aggressive, protective, and

possessive behavior is not normal to domesticated dogs. 5 RR 23:14-16.

      Finally, the Davidsons claim that Dr. Haug’s opinion falls short of stating there

was a reasonable probability that Bowman would be bit by Bubba. Appellees’ Brief,

pg. 10. The Davidsons are attempting to impose a negligence standard to a strict

liability claim. Whether it was reasonably foreseeable that Bubba would bite

Bowman is not the question the jury was asked to answer. Instead, they were asked

whether the Davidsons knew or had reason to know Bubba had dangerous

propensities. CR 1201.      There is no requirement that there be a reasonable

probability that Bubba would bite Bowman. This is a case that involves an animal,

and animals, to a certain extent, are unpredictable. That is why strict liability is

available to a plaintiff. If a pet owner has a domesticated animal that has dangerous

                                          19
tendencies that could lead to a bite, the owner should put the dog up. It should not

be a stranger’s responsibility to know what kind of nature or behaviors a person’s pet

has. Accordingly, the Davidsons failed to present evidence to controvert the

admissions made at trial by the Davidsons, and Bowman is entitled to the reversal of

the jury’s verdict on strict liability.

                                     CONCLUSION

       In summary, the question the jury was asked to answer was “did the Davidsons

know or have reason to know the dog had dangerous propensities not normal to other

dogs?” The Davidsons warned guests to stay away from Bubba to avoid a bite and

for the safety of guests. Why would the Davidsons warn guests if they had no

knowledge of Bubba’s dangerous propensities? People do not warn guests about

dogs unless they have reason to be concerned about their dog’s behaviors. The

undisputed fact that the Davidsons warned guests is an admission of the elements of

strict liability.   It conclusively proves strict liability or the great weight and

preponderance of the evidence as a whole weighs in favor of strict liability.

Accordingly, Bowman is entitled to reversal on jury verdict regarding strict liability

and judgment rendered for Bowman as to strict liability.




                                          20
                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Bowman prays the judgment be

in all respects REVERSED with regard to dangerous propensities, as to either or both

the Davidsons, and producing cause, and the cause be REMANDED back to the trial

court for a determination of damages, for the reasons set forth herein.

      In the alternative, Bowman prays the judgment be REVERSED as to either or

both the Davidsons as to dangerous propensities and the cause be REMANDED back

to the trial court for further proceedings as to damages, as the Court sees fit, for the

reasons set forth herein. Further and in the alternative, Bowman prays for the cause

to be REMANDED back to the trial court for a new trial, if necessary.

      Bowman prays for such other and further relief, general or special, in law or

in equity, to which she may show herself to be justly entitled.

                                               Respectfully submitted,

                                               /s/Jack M. Sanders, Jr.
                                               JACK M. SANDERS, JR.
                                               109 East Houston Street
                                               P.O. Box 1387
                                               Marshall, Texas 75671-1387
                                               (903) 935-7172
                                               (903) 938-8616 (Fax)
                                               sanders.jack@sbcblobal.net
                                               ATTORNEY FOR APPELLANT




                                          21
                      CERTIFICATE OF COMPLIANCE

      The undersigned hereby certifies that, pursuant to Tex. R. App. Pro. 9.4(i)(3),
the number of words in this document are 4,250 based upon the word counter of
Microsoft Word.



                                              /s/Jack M. Sanders, Jr.
                                              Jack M. Sanders, Jr.




                         CERTIFICATE OF SERVICE

      The undersigned hereby certifies that, pursuant to Tex. R. App. Pro. 9.5(a), a
true and correct copy of the foregoing Reply Brief has been sent to the following
counsel of record through the Court’s on-line filing system, on this, the 18th day of
May, 2015:

Alan E. Brown
Boyd & Brown, P.C.
1215 Pruitt Place
Tyler, Texas 75703
Counsel for the Appellees

                                              /s/Jack M. Sanders, Jr.
                                              Jack M. Sanders, Jr.




                                         22
                CASE NO. 06-14-00094-CV
__________________________________________________________________

                 IN THE SIXTH COURT OF APPEALS
                       TEXARKANA, TEXAS
__________________________________________________________________

                      Nancy Elizabeth Bowman,

                             Appellant,

                                vs.

                         Jerry Davidson and
                           Diana Davidson,

                             Appellees.
__________________________________________________________________

                 On Appeal from the 71st Judicial District
                        Harrison County, Texas
                          Cause No. 13-0618
                  The Honorable Brad Morin, Presiding
_________________________________________________________________

                     REPLY BRIEF APPENDIX
__________________________________________________________________

                                      JACK M. SANDERS, JR.
                                      109 East Houston Street
                                      P.O. Box 1387
                                      Marshall, Texas 75671-1387
                                      (903) 935-7172
                                      (903) 938-8616 (Fax)
                                      sanders.jack@sbcblobal.net
                                      ATTORNEY FOR APPELLANT
                        APPENDIX TABLE OF CONTENTS

DOCUMENT                                                                               TAB

Transcript Excerpts from the Video Deposition of Billy Strong . . . . . . . . . . . . . . . 1

Transcript Excerpts from the Video Deposition of Danny Alexander. . . . . . . . . . . 2
                                                                                                                                                       Page 1


                  1                                                  CAUSE NO. 13-0618
                  2          NANCY ELIZABETH BOWMAN,                                          IN THE DISTRICT COURT OF
                                  Plair1tiff,
                  3
                             ·vs.                                                            H.i.=\.R..F~. ·.I~SCJN CCJUl'.JTY,                   TEXAS
                  4
                             JERRY DAVIDSON AND
                  5 !        DIA!'-JA    DJ:iVIDS01~,
                                        Defen.dc1r1ts .                                      71ST JUDICIAL DISTRICT
                 6

                  7 !        ******************T*************************************

                 8                                   ORAL AND VIDEOTAPED DEPOSITION                                      {'\"[:"'
                                                                                                                          \.,Ii;




                 9                                                       BILL-:       STF~OI\1G


                10                                                   NOVEMBER 18, 2013
                11                                                       VOLTJMS 1 OF ::.
                12           **********K******k*******~*T************                                                  ""'* ·fo;··-K·*   .;.~ ~   * **"K   :-1.: ~;_..   -k



                l3

                14                      (;RJ.iL l\l\[1 VlDECYI'J\PED         DEFOSITICil'~           Z..JF    BIL~LY                STPJJl"JG,

                15 !         fJroduc~ed.       as a      ~.y·i   tr1ess at tl1e instance of the f)efer1dar1t,

                ~     I      and duly sworn, was taken in the above-styled and
                17           r11.1rr~bered.    cat:se c>n th_e J.8t:h                      (;f    NcYvernber 1               2013 frorn

                IB I         4:34 p.m. to 5:43 p.m., before Terri Lynn Smith, CSR

                ~     I      in and for the State of Texas, reported by computerized
                20 I         st.snc);:y:pe :rrtachine, c.: tl1e c1ffic:es of IYT.r.                                  ,._,Tac~k       Sar1{jers,

                21 ~         J·r .. ,   lC''.} E2.st I1011st·::.~n Str~:::et~,           l~1a.rs11a.J...l 1     Texa.s,                  pu.rs-L1ant:

                22 I         to th.e Texas             F~t1_es      o:   C~i vi   l   F~coc;ed~l.1r0"::      a..nd     th.e          }."";·rovis~:l.<)r1s


                23 I         .stated cr1 the re cc ~c. or a.t ta c.heci 1-1eret.o.

                24

                25



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                                                                                                                                 Page 2


                 1                                                     A P P E A R A N C E S
                 2
                             IVIR... ,JJ\CK Sll.J,J DE}ZS f            i.JR .
                 3 I         A.TT()Rl\S.Y A!T' I_J~0\.t/J
                             109 East Houston                     S~reet
                 4 I         Marshall, Texas     75672
                             Tele-ch.cn.e: ( 903) 93 5-717 2
                 5           Facsirnile:   (903) 938-8616

                 6                     COUNSEL FOR PLAINTIFF:                            Nancy Elizabeth Bowman
                 7

                 8 I         MR. ALAN E. BROWN
                             30~~([)   &              '   p.    ~~'"
                 9 !         1215 Pruitt Place
                             Tyler, Texas 75703
                10           Teler1I-1one: 903) 526-90()0
                             Facsirci-1.e: 903) 526--9001
                11
                                       C:CrJt'1S.E.L FC>R         DEFEl-JD_,_~J\!r_rS:    . .Jer.!~y Davidson.        a.n.~1
                12                                                                        Diana [)a\7           CYD

                13

                14

                15

                1.6 I        ALSO .PRESENT:                    :vJr. Jc.rt L;c:-; j_ , v·icleogr~-iptier·
                                                               Ms. ~ancy Elizabeth Bowman
                17

                18

                19

                20

                21

                22
                23

                24

                25




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~




                                                                                                                 Page 30


     1         Q.           Oka~:/·

     2          A.          Okay.             Tha~'s            when I signed it.
                ,..,
     3         'x! •        ScJ             so you cold Jack or someone in                         h~s

     4 !   c:ttice

     5         7\
               n,,          Yes.

     6          Q.          -- abouc what happened, and somebody wrote it

     7 I   out and then you signed it saying, Yeah,                                         tha~'s    --

     8         fl~.         Yes.

     9         Q.                     that's what happened?

    10         ~~      .    Yes.

    11         (':
                "".         Okay.             Okay.             Now,     when it says that               "-''V'h.a·:

    12 I   does it         sa:/~3          It sa:1::::,         I VJas   t~i t   ten C)r th.e dc1g bit rr1e.

    13 !   What's the ianguaqe chere?

    14          I\
               ,;.-;,..,    ":Nip;;ecl rn.e          {)fl       the bac:k cf m.y        ~eg. n


    15          Q.          Oka:.t'.          Do   ::n):,,.1    re.m.en1.be.r tl1e   occ.asicr1,   sort C)f

    16 I   what -- I mean, were you just sitting around or can you

    17        do you remember what was happening that the dog did

    18 I   that_?

    19         'P1...       1."'t-=;s ..

                r,
    20          \d.,.       \/~:·ia   t        cell            ~s   -- cell us what occurred.

    21          A.          They had had a reoairman there to work on their

    22     neater, and he had gctcen up and left and fa                                                  his 1:-Ja<;f

    23     of tools and was cut in                                   s car fixing to _eave, and

    24     Diana asked me to ta                                 the bag of tools out.               So I

    25 I   qrabbed rhe tools and I took off at a trot                                            ~awards       the




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                                                                                                                                      Page 31

                 1 I         front door, and Bubba got me.

                 2                   Q.         O}:a:y.

                 3                   T>
                                    _L--l_ ..   He nipped me on the back of the Leg.

                 4                   Q.         .P-,ll riqht.           Did -- did it break the ski3?

                 5                   A.         No.

                 6                   Q.         Okay.          Just Left a red mark er --

                 7                  A.          Yeah; bruised, but ....
                                                _....._
                                           ..                  Did you seek any medical attention?
                                                          ~



                 8                   ().          .);L.Cay.
                                                i..



                 9                  A.          No.

                10                   Q ..       Okay.          Dc ycu
                                                                1            rerc1err1be.:~   vvl"lell l-'1e did that,              (jid

                11           Diana respond?                    Did she holler at the dog or                                         ir.~;:



                12 I         Do you. remember?

                13                  P.~    .    Yes.          She       ssed at

                14                   Q ..       Okay.          Other than that occurrence                                 v-Je.Ll,     J.et

                15 I        me strike that.

                16                                            Had you ever known Bubba to do that,

                17 I         actually, you know, bite,                            ge~    ahold of somebody before?
                                     7\
                18                  n_.         NC) ..


                19                   Q.         Had vou ever observed Bubba                          ()llt   "'d0l:   k:::. n.g 1

                20 I        messing with the cows?

                21                  A.          I'Jot reall::/,         r1ci ..

                22                   Q.         C)kay".,

                23                   A ..       He doesn't go out there such.

                24                   Q.         Okay.          Now, do you know what breed of dog Bubba

                25   l       is?




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                                                                                                                                                     Page 37


                 1 I        a.ny~bc)ciy           gave I'-.1s. Bcv1:.aan. 1              a.n.:/ com.rn.er1ts abot1t t1-1ir1qs that

                 2 I        r1a.d. iJE;c:r said. before                         t~J1e    bite            ()CCU:cr·ed~?


                 3                  A~      o      Th.is tvas             af·:~er7

                                    ,.,
                 4                  v.             After the               bi~e         --

                 5                  7\
                                    ::..    ..     Huh-uh.

                 6                  "v. ..                 do you remenber any conversations

                 7                  A              No.
                 8                  Q.             -- abcrut. t . l"1in.gs t . h.a.t v;ere saicI t.o tvJs. Bow'Titar1 or

                 9 I        b\l i\'lS . Bo1.tvrnan. :oefore th.e t::i..te a.bot1t tf1e cio(;rs'?

                10                  l~~     ..     l\}Q.       I don't -- I                    don'~            recall.

               11                   (')
                                    "".            CJka:1.       1•r·.
                                                                 '-''-'    )'C l-1   be - i    2·v·E:     Bubba is a dangerous dog?

                12                  P·~     .      I believe h0 can be.

                13                  (2 .

               14                   T\
                                    n ..           Yes .
                                    n
                15                  ');!·          ()bviCJt1S                obviously, you know,                                you know he's

                ~    I      now bitten,                    right?
                17                  I~.            Ye:s ..

                18                  Q.             ()kav ·      Befc:_,re Z-... e t;i t                  Ms .    I-3cJwrnar~.,   d:.Lcl ';/OU h.::=l'-/C::

                19          any real concern about him biting                                                              2?

                20                  :..L::.. ..    Yes.

                21                  (~"'           Ct<-~a~'.     '::'hat ::e -- T:.hat he might?

                22                   ")'\
                                    i ..l    «     Yeah,        that         ~P      miahc                I ....

                23                   ~2.           And v-1:ha_t -- v.:l::.at                 EL~:;.cle    yc,u sort c1f fee.l t:hat

                24 I         w2y:

                25                  I-\ ..         Well, he liked co nip me thac aay,                                                so,      you



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                                                                                                                                                             Page 38

                                                                                                                                       ,
                 1           know,                   I'm thinking,                            ·v;eJ...L,    1-1e          me, yo·u.    KI"lOVV ..


                 2                       Q.                He might aet somebody else?

                 3                       l-\..        . .-.. '.{eaI-1   *     He might get somebody.                            I've .kn.cvJn. hirn.,
        ~        4           you know,                       since ne was                                          t there, a puppy,                    so ....

                 5                       Q.                How long was it from the time when he nipped

                 6           \/()lJ      t111til             tle bi. t             f~Is   9       8C\:;/ffi2D '?


                 7                       A.               Maybe a yeac.

                 8                       Q.                ()kG~/ ..


                 9                       A.                That's a guess.

                10                       Q.                In that year or so, did any -- was there any

                11          other incident,                                   ~nything                     else happen that made you any

                12          more concerned or was that sort of it?

                13                      ~
                                         T\
                                           .....          No.               That was it.

                14                       Q.                C.Jka~y.           Did Diana ever say anything to you after

                15           ne bit you that she was more concerned or                                                                                   ncr c;r --

                16                      l\.               No.
                17                       V·               Okay.               Does the -- does Bubba re                                                 to Diana:·

                18           ~   r?.   ct~:.-.; er        ~t-:orcls,          j_   f      C iana 9' .1 \.:-2 s nim a com:nand              / ..... y·
                                                                                                                                            ~-' .i ..




                19           whatever, does the                                                       respond to Diana?

                20                       A.                l~es    ..

                21                       ("'\
                                         ~      ..         How about to Jerry?

                22                       A..               Yes.

                23
                                         ,,                                 iy the same or more one than the other?
                                         \,,i·


                24                       A.                : don't --                         T     couldn't tell vou that.

                25                       (2 ~              Ok.2~/,.




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                                                                                                                                                          Page 64


                 1                                                                       C'.T\US"E~   l'J(.) ..    13-C "1_8
                                                     ..,.,[.'
                 2          :~~A}JCY.       .t:LI             8()1/Jf\'.lA.>J'                                       IN TJ-I2 DIS'T.Ri:CT CCHJRT OF
                                           Plair1t.2-ff,
                 3
                            \lS ..                                                                                   HARRISON COUNTY, TEXAS
                 4
                            1JERFZY           DP.~VII)SOI\f               A.NL;
                 5 l        DIANA DAVIDSON,
                                           LJe.fen.d.a.r:ts ..                                                       71ST JUDICIAL DISTRICT
                 6

                 7                                                         REPORTER'S CERTIFICATION
                                                                          DEPOSITION OF BILLY STRONG
                 8                                                             NOVEMBER 18, 2012

                 9                                          1,     TERRI LYNN SMITH, Certified Shorchand
                10 I        ?,e~C>()rter               i.n        2n\~i    .:·or r.f1e State of Texas,                              ~ereby       c:erti

                11           t, c     -c. t.i c: .f c~ j.          _r:q-:

                12                                          Thac the wicness,                                BILLY STRONG, was duly sworn

                1.3                   the officer and                               t~at         the transcr                      of the ora ..L
                                        ' . .                 '
               14
                              ~

                            G.<2"[)C)E.;.l 'ClC>f1           lS       a true r:ecc.-ccl of the testimony 9iven by

               15 !         L:he witness;

               16                                           That examination and signature of che witness

                U I         to the deposition transcript was waived by the witness

                18 I        and agreemenc                             o~     the oarties at the L:ime of the

                19 I        deposit. ion;

                20                                          T:::a t       tb.e o:::·                         deposition was delivered to

                21 I        1>1.r..     ~z::..la11     E." [:Lcov,;n;

                22                                          Tl-.Lat. Lr:c?. ,::,;:'oun-:::                        tirne used t):/ each party at

                23 I         tl'-1e Q,2pos.i t ic,r1 is                           a~=:     fcllo\:.;s:

                24                                          Mr. Jack Sanders, Jr.                                       00 hours,           20 minutes

                25                                          Mr. Alan E. Brown                                           00 b.ours,          4 5 m..i.rn.:.tt?S




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                                                                                                                                                         Page 65


                 1                                    That $                   ,0 is            the deposition officer's

                 2 l         charges to the Defendant for preparing the original

                 3 I        cit~pc1 siti.c>n.              t.r2nsc2:-i.               ar1cj 2r1:/ cc1-:,i.es of                 ez~_j_ _ bit.s;

                 4                                    That pursuant to information given to the

                 5          deposition officer at the time said test                                                                        ~".:io.s   tak~:::r1,

                 6 I         the following includes all parties of record:

                 7                                    Mr. Jack Sanders, 0r., Attorney for Plaintiff,
                                                      Nancy E'.l i zabeth Bcwman;
                 8
                                                      Mr. Alan E. Brown, Attorney for Defendants,
                 9                                          Davidsen and Diana Davidson.

                10                                    That a copy of this certificate was served on
                                                                                                      l      I
                11          <.?. ..L   _Lshovrn herein on JI tI~tb tI~L::; [Z, and fileci with
                                            f)C.rt~i.c:s
                                                                                                 'I                                                         +-he
                                                                                                                                                            <_.1...:.-

                                                            , I  , f"

                12. t       Ci erk pursuant to Rule 203. 3.

                13                                    ~     £urther certify that I am neither counsel

                14 I         fer,            related          LC},   n.cr      err~plcyed             b~;    a.r1y~   C)f       tl1e parties or

                15 !        attorneys in the action in which this proceeding was

                16 I         taken, and further                           th~:::t        I arr not fjnanc::Lally or

                17 I        otherwise interested in the 0utcome of che action.

                18                                    Cer·cified            ~::r...    tfi.is    Lhe        25t1~1    ci.a.y·    C).i~   I\iovE~rrJ)e;r,


                19           2013.

                20

                21                                               ---~;~r.d
                                                                 TERRI LYNN SMITH, Texas CSR
                22                                                      .ra.tiori Da.te: 12/31/14
                                                                 Denosition Resources, Inc.
                23                                               ?irm         isc ration Nc1. : 409
                                                                 515 North Church Street
                24                                               Palescine, Texas 75801
                                                                                    903 729-3289
                25                                               F::cr:::simLle:    903 727-0986



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                                                                                                                          Paue
                                                                                                                            t  l


                 1                                                 CAUSE NO. 13-0618

                 2          Nl\NCY ELI ZABETE BOWFiZ.\N,                             IN THE DISTRICT COURT OF
                                       Plaintiff,
                 3
                            vs.                                                      HARRISON COUNTY, TEXAS
                 4
                             JE:RRY DAVIDSON              ?.ND
                 5           DIA01A D1\VIDSOt,J,
                                   r;efer1dan·ts ..                                   71ST JUDICIAL DISTRICT
                 6

                 7           ********************************************************

                 8                                   ORAL J\ND VIDEOT.APED DEPOSITION OF

                 9                                                 DANNY P:.LEXANDER

                10                                                 NOVEMBER 19, 2013
                11

                u            ********************************************************

                13

                14                     OPJ\L AND VIDEOTi\PED DEPOSITION OF DANNY l\.LEXANDER,
                15           produced as a witness at the instance of the Defendant,

                16           and duly sworn, was taken in the above-s                                    led and


                IB           3:05 p.m. to 3:49 p.m., before Terri Lynn Smith, CSR

                19           i:n a.r1d for th.e Stat.c of Texas,                    reported.      ~by    cornputerized_

                20           stenotype machine,                       the offices of Mr. Jack Sanders,

                21           0r.,      109 East Houston Street, Ma                            i,    rexas, pursuant

                22           to tt1e 'Texcts PJ.Jles of Civil Proceciu.re                      a~nd      the :provisions

                n            stated on the record or attached hereto.

                24

                25




                                                                 Deposition Resources, Inc.
                                                                      800.295.4109
Electronically signed by Terri Lynn Smith {601-237-SOS-4107)                                  20f4b2cc-437 d-46fe-9a91-09eec9c3359c
                                                                                                                         Page 2


                 1                                               A P P    ~   A R A N C E S

                 2
                            MR. J}>,CK SANDE ES, JR.
                 3          l\TTORNE':t AT I.AW
                             109 East Houston Street
                 4           Marshall, Texas 75671
                             Telephone:    (903) 9:::\5-7172
                 5           :Facsirr.ile: (903) 93f:1-B616

                 6                      COUNSEL FOR              PLJ\INTIFF:      Nancy Elizabeth Bowman
                 7

                 8           ~LR   .   ALAi'-J E ..   BROVJf\T
                             BOYD & BEOWN, P.C.
                 9           1215 Pruitt Place
                             Tyler, Texas 75703
                10           T'e1epr-~one: 903) 526-9000
                             Facsimile:         526-9001
                11
                                         COUNSEL FOR DEFENDANTS:                    Jerry Davidson and
                12                                                                  Dian.a David.sor1

                13

                14

                15

                16           ALSO PRESENT:                     Mr. Dart Leigh, videographer
                                                               Ms. Nancy Elizabeth Bowman
                17
                18

                19

                20

                21

                22

                23



                25




                                                                 Deposition Resources, Inc.
                                                                      800.295.4109
Electronically signed by Terri Lynn Smith (601-237-608-4107)                                  20f4b2cc-437d-46fe-9a91-09eec9c3359c
                                                                                                                              Page 3


                  1

                  2                                                                                                        PAGE
                  3          A.f)pea.ra.rt-<:::es . ............................................................... .           2

                  4          EXAMINATION

                  5                                      DANNY ALSXAN DER

                  6                  Examination by Mr. Brown . . . . . . . . . . . . . . . . . . . . . .                        4

                  7                  E:xarrLir1atior1 t.1y t1r..      Sar1ders . .................................... .        28

                  8                  Examination               Mr. Brown . . . . . . . . . . . . . . . . . . . . . .           36

                  9                  Examination               Mr. Sanders . . . . . . . . . . . . . . . . . . . .             38

                 10                                                                                                            42

                 11          Reporter's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                12

                 13                                                    EXHIBITS

                14           NO.       DESCRIPTION                                                                           PA.GE

                15           6         Printed Copies or Color Photographs . . . . . . . . . .

                16

                17

                18

                19

                20

                21

                22

                23                                                FZEPORTER' S        I~OT·E


                24                     Quotation marks are used for clari   and do not
                                            necessarily indicate a direct quote.
                25




                                                               Deposition Resources, Inc.
                                                                    800.295.4 l 09
Electronically signed by Terri Lynn Smith (601-237-608-4107)                                    20f4b2cc-437d-46fe-9a9i -09eec9c3359c
                                                                                                                           Page 35


                 1          can contra~ the aog, but when I can't see nim,                                         I can't

                 2          control him.                Do you agree with that?

                 3                    A . .,   Yes.

                 4                    Q.       And is that the reason the dog should have been

                 5           put up, because of the interactions that the dog may

                 6           have with a stranger when Mrs.                            Davidson can't see the

                 7           c:iog?

                 8                                                                Ol.;ject do forrrt ..

                 9                    Q.       (By l\lr.           Sar1d. ers)    Go ahead and answer.

                10                    A.       Run that by again.

                11                             All right.                Ms.     Dav~dson   can't be around the

                12           aoq all the time;                      is   rhat correct?

                13                    A.       Right.

                14                    ("\.
                                      v. ..    And the period or time when she's not around

                15           the dog,          the aog still has this aggressive nature,

                16           correct?

                17                    A.       c:orrec.~t      .

                18                             And if Ms.                Davidson's not around the dog, she

                19           can't protect someone else from the dog being

                20           aggressive,- can she?

                21                    A.       No.
                22                    Q.       Is that another reason the dog should have been

                23           put up?

                24                                         ME. BROWN:             Object to f<)rrn.

                25                    Q.       (By Mr.             Sanders)       Go ahead and answer, please.



                                                                    Deposition Resources, Inc.
                                                                         800.295.4109
Electronically signed by Terri Lynn Smith (601-237-608-4107)                                     20f4b2cc-437d-46fe-9a91-09eec9c3359c
                                                                                                                        Page 36


                 1                  A.        Well, if they think it needs to be put up,                                 yes.

                 2                   Q.        Do you think it needed to be put up?

                 3                   A._       I would have.
                 4                            All right, sir.               Thank you.         That's fair.

                 5                                         MR. SANDERS:          I   pass the witness.

                 6                                         (Examination concluded at 3:43 p.m.)

                 7                                                      EXi\.MINA'l'ION

                 8           BY MR.         BROW~:


                 9                   Q.        Mr. Alexander, you said you would have put him

                10           up, but there wasn't anything that had happened that

                11           night that Dade you think that we ought to put him up

                12           tonight, correct?

                13                   ?. .      Correct.

                14                             Okay.           So it's 4ust      ~he    fact that you knew that

                15           he had 9raqbed ahcld cf Billy before, so you knew

                16           obviously,            yeah,        he -- he    ~iaht      bite, he          d bite at

                17           Bil       ?     Would that be the basis of your thoughts that,

                IB           you know, maybe, you know,                       if a new person is there,

                19           maybe you ought to just put him up?                              Is that what you're

                20           saying?

                21                             Yes.

                22                   Q.        Okay.           That everung, did you make any con11nent

                23           -co Di::rna or Jerry about, you know, Hey, why -- you think
                24           we ought to put the                         up, or do -- did you express any

                25                 any kind of concern about the dogs be                                  crut th.at




                                                                 Deposition Resources, Inc.
                                                                      800.295.4109
Electronically signed by Terri Lynn Smith (601-237-608-4107)                                  20f4b2cc-437d-46fe-9a91-09eec9c3359c
                                                                                                                         Page 44


                 1                                                 CAUSE NO. 13-0618

                 2          Nll.l\JCY    ELI Zl\BETH BCWM!\N,                        IN THE DISTRICT COURT OF
                                        Plaintiff,
                 3
                            V3 ..                                                    HARRISON COUNTY, TEXAS
                 4
                             JERRY DZWIDSON ,il,_ND
                 5           DIPcNA DAVIDSON,
                                        [)efe:ndar1ts.                                71ST JUDICIAL DISTRICT
                 6

                 7                                             REPORTER'S CERTIFICATION
                                                       DEPOSITION OF [tZ\l\JNY         ,.A.LEXP_J~DER
                 8                                                 NOVEMBER 19, 2013

                 9                               I, TERRI LYNN SMITH, Certified Shorthand

                10           Reporter in.and for the State of Texas, hereby certify

                11           to the following:

                12                               That.the wicness, DANNY ALEXANDER, was duly

                13           SVJOrn            the officer and that the transcript of the oral

                M            deposition is a true record of the testimony given by

                15

                16                               'L'hat the de1::·os:'.-:ion transcript was submitted

                17           on     ~'?cf",_ _                       to the vvitness or to the attorney

                18           for the witness for examination,                          signature and return to

                19

                20
                            me by        i/-¥b4 ,~U.
                                                 That the         arr~unt   of time used by each party at

                21           che deposition is as follows:

                22                              Mr. Jack Sanders,               Jr. - 00 hours,            14 minutes

                23                               Mr. Alan E. Brown                       00 hours,         30 mirn1tes

                24                               That pursuant to information given to the

                25           deposition officer at the time said testimony was taken,



                                                                 Deposition Resources, Inc.
                                                                      800.295.4109
Electronically signed by Terri Lynn Smith ($01-237-608-4107)                                  20f4b2cc-437cl-46fe-9a91-09eec9c3359c
                                                                                                                           Page 45


                 1          the following includes counsel for all parties cf

                 2           record:

                 3                              Mr.      Jack Sanders,         Jr., Attorney for Plaintiff,
                                                Na.ncy El.i. za.bet.~r1 Bo1,.1ruan;
                 4
                                                 Mr. Alan E. Brown, Attorney for Defendants,
                 5                               Jerry Davidson and Diana Davidson.

                 6                               I   further certify that I                am neither counsel
                 7           for,      related to, nor employed by any of the parties or

                 8           attorneys ih the action in which this proceeding was

                 9           taken, and further that I am not financially or

                ro           otherwise interested in the outcome of the action.

                11                               Further certification requirements pursuant to

                12           Rule 203 of TRCP w:Ul be certified to after they have

                13           occurred.

                14                               Certified t<J on. tl1is 27th                  da~l   of Novernber,

                15           2013.

                16

                17                                         -   ~/._____
                                                           IE:R..T:U LYNN
                18                                                                      I2/3J/14
                                                           Deposi~ion           Resources, Inc.
                19                                         Firm              istration No.:    409
                                                           515 North Church Street
                20                                         Palestine, Texas 75801
                                                           'feJ_epLone:           (903) 729-3289
                21                                         Faes j_rn.i. ..1. e:   {903) 727-0986
                22

                23                           FURTHER CERTIFICATION UNDER RULE 203 TRCP

                24                               The original deposition was/was not returned

                ~            ta the deposition officer on




                                                               Deposition Resour..::es, Inc.
                                                                      800.295.4109
Electronically signed by Terri Lynn Smith (601-237-608-4107)                                    20f4b2cc-43 7d-46fe-9a91-09eec9c3359c
                                                                                                                                                   Page 46


                 1                               If returned,                        the attached changes and

                 2           signature page contains any changes and the reasons

                 3           therefor;

                 4                               ...Li..                             the originai deposition was

                 5           delivered to Mr. Alan E. Brown, Custodial Attorney;

                 6                               That $                                      is the deposition officer's

                 7           charges to the Defendant for preparing the original
                 8           deposition transcript and any copies of exhibits;

                 9                               That the deposition was delivered in

                10           accordance with Rule 203.3 and that a copy of this
                                                                                             ...,   ....,           '
                1l           certificate was                       ~erved            on   F.JJ__.L
                                                                                                                ;

                                                                                                            flarL.leS      st101r1n   h.erein       c;r1


                12           and filed with the Clerk.

                13                               Certifiea IO by me this                                                     d2y of

                14           --------                      -····-·-···-
                                                                          r    2013.

                15

                16
                                                                 -·-········-·········---------------------
                                                                 TERRI LYNN SMITH, CSR 6781
                17                                               Expiration Date:  12/31/14
                                                                 Deposition Resources, Inc.
                18                                               Firm Registration No.:  409
                                                                 515 North Church Street
                19                                               Palestine, Texas 75801
                                                                 Telephone:   903 729-3289
                20                                               Facsimile:   903 727-0986

                21

                22

                23

                24

                25




                                                                              Deposition Resources, Inc.
                                                                                   800.295.4 l 09
Electronically signed by Terri Lynn Smith (601-237-608-4107)                                                            20f4 b2cc-437 d-46fe-9a91-09eec9c3359c
