Nancy Elizabeth Bowman v. Jerry Davidson and Diana Davidson ( 2015 )

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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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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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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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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,
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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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
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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
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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
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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.
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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
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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