13-12-00519-Cv-Clr-Vol 2 of 2

CAUSE NO.
2011CCV-61850-5
Jena Gonzalez
IN THE COUNTY COURT

AT LAW #5
VS
OF NUECES COUNTY
South Texas Veterinary Associates, INC.
Volume 2
INDEX
Plaintiffs Response to Defendant's No-Evidence and
186
Traditional Motion for Summary Judgment of all of

Plaintiffs Claims
Filed:04/25/12
c .
Notice of Setting
Filed:04/26/12
271 273 277
Notice of Setting
Filed:04/26/12
Defendant's Verified Response to Plaintiffs Motions

For Sanctions
Filed: 04/26/12
Filed:04/26/12 289
290
Dispute Resolution Services
Plaintiffs Reply to Defendant's Reply to Plaintiffs

Response to Defendant's No-Evidence and
Traditional Motion for Summary Judgment of all of

Plaintiffs Claims
Filed: 04/30/12 301 Filed:04/30/12
313
Defendant's Reply to Plaintiff's Response to

Defendants' No-Evidence and Traditional Motions for
Summary Judgment Defendant's Sur-Reply to Plaintiffs Reply to

Defendants' No-Evidence and Traditional Motions for
Summary Judgment
Filed:05/02/12 334
Defendant's Second Amended Original Answer to Plaintiffs Original Petition and First Amended
Counterclaim
Filed:05/07/12
341
Order on Defendant's No-Evidence and Traditional
Motions for Summary Judgment, Defendant's Motion
ooooooib
To Dismiss, Defendant's Motion to Seal and all

Parties' Motions for Sanctions
/
Signed:05/09/12
Filed:05/29/12 Filed:06/06/12
-
/Request for Findings of Fact and Conclusions of Law
344 346 349 350 363
Plaintiff Jena Gonzalez's Motion for New Trial Email from the court to both sides
Letter from Valerie Cantu
Filed:06/08/12
Filed:06/11/12
Defendant's Response to Plaintiffs Motion for New

Trial
E-Filed:06/18/12
Filed:06/25/12
Filed:06/25/12
374 395 419 420 422 424 426
431
Defendant's Response to Jena Gonzalez (Letter) Plaintiff Response to Judge Chesney Request
Order Setting Hearing
Order on Plaintiffs Motion for New Trial
Signed:06/25/12 Signed:07/20/12
Filed:08/13/12 Filed:08/15/12 Filed:08/21/12
/ XTrvoA V,U\ Vl3i^ V J Letter from Court of Appeals * %

S~ A j-l i Plaintiffs Noticepf Appeal V Or*-**^^ \*\ | K^\
Plaintiffs Designation of Clerk's Record on Appeal Plaintiffs Request for Preparation of Reporter's
Record
Filed:08/21/12
434
Case Summary
Docket Sheet Bill of Cost
440
442 443
Certificate
l%xA^
0000001C
CAUSE NO. 2011-CCV-61850-5
JENA GONZALEZ
PLAINTIFF
IN THE COUNTY COURT
V.
AT LAW NO. 5
SOUTH TEXAS VETERINARY
ASSOCIATES, INC.
DEFENDANT
NUECES COUNTY, TEXAS
PLAINTIFF'S RESPONSE TO DEFENDANTS NO-EVIDENCE & TRADITIONAL MOTION FOR SUMMARY JUDGEMENT OF ALL OF PLAINTIFF'S CLAIMS
TO THE HONORABLE JUDGE OF SAID COURT:
Pro Se Plaintiff Jena Gonzalez ("Plaintiff") files this response to Defendant's South Texas Veterinary Associates, Inc. ("Defendant") No-Evidence & Traditional Motion for Summary Judgment of
All of Plaintiffs Claims (the "Motion"), and in support of the same, respectfully shows the Court as
follows:
EVIDENCE
Exhibit A
Kitty Kat's Medical Record from Doddridge Animal Clinic.
Exhibit B ANTECH Diagnostics, Kitty's Pathology Report.
Exhibit C
A true and correct copy of excerpts of the April 4 & 5, 2012, Oral Depositions of Dr.
Darrell Ferris, Dr. David Shaffer, and Dr. Alan Garett.
I r-^s / CT
Exhibit D Atrue and correct copyof the April 12, 2012 letter of Ms. Karen Phillips, Dirertor <$
Enforcement of the TSBVME, to Dr. David G. Shaffer.

request.
?
j>
^
rv>
Exhibit E Atrue and correct copy ofTSBVME statistics as provided to Plaintiff through^FOfrC
-<
rn
3?
co
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0000186
Exhibit F
A true and correct copy of Transcript of the Testimony of Conversation between Alan Garett, DVM and Robert "Bob" Rogers, DVM. A true and correct copy of email correspondence between Plaintiff and Defendant's attorneys Valerie L Cantu and Robert Hilliard.
Exhibit G
Exhibit H A true and correct copy of Plaintiffs retained testifying expert witness, Dr. Robert "Bob" Rogers, report.
INTRODUCTION
Defendant is a small animal veterinary practice located at 4100 Santa Fe, Corpus Christi, Texas
78411.
On December 17, 2008, and on March 15, 2010, Plaintiff presented her indoor/outdoor cat known as "Kitty Kat" for veterinary care and treatment. Dr. David Shaffer is the treating veterinarian who
rendered the veterinary care and treatment to Plaintiffs cat. As part of care and treatment of the cat.
Dr. Shaffer vaccinated the cat, including administering an adjuvanted feline leukemia vaccine.
On October 11, 2010, Plaintiff presented her cat to Dr. Shaffer for treatment of a golf ball size mass,
containing a quarter sized ulceration which was draining purulent and/or necrotic matter on its right
rear leg. Dr. Shaffer diagnosed the cat with an infection and prescribed the antibiotic Clavamox.
Plaintiff was told to return for a follow up visit if there was no improvement. Plaintiff tried to schedule a
follow up appointment but was unable to due to unavailability.
On October 16, 2010, Dr. Piatt of Baldwin and Crosstown Animal Clinic examined Kitty Kat and
immediately diagnosed Vaccine Associated Sarcoma. On October 18, 2010, Dr. Guzeldere examined
Kitty Kat and performed a Fine Needle Aspirate on the lesion and concurred with a diagnosis of Vaccine Associated Sarcoma. After two surgeries, one amputating the right hind limb, and chemotherapy Kitty Kat was euthanized on February 14, 2011, due to Vaccine Associated Sarcoma.
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Plaintiff sues Defendant for veterinary malpractice in the following ways:
Malpractice
Breach of Contract
Negligent Misrepresentation
Vicarious Liability / Respondeat Superior
See Plaintiffs First Amended Original Complaint filed on April 18, 2012.
I.
A.
PLAINTIFF'S RESPONSE TO DEFENDANTS NO-EVIDENCE MOTION FOR SUMMARY JUDGEMENT

Summary Judgment Standard of Review
Under Rule 166a(i), a party may move for a no-evidence summary judgment on the ground that
there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). The trial court must grant the motion
unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Id. The respondent is "not required to marshal its proof; its response need only point out evidence that
raises a fact issue on the challenged elements." TEX. R. CIV. P. 166a(i) cmt. In reviewing a trial court's
order granting a no-evidence summary judgment, we consider the evidence in the light most favorable
to the respondent and disregard all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118
S.W.3d 742, 750-51 (Tex. 2003). Thus, a no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material
fact. Id. at 751; see TEX. R. CIV. P. 166a(i).
B. Arguments and Authorities
For Plaintiff to recover on her veterinary malpractice claims against Defendant, Plaintiff must
prove, through a licensed practitioner of veterinary medicine:
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0000188
The actions or nonactions of Dr. Shaffer did not conform to the exercise of the care and
diligence as is ordinarily exercised by skilled veterinarians;
That Dr. Shaffer's veterinary treatment of Plaintiffs cat deviated from the applicable standard of
veterinary care; and
That Dr. Shaffer's deviation from the applicable standard of veterinary care proximately caused
Plaintiffs alleged damages and injuries.
Defendant's summary judgment is based on Plaintiffs Original Petition filed in Small Claims Court.
Plaintiff filed an Amended Original Complaint on April 18, 2012. Ifthe plaintiff amends the petition after
being served with a motion for summary judgment, the defendant must file an amended or
supplemental motion for summary judgment to address the newly pleaded cause of action. See Worthy
v. Collagen Corp., 921 S.W.2d 711, 714 (Tex. App.Dallas 1995), aff'd, 967 S.W.2d 360 (Tex. 1998);
Johnson v. Rollen, 818 S.W.2d 180, 182-83 (Tex. App.-Houston [1st Dist.] 1991, no writ). Summary
judgment on the entirety of the plaintiffs case will be improper, because the no-evidence motion fails to
address all of the plaintiffs theories of liability. See Sosa v. Cent. Power & Light, 909 S.W.2d 893, 894-95 (Tex. 1995) (per curiam); see also Welch v. Coca-Cola Enters., Inc., 36 S.W.3d 532, 541-42 (Tex. AppTyler 2000, pet. dism'd by agr.); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 147-48 (Tex.
App.-Houston [14th Dist.] 2000, pet. denied).
Defendant's Motion relies on "the veterinary standard of care applicable to a veterinarian of ordinary skill and care practicing in the Corpus Christi, Nueces County, Texas under the same or
substantially similar circumstances". See Downing v. Gully, 915 S.W.2d 181, 183 (Tex. App.Ft. Worth
1996, writ denied) (adopting the standard applied to physicians and surgeons in medical malpractice
cases to veterinary malpractice case). Texas has adopted a National Standard of Care: See Am
Transitional Care Centers of Tex Inc v Palacios, 44 Tex Sup Ct J 720, 46 SW3d 873 (2001). The locality
Pg-4
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rule is not applicable in modern medical malpractice actions.
The Texas Supreme Court's
description of the standard of care refers only to physicians in the same or similar circumstances,
and does not refer to the physician's community See Chambers v. Conway, 883 S.W.2d 156, 158 (Tex. 1993); Hood v. Phillips, 554 S.W.2d 160, 165 (Tex. 1977); and Snow v. Bond, 438 S.W.2d 549,
550-551 (Tex. 1969). Hospital rules do not reflect the community standard of medical care, as the
particular hospital might maintain higher standards that those prevailing in the community. See
Hicks v. Canessa, 825 S.W.2d 542, 544 (Tex. App. El Paso 1992, no writ).
Relying solely on this Court's decision in Hickson v. Martinez, 707 S.W.2d 919, 925 (Tex.App.-Dallas 1985), writ refd n.r.e., 716 S.W.2d 499 (Tex.1986) (per curiam), Bakhtari (See Bakhtari v. Estate of
Dumas, 317 S.W. 3d 486,494 (Tex. AppDallas 2010, no pet.) argues that "[ujnless a different standard
is imposed by statute, expert testimony on the standards of care is admissible only if the expert can offer testimony on the standards of practice for the relevant or similar community." Among other
distinguishing factors, however, our decision in Hickson predated the enactment of the expert witness
and report sections of chapter 74 and its predecessor statute. See generally Lee v. Mitchell, 23 S.W.3d
209, 212-15 (Tex.App.-Dallas 2000, pet. denied) (tracing legislative history of predecessor to chapter 74
and noting expert witness and report sections of that statute "were not added until 1989 and 1993,
respectively, and were amended in 1995"). In other words, a different standard is now imposed by
statute. Texas Civil Practice &. Remedies Code Chapter 74 does not require that a physician providing an
expert opinion on the applicable standard of care in a suit against a physician be from the same community, or a similar community, as the defendant physician. See Springer v. Johnson, 280 S.W.3d 322, 326-31 (Tex.App.-Texarkana 2008, no pet.)
The locality rule arose in the United States in the 1880s. See Small v Howard, 128 Mass 131 (1880). It
has been disregarded by a majority of courts, but a significant minority adhere to the rule. The locality
Pg-5
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rule was based on the premise that rural physicians might not have the same experiences or opportunities for education as their colleagues in larger cities; therefore, it would be unfair to hold
them to the same standard of care. The locality rule originated in a time when rural and urban
physicians may have had vastly different experiences with respect to their education, training, and
ability to obtain the latest information relating to diagnosis and treatment. These differences
necessitated the development of local standards to govern medical malpractice lawsuits. Today,
however, rural and urban physicians have access to the same information and have the same
opportunities to stay current in their specialty. Thus, the locality rule has become an anachronism.
The persistence of this rule may serve to promote the practice of substandard medicine. See Christian v. Jeter, 445 S.W.2d 51, 53-54 (Civ. App.-Waco 1969, ref. n.r.e.).
C.
Plaintiffs Response to No Evidence of the Relevant Standard of Care Exists to Prove Plaintiffs Malpractice Claims.
Plaintiffs retained testifying expert, Robert "Bob" Rogers, is a small animal veterinarian practicing in
Spring, Texas.
See Downing v. Gully, 915 S.W.2d 181, 183 (Tex. App.Ft. Worth 1996, writ denied) (adopting the
standard applied to physicians and surgeons in medical malpractice cases to veterinary malpractice
case). Texas Civil Practice &. Remedies Code Chapter 74 does not require that a physician providing an
expert opinion on the applicable standard of care in a suit against a physician be from the same community, or a similar community, as the defendant physician. See Springer v. Johnson, 280 S.W.3d
322, 326-31 (Tex.App.-Texarkana 2008, no pet.)

In addition to Dr. Rodgers expert report, Defendant's Dr. Darell Ferris, Dr. David Shaffer, and their
retained testifying expert Alan Garett testified to the standard of care they themselves adhere to. The
Pg-6
0000191
standard of care is performing a blood test to check for feline leukemia virus, informing the client of the
recommended vaccines, the risks and benefits of the vaccines, and potential adverse reactions.
See Exhibit "A", pages 36-37 & 61, Deposition of Darrell L. Ferris, DVM
When you examine a new client at your clinic who brings in a cat, do you talk to
them about what vaccines you will be injecting and what they're for?
A Yes.
So, in other words, you would ~ is it true you would tell a client with a cat, "I'm
going to give them this rabies, this is what it's for, I'm going to give them the panleukopenia and that's what it's for, I'm going to give them calicivirus and this is what it's for, and I'm going to give them the
rhinotracheitis, and this is what it's for"?
A Yes.
Q
A
And do you, at any time, explain to them the benefits of those vaccines?
Yes.
Q,
these vaccines?
And do you, at any time, also explain to them what risks may occur with
Yes.
0.
And do you, at any time, explain to them what signs and symptoms to look
for as a possible adverse reaction to these vaccines? A We advise them to observe their animals for anything that's unusual after
vaccines, whether they just act like they don't feel good, they lay around, maybe vomit, whatever. Anything that seems abnormal in their animal after a vaccine, we need to know about. Q Okay. And a cat, do you specifically tell them to look for any type of lump
at the vaccine site that could be a reaction to the vaccine?
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0000192
#
A No, but that's part of our "anything that's unusual." I would think that
would cover any-That would, pretty much, cover anything. We tell them anything that doesn't
seem right, you need to let us know.
In your practice, do you test for feline leukemia virus before you
administer a feline leukemia vaccine?
We do in kittens. We do in feral cats. We do in Humane Society cats can,
although most Humane Society cats are already tested when we see them.
Q A Do you in adult cats with no known vaccine history? Again, it depends upon the health of the cat and the history of the cat and
where it came from; feral cats, stray cat, somebody gave it to them from a neighbor.
See Exhibit "B", pages 10-11 & 13, Deposition of David Shaffer, DVM
And at Forest Creek, is it practice that the veterinarians discuss with their
clients like what types of vaccines they recommend for their felines and what possible risks or benefits
they have, what they're for?
A Yes, it is.
So, they would tell the client, "This is the rabies vaccine, this is what it's
for, these are certain things that could happen, adverse events that could happen"?
A Yes.
Q
A
Okay. And the same with the FVRCP and the leukemia?
Yes.
Q
particular vaccines?
Okay. What type of adverse events do they warn could happen with these
Mostly more acute events, acute local swelling, fevers, lethargy, vomiting.
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0000193
#
Q.
leukemia vaccine?
And do you test a cat for feline leukemia prior to administering the feline
Typically, I do.
See Exhibit "C", pages 40-42, Deposition of Alan Garett, DVM
Q, A
Okay.
What was your assignment in this case?
My assignment was to testify as to the standard of care by the local
veterinarians in Corpus Christi as to-as it applies to vaccinations, specifically of cats. Q Yes. So, when a new client comes to your office with a cat, what is your
procedures? Can you just kind of walkthrough that?

A Q,
A
On a stray cat or when they purchase -Okay. Let's just say--
It does make a difference.
Q A
- an eight year adult cat Okay.
Q
any vet visits.
- that the owner has had for five years, but there's no known history of
A
Q
Okay.
Both.
Can I ask you more specific? Is the cat indoors or outdoors?
Okay.
So, you know, Mrs. Jones comes to me, "I've had this cat for
five years, Dr. Garett, and we think he's about eight years of age, he's inside, outside, never been
vaccinated." Is that the scope of the question?
Q Yes.
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0000194
Okay. Good. I would tell that client that--1 would say, "Well" -
I would
chastise her in a nice way for waiting so long to come in. I wouldn't be rude about it. I'd say, "You are
playing Russian roulette by letting your cat go outside where the exposure rate for this community is
high for strays," and I'd say, "Has your cat been healthy or sickly?" Ifshe says, "Well, it's been a healthy
cat, never been sick a day in his life, never been in a cat fight, hangs on the front porch, goes to the
backyard," all those wonderful things, I would say - you know, of course, by law, you have to do the rabies. As far as the distemper/leukemia, the five way vaccination that Ishowed you, that you have the label of, I would tell her that, theoretically, every cat should be tested before vaccinating; however And 1would say, "If your cat had been a sickly cat, I could not --1 would not, in good conscience, like to
vaccinate." Ifshe insisted that I do, I probably would, but Ithink it would not be the proper thing to do.
I would tell her about the testing once again and let her make the decision. I hate to say this: A lot of it
comes down to money for people. Q And would you explain what the panleukopenia, rhinotracheitis, calicivirus
-- would you mention those names and explain -A

Q
Oh, yeah, yeah, yeah, absolutely.

-what they are?
We tell them that the vaccination we give here basically has feline
distemper, and I'll say, "It's very similar to parvo in dogs," and then the other one is a respiratory. Of
course, leukemia is like an analogy to human aids, you know. It suppresses the immune system.I don't
go into a lot of detail, but what Ijust told you took 15 seconds, and that's, basically, what I tell them.
Q Okay.
A
accurate as I can.
If they have more specific questions, I try my best to be as
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#
Accordingly, Plaintiff has competent, admissible evidence of the standard of veterinary care applicable to Dr. Shaffer and Defendant.
II. PLAINTIFFS RESPONSE TO DEFENDANTS TRADITIONAL MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF'S AFFIRMATIVE CLAIMS AGAINST
DEFENDANT
A.
A nonmovant in a traditional summary judgment proceeding is not required to produce summary judgment evidence until after the movant establishes it is entitled to summary judgment as a matter
of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). In deciding whether there is a disputed issue of material fact that precludes summary judgment, the court takes as true all evidence favorable to
the nonmovant. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Rhone-
Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Nixon v. Mr. Prop. Mgmt Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The court must view the evidence in the light most favorable to the nonmovant and must indulge every reasonable inference and resolve all doubts in favor of the nonmovant.
Limestone Prods., 71 S.W.3d at 311; Nixon, 690 S.W.2d at 549.
To recover on her veterinary malpractice claims against Defendant, Plaintiff must prove, through a
licensed practitioner of veterinary medicine:
The actions or nonactions of Dr. Shaffer did not conform to the exercise of the care and
diligence as is ordinarily exercised by skilled veterinarians;
That Dr. Shaffer's veterinary treatment of Plaintiffs cat deviated from the applicable standard of
veterinary care; and
That Dr. Shaffer's deviation from the applicable standard of veterinary care proximately caused
Plaintiffs alleged damages and injuries.
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0000196
Defendant's Motion relies on "the veterinary standard of care applicable to a veterinarian of ordinary
skill and care practicing in the Corpus Christi, Nueces County, Texas under the same or substantially
similar circumstances". See Downing v. Gully, 915 S.W.2d 181, 183 (Tex. App.Ft. Worth 1996, writ
denied) (adopting the standard applied to physicians and surgeons in medical malpractice cases to
veterinary malpractice case). Texas has adopted a National Standard of Care: See Am Transitional Care
Centers of Tex Inc v Palacios, 44 Tex Sup Ct J 720, 46 SW3d 873 (2001). The locality rule is not
applicable in modern medical malpractice actions. The Texas Supreme Court's description of the standard of care refers only to physicians in the same or similar circumstances, and does not refer to the physician's community See Chambers v. Conway, 883 S.W.2d 156, 158 (Tex. 1993); Hood v.
Phillips, 554 S.W.2d 160, 165 (Tex. 1977}; and Snow v. Bond, 438 S.W.2d 549, 550-551 (Tex. 1969). Hospital rules do not reflect the community standard of medical care, as the particular hospital might maintain higher standards that those prevailing in the community. See Hicks v. Canessa, 825 S.W.2d 542, 544 (Tex. AppEl Paso 1992, no writ).
Relying solely on this Court's decision in Hickson v. Martinez, 707 S.W.2d 919, 925 (Tex.App.-Dallas
1985), writ refd n.r.e., 716 S.W.2d 499 (Tex.1986) (per curiam), Bakhtari (See Bakhtari v. Estate of
Dumas, 317 S.W. 3d 486, 494 (Tex. App.Dallas 2010, no pet.) argues that "[ujnless a different standard
is imposed by statute, expert testimony on the standards of care is admissible only if the expert can offer
testimony on the standards of practice for the relevant or similar community." Among other
distinguishing factors, however, our decision in Hickson predated the enactment of the expert witness and report sections of chapter 74 and its predecessor statute. See generally Lee v. Mitchell, 23 S.W.3d 209, 212-15 (Tex.App.-Dallas 2000, pet. denied) (tracing legislative history of predecessor to chapter 74
and noting expert witness and report sections of that statute "were not added until 1989 and 1993,
respectively, and were amended in 1995"). In other words, a different standard is now imposed by
pg-12
0000197
statute. Texas Civil Practice & Remedies Code Chapter 74 does not require that a physician providing an
expert opinion on the applicable standard of care in a suit against a physician be from the same
community, or a similar community, as the defendant physician. See Springer v. Johnson, 280 S.W.3d 322,326-31 (Tex.App.-Texarkana 2008, no pet.)
The locality rule arose in the United States in the 1880s. See Small v Howard, 128 Mass 131 (1880). It
has been disregarded by a majority of courts, but a significant minority adhere to the rule. The locality
rule was based on the premise that rural physicians might not have the same experiences or
opportunities for education as their colleagues in larger cities; therefore, it would be unfair to hold
them to the same standard of care. The locality rule originated in a time when rural and urban physicians may have had vastly different experiences with respect to their education, training, and
ability to obtain the latest information relating to diagnosis and treatment. These differences
necessitated the development of local standards to govern medical malpractice lawsuits. Today,
however, rural and urban physicians have access to the same information and have the same opportunities to stay current in their specialty. Thus, the locality rule has become an anachronism.
The persistence of this rule may serve to promote the practice of substandard medicine. See Christian v. Jeter, 445 S.W.2d 51, 53-54 (Civ. App.-Waco 1969, ref. n.r.e.).
C.
The Texas State Board of Veterinary Medical Examiners state, "As a regulatory agency,
the primary disciplinary tools are sanctions, against the veterinarian's license.
Recovery of damages to complainants is beyond the scope of the Board's authority.

Complainants may seek relief through civil proceedings separate from the Board
action".
A copy of the February 1, 2012, letter of Ms. Karen Phillips, Director of Enforcement of the TSBVME, to Dr. David G. Shaffer marked as Exhibit C was filed. Plaintiff objects to the document based
on Rule 803(8) C, in civil cases as to any party and in criminal cases as against the state, factual findings
resulting from an investigation made pursuant to authority granted by law; unless the sources of
pg.13
0000198
information or other circumstances indicate a lack of trustworthiness.
Four nonexclusive factors that
bear on trustworthiness: (1) the timeliness of the investigation; Case No. 11-174 - David G. Shaffer took
372 days to complete. (2) the special skill or experience of the official; The "Two Board Members" are
not named. Furthermore, during the course of this investigation, the lead investigator Mr. Charles
Adkins retired. A new investigator, Emilio Morales completed the investigation. Investigation records
and reports are confidential. (3) whether a hearing was held and the level at which it was conducted; A
hearing on this case was not held and (4) possible motivation problems (such as agency bias or
motivation issues) suggested by Palmer v. Hoffman 318 U.S. 109 (1943). Obviously, The Texas State Board of Veterinary Medical Examiners has some issues regarding bias. I was not notified of my right to
appeal their decision. I do not believe the TSBVME notifies any complainants of their right to appeal so I have asked the Office of the Texas Attorney General to look into this matter. Also, according to data I
obtained through the FOIA, an average only 16% of veterinarians were disciplined for years 2001-2010.
Only 15 hearings were conducted before the Administrative Law Judge for the same time period. When
a party opposing admissibility challenges the trustworthiness of a particular report, courts generally
start their analysis with these factors. In addition, courts have supplemented these four factors with
others, including whether the report in question is final and the extent to which the investigation
complied with agency procedures. Often the subjects of government reports tend to rely on materials
produced by nongovernmental bodies to prepare their own findings and conclusions. When an agency
report relies heavily on third-party materials, however, courts have excluded them, See Brown v. Sierra
Nevada Memorial Miners Hospital 849 F.2d 1186, 1189-90 (9th Cir. 1998). Legal conclusions contained within government reports generally fall outside the scope of the rule's exceptions. This limitation is a
nod to those concerned that a jury will improperly defer to an agency's conclusions. As the court explained in Hines v. Brandon Steel Decks, Inc., 886 F.2d 299, 303 (11th Cir. 1989), "legal conclusions are
pg. 14
0000199
inadmissible because the jury would have no way of knowing whether the preparer of the report was
cognizant of the requirements underlying the legal conclusion and, if not, whether the preparer might
have a higher or lower standard than the law requires." According to the Veterinary Licensing Act, 801.207 PUBLIC RECORD; EXCEPTION:
(a) Except as provided by Subsection (b), a board record is a public record and is available for public inspection during normal business hours.
(b) An investigation record of the board, including a record relating to a complaint that is found
to be groundless, is confidential.
Only one circuit court has addressed that open question at any length. In Hines v. Brandon Steel Decks, Inc., 886 F.2d 299, 302 (11th Cir.1989), the Eleventh Circuit held that "Rule 803(8)(C) does not
provide for the admissibility of the legal conclusions contained within an otherwise admissible public report." "Legal conclusions are inadmissible because the jury would have no way of knowing whether
the preparer of the report was cognizant of the requirements underlying the legal conclusion and, if not, whether the preparer might have a higher or lower standard than the law requires."...That court
"cautionfed], however, that the amorphous line between 'factual' and 'legal' conclusions may obscure a practical analysis under this rubric."...The Fourth Circuit has agreed, albeit without analysis. See Zeus
Enters., Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 243 (4th Cir .1999) ("The NTSB order involved no factual determinations and was strictly a legal ruling. As such, the NTSB order was not admissible under
Rule 803(8)(C).").
The Ninth Circuit decided to agree with these courts, concluding that Pure legal conclusions are not admissible as factual findings. In the context of a summary judgment motion, a conclusion of law by a third-party investigator does not, by itself, create a genuine issue of material fact for the obvious reason that a legal conclusion is not a factual statement and for the reasons explained by the Eleventh Circuit.
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Defendant's Motion relies on evidence that the court cannot consider because it is "Hearsay". The TSBVME agency record contains statements that are themselves hearsay. This creates the familiar
problem of having hearsay within hearsay. Although Rule 803(8)(c) provides an exception for the report
itself, the party seeking admission often is required to offer a second exception to cover the individual
hearsay statements in the report. See, e.g., United States v. Mackey, 117 F.3d 24, 28-29 (1st Cir. 1997)
("In line with the advisory committee note to Rule 803(8), decisions in this and other circuits squarely hold that hearsay statements by third persons . . . are not admissible under [Rule 803(8)(c)] merely because they appear within public records."). In other instances, courts assess the reliability of the
hearsay statements within the report as a means of determining whether the report should be
admitted.
Lastly, the Plaintiff has appealed the decision rendered by the TSBVME. As a regulatory agency, the
primary disciplinary tools are sanctions, against the veterinarian's license. Recovery of damages to
complainants is beyond the scope of the Board's authority. Complainants may seek relief through civil
proceedings separate from the Board action. Therefore, the TSBVME's finding of "no violation" letter is
not competent summary judgment evidence.
D.
Plaintiffs response to Defendant's allegations that Dr. Rogers faults "the industry".
The Transcript of the Testimony of Conversation between Alan Garett, DVM and Robert (Bob)
Rogers, DVM has so many unintelligible and broken areas of conversation that it is hard to determine what they were talking about without taking some statements out of context.
Defendant's Motion relies on evidence that the court cannot consider because it was obtained as a
violation of state law. On January 14, 2012, Plaintiffs retained testifying expert, Dr. Robert "Bob" Rogers, and Defendant's retained testifying expert, Dr. Alan Garett, both attended a professional
conference in Orlando, Florida. Dr. Alan Garett used his cell phone to record a conversation with Dr.
pg. 16
0000201
Robert "Bob" Rogers without either his knowledge or consent. Florida's wiretapping law is a "two-party
consent" law. Florida makes it a crime to intercept or record a "wire, oral, or electronic communication"
in Florida, unless all parties to the communication consent, whoever violates subsection (1) is guilty of a
felony of the third degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 934.41.See
Fla. Stat. ch. 934.03.
Chapter 934, Florida Statutes, was enacted by the Florida Legislature in order to assure personal rights of privacy in oral and wire communications. See s. 934.01, Fla. Stat., reflecting the legislative findings for enactment of Chapter 934, Fla. Stat. The legislative findings in section 934.01(4), Florida Statutes, reflect the Legislature's concern for protecting the privacy rights of the state's citizens. In
enacting Chapter 934, the Legislature expressly undertook to "define the circumstances and conditions
under which the interception of wire and oral communications may be authorized and to prohibit any unauthorized interception of such communications and the use of the contents thereof in evidence in courts and administrative proceedings." Section 934.01(2), Fla. Stat.
Section 934.03(1), Florida Statutes, generally makes it unlawful to willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept any wire or oral
communication. See s. 934.03(4), Fla. Stat., prescribing penalties for violations of the statute. Any
criminal action would be brought by the state attorney for the judicial circuit where the incident
occurred. And see s. 934.10, Fla. Stat., prescribing civil remedies. See also s. 934.06, Fla. Stat., prohibiting the use of such intercepted wire or oral communications as evidence. Cf. State v. Mozo, 655 So. 2d 1115
(Fla. 1995), citing United States v. Nelson, 837 F.2d 1519 (11th Cir.), cert, denied, 488 U.S. 829, 109 S.Ct.
82, 102 L.Ed.2d 58 (1988) (actual "interception" of a communication occurs not where the call is
ultimately heard or recorded but where the communication originates. "Oral communication" is defined
by section 934.02(2), Florida Statutes, as "any oral communication uttered by a person exhibiting an
Pg-17
0000202
expectation that such communication is not subject to interception under circumstances justifying such
expectation and does not mean any public oral communication uttered at a public meeting or any
electronic communication."
The Florida Supreme Court has interpreted the test set forth in this definition as substantially the
same test used in a Fourth Amendment right-to-privacy analysis. See Mozo v. State, id. at n.5;
Stevenson v. State, 667 So. 2d 410 (Fla. 1st DCA 1996. Thus, for a conversation to qualify as "oral communication," the speaker must have an actual subjective expectation of privacy in his oral communication and that expectation of privacy must be recognized by society as reasonable under the
circumstances See Jackson v. State, 18 So. 3d 1016 (Fla. 2009), cert, denied, 130 S.Ct. 1144 (2010).
As
stated by the Florida Supreme Court in State v. Indarrano See 473 So. 2d 1272, 1275 (Fla. 1985). "This
expectation of privacy does not contemplate merely a subjective expectation on the part of the person
making the uttered oral communication but rather contemplates a reasonable expectation of privacy. A
reasonable expectation of privacy under a given set of circumstances depends upon one's actual
subjective expectation of privacy as well as whether society is prepared to recognize this expectation as
reasonable. Shapiro v. State, 390 So. 2d 344 (Fla. 1980), cert, denied, 450 U.S. 982, 101 S.Ct. 1519, 67
L.Ed.2d 818 (1981).
Dr. Robert (Bob) Rogers expected his conversation with Dr. Alan Garett to be private.
The
conference they were attending had signs posted stating, "no recording allowed'. Although this was
mainly for the conference speakers Dr. Rogers also had an expectation that his conversation with Dr. Garett was private and would not be recorded. Dr. Rogers intends to file criminal charges against Dr. Garett for taping his conversation and using the transcript in this civil case.
III. PLAINTIFF'S RESPONSE TO TRADITIONAL MOTION FOR SUMMARY JUDGEMENT OF
DEFENDANT'S COUNTERCLAIM
A.
pg.18
000020a
A nonmovant in a traditional summary judgment proceeding is not required to produce summary
judgment evidence until after the movant establishes it is entitled to summary judgment as a matter
of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). In deciding whether there is a disputed issue
of material fact that precludes summary judgment, the court takes as true all evidence favorable to
the nonmovant. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Rhone-
Poulenc, inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The court must view the evidence in the light most favorable to the nonmovant
and must indulge every reasonable inference and resolve all doubts in favor of the nonmovant.
Limestone Prods., 71 S.W.3d at 311; Nixon, 690 S.W.2d at 549.
Rule 13 authorizes the imposition of sanctions against an attorney, a represented party, or both,
who filed a pleading that is either: (1) groundless and brought in bad faith; or (2) groundless and brought to harass. TEX. R. CIV. P. 13; see also Rudisell v. Paquette, 89 S.W.3d 233, 236 (Tex. App.-
Corpus Christi 2002, no pet.). The rule defines "groundless" as having "no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law." Tex. R.
Civ. P. 13. Sanctions may only be imposed for good cause under Rule 13, the particulars of which must
be stated in the order. TEX. R. CIV. P. 13; Rudisell, 89 S.W.3d at 237.8.
The standard for reviewing whether a pleading is groundless is objective:
Did the party and
attorneys make a reasonable inquiry into the legal and factual basis of the claim? The reasonableness of
the inquiry is judged by the facts available and the circumstances present at the time the party filed the pleading. Tarrant Cty. v. Chancey, 942 S.W.2d 151,155 (Tex. App.Fort Worth 1997, no writ).
A pleading is frivolous when presented for an improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation. Tex. Civ. Prac. 8t Rem. Code 10.001(1).
pg.19
0000204
Defendant/Counter-Plaintiffs pleading is frivolous because the pleading is intended to harass or cause

unnecessary delay or expense.
Bad faith does not exist when a party merely exercises bad judgment or is negligent; rather bad faith
is the conscious doing of a wrong for dishonest, discriminatory, or malicious purposes. Elkins v. Stotts-
Brown, 103 S.W.3d 664, 669 (Tex. App.Dallas 2003, no pet.). To "harass" means to annoy, alarm, and
verbally abuse another person. Id.
Defendant/Counter-Plaintiffs attorneys Robert C. Hilliard and Valerie L. Cantu filed the groundless Counterclaim pleading in bad faith, purpose of harassment, and to cause unnecessary expense.
Therefore, Robert C. Hilliard and Valerie L. Cantu are subject to sanctions. See GTE, 856 S.W.2d at 731.
Specifically, on November 3, 2011, Plaintiff Jena Gonzalez sent an email to Valerie Cantu inquiring about
"the interest that Mr. Bob Hilliard has in this case. He is not a party to this suit nor is he listed as counsel
for the defendant. Unless a joinderof additional parties is filed I request that he no longer participate as
counsel for the defendant". Ms. Cantu, in an email dated November 4, 2011, replied, "Regarding your
inquiry as to Mr. Hilliard, so that we are all on the same page, I have included Mr. Hilliard as a cc: to this e-mail. You may recall that Mr. Hilliard was co-counsel for our client at the small claims trial, as well as
personal counsel for both South Texas Veterinary Associates, Inc. and Dr. Darrel Ferris. He continues to
be co-counsel and personal counsel for our client in this county court matter. Attached is a copy of the
Notice of Appearance of Counsel of Defendant, which we filed with the court today (By certified mail,
return receipt requested, you shall receive a separate copy of the Notice as a cc: to our November 4,
2011 letter to the Nueces County Court Clerk)". Mr. Hilliard's response on November 3, 2011, to the
email was, "Please file a Notice of Additional Counsel and have it reflect that I represent Dr. Ferris.
pg-20
0000205
Please amend our answer to allege this is a frivolous lawsuit brought solely for the purpose of harassment and be sure to calculate all attorney fees and other costs so, at the appropriate time, we can
ask that the Gonzalez plaintiff be responsible for payment of same". Mr. Hilliard represented South Texas Veterinary Associates, Inc. in Small Claims hearing conducted on July 22, 2011, in Precinct 2-1,
Justice Court, Justice of the Peace Janice Stoner, Nueces County, Texas. Mr. Hilliard again represented
South Texas Veterinary Associates, Inc. at a Dismissal For Want Of Prosecution hearing conducted on October 28, 2011, in the County Court At Law #5 with the Honorable Judge Brent Chesney presiding. Mr. Hilliard represented the Defendant on both occasions without being a designated attorney of record
or notifying Plaintiff as required by Texas Rules of Civil Procedure Rule 8 and Rule 21a. On November 3, 2011, Mr. Hilliard instructed Ms. Cantu via email to amend the Defendant's original answer to include "this is a frivolous lawsuit brought solely for the purpose of harassment". Five months passed before and amended answer was filed in order to increase their attorney fees in this case which is being paid by
the Defendant/Counter-Plaintiffs malpractice insurance.

money on discovery fees in the last five months.
Plaintiff/Counter-Defendant has also spent
If Mr. Hilliard and Ms. Cantu truly felt this was a
frivolous lawsuit in November 2011, an amended answer should have been filed at that time. During
the time period October 2011 - April 13, 2012, Counsel has billed $20,403.71 for legal fees, court costs,
and other litigation expenses.
PRAYER
Plaintiff requests that Defendant's combined Motion for Summary Judgment be DENIED in its entirety and ORDER that Defendant take nothing on all of his claims and causes asserted against
Plaintiff.
Pg-21
0000206
Respectfully Submitted,
3717 Aransas St.
Corpus Christi, Texas 78411 Telephone: (361) 425-9359
CERTIFICATE OF SERVICE
This is to certify that a true, full and correct copy of the above and forgoing pleading or
document has been served upon all attorneys of and any parties who are not represented by an
attorney on this 25th day of April 2012, by certified mail, return receipt requested to: lOlO IÎO OODOW^ Û>5
Attorney for: South Texas Veterinary Associates, Inc.
Attorney's name:
Attorney's address:
O'Connell &. Avery LLP

Valerie L. Cantu
13750 San Pedro, Suite 110

San Antonio, Texas 78232
JeWGonzalez, Pro Se pWintifl
pg.22
0000207
OWNER ADDRESS
VACCINATION RECORD
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URINE
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ANTECH Diagnostics -
4040 WRoyal Lane, Suite 124 Irving TX 75063USA Phone: 800-745-4725

South Texas Veterinary Specialists
503ESonterra.
San Antonio, TX 78258 USA Tel: 210-930-8383 Fax: 210-930-8040

Accession No. . Doctor
Owner
Client #14231 Chart # 30556
DLPB00471990.
Species -,
ISRAEL
GONZALES JENA
Pet Name KITTY KAT
Received 11/24/2010 -
Feline
Test Requested
Breed . Sex Domestic Long Hair SF

Results
PetAge ' '

8Y
Reported """ " ' 12/01/2010 09:20 AM
HlSTO PATHOLOGY, FULL WRITTEN REPORT

Histopath Report:
CLINICAL INFORMATION:
Reference Range
Units
this case can be viewed at www.antechpod.com/ d!pb00471990 for the

next two weeks.
margins. The mass is tagged on caudal aspect, femur included in the sample. Photographs of the gross dissection of the submitted tissue in
rear amputation previously. Regrowth at ischium 3weeks post check
Suspected fibrosarcoma removed from right lateral fiank with right
SOURCE; -
Soft tissue mass, no bone involvement. Sections 1and 2- mass section 3- inked caudai margin (tagged), section 4- inked proximal margin.
DESCRIPTION/MICROSCOPIC FINDINGS/COMMENTS:
DESCRIPTION:
shaped cells arranged in interlacing streams, bundles, or whorls that

chromatin, indistinct, single or multiple prominent nucleoli and
denser cellular, nonencapsulated neoplasm consisting of spindle
Examined biopsy specimen includes haired skin and subcutaneous tissue infiltrating and expanding the dermal and subcutaneous tissue is a
"
5^:
1 <
.*,
large, oval to elongate nuclei with fine to moderately stippled
Cells display moderate anisocytosis and anisokaryosis. Cells have
are separated by occasionally vascularized collagenous tissue stroma
!0
variable amounts of amphophilic cytoplasmic extensions. There are 26

the ulcerated surface.
hemorrhage and necrosis in the sections and bacteria associated with

3MiiRGMd3RADE^,
mitotic figures per 10high'per fields. There are scattered areas of
MICROSCOPIC FINDINGS:-)-!
PROGNOSIS: Guarded.
1~2-"^^îsss^:2a2s3?jLJ
fibrosarcoma. In general, these tumors are-locally aggressive invasive neoplasms that commonly recur after surgicai excision They
Page 1
12/01/2010 09:20 AM
present within the sections examined are consistent with a
COMMENTSr.The morphologic characteristics of the neoplastic cells
L/\ lA^
?k.l-4"N
c/ 4- X'
0000209
i^/ui/iun;
j.Kj ; o
."0
nn
-u/uu
PAGE
OF
Accession No. DLPB0M71990
Doctor
Owner
Pet Name
ISRAEL
GONZALES JENA
KTTTYKAT
Test Requested
Results'
Reference Range
Units
stream tothe lungs. ttEEiatsâi^^^gtrR,^
also have the potential t0 raetgstasize,in some cases via the blood
=vyft|)^ûgiMÊiTO^^^Bie^p4^ê4 Furthermore, in young feline leukemia-virus infected cats, feline sarcomavirus, on rare
occasions, induce a multifocal subcutaneous fibrosarcoma, which is anaplastic, rapidly growing, and frequently metastatic.
BORDERS: The clean inked caudal margin measures 1 cm, the clean inked
proximal margin measures 2 dm.
PATHOLOGIST: '
JaniceK'l^cey.DVM.MS.DACVP. ...
1-877-809-7188 ext. 233 (available Tues-Sat)

clinical impression or requires further clarification.
^
'.'>''-
Please contact me if this interpretation is inconsistent with your
*S*4K>-i -*{i,'V M
Page 2
FINAL
12/01/2010 09:20 AM
0000210
Deposition of Darrell L. Ferris, D^B

1 common test for us to do.
/- \ ' Uy-V
36
It's also a very expensive test.
2
3 cost?
What do you mean by expensive?
What is the
4 5 6 7
8
A Q
It's in the realm of 150 to $200 right now. When you examine a new client at your .clinic do you talk to them about what
who brings in a cat,
vaccines you will be injecting and what they're for?

A Yes.
9 10
11 12 13 14
15
So, in other words, you would
is it true
you would tell a client with a cat,

this rabies, this is what it's for,
"I'm going to give them

I'm going to give them I'm going to and I'm
the panleukopenia and that's what it's for,
give them calicivirus and this is what it's for, going to give them the rhinotracheitis,
it's for"?
and this is what
16
Yes.
17
18
Q
benefits of
And do you,
those
at any time,
explain to them the
vaccines?
19
Yes.
20
21
22
And do you,
at any time,
also explain to them
what risks may occur with these vaccines?

A Yes.
23
24
And do you,
at any time,
explain to them what
signs and symptoms to look for as a possible adverse
25
reaction to these vaccines?

DepoTexas - Corpus Christi
0000211
^^
1 A We
Deposition of Darrell L. Ferris, oHB

advise them to observe their animals for
37
2 3
4
5
anything that's unusual after vaccines, whether they just act like they don't feel good, they lay around, maybe
vomit, whatever. Anything that seems abnormal in their
we need to know about.
animal after a vaccine,
6
7
8
Okay.
And a cat, do you specifically tell
them to look for any type of lump at the vaccine site that
could be a reaction to the vaccine?
9
10
A
unusual."
No, but that's part of our "anything that's

I would think that would cover any -That
11
12
would, pretty much, cover anything.

that doesn't seem right,
We tell them anything
you need to let us know.
13
14 15
What vaccines would you recommend to an adult
cat with no known vaccine history? MS. CANTU: Objection, form.
16
17 18 right?
I mean,
surely, that's happened before,
You mean if somebody brings in a brand-new
19
20
cat that they have no idea of any vaccine history on, it's
a stray they found or something?
21
22
Q
A
Right.
Somebody gave it to them?
23
24 if it's
Yeah.
ever been to
And they don't know.

the vet or --
They don't know
25
Right.
0000212
Deposition of Darrell L. Ferris, D^^V

1 A I don't know what you mean when you say
61
injections.
Injections.
I don't know.
3
year,
Like if you vaccinate annually versus three

correct?
they would receive more injections,

A Correct.
Q
increases the
Okay.
So,
do you have knowledge that that

associated sarcoma?
risk of
vaccine
MS.
A The
CANTU:
of
Objection,
vaccine
form.
in cats
incidence
reactions
10 11 12 13 14
15
16
with sarcoma supposedly is so humongous,
1 in 20 to 40,000.
I don't see how the difference in doing annual or every three year vaccine would make a difference in the long run. MS. Q GONZALEZ: Objection, nonresponsive.
In your practice,
do you test for feline
leukemia virus before you administer a feline leukemia

vaccine?
17
We
do
in
kittens.
We
do
in
feral
cats.
We
18
19
do in Humane Society cats can,
although most Humane Society
cats are already tested when we see them.
20 21 22
Q history? A
Do you in adult cats with no known vaccine
Again,
it depends upon the health of the cat
23
24
25
and the history of the cat and where it came from; feral
cats,
It's
stray cat,
somebody gave it to them from a neighbor.
0000213
Deposition of David Shaffer, D'^H

1
A
10
yes, or
If a cat is in for .annual vaccines,

now.
tri-annual
And you don't recall the name of the vaccine
you use?
A No.
Do you recall the name of the FVRCP vaccine
that you use?

A No.
Q
recall. Do
Do you -- I may have asked you this.
I can't
10
you know the name of the leukemia vaccine you
11
use?
12
No.
sure
don't.
13
And at Forest Creek,
is it practice that the
14
veterinarians discuss with their clients like what types of
15
vaccines they recommend for their felines and what possible

risks or benefits they have,
A
16
what they're for?
17
Yes, So,
it is. they would tell the client, "This is the
18
19
rabies vaccine,
this is what it's for,
these are certain
20
things that could happen,
adverse events that could
21
happen"?
A
22
Yes.
23
Q
leukemia?
Okay.
And the same with the FVRCP and the
24
25
0000214
Deposition of David Shaffer, DVj^

1 Q Okay. What type of adverse events do they
11
2
3 4
warn could happen with these particular vaccines?

A swelling, Mostly more acute events, fevers, lethargy, vomiting. acute local
5
6
7
Okay.
Regarding the leukemia vaccine,
are
you familiar that that vaccine has been linked to the

formation of vaccine associated sarcoma?
That
9 10
11
MS. CANTU: A
Q
Objection,
form.
Go ahead.
That specific vaccine?

Yeah. Just the leukemia.
12
13
A
exact one,
Not that that specific vaccine has,
that
but that some vaccines in some cats have.
14
Could you restate your answer?
15 16 17
18
In terms of a specific vaccine manufactured I do not have knowledge that that
by a specific company,
particular specific vaccine causes vaccine sarcoma.

Q So you haven't heard or read studies that the
19
20
leukemia might be more likely to cause it than any other

type of vaccine?
21 22
23
MS. CANTU: A
a whole,
Objection,
form. Vaccines as
Specifically that vaccine in --
I have read studies that feline leukemia vaccine
24
may be more associated with vaccine sarcomas.
25
After --
Well,
any
Since you've worked a
n n O0 9 1 S
Deposition of David Shaffer, DV^^
13
1 2 3 4 5
6
Q leukemia God,
What is your knowledge of the feline or what is your knowledge regarding oh, my
I can't think of the word -- regarding natural
immunity in adult cats regards to the leukemia virus? MS.

A I'm not a
CANTU:
Objection,
form.
research oriented veterinarian.
7
8 9 10 11
There' are published articles describing the possibility of

an increased amount of protection actually derived in older cats to felineleukemia; however, the certainty of why it's
there is not totally understood. Q Would you agree that that's well known in the
12
13 14 15 16 17
18
veterinary community, that adult cats basically have

natural immunity to the feline leukemia virus? MS. CANTU: A Objection, form. Go ahead.
I think there would be agreement that some
do, but far from 100 percent. Q

member of?
What professional organizations are you a
19
The AVMA and the
PVMA and the
American Animal
20
Hospital Association.
21 22
23
And do you test a cat for feline leukemia
prior to administering the feline leukemia vaccine?

A Typically, I do.
24 25
Can you explain then why you did not test
Kitty Kat for feline leukemia prior to administering the
DepoTexas -Corpus Christi
000021^
Deposition of Alan Garett, DVP/^
40
The thimerosal is a -- they're just
2 3 4
5
preservatives and antibacterial, antifungals. see -here. That is in Spanish.
I don't
I don't see the adjuvant on
I can't answer this question by reading this label.

Do you want this back?
I apologize.
6 7
8
Yes.
So, when a new client comes to your Can you just
office with a cat, what is your procedures?

kind, of walk through that?
9 10
11
A Q
A
On a stray cat or when they purchase -Okay. Let's just say -a difference.
It does make
12
13
Q
A
-- an eight year adult cat -Okay.
14
15
-- that the owner has had for five years, but
there's no known history of any vet visits.
16
17 cat
A
indoors
Okay.
Can I ask you more specific?
Is the
or outdoors?
18
Both.
19
Okay.
So, you know,
Mrs.
Jones comes to me,
20 21
"I've had this cat for five years,
Dr. Garett, and we think
he's about eight years of age, he's inside, outside, never
22
23
been vaccinated." Is that the scope of the question?

Q Yes.
24 25
Okay.
Good.
I would tell that client I would chastise her in a
that -- I would say, "Well" --
0000217
Deposition of Alan Garett, DVI\^^
41
1 2
nice way for waiting so long to come in. rude about it. I'd say,
I wouldn't be
"You are playing Russian roulette
3
4
by letting your cat go outside where the exposure rate for

this community is high for strays," and I'd say, "Has your
5
6 7 8 9
cat been healthy or sickly?"

a healthy cat,
If she says,
"Well,
it's been
never
never been sick a day in his life, hangs on the front porch,
been in a cat fight,
goes to the
backyard," all those wonderful things, know, of course, by law,
I would say -- you As far
you have to do the rabies.
10
11 12 13 14
15
as the distemper/leukemia, the five way vaccination that I

showed you, that, that you have the label of, I would tell her
theoretically,
every cat should be tested before And I would say, "If your cat had in good
vaccinating;
however
been a sickly cat,

conscience,
I could not
I would not,
like to vaccinate."
If she insisted that I do,
16 17
18 19
I probably would, but I think it would not be the proper thing to do. I would tell her about the testing once again
I hate to say this: A lot
and let her make the decision.
of it comes down to money for people.
20
21
And would you explain what the panleukopenia,

calicivirus -- would you mention those
rhinotracheitis,
22
23 24 25
names and explain -A Q A Oh, yeah, yeah, yeah, absolutely.
what they are?
We tell them that the vaccination we give
DepoTexas -Corpus Christi
Q00021S
Deposition of Alan Garett, DWi^k
42
1
2
here basically has feline distemper, and I'll say, "It's

very similar to parvo in dogs," and then the other one is a
3
4
respiratory.
Of course, leukemia is like an analogy to

It suppresses the immune system. I
human aids, you know.
5
6
7
don't go into a lot of detail, but what I just told you

took 15 seconds, and that's, basically, what I tell them.
Q Okay.
8
9
If they have more specific questions, I try
my best to be as accurate as I can.
10
11
MS. CANTU:
We've been going about two
hours and I need to call my office.
12
13 a break.
MS. GONZALEZ:
Sure.
No problem.
Take
14
(A BRIEF RECESS WAS TAKEN.)
15
16
(By Ms. Gonzalez)
Now, after you explain,
you know, the names of them, what they're for, and all
17
18
19
that, do you explain any of the risks that could happen

with these vaccines and what they should be aware of?
A The only one I mention is -- I will tell the
20
21 22 23
24
25
client that as adult vaccinations, sometimes, the patient

or the cat might be a little bit sore or achy, just like when a child gets immunized, and they may feel a bit ornery. You tell them to give -- you know, here is where
we give the shot, you know, it may be sensitive there, and

that is basically it.
0000219
TEXAS BOARD OFW
^^
VETERINARY MEDICAL EXAMINERS
April 12, 2012
Jena Gonzalez 3717 Aransas St.
Corpus Christi, TX 78411

RE: Case No. 12-211 David G. Shaffer. D.V.M.
Dear Ms. Gonzalez:
processed according to the requirements of Rule 575.281 [Copy attached].

informed of the reviewing veterinarian's determination.
Please be advised that we have received your request for an appeal. The appeal is being
After the review of the appeal by aveterinarian member of the board is completed, you will be
Please do not hesitate to contact us ifyou have any questions.
Sincerely,
p*. r
Karen Phillips
Director of Enforcement
KP/kc
333GUADALUPE, SUITE 3-310-AUSTXN, TEXAS 78701-3942
Mam FAX: (512) 305-7556
TELEPHONE: (512) 305-7555
Enforcement FAX: (512) 936-0837
Email; vet.boardigtbvme slate rx us
Legal FAX- (512)305-7574
0000220
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Fiscal Year
2001
2002 2003 2008

2009
2004 2005 333

334
2006 320 46 14.4 24.0 83 82 346 343
2007
2010 537 77
Resolved Complaints
253
324 281 40
14.2
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17.7
Resolved Complaints (Closed to Board Order)

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ro co
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Active Complaints by Fiscal Year

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2004
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441
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339
124
290
364 112
476 492
350.
469 172 142
109 126 450

445
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155
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Closed - No Board Action

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263
261
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25
54 44
52
39
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84
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0
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343
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1
1
137
0 0 1
1
0 0
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3
10
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368
238
By Mail
Fiscal Year
2001 253
22 50
2002 324
2003
2004 281
40
2005 308
42
2006 333 59
2007
2008
2009
2010
334
56 14.2
320 46
346 83
343
82
537
77
Resolved Complaints Resolved Complaints (Closed to Board Order) % of Licensees Disciplined

8.7 15.4
13.6
17.7
16.8
14.4
24.0
23.9
14.3
o CD
ro
ro
CJ1
Active Complaints by Fiscal Year

2010 2011
411
Complaints Received
478 537 474
Total Complaints Resolved
Complaint Disposition Docketed Complaints (Agreed Order

108
92
Offered)
77 102
Resolved Complaints (Closed to Board Order)
Other Major Activities
Informal Conferences Held
69
45
Compliance Inspections Conducted

On Site
302 808 300
By Mail
2011
474
102
26.4
CD CD
Transcript of the Testimony of

Conversation between Alan Garett, DVM and Robert (Bob) Rogers/
Date:
March 29, 2012
Case:
Jena Gonzalez v. South Texas Veterinary Associates, Inc.
Kim Tmdail and Associates, LLC.
PY
Phone:(210) 697-3400 Fax:(210) 697-3408

Email:ktindall@ktanda.com Internet: www.KJmTindalI.com
0000227
Conversation between Alan GarettT^VM and Robert [Bob) Rogers :^^VM
March 29,
2012
Page 1
CAUSE NO.
JENA GONZALEZ
2011-CV-61850-5
IN THE COUNTY COURT
vs.
NUECES COUNTY,
TEXAS
ASSOCIATES,
INC.
AT
LAW NO.
TRANSCRIPTION
OF AUDIO
RECORDING
CONVERSATION
BETWEEN
ALAN GARETT,
DVM AND ROBERT
"BOB"
ROGERS,
DVM
JANUARY 14,
2012
Kim Tindall & Associates,
Inc. 645 LocJchill-Selma,
Suite 200
San Antonio,
Texas 78216
Phone
(210)
697-3400
Fax
(210)
697-3408
Electronically signed by Tammy Pozzi (001-241-268-3188)
e4a27b39-79d"
0Q0.0?28
Conversation between Alan Garetl
and Robert (Bob) Rogers,
March 29, 2012
Page 2
02 1
2
DR.
GARETT:
This is Dr.
Alan Garrett.
I'm about to play back for you the conversation that I
3
4 :55:19
had with Bob Rogers taken on January 14th of this year,
2012,(in Orlando, FloridaNat 9:48 a.m.

U-uriintellXgible) .
Please listen.
5
6 7
DR. GARETT:
You said something earlier
DR. ROGERS:
I really want to talk to you.
Let's get together for lunch or something,

:56:13 10
11 12 13
(unintelligible) lunch with me if they can

(unintelligible).
DR. GARRETT:
(unintelligible) your claim,
but here out here here look, Dr. Rogers, my

cat is outside. How do you counsel them you don't need
You're
14
:58:16
15
16
17
to do it every year and then they get sick?
(unintelligible) you're (unintelligible) for a lawsuit

if you tell tell them not to do it DR. ROGERS: "Well
18
19
DR. GARETT:
(unintelligible).
DR. DR. DR. DR.
cat?
and they get
:58:43
20
21 22 23 24
ROGERS GARETT ROGERS GARETT
first of all
How do you
(unintelligible).
handle that with every
59:16
25
Kim Tindall & Associates, Inc. 645 Lockhill-Selma, Suite 200
Phone (210) 697-3400

Fax (210) 697-3408

e4a27b39 79d8-4f
0000223
Conversation between Alan Gar
B^^^VM
end Robert (Bob) Rogers,
March 29,
2012
Page 3
:19 1 2 3
4
DR:
ROGERS
before we vaccinate.
DR. DR. DR. DR.
GARETT ROGERS GARETT ROGERS
Even
No.
every year?
Oh, okay.
:59:41
Okay, no.
We only vaccinate
6
7
them at 12 weeks, 16 weeks.

DR.
DR.
GARETT
ROGERS
(unintelligible).
(unintelligible).
DR.
GARETT
When they come in they
our
:00:10
10
11
theory is *
DR.
DR. DR.
ROGERS
GARETT ROGERS
You don't
know
12 13
14
(unintelligible) .
-- if that cat is going to be
an outdoor cat or not.

DR. DR. DR. DR. GARETT ROGERS GARETT ROGERS
:00:21
15
16
17
No, I
I agree, but
All right.
but'
18
19
At that time, okay?
They
come in a year later, is he an outdoor cat?

them one more shot.
We give
:00:46
20
21 22 23 24
DR. GARETT:
Okay.
DR. ROGERS:
tell them
And if he's an indoor cat, we
DR. GARETT:
Okay.
00:55
25
DR. ROGERS:
you- know, (unintelligible)
Kim Tindall Associates, Inc. 645 Lockhill-Selma, Suite 200
San Antonio,
Texas 78216
Phone
(210)
697-3400
Fax (210) 697-3408 .,;-
Electronically signed byTammy Pozzi (001-241-268-3188)
e4a27b39-79c
Q000 2 30
Conversation between Alan Gare"
:^^Pvm
March 29,
2012
Page 4
-01 1
2
3 4
immunity is about 85 percent.

DR. GARETT: Okay.
DR. ROGERS:
75 percent.
Vaccine immunity is about
:02:25
5
6 7
DR. GARETT:
and they
them?
(unintelligible) to see you
doc, he's still outside, should we vaccinate
What do you tell them?
DR. ROGERS:
I'm vaccinating outdoor cats
that get bites every three years.

:03:04 10
11 12 13
DR. GARETT
(Laughing.)
But But let me but
DR.
DR.
ROGERS
GARETT
DR.
ROGERS
Let's look at the basic
14
findings.
:03:15
15
16
17
DR. GARETT:
But what if they
(unintelligible) let's say two years go by, the cat

comes in, he's (unintelligible) a lot of bites, like
(unintelligible)
DR. ROGERS: Well, we tell them
18
19
:04:00
20
21 22
DR. GARETT:
(unintelligible)
what do you tell them
DR. ROGERS:
hundred percent accurate
DR. DR. GARETT: ROGERS:
-- that leukemia test isn't a
23 24
And that's because
04:19
25
Kim Tindall & Associates, Inc. 645 Lockhill-Selma, Suite 200 Phone (210) 697-3400 Electronically signed by Tammy Pozzi (001-241-268-3188)
San Antonio,
Texas 78216
Fax
(210)
697-3408
e4a27b39-79d8
0000231
Conversation between Alan Ga
ivm and Robert (Bob) Rogers,

March 29, 2012
Page 5
:21 1 2 3
4
DR. GARETT:
(unintelligible).
great if you
DR. ROGERS: with leukemia sequestered.
-- you can have a cat with
:04:35
5
6 7
DR. GARRETT:
(unintelligible) a lot of
poor people that can't afford to have (unintelligible),
(unintelligible) every year.

what (unintelligible)
You know, they say Doc,

only in
DR. ROGERS:
::05:08 10
11 12 13 14
In
DR. GARRETT:
DR. ROGERS:
DR. GARRETT:
You know, and people

Okay.
other
DR. ROGERS:
You know, what I'm dealing
with is the guy that comes in and says the football'game

starts in 30 minutes (unintelligible) and he doesn't
want to know anything.
DR. GARETT: Yeah.
:05:24
15
16
17
18 19
DR. ROGERS:
DR. GARETT:
Okay?
Yeah.
:05:41
20
21
22
DR. ROGERS:
DR. GARETT:
You know that.

Yeah.
DR. ROGERS:
DR. GARRETT:
So we give them a handout.

I just can't
23 24
DR. ROGERS:
DR. GARRETT:
We write it in the chart.

I I
05:54
25
Kim Tindall &Associates, Inc. 645 Lockhill-Selma, Suite 200 Phone (210) 697-3400 Electronically signed by Tammy Pozzi (001-241-268-3188)
Fax
(210)
697-3408
e4a27b39-79d8-
0000232
Conversation between Alan Gara
March 23,
2012
Page 6
.55 1
2
DR. GARETT:
DR. GARRETT:
We give them a handout.

I find it I don't know
3
4 :06:40 5 6 7
how you can do
I just find it difficult to tell
someone don't worry about it.

DR. DR. DR.
We know
ROGERS GARETT ROGERS
Okay.
You know, the cat
Look at the basic findings
DR. GARRETT:
:06:55 10
11
Okay.
DR. ROGERS:
DR. GARETT:
memory cells
But it's not a hundred
12 13
14
percent, though, that's the problem.
DR. ROGERS:
Right, right, right.
I've
seen immunities only about 75 percent.

DR. DR. DR. DR. GARETT ROGERS GARETT ROGERS
:07:11
15
16
Fair enough.
Okay. Okay.
17
18
But memory cells, if they are
19
stimulated, they live the life of the cat. DR. GARETT: Okay.
:07:19
20
21 22
DR. ROGERS:
(unintelligible) years.
So
any vaccine that they get at two- or three-year duration

of immunity is good for life.
23
2A
DR. GARETT:
DR. ROGERS:
You really see

Okay?
08:16
25
San Antonio,
Texas 78216
Phone (210)
697-3400
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Conversation between Alan Gare
^^^VH
March 29, 2012
Page 7
:17 1 2
3 4
:08:24
DR.
GARETT:
that?
DR. ROGERS:
Yeah,' I do.
I've been
telling my clients this since
DR. GARETT:
You've been saying that cats
6
7
DR. ROGERS:
one vaccine break.
1993,
and I haven't had
DR. GARETT:
You're saying that
if
that
:09:05 10
11 12 13 14
what you said is true
I'm not going to argue
with you.
If that is true, then what you're saying,
that three years from now my cat that was vaccinated
that (unintelligible) up getting a (unintelligible) every six months, it's not going to (unintelligible)
leukemia?
:09:36
15
16 17
DR. ROGERS:
No, I'm not saying that.
If
he gets real immuno-suppressed or

it happen before.
DR. GARETT: I I
but I haven't seen
18
19
DR.
ROGERS:
haven't
:10:31
20 21
22
DR.
GARETT:
had a
I had a
(unintelligible) a senile
a (unintelligible) sarcoma
situation.
You know, I've been doing this for 32 years.
23 24
I still haven't had one happen to (unintelligible) cat.

DR. ROGERS:
had four
Okay.
You're lucky.
11:11
25
. -YYir^-iriiiifiihM jf-mwrr,./ iû\ iiyy1: -/ -tx
Kim Tindall Associates,. Inc. 645 Lockhill-Selma, Suite 200
San Antonio,
Texas 78216
Phone
(210)
697-3400
Fax
(210)
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e4a27b39-79c
opoo n 4
J^^DVM
March 29,
2012
Page 8
:12
1 2 3
4
DR. GARETT:
thinking, okay
I truly haven't, so I'm
'
DR. ROGERS:
I had four before I
(unintelligible).
:11:31
DR. GARETT:
Is
is the once in every
6
7
10,000 or one in 35,000 really worth telling a client

don't worry about something?
DR. ROGERS: DR. GARETT: Okay; And that's the whole critical
:11:56
10
11 12
choice,
okay? DR. ROGERS: Okay.
DR. GARETT:
I have a hard time telling
13 14
clients don't worry about something when
(unintelligible) sarcoma, which probably doesn't occur

but it's so rare
:12:20
15
16
17
DR. ROGERS:
(unintelligible).
DR. GARETT:
(unintelligible).
I guess
18 19
all you think it's unconstitutional, but

DR. ROGERS: I I give
:12:33
20
21 22 23 24
that?
DR. GARRETT:
(unintelligible) deal with
DR. ROGERS:
It should be the client's
choice, okay?
Under if if -- we're going back to
court, okay, she's going to have to get a lawyer because

lack of a lawyer she got --
12:42
25
San Antonio,
Texas 78216
Phone (210)
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Conversation between Man Gare
March 29,
2012
Page 9
.45
DR.
GARRETT:
DR.
ROGERS:
blindsided.
She was
like
a deer in the headlights.

DR. GARETT
know;
:14:02
DR.
DR.
ROGERS
GARETT
Okay.
So but
DR.
court
ROGERS
If
if we go back to
DR. GARETT:
14:16 10
11
(unintelligible). and instead of going after
DR. ROGERS:
malpractice, we go after negligent misrepresentation DR. GARRETT: Right. I mean
12
13 1.4
DR. ROGERS:
DR. GARRETT:
okay?
Now, who do you

The
Who do you blame?
14:40
15 16
17 18
veterinarian or
or the ; or the industry? I blame the. industry. I
DR. ROGERS:
don't blame the vet.
DR.
GARETT:
Sure.
Yeah,, I agree.
19 15:20 20 21 22 23 24 15:48" 25
DR. ROGERS:
I've seen five-year
five-year (unintelligible) buys dinner for all the best in town and have this joker give a get up there --
and actually his field of expertise was mad
(unintelligible) cow.
DR. GARRETT: DR. ROGERS: Okay. And he gave a seminar on
Inc. 645 Lockhill-Selma,
Suite 200
San Antonio,
Texas 78216
Phone
(210)
697-3400
Fax
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March 29,
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Page 10
51
1 2 3 4
vaccines, and the most recent study he showed was 1987,

okay?
DR. GARETT: Okay.
DR. ROGERS:
He intentionally left out all And he concluded
:16:01
5 6 7
the important and more recent studies.
we should vaccinate every dog for every disease known to

man every year, okay?
misrepresentation.
But I don't blame the vets in the room.
That is negligent
:16:26
10
11
12
They thought,
okay, we've heard it all

DR. GARETT
So why sue the vet?

Huh?
DR. DR. to sue a vet --
ROGERS GARETT
13
14
Then why would anybody want
:17:01
15
16 17 18 19'
DR.
ROGERS:
Well
DR. GARETT:
if they (unintelligible)
came to a seminar today (unintelligible) what is

(unintelligible) the first time that
DR. ROGERS: I mean, I don't
:17:17
20
21 22
DR. GARETT:
they're telling is true.
DR. ROGERS:
They're assuming that what
Yes,
we are.
23 24
DR. GARETT:
get my own personal study.
DR. ROGERS:
I'm not going to go out and
17:33
25
Well
San Antonio,
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Phone
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March 29,
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Page 11
:34
DR.
GARETT:
How can I?
How can anybody?
DR. ROGERS: DR. GARRETT:

DR.
:18:03
(unintelligible) nice that Yeah, but (unintelligible).

I took statistics before
studied
ROGERS:
and I
went to vet
school
DR.
GARETT:
And
and I
took the same
thing.
DR. ROGERS
(unintelligible). (unintelligible). (unintelligible) get in
DR.
GARETT ROGERS
:18:30
10
11
DR.
(unintelligible)
(unintelligible) number two
12
13 14
DR. GARETT:
DR.
ROGERS:
Yes.
::18:40
15 16
17
DR. GARRETT:
DR. DR. ROGERS GARETT
Okay.
Let me give you an example.

Okay.
18
19
insulin for
DR! ROGERS
cats.
DR. GARETT
They say glargine is a great
1:18:59
20
21
22
Okay.
DR. DR.
ROGERS GARETT
Look at the study.

Okay.
23
24 1:19:11 25
DR.
ROGERS
They had 25 cats.
They
selected cat that were of normal body weight, okay? Some of them, the diabetes was induced by giving them
Inc. 645 Lockhill-Selma, Suite 200
San Antonio,
Texas 78216
Phone
(210)
697-3400
Fax
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697-3408
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Conversation between Alan Ga
iVM and Robert (Bob) Rogers,
March 29,
2012
Page 12
:18
1 2
Depo-Medrol.
So naturally, when the Depo-Medrol wore
off
they didn't do a double-study.
They didn't have
3
4
19:49
25 cats on MTH insulin.
They just had them on glargine,
and they fed them all two-percent carbohydrate diet.

DR. GARETT: DR. GARRETT: Okay. They concluded that the
5 6
7
glargine made them go into remission.

two-percent carbohydrate diet.
Maybe it was the
DR. GARETT:
:20:05 10
11
12 13 14
Okay. Or maybe it was the fact that
DR. ROGERS:
the Depo-Medrol wore off.
But that study
I talked to
a guy at Cornell, and he said they took that study to
four universities who refused to do it until they

finally found one university that said, Okay, we'll do
the study. Because it's bogus. DR. GARETT: (unintelligible) think
:20:23
15
16
17
(unintelligible) by a speaker.
But they're in a room of
18 19
smart people listening to somebody speak.
I'm going to
go home and Google and check out if (unintelligible)

DR. ROGERS: (unintelligible) take them to
:22:31
20
21
22
a veterinarian from Germany.

analytical.
Those guys are so
23
24
DR. GARETT:
DR. ROGERS: they -- they can set up
Okay.
Yeah.
Fair enough.
They he can -
25:02
25
San Antonio,
Texas 78216
Phone
(210)
697-3400
Fax
(210)
697-3408
Electronicallysigned by Tammy Pozzi (001-241-268-3188)
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0000239
Conversation between Alan Garetl
and Robert
(Bob)
Rogers,
March 29,
2012
Page 13
.10
DR. GARRETT: go home and

told me was the
But
but I'm not going to
and Google and

truth.
and make sure what he
DR. ROGERS:
:25:59
I know, but I'll give you
a
reps.
a better piece of advice.

They don't know shit.
DR. GARRETT:
Don't talk to any drug

They're brainwashed.
Drug reps are brainwashed?
DR.
ROGERS:
Yeah.
:26:24
10 11
12 admit that.
DR.
GARETT:
I'll
I'm the first to
DR.
ROGERS:
It's
sad.
13
14
DR. GARRETT:
(unintelligible) by
DR. ROGERS:
DR. GARRETT:
They know what's being
:26:41
15 16
17 18
Okay.
PHA Research
DR.
ROGERS:
What about
what about a
teacher whose expertise is mastitis and he's paid by

Pfizer to come give you a seminar on vaccines?
DR. GARRETT: I don't I can't
19 :27:06 20
21
DR. ROGERS:
DR. GARETT:
Why
And I
why even go?

see they're
22 23
24
not
when I get an invitation to an
a seminar,
I don't check (unintelligible) is qualified.

DR. ROGERS: Yeah.
27:27
25
San Antonio,
Texas 78216
Phone
(210)
697-3400
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and Robert (Sob)
Rogers,
March 29,
2012
Page 14
:28
1 2
DR. again.
GARRETT:
And I
just assume i t
So whether i t be
you know
3
4
DR.
DR.
ROGERS:
GARRETT:
Okay.
and and you're and
:27:36
5 6
7
you're guilty of that also, Bob.

DR. ROGERS: I know Dr. Le I am.
We're all guilty of that.

DR. GARRETT: Yeah.
DR.
:28:28 10
11 12 13 14
ROGERS:
I take you to get a free
dinner,
and it goes in one ear and out the other.

DR. DR. GARETT ROGERS
You're (unintelligible).
I heard Dr. I heard
Dr. Levy come down,

DR.
DR.
okay?
GARETT
ROGERS
Okay. He discovered lyme in Okay.

in the --
:28:48
15 16
17 18 19
DR. DR.
GARETT ROGERS
DR. DR. DR. DR.
GARETT ROGERS GARETT ROGERS
Okay.
United States.
::28:54
20
21
22
Okay.
He came down paid by the

and he
Harris County Veterinary Medical Association,
23 24
said there will never be lyme disease in Texas because you have to have snow on the ground.
::29:12
25
DR. GARETT:
(unintelligible) diagnosis.
Jl
Kim Tindall & Associates, Inc. 645 Lockhill-Selma, Suite 200 San Antonio, Texas 78216
Phone
(210)
697-3400
Fax
(210)
697-3408
e4a27b39-79dfr
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Conversation between Alan Car
and Rebext (Bob) Rogers,
March 29,
2012
Page 15
:13 1
2 3 4
:29:30
DR. ROGERS:
Okay?
And then he came down
paid by the manufacturer of the vaccine for
(unintelligible).
And he said, Okay, you better start
vaccinating for lyme before it gets (unintelligible).

And I raised my hand, and I said, You said something about tick biology and it will never be here.
5
6 7
And he started to regurgitate that, and the drug rep

came up and told me shut up.
DR. GARRETT:
:30:04 10
11
12
(unintelligible) about
just I because you
you (unintelligible) said
that (unintelligible).
So many questions, so many
(unintelligible) variables that
13
14
DR. ROGERS:
catch.
Well, I have a flight to

You're
I have a presentation on the Internet.
31:09
15
16 17 18 19
welcome to go look at it.
It will take you two hours,
but you get two hours of CE for looking at it.DR. GARETT: Cool. Thank you.
DR. ROGERS:
lunch.
(unintelligible) pay for
31:45
20
21
22
DR. GARETT:
Okay.
I'll (unintelligible).
(End of recording.)
*_*_*_*_*
23 24 25
San Antonio,
Texas 78216
Phone (210) 697-3400 Electronically signed by Tammy Pozzi (001-241-268-3188)
Fax
(210)
.
697-3.408
e4a27b39-79d8
0000242
Conversation between Alan Gars
l/M and Robert (Bob) Rogers,
March 29,
2012
Page 16
:27
STATE OF TEXAS COUNTY OF BEXAR
.) )
I, Tammy Pozzi,
22:41
Certified Shorthand Reporter,
certify that the foregoing is a correct transcription, to the best of my hearing and ability, from the audio
recording of the proceeding in the above-entitled

matter.
I further certify that I am neither counsel for,

:22:41
10
11 12
related to, nor employed by any of the parties to the
action in which this hearing was taken, and further that

I am not financially or otherwise interested in the
outcome of the action.
13
14
:22:41
I further certify that the transcription fee of
15
16
was paid/will be paid in full by
17
18 19
:22:41
Certified to- by me on this
^Ci
day of
(Vu^vcK
3pifr
20 21 22
QjQjWflA
TAMMY POZZI,
Texas CSR 56!
Expiration: 12/31/12 Kim'Tindall & Associates,

Firm No. 631
LLC
23
24
25
==^^ Kim Tindall & Associates, Inc. 645 Lockhill-Selma, Suite 200 San Antonio, Texas 78216
Phone
(210)
697-3400
Fax
(210)
697-3408
e4a27b39-79d8
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Conversation between Alan Garett, DVM
lobext (Bob) Rogers,
March 29,
2012
Page 17
6:6,19 7:11,23 ability 16:6

above-entitled 16:7
accurate 4:23
11:24
dinner9:20 14:10
discovered 14:15 disease 10:6 14:23
E ear 14:10
catch 15:14
action 16:11,13
admit 13:11 advice 13:5 afford 5:6
cats 4:8 7:4 11:19 11:23 12:3 CAUSE 1:2 CE15:16
earlier 2:7
doc4:6 5:7
agree3:15 9:18
Alan 1:12 2:1
cells 6:10,18 Certified 16:4,17 certify 16:5,9,14

chart 5:24
analytical 12:22 anybody 10:13

11:1
check 12:19 13:24
choice 8:10,23
claim 2:12
argue 7:9
Associates 1:5
16:22 Association 14:22 assume 14:1
client 8:6 clients 7:3 8:13 client's 8:22
come3:9,19 13:19
14:13
assuming 10:20
audio 1:9 16:6
a.m2:4 B
comes4:17 5:14 concluded 10:5 12:6

conversation 1:11 2:2
back2:2 8:23 9:7 basic4:13 6:7 best 9:20 16:6 better 13:5 15:3 BEXAR 16:2
Cool 15:17
Cornell 12:12
correct 16:5
counsel2:14 16:9
biology 15:6 bites 4:9,17 blame9:14,16,17

10:9
County 1:3,4 14:22

16:2 court 1:3 8:24 9:8 cow 9:23 critical 8:9
dog 10:6 doing 7:22 double-study 12:2 Dr2:l,1,7,8,12,13 2:18,19,21,22,23 2:24 3:1,2,3,4,5,7 3:8,9,11,12,13,15 3:16,17,18,21,22 3:24,25 4:2,3,5,8 4:10,11,12,13,15 4:19,20,22,24,25 5:1,3,5,9,10,11,12 5:13,17,18,19,20 5:21,22,23,24,25 6:1,2,5,6,7,9,10 6:11,13,15,16,17 6:18,20,21,24,25 7:1,2,4,6,8,15,18 7:19,20,24 8:1,3,5 8:8,9,11,12,16,17 8:19,20,22 9:1,2,4 9:5,6,7,9,10,12,13 9:14,16,18,19,24 9:25 10:3,4,11,12 10:13,15,16,19,20 10:22,23,25 11:1 11:2,3,4,6,8,9,10 11:12,14,15,16,17
11:18,20,21,22,23 12:5,6,9,10,16,20 12:23,24 13:1,4,7 13:9,10,12,13,15 13:16,17,20,21,22 13:25 14:1,3,4,6,6 14:8,9,11,12,12 14:13,14,15,16,17
employed 16:10 example 11:16 expertise 9:22

13:18
Expiration 16:21
11:6,9,12,17,20 11:22 12:5,9,16 12:23 13:10,22 14:11,14,16,18,20 14:25 15:17,20 Garrett 2:1,12 5:5 5:10,12,23,25 6:2 6:9 8:20 9:1,12,14 9:24 11:3,15 12:6 13:1,7,13,16,20
14:1,4,8 15:9
fact 12:10
Fair 6:15 12:23

fed 12:4
Germany 12:21 getting 7:12

give3:19 5:22 6:1
8:19 9:21 11:16
fee 16:14 field 9:22
finally 12:14 financially 16:12 find 6:2,3 findings 4:14 6:7

Firm 16:22
13:4,19 giving 11:25 glargine 11:18 12:3

12:7
first2:21 10:18
13:10
go4:16 9:7,11 10:23 12:7,19

13:2,21 15:15 goes 14:10
five-year 9:19,20 flight 15:13

Florida 2:4 football 5:14
going3:13 7:9,13
8:23,24 9:10
10:23 12:18 13:1
foregoing 16:5
found 12:14
GONZALEZ 1:3
four 7:25 8:3 12:13 free 14:9 full 16:15
further 16:9,11,14
good 6:23 Google 12:19 13:2 great5:l 11:18 ground 14:24 guess 8:17
guilty 14:5,7 guy5:14 12:12 guys 12:21
H
blindsided 9:2
Bob 1:12 2:3 14:5
CSR 16:20,21
D
body 11:24
game 5:14
GARETT 1:12 2:1
bogus 12:15
brainwashed 13:6
13:7 break 7:7
day 16:17
deal 8:20
dealing 5:13
deer 9:3
buys 9:20
Depo-Medrol 12:1
12:1,11
carbohydrate 12:4
12:8
14:18,19,20,21,25 15:1,9,13,17,18
15:20
diabetes 11:25
diagnosis 14:25
diet 12:4,8
difficult 6:3
cat2:14,25 3:13,14 3:19,22 4:16 5:3
drug 13:5,7 15:7

duration 6:22
DVM 1:12,12
2:7,19,22,24 3:2,4 3:7,9,12,15,17,21 3:24 4:2,5,10,12 4:15,20,24 5:1,17 5:19,216:1,6,11 6:15,17,20,24 7:1 7:4,8,18,20 8:1,5 8:9,12,17 9:4,6,9 9:18 10:3,11,13 10:16,20,23 11:1
hand 15:5 handle 2:24
handout 5:22 6:1
happen 7:17,23
hard 8:12 Harris 14:22
headlights 9:3
heard 10:10 14:12
14:12
Kim Tindall & Associates, Inc. 645 Lockhill-Selma, Suite 200 Phone (210) 697-3400
San Antonio,
Texas 78216
Fax
(210)
697-3408
0000244
Conversation between Alan Garett, DVM
|jbext (Bob) Rogers,
Harch 29,
2012
Page 18
hearing 16:6,11
home 12:19 13:2
life 6:19,23
listen 2:4
7:24 8:2,8,10,11 8:23,24 9:5,13,24

10:2,3,7,10 11:15 11:17,20,22,24
recording 1:9
15:21 16:7 refused 12:13
senile 7:21
hours 15:15,16
Huh 10:12
sequestered 5:4
set 12:25
listening 12:18
live 6:19 LLC 16:22 look2:13 4:13 6:7
11:21 15:15
regurgitate 15:7
related 16:10
remission 12:7
shit 13:6
hundred 4:23 6:11
12:5,9,14,23. 13:15 14:3,13,14 14:16,18,20 15:1

15:3,20
once 8:5
immunities 6:14
rep 15:7
Shorthand 16:4 shot 3:20 showed 10:1

shut 15:8
sick 2:15
looking 15:16
lot4:17 5:5
immunity 4:1,3
6:23
Reporter 16:4
reps 13:6,7
Research 13:16
lucky 7:24
lunch 2:9,10 15:19 lyme 14:15,23 15:4
M
Orlando 2:4 outcome 16:13
immuno-suppres.
7:16
situation 7:22
six7:13
right3:16 6:13,13
6:13 9:12 ROBERT 1:12
important 10:5
indoor 3:22 induced 11:25 mad 9:22
outdoor3:14,l9
4:8
smart 12:18 snow 14:24
ontside2:14 4:6
industry 9:15,16
insulin 11:19 12:3
malpractice 9:11
man 10:7
paid 13:18 14:21

15:2 16:15
intentionally 10:4
interested 16:12 Internet 15:14 invitation 13:23
manufacturer 15:2 mastitis 13:18

matter 16:8
mean 9:12 10:19

Medical 14:22
January 1:13 2.3

JENA 1:3
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K
misrepresentation
9:11 10:8
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Kim 16:22
MTH 12:3
N
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need 2:14
negligent 9:11 10:7

neither 16:9
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never 14:23 15:6 nice 11:2

normal 11:24
poor 5:6 Pozzi 16:4,20 presentation 15:14 probably 8:14 problem 6:12 proceeding 16:7 L qualified 13:24 questions 15:11
R raised 15:5
Rogers 1:12 2:3,8 2:13,18,21,23 3:1 3:3,5,8,11,13,16 3:18,22,25 4:3,8 4:11,13,19,22,25 5:3,9,11,13,18,20 5:22,24 6:5,7,10 6:13,16,18,21,25 7:2,6,15,19,24 8:3 8:8,11,16,19,22 9:2,5,7,10,13,16 9:19,25 10:4,12 10:15,19,22,25 11:2,4,8,10,14,16 11:18,21,23 12:10 12:20,24 13:4,9 13:12,15,17,21,25 14:3,6,9,12,15,17 14:19,21 15:1,13
15:18 room 10:9 12:17
somebody 12:18
SOUTH 1:5
speak 12:18 speaker 12:17

start 15:3
started 15:7
starts 5:15
STATE 16:1 States 14:19 statistics 11:4 stimulated 6:19 studied 11:5 studies 10:5
study 10:1,24 11:21 12:11,12,15

suel0:ll,14
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take 12:20 14:9

15:15
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NUECES 1:4
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TCRR 16:20 teacher 13:18
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7:14
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seen6:14 7:16 9:19 selected 11:24 seminar 9:25 10:17
telling7:3 8:6,1210:21 test 4:22
13:19,23
Texas 1:4,5 14:23
Kim Tindall & Associates, Inc. 645 Lockhill-Selma, Suite 200 Phone (210) 697-3400
San Antonio,
Texas
78216
Fax
(210)
697-3408
0000245
Conversation between Alan Garett,
DVM
bbert (Bob) Rogers,
March 29,
2012
Page 19
16:1,21
Thankl5:17
V
12 3:6
vaccinate 3:1,5 4:6

10:6
12/31/1216:21
141:13
theory3:10 thing 11:7

think8:18 12:16
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14th 2:3 163:6 198710:1
vaccinating 4:8
15:4 vaccine 4:3 6:22 7:715:2
thinking 8:2 thought 10:10

three 4:9 7:11
1993 7:6
three-year 6:22
tick 15:6 time3:18 8:12
10:18 Tindall 16:22
vaccines 10:1 13:19

variables 15:12
2011-CV-61850-5
1:2
vet9:17 10:11,14
11:5
20121:13 2:4 2511:23 12:3
veterinarian 9:15 12:21
today 10:17
told 13:3 15:8
Veterinary 1:5
14:22
town 9:21
305:15
32 7:22
transcription 1:9
16:5,14 true 7:9,10 10:21 truly 8:1
truth 13:3
vets 10:9 vsl:4 W want2:8 5:16

10:13
35,000 8:6
51:5 562916:21
two4:166:22 11:12
15:15,16
two-percent 12:4,8
U unconstitutional
weeks 3:6,6 weight 11:24

welcome 15:15 went 11:5
63116:22
we'll 12:14 we're 8:23 14:7 we've 10:10
75 4:4 6:14
8:18
unintelligible 2:5
2:10,11,12,16,16 2:20,23 3:7,8,12 3:25 4:5,16,17,18 4:21 5:2,5,6,7,8 5:15 6:21 7:12,12 7:13,21,21,23 8:4 8:14,16,17,20 9:9 9:20,23 10:16,17 10:18 11:2,3,8,9 11:10,11,12 12:16 12:17,19,20 13:14 13:24 14:11,25 15:3,4,9,10,11,12 15:18,20
United 14:19 universities 12:13
wore 12:1,11 worry6:4 8:7,13

worth 8:6
write 5:24
854:1
9:482:4
Yeah5:17,19,21
7:2 9:18 11:3
12:24 13:9,25
14:8
year2:3,15 3:2,19
5:7 10:7
years4:9,16 6:21
7:11,22
university 12:14
10,000 8:6
Inc. 645 Lockhill-Selma,
Suite 200
San Antonio,
Texas 78216
Phone
(210)
697-3400
Fax
(210)
697-3408
0000246
RE: Jena Gonzalez vs. South^xas Veterinary Associates, Inc.; Our F^lo. 100-506
Page 1of3
RE: Jena Gonzalez vs. South Texas Veterinary Associates

Inc.; Our File No. 100-506
From:
To:
Jena Gonzalez <gil4584@peoplepc.com>

Valerie Cantu
Subject:
Date: Attachments:
RE: Jena Gonzalez vs. South Texas Veterinary Associates, Inc.; Our File No. 100-506
Nov 7, 2011 9:49 AM Signed Final Agreed Docket.pdf
Good Morning Ms. Cantu,
Ihave attached and signed the Final Agreed Docket Control Order. Please file the Order with the court.
Veterinary Associates and Dr. Barrel Ferris until Iquestioned why he was making aregular appearance. Iam in
receipt of the Notice OfAppearance Of Counsel For Defendant.
I do recall Mr. Hilliard being lead counsel for the defendant in the small claims trial and at the dismissal hearing but itwas never documented nor brought to my attention that he was representing South Texas
a.m. - 4:30 p.m. unless the conferance has been scheduled in advance. You are always welcome to leave me a voice mail but Imay to always be available to respond immediately. As always you may email me and Iwill
respond as soon as possible. Thank You,
Jena Gonzalez Pro Se Plaintiff
Regarding telephone consultations, Iam not available to discuss matters via telephone during the hours of8-oo
Original Message
From: Valerie Cantu
Sent: Nov 4, 2011 9:44 AM

To: Jena Gilliam
Cc: bobh@hmglawfirm.com
Subject: RE: Jena Gonzalez vs. South Texas Veterinary Associates, Inc.; Our File No. 100-506
Dear Ms. Gonzalez:
timely file the Order with the court.
requested changes. Attached is the revised Order, which has been signed by me as one of the lead counsel tor Defendant South Texas Veterinary Associates, Inc. Please countersign the Agreed Order and return your executed signature to me by no later than 2:00 p.m. on Monday, November 7 2011 so that I mav
' J
As Iadvised in my most recent telephone call to you earlier today, we agree to the revisions requested by you to the draft Agreed Docket Control. Order. Accordingly, we have revised the Order to include your
Regarding your inquiry as to Mr. Hilliard, so that we are all on the same page, Ihave included Mr Hilliard as acc: to this e-mail. You may recall that Mr. Hilliard was co-counsel for our client at the small claims trial, as well as personal counsel for both South Texas Veterinary Associates, Inc. and Dr Darrel Ferns. He continues to be co-counsel and personal counsel for our client in this county court matter Attached is acopy of the Notice ofAppearance of Counsel of Defendant, which we filed with the court today (By certified mail, return receipt requested, you shall receive aseparate copy ofthe Notice as accto our November 4, 2011 letter to the Nueces County Court Clerk).
Very truly yours,
http://webman.peoplepc.corrVwam/Drintable.isD?msgid=201 <fex=l 4QS1 AiQin
0000247 /i/umn
RE: Jena Gonzalez vs. Sou
.thjfxas Veterinary Associates, .Inc.; Our f^ô. 100-506
Page 2of3
Valerie L. Cantu
Attorney at Law 0'ConnelI& Avery LLP 13750 San Pedro, Suite 110 San Antonio,-Texas 78232 Telephone: (210)824-0009
Telecopier: (210)824-9429
This e-mail message is aprivileged and confidential communication and is transmitted for the exclusive information and use of the addressee. If the reader ofthis e-mail message is not the intended recipient or a representative ofthe intended recipient, please do not read, copy, or retransmit this e-mail messaae and destroy it immediately. You are hereby notified that any review, dissemination, or copying of thfs e-mail
message or any of the information contained within it is prohibited.
From: Jena Gilliam [mailto:gil4584@peoplepc.com]
Sent: Thursday, November 03, 201111:57 AM
To: Valerie Cantu
Subject: Re: Jena Gonzalez vs. South Texas Veterinary Associates, Inc.; Our File No. 100-506
Dear. Ms. Cantu:
counsel for the defendant. Unless a joinder of additional parties is filed Irequest that he no longer
participate as counsel for the defendant. M
Thank You,
Jena Gonzalez Pro Se Plaintiff
Attached for your review and consideration is a revised Agreed Docket Control Order. Also Iwould like to know the interest hat Mr Bob Hilliard has in this case. He is not a parry to this suit nor is he listed as
Original Message
From: Valerie Cantu
Sent: Oct 31, 2011 9:31 AM

To: gil4584(G)peoplepc.com
Subject: Jena Gonzalez vs. South Texas Veterinary Associates, Inc.; Our File No. 100-506
Dear Ms. Gonzalez:
Attached for your review and consideration is a proposed Agreed Docket Control Order based on the May 14, 2012 jury trial setting ordered by the court. Ifyou have any requested revisions to the enclosed Order, please call me at (210) 824-0009, ext. 303. Otherwise, please forward your executed signature to the Order to me by return e-mail or by facsimile transmission to my attention at (210) 824-9429, so that I may file the Order with the court. As you know Judge Chesney's Court Manager, Ms. Lillian Fanning, requested I submit an Agreed Docket Control Order to her within 10 days of the October 28, 2012 hearing, which is November 7 2011 Consequently, I ask that you please respond to this conferral correspondence by no later than Thursday, November 3, 2011, so that we may reach an agreement on the Order prior to November
7th. .'
Very truly yours,

Valerie L. Cantu
Attorney at Law
http://webmail.peoplepc.com/wani/Drintable.isr)?msend=7.01 #v=i dQ* iaiqid
0000248
A /I r/O/M n
RE: Jena Gonzalez vs. Sou
itrJjgxas Veterinary Associates, Inc.; Our fAjo. 100-506
Page 3of3
0'Connell& Avery LLP 13750 San Pedro, Suite 110

San Antonio, Texas 78232 Telephone: (210)824-0009 Telecopier: (210)824-9429
exclusive information and use ofthe addressee. Ifthe reader ofthis e-mail message is not the mtended recipient or arepresentative of the mtended recipient, please do not read, copy or retransmit this e-mail message, and destroy it immediately. You are hereby notified that any
within it is prohibited.
This e-mail message is aprivileged and confidential communication and is transmitted for the
review, dissemination, or copying ofthis e-mail message or any ofthe information contained
PeoplePC Online
A better way to Internet

http://www.peoplepc.com
PeoplePC Online
\ better way to Internet
rttp://www.peoplepc.com
0000249
http://webmail.peoplepc.com/wam/printable.isD?ms2id=2fl1&y=1 4QS1 diQin anc/nm n
<no subject>
Page 1of 1
<no subject>
From:
To: Subject:
Date:
Robert Hilliard <bobh@hmglawfirm.com>

giW584@peoplepc.com, Valerie Cantu <no subject>
Nov 3, 2011 1:21 PM
SSffm nn3n81DDD86-5F^Fa-A1R1-6F37E56F^7n pna D329E0F4-BFfiS-4FA1.Qa.R_

Valerie, 7.
Please file a Notice of Additional Counsel and have it reflect that Irepresent Dr Ferris
1U
Robert c. Hilliard
Board certified; personal injury and civil trial law

bobh(a)hmzlawfirm. com
Hiujard Munoz Gonzales i_.l.p.
719 South Shoreline Suite 500 Corpus Christi, Texas 78401

www, hmzlawfirm. com
^J
HILLIARD" MUWOZ ,'GONZALES
http://webmail.rjeooleoc.com/waTn/nrintablp. ic-n?mCmM=oci ap-^-i inînnoo
RE: Mediation
_^ ^fe
^fc ^P
D , *~ Page 1of 2
RE: Mediation
From:
To:
Valerie Cantu <valeriec@oconben.com>

Jena Gonzalez
Subject:
RE: Mediation
Date:
Apr 11,-2012 12:52 PM
Dear Ms. Gonzalez:
You are correct that Ipreviously advised you that no monies would be offered to you at mediation since our clients doctors continue to believe that they did nothing wrong in treating your cat and since the underlying insurance-policy requires the doctor's consent to settlement as aprerequisite to any settlement negotiations and offers being made and no such consent has been given by the doctors. Regarding the doctors' lack of knowledge of the court order regarding mediation, pursuant to the relevant insurance policy, the insurer controls and direcS the defense and therefore, the order of referral to mediation was sent to the insurer's attention for handling-
your decision to forego mediation and will advise Mr. Hilliard, the Defendant, and the insurer accordingly. In
addition, pursuant to your below request, Iwill ask the Dispute Resolution Center to cancel the Anril 20th
mediation. F
Hilliard instructed me to file acounterclaim and summary judgment motion against you, as he and the Defendant feel that your continued pursuit ofyour claims is groundless and harassing to the Defendant andits doctors The doctors are willing to mediate this matter to enable you achance to try to resolve the counterclaim but Irespect
wrongdoing by Dr. Shaffer and given the evidence that came to light during the deposition of Dr Rogers" Mr
come to mediation with an expectation ofmoney being offered to you. Given the Board's recent findina ofno
however, since the doctors do not consent to settlement, the insurer cannot offer any money to you at mediation The insurer asked me to let you know this fact up front before any mediation took place, so that you would not '
Best regards,
Valerie L. Cantu
Attorney at Law
0'ConnelI& Avery LLP

13750 San Pedro, Suite 110 San Antonio, Texas 78232 Telephone: (210)824-0009 Telecopier: (210)824-9429
the information contained within it is prohibited.
immediately. You are hereby notified that any review, dissemination, or copying ofthis e-mail message or any of
information and use ofthe addressee. If the reader of this e-mail message is not the intended recipient or a representative of the mtended recipient, please do not read, copy, or retransmit this e-mail message, and destroy it
This e-mail message is aprivileged and confidential communication and is transmitted for the exclusive
From: Jena Gonzalez [mailto:gil4584@peoplepc.com]

Sent: Wednesday, April 11, 2012 12:10 PM
To: Valerie Cantu
Subject: Mediation
Dear Ms. Cantu,
As you are aware Iattempted to schedule court ordered mediation with you on or about the week of March 26 settlement therefore mediatjon would not be scheduled. During depositions it was discovered that Dr Ferris nor Dr. Shaffer were even aware of the mediation order. Idid not receive an objection to the mediation order. The
2012, as required by the court order. You informed me that your client was not going to agree to any monetae
nttD://webmail.oeor)lenc.corn/warn/nriritnhlp icnTrnom/îoon^jpû nmmi a
u u u ,
0000251
RE: Mediation A ~W Page 2 of 2
ffiSSt^ffirS'8 " MarCh,3' 201Z '^f CnCemed <**thiteW"9e > to the expense offêveraf t; s yme hLe fe ed^lfTouô Îf"9 ^ lo^T", agreement perhaps an offershould be LdZ^g. DsZt^^ZV^ Set"e S Ca' ~et^^^^ 2012, at 9:00 am as previous, scned^"^ ^ <^ 20,
Sincerely,
Jena Gonzalez
PeoplePC Online
A better way to Internet

http://www.peoplepc.com
http://webmail.peoplepc.com/wam/DrintabIe.isn?mstTiH=i oont;*
,ininnc\i in
O'Connell &
ATTORNEYS AND
Avery
l l p
COUNSELORS.
~"\
I37SO- SAN PEDRO, SUITE IIO
San Antonio, Texas 7B232

Telephone IE I O)'8 2 4 - 0 0 0 9
EMAIL: VALER!EC@OCONBEN,.COM '
'
..
FAC5lMi'l!.Ei2 I 'o)' S 24-B4 29
November 4, 201-1
Via Certified Mail/RKR 7010 0780 0001 6593 9035

Ms. Diana T. Barrera ...
Nueces County Cleric 901 Leopard Street, Room 201
Corpus Christi, Texas 78401 ' .
'";-;
Re:
Cause No. 201 l-CCV-61850-5; Jena Gonzalez v. South Texas Veterinary Associates,
Our File No. 100-506
*. . . Inc., inthe County Courtat Law No. 5, Nueces County, Texas
Dear Ms. Barrera:
r-._
{. ,
'
Enclosed for filing with the court is a Notice of Appearance of Counsel for Defendant
South Texas Veterinary Associates, Inc.
Also enclosed is a copy of Defendant's Notice of Appearance. Please file-stamp the , enclosed copy of this letter and return it to our firm in the enclosed self-addressed, postage-paid
envelope. . ".'-
We thank you very much for your assistance in this matter.'

Very truly yours, - :
Valerie L. Cantu
rtk
/VLC
"
Enclosures, as Stated .
cc:
(Via CM/RKR 7010 0780 0001 6593 9042, w/Ehc)

Ms. Jena Gonzalez
":";T?17 Aransas ' '
Corpus Christi, Texas 78411 .' .
0000253
Cause No. 2011-CCV-61850-5

Jena Gonzalez Plaintiff
v.
In the County Court
At Law No. 5
South Texas Veterinary
Associates, Inc.
Defendant
Nueces County, Texas
NOTICE OF APPEARANCE OF COUNSEL FOR DEFENDANT
Undersigned counsel for Defendant SOUTH TEXAS VETERINARY ASSOCIATES,

INC. ("Defendant") hereby give formal notice of appearance of Mr. Keith B. O'Connell and Ms.
Valerie L. Cantu of O'Connell & Avery Law Firm, LLP, 13750 San Pedro, Suite 110, San
Antonio, Texas 78323 (Telephone: (210) 824-0009 & Telecopier: (210) 824-9429) as lead
counsel for Defendant.
Undersigned counsel for Defendant also give formal notice of appearance of Mr. Robert
C. Hilliard of Hilliard Munoz Gonzales L.L.P. as additional counsel of record for Defendant and
as personal counsel for both Defendant and Dr. Darrel Ferris.
100-506
Page 1
0000254
Respectfully submitted:
O'CONNELL & AVERY, LLP
By:.
AmhL
Keith B. O'Connell State Bar No. 15179700 Valerie L. Cantu
State Bar No. 24012498
13750 San Pedro, Suite 110 San Antonio, Texas 78232
Telephone: (210)824-0009 Telecopier: (210)824-9429

and
HILLIARD MUNOZ GONZALES L.L.P.
By:
Robert C. Hilliard
719 S. Shoreline, Suite 500
Corpus Christi, Texas 78401 Telephone: (361)882-1612 Telecopier: (361)882.3015
ATTORNEYS FOR DEFENDANT
SOUTH TEXAS VETERINARY ASSOCIATES, INC.
100-506
Page 2
0000255
5^'s> Co
Bob Rogers DVM
5703 Louetta
Spring, Texas 77379
Jenna Gonzales vs South Texas Veterinary Associates, Inc,

Dr David Shaffer
In the County Court At Law No. 5 Nueces County, Texas

Cause No. 2011- CCV-61850-5
Curriculum Vitale
I am a 1975 graduate ofTexas A81M University College of Veterinary Medicine. I have
been in small animal practice for 36 years. I submit an attached list of Continuing
Education Credit hours to establish that I have strived to keep abreast of the latest information on vaccinations and adverse events like vaccine associated sarcomas.
The Texas State Board of Veterinary Medical Examiners relied on my testimony to draft two open letters to Texas Veterinarians on vaccinations. They approved my power point
presentation on vaccinations for two hours of CE. The Texas Public Health Department
relied on my testimony when they decided to extend the rabies vaccination interval for dogs and cats from annually to every three years.
Opening Testimony
I have reviewed the medical records of "Kitty Kat" belonging to Mrs. Jena Gonzales.
The evidence and scientific data show that Dr. Shaffer, without informing the client of the risk vs the benefit of the vaccinations administered, and without diligence and care in the selection ofthe safest and most effective vaccine, was negligent in the treatment
and vaccination of "Kitty Kat" belonging to Jenna and Arnuflo Gonzales. Dr. Shaffer did not adhere to the standard of care by failing to select the safest and most effective vaccine. Dr. Shaffer did not adhere to the standard ofcare as directed by the Texas State Board of Veterinary Medical Examiners in the lack of informed consent and in the decisions for vaccinations he gave to "Kitty Kat." Dr Shaffer's lack of informed consent
and negligence caused the death of "Kitty Kat" by subjecting this cat to the subsequent
development of a vaccine associated sarcoma.
0000256
A vaccine associated sarcoma (VAS) is a rapid growing and fatal form of cancer in cats
stemming from inflammation. Because of adverse events like Vaccine Associated
Sarcomas, between the years of 1996 and 1998 Texas A&M University and all 27
Colleges of Veterinary Medicine in the U.S. revised their vaccination protocols for small
animals.
In 1996 the Vaccine Associated Sarcoma Task Force was formed to make
recommendations for the prevention ofand treatment of VAS. (notes ACVTM 20GQ.):
Informed consent
Aclient should be offered the opportunity to decide on the risk vs the benefit of any
medical procedure and the opportunity to consent to the procedure. A reasonable Veterinarian should disclose to the client the risk of the disease being vaccinated
against along with any known risk that may result from the vaccination. When the vaccination involves the risk of inherently serious harm to the animal such as a Vaccine Associated Sarcoma it is the Veterinarian's duty to inform the client of this
potential serious complication. The Veterinarian should also inform the client as to any
steps they can take to minimize the risks as well as any alternative safer vaccine and any alternative to vaccination. The failure to provide and obtain informed consent is in
itself an act of negligence.
A. Richards, J, 2000 Report of the American Association of Feline Medicine ^ Advisory pane! on Vaccines, pg 11, liability related to vaccines. &mb& &*
B. Fiemming, Duane DVM, 3D, The potential for liability in the use and misuse of Veterinary Vaccines, Veterinary Clinics of North America, Smai! Animai
Practice, Volume31, Number 3, May 2001, B^hibii- 3U
In March 2003 in an Open Letter to Veterinarians published in the Journal of the Texas
Veterinary Medical Association as well as on the web site Board Notes the Texas State Board of Veterinary Medical Examiners directed Texas Veterinarians that the standard of
care was changing and to look to the guidelines of the American Animal Hospital
Association, the American Veterinary Medical Association, the Association of Feline
Practitioners and Texas A&M University for guidance in updating their vaccine protocols. C. Board Notes An Open Letterto Veterinarians 8; Vaccination protocols,
Texas State Board of Veterinary Medical Examiners, March 2003 gfyfoW- îf ^vx
$l$
In March 2005 The Texas State Board ofVeterinary Medical Examiners directed Texas
Veterinarians that the standard of care was changing and recommended Veterinarians
provide informed consent regarding the risk vs. the benefit of vaccinations in writing.
0000257
D. Board Notes Board Statement on Policy on Vaccination Protocols and
Informed Consent, Texas State Board of Veterinary Medical Examiners
November 2005 $)&,+ '/]
Dr. Shaffer did not adhere to the protocols ofTexas A&M Veterinary Teaching Hospital or the American Association of Feline Practitioners and disregarded to State Veterinary
Boards directive on standard of care in that he failed to provide informed consent.
It is the policy of the American Veterinary Medical Association that a Veterinarian should
provide the client with informed consent.
E. Klingborg, Donald, American Veterinary Medical Association, Council on Biologic and

Therapeutic Agents, Position Statements on Biologies, June, 2001.
F. Klingborg, Donald, AVMA, COBTA's REPORT ON DOG AND CAT VACCINES, JAVMA,
Vol 221, No. 10,Nov.l5,2002.
^5 AVMA policy statement.

The current informed consent standard is the "reasonable patient standard".
G. Richards, 3, 2000 Report of the American Association of Feline Medicine
Advisory panel on Vaccines, pg 11, liability related to vaccines, k^hibti- 3j O % Fiemming, Duane DVM, 3D, The potential for liability in the use and misuse of
Veterinary Vaccines, Veterinary Clinics of North America, Small Animal
Practice, Volume31, Number 3, May 2001. gjdnbi-r- 3^

It is my contention that a reasonable client would not consent to vaccinate their cat
with the PLPRhCv Ch Rabies and adjuvanted FeLV if given the following information.
Dr Shaffer is negligent in that he failed to inform Mrs. Gonzales that:
1. The risk of a VAS from vaccination is 1;10,000 cats vaccinated. It is estimated

22,000 cats die annually from VAS.
I. IARC Monographs on the Evaluation of Carcinogenic Risks-to Humans, Vol. 74, Surgical Implants and Other Foreign Bodies , World Health Organization International Agency for Research on Cancer, 1999 IARC, Lyon France,
pg. 25,173-177,225, 305-311.
2. The recommendation to minimize the risk of VAS is to look for a lump at the vaccination site and have it removed if it is larger than 2 cm., grows, or fails to go away after 3 months, before it could become cancerous as per the
recommendations of the AVMA VAS Task Force, the AFP and TAMU Small Animal
Teaching Hospital.
0000258
3.. Vaccine Associated Feline Sarcoma Task Force Guidelines, US Pharmacopeia,

April 2009.
K. Wolf, A, Zoran, D, TAMU SATH Vaccination Protocols, 1998. vfihibi-h 33

3. Adjuvanted vaccines are 5 times more likely to cause a VAS.
L. Gaskell, Rosalind, Veterinary Products Committee Working Group on Feline and Canine Vaccination, Dept. of Environment, Food and Rural Affairs, UK, May
2001, 20002 Nobel House Web site
wwwldefra.gov.uk
4. Adjuvanted vaccines and are classified as a ClassÎ carcinogen by the World

Health organization.
I. IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Vol. 74, Surgical Implants and Other Foreign Bodies , World Health Organization
International Agency for Research on Cancer, 1999 IARC, Lyon France.
ppg. 25,173-177,225, 305-311.
M.Macy, Dennis, Feline Vaccination Associated Sarcomas, Proceedings of the

2004 NAVC
N. Klingborg, Donald, VAS Task Force, Roundtable Discussion, JAVMA, Vol 226,
No. 11 June 1,2005
^Kl^ ^
5. Asafer and more effective non adjuvanted vaccine is available for protection
against Feline Leukemia.
O. Grosenbaugh, D.A., Comparison of the safety and efficacy of a recombinant feline leukemia virus vaccine delivered transdermal^ and a inactivated FeLV
vaccine delivered subcutaneousiy, Veterinary Therapeutics, Volume 5, Issue 4, Winter 2004. ^hibiV *&&
2001, 20002 Nobel House Web site wwwldefra.gov.uk
6. The AFP and VASTF recommend to use the least reactive (non adjuvnated)
vaccines.
P. Richards, James, The 2006 American Association of Feline
Practitioners Feline Vaccine Advisory Panei Report, JAVMA, Vol. 229,
No. 9. November 1, 2006. Bjcfcbi-h 40
0000259
wwwldefra.gov.uk
7. The incidence of death caused by Feline Leukemia is less than 0.3%. R. Romatowski, Use of Epidemiologic Model to Evaluate Leukemia Virus Control Measures, Feline Practice, Vol.25, No 4, July/August 1997
8. Cats over one year of age develop age related immunity to Feline leukemia virus
infection.
Q. Hoover, Edward, Feline leukemia virus infection; Age Related Immunity in

response to experimental Infection, J.Natnl Cancer Institute, Vol 57, No2.,
1976, pp.365-369. f^h.b<> 31

9. The effectiveness of FeLV Vaccine is in fact less than the effectiveness of age
related immunity. . , .
Q. Hoover.E., Age related immunity hik+- 31

L. Grosenbaugh, D.A., Comparison of the safety and efficacy of a recombinant feline leukemia virus vaccine delivered transdermally and a inactivated FeLV vaccine delivered subcutaneously, Veterinary Therapeutics, Volume 5 issue 4
Winter 2004.
10. The duration of immunity from Feline leukemia vaccine is at least 3 years. S. Hofmann-Lehmann, R, Recombinant FeLV vaccine; long term protection and effect on course and outcome of FIV infection, Vet Immunology 46(1-2)127-37
May 1995.
11. The recommendations of the AFP are to vaccinate with panleukopenia, rhinotracheitis, calicvirus no more frequently than the every three years.
Practitioners Feline Vaccine Advisory Panel Report, JAVMA, Vol. 229,
No. 9. November 1, 2006. xftibir- >

12. The duration of immunity for PLP is over three years and probably lifetime.
Practitioners Feline Vaccine Advisory Panel Report, fyfa \)\\- 3 4^

00002S0
G . Richards, James, The 2000 American Association of Feline
Practitioners Feline Vaccine Advisory Panel Report, JAVMA, Vol. 229,
No. 9. November 1, 2006. yr^\aV ^
T. Scott, Fred, Long term immunity in cats vaccinated with an, ,. , Q inactivated trivalent vaccine, AJVR, Vol 60,No 5, May 1999, &fh\ bi -tf
13. PLP RHCV vaccine is guaranteed by the manufacturer for a duration of immunity of at least three years.
U. Lappin, Use of serologic tests to predict resistance to feline herpes virus 1, feline calicvirus, and feline parvovirus infection in cats, 3AVMA, Vo.l 220, No.l,
3an 2002.
V. Mouzin, Duration of serologic response to three viral antigens in cats,

3AVMA, Vol.224,No.l p 61-66, 3an 1, 2004
14 Chlymadia vaccine is not recommend by the AFP because the duration of immunity is only 2 months, it is a rare disease and it is easily treated.
P. Richards, 2006 AFP Report ^tfhfeir* ^

14. Texas A&M VTH uses only non adjuvanted vaccines in order to reduce the risk of
a VAS. Texas A&M also uses the non adjuvanted feline leukemia vaccine because it provides cell mediated immunity.
K. Wolf, Zoran 1998 &)chib(-h 33

15. The more vaccines that are administered at the same time the greater the risk
of an adverse reaction.
No.ll June 1, 2005 fctftort- ^\

W. Moore, G., Adverse events after vaccine administration in cats, 2,560 cases (2002-2005) 3AVMA,VoL231 1, 3uly 2007.
Failure to inform Mrs. Gonzales of the availability of a safer non adjuvanted vaccine
for Feline leukemia, of the possibility "Kitty Kat" would not benefit form the vaccines
administered, but instead might developed a fatal Vaccine Associated Sarcoma , and
to look for a lump at the vaccine site and have it removed before it became cancerous resulted in the death of "Kitty Kat."
0000261
Negligence
1. Dr Schafer failed to select the safest product and the most effective product to
vaccinate against Feline leukemia.
0. Grosenbaugh, DA, Comparison of the safety and efficacy of a recombinant feline leukemia virus vaccine delivered transdermaiiy and a inactiyated FeLV vaccine delivered subcutaneously, Veterinary Therapeutics, Volume 5 issue 4
Winter 2004.
2. Dr Schafer administered a known carcinogen to "Kitty Kat".
I. IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Vol. 74, Surgical Implants and Other Foreign Bodies, World Health Organization International Agency for Research on Cancer, 1999 IARC, Lyon France,
ppg. 25,173-177,225, 305-311.
3. Dr Schaffer gave the vaccines at the incorrect intervals.
E.. Klingborg, Donald, American Veterinary Medical Association, Council on
Biologic and Therapeutic Agents, Position Statements on Biologies, 3une, 2001.

F. Klingborg, Donald, AVMA, COBTA's REPORT ON DOG AND CAT VACCINES,
JAVMA, Vol 221, No. 10,Nov.l5, 2002.
3. Dr. Schafffer failed to administer the vaccines as far distally on the legs as possible in order to facilitate the complete removal of a VAS should amputation
become necessary.
P. Richards, 2006 AFP &fhfoi\- ^

4. Dr. Schaffer failed to note in the medical record the location the vaccine was
given.
P. Richards, 2006 AAFP ^fabi^ ^t>

5. Dr. Schaffer disregarded the label recommendation "for administration to healthy
pets."
P. Richards, 2006 AAFP
g^hJYjf-f- 4-0
0000262
X. Product literature Schering Plough
Misrepresentation
Dr. Shaffer violated the Texas Deceptive Trade Practice Act by misrepresentation of the necessity and benefit of these vaccines. Dr. Schaffer was negligent in not obtaining the correct information to insure an honest, accurate and scientifically
backed vaccination protocol. Mrs. Gonzales relied on Dr. Schaffer to select the
safest products and administer them at the proper interval in the proper place. As a result of her trust of Dr. Schaffer and Dr Schaffer's false statements and implications
her cat "Kitty Kat" died from a vaccine associated sarcoma.
1. Adjuvanted FeLV vaccine and Panleukopenia/RhCV vaccine at a two year interval

are not recommended by Texas A&M, or 26 other Schools of Veterinary Medicine
in the U.S. or the AFP.
K.. Wolf, Zoran exhibit ^3 P. Richards, 2006 AFP )Crhbi+- V*0

2. Dr Shaffer misrepresented the safety of adjuvnated FeLV vaccine.
Adjuvanted vaccine is classified as a carcinogen for cats by the World

Health Organization.
I. IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Vol. 74,

Surgical Implants and Other Foreign Bodies , World Health Organization International Agency for Research on Cancer, 1999 IARC, Lyon France
pg. 25,173-177,225,305-311.
L. Gaskell, Rosalind, Veterinary Products Committee Working Group on Feline and Canine Vaccination, Dept. of Environment, Food and Rural Affairs, UK May
O. Grosenbaugh, D.A., Comparison of the safety and efficacy ofa recombinant feline leukemia virus vaccine delivered transdermaily and a inactivated FeLV vaccine delivered subcutaneousiy, Veterinary Therapeutics, Volume 5 issue 4
Winter 2004.
-fici. Macy, Dennis, Feline Vaccination Associated Sarcomas, Proceedings of ti>

2004 NAVC
0000263
No 11 June 1,2005 *h'bi> #|
2. A safer and more effective vaccine is available for FeLV.
0. Grosenbaugh, DA, Comparison of the safety and efficacy of a recombinant , feline leukemia virus vaccine delivered transdermally and a inactivated FeLV vaccine fy"ib&
delivered subcutaneousiy, Veterinary Therapeutics, Volume 5 issue 4 Winter 2004.

30
wwwldefra.gov.uk
3. Age related immunity for FeLV is better than the vaccine derived immunity. Q. Hoover, Edward, Feline leukemia virus infection; Age Related. Immunity in
response to experimental Infection, J.Natnl Cancer Institute, Vol 57, No2.,
1976, pp.365-369. J^fc^ 3\

O. Grosenbaugh, D.A., Comparison of the safety and efficacy of a recombinant feline leukemia virus vaccine delivered transdermally and a inactivated FeLV vaccine delivered subcutaneousiy, Veterinary Therapeutics, Volume 5 issue 4
Winter 2004.
4. Re-administration of a MLV vaccine like PLPRHCV vaccine at a two year interval

has no effect except to expose her cat to the risk of an adverse event. Readministration of MLV vaccines like PLPRhCv has no effect.
E. Klingborg, Donald, American Veterinary Medical Association, Council on Biologic and Therapeutic Agents, Position Statements on Biologies, June, 2001.
F. Klingborg, Donald, AVMA, COBTA's REPORT ON DOG AND CAT VACCINES,

JAVMA, Vol 221, No. 10,Nov.l5,2002.
No 11, June 1, 2005 #y^j j^')- ^
Z. Tizzard, Use ofserologic testing to asses immune status of companion

animals, JAVMA, Vo!.213,no.l, July 1, 1998.
0000264
10
AA.. Larson LJ, Sawchuck S, Bonds MD, Schultz RD, Comparison ofAntibody Titers Among Dogs Vaccinated, One, Two, Three Years Previously, Proceedings of 80th Meeting of the Conference of Research Workers in Animal
Diseases, CRWD, Chicago, IL,
. The client is paying for something with no effect except the risk of an adverse
and potentially fatal reaction.
Dr. Ron Schultz and nine other Board Certified Veterinary Immunologists from nine Universities published in the JAVMA, August 15,1995. Are we
over vaccinating?
"The client is paying for something with no effect except the risk of an
adverse reaction."
AB. Schuitz, Ronald D., 'Are we vaccinating too much?"3AVMA, No. 4, August 15,
1995, pg. 421.
AA. Larson LJ, Sawchuck S, Bonds MD, Schuitz RD, Comparison ofAntibody Titers Among Dogs Vaccinated, One, Two, Three Years Previously, Proceedings of 80th Meeting of the Conference of Research Workers in Animal
Diseases, CRWD, Chicago, IL,
AC. HogenenEsch Harm, Dunham Anisa D, Scott-Moncrieff Catharine, Glickman

Larry, DeBoer Douglas J, Effect of vaccination on serum concentrations of total
and antigen-specific immunoglobulin Ein dogs, AJVR, Vol 63, No. 4, April
2002, pg. 611-616.
AD. Wolf, Alice M., Vaccinations-What's right? What's not?Compendium on Continuing Education, Schering-Plough Animal Health, 1999, pg. 32.
AE. Wolf Alice, Vaccines ofthe Present andFuture, Proceedings of the World
Animal Veterinary Congress, Vancouver 2001. bXbibi'-H 37

AB. Phillips, Tom R. and Schultz, Ronald D, "Canine andFeline Vaccines'; Current Veterinary Therapy XI, ed. Kirk and Bonagura, pg. 202, 205, WB Saunders Co,
Philadelphia, PA 1992.
E. Klingborg Donald, Principles ofVaccination, AVMA Council on Biologic and

Therapeutic Agents, Policy on Biologies, April 2002.
AF. Schultz, R, . Age and long -term protective immunity in dogs and cats,
Journal of Comparative Pathology, Vol 142S1, Jan 2010.
.j
0000265
11
AG. NASPHV, Compendium on Animal Rabies Prevention and Control, 2007,

www.NASPHV.org,
Damages, Cause of Death
The scientific evidence shows that inflammation from vaccines can cause Vaccine
Associated Sarcomas.
AH. History of VAS, ACVIM Notes 2000 ^bi'b'+* 3$

AL Shaw, Changes in Injection Site Sarcomas in Cats from 1990-2006
A3, Kass, Phillip, Epidemiologic evidence for a causal relation between vaccination
and fibrosarcoma tumorigenesis in cats, 3AVMA Vol. 203, no 3, August 1,1993 AK. O'Rourke Kate, Progress made in feline sarcoma research, 3AVMA, Vol 220, No
6, March 2002.
I. IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Vol. 74, Surgical Implants and Other Foreign Bodies , World Health Organization International Agency for Research on Cancer, 1999 IARC, Lyon France,
ppg. 25,173-177,225, 305-311
AL. Vascellari M., Melchotti E., Fibrosarcomas at presumed sites ofinjection in Dogs and comparison with non vaccination site fibrosarcomas and feline post vaccinal
fibrosarcomas, 3ournal of vet Med. Vol. 50,Nu. 6, 2003
P.. Richards, James, The 2006 American Association of Feline Practitioners
1, 2006. gfaW f 0
Feline Vaccine Advisory Panel Report, JAVMA, Vol. 229, No. 9. November
AM. Macey, Dennis W, DVM, Current Understanding Of Vaccination Site Associated
Sarcomas in the Cat, 3 Fe Med &Surgery, [1]; 15-21 AN. Hershey, A E, P53 Expression in Feline Sarcomas, VAFSTF web site.
AO. Hershey, Aberrant p53 Expression in Feline VAS and correltion with prognosis,
Veterinay Pathology online, 2005, 42, 805
0000266
12
AP. Biopsy report, Kitty Kat Gonzales, ANTECH Diagnostics Lab, 3anice Lacey DVM,
DACVP
AQ. Biopsy Report, "Kitty Kat" Gonzales, Texas Veterinary Medical Diagnostic lab, Dr
Sandra Lovering DVM, DACVP
11 June 1,2005 Xrubl4- 3<f
N. Klingborg, Donald, VAS Task Force, Roundtable Discussion, 3AVMA, Vol 226 No
AR. Martano, M., Feline injection-site sarcoma, Past, Present and future perspectives, The Veterinary Journal, 188, 2011, pl36-141.
AS. Morrison, Inflammation and Cancer, AComparative View, Journal of Veterinary

Internal Med, 26, 2011, pl8-31.
AT. Hendrick, Musings on feline injection site sarcomas, The Veterinary Journal,
188,2011,130-131.
of the NAVC 2012. xnibif 35
AU. Wolf, Alice, Feline Vaccinations, protocols , products and problems, Proceedinos
AV. Woodard, K, Origins of injection -Site Sarcomas in Cats; The possible Role of Chronic Inflammation- a Review, International Scholarly Research Network, Vol
2011, Article 210982.
AW. Couto, Feline vaccine associated fibrosarcoma, morphologic distinctions J Vet

Pathology, 39 [1];33-41 Jan 2002
AX. Hershey, Feline VAS; Prognosis following surgical excission, VAFSTF web site.
Adjuvanted vaccines are five times more likely to cause a VAS then non adjuvanted
vaccines.
L. Gaskell, Rosalind, Veterinary Products Committee Working Group on Feline and Canine Vaccination, Dept. of Environment, Food and Rural Affairs, UK, May 2001,
20002 Nobel House Web site wwwldefra.gov.uk
Additional references:
Tlzard, Ian, Veterinary Immunology, Sixth Edition, Sanders , 2000.

Tizard, Ian, Veterinary Immunology, Eight Ed, Sanders, 2009
0000267
13
.fl\\ Blanton, Rabies Surveillance in the U.S. during 2007, JAVMA Vol 233 No 6
9/15/2008.
AFP MODEL CONSENT FORM
'
'
'
Vaccine Associated Feline Sarcoma Task Force, Diagnosis and treatment of Suspected Sarcomas, U.S. Pharmacopeia, 1999.
#t^cnultz; Current and future canine and feline vaccination programs, Veterinarv
Medicine,March 1998 p 233-254
4) Paul, M, Reportof the AAHA Task Force; 2003 Canine Vaccine guidlines nd
Recommendations, 3 of AAHA, Vol 39, M/A 2003,
HPaul,M 2006 AAHA Canine Vaccine Guidelines, AAHA. 20006.

Morrison, The Vaccine Associated Sarcoma Task Force; Start to Premature Finish
Veterinary Cancer Society Newsletter, Spring 2003
Vaccine Associated Sarcomas, Oncogenesis is a three step process. LSU Web site.
Conclusion
caused "Kitty Kat to develop a VAS by injecting an adjuvanted vaccine and multiple vaccines in her right hip. Mrs. Gonzales has spent thousands of dollars to try to reduce the suffering and attempt to prolong her cat's life. Veterinary organizations and drug companies have spent millions of dollars to come up with a way to prevent this from happening. They have five simple recommendations, all of which that were
ignored here.
Feline Vaccine Associated Sarcomas are a highly fatal form ofcancer. Dr Schaffer
from a vaccine and that could easily have been prevented.
Mrs. Jenna Gonzales has lost her beloved cat," Kitty Kat" due to an adverse reaction
This could all have been prevented with a little common sense.
If Dr. Schaffer had not disregarded the Texas State Board of Veterinary Medical
Examiners and had instead followed the recommendations of the AAFP and TAMU
VTH and;
2. Given the vaccine in the proper location at the proper interval,

3. Used the safest non adjuvanted product,
new standard of extended intervals,
1. Warned her to look for a lump and have it removed before it became cancerous,
4. Reduced the number of vaccines by avoiding unnecessary vaccines and using the
5. And not vaccinated an unhealthy patient.
0000268
14
then
3enna Gonzales would have a reasonable expectation that her cat "Kitty Kat" would be alive and well today. "Kitty Kat" would have avoided a lot of surgeries pain and
suffering.
If Dr. Shafer would report the adverse event to the manufacturer mrs Gonzales coud recover part of her "expenses in diagnosing and treating "Kitty Kat.
Sincerely,
Dr. Bob Rogers
0000269
Jena Gonzalez, Pro Se Plaintiff

3717 Aransas St.
Corpus Christi, Texas 78411

Email: Ril4584@peoplepc.com
Telephone: (361)425-9359 April 25, 2012
Via Certified Mail, RRR 70101870 0000 7692 0657 O'Connell & Avery LLP
Attn: Valerie L. Cantu
Re:
Case No. 2011-CCV-61850-5; Jena Gonzalez v. South Texas Veterinary Associates, Inc.; County Court At
Law No.5, Nueces County, Texas

Dear Ms. Cantu:
Enclosed please find the following:

PLAINTIFF'S RESPONSE TO DEFENDANT'S NO-EVIDENCE & TRADITIONAL MOTION FOR
SUMMARY JUDGEMENT OF ALL OF PLAINTIFF'S CLAIMS
Sincerely,
Jena Gonzalez,
/JG Enclosures, as Stated
0000270
Cause No. 2011-CCV-61850-5 Jena Gonzalez

Plaintiff
In the County Court
v.
At Law No. 5
Associates, Inc.
Defendant
notice of setting
Take notice that the Defendant South Texas Veterinary Associates, Inc.'s Motion
to Dismiss Plaintiffs Claims for Breach of Contract and Negligent Misrepresentation is

set for hearing before the Presiding Judge of the County Court at Law No. 5 o( Nueces County, Texas, at 1:30 p.m. on Tuesday, May 1. 2012. The hearing will be heard in che
County Court at Law No. 5 of Nueces County, Texas, located at 2310 Gollihar, Corpus
Christ), Texas 78415.
Respectfully submitted,
O'CONNELL & AVERY LLP
By:_
Oaaul
Keith B. O'Connell
State Bar No. 15179700 Valerie L. Cantu


m r^1
100-506
Pat-e 1
0000271
I hereby certify that a true and correct copy of the foregoing instrument has been
forwarded this 1/0V&. day of April, 2012 via certified mail, return receipt requested, to
the following:
Ms. Jena Gonzalez, Pro Se Plaintiff
3717 Aransas
,11 <J- UmL

Valerie L. Cantu
100-506
Page 2
0000272
Cause No. 201 l-CCV-61850-5

Jena Gonzalez
Plaintiff
In *<-;:; County Court
v.
At Law No. 5
South Texas Veterinary Associates, Inc. Dv.fen.oant
notice o f setting
Take notice that Plaintiffs Motion for Sanctions against Robert. C Milliard and
Valerie L. Cantu and Plaintiffs Motion tor Discovery. .Sanctions against Dr. Alan Garett
and Valerie L. Cantu are set for hearing before the Presiding Judge of the County Court
si Lfvvv-No.o of Nueces County. Texas, at 1:30 p.m. on-Tuesday, May 1, 2012. The hearing will be heard in the County Court at Law No. 5 of Nueces County, Texas, located
at 2310 Gollihar, Corpus Christi, Texas 78415,
r
Bv:
'UftWt UX.
Keith B. O'Connell
State Bar No. 15179700 Valerie L. Cantu State Bar No. 24012498
San'Antonio, Texas 78232
Telephone: i.:!.0i U24-0009

Telecopier. T:\\i) 824-9429

P*!
1
rp
ro
33-
>
i
CO en
x
-<
100-506
Hdgf 1
m
Z^l'i
ro
fM
co^
'(TOO 273
I hereby certify that a true and correct copy of the foregoing instrument has been
forwarded this y \t\\ day of April, 2012 via certified mail, return receipt requested, to
the following:
3717 Aransas
r.
o I/Mal
Valerie L. Cantu
100-506 Paee2
0000274
O'CONNELL & AVERY

ATTORNEYS AND
LLP
II O
COUNSELORS
13750 SAN
PEDRO, SUITE
San Antonio, Texas 7B232 Telephone (2 IO) BZ.i-0009
Email: VALERrEC@oco.JBEN.coM
Facsimile IZIO) 82-3-9-429
April 24, 2012
Via Certified Mail/RRR 7011 2970 0000 0243 5748

Ms. Diana T. Barrera
Nueces County Clerk 901 Leopard Street, Room 201 Corpus Christi, Texas 78401
Re:
Cause No. 201 l-CCV-61850-5; Jena Gonzalez v. South Texas Veterinary Associates, Inc., in the County Court at Law No. 5, Nueces County, Texas
Dear Ms. Barrera:
Enclosed for filing with the Court are the following: Defendant South Texas Veterinary Associates, Inc.'s Verified Response to Plaintiffs
Motions for Sanctions; and
Notice of Setting setting Plaintiffs Motion for Sanctions and Plaintiffs Motion for Discovery Sanctions for hearing before Judge Brent Chesney of the County Court at Law No. 5 at 1:30 p.m. on Tuesday, May 1, 2012. (Please note that Defendant's combined No-Evidence and Traditional Motion for Summary Judgment and Defendant's Motion to Dismiss already are set for hearing at the foregoing date and
time.)
Also enclosed are copies of each of the foregoing documents. We ask that you please
file-stamp each of the copies with the date and time of filing of same and return the copies us via the enclosed self-addressed, postage-paid envelope.
By copy of this letter and its enclosures, Plaintiff is being served same via the means
indicated below.
We appreciate your assistance with this matter.
0000275
April 24, 2012 Page 2
Very truly yours.
Valerie L. Cantu A^LC
Enclosures, as Stated
cc:
(Via CM/RRR, w/Encs.: 701J 2970 0000 0243 5755)

Ms. Jena Gonzalez 3717 Aransas
0000276
Cause No. 2011-CCV-61850-5
Jena Gonzalez Plaintiff v. South Texas Veterinary Associates, Inc. Defendant
In the County Court
at Law No. 5
defendant's verified response t o p l a i n t i f f ' s motions f o r sanctions t o the honorable judge of said court:
Defendant SOUTH TEXAS VETERINARY ASSOCIATES, INC. ("Defendant") files
this Verified Response to Plaintiffs Motion for Sanctions against Robert C. Hilliard and Valerie
L. Cantu and to Plaintiffs Motion for Discovery Sanctions against Dr. Alan Garett and Valerie
L. Cantu, and would respectfully show the Court the following: Plaintiffs Motions for Sanctions are without factual or legal merit, as detailed below:
I. Regarding Plaintiffs contention that the applicable veterinary standard of care is not limited to the Corpus Christi, Nueces County, Texas Plaintiff
misconstrues the law.
Plaintiff sues Defendant (a veterinary practice located in Corpus Christi, Texas, which
primarily treats dogs and cats) for veterinary malpractice. Consequently, Texas law mandates
that the relevant medical community is the small animal veterinary practitioners' community of Corpus Christi (Nueces County), Texas. See Hickson v. Martinez, 707 S.W.2d 919, 925 (Tex.
App.-Dallas 1985, writ refd, n.r.e.) (affirming that, with medical malpractice cases, the locality rule applies, and citing Texas Supreme Court decision Webb v. Jorns, 488 S.W.2d 407, 411 (Tex.
1972), to affirm that the locality/community standard rule "does not require a smallTyffice^pf a rural medical practitioner to possess either the skills or equipment of a sophisticate^ clirfle...7!
100-506
Page 1
;-*
^
,05|0277
and instead, the practitioner only must adhere to the standards of practice specific to his or her
own community); see also Hall v. Huff, 957 S.W.2d 90, 101 (Tex. App.-Texarkana ,1997, pet
denied) (explaining 'The purpose of the locality rule is to prevent unrealistic comparisons
between the standards of practice in communities where facilities and resources may greatly
differ"). The foregoing is black-letter law. Plaintiff cannot - and does not - offer any Texas law
to the contrary.
II.
Regarding Plaintiffs contention that the Texas Board of Veterinary Medical Examiners' ruling in favor of Defendant does not apply because Plaintiff has
appealed the Board's ruling - Plaintiffs appeal is irrelevant to this lawsuit.
As is evidenced by Exhibit "C" of Defendant's combined Motion for Summary

Judgment, the Texas Board of Veterinary Medical Examiners ("TBVME") has completed its
investigation and has found "no violation" by Dr. Shaffer regarding the statutory law and the prevailing community standard of care applicable to Dr. Shaffer and Defendant.
A. Contrary to Plaintiffs contention, Exhibit "C" is not inadmissible hearsay.
Rule 803(8) of the Texas Rules of Evidence mandates: Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth: (A) the activities of the office or agency;
(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or (C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law;
unless the sources of information or other circumstances indicate lack of
trustworthiness.
100-506
Page 2
0000278
Tex. R. Evid. 803(8). Exhibit "C" is a record, report and data compilation setting forth the activities of the TBVME to investigate and rule on Plaintiffs complaint and also setting forth the
factual findings resulting from the TBVME's investigation pursuant to the authority granted to the TBVME by Texas law. Accordingly, the letter falls under the hearsay exception provided by Rule 803(8) of the Texas Rules of Evidence. See Tex. R. Evid. 803(8); see also Tex. Health and Human Servs. Comm'n, 2010 WL 2789777, at *1, 5 (Tex. App.-Austin July 14, 2010, pet. denied) (holding that EEOC determination letter regarding Plaintiffs complaint was admissible pursuant to Rule 803(8) of the Texas Rules of Evidence); Cowan v. State of Tex., 840 S.W.2d 435, (Tex. Crim. App.-1992) (en banc) (holding that report of findings used by the U.S. Martine
Corps Medical Board was admissible pursuant to Rule 803(8) of the Texas Rules of Evidence);
Bingham v. Bingham, 811 S.W.2d 678 S.W.2d 678, 684 (Tex. App.-Ft. Worth 1991, no writ)
(holding that social study made by social worker who did not testify in court was "a matter
authorized and imposed by law upon social workers, and that the workers have the duty to make
such a report" and "the reports consist of factual findings resulting from such investigations
made pursuant to authority granted by law" and thus, the report was an exception to hearsay
under Rule 803(8) of the Texas Rules of Civil Procedure).
B. That Plaintiff disagrees with the TBVME's ruling is irrelevant to this
lawsuit.
Plaintiff disagrees with the TBVME and apparently has appealed the TBVME's decision. However, the TBVME's current ruling memorialized in Exhibit "C" is its decision and its file remains closed absent any further action by the TSBVME. See 22 Tex. ADMIN. CODE
575.281(b).
Accordingly, the TSBVME's finding of "no violation" by Dr. Shaffer of the
applicable law or of the applicable prevailing community standard of care is competent,
100-506
Page 3
0000279
admissible evidence establishing Dr. Shaffer's adherence to the applicable standard of care and
of no veterinary malpractice by him.
III. Regarding Plaintiffs Objection to the certified transcript of the recorded

conversation between Dr. Alan Garett and Dr. Robert "Bob" Rogers - Plaintiff misapplies Florida and Texas law.
Plaintiff objects to the recording of the January 14, 2012 conversation between Plaintiffs retained testifying expert, Dr. Robert "Bob" Rogers, and Defendant's retained testifying expert, Dr. Alan Garett, on the ground that the recording was "taken out of context" and purportedly
obtained in violation of Florida law. Plaintiff further claims that Ms. Cantu somehow violated
the Texas Disciplinary Rules of Professional Conduct by producing the recording made by
Dr.Garett as part of discovery for this lawsuit. A. The recording is a verbatim transcription and speaks for itself.
The recording is a verbatim transcription transcribed by a certified Court Reporter of The

State of Texas. It speaks for itself.
B. Plaintiff misapplies Florida law.
The statutes relied upon by Plaintiff are Florida criminal statutes and fails to cite the
entire applicable criminal statute. Chapter 934 expressly defines "oral communication" to be
"any oral communication uttered by a person exhibiting an expectation that such communication
is not subject to interception under circumstances justifying such expectation and does not mean
any public oral communication uttered at a public meeting ..." See Fla. Stat. Ann. 934.02(2)
(emphasis added).
The oral communication in question took place by and between Dr. Rogers and Dr.
Garett on January 14, 2012, in Orlando, Florida, while they (and approximately 6,000 other veterinarians) were attending the 2012 North American Veterinary Conference at an Orlando
100-506
Page 4
0000280
resort. During a break in programming, Dr. Garett and Dr. Rogers conversed, with the other veterinarians attending the conference program all around them. As such, no reasonable
expectation of privacy existed, and Dr. Garett committed no violation of the Florida criminal law cited by Plaintiff. See Fl. Stat. Ann. 934.02(2); see also Stevenson v. State of Fla., 667
So.2d 410, 412-13 (Fla. App. [1st Dist.] 1996, rehearing denied) (finding no reasonable
expectation of privacy existed where conversation in question was held "in the road just north of
an intersection" rather than in an enclosed, private, or secluded area); Dept. of Agric. and
Consumer Servs. v. Edwards, 654 So.2d 628, 632-33 (Fla. App. [1st Dist.] 1995, review denied)
(explaining that Section 934.03 only protects oral communications where there is "a societal recognition that the expectation [of privacy] is reasonable" and finding no reasonable expectation
of privacy regarding a conversation occurring during a meeting between an employee and his
supervisors in the supervisor's office to discuss a grievance filed by the employee); see Jatar v. Lamaletto, 758 So.2d 1167, 1169 (Fla. App. [3rd Dist.] 2000) (affirming that, under Florida law, "Society is willing to recognize a reasonable expectation of privacy in conversations conducted
inprivate homes, but the expectation does not automatically extend to conversations.held outside
the home, even as to conversation conducted in private business offices) (emphasis added).
Furthermore, Dr. Rogers is Plaintiffs retained testifying expert, and Dr. Garett is
Defendant's retained litigation expert, and Dr. Rogers voluntarily communicated with Dr. Garett regarding this specific litigation matter. As a litigation testifying expert voluntarily conversing with the opposing party's litigation expert, no reasonable expectation of privacy existed regarding the experts' conversation.
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C.
The Florida criminal law cited by Plaintiff is irrelevant and inapplicable to this Texas civil litigation matter.
Florida criminal statutes are irrelevant and inapplicable to this Texas civil suit regarding
the alleged veterinary malpractice of Defendant and its veterinarian, Dr. David Shaffer. Instead,
only Texas statutes and Texas case law are relevant to this litigation. Dr. Rogers is Plaintiffs retained testifying expert witness. As such, any statements made
by him regarding the alleged wrongdoing of Defendant and its veterinarians are both relevant
and discoverable. See Tex. R. Civ. P. 192.3(e) & 194.2)(f) & (i); see also Tex. R. Evid. 401 &
402.
D.
Ms. Cantu violated no Rule of Professional Conduct of Attorneys regarding the

doctors' recorded conversation.
To begin with, Ms. Cantu never suggested and never asked Dr. Garett to record his
January 14, 2012 conversation with Dr. Rogers. Second, Ms. Cantu had no knowledge that Dr. Rogers and Dr. Garett would be attending
the same conference or would converse with one another at the conference regarding any subject
matter whatsoever.
Third, Ms. Cantu did not learn of the conversation and its recording until AFTER Dr.
Garett already had made the recording many weeks prior, while he attended the veterinary
conference.
Fourth, upon learning of the recording, Ms. Cantu notified Dr. Garett that the recording is
discoverable in this lawsuit and must be produced as both a witness statement and as part of Dr.
Garett's expert file for this matter. After Dr. Garett was able to make a duplicate recording (on a mini-audio cassette) of the original recording (on his iPhone), Dr. Garett overnight mailed the
min-cassette to Ms. Cantu, which Ms. Cantu heard for the first time on March 28. 2012. On
100-506
Page 6
0000282
March 29, 2012, Ms. Cantu sent the tape to a certified Court Reporter for transcription. On
March 30, 2012, Ms. Cantu received the certified transcription of the recording. On April 5,
2012, at Dr. Garetf s oral deposition, Ms. Cantu returned the mini-cassette to Dr. Garett and produced Dr. Garett's entire expert file to Plaintiff for her inspection and/or copying, including the mini-cassette and a copy of the certified transcription of the recording. The recording is both
relevant and discoverable, and Ms. Cantu followed the legal mandate to produce the recording to
Plaintiff. See Tex. R. Civ. P. 192.3(e) & 194.2)(f) & (i); see also Tex. R. Evid. 401 & 402.
Fourth, Ms. Cantu violated no Rules of Professional Conduct. Rules 1.02 and 3.03 cited
by Plaintiff regard criminal or fraudulent acts done by an attorney's client. However, Dr. Garett
is not Ms. Cantu's client; rather, he is the retained testifying expert of the Defendant. Equally important, Dr. Garett committed no criminal act, but even if he did, the act was done by him
without Ms. Cantu's prior knowledge or consent. Lastly, Rule 8.04 cited by Plaintiff requires
Texas attorneys to not engage in dishonesty, fraud, deceit, or misrepresentation.
Ms. Cantu
committed no such acts - To the contrary, upon learning of the recording, Ms. Cantu had it sent to her. had it transcribed, and produced it to Plaintiff within one week's time. IV. Regarding Plaintiffs contention that Defendant's attorneys delayed filing Defendant's counterclaim to run up expenses and to harass Plaintiff- Plaintiff
is mistaken.
Until discovery was substantially completed in this case, Defendant did not know the actual evidence and expert testimony intended to be offered by Plaintiff. The deadline for Moreover,
Plaintiff to designate her testifying experts did not occur until January 13, 2012.
although Defendant's counsel began requested the oral deposition of Plaintiffs liability expert,
Dr. Robert "Bob" Rogers, on February 9, 2012, Plaintiff subsequently hired (and some weeks
100-506
Page 7
0000283
later, let go) an attorney and did not present Dr. Rogers for oral deposition until March 22, 2012. At Dr. Rogers' March 22nd deposition, Defendant's counsel first discovered the following:
Dr. Rogers has no knowledge of the veterinary standard of care applicable to and practiced by small animal veterinarians of ordinary skill and care practicing in the Corpus Christi, Nueces County, Texas under the same or substantially similar
circumstances. See Exhibit "B" of Defendant's combined Motion for Summary Judgment at 40:3-11 & 45:9-19 & 47:8-15 & 57:5-9.
Dr. Rogers and/or Dr. Rogers' nonprofit organization is financing Plaintiffs litigation against Defendant. See id. at 80:17 - 82:15 & 83:7-86:25: Plaintiff and Dr. Rogers conspired together to determine whether the TBVME would render its decision regarding Plaintiffs malpractice grievance/complaint against Dr. Shaffer until after Plaintiffs original small claims case was adjudicated, because Plaintiff expressly acknowledged and knew that, if the TBVME found no wrongdoing by Dr. Shaffer, its finding was competent evidence establishing no wrongdoing by Dr. Shaffer and Defendant. See id. at
95:9-96:18 & 99:5-21 & 110:14-18 & 116:1 -118:6;
Plaintiff and Dr. Rogers continue to pursue Plaintiffs claims against Defendant and continue to seek donations of monies from third parties to fund Plaintiffs lawsuit (including to pay for an attorney, even though Plaintiff currently is pro se), with Plaintiff and Dr. Rogers agreeing that Dr. Rogers will use the donations to sue the TBVME for finding no wrongdoing by Dr. Shaffer regarding Plaintiffs grievance/complaint. See id. at 87:14-19 & 89:20-90:24.
Meanwhile, the TBVME did not issue its decision of no wrongdoing by Dr. Shaffer in treating Plaintiffs cat until March 2, 2012.
The foregoing newly discovered facts evidence the lack of merit of, and harassment by,
Plaintiffs claims. Defendants' attorneys did not delay filing Defendant's counterclaim. Quite the opposite, Defendant's counsel filed Defendant's counterclaim on April 5, 2012, within two weeks of obtaining Dr. Rogers' expert testimony (or lack thereof) regarding the applicable
medical standard of care and his expert file documenting his disturbing communications with
Plaintiff.
100-506
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0000284
Plaintiff continues her campaign of harassment and frivolity against Defendant and now, its legal counsel of record. As of the filing of this Response, Defendant has incurred a total of
$25,061.46 in attorneys' fees, court costs, and other litigation expenses, all of which were
reasonable and necessary for Defendant to fully and adequately defend itself in this matter and to
protect itself against Plaintiff.
WHEREFORE, PREMISES CONSIDERED, Defendant SOUTH TEXAS
VETERINARY ASSOCIATES, INC. prays that the Court DENY in its entirety Plaintiffs Motion for Sanctions against Robert C. Hilliard and Valerie L. Cantu, that the Court DENY in its entirety Plaintiffs Motion for Discovery Sanctions against Dr. Alan Garett and Valerie L. Cantu, and that the Court GRANT Defendant's pending combined Motion for Summary Judgment and ORDER that Defendant's combined Motion for Summary Judgment is granted in its entirety, that all of Plaintiff s claims against Defendant are dismissed, and that Plaintiff is ordered to pay
Defendant no less than $25,061.46 as sanctions and reimbursement of Defendant's reasonable
and necessary attorneys' fees, court costs, and other litigation expenses, along with such other and further relief at law or in equity to which Defendant may show itself justly entitled.
100-506
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0000285
By: l\oWl U. jttlluJ, hr/Â/WuA^fiVi, vt?

Robert C. Hilliard ' '
719 S. Shoreline, Ste. 500 Corpus Christi, Texas 78401 Telephone: (361)882-1612 Telecopier: (361)882.3015
and
By:.
UjyvUl
Keith B. O'Connell
State Bar No. 15179700 Valerie L. Cantu State Bar No. 24012498
Telephone: (210) 824-0009

Facsimile: (210) 824-9429
ATTORNEYS FOR DEFENDANT SOUTH TEXAS VETERINARY
ASSOCIATES, INC.
100-506
Page 10
0000286
VERIFICATION
STATE OF TEXAS
COUNTY OF BEXAR
Before me, the undersigned notary, on this day personally appeared Ms. Valerie L. Cantu, a person whose identity is known to me. After I administered an oath to her, upon her oath she said that she is co-counsel for Defendant South Texas Veterinary Associates, Inc.; that she has participated in and/or conducted every aspect of the defense of South Texas Veterinary
Associates, Inc., that she has prepared and read Defendant South Texas Veterinary Associates,
Inc.'s Verified Response to Plaintiffs Motion for Sanctions against Robert C. Hilliard and Valerie L. Cantu and to Plaintiffs Motion for Discovery Sanctions against Dr. Alan Garett and
Valerie L. Cantu; and that the facts stated in it are within her personal knowledge and are true
and correct.
Valerie L. Cantu, Affiant.
SWORN TO AND SUBSCRIBED BEFORE ME, by the said Ms. Valerie L. Cantu, on tms fyfday of April, 2012, to certify which witness my hand and seal of office.
=*'<jy:>\ Notary Public, State ofTexas

%jf\ -\i
/$#'#'*,
REBECCA LEA UCON
^JKJSP
My Commission Expires
April 26, 2014
Notary Public in ancTfor the State of Texas
100-506
Page 11
0000287
This is to certify that a true, full and correct copy of the above and foregoing document
has, this _oiJi day of April, 2012, been delivered, via certified mail, return receipt requested,
to:

3717 Aransas
. J
0Valerie L. Cantu
100-506
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0000288
Dispute Resolution Services

Ruth Reid, Executive Director Nueces County Courthouse 901 Leopard St. Room 401.2 Corpus Christi, Texas 78401
(361)888-0650 Office (361)888-0754 Fax
April 23, 2012
Cause No. 2011CCV-61850-5
Jena Gonzalez
vs
Dear Judge Chesney,
The above cause was referred to mediation and held on April 20, 2012. Jena Gonzalez and Dr. David Shaffer and his attorney, Michael Gavito attended and participated in the mediation. The parties were not able to reach a resolution of the issues that were mediated.
If you have any questions please call out office (361)888-0650.

Sincerely,
Ruth Reid Executive Director
Dispute Resolution Services 901 Leopard St. Room 401.2 Corpus Christi, Texas 78401 (361)888-0650 Office (361)888-0754 Fax
Cc: Jena Gonzalez
CD
\ CO
-<
Valerie Cantu, Attorney
r~4
0000289
CAUSE NO. 2011-CCV-61850-5
JENA GONZALEZ
PLAINTIFF
IN THE COUNTY COURT
V.
AT LAW NO. 5
ASSOCIATES, INC.
DEFENDANT
PLAINTIFF'S REPLY TO DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO

DEFENDANT'S NO-EVIDENCE & TRADITIONAL MOTION FOR
SUMMARY JUDGEMENT OF ALL OF PLAINTIFF'S CLAIMS
Pro Se Plaintiff Jena Gonzalez ("Plaintiff') files this Reply to Defendant's South Texas
Veterinary Associates, Inc. ("Defendant") Reply to Plaintiff's response to Defendant's No-Evidence &
Traditional Motion for Summary Judgment of All of Plaintiffs Claims (the "Motion"), and in support of
the same, respectfully shows the Court as follows:
Response to "Plaintiff relies on Texas law as it applies to health care providers who treat humans. Such law is inapplicable to Texas veterinarians providing health care to animals"
Defendant repeatedly uses Downing v. Gully, 915 S.W.2d 181, 183 (Tex. AppFt. Worth 1996, writ
denied) (adopting the standard applied to physicians and surgeons in medical malpractice cases to
veterinary malpractice case). Defendant incorrectly quotes, Downing v. Gully, 915 S.W.2d 181. 183.
"adopting the community standard of care applied to physicians and surgeons in medical malpractice
cases". The correct quote is, Downing v. Gully, 915 S.W.2d 181 (Texas 1996), 1996 Tex ApoLE&IS, 315
<=D ( -*Cx-"
(1996): "Because there is currently no case law in Texas establishing how veterinary negligerpe cases
to be analyzed, we will, as other jurisdictions have done, adopt the standard applied to ph^siciajti ani
CO
-<
S
<o
co "
pg-1
rn
m
0000290
surgeons in medical malpractice cases. See Cheryl M. Baily, Annotation, Veterinarian's Liability for
Malpractice, 71 A.LR. 4th 811, 821-22 (1989) ("Several courts have held that the body of law developed
in medical malpractice actions also applies to veterinary malpractice actions...Because of the vast
numbers of medical malpractice cases and comparatively few veterinary malpractice actions, the latest
theories of recovery, arguments, jurisprudential trends, including the applicable standard of care, and
techniques for presenting evidence tend to become manifest in the medical malpractice cases, but apply
to veterinary malpractice as well.") Therefore, Chapter 74 and cases cited by Plaintiff regarding the standard of care applicable to providers who treat humans will also apply to veterinarians.
Furthermore, since Santa Fe Animal Hospital is a Hospital accredited by the American Animal Hospital
Association, Hospital rules do not reflect the community standard of medical care, as the particular hospital might maintain higher standards that those prevailing in the community. See Hicks v. Canessa,
825 S.W.2d 542, 544 (Tex. App.El Paso 1992, no writ). American Animal Hospital Association states on
their website, "Accreditation through the American Animal Hospital Association ensures that a veterinary practice is operating at the highest standards of excellence in pet care". Santa Fe Animal Hospital is therefore held to a higherstandard than a non accredited hospital.
Response to "Exhibit "1", a true and correct copy of the May 7, 2002, letter of Ronn Allen, Executive Director of the Texas Board of Veterinary Medical Examiners, to
Plaintiffs retained expert. Dr. Bob Rogers"
Plaintiff objects to evidence marked as Exhibit "1" as it was postmarked April 26, 2012, six days prior to
summary judgment hearing schedule for May 1, 2012.
(d) Appendices, References and Other Use of Discovery Not Otherwise on File. Discovery products not
on file with the clerk may be used as summary judgment evidence ifcopies of the material, appendices
containing the evidence, or a notice containing specific references to the discovery or specific
references to other instruments, are filed and served on all parties together with a statement of intent
Pg-^
0000291
to use the specified discovery as summary judgment proofs: fi) at least twenty-one days before the
hearing if such proofs are to be used to support the summary iudgment: or (ii) at least seven days before the hearing if such proofs are to be used to oppose the summaryjudgment.
In addition. The TBVME addressed vaccination protocols to all veterinarians in February 2003, "An Open
Letter To Veterinarians Re: Vaccination Protocols", November 2004 Board Notes, "again urging
veterinarians to review their vaccination protocols," and again in November 2005 Board Notes "Board
Statement Of Policy On Vaccination Protocols And Informed Consent". See attached letters.
Response to "No Evidence of the Relevant Standard of Care Exists to Prove Plaintiff's Malpractice Claims"
Plaintiffs expert, Dr. Rogers is qualified to render his opinion based on Texas Civil Practice & Remedies
Code Chapter 74, which states it does not require that a physician providing an expert opinion on the
applicable standard of care in a suit against a physician be from the same community, or a similar
community, as the defendant physician. See Springer v. Johnson, 280 S.W.3d 322, 326-31 (Tex.App.Texarkana 2008, no pet.)
Furthermore, Drs. Ferris, Shaffer, and Garett all testified that discussing the risks and benefits of
vaccines and performing a blood test to determine a cat's exposure to feline leukemia prior to administering a feline leukemia vaccine isthe prevailing standard of care. See Exhibit "A", pages 36-37 &
61, Deposition of Darrell L. Ferris, DVM; See Exhibit "B", pages 10-11 & 13, Deposition of David Shaffer,
DVM; See Exhibit "C", pages 40-42, Deposition of Alan Garett, DVM. Dr. Shaffer has already admitted he
didnot discuss the risks and benefits of vaccines with Plaintiff nor complete a feline leukemia blood test
prior to administering an unnecessary and unsafe feline leukemia vaccine, which was a deviation from
his own admission of standards of care.
Pg-3
0000292
In addition, Dr. Garett, Defendant's retained testifying expert, has no relevant admissible expert reports
proving what the Corpus Christi veterinarian standard of care entails.
Response to "Plaintiff cites inapplicable and irrelevant lawto try to defeat the hearsay
exception regarding the TBVME's letter reporting its finding of "no violation" of the applicable community standard of care by Dr. Shaffer in treating Plaintiffs cat"
The letter does not reference "community standard ofcare" whatsoever. This decision is currently being
appealed.
Plaintiff did cite federal case law based on the following, "The Texas hearsay exception for public
records and reports is similar to the federal rule. Compare FED. R. EVID. 803(8), with TEX. R. EVID.
803(8). When the federal and Texas rules of evidence are similar, we look to federal case law and the
Federal Advisory Committee Notes when interpreting the Texas rules. See Bradley v. State ex rel. White,
990 S.W.2d 245, 248-49 (Tex. 1999)".
Response to "The recording made by Dr. Garett of Plaintiffs testifying expert, Dr. Rogers, is legally relevant, discoverable, and admissible, and speaks for itself regarding
its context"
Tape recordings made in violation of the federal wiretap statute are, by statute, inadmissible in any judicial proceeding See 18 U.S.C. 2515. In order to gain admission of a tape recording, the offering
party must lay the proper predicate by showing: that the recording device was capable of taking "testimony"; the operator of the device was competent; the authenticity and correctness of the
recording; no changes were made to the tape; the manner of preservation was reliable; the identity of
the speakers; and the testimony was voluntary See Matterof Bates, 555 S.W.2d at 432.
Texas Crim. Proc. Code 18.20 Sec. 2 (c) "This section does not prohibit the useor admissibility
of the contents of a communication or evidence derived from the communication if the communication
was intercepted in a jurisdiction outside this state in compliance with the law of that jurisdiction". In
addition, Dr. Bob Rogers is currently in the process of filing criminal charges in Florida on Dr. Alan Garett pg.4
0000293
for illegally taping and distributing their private conversation. Therefore, the admissibility of the taped
conversation cannot be determined until Florida courts rule on the legality of the taped conversation.
Dr. Robert (Bob) Rogers expected his conversation with Dr. Alan Garett to be private. The conference
they were attending had signs posted stating, "no recording allowed'.
Response to "Regarding Defendant's Counterclaim Against Plaintiff'
Plaintiff asserts, Defendant/Counter-Plaintiffs attorneys Robert C. Hilliard and Valerie L. Cantu filed the
groundless Counterclaim pleading in bad faith, purpose of harassment, and to cause unnecessary
expense. Furthermore, the counterclaim was filed to intimidate Plaintiff in court ordered mediation to
drop her malpractice suit in exchange for dismissal of Defendant's countersuit. Defendant and counsel
did not attend mediation in a good faith effort to resolve this issue.
In addition, Defendant and their attorneys have been aware ofall evidence since the July 22, 2011, small
claims hearing held in Justice Court Precinct 2-1, except for the TBVME decision ofno wrongdoing which
is on appeal.
Plaintiff wholeheartedly believes malpractice killed her beloved cat and that she is entitled to a jury trial.
After the Revolution, our nation's founders made sure to confirm for all citizens that "In suits at
common law . . . the right of trial by jury shall be preserved." This right is enshrined in the Seventh
Amendment to the United States Constitution. It supports the fundamental American value that all
people should be held personally responsibility for their actions. This right makes negligent corporations, careless developers, drunken drivers and child molesters answerable to any ordinary
Americans that they damage. It gives each of us the right to go to the community and hold people and
companies who have done us wrong accountable.
Pg-5
0000294
PRAYER
Plaintiff requests that Defendant's combined Motion for Summary Judgment and Counterclaim be
DENIED in its entirety and ORDER that Defendant take nothing on all of his claims and causes asserted
against Plaintiff and that jury trial commence on scheduled date of May 14, 2012.
By:
Jena Gonzalez, Pro Se(întiff

3717 Aransas St.
attorney on this 30th day of April 2012, by email to Valerie Cantu at valeriec@oconben.com.
Attorney for: Attorney's name:
O'Connell & Avery LLP

Valerie L Cantu
Attorney's address:
Jenii Gonzalez, Pro Se Plaimrfj)

Pg-6
sj
0000295
February 24,2011
Re: Case #11174
ANIMAL HOSPITAL
mf.ube* meric>k anjm*i mcsph* associ* non
Kitty Kat Gonzalez

Darrel L. Ferris, D.V.M. David C. Shaffer, D.V.M.
On October 11, 2010, Kitty Kat presented with a swollen right pelvic limb of several days duration. There was an open draining tract distal lateral thigh. I discussed with the owner my feeling that the wound represented a severe cellulites and that my experience
was that Clavamox was a better first line antibiotic for these lesions. 1 did discuss with
owners that a subcutaneous neoplasia was possible and that if the lesion failed to improve a surgical biopsy, cultures, and special staining of tissue would be necessary to further
. .___._procure_a diagnosis. The patient.never returned for a fully w.up. Previous to the date Kitty Kat had been in on 12/17/2008 and 3/15/2010. On
12/17/2008 Kitty Kat presented to check a wound on her face. The wound was determined to be an abscess and she was given an appropriate amount of Convenia to treat the infection. Kitty Kat was a febrile and otherwise in good health so annual
vaccines were done on this date.
On 03/15/10, Kitty Kat presented for annual vaccine boosters. Again she was examined and appeared to be in good health. On both of these visits the patient received bothNobicac:FeLv lulled vaccine (mterveL) and PureVax Feline 4/ Rabies (Merial). It is my consistent habit to administer the vaccines in the same location to every feline patient. The Nobivac: Felv is injected with a 22-gauge needle in die distal left lateral thigh proximal to the stifle and subcutaneousiy. The PureVax Feline 4/ Rabies is injected vvith a 22-gauge needle in die distal right lateral thigh subcutaneousiy. At the time Ms. Gonzalez informed us of the subsequent diagnosis for Kitty Kat, an Adverse Event report was filed with Merial. As I indicated above 1 knew which vaccine was given and where, the report only involved Merial initially. Upon a request from Ms. Gonzalez, the report was completed by indicating the Nobiac: Felv vaccine was given in the left pelvic leg. In response to the complaint(s), at neither visit in which Kitty Kat received vaccines was Ms. Gonzalez provided with an informed/consent describing possible daiigers associated with vaccines versus the dangers associated with cat patients being unvaccinated. Consistently I administer Rabies vaccine in the distal lateral right
thigh and die Felv vaccine in the left thigh. With my cat patients. I have never been comfortable injecting at or distal to the stifle.
If Kitty Kat had returned for follow-up exam, I would have proceeded to biopsy with
histopathology. As information was gained a proper therapeutic protocol would have

been discussed, including oncological referral. In the terms of a vaccine-associated sarcoma, my continued impression is that the event is rare. In this practice it is a rare event to see fibrosarcoma In general. As there is no definitive histopathological test that specifically associates a definitive cause to a related sarcoma, other than a list of differentiating potential cause, I include vaccine association only when I have a histopath report in my hands following tissue biopsy.
David G. Shaffer, DV!
lâ^M/Wî^^ / M4 u '^
4100 Santa Fe ' Corpus Christi, Texas 78411 (512) 854-5911
0000296
MARCH 2003 Issue
APublication ofthe Texas Board of Veterinary Medical Examiners
Ron Allen, Executive Director
Phone: (512) 305-7555
E-Mail: vet.board@tbvme.state.tx.us Website: http://www.texasonline.state.tx.us/tbvme

Martin E. Garcia, II, DVM, Vice President
Mario A. Escobar
Fax: (512) 305-7556
J. Lynn Lawhon, DVM, President Gary C. Brantley, DVM

Robert L. Lastovica, DVM
Dee A. Pederson, DVM, Secretary

Guy W. Johnsen, DVM M. Rebecca Terry
Dawn E. Reveley
AN OPEN LETTER TO VETERINARIANS

RE: VACCINATION PROTOCOLS
As in many professions, the practice of veterinary medicine is evolving quickly. Practices that
were accepted even five or 10 years ago may now be outdated by advances in scientific and
medical knowledge and techniques. One of these areas of practice involves vaccination proto
cols. In the last several years there have been a number of studies relating to vaccination inter vals, durations of immunity, risks of vaccination, and the efficacy of certain vaccines that are routinely used by many veterinarians. These issues are currently being addressed in many vet
erinary circles, both scientific and clinical.
The Board encourages veterinarians to consider examining their long-standing vaccination protocols in light of recent developments. To simply adhere to custom may, in some cases, not be enough to meet the evolving "standard of care." For example, recent studies have cast serious doubt onthe advisability of routinely administering vaccines for coronavirus, borreliosis (Lyme Disease), leptospirosis and other infections. A recent report ofthe AVMA Council on Biologic and Therapeutic Agents on cat and dog vaccines (JAVMA, Vol. 221, No. 10, Nov. 15, 2002) is an excellent article in
point. The article discusses suggested core and non-core vaccines and vaccination intervals based on realistic assess
ments ofexposure to infectious agents. (See also comments on the report found in DVM, Vol. 33, No. 1, January_2003.)
In light of current trends, the Board recommends the following:
(1) Veterinarians should keep informed ofthe latest developments in vaccines and vaccinations through regular
continuing education and self-study.
(2) A veterinarian should communicate with clients the benefits and risks associated with administration of
vaccines.
(3) The veterinarian should then seek the client's consent to the vaccinations.
Answers to questions on different protocols and consent concepts, newtrends and studies, etc. can be found in the differ
ent reports surfacing on vaccine issues from the following organizations: American Animal Hospital Association (AAHA); American Veterinary Medical Association (AVMA); American Association ofFeline Practitioners (AAFP); Texas A&M College ofVeterinary Medicine; and the Texas Veterinary Medical Association (TVMA). The Board, by making this statement, has no intention to "micro manage" the practice ofthe profession. The Board un derstands that no one vaccination and vaccination interval protocol will apply to all patients and that a veterinarian's in
formed discretion must ultimately prevail. The Board urges veterinarians to address these considerations and discuss them with theirclients in order to provide the best possible care fortheir patients.
0000297
BOARD NOTES
. r t ^. v-
^-^'^WWti^'^Sf^'^KI
November 2005 Issue
A Publication of the Texas Board of Veterinary Medical Examiners

E-Mail: vet.boardfg)tbvme.state.tx.us Website: http://www.tbvine.state.tx.us
Guy W. Johnsen. DVM, Vice President Gary C. Brantley. DVM Dee A. Pederson, DVM
Phone:(512)305-7555
Ron Allen, Executive Director Fax:(512)305-7556
Robert Lastovica. DVM, President Patrick M. Allen, DVM

Paul Martinez
Bud E. Alldredge, Jr.. DVM, Secretary

Mario A. Escobar
Dawn E. Reveley
BOARD STATEMENT OF POLICY ON
VACCINATION PROTOCOLS AND INFORMED CONSENT
In February 2003, the Board adopted AN OPEN LETTER TO VETERINARIANS RE: VACCINATION PROTO
COLS. In the LETTER, the Board noted that many aspects ofveterinary practice were evolving quickly, including the area ofvaccination protocols - vaccination intervals, durations ofimmunity, risks ofvaccination, and the efficacy ofcertain vaccines that are routinely used by many veterinarians. Recent studies have cast new light on these issues,
prompting organizations such as the American Veterinary Medical Association, American Association of Feline
Practitioners, and American Animal Hospital Association, to issue reports suggesting a need to revise some com
monly accepted practices.
While the Board has stated that it does not intend to "micro manage" the practice ofveterinarians in this area, it did
sent to the vaccinations offered. The Board followed up with a reminder in the November 2004 Board Notes, again urging veterinarians to review their vaccination protocols. The Board noted that mere adherence to custom may, in some cases, be insufficient to meet the evolving standard ofcare for administering various vaccines. For example, coronavirus vaccines are still being routinely prescribed for dogs and cats by some veterinarians, although recently
published positions of the veterinary associations unanimously do not recommend them.
recommend that veterinarians keep informed of the latest developments in vaccines and vaccinations; communicate with clients the benefits and risks associated with the administration of any given vaccine; and seek the client's con
The Board believes that veterinarians are becoming aware ofthe vaccination issues and changes are being made.
tions are that not enough is being done to inform the client ofthe need for the offered vaccines and the securing of
informed consent. This simply involves a veterinarian providing enough information about the vaccines to the client so that he or she can give a reasoned consent to the recommended vaccines. This, in turn, requires a discussion of Some are beginning to discuss with their clients the concept of "core" versus "non-core" vaccines. Clients are also becoming better informed on vaccination issues. One area that is still of concern is that of informed consent. Indica
risks versus benefits ofvaccination on a pet-by-pet basis. The benefits ofcertain vaccines, for example, distemper
and parvovirus, are well known health threats and do not require detailed explanation, while a vaccine for Lyme Dis ease, where risk is not the same in all locations, may need more explanation. Options to a vaccine may be available.
Less frequent vaccinations may provide the necessary protection in many cases.
Once the risks and benefits of the vaccines have been explained to a client, the veterinarian should seek the client's consent for the recommended vaccines. A written "authorization to vaccinate" is recommended, but ifa written au
thorization is not used, the patient record should be carefully noted to show that the client approved the vaccines after an explanation ofbenefits and risks. Examples ofmodel consent forms are now widely available.
for their patients. The Board believes that informed consent should become the standard for vaccination protocols as well. Veterinarians are urged to consider this matter with the goal in mind of improving veterinary services for all
their patients.
Informed consent is not a new concept in veterinary medicine. Veterinarians routinely seek consent for treatments
0000298
RE: Mediation
From: Valerie Cantu <valeriec@oconben.com>
To: Jena Gonzalez
Subject: RE: Mediation

Date: Apr 11, 2012 12:52 PM
Dear Ms. Gonzalez:
You are correct that I previously advised you that no monies would be offered to you at mediation, since
our clients' doctors continue to believe that they did nothing wrong in treating your cat and since the
underlying insurance policy requires the doctor's consent to settlement as a prerequisite to any settlement negotiations and offers being made and no such consent has been given by the doctors. Regarding the doctors' lack of knowledge of the court order regarding mediation, pursuant to the relevant insurance policy, the insurer controls and directs the defense and therefore, the order of referral to mediation was
sent to the insurer's attention for handling; however, since the doctors do not consent to settlement, the insurer cannot offer any money to you at mediation. The insurer asked me to let you know this fact up
front before any mediation took place, so that you would not come to mediation with an expectation of money being offered to you. Given the Board's recent finding of no wrongdoing by Dr. Shaffer and given the evidence that came to light during the deposition of Dr. Rogers, Mr. Hilliard instructed me to file a counterclaim and summary judgment motion against you, as he and the Defendant feel that your continued pursuit of your claims is groundless and harassing to the Defendant and its doctors. The doctors are willing to mediate this matter to enable you a chance to try to resolve the counterclaim, but I respect your decision to forego mediation and will advise Mr. Hilliard, the Defendant, and the insurer accordingly. In addition, pursuant to your below request, I will ask the Dispute Resolution Center to
cancel the April 20* mediation.

Best regards,
Valerie L. Cantu
Attorney at Law O'Connell & Avery LLP 13750 San Pedro, Suite 110 San Antonio, Texas 78232 Telephone: (210) 824-0009 Telecopier: (210) 824-9429
This e-mail message is a privileged and confidential communication and is transmitted for the exclusive information and use of the addressee. If the reader of this e-mail message is not the intended recipient or a representative of the intended recipient, please do not read, copy, or retransmit this e-mail message, and destroy it immediately. You are hereby notified that any review, dissemination, or copying ofthis e-mail message or any ofthe information contained within it is prohibited.
From: Jena Gonzalez [mailto:gil4584@peoplepc.com] Sent: Wednesday, April 11, 2012 12:10 PM
To: Valerie Cantu
Subject: Mediation
Dear Ms. Cantu, ,
As you are aware I attempted to schedule court ordered mediation with you on or about the week of March 26, 2012, as required by the court order. You informed me that your client was not going to agree to any monetary settlement therefore mediation would not be scheduled. During depositions it was
discovered that Dr. Ferris nor Dr. Shaffer were even aware of the mediation order. I did not receive an
objection to the mediation order. The agreed Docket Control Order states the deadline to mediate as March 30, 2012.1 am concerned thaftaking additional time off of work to mediate will be futile. It has been my position all along to try and settle this case prior to the expense of trial as several attempts by
0000299
me have failed, if your clients are serious about a settlement agreement perhaps an offer should be made to me in writing. Discovery is ending on April 13, 2012, therefore we are all aware of each others position in this case. I have attached an updated record of my expenses to date. I am unable to discuss this matter via telephone as I am at work. Please cancel the mediation date of April 20, 2012, at 9:00 am as previously scheduled via our telphone conversation this morning. Sincerely,
Jena Gonzalez
PeoplePC Online
A better way to Internet http://www.peoplepc.com
0000300
Cause No. 2011-CCV-61850-5 Jena Gonzalez

Plaintiff At Law No. 5
In the County Court
v.
Associates, Inc.
Defendant
DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO DEEFNDANTS' NOEVIDENCE & TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
this Reply to Plaintiffs Response to Defendant's No-Evidence & Traditional Motions for Summary Judgment and in support of same, respectfully shows the Court as follows:
Plaintiff relies on Texas law as iiappUes to health care providers who treat
humans. Such law is inapplicable to Texas veterinarians providing health
care to animals.
Plaintiff is correct that, where a statute has been enacted which supersedes the locality
rule, the locality rule no longer applies. See Bakhtari v. E.slaie of Dumas, 317 S.W.3d 486: 494 (Tex. App.--Dallas 2010. no pet.) (explaining that, with the enactment of exgert-^Stn
rn 5>.
requirements of Chapter 74 of the Texas Civil Practice and Remedies Code, "a differ^pt srjgd
is now imposed bv statute" as to providers treating humans). However. Chapter 74 ai^ thtfeas
cited by Plaintiff regard the standard ot care applicable to health care providers^vho^-tre
humans. See Tex. Civ. Prac. & REM. Code 74.001(12)(A) (defining "health care pttfvicfe?'
100-506
Page 1
0000301
only those who treat humans, including specifically, a registered nurse, a dentist, a podiatrist, a
pharmacist, a chiropractor, and an optometrist).
Chapter 74 does not apply to veterinarians, and the Texas legislature has enacted no
comparable medical liability statute as to veterinarians. Accordingly, the locality rule continues
to apply to health care claims asserted against veterinarians. See Downing v. Gully, 915 S.W.2d
181, 183 (Tex. App.-Ft. Worth 1996, writ denied) (adopting the community standard of care applied to physicians and surgeons in medical malpractice cases prior to the Legislature 's
enactment of Chapter 74 to veterinary malpractice cases); see also Bakhtari v. Estate of Dumas,
317 S.W.3d 486, 494 (Tex. App.-Dallas 2010, no pet.) (explaining that, with the enactment of expert witness requirements of Chapter 74 of the Texas Civil Practice and Remedies Code, "a different standard is now imposed by statute" as to providers treating humans).
And in fact, the Texas Board of Veterinary Medical Examiners ("TBVME") has
acknowledged continued application of the locality rule to veterinarians in its response to the complaint filed by Plaintiffs retained testifying expert, Dr. Rogers, against all small animal
veterinarians utilizing the same adjuvanted vaccines and vaccinations practices and procedures at issue in this case. Specifically, the TBVME already has advised Dr. Rogers that the very
vaccines/vaccination practices and procedures at issue in this lawsuit are not subject to any one,
nationalized standard of care, but instead, such choices are left to the discretion of the treating
veterinarian:
With regard to the community standard of care, the Board has stated on several occasions that it will not require exclusive standards of practice that must be followed by all veterinarians absent a general measure of agreement among veterinarians. The Board recognizes that veterinarians must be free,
within generally accepted practice guidelines, to exercise their discretion in applying treatment and medical practices ... The Board realizes that hard and fast rules on such matters are always subject to disagreement, depending upon the unique circumstances that may confront a veterinarian. The same is true for the
100-506
Page 2
0000302
matter of vaccinations and vaccination intervals. You feel strongly that certain vaccination practices should be changed, based on information that you have gleaned from different sources. Much of this information is in the form of recommendations only. From our perspective, definitive large-scale studies are lacking. In light of this, many veterinarians are reluctant to agree that changes to vaccination protocols are needed or appropriate at this time. ... in the final analysis, until more clearly definitive information is available, the Board believes that each veterinarian must make practice decisions based on experience and knowledge of patients and the community standard of care. Requiring detailed vaccination practices by rule would create much disagreement among veterinarians and is something the Board is not prepared to do at this time. ... I know this is not the response you want ...
See Exhibit "1" of this Reply, a true and correct copy of the May 7, 2002 letter of Ron Allen,
Executive Director of the Texas Board of Veterinary Medical Examiners, to Plaintiffs retained expert. Dr. Bob Rogers (emphasis added).
No Evidence of the Relevant Standard of Care Exists to Prove Plaintiffs
Malpractice Claims
To prove her claims, Plaintiff first must offer competent, admissible evidence of (1) the
standard of care applicable to a small animal veterinarians of ordinary skill and care in Corpus Christi, Nueces County, Texas regarding using adjuvanted versus non-adjuvanted vaccines and
regarding no less than thirteen 13 aspects of vaccination practices and protocols for cat
vaccinations (See Plaintiffs First Amended Original Complaint, at pp. 3-6, .Iffil6-30), (2) that
Defendant and Dr. Shaffer breached such standard of care as to the thirteen (13) alleged acts of
professional negligence, and (3) that the alleged breaches by Defendant and Dr. Shaffer
proximately caused the cat's death.
Plaintiffs expert, Dr. Rogers, already has repeatedly admitted that he has no knowledge
of the standard of care applicable to Defendant and Dr. Shaffer. See Exhibit !1B" of Defendant's
combined Motion for Summary Judgment at 40:3-11 & 45:9-19 & 47:8-15 & 57:5-9. Plaintiff cites inapplicable and irrelevant law to try to defeat the hearsay exception regarding the TBVME's letter reporting its finding of "no
100-506
Page 3
0000303
violation" of the applicable community standard of care by Dr. Shaffer in

treating Plaintiffs cat.
The letter in question is a record, report and data compilation setting forth the activities of
the TBVME to investigate and rule on Plaintiffs complaint and also setting forth the factual
findings resulting from the TBVME's investigation pursuant to the authority granted to the
TBVME by Texas law. Accordingly, the letter falls under the hearsay exception provided by Rule 803(8) of the Texas Rules of Evidence. See Tex. R. Evid. 803(8); see also Tex. Health and
Human Servs. Comm'n, 2010 WL 2789777, at *1, 5 (Tex. App.-Austin July 14, 2010, pet.
denied) (holding that EEOC determination letter regarding Plaintiffs complaint was admissible pursuant to Rule 803(8) of the Texas Rules of Evidence); Cowan v. State of Tex., 840 S.W.2d 435, (Tex. Crim. App.-1992) (en banc) (holding that report of findings used by the U.S. Martine
Corps Medical Board was admissible pursuant to Rule 803(8) of the Texas Rules of Evidence); Bingham v. Bingham, 811 S.W.2d 678 S.W.2d 678, 684 (Tex. App.-Ft. Worth 1991, no writ)
(holding that social study made by social worker who did not testify in court was "a matter authorized and imposed by law upon social workers, and that the workers have the duty to make such a report" and "the reports consist of factual findings resulting from such investigations made pursuant to authority granted by law" and thus, the report was an exception to hearsay
under Rule 803(8) of the Texas Rules of Civil Procedure).
In response to the foregoing, Plaintiff cited no Texas law to the contrary.
Instead,
Plaintiff cited federal caselaw from the United States Courts of Appeal for the First, Fourth, Ninth, and Eleventh Circuits which are factually distinguishable from the facts of the instant case and which are not binding on this Court.
100-506
Page 4
0000304
The recording made by Dr. Garett of Plaintiffs testifying expert, Dr. Rogers, is legally relevant, discoverable, and admissible, and speaks for itself
regarding its context.
Plaintiff contends the recorded conversation of Dr. Garett and Dr. Rogers was illegal,
based on certain Florida criminal statutes which make it a crime to record an oral communication
made under circumstances in which the person being recorded exhibits a reasonable expectation
that the communication will not be recorded. See Fla. Stat. Ann. 934.02(2) (emphasis
added). The oral communication in question took place on January 14, 2012, in Orlando, Florida, while Dr. Garett and Dr. Rogers (and approximately 6,000 other veterinarians) were attending the 2012 North American Veterinary Conference at an Orlando resort. During a break in programming, Dr. Garett and Dr. Rogers conversed, with the other veterinarians attending the conference program all around them. Before he spoke to Dr. Garett, Dr. Rogers never advised Dr. Garett that he did not expect or wish to be recorded, and no reasonable expectation of privacy at to their conversation existed. See Dept. of Agric. and Consumer Servs. v. Edwards, 654 So.2d 628, 632-33 (Fla. App. [1st Dist.] 1995, review denied) (explaining that Section
934.03 only protects oral communications where there is "a societal recognition that the expectation [of privacy] is reasonable" and finding no reasonable expectation of privacy
regarding a conversation occurring during a meeting between an employee and his supervisors in
the supervisor's office to discuss a grievance filed by the employee); see Jatar v.Lamaletto, 758
So.2d 1167, 1169 (Fla. App. [3rd Dist.] 2000) (affirming that, under Florida law, "Society is
willing to recognize a reasonable expectation of privacy in conversations conducted in private
homes, but the expectation does not automatically extend to conversations held outside the home, even as to conversation conducted in private business offices) (emphasis added). Furthermore, Dr. Rogers is Plaintiffs retained testifying expert, and Dr. Garett is Defendant's retained
100-506
Page 5
0000305
litigation expert, and Dr. Rogers voluntarily communicated with Dr. Garett regarding this
specific litigation matter. As a litigation testifying expert voluntarily conversing with the
opposing party's litigation expert, no reasonable expectation of privacy existed regarding the
experts' conversation. In addition, Florida criminal statutes are irrelevant and inapplicable to
this Texas civil suit regarding the alleged veterinary malpractice of Defendant and its
veterinarian, Dr. David Shaffer. Instead, only Texas statutes and Texas case law are relevant to this civil litigation. As to the context of Dr. Rogers' admission that he does not fault the veterinarians,
Plaintiff has attached the entire transcription of the recorded conversation in question. transcription is verbatim, and plainly and unambiguously speaks for itself Regarding Defendant's Counterclaim Against Plaintiff.
The
Plaintiffs only response to Defendant's counterclaim is that undersigned counsel should

have filed the counterclaim sooner.
Until discovery was substantially completed in this case, Defendant did not know the actual evidence and expert testimony, intended to be offered by Plaintiff. The deadline for
Plaintiff to designate her testifying experts did not occur until January 13, 2012. Moreover,
although Defendant's counsel began requested the oral deposition of Plaintiffs liability expert,
Dr. Robert "Bob" Rogers, on February 9, 2012, Plaintiff subsequently hired (and some weeks later, let go) an attorney and did not present Dr. Rogers for oral deposition until March 22, 2012. At Dr. Rogers' March 22nd deposition, Defendant's counsel first discovered the following:
Dr. Rogers has no knowledge of the veterinary standard of care applicable to and practiced by small animal veterinarians of ordinary skill and care practicing in the Corpus Christi, Nueces County, Texas under the same or substantially similar circumstances. See Exhibit "B" of Defendant's combined Motion for-Summary Judgment at 40:3-11 & 45:9-19 & 47:8-15 & 57:5-9.
100-506
Page 6
0000306
Dr. Rogers and/or Dr. Rogers' nonprofit organization is financing Plaintiffs litigation against Defendant. See id. at 80:17-82:15 & 83:7-86:25;
Plaintiff and Dr. Rogers conspired together to determine whether the TBVME would render its decision regarding Plaintiffs malpractice grievance/complaint against Dr. Shaffer until after Plaintiffs original small claims case was adjudicated, because Plaintiff expressly acknowledged and knew that, if the
TBVME found no wrongdoing by Dr. Shaffer, its finding was competent evidence establishing no wrongdoing by Dr. Shaffer and Defendant. See id. at
95:9-96:18 & 99:5-21 & 110:14-18 & 116:1-118:6;
Plaintiff and Dr. Rogers continue to pursue Plaintiffs claims against Defendant and continue to seek donations of monies from third parties to fund Plaintiffs lawsuit (including to pay for an attorney, even though Plaintiff currently is pro se). with Plaintiff and Dr. Rogers agreeing that Dr. Rogers will use the donations to sue the TBVME for finding no wrongdoing by Dr. Shaffer regarding Plaintiffs grievance/complaint. See id at 87:14-19 & 89:20 - 90:24.
Meanwhile, the TBVME did not issue its decision of no wrongdoing by Dr. Shaffer in treating Plaintiffs cat until March 2, 2012.
The foregoing newly discovered facts evidence the lack of merit of. and harassment by, Plaintiffs claims. Defendants' attorneys did not delay filing Defendant's counterclaim. Quite
the opposite, Defendant's counsel filed Defendant's counterclaim on April 5, 2012, within two
weeks of obtaining Dr. Rogers' expert testimony (or more precisely, the lack thereof) regarding the applicable medical standard of care and his expert file, documenting his disturbing
communications with Plaintiff. Notwithstanding. Plaintiff continues her campaign of harassment
and frivolity against Defendant, its testifying expert, and its legal counsel. As of the filing of this Reply, Defendant has incurred more than $25,000.00 in reasonable and necessary attorneys' fees,
court costs, and other litigation expenses, for Defendant to fully and adequately defend itself in this matter and to protect itself against Plaintiff.
100-506
Page 7
0000307
PRAYER
In light of the foregoing, Defendant requests that Defendant's combined Motions for
Summary Judgment be set for hearing and that, upon completion of the hearing, the Court
GRANT the combined Motion in its entirety and ORDER that Plaintiff take nothing on all of her claims and causes of action asserted against Defendant, that Defendant prevails on its
Counterclaim asserted against Plaintiff, that Plaintiffs entire suit is dismissed, with prejudice,
and that Defendant is entitled to and is awarded all attorneys' fees and court costs incurred herein, as well as pre-judgment interest and post-judgment interest, and all such other and further
relief at law or in equity to which Defendant may show itself to be justly entitled.
By: tvoWt l- ItJlllufVt^-f^^

Robert C. Hilliard
W^
719 S. Shoreline, Ste. 500 Corpus Christi, Texas 78401

Telephone: (361)882-1612 Telecopier: (361)882.3015
and
100-506
Page 8
0000308)
n
By:
UftltAU. <* UaJu.

Keith B. O'Connell
Valerie L. Cantu State Bar No. 24012498
SOUTH TEXAS VETERINARY ASSOCIATES.

INC.
has, this /'IptK day of April, 2012, been delivered via hand delivery, to:
3717 Aransas
Corpus Christi, Texas 78411 r
Valerie L. Cantu
100-506
Page 9
0000309
TEXAS BOARD OF
VETERINARY MEDICAL EXAMINERS

RON ALLEN, EXECUTIVE DIRECTOR
MARTIN E. GARCIA. H. D.V.M., PRESIDENT

RAYMONDVILLE, TEXAS
MARIO A. ESCOBAR. MEMBER
DEE A. PEDERSON, D.V.M.. VICE-PRESIDENT

AUSTIN, TEXAS
GARY C. BRANTLEY, D.V.M., SECRETARY

RICHARDSON, TEXAS
ROBERT L LASTOVICA, D V.M.. MEMBER

FREDERICKSBURG. TEXAS
DAWN . REVELEY, MEMBER

CEDAR PARK. TEXAS
CRYSTAL CITY, TEXAS GUY W. JOHNSEN, D.V.M., MEMBER

EL PASO, TEXAS
I LYNN LAWHON, D.V.M.. MEMBER

ABILENE. TEXAS
M REBECCA TERRY, MEMBER

ALPINE. TEXAS
May 7, 2002
Bob Rogers, D.V.M.

5703 Louetta
Spring, Texas 77379
EXHIBIT
Re: Your letter of April 17, 2002

Dear Dr. Rogers:
I havereceived your letter of April 17, 2002 andcarefully considered the information that you
presented.
First,we cannot consider your letter a formal complaint because it relates to "all licensed
veterinarians." The Board considers only complaints against individual veterinarians that meet
therequirements ofRules 575.26 and 575.27. In addition, the Board does not pursue sanctions against veterinarians who meet the community standard of care set out in Rule 573.22. With regard to the community standard of care, the Board has stated on several occasions that it will notrequire exclusive standards of practice that must be followed by all veterinarians absent a general measure of agreement among veterinarians. The Board recognizes that veterinarians
must be free, within generally accepted practice guidelines, to exercise their discretion in
applying treatments and medical practices. This is why, for example, theBoard does notdictate by rule that one method of euthanasia must be used to the exclusion of all others, although the Board has repeatedly been urgedto do so by certain groups and individuals. The Board realizes
that hard and fast rules on such matters are always subject to disagreement, depending upon the
unique circumstances that may confront a veterinarian.

The same is true for the matter of vaccinations and vaccination intervals. You feel strongly that
certain vaccination practices should be changed, based oninformation that you have gleaned
from different sources. Much of this information is in the form of recommendations only. From
ourperspective, definitive large-scale studies are lacking. In light of this, many veterinarians are
reluctant to agree that changes to vaccination protocols are needed or appropriate at this time. The Board has previously statedthat the subject of vaccinations is evolving and open to different interpretations. The Board acknowledges thatthesubject isbeing discussed in several settings, For example, the USDA's Center for Veterinary Biologies isstudying the matter but takes the
333 GUADALUPE, SUTTE 2-330 - AUSTIN. TEXAS 78701-3998 - TELEPHONE: (512) 305-7S55 - E-MAIL: veLboardl@tbvme.stale.tt.us-FAX: (512)305-7556
0000310
Bob Rogers, D.V.M. May 7, 2002

Page 2
position that current manufacturers' recommended vaccination intervals are appropriate until the duration of immunity issue is better defined. Texas A&M's College of Veterinary Medicine is incorporating longer immunity findings into their teaching programs. But in the final analysis, until more clearly definitive information is available, the Board believes that each veterinarian must make practice decisions based on experience and knowledge of patients and the community standard of care. Requiring detailed vaccination practices by rule would create much disagreement among veterinarians and is something the Board is not prepared to do at this time.
Being a matter of veterinarian discretion, conducting vaccination protocols in a manner that is generally accepted among other veterinarians is not a deceptive trade practice. At least one vaccination protocol, rabies vaccinations, is set by Health Department rule and is not discretionary.
I know this is not the response you want, but the Board has spoken on this issue in the past and will probably not be inclined to address it again soon. However, I will circulate your letter and all
attachments to the Board for any input that the members may have. Sincerely,
Ron Allen
Executive Director
cc. Board Members
0000311
O ' C o n n e l l & Avery
llp
a t t o r n e y s and c o u n s e l o r s 137so s a n pedro, suite: mo
San Antonio. Texas 78232

Telephone (2IO) (2 I O) B21-OO09 B24-S1E9
Email.:
valeriec(o>oconben.com
Facsimile
April 26,2012
Via CertifiedMait/RRR 7011 2970 0000 0243 5762

Nueces County Clerk 901 Leopard Street, Room 201 Corpus Christi, Texas 78401 Re: Cause No. 201 l-CCV-61850-5; Jena Gonzalez v. South Texas Veterinary Associates, Inc., in the County Court at Law No. 5, Nueces County, Texas
Dear Ms. Barrera:
Enclosed for filing with the Court are the following: Defendant South Texas Veterinary Associates, Inc.'s Reply to Plaintiffs Response to Defendant's No-Evidence and Traditional Motions for Summary Judgment.
Also enclosed is an extra copy of the foregoing document. We ask that you please file-stamp the extra copy with the date and time of filing of same and return the copy to us via the enclosed self-addressed, postage-paid envelope.
By copy of this letter and its enclosure, Plaintiff is being served same via the means
indicated below.
We appreciate your assistance with this matter. Very truly yours,
Cl
^VLC
" P
Valerie L. Cantu
cc:
(Via CM/RRR, w/Encs.: 7011 2970 0000 0243 5779)

Ms. Jena Gonzalez 3717 Aransas
0000312
Cause N6.2011-CCV-61850-5
Jena Gonzalez Plaintiff At Law No. 5
In the County Court
v.
Associates, Inc.
Defendant
Nueces County, Texas j>
DEFENDANT'S SUR-REPLY TO PLAINTIFF'S REPLY TO DEFENDANTS' NOEVIDENCE & TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
Defendant SOUTH TEXAS VETERINARY ASSOCIATES, INC. ("Defendant'-) tiles
this Sur-Reply to Plaintiffs Reply to Defendant's No-Evidence & Traditional Motions for Summary Judgment and in support of same, respectfully shows the Court as follows:
Plaintiff has admitted into evidence no competent, admissible testimony of Dr. Shaffer regarding: the specific standard of care applicable to Dr. Shaffer as to the subjective cat in
question, given the specific factual circumstance unique to the cat: regarding Dr. Shaffer's actual treatment and care of the healthy, adult cat in question, given the specific factual circumstances
unique to the cat in question; regarding that Dr. Shaffer violated the applicable standard of care
in treating the cat in question; and regarding whether any alleged breach of the applicable
standard of care proximately caused the cat in question's death.
By her Reply, Plaintiff raises no new substantive arguments except that, as to Plaintiffs allegations that Dr. Shaffer negligently failed to advise her of the risk of vaccine-associated sarcoma and that Dr. Shaffer negligently failed to test her cat for leukemia prior to vaccinating it,
100-506
Page 1
0000313
she erroneously claims that Dr. Shaffer "has already admitted he did not discuss the risks and
benefits of vaccines with Plaintiff nor complete a feline leukemia blood test prior to
administering an unnecessary and unsafe feline leukemia vaccine." See Plaintiffs Reply at p. 3 (emphasis in original). Again, the risk at issue in this case is the extremely slight risk of vaccineassociated sarcoma, and Dr. Shaffer expressly testified that he and Defendant's Corpus Christi practice do not routinely advise cat owners of such a risk because such sarcomas "are such a rare
event" and "in reference to the basic accepted standard of care, we don't lean towards, you
know, expressing the least likely of side effects that could occur."
See Exhibit "1" of
Defendant's Reply, a true and correct copy of the April 4, 2012 oral deposition testimony of Dr.
David Shaffer, at 31:2-32:3 & 53:16-59:23. In addition, Dr. Shaffer also expressly testified that
he and Defendant's Corpus Christi practice do not routinely test overall healthy, adult cats such as that of Plaintiff for leukemia prior to vaccinating the cats, but instead, they only routinely test kittens for feline leukemia prior to administering vaccines. See Exhibit 1, at 13:21-14:6 (testifying, among other things, "Generally, overall healthy cats that are adults, we have before
vaccinated for the feline leukemia without a test.") (emphasis added). Lastly, Plaintiff now claims an absolute constitutional right to proceed to jury trial on this
matter. Motions for Summary Judgment like that of this Defendant are not unconstitutional or
otherwise illegal or improper. Furthermore, no plaintiff has a constitutional right to continue to prosecute claims for which there is no evidence sufficient to meet a plaintiffs evidentiary burden
of proof or for which there is evidence sufficient to negate one or more elements of the plaintiffs claims. Moreover, no plaintiff has a constitutional right to prosecute frivolous and harassing claims to trial, at the expense and waste of time, money, and other valuable resources
of the jurors, the defendant, and the Court.
100-506
Page 2
0000314
Robert C. Hilliard State Bar No. 09677700
719 S. Shoreline, Ste. 500
and

SOUTH TEXAS VETERINARY ASSOCIATES,

INC.
100-506
Page 3
0000315
has, this jQ4i\ day of April, 2012, been delivered via certified mail, return receipt requested,
to:

3717 Aransas
r.
1AM.
Valerie L. Cantu
100-506
Page 4
0000316
DAVID SHAFFER, DV
CAUSE NO.
2011-CCV-61850-5
JENA
GONZALEZ
IN THE COUNTY COURT
Plaintiff(s)
VS.
AT LAW NUMBER FIVE

VETERINARY
(5
SOUTH TEXAS
ASSOCIATES,
INC.
Defendant(s)
NUECES COUNTY,
TEXAS
10
11 12 13 14 15 16 17
18 19
******************************* *~* **************** + + + **+.*.
ORAL DEPOS^-TlS^^F'
DAVID>SHAEFER^DVM
>*
APR:iL%, "2 012
************************.* *******************************
ORAL DEPOSITION OF DAVID SHAFFER,
DVM,
produced as
a wirtness at^ the instance of the Defendant, and duly sworn,

was\taken m the above-styled and numbered cause on APRIL
4, 20^2^from 1:20 p.m. to 4:05 p.m., before MARCY A.

WELLS, CSR in and for the State of Texas, reported by
20 21
machine shorthand, at the offices of DepoTexas-Corpus
22 23
24
Christi, 1450 Wells Fargo Tower, 615 North Upper Broadway,

Corpus Christi, Texas, pursuant to the Texas Rules of Civil
Procedure.
25
DepoTexas
888.893.3767
EXHIBIT
0000317
DAVID SHAFFER, DVMW
1
2
APPEARANCES
4
5
6
7
FOR THE PLAINTIFF(S):

PRO SE
FOR
THE
DEFENDANT:
MS.
VALERIE
L.
CANTU
i
n 12 13 14 15
O'Connell & Avery 13750 San Pedro, Suite 110 San Antonio, Texas 78232
16
17 18 19 20 21
22 23 24 25
DepoTexas
888.893.3767
0000318
DAVID SHAFFER, DVr
rt^J
13
9 10
11 12 13 14 15 16 17 18
19 20 21 22 23
24
Can you explain then why you did not test
25
Kitty Kat for feline leukemia prior to administering the
DepoTexas
888.893.3767
0000319
rtAO,Q
DAVID SHAFFER, DVM
14
feline
leukemia vaccine?
I don't know exactly why.
On that day,
I did
3
4
not.
have
Generally,
before
overall healthy cats that are adults, we

feline leukemia without a
vaccinated for the
5
6
7
test.
begin.
Typically, we test all the kittens before they
9
10 11
12
13
14
15 16 17
18
19 20 21
22
23 24
25
Vb
DepoTexas
888.893.3767
0000320
DAVID SHAFFER, DVM
31
1
"Some reports suggest that, in cats, the
3
4
administration of certain veterinary biologicals may induce

the development injection site fibrosarcomas. Prior
5
6
exposure to the disease, or disease latency, are conditions

in which the vaccination will not alter the course of the
7
8
disease.
Therefore, diagnostic testing of all cats for

It is
FeLV antigen prior to vaccination is recommended.
9
10
important to advise the cat owner of the situation prior to

vaccination."
11
12
And do you advise cat owners of that,

on there?
of the
recommendations
13
Typically,
I do.
14
15 a
Q
sarcoma?
You advise them it's possible they could get
16
Not necessarily a sarcoma.
It's such a rare
17
18
19
event that we advise more in regard to the risk to benefit

ratio, side strongly on the prevention of a disease that,
is fatal.
most often,
20
So, you don't feel like that
In other
21
words, the vaccine company feels it's important enough to
22
23
24
put it on their label, that that's a possibility, and that

you should inform the cat owner, but you don't feel the
same way?
25
I think, in reference to the basic accepted
DepoTexas 888.893.3767
0000321
rt
DAVID SHAFFER, DVI^P
32
1
2
3
4 5
standard of care, we don't lean towards, you know,

expressing the least likely of side effects that could
occur.
6
7
9
10 11 12 13 14 15 16 17
18
19
20 21
22 23 24 25
DepoTexas
888.893.3767
0000322
DAVID SHAFFER, DVM w
53
1
3 .
4
5 6
7
8
9
10
11
12
13
14
EXAMINATION BY MS. CANTU:
15 16 17
18
Dr.
Shaffer,
I had a few questions to clarify
some of your testimony.

Corpus Christi,
How long have you practiced in
Nueces County?
19 20 21
A Q
A grand total of 17 years. And during your 17 years of practice in

i
Corpus Christi and Nueces County,
have you had an
22
23 24
opportunity to confer with other veterinarians in Corpus

Christi regarding their practices and procedures?
A Yes.
25
Including regarding vaccines used by them and
DepoTexas
888.893.3767
0000323
DAVID SHAFFER, DVM^

54
1 2
3
vaccination protocols, practices, administering vaccines?

A Yes.
and procedures for
4
5
And in any of those discussions, would you
and these other Corpus Christi vets discuss any changes in
6 7
8
vaccines or vaccination procedures that you learned in vet schools that have evolved over the years of practice?
A Yes.
9 10 11 12 13
And if a specific change was made by one of
your colleagues regarding warnings or risks that are disclosed to patients regarding a vaccine or an anesthesia or any other type of therapeutic medicine given to patients in Corpus Christi, is that also something that would be
14
15
discussed by you and your colleagues in Corpus Christi?

A Yes.
16
17
18
Have you ever,
in your 17 years of practice,
been advised by any of your colleagues in Corpus.Christi,

Texas that practice small animal veterinary medicine that
19
they specifically warn and disclose the 1 in 10,000 to 1 in
20
21
40,000 risks of a vaccine associated sarcoma from any

vaccine?
22
23
24
MS-r_GONZALEZ:
Q
A
Objection,
form.
You can answer.

No.
25
Isn't that the type of information that you,
DepoTexas
888.893.3767
0000324
DAVID SHAFFER, DVNT
55
1
2
3
as Corpus Christi small animal vets, confer on and discuss,

as part of your communications with one another?
A Yes.
Do you know of any of your colleagues in
5
6
7
8
Corpus Christi that practice small animal feline veterinary

medicine that specifically warn of the risks of fibro
vaccine associated fibrosarcomas?
A I do not.
or
9
10
11 your objection?
MS. GONZALEZ:
MS. CANTU:
Objection, form.
And what's the basis for
12
MS. GONZALEZ:
Well, I had my list last
13
time I was here and you wouldn't let me give my --
14
15 with the rule.
MS. CANTU:
No.' I asked you to comply
16
17
MS. GONZALEZ:
Right.
And you said I
was only allowed to say "objection, form."
18
19
MS. CANTU:
Ma'am, I showed you the rule
and I told you my position was you were limited to
20 21
"objection, form."
However, had you read the rule, if I So, what
ask you the basis, you're required to give it.
22
please, is the basis for your objection to my question?
23
24 25 list here today.
MS. GONZALEZ:
Well, I don't have my
MS. CANTU:
You can't tell me what the
DepoTexas
888.893.3767
0000325
DAVID SHAFFER, DVI\^
56
basis for your objection is?
2
3
4
MS. GONZALEZ:
Q (By Ms. Gonzalez)
Not the legal term, no.

All right. Let me ask
In all the
you again a different question, Dr. Shaffer.
years that you've practiced small animal veterinary
6
7
8
medicine in Corpus Christi, Texas, have you worked at any

vet clinic that specifically disclosed and warned of the 1
in 10,000 to upwards of 1 in 40,000 risk of a vaccine
9
10
associated sarcoma for cats given certain vaccines?

A I have not.
11
12
13
14
Do you know of any colleagues that work in
Corpus Christi at their current practices who have also

worked in other practices within the area?
A That --
15
16
Q
another?
They've moved around from one practice to
17
Yes.
18
19 20
kay.
And some of the doctors that you
mentioned earlier today, Dr. Garett, Dr. Rasco, Dr. Pigott,

do they own outright or have some partial ownership in
their practices?
21
22
23
A
practice.
Dr. Garett owns his practice; Dr. Rasco, his

Dr. Pigott is an associate.
24
Okay.
And of those practices that those
25
doctors own in Corpus Christi, have they had, through your

DepoTexas
888.893.3767
0000326
DAVID SHAFFER, DVM^

57
17 years of being in this city as a practicing vet, have
2
3
those doctors had multiple veterinarians working under them

as well?
Yes.
5
6
And, so, when they're discussing with you
their clinic vaccinations, policies, practices, and
7
8
9
10
procedures, isn't it true, sir, they're not speaking just

about their own personal practices; it's the multiple vets
who have worked under them over the years as well?
A Yes.
11
12
13
14
And were you accused of veterinary
malpractice through a grievance filed by Ms. Gonzalez with

the Texas State Board of Veterinary Medical Examiners?
A Yes.
15
MS. GONZALEZ:
Objection, form.
16
17 objection, please?
MS. CANTU:
What's the basis of your
18
MS. GONZALEZ:
Hearsay.
19
20
Okay.
In terms of the grievance filed by
Ms. Gonzalez against you with the State Board, was there an
21
22
investigation conducted b_y_ the. State Board?

A Yes, there was.
23
MS. GONZALEZ:
Objection, form.
24
25
And, as part of that investigation, were any
veterinarians charged with the duty of investigating all of

DepoTexas
888.893.3767
0000327
DAVID SHAFFER, DVM1

58
1
2
Ms. Gonzalez' complaints against you?

A Yes, they were.
MS. GONZALEZ:
Objection, form.
And are you familiar with what the general
5
6
7
duties and charges of the Texas State Board of Veterinary

Medical Examiners is with regard to veterinarians in Texas?
A Yes.
MS. GONZALEZ:
Objection, form.
9
10
What are they generally charged with doing
according to their own website and publication?
11
It's mainly a monitoring of
that the
12
13
14
standard of care is not abused in any particular area, in

any particular clinic, and it's relatively consistent
state-wide.
15
Okay.
16
17 '
A
Q
In terms of what is accepted.

And if the Board finds that a vet is in
18
19
20
violation of the prevailing community standard of care that

it's supposed to uphold and enforce, can it sanction or discipline or even take away the license of a vet found in
noncompliance?
A Yes.
21
22
23
24
Q-
And in its investigation of the complaint
made by Ms. Gonzalez against you, did the Board reach a
25
decision as to whether you violated the prevailing standard

DepoTexas
888.893.3767
0000328
DAVID SHAFFER, DVf
59
1
2
of care for Corpus Christi?

A Yes.
.3
MS. GONZALEZ:
Objection, form.
4
5
And what was the finding that you personally
received from the Board?
MS. GONZALEZ:
Objection, form.
7 8
9
10 Board?
MS. CANTU:
What's your objection? Hearsay.
MS. GONZALEZ:
Q
You personally received a letter from the
11
Yes.
12
13 Ms.
Q
Gonzalez?
With a ruling on the complaint filed by
14
Yes.
15 16
17
And you talked to the investigator, actually
the director of enforcement, Karen Phillips, personally?

A Yes.
18
19
What was the finding given to you by
Ms. Phillips in your phone calls with her and in the letter
20
21
22 23
she subsequently sent you?

A No violation.
24 25
DepoTexas
888.893.3767
0000329
DAVID SHAFFER, DVM
78
1
CAUSE NO.
2011-CCV-61850-5
JENA GONZALEZ
3
IN THE COUNTY COURT
Plaintiff(s
4 VS. 5
AT LAW NUMBER FIVE (5)

6
ASSOCIATES,
INC.
Defendant(s)
NUECES COUNTY,
TEXAS
9
10 11
12
REPORTER'S
CERTIFICATION
DEPOSITION OF DAVID SHAFFER,

APRIL 4, 2012
DVM
13 14 15
I, MARCY A. WELLS', Certified Shorthand Reporter in
and for the State of Texas, hereby certify to the

following:
16
17 18
19
That the witness, DAVID SHAFFER, DVM, was duly

sworn by the officer and that the transcript of the oral
deposition is a true record of the testimony given by the

witness;
20
-2-1-
That the deposition transcript was submitted on
y^7'"r -^p^n^^-O-l^-tothe-wirtne-s-so-r-tothe;attorneyfor

the witness for examination, signature, and to be returned
22
23
to DepoTexas-Corpus Christi by /tyttf JrV^ ,2012;

That the amount of time used by each party at the
24
25
DepoTexas
888.893.3767
0000330
DAVID SHAFFER, DVM
79
1
2
3
deposition is as follows:
MS.
MS.
VALERIE L.
CANTU - 0:07
JENA GONZALEZ -2:34
4 *
5
6
That pursuant to information given to the

deposition officer at the time said testimony was taken,
the following includes all parties of record:
MS. VALERIE L. CANTU, attorney for Defendant

MS. JENA GONZALEZ, Plaintiff Pro Se
9
10
I further certify that I am neither counsel for, related to, nor employed by any of the parties or attorneys in the action in which this proceeding was taken, and
further that I am not financially or otherwise interested
in the outcome of the action.
11
12
13
14 15
16
Further certification requirements pursuant to Rule 203 of TRCP will be certified to after they have occurred.
17
IE
Certified to by me this 16th day of April, 2012.
19 20
MARCY A. WE&LS,
'. \jUtf*S. Texas CSR

644
27
.2.1
_._
-Exp_ix^tlcniJia-te_:__12Z3.1/.13_
Firm Registration No.
22
23
24 25
615 N. Upper Broadway, Suite 1450

Corpus Christi, (361) 883-3400 Texas 78477
DepoTexas
888.893.3767
0000331
."'^^^^.^Û^^^
S&PQst,
7D11
2^70
DDDD
D843
b?21
hMS^^M&j^^î^M
-feUSt
Nueces County Clerk 901 Leopard Street, Room 201
VLC/100-506
o o
CJ
&l&z&^^S*i)
i mi i ii 11 i i>! j j 11 u 1(11
CV3
! Ill Lit. .11

ATTORNEYS AN!? COUNSELORS i37SO SAN PEDRO, SUHt MO
San ANTo^-jiO, Texas V&232

TELfPHONE !? !Oi (2IO) B24-O009 BJ4-S4?8
Email:
valer(Ec(SJocom3en.cqm
?"..._-SlîLE
April 30,2012
Via Certified Mail/RRR 7011 2970 0000 0243 6721

Re: Cause No. 201 l-CCV-61850-5; Jena Gonzalez v. South Texas Veterinary Associates. Inc., in the County Court at Law No. 5. Nueces County, Texas
Dear Ms. Barrera:
Enclosed for filing with the Court are the following: Defendant South Texas Veterinary Associates, Inc.'s Sur-Reply to Plaintiffs Reply to Defendant's No-Evidence and Traditional Motions for Summary Judgment.
Also enclosed is an extra copy of the foregoing document. We ask that you please file-stamp the extra copy with the date and time of filing of same and return the copy to us yia the enclosed self-addressed, postage-paid envelope.
By copy of this letter and its enclosure. Plaintiff is being served same via the means
indicated below.
We appreciate your assistance with this matter. Very truly yours.
UdjAaO- UmW
Valerie L. Cantu /VLC
Enclosures, as Slated
cc:
(Via CM/RRR, w/Encs.: 7011 2970 0000 0243 5786)

Ms. Jena Gonzalez
3717 Aransas
0000333
Cause No. 2011-CCV-61850-5
Jena Gonzalez Plaintiff

v.
In the County Court
At Law No. 5
South Texas Veterinary Associates, Inc. Defendant
NuecesCounty, Texas
DEFENDANT'S SECOND AMENDED ORIGINAL ANSWER TO PLAINTIFF'S ORIGINAL PETITION & FIRST AMENDED COUNTERCLAIM
Defendant SOUTH TEXAS VETERINARY ASSOCIATES, INC. ("Defendant") files this Second Amended Original Answer to Plaintiffs Original Petition & First Amended Counterclaim, and would respectfully show the Court the following:
SECOND AMENDED ORIGINAL ANSWER
I. GENERAL DENIAL
Pursuant to Texas Rule of Civil Procedure 92, Defendant generally denies each and every
allegation contained in Plaintiffs First Amended Original Petition and demands strict proof
thereof at the trial of this cause.
II.
AFFIRMATIVE DEFENSES
A.
Defendant specifically and affirmatively denies it or any of its shareholders,
employees, agents and/or representatives entered into any written or oral contract with Plaintiff
regarding the veterinary medical treatment and services provided by Defendant to Plaflrftifil^carf
.j.
in question.
-^
100-506 Pase 1
0000334
B.
Defendant specifically and affirmatively denies that they and their shareholders,
employees, agents and/or representatives were negligent in their veterinary medical treatment
and care of Plaintiffs cat. Defendant specifically and affirmatively denies that they and their shareholders, employees, agents and/or representatives failed to exercise that degree of care that a veterinarian of ordinary prudence possessing and exercising a reasonable degree of skill and
learning in small animal medicine would use under the same or similar circumstances in and
around Corpus Christi, Nueces County, Texas, and similar surrounding communities. Defendant
further specifically and affirmatively denies that any acts and/or omissions on Defendant and its
shareholders, employees, agents and/or representatives were a proximate cause of the injuries
and damages alleged by Plaintiff in this lawsuit.
C.
Pleading further and in the alternative, Defendant alleges that the injuries in
question and damages, if any, were caused by an act of God.
D.
Pleading further and in the alternative, Defendant alleges that the injuries alleged
by Plaintiff were caused by new and independent, unforeseeable, superseding and/or intervening
causes unrelated to any conduct of this Defendant and its owners and employees.
FIRST AMENDED ORIGINAL COUNTERCLAIM
I.
This case is governed by a Level 3 Discovery Control Plan pursuant to Rule 190.3 of the
Texas Rules of Civil Procedure.
II.
Venue is proper in Nueces County, Texas, pursuant to section 15.062(a) of the Texas
Civil Practice and Remedies Code.
100-506
Page 2
0000335
III.
All parties have entered an appearance in this suit. Plaintiff is being served with this First
Amended Counterclaim in accordance with Rules 21 and 21a of the Texas Rules of Civil
Procedure.
IV.
Pursuant to Rule 13 and 215.2(b) of the Texas Rules of Civil Procedure, Defendant
hereby asserts a counterclaim against Plaintiff for continued prosecution of her claims against
Defendant, since Plaintiffs claims are groundless and brought in bad faith or for the purpose of
harassment. Specifically, Plaintiff continues to prosecute her claims against Defendant even
though neither she nor her retained testifying expert have knowledge of the veterinary standard of care applicable to and practiced by small animal veterinarians of ordinary skill and care practicing in the Corpus Christi, Nueces County, Texas under the same or substantially similar circumstances. Furthermore, Plaintiff continues to prosecute her claims against Defendant even
though the Texas State Board of Veterinary Medical Examiners (the "TSBVME"), via
investigation of Plaintiffs allegations against Dr. Shaffer and Defendant by .two Texas
veterinarians who also are TSBVME Board Members has found no violations by Dr.. Shaffer and
Defendant of the applicable veterinary standard of care. Furthermore, Plaintiff continues to
prosecute her claims against Defendant even though her own retained testifying expert has
admitted he does not fault Dr. Shaffer or Defendant for any alleged malpractice or other
wrongdoing. And most recently, with no basis in fact or in law, Plaintiff has moved for
sanctions against Defendant's retained testifying expert and legal counsel for alleged
professional misconduct and for alleged violations of inapplicable Florida criminal law.
100-506 Page 3
0000336
V.
Plaintiff continues her campaign of harassment and frivolity against Defendant and now,
its legal counsel of record.
As of the date of filing of this First Amended Counterclaim,
Defendant currently has incurred a total of approximately $30,000.00 in attorneys' fees, court costs, and other litigation expenses, all of which were reasonable and necessary for Defendant to fully and adequately defend itself in this matter and to protect itself against Plaintiff.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiff take nothing on all of her affirmative claims asserted against Defendant and that Defendant prevail on its Counterclaim asserted against Plaintiff and that judgment be granted and entered for Defendant
which dismisses Plaintiffs suit with prejudice and which awards Defendant all attorneys' fees
and litigation expenses and court costs incurred herein, as well as pre-judgment interest and postjudgment interest, and all such other and further relief at law or in equity to which Defendant
may show itself to be justly entitled.
By:
IAMMa} C. Hiill/ftnJ.j \xf flA-MAAMi^.\IlL

Robert C. Hilliard
719 S. Shoreline, Ste. 500 Corpus Christi, Texas 78401 Telephone: (361)882-1612 Telecopier: (361)882.3015
and
100-506
Page 4
0000337
J By:
flllMl (T- UftJL.


fNC.
has, this Hfk

to:
day ofMay, 2012, been delivered via certified mail, return receipt requested,

3717 Aransas
JaUAU.1- UvCUl
Valerie L. Cantu
100-506
Page 5
0000338
O ' C o n n e l l &. Avery

13750 SAN PEDPO, Sui'K
llp
i!C.
ATTORN EYS AND COUNSELORS

telephone (z \ q) 521-0009
Em*iI_: valehiec@OCONBEN.com
Facsimile I2IO) 02^-9^29
May 4, 2012 Via CertifiedMail/RRR 7011 2970 0000 0243 5793

Re:
Cause Mo. 2011-CCV-61850-5; Jena Gonzalez v. South Texas Veterinary Associates.

Inc., in the County Coun at Law No. 5. Nueces County, Texas
Our File Nc. 100-506
Dear Ms.Barrera:
Enclosed for filing with the Court are the following:
Defendant South Texas Veterinary Associates, Inc.:s Second Amended Original

Answer to Plaintiffs Original Petition & First Amended Counterclaim.
Also enclosed is a copy of the foregoing document. We ask that you please filestamp the copy with the date and time of filing of same and return the copy to us via the enclosed self-addressed, postage-paid envelope.
By copy' of this letter and its enclosure. Plaintiff is being- served same via the means
indicated below7.
We appreciate your assistance with this matter.
0000339
May 4, 2012 Page 2
Very truly yours,
llMWJU. <A *U/VUAt

Valerie L. Cantu
/VLC
cc:
(Via CM/RRR, w/Enc: 7011 2970 0000 0243 5809)

Ms. Jena Gonzalez
3717 Aransas
Corpus Christi, Texas 7841 i
0000340
Cause NO. 201 l-CCV-61850-5
Jena Gonzalez
plaintiff
In the County Court

AT Law No. 5
Associates, Inc.
defendant
&
ORDER ON l^^^^SX^ -Nr" SUMMAR^^^J^^^NS FOR SANCT,ONS

After eonsidering Defendant South Texas Veterinary Associates, Inc.', No-Evidence ft Tradtttona. Motion for Summary Judgment of A., of Pontiffs Cairns and Defendant's Tradttiona. Motion for Summary Judgment of ,,s Countered, Defendant South Texas
Veterinary Assoc.ates, Inc., Mot.on to Dismiss Plaintiffs Claims for Breach of Contract and Negligent Misrepresentation, Defendant South Texas Veterinary Associates, Inc/s Motion to Sea. Defendant's No-Evidence ft 'fractional Motion for Summary Judgment of AH of Plaintiffs
Cairns and Defendant's Traditional Motion for Summary Judgment of its Counterclaim, Plaintiffs Motton for Sanctions against Robert C. Hi.Uard and Valerie L. Cantu. and Plaintiffs Motion for Discovery Sanctions against Dr. Alan Garet, and Valerie ... Cantu, the parties
respective Responses, Replies, and Sur-Repes to same, along w,th all other evidence presented
t0 the Court, it is hereby ORDERED, ADJUDGED and DECREED by this Court as follows: ,. Defendant South Texas Veterinary Associates, Inc.'s Motion to Dismiss
Plaintiffs Claims for Breach of Contract and Negligent Misrepresentation is ^RANTED by^^
agreement of the parties. -^ ^ ^^.^,, jjj
,Ce?
0000i341
2. Defendant South Texas Veterinary Associates. Inc.'s Motion to Seal Defendant's No-Evidence ft Traditional Motion for Summary Judgment of All of Plaintiffs Claims and Defendant's Traditional Motion for Summary Judgment of its Counterclaim is DENIED by
agreement ofthe parties.
3.
DENIED.
Plaintiffs Motion for Sanctions against Robert C. Hilliard and Valerie I.. Cantu is
Plaintiffs Motion for Discovery Sanctions against Dr. Alan W. Caret, and Defendant's Rule 13 Counterclaim and Motion lor Sanctions against Plaintiff is
4. 5.
DENIED.
Valerie L. Cantu is DENIED.
6.
Defendant's No-Evidence ft Traditional Motion for Summary Judgment of All of
Plaintiffs Claims is GRANTED, with the Court finding that there is no genuine issue as to any
material fact, that the Defendant is entitled to judgment as amatter of law on the issues expressly set out in the Motion or in an answer or any other response of the Defendant, and that the
Defendant has disproved a, least one element of the Plaintiffs claims as amatter of law. 1, is farther ORDERED, ADJUDGED and DECREED that Plaintiff shall take nothing
against Defendant SOUTH TEXAS VETERINARY ASSOCIATES INC. on all of her professional negligence claims based upon the veterinary opinions, recommendations, diagnosis.
treatment, care, and conduct of Dr. David Shaffer and/or South Texas Veterinary Associates. Inc.
in caring for and treating Plaintiffs cat known as Kitty Cat."
It is further ORDERED, ADJUDGED and DECREED that this case is removed from the
Court's May 14, 2012 jury trial docket.
100-506
Page2
0000342
It is further ORDERED, AD.IUDGED and DECREED that ail other relief not expressly
ranted herein is hereby denied.
SIGNED this the 3_ day of
Ô^j
2012.
JUDGE BRENT CHESNEY
Robert C. Hilliard
State Bar No. 09677700 719 S. Shoreline, Ste. 500
'
Corpus Christi, Texas 78401 Telephone: (361)882-1612

Telecopier: (361)882.3015
and
By:.
llfljMt.lf. UmL
Keith B. O'Connell State Bar No. 15179700
Valerie L. Cantu
13750 San Pedro. Suite 110 San Antonio, Texas 78232
ATTORNEYS FOR DEFENDANT SOUTH TEXAS VETERINARY ASSOCIATES, INC.
100-506
Page 3
0000343
CAUSE NO. 2011-CCV-61850-5
JENA GONZALEZ
PLAINTIFF
IN THE COUNTY COURT
V.
AT LAW NO. 5
ASSOCIATES, INC.
DEFENDANT
REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW
Pursuant to Texas Rule of Civil Procedure 296, Pro Se Plaintiff respectfully request that the Court file findings of fact and conclusions of law for the following judgments signed on May 9, 2012: Defendant's No-Evidence & Traditional Motion for Summary Judgment of All of Plaintiffs Claims is GRANTED, with the Court finding that there is no genuine issue as to any material fact, that the Defendant is entitled to judgment as a matter of law on the issues expressly set
out in the Motion or in an answer or any other response of the Defendant, and that the Defendant has disproved at least one element or the Plaintiffs claims as a matter of law.
Plaintiff intends to appeal these judgments to the Thirteenth Court of Appeals. Accordingly, the
Plaintiff requests the Court file findings of fact and conclusions of law and further ask the clerk
to mail copies to all parties, as required by Texas Rule of Civil Procedure 297. The Plaintiff files this
request within twenty (20) days of the date the Court signed the judgments. TEX. R. CIV. P. 296.
Pg-1
0000344
3717 Aransas St.
attorney on this 29th day of May 2012, by email to Valerie Cantu at valeriec@oconben.com.
Attorney for:
Attorney's name:
Attorney's address:

Valerie L. Cantu

Jenfa Gorjzalez, Pro Se Plaintiff {_J
Pg-2
0000345
CAUSE NO. 2011-CCV-61850-5
JENA GONZALEZ PLAINTIFF
IN THE COUNTY COURT
V.
AT LAW NO. 5
ASSOCIATES, INC.
DEFENDANT
PLAINTIFF JENA GONZALEZ'S MOTION FOR NEW TRIAL TO THE HONORABLE JUDGE OF SAID COURT:
ProSe Plaintiff Jena Gonzalez ("Plaintiff') asks the court to grant a new trial in the interest of
justice and fairness.
A. Introduction
1.
2.
Plaintiff is Jena Gonzalez; Defendant is South Texas Veterinary Associates, Inc.

Plaintiff sued defendant for Veterinary Malpractice.
B. Facts
3.
Defendant filed a motion for summary judgment based on Defendant's No-Evidence &
Traditional Motion for SummaryJudgment of All of Plaintiffs Claims with the Court finding there is
no genuine issue as to any material fact, that the Defendant is entitled to judgment as a matter of law and that the Defendant has disproved at least one element of the Plaintiffs claims as a matter
of law. The court granted summary judgment in favor of the Defendant although, it did not state
which issue(s) was disproved as a matter of law.
o r~, czz
3:
A fact issue exist whether Dr. Shaffer exercised the care and diligence which is ordi
^ en
exercised by skilled veterinarians;
on
-c
-0
^
to
en
m r-*J
000034G
A fact issue exist whether Dr. Shaffer's veterinary treatment of Plaintiffs cat deviated from the standard of veterinary care;
A fact issue exists as to whether the vaccine(s) and injection location caused the Vaccine
Associated Sarcoma;
The trial court failed to rule on PLAINTIFF'S OBJECTION TO AUTHENTICITY OF DOCUMENTS
PRODUCED IN DISCOVERY;
The trial court considered evidence obtained illegally in another jurisdiction in which Plaintiff objected to;
The trial court erred in failing to analyze this case under the same standard applied to physicians
and surgeons in medical malpractice cases;
The trial court did not view evidence in the light most favorable to the nonmoving party and resolve all reasonable doubts about the facts in favor of the nonmoving party;
The trial court judge considered evidence that could have been submitted but was not;
Defendant's expert testimony admitted into evidence did not meet the necessary standards of
reliability and relevance;
The trial court erred in excluding the deposition testimony of a Robert "Bob" Rogers, DVM, a
veterinarian.
5.
The court granted the motion for summary judgment and signed a summary judgment for
Defendant on May 9, 2012.
PRAYER
Plaintiff prays that Motion for New Trial be GRANTED and that jury trial be placed on the court's trial
docket.
0000347
By:
3717 Aransas St.
attorney on this 6th day of June 2012, by email to Valerie Cantu at valeriec@oconben.com.
South Texas Veterinary Associates, Inc. O'Connell & Avery LLP

Valerie L. Cantu
Attorney's address:

0000348
Lillian Fanning
From: Sent: To:
Lillian Fanning Friday, June 08, 2012 3:27 PM
Jena Gonzalez (gil4584@peoplepc.com); rudyg@hmglawfirm.com; Valerie Cantu

(valeriec@oconben.com) 2011-CCV-61850-5 Jena Gonzalez v. S. TX Vet Assoc, Inc
Subject:
Importance:
High
Judge Chesney is asking both sides to submit a "proposed finding offact &conclusion s oflaw". Thank you!
Lilli.ui Fanning, Court Maunder
County Court ;it Ij\\\ No. f>
'.'.'ilin'.nllili.ii- IM.
Corpus Christi, TX uH4h")
i'lioue: :ni-r><il-iiO.-><i
FilXft :-Ml-r>(il-IM4:i
lillinii.l'iniiMiig(i;)nuiii<v<is,tx.iis
0000349
O ' C o n n e l l , A v e r y l l p
attorneys anq i37so s a n counselors s u i t e iio pedro,

Telephone I2IO) 621-0009
EMAIL:
VALERIEClOJOCONBEN.COM
Facsimile
IZIOI
B2-3-9429
June 11,2012
Via E-Mail Transmission: lillian.fanning(g).co.nueces.tx.us

Honorable Brent Chesney
c/o Ms. Lillian Fanning

County Court at Law No. 5 of Nueces County, Texas
2310 Gollihar
Honorable Carl E. Lewis Memorial Courtroom
Re:
Cause No. 201 l-CCV-61850-5; Jena Gonzalez v. South Texas Veterinary Associates,
Inc., in the County Court at Law No. 5, Nueces County, Texas
Dear Judge Chesney:
On Friday, June 6, 2012, we received an e-mail from Ms. Lillian Fanning requesting both Plaintiffand Defendant "submita proposed finding of fact & conclusions of law" to you. Pursuant to the enclosed Texas Supreme Court cases, it is Defendant's position that Plaintiffs request for, and any submission proposing, findings of fact and conclusions of law is improper and erroneous as a matter of law. See Linwood v. NCNB Tex., 885 S.W.2d 102, 103
(Tex. 1994) (explaining that "findings of fact and conclusions of law have no place in a summary judgment proceeding"); see also 1KB Indus, v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) (affirming that "if summary judgment is proper, there are no facts to find, and the legal conclusions have already been stated in the motion and response" and thus, [t]he trial court
should not make, and an appellate court cannot consider, findings of fact in connection with a
summary judgment").
If you wishfurther briefing of this matter, we are happy to provide same.

Respectfully,
-n
'. U/vvUl
Valerie L. Cantu Counsel for Defendant
>-

/VLC
oo
rn
0000350
Honorable Brent Chesney June 11,2012 Page 2
cc:
(Via E-Mail, w/Encs.: gil4584fg),peoplepc.com)

Ms. Jena Gonzalez 3717 Aransas Street
(Via E-Mail, w/Encs.: bobh@hmglawfirm.com & rudygfgihrnglawfirm.com)

Mr. Robert C. Hilliard
Mr. Rudy Gonzales, Jr.

Hilliard Munoz Gonzales L.L.P.
0000351
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885 S.W.2d 102, 38 Tex. Sup. Ct. J. 30

(Citeas:885S.W.2d 102)
f>
|2| Appeal and Error 30 =395 Supreme Court of Texas. Algie LINWOOD, Petitioner,
v.
30 Appeal and Error

30VII Transfer ol'Cause
NCNB TEXAS, Respondent.

No. 94-0364.
3UVI!(C) Payment of" Pees or Costs, ;tnd

Bonds or Other Securities
Oct. 13, 1994.
Debtor sued creditor, asserting ton claims arising out of creditor's repossession of two trucks. The 14th District Court, Dallas County, John McCleiian Marshal!, J., entered summary judgment for creditor. The Dallas Court of Appeals, Joe Burnett, j., 876 S.W.2d 393. dismissed debtor's appeal. Debtor sought writ of error. The Supreme Court held that debtor made bona fide attempt to invoke appellate jurisdiction.
Reversed and remanded. West Headnotes
30k395 k. Effect of failure lo give or de fects in security. Most Cited Cases Court of Appeals has jurisdiction over appeal if parly files instrument in bona fide attempt to invoke appellate court's jurisdiction. * 102 Don Black. Dallas, for petitioner. Donald W. Hill, Dallas, for respondent.
PER CURIAM.
|l| Appeal and Error 30 =>387(6) 30 Appeal and Error

jOVII Transfer of Cause
This case presents the question of whether the court of appeals has jurisdiction to hear the appeal. The court of appeals, holding that il did not. dis missed for want of jurisdiction. Without hearing or al argument a majority of the court reverses the judgment of the court of appeals and remands to that court for further proceedings. TEX.R.APP P.
170.
30VI 1(C) Payment oT fees or Costs, and

Bonds or Other Securities
30k387 Delivery or Kiling and Service of Bond or Undertaking

30k3S7(6) k. Extensiun of lime and re
lief in case of failure to file in time. Most Cited
Appellant made bona tide attempt to invoke ap
pellate jurisdiction by filing notice of appeal, des

pite tact appellant failed to timely include required cost bond in his notice of appeal and, thus, Court of Appeal had jurisdiction over appeal; Court of Ap peals should have given appellant opportunity to correct his error and appellant later corrected error on his own by filing cost bond. Rules App.Proc, Rule 41(a)(1).
Algie Linwood sued N'CNB of Texas, asserting contract and tort claims arising out of the reposses sion of two trucks. The trial court granted summar) judgment in favor of NCNB on September 23. 1991. Linwood requested findings of fact and con clusions of law on September 26. He filed his no tice of appeal on October 3 and a notice ol past-due findings of fact and conclusions of law on Ociohei
22. On November 15. after the trial court failed to
produce findings of fact and conclusions o\' lav. and fifty-three days after the summary judgment was signed, Linwood filed his cost bond '("he court of
appeals dismissed for want of jurisdiction because it held that Linwood's request for findings of fact
and conclusions of law did not extend the appellate timetable in a summary judgment case and Lin wood's notice of appeal was not a bona fide attempt to invoke the court's jurisdiction, y76 S.W.Jd 193
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885 S.W.2d 102, 38 Tex. Sup, Ct. J. 30 (Citeas:885S.W.2d 102)
Consequently, the court of appeals concluded the appeal was not timely perfected. [I][2] Absent a filing that extends the deadline, a party has thirty days from the date the judgment is signed to file his cost bond to perfect his appeal.
TEX.R.APP.P. *103 41(a)(1). Linwood filed a re quest for findings of fact and conclusions of law in an attempt to extend the appellate timetable. TEX.R.APP.P. 41(a)(1). Because findings of fact and conclusions of law have no place in a summary
and remand the cause to the court of appeals for further proceedings consistent with this opinion.
SPECTOR, J., not sitting.
Tex., 1994.
Linwood v. NCNB Texas
885 S.W.2d 102. 38 Tex. Sup. Ct. J. 30

END OP DOCUMENT
iudgment proceeding, the timetable was not exten4sjL We agree with the court of appeals holding that the language "'tried without a jury" in rule 41(a)(1) does not include a summary judgment pro ceeding. The court of appeals, however, has juris
diction over the appeal if a party files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction. Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports. Inc.. 813 S.W.2d 499, 500 (Tex. 1991); Walker v. Blue Water Garden Apartments. 776 S.W.2d 578. 581 (Tex.1989), Linwood filed his notice of appeal well within the thirty-day period after the judgment was signed. Although the court of appeals correctly held that Linwood's notice of appeal was the improper instru ment to perfect his appeal, under our holding in Grand Prairie, before dismissing the appeal, the court of appeals would have had to give Linwood an opportunity to correct his error by substituting
the correct instrument. Grand Prairie, 81 j S.W.2d at 500. Here Linwood corrected his own error 53
days after the judgment was signed by filing his cost bond. We see no reason why a party attempting appeal who corrects his own eiror should be in a worse position than one who has the error pointed
out by the appellate court. We hold that in either
situation, the party seeking to appeal has made a bona fide attempt to invoke the appellate court's jurisdiction sufficient to prevent dismissal for want of jurisdiction, as we set forth in Gram! Prairie and Blue Water Garden \parlments l-'or this reason, the court of iippeals improperly dismissed for lack of jurisdiction. Accordingly, we reverse the judgment
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Date of Printing: May 30. 2012

KEYCITE
f> Linwood v. NCNB Texas, 885 S.W.2cl 102, 38 Tex. Sup. Ct.,I. 30 (Tex., Oct 13, 1994) (NO. 94-0364)
History Direct History
P=>
I Linwood v. NCNB Texas, 876 S.W.2d 393 (Tex.App.-Dallas Feb 01. 1994) (NO
05-92-00196-CV), rehearing denied (Mar 15, 1994), writ granted (Oct 13. 1994) Judgment Reversed by 2 Linwood v. NCNB Texas, 885 S.W,2d 102. 38 Tex. Sup. Ct. J. 30 (Tex. Oct 13. 1994) (NO
94-0364)
On Remand to
3 Linwood v. NCNB of Texas, 1995 WL 22 I873 (Tex.App.-Dallas Apr 13. 1995) (NO.
05-92-00196-CV) Negative Citing References (U.S.A.)
Declined to Extend by
f>
H
4 01ivo v. State. 918 S.W.2d 519 (Tex.Crim.App. Mar 27. 1996) (NO. 442-95) * * * HN: 1,2
(S.W.2d)
5 Ashom v. State, 77 S.W.3d405 (Tex.App.-Hous. (I Dist.) May 02. 2002) (NO.

01-01-00904-CR), petition for discretionary review refused (Jan 15,2003) * * * HN: 1,2 (S.W.2d)
Distinguished by
6 Poster v. Williams. 74 S.W.3d 200 (Tex.App.-Texarkana May 08, 2002) (NO, 06-01-00l6i-CV),
rehearing overruled (May 21. 2002). review denied (Aug 08. 2002) * " * HN: 1,2 (S.W.2d)
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"ae
938 S.W.2d 440. 40 Tex. Sup. Ct. J. 273

(Cite as: 938 S.W.2d 440)
Supreme Court of Texas. 1KB INDUSTRIES (Nigeria) Limited, Petitioner,

v.
clusions of law following dismissal of case as "death penalty" sanction for discovery abuse exten ded from 30 to 90 days the time for perfecting ap
PRO-LINE CORPORATION. Respondent.

No. 95-0703
Jan. 31. (997.
peal, where judgment was not rendered as mailer of law, but involved resolution of disputed factual
matters apart from the filings. Vernon's Ann. le.\a> Rules Civ.Proc. Rule 2I5; Rules App Proc. Rule
41(a)(1)
Corporation brought breach of contract and other ciaims against second coiporation. The 298th District Court, Dallas County. Adolph Canales, J., dismissed action with prejudice based on first cor poration's abuse of discovery process, following denial of its request for findings of fact and conclu sions of law, first coiporation appealed. The Court of Appeals. Whinington, J., 901 S.W.2d 568. dis missed appeal as untimely. On application for writ of error, the Supreme Court, Hecht. J., held that: (I) in case tried without a jury, request for findings of fact and conclusions of law extends time for per fecting appeal when such findings may be useful for appellate review, and (2) request in present case extended appellate deadlines because judgment was
not rendered as matter of law. but involved resolu
|2| Appeal and Error 30 C=>352.1

30 Appeal and Error
30VM Transfer of Cause
30V11(A) Time of Taking Proceedings

30k352 Extension of Time
30k352.l
Cases
k. In general. Most Cited
Not evei"y case finally adjudicated without a
jury trial is "case tried without a jury" within mean ing of appellate rule tinder which, in case tried without a jury, timely filed request lor findings of
fact and conclusions of law extends deadline lor
tion of disputed factual matters apart from the fil ings.

Application for writ of error granted; judgment of Court of Appeals reversed; case remanded.
perfecting appeal from 30 days to 90 days after judgment is signed: for example, request for find ings in case concluded by summary judgment does not extend appellate deadlines Rules App.Proc .
Rule 4 1(a)(1)
|3| Judgment 228 =392(1)

22K Judgment 2281X Opening or Vacating
228k3V2 Evidence
Baker, J., filed a dissenting opinion.

West lleadnotes
228k392(l)
Cued Cases
k.
Counter
affidavits.
Most
jlj Appeal and Error 30 =>352.l 30 Appeal and f.iror

30Vi I Inmslei ol Cause
ji'Vllt \) Time of "Inking Proceedings

30k352 t-xiension of rime
Purpose of rule under which, in an> '.iise tried in district ov cotinu court v\ iilumi a juiy. am partv ma; reqtiest auirt to state in wtifimi its findings i^\' fact and conclusions of law ;>; to give a part; :-i righr to findings and conclusions finally adjudicated aftei
a conventional trial on the merits befoie the court. Vernon's Ann.Te>ias Rules Civ.Proc. Rule 2l>0.
30k352.1
Cases
k. in general. iVIosr Cited
Plaintiffs reqtiest for findings of fact and con
H| Appeal and Error 30 =352.1
C 201 2 Thomson Reuters No Claim to Ori US Gov
Wurkh
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938 S.W.2d 440, 40 Tex. Sup. Ct. J. 273 (Cite as: 938 S.W.2d 440)
30 Appeal and Error

30VI1 Transfer of Cause
30V11(A) Time of Taking Proceedings

[I] Here, the sole question is whether request ing findings of fact and conclusions ol law follow ing dismissal of a case as a sanction for discovery abuse extends the time for perfecting appeal under
Rule 41(a)(1) of the Texas Rules of Appellate Pro
30k352.1 k. In general.
Cases
Most Cited
cedure. The court of appeals answered no. 901

S.W.2d 568, Under the circumstances of this case,
Extension of period for perfecting appeal when party requests findings of fact and conclusions of law in case tried without a jury serves purpose of allowing trial court time to slate basis for its judg ment so that a party may determine whether to ap peal; that purpose is served whenever such findings may be useful for appellate review, as when case has been dismissed for discovery abuse. Vernon's
Ann.Texas Rules Civ.Proc, Rule 215; Rules
as we explain, we disagree.
(KB industries (Nigeria) Limited sued Pro-Line Corporation. Pro-Line moved to dismiss
IKB's action as a sanction for discover)' abuse. Sec TEX.R. CIV. P. 215. After a hearing, for which
there is no statement of facts, the district court
granted the motion, struck iKB's pleadings, and dis

missed the action with prejudice. The court's judg
ment recites that the court considered "the Court's
App.Proc, Rule 41(a)(1): |5| Appeal and Error 30 <D^352.l 30 Appeal and Error
30VII Transfer of Cause
fileincluding all pleadings, affidavits, and depos ition exceipts filed with the Court (and of which the Court takes judicial notice) and . . the testimony
30VI!(A) Time of'faking Proceedings

and argument of counsel. " (Emphasis added ) The judgment contains seven pages of findings that the court made, as the judgment recites, "from the evid
ence before it"
30k352.l
Cases
k. In general.
Most Cited
Request for findings of fact and conclusions of law in case tried without a jury does not extend the
time for perfecting appeal of a judgment rendered as a matter of law, where findings and conclusions
can have no purpose and should not be requested, made, or considered on appeal; however, when such findings may be useful for appellate review, timely filed request extends appellate deadline from 30 days to 90 days after entry of judgment. Rules App.Proc. Rule 41(a)(1). *440 Robert H. Westetbttrg. Dallas, for petitioner.
Robert R. Gibbons, Dallas, for respondent.
Notwithstanding these findings, 1KB filed a re qtiest for findings of fact and conclusions of km, referencing Rule 296 u\' the Texas Rules o\' Civil
Procedure. Rule 296 states in part:
In any case tried in the district or county court without a jury, any parly may request the court to stale in writing its findings of (act and conclu sions of law. Such toques! ... shall be filed within twenty da> s after judgment is signed . IKB's request was filed eight days after the dis missal order was signed The disttici conn did noi respond to IKB's request.
s
*44l Before PHILLIPS, C.J., and GONZALEZ, CORNYN, ENOCH, SPECTOR, OWEN and AB BOTT. JJ.
A timely filed request for findings of fact and conclusions of law extends the deadline for perfect
ing appeal from 30 to 90 days after the judgment is signed "in a case tried without a jury " TEX.R.APP.
P. 41(a)(1). Since 1KB filed a cost bond 49 days after the dismissal order was signed. 1KB perfected
HECH1. Justice.
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938 S.W.2d 440, 40 Tex. Sup. Ct. J. 273 (Cite as: 938 S.W.2d 440)
appeal only if its request for findings and conclu sions extended the deadline for doing so from 30 to 90 daysthat is, only if the case was "'tried without a jury'' within the meaning of Rule 41(a)(1). [2] Not every case finally adjudicated without a jury trial is "a case tried without a jury" within the
meaning of Rule 41(a)(1). For instance, we held in
ihwood v NCNB Texas. 885 S.W.2d 102. 103
summary judgment. Because a request for findings

*442 and conclusions following summary iudgment
can have no purpose, should not be filed, and if

filed, should be ignored by the trial court, such a re'-
qiiest should not extend appellate deadlines. Lin

wood rejects a broad construction of Rule 41(a)(1) that would cause the filing of a reqtiest for findings and conclusions to extend the lime for perfecting appeal in every case adjudicated without a jury.
The most restrictive construction of Rule
(Tex. 1994), that a request for findings in a case concluded by summary judgment does not extend
appellate deadlines. The reason is not that a sum mary judgment proceeding is in no sense a trial. On
the contrary, we have held that "[a] summary judg ment proceeding is a trial within the meaning of
Rule 63'' of the Texas Rules of Civil Procedure,
which governs amendment of pleadings, Goswanii

v. Metropolitan Sav A- Loan jk\0/. 751 S.W.2d
487, 490 (Tex. 1988). True, a "summary judgment

proceeding is not a conventional trial but rather an exception to the usual and traditional form of pro cedure wherein witnesses are heard in open court and documentary evidence is offered and received
in evidence." Richards v. Allen. 402 S.W.2d 158. 160 (Tex,1966). But this distinction was not the
basis for our decision in Linwood.
41(a)(1) would not allow a reqtiest for findings and conclusions to extend the time for perfecting appeal unless the request was proper under Rule 296 - that is. "[i]n any case tried in the district or county court without a jury". Our approach to applying this lan guage, similar to the language of Rule 41(a)(1), has also been functional. A party is not entitled to find ings of fact and conclusions of law following sum mary judgment. Lnnvood. 885 S.W 2d at 103. judg
ment non obstante veredicto, l-'ancher v Cudwell.
159 Tex. 8. 3 14 S.W 2d 820. 822 (1958), or judg

ment after directed verdict. Ditto v Duio ln\e\tment Co.. 158 "lex. 104. 309 S.W.2d 219. 220
(1958), again, not because these adjudications are
in no sense trials. Indeed, judgment non obstante

veredicto is rendered after a full trial and verdict.
Instead, Linwood takes a functional approach to Rule 41(a)(1). It holds, not that a summary judg ment is not a trial within the meaning of the rule,
but that "findings of fact and conclusions of law
Rather, a party is not entitled to findings and con clusions in such instances because judgment must
be rendered as a matter of law. Were there facts lo
have no place in a summary judgment proceeding"

Linwood. SS5 S.W.2d ai 103- The reason findings
and conclusions "have no place" in a summary
find the three judgments we have listed are [he only ones to which Rule ,296 does not apply The point is simply that Rule 296. like Rule 41(a)(1), is not gov
erned by a definition of the woid. trial", to both, but by their respective purposes common
iudgment proceeding is ihat for summary judgment to be rendered, there cannot be a ''genuine issue as
to any material fact", TEX.R. CIV. P. 166a(c). and
The problem with ;t restrictive construction of
the legal grounds are limited to those stated in the

motion and response. Stiles v. Resolution Trust
Corp., 867 S.W.2d 24. 26 (Tex. 1993). in other words, if summary judgment is proper, there are no
facts to find, and the leaal conclusions have already
Rule 4l(a)( I)--nol allowing a party's request for findings and conclusions to extend the time tot per fecting appeal unless the party is entitled to find
ings and conclusion:', under Rule 2.9{i -is that it conflicts with the purpose ,.f Rule 41(a)(1). This is because the purposes ol Rule 29b and Kuie -11(a)(1)
are not identical.
been stated in the motion and response. The trial
court should not make, and an appellate court cannot consider, findings of fact in connection with a
| ?> | The purpose of Rule 21'6 is lo give ;i panv a
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right lo findings of fact and conclusions of law fi nally adjudicated after a conventional trial on the merits before the court, in other cases findings and conclusions are proper, but a party is not entitled to them. For example, in a case like this one in which judgment is rendered as a sanction for discovery abuse, findings for imposing sanctions may be helpful, and we have encouraged their use. TransAmerican Nut. Gas Corp. v. Powell. 811 S.W.2d 913, 919 n. 9 (Tex.1991); Chrysler Corp. v.
Blackmon. 841 S.W.2d S44. 852 (Tex,1992). But we do not require them for two reasons. One is
is to prescribe the time for perfecting appeal. The deadline is 30 days after the judgment is signed, un less extended by the filing of a motion for new trial or of a request for findings and conclusions in a case tried without a jury. The first exception affords
*443 the trial court Lime to consider and decide the
practical: they are often unnecessary, and requiring them in every case would unduly burden trial cotirts. As we explained in Blackmon: [W]e do not wish to unnecessarily burden our tri al courts by requiring them to make written find ings in all cases in which death penalty sanctions are imposed. First, the benefit of the trial court's explanation in the record of why it believes death penalty sanctions are justified may be sufficient to guide the appellate court. Second, written find ings are not needed in the vast majority of relat ively uncomplicated cases or even more complex cases involving only a few issues pertinent to the propriety of death penalty sanctions. We doubt that findings in such cases would meaningfully assist appellate review. 841 S.W.2d at 852. The other reason findings are not required whenever they may be useful is that appellate courts are not obliged to give them the same level of deference. A legally correct judg ment based on findings of fact made after a trial on the merits cannot be set aside on appeal if the find ings are supported by sufficient evidence. Harm
County Flood Com ml Dist. v. Shall Pipi' Lira-
motion. The second exception allows the trial court time to state the basis for its judgment so thai m party may determine whether lo appeal. Often, per haps usually, the decision to appeal is not con trolled by the court's findings and conclusions: nev ertheless, the purpose of Rule 41(a)(1) is to allow time for the court to make them and the parties to consider them. The purpose of the second exception is served not only when findings are required by Rule 296. but whenever they may be useful \'or ap pellate review- -as when a case has been dismissed for discovery abtise. Allowing a request for findings and conclu sions to extend the deadline for perfecting appeal when a party is not entitled to findings and conclu sions under Rule 296 docs not impair the purpose of Rule 296. However, not to allow such a request lo extend appellate deadlines does impair the pur
pose of Rule 4l(u)(l) by depriving a party of a

statement of the basis of the trial court's ruling to allow the party to determine whether to appeal. A
restrictive construction ol' Rule 41(a)(1) thus con
flicts with the core rationale of Linwood -that the
rule should be construed to accomplish its purpose.

[5] To summarize: A request for findings of"
fact and conclusions of law does not extend tin:
Corp.'. .SOI S.W.2d 708. 799 [Tex 1979). An order

imposing discovery sanctions, on the other hand,
may be reversed for an abuse of discretion even if
findings and evidence support it Rlackinon. 841 S.W,2d at 852-853 There is less reason to require findings when they are not as binding on appeal.
[4] The purpose of Rule 41, on the other hand.
time for perfecting appeal o\' a judgment rendered as a matter of law. where findings and conclusions can have no purpose and should nol be requested, made, or considered on appeal, Lxamples ;tie sum mary judgment, judgment alter directed verdict, judgment non obstante veredicto, default judgment awarding liquidated damages, dismissal for want ol" prosecution without an evidentiary hearing, dis missal for want of jurisdiction without an eviden tiary hearing, dismissal based on the pleadings or special exceptions, and any judgment rendered
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938 S.W.2d 440, 40 Tex. Sup, Ct. J. 273 (Cite as: 938 S.W.2d 440)
without an evidentiary hearing. A timely filed re quest for findings of fact and conclusions of law extends the time for perfecting appeal when find
ings and conclusions are required by Rule 296. or when they are not required by Rule 296 but are not without purposethat is, they could properly be considered by the appellate court. Bxamples are judgment after a conventional trial before the court. default judgment on a claim for unliquidated dam ages, judgment rendered as sanctions, and any judg ment based in any part on an evidentiary hearing.
Today the Court holds that a timely request for findings of fact and conclusions of law extends the time for perfecting appeal when findings and con clusions are required b\ Rule 296. or when they are not required by Rule 296 but are not without pur
pose-that is, they could properly be considered by the appellate court. The Court opines that its new
rule does not conflict with the core rationale of Lin
wood --which is a functional approach lhat rejects a

broad construction of *444 Rule 41(a)(1) that
In the present case, although sanctions were imposed largely on the basts of discovery requests and responses that are a matter of record and indis putable, there appears to be a factual dispute over IKB's explanations for its alleged discovery abtise. The trial court's extensive findings themselves in dicate a resolution of disputed factual matters apart from the filings included in the transcript. Applying
the rule we have adopted, we hold that IKB's re quest for findings and conclusions extended the deadline for perfecting appeal. Thus, the court of appeals erred in dismissing the appeal.
would allow the filing of a request for findings and conclusions to extend the time for perfecting appeal in every case adjudicated without a jury. See Lin wood v. NCNB of Texas. 876 S.W.2d 393
(Tex.App.Dallas), rev'd on other grounds. S85

S.W,2d 102 (Tex.1994).
I respectfully disagree. The rule the Court ad opts continues to unduly complicate, rather than simplify, the issue raised in this case, fn my view, the rule the Court adopts1
* Is in fact contrary to l.inwood's functional ap proach to construing Ride 4l(a)( I );
The dissent argues that whether a request for findings extends the time for perfecting appeal should depend upon the standard of review. By this standard, a request for findings following dismissal for discovery abuse, as in this case, would noi ex tend the lime for appeal even though we have en couraged trial courts to make these findings, and they can be considered on appeal. Moreover, it sometimes happens that the standard of review has
not been finally determined. Rut: v Ctmoio. Inc. 868 S.W.2d 752. 757-758 (I"ex.l993t. Thus the
* Requires the appellate court to review the entire

record to accurately determine if the evidentiary hearing did in fact involve the trial court's resolu tion of discrete fact issues outside the scope of the pleadings, motions, documents, and argu
ments of counsel:
* Ignores appellate standard:, of review mat es

tablish whether the trial court tnusl :cm~u\c dis
crete fact questions, ami the impact thuse stand ards of review have upon a particular Lippcut; and
* Adds delay to many appeals an additional sixty days-- -when the judicial system is under fire from the legal community and the general public for the inordinate tune -and concomitant costs---it lakes lo process a controversy through the system. I believe a more appropriate and mote work able rule is that whether a request for findings of
standard the dissent would apply is less certain than the one we adopt.
Accordingly, the Court grants IKB's applica tion for writ of error and without hearing oral argu ment reverses the judgment of the court of appeals
and remands the case to that court for a considera tion of other issues raised. TEX.R.APP. P. 170.
BAKER, Justice, dissenting.
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II. PRINCIPAL APPELLATE STANDARDS OF
REVIEW
fact and conclusions of law extends the time to ap peal depends upon the standard of review that ap
plies to the particular appeal. In my view, this rule

would:
A. ABUSE OF DISCRETION
Under an abuse of discretion standard, the ap
pellate court reviews the entire record to determine

* Support Linwood's functional approach to con struing Rule 41(a)(1); * Permit the parties to determine immediately whether findings and conclusions are necessary
to the appeal and therefore necessary to request and extend the time to perfect the appeal; if the trial court acted arbitrarily and unreasonably,
and thus abused its discretion Morrow v H E.B.
Inc.. 714 S.W.2d 297. 298 (Tex.1986). The review
ing court may not reverse the trial court for an ab

use of discretion because it disagrees with the trial court's decision so long as that decision is within
the trial court's discretionary authority Beaumont
Bank v. Buller. 806 S.W.2d 223. 226 {Tex 1991):
* Permit the appellate court to determine immedi ately-without the necessity o\' reviewing the en tire recordwhether the request for findings and
conclusions extends the time to perfect the ap peal; and
*445Downer v. Aquamarine Operators. Inc. 701

S.W.2d 238. 242 (Tex, 1985).
Under an abuse of discretion standard ol" re
* Avoid additional delays in processing and dis posing of many appeals,

I. REQUESTS FOR FINDINGS OF FACT Rule 41(a)(1) clearly relates to Rule 296. See TEX.R.APP, P. 41(a)(1) and TEX.R. CIV. P. 296.
view, the appellate court does not review factual is sues decided by the trial court under legal or factual sufficiency standards. Crouch v Tenneco, Inc. 853 S.W.2d 643. 649 ("lex.App.Waco 1993. writ
denied). Under an abuse of discretion standard of
review, legal and factual sufficiency claims are not independent, reversible grounds of error, but rather merely factors to consider in assessing whether the
trial court abused its discretion, Buller. S06 S.W,2d at 226. Under an abuse of discretion standard of re
Rule 296 only entitles a party to findings of fact

and conclusions of law in cases tried in district or
county court without a jury. Chavez v. Housing Au di, of El Paso. 897 S.W.2d 523. 525 (Tex.App.-4ll
Paso 1995. writ denied). A court tries a case when
view, findings of fact and conclusions ai' law are neither appropriate nor required. ('much. 853
S.W.2dal649.
there is an evidentiary hearing upon conflicting

evidence. Linwood. 876 S.W.2d at 395: Chare:,
An abuse of discretion does not exist il the trial
897 S.W 2d at 525. Accordingly, findings of fact are appropriate only when the court is deciding fact
issues. Chavez. 897 S.W.2d at 525. Where the court
court bases us decision on conHicling evidence and
some evidence supports the irial court's decision

.Set- Ru,z v CojiiKd. Inc 868 S W 2d 752. <'i8
rules without determining discrete fact questions, requests for finding of fact and conclusions of law are neither appropriate nor effective for extending appellate deadlines. WISD Taxpayers Ass'n v. Waco fndep. Sch. Dist.. 912 S.W.2d 392, 394 (Tex.App.Waco 1996. no writ); Chavez. 897 S.W.2d at 525-26. Findings specifically tied to an appropriate legal standard are the only type of find ings that can be truly beneficial to appellate review. Chii'ster Corp. v Blacknum. 341 S.W.2J 844. 853
(Tex.1992;.
(Tex. 1993) An abuse o! discretion doc* not exist if

some evidence in the record shows the trial court
followed guiding rules and slatmes. Crouch. 853

S,W.2dat649.
B. EVIDENTIARY STANDARD OF REVIEW
Legal and factual sufficiency of the evidence standards of review govern appeals ol' nonjury trials
on the merits. Blackmoii. 841 S.W.2d at 852: Hall.
Standards ol Ippe/laic Revieu in Civil ip/ieah. 21

ST. MARY'S t .1 865. 919 20 (1940). When a
2012 Thomson Reuters. No Claim to Orig US Gov. Works.
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PaLje 8ol'10
Page 7
938 S,W.2d 440. 40 Tex. Sup. Ct. J. 273

(Cite as: 938 S.W.2d 440)
party appeals from a nonjury trial, it must complain of specific findings and conclusions of the trial court, because a general complaint against the trial court's judgment does not present a justiciable question. Fiduciary Mortgage Co. v. City Nal'l
review. Accordingly, under the rule I propose. I would hold that findings and conclusions did not extend the appellate timetable in this case. I would affirm the court of appeals' judgment dismissing the appeal and deny the writ.
IV. CONCLUSION
Bank, 762 S.W.fd 196." 204 (Tex.App.-Dallas

1988, writ denied). Accordingly, findings of fact and conclusions of law are mandatory for a party to file to avoid the onerous presumptions that apply in an appeal from a nonjury trial. When an appellant does not request or file findings and conclusions by the trial court, the appellate court presumes the trial court found all fact questions in support of its judg ment, and the reviewing court must affirm that judgment on any legal theory finding support in the pleadings and evidence. Point Lookout West, Inc v.
Wharton, 742 S.W.2d 277, 278 (Tex.1987).
The Court asserts that the rule it adopts is bel ter than the one I propose because it sometimes
happens thai the appellate standard of review has

not been finally determined. Thus, the Court con cludes that the standard I would apply is less cer tain than the one ii adopts. I beg to differ again.
There is a substantial body of statutory and case law that establishes appellate standards of re
view. Moreover, the bench and bar are fortunate lo
have available two excelleni*446 law review art
If the appellant does not challenge the trial court's findings of fact, when filed, these facts are binding upon both the party and the appellate court.
Wade v Anderson, 602 S.W.2d 347. 349
(Tex.Civ.App.Beaumont 1980, writ r^\\\ n.r.e.). Accordingly, it is incumbent for the appellant to at tack the findings by appropriate legal and factual sufficiency points of error. Lovejov v. Liliie. 569 S.W.2d 501. 504 (Tex.Civ.App -Tyler 1978. writ
refd n.r.e.).
icles that put this body of law together for ready reference. See generally Hall, Standards of Ap pellate Review in Civil Appeals. 21 ST. MARY'S L..I. 865 (1990) and Hall, Revisiting Standards ol Re view in Civil Appeals. 24 ST. MARY'S L..1 1045 (1993). "The law prescribing the standard of review
to a particular ruling is complex but relatively well

settled." Hechl, Forward' Revisiting Standards oj Review in Civil Appeals. 24 ST. MARY'S L.I.
1041. 1041 (1993).
In an appeal of a nonjury trial, findings are spe
cifically and meaningfully lied to appropriate stand ards of appellate review and are therefore truly be neficial to appellate review. See Bluckmon. 841
S.W.2datS53.
Today the Court needlessK establishes a new slandard when existing standards will belter solve the problem. I respectfully dissent.
Tex.. 1997.
III. DISMISSAL AS A DISCOVERY SANC

TION
1KB Industries (Nigeria) Ltd. v. Pro-Line Corp 938 S.W.2d 440. 40 Tex Sup. Ct. J. 373
END OK DOCUMENT
The appellate standard of review of a trial court order dismissing a case as a discovery sanction is
abuse of discretion, Bluckmon, 841 S.W.2d a! 852;
TransAmerican Nat Gas Carp v. Powell. S i I S.W.2d 913. 919 n. 9 (Tex.1991). Findings are neither appropriate nor required tinder an abuse of
discretion standard. Crouch. 853 S.W.2d at 649.
Findings are not tied to the appellate standard of re view and are not necessarily beneficial to appellate
2012 Thumson Reuiers No Claim to Orig. US Gov Works.
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Paee 10 of 10
Westlaw.
Date of Printing: May 30. 2012

KEYCITE
F> 1KB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 40 Tex. Sup. Ct. J. 273 (Tex., Jan 31,
1997) (NO. 95-0703)
History Direct History
P*
=>
1 1KB Industries (Nigeria) Ltd. v. Pro-Line Corp., 901 S.W.2d 568 (Tex.App.-Dallas Apr 12. 1995)
(NO. 05-94-00679-CV), rehearing overruled (May 30. 1995), writ granted (Jan 3 1. 1997)
Judgment Reversed by
2 IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440. 40 Tex. Sup. Ct. J. 273
(Tex. Jan 31. 1997) {NO. 95-0703)
On Remand to
3 1KB Industries (Nigeria) Ltd. v. Pro Line Corp.. 1997 WL 527266 (Tex.App.-Dallas Aug 22.
1997) (NO. 05-94-00679-CV) Negative Citing References (U.S.A.)
Declined to Extend by
!>
4 Odessa Texas Sheriffs Posse. Inc. v. Ector County, 2I5 S.W,3d 458 (Tex.App.-Easlland Oct 26.
2006) (NO. 11-05-00309-CV), review denied (Apr 27, 2007) * * HN:2(S.W.2d) Distinguished by
P'
P>
5 Cortez v. Progressive County Mut. Ins. Co.. 61 S.W.3d 68 (Tex. App.-Austin Sep 13, 200 I) (NO
03-99-00846-CV). review granted (May 23, 2002) * * * HN: 4,5 (S.\V.2d)
6 Honev. Hanafm, 105 S.W.3d 15 (Tex.App-Dallas Mar 14, 2002) (NO. 05-01-00897-CV) * *
" HN: 2,4,5 (S.W.2d)
'2012 Thomson Reuters. All rights reserved.
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bb00362
Red 12June18P4:15
Patsy Perez
District Clerk Nueces District
Jena Gonzalez
Plaintiff
In the County Court
v.
South Texas Veterinary Associates, Inc. Defendant
At Law No. 5
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR NEW TRIAL
this Response to Plaintiffs Motion for New Trial and in support of same, respectfully shows the
Court as follows:
Regarding Plaintiffs contention that the Court failed to rule on authenticity objection regarding documents produced in discovery
Plaintiffs
The Court's Order signed May 9, 2010 provides: "It is further ORDERED, ADJUDGED
and DECREED that all other relief not expressly granted herein is hereby denied."
Consequently, Plaintiffs contention is incorrect - By the foregoing provision, the Court denied
all of Plaintiffs authenticity objections to any summary judgment evidence offered by Defendant
in support of its combined No-Evidence and Traditional Motions for Summary Judgment.
o Regarding Plaintiff's contention that the Court considered evidence allegedly obtained illegally in another jurisdiction, which was objected to by Plaintiff
Plaintiffs Motion for New Trial fails to specify the evidence purportedly obtained
illegally in another jurisdiction. Assuming Plaintiff is referring to the audiotaped recording of the January 14, 2012 conversation between Plaintiffs retained testifying expert, Dr. Robert
100-506 Page 1
0000363
"Bob" Rogers, and Defendant's retained testifying expert, Dr. Alan Garett, Defendant contends that such recording was legally made by Dr. Garett. At the time of their recorded conversation,
Dr. Rogers and Dr. Garett (and approximately 6,000 other veterinarians) were attending the 2012 North American Veterinary Conference at an Orlando, Florida resort. During a break in
programming, Dr. Rogers and Dr. Garett conversed, with the other veterinarians attending the
conference program all around them. Before he spoke to Dr. Garett, Dr. Rogers never advised
Dr. Garett that he did not expect or wish to be recorded, and no reasonable expectation of
privacy at to their conversation existed. See Dept. of Agric. and Consumer Servs. v. Edwards,
654 So.2d 628, 632-33 (Fla. App. [1st Dist.] 1995, review denied) (explaining that Section 934.03 only protects oral communications where there is "a societal recognition that the expectation [of privacy] is reasonable" and finding no reasonable expectation of privacy
regarding a conversation occurring during a meeting between an employee and his supervisors in
the supervisor's office to discuss a grievance filed by the employee); see Jatar v. Lamaletto, 758 So.2d 1167, 1169 (Fla. App. [3rd Dist.] 2000) (affirming that, under Florida law, "Society is willing to recognize a reasonable expectation of privacy in conversations conducted in private homes, but the expectation does not automatically extend to conversations held outside the
home, even as to conversation conducted in private business offices) (emphasis added).
Furthermore, Dr. Rogers is Plaintiffs retained testifying expert, and Dr. Garett is Defendant's retained litigation expert, and Dr. Rogers voluntarily communicated with Dr. Garett regarding this specific litigation matter. As a litigation testifying expert voluntarily conversing with the
opposing party's litigation expert, no reasonable expectation of privacy existed regarding the
experts' conversation. In addition, Florida criminal statutes are irrelevant and inapplicable to
this Texas civil suit regarding the alleged veterinary malpractice of Defendant and its
100-506
Page 2
0000364
veterinarian, Dr. David Shaffer. Instead, only Texas statutes and Texas case law are relevant to
this civil litigation, and pursuant to Rules 194.2(f)(4)(A) and 194.2(i), the recorded statements of Dr. Rogers and Dr. Garett are discoverable and relevant, admissible summary judgment
evidence.
Equally important, as to Plaintiffs objection to the recording, the Court's Order signed May 9, 2010 provides: "It is further ORDERED, ADJUDGED and DECREED that all other relief not expressly granted herein is hereby denied." Consequently, the Court denied all of
Plaintiffs objections to the recording.
Regarding Plaintiff's contention that Defendant's expert testimony admitted into evidence did not meet the necessary standards of reliability and relevance
In response to Defendant's Motions for Summary Judgment, Plaintiff never objected to Defendant's proffered excerpts of Dr. Shaffer's deposition testimony as being unreliable or
irrelevant. Consequently, Plaintiff waived any such objections and may not raise them for the first time as part of her Motion for New Trial.
Regarding Plaintiffs contention that the Court erred in excluding the deposition testimony of Plaintiff's retained testifying expert. Dr. Robert "Bob" Rogers
In response to Defendant's Motions for Summary Judgment, Plaintiff never offered any
of Dr. Rogers1 oral deposition testimony. Consequently, the Court could not consider, and
properly excluded, any deposition testimony of Dr. Rogers which Plaintiff now wishes to rely upon as part of her Motion for New Trial.
Regarding Plaintiffs contention that the Court erred in failing to apply the same standard applied to human healthcare providers Plaintiff misconstrues current Texas law. Where a statute has been enacted which
supersedes the locality rule, the locality rule no longer applies. See Bakhtari v. Estate of Dumas,
317 S.W.3d 486, 494 (Tex. App.--Dallas 2010, no pet.) (explaining that, with the enactment of
100^506
Page 3
0000365
expert witness requirements of Chapter 74 of the Texas Civil Practice and Remedies Code, "a
different standard is now imposed by statute" as to providers treating humans). However,
Chapter 74 and the cases cited by Plaintiff regard the standard of care applicable to health care providers who treat humans. See TEX. Civ. Prac. & REM. CODE 74.001 (12)(A) (defining
"health care provider" as only those who treat humans, including specifically, a registered nurse, a dentist, a podiatrist, a pharmacist, a chiropractor, and an optometrist). Chapter 74 does not apply to veterinarians, and the Texas legislature has enacted no comparable medical liability
statute as to veterinarians. Accordingly, the locality rule continues to apply to health care claims
asserted against veterinarians. See Downing v. Gully, 915 S.W.2d 181, 183 (Tex. App.Ft.
Worth 1996, writ denied) (adopting the community standard of care applied to physicians and
surgeons in medical malpractice cases prior to the Legislature's enactment of Chapter 74 to

veterinary malpractice cases); see also Bakhtari v. Estate of Dumas, 317 S.W.3d 486, 494 (Tex.
App.-Dallas 2010, no pet.) (explaining that, with the enactment of expert witness requirements
of Chapter 74 of the Texas Civil Practice and Remedies Code, "a different standard is now
imposed by statute" as to providers treating humans).
In that same regard, the Texas State Board of Veterinary Medical Examiners
("TBVME"), which is responsible for governing, policing, and disciplining veterinarians
practicing in Texas, has expressly acknowledged continued application of the locality rule to veterinarians. In its response to the complaint filed by Plaintiffs retained testifying expert, Dr. Rogers, against all small animal veterinarians utilizing the same adjuvanted vaccines and
vaccinations practices and procedures at issue in this case, the TBVME advised Dr. Rogers that
the very vaccines/vaccination practices and procedures at issue in this lawsuit are not subject to
100-506
Page 4
0000366
any one, nationalized standard ofcare, but instead, such choices are left to the discretion ofthe
treating veterinarian:
With regard to the community standard of care, the Board has stated on
several occasions that it will not require exclusive standards of practice that
must be followed by all veterinarians absent a general measure of agreement
among veterinarians. The Board recognizes that veterinarians must be free, within generally accepted practice guidelines, to exercise their discretion in applying treatment and medical practices ... The Board realizes that hard and
fast rules on such matters are always subject to disagreement, depending upon the
unique circumstances that may confront a veterinarian. The same is true for the
matter of vaccinations and vaccination intervals. You feel strongly that
certain vaccination practices should be changed, based on information that
you have gleaned from different sources. Much of this information is in the
form of recommendations only. From our perspective, definitive large-scale studies are lacking. In light of this, many veterinarians are reluctant to agree
that changes to vaccination protocols are needed or appropriate at this time.

... in the final analysis, until more clearly definitive information is available,
the Board believes that each veterinarian must make practice decisions based
on experience and knowledge of patients and the community standard of

care. Requiring detailed vaccination practices by rule would create much disagreement among veterinarians and is something the Board is not prepared to do at this time. ... I know this is not the response you want ... See Exhibit "1" of Defendant Reply to Plaintiffs Response to Defendant's No-Evidence & Traditional Motions for Summary Judgment, a true and correct copy of the May 7, 2002 letter of Ron Allen, Executive Director of the Texas Board of Veterinary Medical Examiners, to
Plaintiffs retained expert, Dr. Bob Rogers (emphasis added).
Regarding Plaintiff's contention that disputed fact issues exist regarding whether Dr. Shaffer deviated from the applicable standard of car and regarding whether any
such devision proximately caused the fibrosarcoma in question
To defeat Defendant's summary judgment motions, Plaintiff had to offer competent,
admissible evidence of the following: (1) the standard of care applicable to a small animal
veterinarians ofordinary skill and care in Corpus Christi, Nueces County, Texas regarding using
adjuvanted versus non-adjuvanted vaccines and regarding no less than thirteen (13) aspects of
vaccination practices and protocols for cat vaccinations (See Plaintiffs First Amended Original
100-506
Page 5
0000367
Complaint, at pp. 3-6, ^[16-30), (2) that Defendant and Dr. Shaffer breached such standard of care as to the 13 alleged acts of professional negligence, and (3) that the alleged breaches by
Defendant and Dr. Shaffer proximately caused the cat's death.
As part of Defendant's summary judgment evidence, Plaintiffs sole testifying expert, Dr.
Robert "Bob" Rogers, repeatedly admitted that he has no knowledge of the standard of care applicable to Defendant and Dr. Shaffer. See Exhibit "B" of Defendant's combined Motion for
Summary Judgment at 40:3-11 & 45:9-19 & 47:8-15 & 57:5-9. Accordingly, Plaintiff could not and did not offer any competent, relevant, or admissible evidence of the standard of care
applicable to Defendant and Dr. Shaffer as to the thirteen 13 disputed aspects of vaccination
practices and protocols for cat vaccinations (See Plaintiffs First Amended Original Complaint, at pp. 3-6, ^16-30). Furthermore, Plaintiff could not and did not offer any competent, relevant, or admissible evidence that Defendant and Dr. Shaffer breached any standard of care as
to the 13 alleged acts of professional negligence. Finally, Plaintiff could not -- and did not
offer any competent, relevant, or admissible evidence that any alleged breaches by Defendant and Dr. Shaffer of any applicable standard of care proximately caused the cat in question's death.
Regarding Plaintiffs contention that the Court "considered evidence that could
have been submitted but was not"
At all times prior to the Court's grant of summary judgment, and in her Motion for New
Trial, Plaintiff failed to specify the evidence complained of by her, rendering her complaint moot
and waived as a matter of law.
Regarding Plaintiffs contention that the Court "did not view evidence in the light most favorable to the nonmoving party and resolve all reasonable doubts about the facts in favor of the nonmoving party"
In her Motion for New Trial, Plaintiff failed to specify the evidence complained of by
her, rendering any evidentiary complaint moot and waived as a matter of law.
100-506
Page 6
0000368
The remainder of Plaintiff s contention is merely argumentative speculation by Plaintiff.
That Plaintiff disagrees with the Court's summary judgment ruling does not mean that the ruling was unfair, inequitable, and unjust. The summary judgment proceeding was fair to all parties,
and the Court's grant of summary judgment to Defendant was just, in light of the applicable law and all competent, summary judgment evidence presented to the Court in support of Defendant's summary judgment motions. Accordingly, Plaintiffs Motion forNewTrial should be denied.
PRAYER
WHEREFORE, PREMISES CONSIDERED, in light of the above stated evidence,
arguments, and authorities, Defendant South Texas Veterinary Associates, Inc. respectfully prays
that the Court ORDER that Plaintiffs Motion for New Trial is DENIED in its entirety.
100-506
Page 7
0000369
By:.
Keith B. O'Connell

Valerie L. Cantu State Bar No. 24012498

and HILLIARD MUNOZ GONZALES L.L.P.
Bv: 1(cWA- \j. Vb$kuX,^f\^^

Robert C. Hilliard


INC.
100-506
Page 8
0000370
has, this 1%W\ day of June, 2012, been delivered via certified mail, return receipt requested,
to:

3717 Aransas
Valerie L. Cantu
100-506
Page 9
0000371
Electronic Filing Manager
Page 1 of2
Nueces District and County Courts

ELECTRONIC FILING MANAGER
Court Information
Clerk:
Pullin, Claudia
Filing Detail
Status:
Confirmation 06/18/2012 04:15:34 PM 06/20/2012 02:40:04 PM 2011-CCV-61850-5

ED178J016934013
Official Date/Time:
Clerk Process Date:
Case/Cause Number: Trace Number:
Style/Case Name: Filing Type:

Seaied Document:
Jena Gonzalez v. South Texas Veterinary

Associates, Inc.
Answer
No
Jurisdiction:
Nueces District and County Courts

District
Jurisdiction Type:
Court/Calendar:
COUNTY COURT AT LAW #5
Hearing Date: Filing Type and Fee Changes Allowed?

Comments to the Filer:
Yes
THANKS FOR E-FILING AND HAVE A GREAT DAY
Special Instructions:
13
Additional Comments:
Attorney & Filer Information

Attorney Name: Attorney Email:
Bar Number:
Cantu, Valerie L.
valeriec@oconben.com
24012498
Law Firm:
Address:

13750 San Pedro Suite 110
City/State/Zip:
Phone Number Fax Number: Filer Name: Filer ID: Filer Email:
San Antonio, TX 78232

210-824-0009 210-824-9429
Cantu, Valerie L.
Valerie
valeriec@oconben.com Attorney
Filer Type:
0000372
https://wvw.efilingforcourts.com/Clerk^ 6/20/2012
Electronic Filing Manager
Page 2 of 2
Filing Parties
Name Roles
Cantu, Valerie L.
Filer - Filing Attorney - Defendant Counsel
Respondent Attorneys
Name Roles
Cantu, Valerie L.
Filer - Filing Attorney - Defendant Counsel
Payment Information
Payment Method: Credit Card - Discover, Account # *
***********
4942, Expiration Date - 01/31/2014
Filing Fees
Nueces District eFiiing Fee

Answer
V $2.00
$0.00
Fifing Fee Total: $2.00

Grand Total: $2.00
Document Information
Number of Documents
Filing Document
File Name:
0618160935001.pdf
Document Description:
Status History
Status Date 06/20/2012 02:40:04 PM Status Clerk ID
Clerk Name
Confirmation
cpullin cpullin
Claudia Pullin Claudia Pullin
06/20/2012 02:39:05 PM 06/18/2012 04:15:50 PM
Acknowledgement - Open Acknowledgement
0000373
httpsV/www.efilingforcouils.com/^^
6/20/2012
O ' C o n n e l l <& Avery l l p

a t t o r n e y s amd c o u n s e l o r s 13750 s a n pedro, s u i t e mo
Sam Antonio, Texas 78232

Telephone 12 I O) IEIOI BZ1-0009 8Z4-94ZG
Email: valeriec@oconbeh.com
FACSIMILE
June 19, 2012
-T]
Via E-Mail Transmission: lillian.fanning@co.nueces.tx.us

Honorable Brent Chesney c/o Ms. Lillian Fanning
';y !fc
County Court at Law No. 5of

2310 Gollihar
Re:
q = [(
H
'""
_^ ~J ids
<p
^
[-fl ' ||
> l-:.T C ^> ô

;,^
*
Cause No. 201 l-CCV-61850-5; Jena Gonzalez v. South Texas Veterinary Associates^
Inc . in the County Court at Law No. 5, Nueces County, Texas
Dear Judge Chesney: We received Plaintiff Gonzalez's letter of June 19, 2012 continuing to seek findings of fact and conclusions of law from the Court, and we reply as follows:
Texas Rules of Civil Procedure 296 and 297 and the cases cited by Plaintiff do not apply where a trial court grants summary judgment relief to a party. See enclosed Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 810 (Tex. App.-Dallas 2006, pet. denied) (explaining "When a trial court grants summary judgment relief ... findings of fact are not appropriate because the summary judgment proceeding has not been 'tried' within the scope of rule 296. Findings of fact and conclusions of law have no place in a summary judgment proceeding. If summary judgment is proper, there are no facts to find, and the legal conclusions have already been stated in the motion and response") (citations omitted). Furthermore, we refer the Court to the two Texas Supreme Court cases we provided as part of our June 11, 2012 letter to the Court - Specifically, please see Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (explaining that "findings of fact and conclusions of law have no place in a summary judgment proceeding") and IKB Indus, v. Pro-Line Corp., 938 S.W.2d
440, 441 (Tex. 1997) (affirming that "if summary judgment is proper, there are no facts to find, and the legal conclusions have already been stated in the motion and response" and thus, [t]he
trial court should not make, and an appellate court cannot consider, findings of fact in connection
with a summary judgment"). Respectfully,
0000374
Honorable Brent Chesney June 19,2012
Page 2
cc:
(Via E-Mail, w/Encs.: gil4584@peoplepc.com")

(Via E-Mail, w/Encs.: bobh@hmgIawfirm.com & ntdyg@hmglawfirm.com')

Mr. Robert C. Hilliard

0000375
Page 2 of 22
Westlavu
Pase 1
190S.W.3d796
(Cite as: 190 S.W.3d 796)
388k388(l) k. In general. Most Cited Court of Appeals of Texas,

Dallas.
Cases
Mr. and Mrs. Melvin WILLMS, Appellants,

v.
AMERICAS TIRE CO., INC., Fred Wilson d/b/a Americas Automotive and Tire Co., and The State of Texas, Appellees.
No. 05-05-00591-CV.
Purpose of rule under which, in any case tried in district or county court without a jury, any party may request court to state in writing its findings of fact and conclusions of law is to give a party a right to findings and conclusions finally adjudicated after
a conventional trial on the merits before the court.
Vernon's Ann.Texas Rules Civ.Proc, Rule 296. March 28, 2006.
|2j Appeal and Error 30 ^1031(1)

30 Appeal and Error
30XVI Review
Supplemental Opinion Denying Rehearing May 5,

2006.
Background: After patrons brought action against auto repair shop alleging improper repair of their car engine and lost, they brought action against auto repair shop alleging criminal fraud, fraud on the court, attempted theft, theft, negligence, and
gross negligence. The 160th Judicial District Court,
30XV1(J) Harmless Error 30XV1(J)1 In General
30k 1031 Presumption as to Effect of

Error
30kl031(l)
Cited Cases
k.
In general.
Most
Dallas County, Joe Cox, J., granted summary judg

ment in favor of shop, found patrons to be vexa Trial 388 ^>392(4)
388 Trial
tious litigants, and denied shop's request for sanc

tions. Patrons appealed.
Holdings: The Court of Appeals, Lang, J., held that: (1) findings of fact and conclusions of law respect ing order determining plaintiffs to be vexatious lit igants were not required, and (2) evidence was presumptively sufficient to estab lish that plaintiffs were vexatious litigants. Affirmed; motion for rehearing denied.
West Headnotes
388X Trial by Court 388X(B) Findings of Fact and Conclusions of

Law
388k392 Requests for Findings 388k392(4) k. Ruling on request. Most

Cited Cases
A trial court's failure to respond to a timely re quest for findings of fact and conclusions of law is error and is presumed harmful unless the record be-.
fore the appellate court affirmatively shows that the

complaining party has suffered no harm.
|1| Trial 388 ^>388(1)

388 Trial
[3|'Appeal and Error 30 0=^1071.1(2)

30 Appeal and Error
30XV1 Review

Law
30XVI(J) Harmless Error
388k388 Duty to Make in General
30XVI(J)21 Findings 30k 1071 Findings by Court or Referee

30k 1071.1 In General
30k 1071.](2) k. Total omission
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of findings; delay. Most Cited Cases The general rule is that an appellant has been
harmed if under the circumstances of the case, he
court's findings are provided to him. |6] Trial 388 0=^388(2)

388 Trial
has to guess at the reason the trial court ruled

against him.
|4| Appeal and Error300=^1071.1(2)

30 Appeal and Error
30XVI Review

Law
30XVI(J) Harmless Error 30XVI{J)21 Findings 30k 1071 Findings by Court or Referee
30kl07l.l In General
30kl071.1(2) k. Total omission of findings; delay. Mo.st Cited Cases
Trial 388 0^393(1)

388 Trial
388k388 Duty to Make in General 388k388(2) k. Actions and proceed ings in which necessary. Most Cited Cases Findings of fact and conclusions of law re specting order determining plaintiffs to be vexa tious litigants were not required; vexatious litigant issue was not tried in conventional bench trial, vex atious litigam statute did not requiie written find ings of fact and conclusions of law, and there were no cases addressing whether trial court was tequired to file written findings of fact and conclu
sions of law.

Law
(7| Appeal and Error 30 0^1071.1(2) 30 Appeal and Error

30XVI Review
388k393 Preparation and Form in General 388k393(l) k. In general. Most Cited

Cases
Recitations in the judgment do not meet the re
quirements for findings and conclusions or alleviate

harm.
30XVI(J) Harmless Error 30XVI(J)21 Findings 30k 1071 Findings by Court or Referee
30kl071.l In General
30ki071.1(2) k. Totai omission
|5| Appeal and Error 30 =>1071.1(2)

30 Appeal and Error
30XVI Review
30XVI(J) Harmless Error 30XVI(J)21 Findings 30kl071 Findings by Court or Referee

of findings; delay. Most Cited Cases Failure to file findings of fact and conclusions of law respecting order determining plaintiffs to be vexatious litigants did not harm plaintiffs; there was only single ground for determining plaintiffs vexatious litigants before district court, and plaintiffs did not have to guess at reasons for dis
trict court's ruling.
30kl071.1(2) k. Total omission of findings; delay. Most Cited Cases If there is only a single ground of recovery or a
|81 Appeal and Error 30 0=>497(1) 30 Appeal and Error

30X Record
single defense, an appellant does not usually have to guess at the reasons for the trial court's ruling; however, if there are two or more possible grounds
of recovery or defense, an appellant is forced to guess what the trial court found unless the trial
30X(A) Matters to Be Shown

30k497 Grounds of Review
30k497(l) k. In general. Most Cited
2012 Thomson Reuters. No Claim to Oris. US Gov. Works.
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Cases
Without a reporter's record, an appellate court

cannot review a trial court's order for an abuse of discretion.
|9) Appeal and Error 30 ^>907(2)

30 Appeal and Error
30XV1 Review
If the trial court determines the plaintiff is a vexatious litigant, after hearing the evidence on the motion, the trial court is required to order the plaintiff to furnish security for the benefit of the moving defendant; it is within the trial court's dis cretion to determine the date when the security
must be furnished. V.T.C.A., Civil Practice & Rem edies Code 11.055(a).
30XVI(G) Presumptions 30k906 Facts or Evidence Not Shown by

Record 30k907 In General
[12| Costs 102O^>137

102 Costs
30k907(2) k. Failure to set forth evidence in general. Most Cited Cases When an appellant fails to bring a reporter's re
I02VI Security for Costs; Proceedings in Forma Pauperis I02kl37 k. Effect of failure to give security.
Most Cited Cases
cord, an appellate court must presume the evidence presented was sufficient to support the trial court's
order.
Costs 102 0^142

102 Costs
[10] Action 13 0=9

13 Action 131 Grounds and Conditions Precedent
13k9 k. Unnecessary or vexatious actions.

Most Cited Cases
102V! Security for Costs; Proceedings in Forma Pauperis 102k 139 Liabilities on Bonds, Undertakings, or Recognizances 102k 142 k. Accrual or release of liability by breach or fulfillment of conditions. Most Cited
Cases
A court may find a plaintiff a vexatious litigant if the defendant shows: (1) there is not a reasonable probability the plaintiff will prevail in the litiga tion; and (2) there is other evidence regarding pre vious litigation by the defendant,
If the plaintiff is a vexatious litigant, if the plaintiff fails to furnish the security by the date spe
cified in the trial court's order, the trial court must
|11] Costs 102O^>105

102 Costs
dismiss the litigation against the moving defendant; however, if the security is furnished and the litiga tion is dismissed on the merits, the moving defend ant has recourse to the security. V.T.C.A., Civil Practice & Remedies Code 11.055(a). |13) Injunction 212 0=?1169 212 Injunction 212IV Particular Subjects of Relief
212IV(A) Courts and Actions in General 212kl 168 Abusive, Vexatious, or Harass ing Litigation 212kll69 k. In general. Most Cited
Cases
I02V1 Security for Costs; Proceedings in Forma Pauperis 102kl05 k. Nature and grounds of right in general. Most Cited Cases
Costs 102 0^119
102 Costs
102VI Security for Costs; Proceedings in Forma Pauperis 102kll9 k. Time for giving security. Most
Cited Cases
(Formerly 212k26(4))
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A trial court is authorized to enter a prefiling order enjoining a person from filing a new litiga tion, in propria persona, without the prior permis sion of the local administrative judge if, after notice and a hearing, the trial court finds: (1) the person is a vexatious litigant; and (2) the local administrative judge has not granted permission to the person to file the litigation. V.T.C.A., Civil Practice & Rem edies Code 11.055(a). |14] Action I3 0=>9
13 Action 131 Grounds and Conditions Precedent
30V Presentation and Reservation Court of Grounds of Review

Thereon
in
Lower
30V(B) Objections and Motions, and Rulings

30k223 k. Judgment. Most Cited Cases Plaintiffs waived for appellate review claims as to continuance of motion for summary judgment by district court; plaintiffs did not file affidavit ex plaining need for further discovery because they had not received discovery responses and had pending request for depositions on written ques tions, and plaintiffs did not file verified motion for
continuance.

Most Cited Cases
[17) Appeal and Error 30 ^>893(1)

30 Appeal and Error
30XV1 Review
Evidence was presumptively sufficient to es tablish that plaintiffs were vexatious litigants; plaintiffs failed to supply adequate record of vexa tious litigants hearing, and attached to motion for summary judgment were numerous exhibits repres enting lawsuits filed by plaintiffs, district court's or der granting summary judgment provided, in part, that plaintiffs "are determined to be vexatious litig ants" and they were prohibited from filing lawsuits county without approval of local administrative judge.
30XVI(F) Trial De Novo

30k892 Trial De Novo
30k893 Cases Triable

Court
in Appellate

Cases
[I5| Judgment 228 =^185.2(9)

228 Judgment 228V On Motion or Summary Proceeding 228k 182 Motion or Other Application
228kl85.2 Use of Affidavits
Whether a trial court has subject matter juris diction is a matter of law, so an appellate court re views a challenge to the trial court's subject matter jurisdiction de novo; in performing this review, an appellate court does not look to the merits of the case, but considers only the pleadings and evidence relevant to the jurisdictional inquiry. I18| Pleading 302 0=104(1) 302 Pleading 302111 Responses or Responsive Pleadings in
General
228kl 85.2(9) k. Effect of failure to file

affidavit. Most Cited Cases
Trial court properly granted summary judgment on claims of criminal fraud, fraud on court, attemp ted theft, theft, negligence, and gross negligence, where plaintiffs did not offer any evidence to sup port elements of causes of action alleged in their pleadings.
302111(B) Dilatory
Abatement
Pleas
and
Matter
in
302kl 04 Plea to the Jurisdiction
302kl04(l) k. In general. Most Cited

Cases
116] Appeal and Error 30 0=223

30 Appeal and Error
A plea to the jurisdiction is a dilatory plea, whose purpose is to defeat a cause of action without regard to whether the claims asserted have merit.
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[191 Pleading 302 0=104(1)

302 Pleading 302III Responses or Responsive Pleadings in
General Cases
302111(B) Dilatory
Abatement
Pleas
and
Matter
in
302k 104 Plea to the Jurisdiction
302kl04(l) k. In general. Most Cited District court did not err when it granted State's plea to jurisdiction and dismissed plaintiffs claims with prejudice, where claim of theft alleged by plaintiff was barred by sovereign immunity.
302111(B)
Abatement
Dilatory
Pleas
and
Matter
in
302kl04 Plea to the Jurisdiction

Cases
A plea to jurisdiction contests a trial court's subject matter jurisdiction; the purpose of the plea is not to force the plaintiffs to preview their case on the merits, but to establish a reason why the merits of the plaintiffs' claims should never be reached.
|231 Appeal and Error 30 0=977(3)

30 Appeal and Error
30XVI Review
30XVI(H) Discretion of Lower Court 30k976 New Trial or Rehearing

30k977 In General
[201 Pleading 302 0=111.48

General
30k977(3) k. Grant of new trial in general. Most Cited Cases
Appeal and Error 30 0=977(5) Dilatory Pleas and Matter in 30 Appeal and Error
30XVI Review
302111(B)
Abatement
302k 111 Decision of Issue, and Proceed ings Thereon 302kl 11.48 k. Amendments following
30XV1(H) Discretion of Lower Court 30k976 New Trial or Rehearing

30k977 In General
sustaining of pleas. Most Cited Cases A trial court must grant a plea to the jurisdic tion, after providing an appropriate opportunity to amend, when the pleadings do not state a cause of action on which the trial court has jurisdiction.
30k977(5) k. Refusal of new trial.

Most Cited Cases
New Trial 275 0=6

275 New Trial
[211 Officers and Public Employees 283 0=114 283 Officers and Public Employees 283III Rights, Powers, Duties, and Liabilities
283kl 14 k. Liabilities for official acts. Most
Cited Cases
2751 Nature and Scope of Remedy

275k6 Cases k. Discretion of court. Most Cited
Whether to grant or deny a motion for new trial is generally a matter addressed to the broad discre
tion of the trial court, and the trial court's action
To the extent a petition alleging a tort names officers in their official capacities, the claims are barred by sovereign immunity.
will not be disturbed on appeal absent an abuse of

that discretion.
1221 Pleading 302 0=104(1)

302 Pleading 3021II Responses or Responsive Pleadings
General
[24| Appeal and Error 30 0=946

30 Appeal and Error
in
30XV1 Review
30XV1(H) Discretion of Lower Court
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30k944 Power to Review
30k946 k.
Abuse of discretion. Most
228V On Motion or Summary Proceeding 228kl78 k. Nature of summary judgment.

Most Cited Cases
Cited Cases A trial court abuses its discretion when it fails
to correctly analyze or apply the law; the test is whether the trial court acted in an arbitrary and un reasonable manner or without reference to any guiding principles.
Jury 230 0=31.2(4)

230 Jury 23011 Right to Trial by Jury
[25] Judgment 228 0=186

228 Judgment 228V On Motion or Summary Proceeding 228kl 82 Motion or Other Application 228kl 86 k. Hearing and determination.
Most Cited Cases
230k30 Denial or Infringement of Right 230k31.2 Rights of Action and Procedure

in Civil Cases
230k31.2(4) k. Judgment. Most Cited

Cases
The summary judgment process provides a method of terminating a case when only questions of law are involved and there are no genuine issues
of fact; however, where no material issues of fact
When a trial court grants summary judgment relief, findings of fact are not appropriate because the summary judgment proceeding has not been
tried. Vernon's Ann.Texas Rules Civ.Proc, Rule 296.
exist to submit to a jury then the granting of sum mary judgment cannot violate a party's constitution al right to a jury trial.
|26| Judgment 228 0=186

228 Judgment 228V On Motion or Summary Proceeding 228kl 82 Motion or Other Application 228kl86 k. Hearing and determination.
Most Cited Cases
|29| Appeal and Error 30 0=712

30 Appeal and Error
30X Record
30X(N) Matters Not Apparent of Record

30k712 k. Matters not included or shown
Findings of fact and conclusions of law have no place in a summary judgment proceeding; if summary judgment is proper, there are no facts to find, and the legal conclusions have already been stated in the motion and response. |27j Jury 230 0=9
230 Jury 230II Right to Trial by Jury 230k9 k. Nature and scope in general. Most
Cited Cases
in general. Most Cited Cases The Court of Appeals cannot consider docu ments that are not included in the appellate record. Rules App.Proc, Rule 34.5.
|30| Appeal and Error 30 0=529(1)

30 Appeal and Error
30X Record
30X(B) Scope and Contents

30k529 Judgment or Decree 30k529(l) k. In general. Most Cited
Cases
The right to a jury trial in civil cases is not ab

solute.
The clerk is not required to include a response to a motion for summary judgment in the clerk's re cord for purposes of appeal. Rules App.Proc, Rule
34.5.
[28J Judgment 228 0=178

228 Judgment
|31) Judgment 228 0=183
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228 Judgment 228V On Motion or Summary Proceeding 228kl82 Motion or Other Application 228kI83 k. In general. Most Cited Cases Judgment 228 0=185.3(21)
228 Judgment 228V On Motion or Summary Proceeding 228kl 82 Motion or Other Application
228k 185.3 Particular Cases Cases Evidence and Affidavits in
Wilson; (3) granted the State's plea to the jurisdic tion; (4) denied the Willmses' motion for new trial; and (5) denied the Willmses' request for a jury trial.
FNI. The record shows that Mrs. Melvin Willms's first name is "Petra."
We conclude the district court did not err when
it: (1) adjudicated the Willmses vexatious litigants; (2) granted summary judgment in favor of Amer icas Tire and Wilson; (3) granted the State's plea to
the jurisdiction; (4) denied the Willmses' motion for
228kl85.3(21) k. Torts.
Most Cited
a new trial; and (5) denied the Willmses' request for a jury trial. The district court's judgment is affirmed.
1. FACTUAL AND PROCEDURAL BACK GROUND
Automobile repair shop patrons' response to motion for summary judgment filed by the repair shop, in patrons' action for negligence, criminal fraud, and other claims, was insufficient to raise a genuine issue of material fact precluding summary judgment, where the response contained only argu ment and did not address the necessary facts, re sponse referred to exhibits that were not attached to the response, and patrons did not offer, and trial court did not admit, any of the exhibits into evid
ence,
This case allegedly arises from the improper repair of the engine in the Willmses' 1984 Chrysler
automobile in 1996. The Willmses tiled their first
lawsuit relating to this matter in a justice of the peace court on August 23, 1996. In that lawsuit, the Willmses sued Wilson alleging damage to their.car as a result of poor workmanship. After a trial, that court entered a take nothing judgment against the Willmses. The Willmses filed three post-trial peti
tions and the case was transferred because the
*799 Melvin Willms, Grand Prairie, pro se. Ronald W. Roberts, Grand Prairie, Greg Abbott, Attorney Gen. of Texas, Austin, for Appellee.
justice of the peace recused himself. The case was retried before the second justice of the peace court which also denied the Willmses recovery on their claim. The Willmses appealed to the county court at law, but the appeal was dismissed.
On June 7, 2000, Mr. Willms sued Wilson al
Before Justices RICHTER, LANG, and MAZ2ANT .
OPINION
Opinion by Justice LANG. Pro se appellants, Mr. and Mrs. Melvin Willms, FNI appeal from several orders entered by the dis trict court in favor of appellees, Americas Tire Co., Inc, Fred Wilson d/b/a Americas Automotive, and
leging breach of contract. Wilson filed a motion to dismiss with prejudice *800 and a request for sanc tions. The justice of the peace court entered a take nothing judgment against Mr. Willms on December 8, 2000. Mr. Willms appealed to the county court at. law, but, again, his appeal was dismissed.
On June 26, 2002, in the district court, the
the State of Texas. The Willmses specify sixty-two points on appeal, but condense them into five broad issues that claim the district court erred when it: (1) adjudicated them vexatious litigants; (2) granted summary judgment in favor of Americas Tire and
Willmses filed the underlying lawsuit against Americas Tire, Wilson, and the Dallas County
Court at Law alleging criminal fraud, fraud on the
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court, attempted theft, theft, negligence, and gross negligence. Americas Tire and Wilson filed a gen eral denial, asserted the affirmative defenses of res judicata and collateral estoppel, and requested the
district court to declare the Willmses vexatious lit
igants and to impose sanctions against them.

On November 8, 2002, Americas Tire and
Wilson filed a motion for the district court to de
was liable for the actions of elected state judges and that various judges "stole" from them when they imposed sanctions against them in previous litiga tion; and (3) a claim of aggravated perjury against Americas Tire. The State filed a plea to the jurisdic tion on January 20, 2005. The district court entered an order granting the State's plea to the jurisdiction, dismissing the Willmses' claim against the State,
and stated "This case is final" because the
termine the Willmses vexatious litigants. On December 19, 2002, the district court held a hearing and on January 13, 2003, the district court signed
an order that determined the Willmses vexatious lit
Willmses' claims against the Dallas County Court of Law had previously been dismissed.
FN2. The record does not show that Jimmy
Wilson was served.
igants, found they were repeatedly suing the same parties over the same controversies and were un likely to prevail in the litigation, and required the Willmses to post a bond in the amount of $2,500 in order for the current litigation to proceed.
On May I, 2003, Americas Tire and Wilson filed a motion requesting traditional summary judg
ment on their affirmative defenses or no-evidence
summary judgment on the Willmses' claims. Also, Americas Tire and Wilson requested the imposition of sanctions and, based on the district court's earlier
determination that the Willmses were vexatious lit
On March 4, 2005, the Willmses filed a request for findings of fact and conclusions of law with re spect to the district court's orders determining them vexatious litigants and the district court's order granting summary judgment. On March 24, 2005, the Willmses filed a motion for new trial requesting the district court to set aside its order granting sum mary judgment in favor of Americas Tire and Wilson and its order granting the State's plea to the jurisdiction. On March 31, 2005, the *801 Willmses filed notice of past due findings of fact and conclu
sions of law. The district court denied the Willmses'
igants, an order propria persona, 2003, the district granted summary

Tire and
prohibiting them from filing, in any new litigation. On July 16,

court entered an order that: (1)
judgment in favor of Americas

and dismissed the Willmses'
Wilson
motion for new trial on April 4, 2005. Also, the dis trict court signed an order denying the Willmses' re quest for findings of fact and conclusions of law on April 26, 2005. Between September 25, 2003 and April 4, 2005, the Willmses filed six supplemental amended petitions. The Willmses' sixth supplemental amended original petition was filed after the district
court denied the Willmses motion for new trial.
II. VEXATIOUS LITIGANTS
claims against them; (2) determined, again, the Willmses are vexatious litigants and enjoined them from filing lawsuits in Dallas County, Texas without the approval of the local administrative judge; and (3) denied Americas Tire's and Wilson's request for the imposition of sanctions.
On August 4, 2003, the Willmses filed a mo tion for new trial requesting the district court to set aside the summary judgment in favor of Americas Tire and Wilson. However, it does not appear the district court ruled on this motion. On August 12, 2003, the Willmses filed an amended original peti tion that added: (I) Jimmy Wilson as a party FN2; (2) the State of Texas as a party, claiming the State
In their first broad issue, the Willmses argue the district court erred when it adjudicated them vexatious litigants. The first broad issue is based on seven points raised by the Willmses: (1) Americas Tire committed fraud seventeen times in its motion; (2) the district court's determination that they are vexatious litigants was "not based on evidence" be-
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cause the order states the district court considered
late courts are not obliged to give them the same

level of deference. Id.
the pleadings and motions on file, and arguments; (3) the district court admitted only five of their sixty-five exhibits; (4) the "[district] court was neg ligent in challenging [A]mericas [Tire's] pleadings, motions and arguments"; (5) the findings of fact and conclusions of law requested by the Willmses will show they are not vexatious litigants; (6) the past due findings of fact and conclusions of law will reveal which party is telling the truth; and (7) the appeal should be abated until the district court enters its findings of fact and conclusions of law. Only subpoints two, five, six, and seven allege er ror. The errors claimed in the three other subpoints
raised under the Willmses' first broad issue are not
[2][3][4][5] A trial court's failure to respond to a timely request for findings of fact and conclusions of law is error and is presumed harmful unless the record before the appellate court affirmatively shows that the complaining party has suffered no harm. Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); Larry F. Smith. Inc. v. The Weber Corp., 110 S.W.3d 611, 614 (Tex.App.-Dallas 2003, pet. denied). The general rule is that an *802 appellant has been harmed if, under the circumstances of the case, he has to guess at the reason the trial court ruled against him. See
Larry F. Smith, 110 S.W.3d at 614; Sheldon Pol lack Corp. v. Pioneer Concrete, 765 S.W.2d 843, 845 (Tex.App.-Dallas 1989, writ, denied). Recita tions in the judgment do not meet the requirements for findings and conclusions or alleviate harm. See FDIC v. Morris, 782 S.W.2d 521, 523-24 (Tex.App.-Dallas 1989, no writ). If there is only a single ground of recovery or a single defense, an appellant does not usually have to guess at the reas ons for the trial court's ruling. See Larry F. Smith.
110 S.W.3d at 614. However, if there are two or
legal issues. Rather, they are merely argument. As such, these three subpoints do not direct this Court's attention to any specific error on which the
Willmses base their first broad issue and there is
nothing to address. See TEX.Pv.APP. P. 38.1(e). A. No Findings of Fact and Conclusions ofLaw In subpoints five, six, and seven, the Willmses claim they are entitled to findings of fact and con clusions of law, which they argue will reveal they are not vexatious litigants and the party that is telling the truth. Americas Tire and Wilson respond that the Willmses are not entitled to findings of fact
and conclusions of law.
more possible grounds of recovery or defense, an appellant is forced to guess what the trial court found unless the trial court's findings are provided
to him. See id.
1. Applicable Law
[1] In any case tried in the district court without a jury, any party may request the court to state in writing its findings of fact and conclusions of law. See TEX.R. CIV. P. 296. The request must be filed within twenty days after the judgment is signed. See id. The purpose of rule 296 is to give a
party the right to findings of fact and conclusions of
2. Application of the Law to the Facts
[6] It is undisputed that the district court failed to make findings of fact and conclusions of law after being timely requested to do so. Texas Rules
of Civil Procedure 296 and 297 state that a trial
court must prepare findings of fact and conclusions

of law in cases tried before the district court.
law following a conventional bench trial on the merits. See 1KB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex.1997). In other situations, findings and conclusions are proper, but a party is not entitled to them because: (1) they are often unnecessary; (2) requiring them in every case would unduly burden the trial courts; and (2) appel
TEX.R. CIV. P. 296, 297. The order determining the Willmses vexatious litigants and the portion of the order granting summary judgment declaring the
Willmses vexatious litigants were made after hear ings on Americas Tire's and Wilson's motions.
While findings of fact and conclusions of law may have been helpful, they were not required because
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the vexatious litigant issue was not tried in a con

ventional bench trial. See IKB, 938 S.W.2d at 442.
court and the Willmses did not have to guess at the *803 reasons for the district court's ruling. See
Larry F. Smith, 110 S.W.3d at 614.
Also, the vexatious litigant statute does not require written findings of fact and conclusions of law.
Further, the Willmses do not direct us to and we do
not find any cases addressing whether; on timely re quest, a trial court is required to file written find ings of fact and conclusions of law respecting its order determining a plaintiff a vexatious litigant. However, assuming, without deciding, such find ings and conclusions were required, we would be required to find harm in order to grant the relief re quested by the Willmses.
[7] Americas Tire and Wilson moved for the
district court to determine the Willmses vexatious
Although we conclude that if the district court were required to make findings of fact and conclu sions of law, the Willmses were not harmed by the
district court's failure to do so, we must still address the Willmses' subpoint that claims there was no evidence to support that determination.
B. Orders Determining the Willmses Vexatious Litigants In subpoint number two, the Willmses argue the district court's determination that they are vexa tious litigants was "not based on evidence" because
the order states the district court considered the
litigants based on section 11.054(2), which spe cifies certain conduct on the part of the plaintiffs that, if found by the trial court, will permit a trial court to determine the plaintiff a vexatious litigant. See TEX. CIV. PRAC. & REM.CODE ANN.
11.054(2) (Vernon 2002). The district court's order
determining the Willmses vexatious litigants tracks

section 11.054(2) and states:
This Honorable Court has found that the
pleadings and motions on file, and arguments. Americas Tire and Wilson respond by asserting: (1) Mr. Willms attended and testified at each hearing conducted in this case and "provided sufficient evidence to find [the Willmses] vexatious litig ants"; and (2) "[the Willmses] surreptitiously ob tained the [district] court's signature on an order of
January 13, 2003, that did not conform to the
[Willmses] have continually sued the same parties, and further finds that the [Willmses] are litigating the same controversies and causes of action over and over again, with different names and different styles.
In their summary judgment motion, Americas
court's ruling, and on July 16, 2003, the proper or der was signed and entered by the court."
1. Standard of Review
Chapter 11 of the Texas Civil Practice and

Remedies Code does not establish the standard for
reviewing a trial court's order declaring a plaintiff a Tire and Wilson sought an order enjoining the Willmses from filing a new litigation, in propria
persona, based on the district court's prior order de termining them to be vexatious litigants. The dis trict court's order granting summary judgment states, "Plaintiff Mr. & Mrs. Willms are hereby de vexatious litigant, requiring a plaintiff to furnish se curity, or enjoining a plaintiff from filing a new lit
igation. As a result, the San Antonio Court of Ap

peals determined that chapter II was analogous to chapter 13 and adopted the abuse of discretion standard applicable to chapter 13. See Nell Nations
Forist v. Vanguard Underwriters Ins. Co., 141 S.W.3d 668, 670 (Tex.App.-San Antonio 2004, no pet.); see also Devo/t v. State, 155 S.W.3d 498, 502 (Tex.App.-San Antonio 2004, no pet.). The Austin Court of Appeals agreed that a trial court's determ ination that a plaintiff is a vexatious litigant is re viewed under an abuse of discretion, but added that
termined to be vexatious litigants," and enjoins

them from filing a new litigation without authoriza tion. Accordingly, we conclude that, if the district court was required to file findings of fact and con clusions of law, the Willmses were not harmed. There was only a single ground for determining the Willmses vexatious litigants before the district
a trial court's findings under chapter 11 are re-
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viewed for legal and factually sufficiency because section 11.054 requires the trial court to make evid entiary findings. See Leonard v. Abbotl, 171 S.W.3d 451, 459 (Tex.App.-Austin 2005, pet.
denied),
LYSIS, TEX. H.B. 3087, 75th Leg., R.S. (1997). The purpose behind the statute was to curb vexa tious litigation by requiring plaintiffs found by a court to be "vexatious" to post security for costs be fore proceeding with a lawsuit. See HOUSE
COMM. ON STATE PRACTICES, BILL ANA LYSIS, TEX. H.B. 3087.
Section 11.051 of the Texas Civil Practice and Remedies Code authorizes a defendant to move for
[8][9] However, without a reporter's record, an

appellate court cannot review a trial court's order
for an abuse of discretion. See Christiansen v.
Prezelski, 782 S.W.2d 842, 843 (Tex.1990) (burden
is on appellant to present a sufficient record to show error requiring reversal); Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987);
Marion v. Davis, 106 S.W.3d 860, 869
an order that determines the plaintiff is a vexatious litigant and requires that plaintiff to furnish secur ity. See TEX. CIV. PRAC. & REM.CODE ANN.
11.051 (Vernon 2002). However, the motion must
(Tex.App.-Dallas 2003, pet. denied); Birnbaum v. Law Offices ofG. David Westfall, PC, 120 S.W.3d 470, 476 (Tex.App.-Dallas 2003, pet. denied), cert,
denied 543 U.S. 1051, 125 S.Ct. 875, 160 L.Ed.2d
be filed on or before the ninetieth day after the date the defendant files his original answer. Id. 11.051
; Dtshner v. Huit(~Zo!lars, Inc., 162 S.W.3d 370, 377 (Tex.App.-Dallas 2005, no pet.); Spiller v.
772 (2005). Also, when an appellant fails to bring a reporter's record, an appellate court must presume the evidence presented was sufficient to support the trial court's order. See Sandoval v. Comm'n for Lawyer Discipline, 25 S.W.3d 720, 722 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (holding reviewing court must presume omitted evidence supported trial court's discretionary sanc tion decision when party failed to bring reporter's record of sanction hearing).
2. Applicable Law The Willmses' contentions are broad. Although we address only those contentions that claim error, we include a discussion of the legislation relating to vexatious litigants so that the ramifications of the
district court's order as to the Willmses are clear.
Spiller. 21 S.W.jd 451, 454 (Te.x.App.-San Antonio 2000, no pet.). When a defendant files a motion pursuant to section 11.051, the litigation is stayed
until the tenth day after the motion is denied or the tenth day after the defendant receives notice that the plaintiff has furnished the required security. TEX. CIV. PRAC. & REM.CODE ANN. 11.052.
[10] On receipt of the motion and after notice has been given to all parties, the trial court shall conduct a hearing to determine whether to grant the
motion and may consider any material evidence. Id.
11.053. A court may find a plaintiff a vexatious

litigant if the defendant shows: (I) there is not a reasonable probability the plaintiff will prevail in the litigation; and (2) there is other evidence re garding previous litigation by the defendant. Id.
11.054; see also Leonard, 171 S.W.3d at 458-59.
*804 In 1997, the Texas Legislature enacted Chapter II of the Texas Civil Practice and Remed
Other evidence regarding previous litigation is spe

cified in section 11.054 as follows:
ies Code which is entitled, "Vexatious Litigants." In that chapter, the Texas Legislature struck a bal ance between Texans' right of access to their courts and the public interest in protecting defendants from those who abuse the Texas court system by systematically filing lawsuits with little or no merit.
See Leonard, 171 S.W.3d at 455-56; HOUSE COMM. ON STATE PRACTICES, BILL ANA
(1) the plaintiff, in the seven year period immedi ately preceding the date the defendant makes the motion under Section 11.051, has commenced, prosecuted, or maintained in propria persona at least five litigations other than in small claims
court that have been:
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(A) finally determined adversely to the plaintiff;

(B) permitted to remain pending at least two years without having been brought to trial or hearing; or (C) determined by a trial or appellate court to be frivolous or groundless under state or feder al laws or rules of procedure; (2) after a litigation has been finally determined against the plaintiff, the plaintiff repeatedly relitigates or attempts to relitigate, in propria persona,
either:
be
furnished.
See
TEX.
CIV.
PRAC.
&
REM.CODE ANN. 11.055(b). If the plaintiff fails to furnish the security by the date specified in the trial court's order, the trial court must dismiss the litigation against the moving defendant. See id. 13.056; Nell Nations, 141 S.W.3d at 670. However, if the security is furnished and the litigation is dis missed on the merits, the moving defendant has re course to the security. See TEX. CIV. PRAC. & REM.CODE ANN. 11.057. [13] A trial court is authorized to enter a prefiling order enjoining a person from filing a new litig ation, in propria persona, without the prior permis sion of the local administrative judge if, after notice and a hearing, the trial court finds: (1) the person is a vexatious litigant; and (2) the local administrative judge has not granted permission to the person to file the litigation. See TEX. CIV. PRAC. &
REM.CODE ANN. 11.101(a); Johrtson, 178
(A) the validity of the determination against the same defendant as to whom the litigation was
finally determined; or
(B) the cause of action, claim, controversy, or any of the issues of fact or law determined or concluded by the final determination against the same defendant as to whom the litigation was finally determined; or (3) the plaintiff has previously been declared to be a vexatious litigant by a state or federal court in an action or *805 proceeding based on the same or substantially similar facts, transition, or
occurrence.
S.W.3d at 120; Devoll, 155 S.W.3d at 502. In pro pria persona is synonymous with pro se. Spiller, 21
S.W.3d at 454. However, a local administrative
TEX. CIV. PRAC. & REM.CODE ANN.
11.054; see also Johnson v. Sepuheda, 178 S.W.3d 117, 120 (Tex.App.-Houston [14th Dist.] 2005, no
pet. h.); Leonard. 171 S.W.3d at 455-56; Devoit, 155 S.W.3d at 502-03; Nell Nations, 141 S.W.3d at 669; Spiller, 21 S.W.3d at 454. [ 11][ 12] If the trial court determines the plaintiff is a vexatious litigant, after hearing the evidence on the motion, the trial court is required to order the plaintiff to furnish security for the benefit of the moving defendant. TEX. CIV. PRAC. & REM.CODE ANN. 11.055(a); Nell Nations, 141
S.W.3d at 670. It is within the trial court's discre
judge may grant a person found to be a vexatious litigant under section 11.101 to file a litigation only if it appears that the litigation: (I) has merit; and (2) has not been filed for the purpose of harassment or delay. See TEX. CIV. PRAC. & REM.CODE ANN. 11.102. A clerk of the court must provide a copy of the prefiling order to the Office of Court Administration of the Texas Judicial System which is required to maintain a list of vexatious litigants. See id. 11.104. A person who disobeys a prefiling order is subject to contempt of court. .See id. 11.101(b).
3. Analysis
[14] The heart of the Willmses' argument is that the order declaring them vexatious litigants "is not based on evidence." Accordingly, we review
the two orders which declare the Willmses vexa
tious litigants: (1) the "Order Determining [the Willmses] Vexatious Litigants" entered on January 13, 2003; and (2) the "Order Granting [Americas Tire's and Wilson's] Motion for Summary Judg-
tion to determine the date when the security must
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ment" entered on July 16, 2003.
First, we review the January 13, 2003 order.

The record shows both Americas Tire and Wilson,
motion for summary judgment. Attached to the mo tion were numerous exhibits representing the law suits filed by the Willmses. The district court's or
der granting summary judgment in favor of Amer icas Tire and Wilson provided, in part, that the
and the Dallas County Court at Law moved for the

igants. In their original answer, Americas Tire and

Wilson moved for the district court to declare the
Willmses vexatious litigants pursuant to section 11.054(2). Also, in a separate motion, Americas
Tire and Wilson moved for the Willmses to be de
Willmses "are determined to be vexatious litigants" and they are prohibited from filing lawsuits "in Dallas County, Texas without approval of the local administrative judge." See TEX. CIV. PRAC. &
REM.CODE ANN. 11.101. We conclude the dis
trict court did not abuse its discretion and there was
clared vexatious litigants pursuant to section 11.054(2). The record reflects that a hearing was
held on the motion of Americas Tire and Wilson on
December 19, 2002. The district court's order de
termined the Willmses to be vexatious litigants and required them to post a $2,500 bond before the lit igation would proceed. See TEX. CIV. PRAC. & REM.CODE ANN. 11.055.
sufficient evidence to support the district court's or der declaring the Willmses vexatious-litigants and enjoining them from filing a new litigation in pro pria persona without the prior authorization of the local administrative judge pursuant to section 11.101.
The Willmses' first broad issue is decided
against them.
III. SUMMARY JUDGMENT
*806 The record does not contain a reporter's record of the December 19, 2002 hearing or a re porter's certificate that the hearing was not recorded or that no evidence was presented. Without a re
porter's record, we cannot review the order determ
In their second broad issue, the Willmses argue the district court erred when it granted Americas Tire's and Wilson's motion for summary judgment.
The Willmses' second broad issue is based on nine
ining the Willmses to be vexatious litigants and re quiring them to furnish security pursuant to sec
tions 11.054 and 11.055 for an abuse of discretion
or the sufficiency of the evidence. See B'trnbaum, 120 S.W.3d at 476 (abuse of discretion); Sandoval, 25 S.W.3d at 722 (sufficiency of evidence).
teen subpoints, which are not clear. Many of these subpoints contain argument or purport to be state ments of the law. Accordingly, we address only the subpoints which articulate appellate issues. See TEX.R.APP. P. 38.1(e). We glean the following
claims of error from the Willmses' nineteen sub-
Without an adequate record being supplied by the Willmses, we must presume the evidence was suffi cient to support the district court's order. Christi
ansen, 782 S.W.2d at 843; Sandoval, 25 S.W.3d at
722.
Second, we review the July 16, 2003 order granting summary judgment. On May 1, 2003,
Americas Tire and Wilson filed a motion for sum
points: (I) the district court improperly gave Amer icas Tire legal advice, and acted unreasonably and without reference to guiding statutes, rules, prin ciples or precedents; (2) Americas Tire's motion did not state the grounds for summary judgment, the Willmses were not provided with the time and a forum to prove their case, the district court did not review their evidence, but stated they did not prop
erly put evidence before the court, and the district court considered pleadings and argument, which are
mary judgment, which, based on the district court's

earlier determination that the Willmses were vexa
tious litigants, requested the district court to enter an order "prohibiting [the Willmses] from filing, in propria persona, a new litigation in a court of this state." The Willmses did not file a response to the
not evidence; and (3) an adequate time for discov ery had not passed because they had not received Americas Tire's discovery responses and had a
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pending request for depositions on written ques

tions.
(Tex.1982); First Union, 168 S.W.3d at 923.
After an adequate time for discovery, a party

A. Standard of Review When the trial court does not specify the basis may move for summary judgment on the ground
that there is no evidence of one or more of the es sential elements of a claim. See TEX.R. CIV. P.
for its summary judgment, the appealing party must show on appeal that each independent ground al leged is insufficient to support the summary judg ment granted. See *S01FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); see also Adams v. First Nat'l Bank of Bells/Savoy, 154 S.W.3d 859, 867 (Tex.App.-Dallas 2005, no pet.); Caldwell v. Curioni, 125 S.W.3d 784, 789 (Tex.App.-Dallas 2004, pet. denied). Both the no-evidence and traditional grounds for summary judgment are evaluated to de
termine whether the trial court was correct under
166(i). In order to preserve a complaint that the summary judgment was premature, the party claim ing it did not have adequate time for discovery must file either an affidavit explaining the need for fur ther discovery or a verified motion for continuance.
See Tenneco, Inc. v. Enter. Prod. Co.. 925 S.W.2d
640, 647 (Tex. 1996); Yokogawa Corp. of Am. v. Skye Int'l Holdings, Inc., 159 S.W.3d 266, 271-72 (Tex.App.-Dallas 2005, no pet.). C Analysis [15] First, we review the propriety of the sum mary judgment. Americas Tire and Wilson moved for traditional summary judgment on their affinnative defenses of res judicata and collateral estoppel and no-evidence summary judgment on the
Willmses1 claims of criminal fraud, fraud on the
any theory. See Skiles v. Jack in the Box, Inc., 170 S.W.3d 173, 178 (Tex.App.-Dallas 2005, pet. filed) ; Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex.App.-Corpus Christi 2003, no pet.); McKillip v. Employers Fire Ins. Co., 932 S.W.2d 268, 270 (Tex.App.-Texarkana 1996, no writ). An appellate court must affirm the summary judgment if any one of the movant's theories, which supports the sum mary judgment, has merit. Star-Telegram, 915
S.W.2d at 473; First Union Nat'l Bank v. Richmont
court, attempted theft, theft, negligence, and gross

negligence. See TEX.R. CIV. P. 94; see also John
G. and Marie Stella Kenedy Mem'l Found, v.
Capital Partners I, L.P., 168 S.W.3d 917, 923 (Tex.App.-Dallas 2005, no pet.); Adams, 154
S.W.3dat867.
Dewhurst, 90 S.W.3d 268, 288-89 (Tex.2002) (res judicata and collateral estoppel both serve the dual purpose of protecting litigants from the burden of
relitigating an identical issue with the same party or his privy and of promoting judicial economy by
preventing needless litigation). The Willmses did not respond to the motion for summary judgment. The only argument made by the Willmses on this point is that Americas Tire and Wilson did not prove that at least one element of their fraud and theft claims were missing. However, by failing to
respond to Americas Tire's and Wilson's motion for summary judgment, the Willmses did not offer any evidence to support the elements of the causes of action alleged in their pleadings. We conclude the trial court properly granted summary judgment in
favor of Americas Tire and Wilson because*808
B. Applicable Law To prevail on summary judgment, a defendant
must either disprove at least one element of each of

the plaintiffs.theories of recovery or plead and con clusively establish each essential element of an af firmative defense, thereby rebutting the plaintiffs
cause of action. General Mills Restaurants, Inc. v.
Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.). A matter is con clusively established if ordinary minds could not
differ as to the conclusion to be drawn from the
evidence. Triton Oil & Gas Corp. v. Marine Con tractors & Supply, Inc., 644 S.W.2d 443, 446
the Willmses failed to meet their summary judg

ment burden.
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Second, we review the district court's alleged improper legal advice. The Willmses complain of the following statement by the district court:
(4) the State's pleadings do not show the district court does not have jurisdiction; (5) the district court's order granting the State's plea to the juris
The problem I have with your motion to dismiss is that its not verified, there is no affidavit to sup port the fact. You claim res judicata and collater al estoppel and statute of limitations. I think you're going to need to file summary judgment in
order to get that before the Court.
The district court's comment addressed the or
derly conduct of the litigation. It was not legal ad vice. See TEX.R. JXJD. ADMIN. 7(a)(6) (oversee the prompt disposition of all cases). Accordingly,
the district court did not en' when it told Americas
Tire it would "need to file [a motion for] summary judgment in order to get that before the court."
[16] Third, we review the Willmses' claim that an adequate time for discovery had not passed when the district court granted summary judgment. The Willmses did not file an affidavit explaining the need for further discovery because they had not re ceived Americas Tire's discovery responses and had a pending request for depositions on written ques
tions. Also, the Willmses did not file a verified mo
diction does not state the specific jurisdiction under which the plea was granted; and (5) the district court improperly dismissed their claims against the State with prejudice because, if there is no subject matter jurisdiction, it may only dismiss without pre judice. The Willmses claim the State is liable for the actions of elected state judges and that various judges "stole" from them when they sanctioned them in previous litigation. They assert the State is liable under the Theft Liability Act. See TEX. CIV. PRAC. & REM.CODE ANN. 134.001 - 134.005 (Vernon 2005). The State asserts that sovereign im munity prevents the Willmses from invoking the district court's jurisdiction over this claim.
A. Standard of Review
[17] Whether a trial court has subject matter jurisdiction is a matter of law. 7e.v. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex.2004); Tex. Natural Res. Conservation
tion for continuance. Accordingly, we conclude the Willmses waived their complaints as to the continu ance of the motion for summary judgment by the
district court. See Tenneco, 925 S.W.2d at 647; Yokogctwa, 159 S.W.3d at 271-72.
The Willmses' second broad issue is decided
against them.
IV. PLEA TO THE JURISDICTION
Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Dallas County v. Wadley, 168 S.W.3d 373, 376 (Tex.App.-Dallas 2005, pet. denied). Ac cordingly, an appellate court reviews a challenge to the trial court's subject matter jurisdiction de novo. Thompson v. City of Dallas, 167 S.W.3d 571, 574 (Tex.App.-Dallas 2005, pet. filed) (quoting Mir anda, 133 S.W.3d at 228); *S09Benefit Realty Corp. v. City of CarrotIion, 141 S.W.3d 346, 348 (Tex.App.-Dallas 2004, pet. denied). In performing this review, an appellate court does not look to the merits of the case, but considers only the pleadings
and evidence relevant to the jurisdictional inquiry. Miranda. 133 S.W.3d at 227; County of Cameron v.
Brown, 80 S.W.3d 549, 555 (Tex.2002).
In their third broad issue, the Willmses argue the district court erred when it granted the State's plea to the jurisdiction. The Willmses' third broad
B. Applicable Law
issue is based on seventeen points that generally claim: (1) they were entitled to a no-answer default judgment against the State; (2) the district court did not know the meaning of subject matter jurisdic tion; (3) they had requested a jury trial eighteen
months before the district court dismissed the case;
[18][19][20][21] A plea to the jurisdiction is a dilatory plea. Its purpose is "to defeat a cause of ac tion without regard to whether the claims asserted
have merit." Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547. 554 (Tex.2000). A plea to jurisdiction
2012 Thomson Reuters. No Claim to Orig. US Gov, Works.
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contests a trial court's subject matter jurisdiction. Tex. Dep't of Transp. v. Jones. 8 S.W.3d 636, 638 (Tex.1999); Benefit Realty Corp., 141 S.W.3d at 348. The purpose of the plea "is not to force the plaintiffs to preview their case on the merits, but to establish a reason why the merits of the plaintiffs'
claims should never be reached." Bland, 34 S.W.3d
In their fourth broad issue, the Willmses argue

the district court erred when it denied their motion for new trial. The Willmses' fourth broad issue is
based on seven points that generally claim: (1)

Americas Tire committed fraud one hundred and
thirty-one times to obtain their judgments; (2) the district court did not review their evidence; and (3)
the district court violated Texas Rule of Civil Pro
at 554. A trial court must grant a plea to the juris diction, after providing an appropriate opportunity to amend, when the pleadings do not state a cause of action on which the trial court has jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex.2004). To the extent a petition alleging a tort names officers in their official capacities, the claims are barred by sovereign immunity. Minix v. Gonzales, 162 S.W.3d 635, 639 (Tex.App.-Houston [14th Dist.] 2005, no pet.).
C. Analysis
cedure 297 when it failed to file findings of fact and

conclusions of law.
[23][24] Whether to grant or deny a motion for new trial is generally a matter addressed to the broad discretion of the trial court, and the trial court's action will not be disturbed on appeal absent an abuse of that discretion. Cliff v. Muggins, 724
S.W.2d 778, 778-79 (Tex.1987); Nat'l Med. Fin.
Once again, the multiple subpoints underlying the Willmses' challenge to the district court's order granting the State's plea to the jurisdiction are not clear, nor are they legal appellate issues. Accord
ingly, we address the heart of the Willmses' com
plaint, the district court's order granting the plea.

TEX.R.APP. P. 38.1(e).
Servs., Inc. v. Irving Indep. Sch. Dist., 150 S.W.3d 901. 904 (Tex.App.-Dallas 2004, no pet.). A trial court abuses its discretion when it fails to correctly *810 analyze or apply the law. In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex.2004) (orig.proceeding). The test is whether the trial court acted in an arbitrary and unreasonable manner or without reference to any guiding principles, Cire v. Cummings, 134 S.W.3d 835, 838 (Tex.2004); Ricks
[22] The Willmses pleaded a claim of theft against the State, its agencies and officials. The State timely interposed a plea to the jurisdiction. The claim of theft alleged by the Willmses is barred by sovereign immunity. See Minix, 162 S.W.3d at 639. Accordingly, although the Willmses amended their pleadings after the plea to the jurisdiction was
v. Ricks, 169 S.W.3d 523, 526 (Tex.App.-Dallas

2005, no pet.). B. Analysis
In their motion for new trial the Willmses al
leged the district court erred in granting the motion for summary judgment, in failing to make requested
findings of fact and conclusions of law, and in not
filed, neither that amendment, nor the earlier plead ings alleged facts that revealed any basis for assert ing waiver of the State's immunity. Accordingly,
we conclude the district court did not err when it
granted the State's plea to the jurisdiction and dis
giving them enough opportunity to present their evidence to the trial court. We have already determ ined summary judgment was appropriate in this case. Accordingly, we now address appellants'
missed the Willmses' claims with prejudice. See

Sykes, 136 S.W.3d at 639.
The Willmses' third broad issue is decided
complaints that the district court failed to make the^

requested findings of fact and conclusions of law, and that they did not have the opportunity to pro
duce evidence to the district court. '
against them.
[25][26] According to Rules 296 and 297 of the

V. MOTION FOR NEW TRIAL
Texas Rules of Civil Procedure, a trial judge must.
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prepare findings of fact in cases tried in the district
court without a jury. See TEX.R. CIV. P. 296, 297. When a trial court grants summary judgment relief,
however, findings of fact are not appropriate~6ecause the summary judgment proceeding has not been "tried" within the scope of rule 296. See IKB,
938 S.W.2d at 441; Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex.1994). Findings of fact and conclusions of law have no place in a summary
iudgment proceeding..Linwood. 885 S.W.2d at 103. If summary iudement is proper, there are no facts to
The summary judgment process provides a method of terminating a case when only questions of law are involved and there are no genuine issues of fact. Bliss, 162 S.W.3d at 437; see also Lattrell v. Chrysler Corp., 79 S.W.3d 141, 150 (Tex.App.-Texarkana 2002, pet. denied). However,
where no material issues of fact exist to submit to a
jury then the granting of summary judgment cannot violate a party's constitutional right to a jury trial.
See Bliss. 162 S,W.3d at 437; Martin, 138 S.W.3d
at 627; Lattrell. 79 S.W.3d at 150. *811 We have
find, and the legal conclusions have already been

stated in the motion and response. See IKB, 938
S.W.2dat44i.
already concluded summary judgment was appro

priate in this case.
The Willmses' fifth broad issue is decided
The Willmses' complaint of not being given an opportunity to present their evidence is not suppor ted by the record. They do not complain that they were precluded from filing a response to the motion for summary judgment. A response to a motion for summary judgment may include evidence offered to defeat a motion for summary judgment. The Willmses failed to file such a response and, thereby, did not exercise the opportunity to offer
evidence to the trial court. On this record we cannot conclude the district court abused its discretion in
against them.
VII. CONCLUSION
The district court did not err when it: (I) adju dicated the Willmses vexatious litigants; (2) gran
ted summary judgment in favor of Americas Tire and Wilson; (3) granted the State's plea to the juris
diction; (4) denied the Willmses' motion for a new
trial; and (5) denied the Willmses' request for a jury trial. The Willmses' issues are decided against them. The district court's judgment is affirmed.
SUPPLEMENTAL OPINION ON MOTION FOR REHEARING
denying the Willmses' motion for new trial.

The Willmses' fourth broad issue is decided
against them.
VI. RIGHT TO TRIAL BY JURY
On March 28, 2006, this Court issued its opin ion in this case affirming the trial court's judgment.
Pro se appellants, Mr. and Mrs. Melvin Willms,
In their fifth broad issue, the Willmses argue
the district court erred when it denied their request

for a jury trial. The Willmses' fifth broad issue is
filed their motion for rehearing on April 7, 2006 as serting, in part, that they filed a response to Amer icas Tire's and Wilson's motion for summary judg
ment.
based on twelve points that generally claim "the district court erred when it disposed of the case and
allowed it to proceed to an appeal without a jury tri
al."
This supplemental opinion on motion for re
[27][28] The right to a jury trial in civil cases is not absolute. See Green v. W.E. Grace Mfg. Co..
422 S.W.2d 723, 725 (Tex.1968); Bliss v. NRG In
hearing is issued in order to clarify our earlier opin ion with respect to the Willmses' response to the motion for summary judgment and does not change the Court's opinion in this appeal. The Willmses' motion for rehearing is denied.
I. PROCEDURAL BACKGROUND ON MO TION FOR REHEARING
dus., 162 S.W.3d 434, 437 (Tex.App.-Dallas 2005,

pet. denied); Martin v. Commercial Metals Co.. 138
S.W.3d 619, 626 (Tex.App.-Dallas 2004, no pet.).
0000392
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[29] In their motion for rehearing, the Willmses claimed the Court's opinion incorrectly states, "The
Willmses did not respond to the motion for sum mary judgment." See Willms v. Americas Tire Co.,
However,
the
Court
liberally
construed
the
Willmses' motion for rehearing to include a request

to supplement the clerk's record with the document
190 S.W.3d 796, 807, No. 05-05-0059 i-CV, 2006 WL 772845, at *9 (Tex.App.-Dallas Mar.28, 2006, no pet, h.). They contended their response was in
entitled "Plaintiffs Opposition to Defendant Amer icas' Motion for Summary Judgment." [30] Texas Rule of Appellate Procedure 34.5 requires all pleadings on which *812 the trial was
held to be included in the clerk's record unless the
the district court's file, they "paid the district clerk

to produce a copy of the record and deliver it to the [Court]," and a copy was attached to their motion.
The document attached to the Willmses' motion for
parties designate the filings in the appellate record

by agreement. See TEX.R.APP. P. 34.5. The clerk is not required to include a response to a motion for summary judgment in the clerk's record. See Pierson v. SMS, 959 S.W.2d 343, 348
rehearing, was entitled "Plaintiffs Opposition to Defendant Americas' Motion for Summary Judg
ment," and displays the file stamp of the Dallas
County District Clerk dated May 13, 2003. However, at the time of submission, the appellate
record did not contain this document or show the Willmses requested it to be included in the clerk's record.rm The Court cannot consider documents
(Tex.App.-Texarkana 1998, no pet.). However, if a

relevant item has been omitted from the clerk's re
that are not included in the appellate record. See Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex.App.-Dallas 2005, pet. denied); Green v. Kaposta, 152 S.W.3d 839, 841 (Tex.App.-Dallas
2005, no pet.).
cord, the trial court, the appellate court, or any party may direct the trial court clerk to prepare, cer tify, and file in the appellate court a supplement
containing the omitted item, See TEX.R.APP. P.
34.5(c)(1). Then, the supplemental clerk's record becomes part of the appellate record. See TEX.R.APP. P, 34.5(c)(3).
FNI. The Willmses1 request for preparation of the clerk's record tracks the language of Texas Rule of Appellate Procedure 34.5(a)
and requests the District Clerk to either
strike or eliminate certain documents from
The Court granted the Willmses' request to

supplement the clerk's record and ordered the clerk
of the court to file a supplemental clerk's record containing the Willmses' response.
II. WILLMSES' RESPONSE TO MOTION
FOR SUMMARY JUDGMENT
the clerk's record alleging they were im

properly filed. Among the documents the Willmses specifically requested to be re
moved from the clerk's record are the mo tion to declare the Willmses vexatious lit
[31] In their motion for rehearing, the Willmses

argue their response to Americas Tire's and
Wilson's motion for summary judgment shows they

raised an issue of material fact. However, we dis
agree.
igants and Americas Tire's and Wilson's
motion for summary judgment. Americas Tire and Wilson requested a supplemental
clerk's record so that their motion to de
The Willmses' response to the motion for sum
clare the Willmses vexatious litigants and

their motion for summary judgment were included in the appellate record. The Willmses did not formally request leave to supplement the record after the opinion issued.
mary judgment contains only argument and does not address the facts necessary to raise an issue of material fact with respect to Americas Tire's and
Wilson's affirmative defenses or support the ele

ments of the Willmses' causes of action. In their re
sponse to the motion for summary judgment, the Willmses refer to Plaintiffs Exhibit Nos. 1-2,
12-15, 28, 40-42, and 47^9. These exhibits are
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not attached to the Willmses' response to the mo
tion for summary judgment. Rather, it appears the exhibits referenced in the Willmses' response to the motion for summary judgment correspond to the exhibits referenced in their amended original peti
tion. However, the exhibits referenced in the
Willmses' amended original petition were not in cluded in the clerk's record. Further, it does not ap
pear the Willmses offered or the trial court admitted any of these exhibits into evidence. In their brief,
the Willmses advised the Court that "fd]uring the hearing on the motion for summary judgment, the [district] court claimed that it did not believe the [Willmses] had properly put before the [district court] any evidence of theft, any evidence of" fraud, or any evidence of attempted theft," and "[the
Willmses] took all of their exhibits into the
courtroom for every hearing with the hope that the judge would view and challenge the evidence, but
the judge did not do so."
Accordingly, we conclude the Willmses' re
sponse to the motion for summary judgment was in sufficient to raise a genuine issue of material fact. Our opinion is not affected by the Willmses' con
tentions. III. CONCLUSION The Court construed the Willmses' motion for
rehearing to include a request to supplement the clerk's record with their response to the motion for summary judgment. Accordingly, the clerk of the court was ordered to supplement the clerk's record. After reviewing the Willmses' response to the mo tion for summary judgment, we conclude their re sponse was insufficient to raise a genuine issue of
material fact.
The Willmses' motion for rehearing is denied.

Tex.App.-Dallas,2006. Willms v. Americas Tire Co., Inc.
190S.W.3d796
END OF DOCUMENT
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3717 Aransas St.
Corpus Christi, Texas 78411 Email: gil4584@peoplepc.com

June 19, 2012
Telephone: (361) 425-9359
Via E-Mail Transmission: lillian.fanning@co.nueces.tx.us

Honorable Brent Chesney
c/o Ms. Lillian Fanning

County Court at Law No.5
2310 Gollihar
Re:
Cause No. 201l-CCV-61850-5; Jena Gonzalez v. South Texas Veterinary Associates, Inc., in the
County Court at Law No. 5, Nueces County, Texas

Dear Judge Chesney:
On Friday, June 6, 2012, I received an e-mail from Ms. Lillian Fanning requesting both Plaintiff and Defendant "submit a proposed finding offact &conclusions oflaw" to you.
Texas Rule of Civil Procedure 296 provides aparty with the procedural right to request that the trial court prepare written findings of fact and conclusions of law. Texas Rule of Civil Procedure 297 makes the trial court's duty to
make such findings in response to a timely request mandatory. Cherne Indus., Inc. v. Magallanes 763 SW2d 768
772 (Tex. 1999).
Without findings of fact and conclusions of law, Plaintiff would be forced to guess what the trial court's findings 296 and 297. Larry F.Smith, Inc. v. The Weber Co., Inc., 110 S.W.3d 611, 614 (Tex.App.-Dallas 2003}. Therefore, the trial court has an affirmative duty to enter findings of fact and conclusions of law to atimely request.
Ihave also enclosed an Order Hearing Setting Date regarding the Motion For ANew Trial which was filed on June
6,2012.
-11
r m CD
were. Brown v. McGonagitl, 940 S.W.2d 178, 180 (Tex.App.S.A.1996) Putting the appeffant in the position of having to guess the trial court's reasons for rendering judgment against, it defeats the inherent purpose of Rules
r-o
to
Sincerely,
-) en
fc^r=.
^2mxe.
m
m Enclosures, as Stated
0000395
cc:
(ViaE-Mail, w/Encs.: valeriec@oconben.com)

O'Connell &Avery LLP
Attn: Valerie L. Cantu
0000396
attorney on this 19th day of June 2012, by email to Valerie Cantu atvaleriec@oconben.com.
Attorney for:

Valerie L. Cantu
Attorney's name:
Attorney's address:
l/7^fr~'
$0TZ2ca&
jena/Gonzalez, Pro Se Plainti
0000397
O'Connell &. Avery l l p

ATTORNEYS AND COUNSELORS I37SO SAN PEDRO. SUITE MO
Saim Antonio, Texas 7B332

Telephone !2lO)
I2IO)
S21-OO09
8 2*4-9429
Email: valerjec@oconben.com
Facsimile
June 19,2012
Via E-Mail Transmission: lillian.fanning(g),co.nueces.tx.us
Honorable Brent Chesney c/o Ms. Lillian Fanning County Court at Law No. 5 of Nueces County, Texas
2310 Gollihar

Re: Cause No. 2011-CCV-61850-5; Jena Gonzalez v. South Texas Veterinary Associates,
Inc , in the County Court at Law No, 5, Nueces County, Texas

Dear Judge Chesney: We received Plaintiff Gonzalez's letter of June 19, 2012 continuing to seek findings of
fact and conclusions of law from the Court, and we reply as follows:
Texas Rules of Civil Procedure 296 and 297 and the cases cited by Plaintiff do not apply where a trial court grants summary judgment relief to a party. See enclosed Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 810 (Tex. App.-Dallas 2006, pet. denied) (explaining "When a
trial court grants summary judgment relief ... findings of fact are not appropriate because the summary judgment proceeding has not been 'tried' within the scope of rule 296. Findings of fact and conclusions of law have no place in a summary judgment proceeding. If summary judgment is proper, there are no facts to find, and the legal conclusions have already been stated in the motion and response") (citations omitted).
Furthermore, we refer the Court to the two Texas Supreme Court cases we provided as part of our June 11, 2012 letter to the Court Specifically, please see Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (explaining that "findings of fact and conclusions of law have
no place in a summary judgment proceeding") and 1KB Indus, v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) (affirming that "if summary judgment is proper, there are no facts to find, and the legal conclusions have already been stated in the motion and response" and thus, [t]he trial court should not make, and an appellate court cannot consider, findings of fact in connection with a summary judgment").
Respectfully,
0000398
Honorable Brent Chesney June 19,2012 Page 2
cc:
(Via E-Mail, w/Encs.: gil4584(o),peoplepc.com)

(Via E-Mail, w/Encs.: bobh(gihmglawfirm.com & rudyg@hmglawdlrrn.com)

Mr. Robert C Hilliard

0000399
Page 2 of 22
Westlaw
Page 190S.W.3d796
(Cite as: 190 S.W.3d 796) 388k388(!) k. In general. Most Cited Court of Appeals of Texas,
Dallas.
Cases
Mr. and Mrs. Melvin WILLMS, Appellants,

v.
AMERICAS TIRE CO., INC., Fred Wilson d/b/a Americas Automotive and Tire Co., and The State
Purpose of rule under which, in any case tried in district or county court without a jury, any party may request court to state in writing its findings of fact and conclusions of law is to give a party a right to findings and conclusions finally adjudicated after
a conventional trial on the merits before the court.
of Texas, Appellees.
No. 05-05-00591-CV.
Vernon's Ann.Texas Rules Civ.Proc, Rule 296. March 28, 2006.
[2| Appeal and Error 30 ^>1031(1)

30 Appeal and Error
30XV1 Review
Supplemental Opinion Denying Rehearing May 5,

2006.
Background: After patrons brought action against auto repair shop alleging improper repair of their car engine and lost, they brought action against auto repair shop alleging criminal fraud, fraud on the court, attempted theft, theft, negligence, and gross negligence. The 160th Judicial District Court, Dallas County, Joe Cox, J., granted summary judg ment in favor of shop, found patrons to be vexa tious litigants, and denied shop's request for sanc tions. Patrons appealed. Holdings: The Court of Appeals, Lang, J., held that: (1) findings of fact and conclusions of law respect ing order determining plaintiffs to be vexatious lit igants were not required, and (2) evidence was presumptively sufficient to estab lish that plaintiffs were vexatious litigants.
Affirmed; motion for rehearing denied.
West Headnotes
30XV1(J) Harmless Error 30XVI(J)1 In General 30k 1031 Presumption as to Effect of

Error
30kl031(l)
Cited Cases
k.
In general.
Most
Trial 388 ^?392(4)

388 Trial

Law
388k392 Requests for Findings 388k392(4) k. Ruling on request. Most

Cited Cases
A trial court's failure to respond to a timely re quest for findings of fact and conclusions of law is error and is presumed harmful unless the record be- . fore the appellate court affirmatively shows that the complaining party has suffered no harm. |3] Appeal and Error 30 0=^1071.1(2)
30 Appeal and Error
30XV1 Review
|I| Trial 388 =^388(1)

388 Trial

Law
30XVI(J)Hannless Error 30XVI(J)21 Findings
388k388 Duty to Make in General
30k 1071 Findings by Court or Referee

30kl071.1 In General
30k 1071.1 (2) k. Total omission
0000400
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Paee
190S.W.3d796
(Cite as: 190 S.W.3d *?96)
of findings; delay. Most Cited Cases The general rule is that an appellant has been
harmed if, under the circumstances of the case, he
court's findings are provided to him. \6] Trial 388 ^388(2)

388 Trial
has to guess at the reason the trial court ruled against him.
|4| Appeal and Error 30 O=>1071.1(2)

30 Appeal and Error
30XV1 Review

Law
30XVI(J) Harmless Error 30XV1(J)21 Findings 30k 1071 Findings by Court or Referee
388k388 Duty to Make in General 388k388(2) k. Actions and proceed ings in which necessary, Most Cited Cases Findings of fact and conclusions of law re specting order determining plaintiffs to be vexa tious litigants were not required; vexatious litigant
issue was not T.ried in conventional bench trial, vex
30kl071.1(2) k. Total omission of findings; delay. Most Cited Cases
Thai 388 0=393(1)

388 Trial
atious litigant statute did not rcquiie written find ings of fact and conclusions of law, and there were no cases addressing whether trial court was re quired to tile written findings of fact and conclu
sions of law.

Law
|7| Appeal and Error 30 0=1071.1(2)

30 Appeal and Error
30XVI Review
388k393 Preparation and Form in General 388k393(l) k. In general. Most Cited

Cases
Recitations in the judgment do not meet the re
quirements for findings and conclusions or alleviate

harm. ;
30XVI(J) Harmless Error 30XV1(J)2! Findings 30k 1071 Findings by Court or Referee
30k!07l.l In General
30kl071.1(2) k. Totai omission
|5I Appeal and Error 30 O=>1071.1(2)

30 Appeal and Error
30XVI Review
30XVI(J) Harmless Error 30XVT(J)21 Findings 30kl071 Findings by Court or Referee

30kl071.1 In General
of findings; delay. Most Cited Cases Failure to file findings of fact and conclusions of law respecting order determining plaintiffs to be vexatious litigants did not harm plaintiffs; there was only single ground for determining plaintiffs vexatious litigants before district court, and plaintiffs did not have to guess at reasons for dis trict court's ruling.
30kl 071.1(2) k. Total omission
of findings; delay. Most Cited Cases If there is only a single ground of recovery or a single defense, an appellant does not usually have to guess at the reasons for the trial court's ruling; however, if there are two or more possible grounds of recovery or defense, an appellant is forced to
|8J Appeal and Error 30 0=497(1) 30 Appeal and Error

30X Record
30X(A) Matters to Be Shown

50k497 Grounds of Review
guess what the trial court found unless the trial
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Page 3
190S.W.3d796
(Cite as: 190 S.W.3d 796)
Cases
Without a reporter's record, an appellate court

cannot review a trial court's order for an abuse of
discretion.
If the trial court determines the plaintiff is a vexatious litigant, after hearing the evidence on the motion, the trial court is required to order the plaintiff to furnish security for the benefit of the
moving defendant; it is within the trial court's dis cretion to determine the date when the security
must be furnished. V.T.C.A., Civil Practice & Rem edies Code 11.055(a).
19} Appeal and Error 30 0^907(2)

30 Appeal and Error
30XVI Review
30XVI(G) Presumptions 30R906 Facts or Evidence Not Shown by

Record
|12| Costs 102 0=137

102 Costs
30k907 In General
30k907(2) k. Failure to set forth evidence in general. Most Cited Cases When an appellant fails to bring a reporter's re cord, an appellate court must presume the evidence presented was sufficient to support the trial court's
order.
102VI Security for Costs; Proceedings in Forma Pauperis 102kl 37 k. Effect of failure to give security.
Most Cited Cases
Costs 102 0=142

102 Costs
[10] Action 13 0=9

13 Action
131 Grounds and Conditions Precedent

Most Cited Cases
102VI Security for Costs; Proceedings in Forma Pauperis 102kl39 Liabilities on Bonds, Undertakings, or Recognizances 102kl42 k. Accrual or release of liability by breach or fulfillment of conditions. Most Cited
Cases
A court may find a plaintiff a vexatious litigant if the defendant shows: (1) there is not a reasonable probability the plaintiff will prevail in the litiga tion; and (2) there is other evidence regarding pre vious litigation by the defendant.
If the plaintiff is a vexatious litigant, if the plaintiff fails to furnish the security by the date spe
cified in the trial court's order, the trial court must
[Ill Costs 102 0=105

102 Costs
dismiss the litigation against the moving defendant; however, if the security is furnished and the litiga tion is dismissed on the merits, the moving defend ant has recourse to the security. V.T.C.A., Civil Practice & Remedies Code 11.055(a).
102VI Security for Costs; Proceedings in Forma Pauperis 102k 105 k. Nature and grounds of right in general. Most Cited Cases
Costs 102 0=119
102 Costs
[13] Injunction 212 0=1169

212 Injunction 212IV Particular Subjects of Relief 212IV(A) Courts and Actions in General 212kll68 Abusive, Vexatious, or Harass
102VI Security for Costs; Proceedings in Forma Pauperis 102kll9 k. Time for giving security. Most
Cited Cases
ing Litigation 212kll69 k. In general. Most Cited

Cases
(Formerly 212k26(4))
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(Cite as: 190 S.W.3d 796)
A trial court is authorized to enter a prefiling order enjoining a person from filing a new litiga tion, in propria persona, without the prior permis sion of the local administrative judge if, after notice and a hearing, the trial court finds: (1) the person is a vexatious litigant; and (2) the local administrative Judge has not granted permission to the person to file the litigation. V.T.C.A., Civil Practice & Rem
edies Code 11.055(a). [14] Action 13 0=9
13 Action
30V
Presentation
and
Reservation
in
Lower
Court of Grounds of Review
30V(B) Objections and Motions, and Rulings

Thereon
30k223 k. Judgment. Most Cited Cases Plaintiffs waived for appellate review claims as to continuance of motion for summary judgment by district court; plaintiffs did not file affidavit ex plaining need for further discovery because they had not received discovery responses and had pending request for depositions on written ques tions, and plaintiffs did not file verified motion for
continuance.
131 Grounds and Conditions Precedent
I3k9 k. Unnecessary or vexatious actions.

Most Cited Cases
[17] Appeal and Error 30 0=893(1)

30 Appeal and Error
30XV1 Review
Evidence was presumptively sufficient to es tablish that plaintiffs were vexatious litigants; plaintiffs failed to supply adequate record of vexa tious litigants hearing, and attached to motion for summary judgment were numerous exhibits repres enting lawsuits filed by plaintiffs, district court's or der granting summary judgment provided, in part, that plaintiffs "are determined to be vexatious litig ants" and they were prohibited from filing lawsuits county without approval of local administrative
judge.
30XVI(F) Trial De Novo

30k892 Trial De Novo
30k893
.Court
Cases
Triable
in Appellate

Cases
Whether a trial court has subject matter juris diction is a matter of law, so an appellate court re views a challenge to the trial court's subject matter jurisdiction de novo; in performing this review, an
appellate court does not look to the merits of the
115] Judgment 228 0=185.2(9)

228k 185.2 Use of Affidavits
case, but considers only the pleadings and evidence relevant to the jurisdictional inquiry. |18| Pleading 302 0=104(1)
302 Pleading 302111 Responses or Responsive Pleadings in
General
228k 185.2(9) k. Effect of failure to file

affidavit. Most Cited Cases
Trial court properly granted summary judgment on claims of criminal fraud, fraud on court, attemp
ted theft, theft, negligence, and gross negligence, where plaintiffs did not offer any evidence to sup port elements of causes of action alleged in their pleadings. JI6| Appeal and Error 30 0=223
30 Appeal and Error
302111(B)
Abatement
Dilatory
Pleas and
Matter
in
302kl 04 Plea to the Jurisdiction

Cases
A plea to the jurisdiction is a dilatory plea, whose purpose is to defeat a cause of action without regard to whether the claims asserted have merit.
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(Cite as: 190S.W.3d 796)
119] Pleading 302 0=104(1)

General Cases
302111(B)
Abatement
Dilatory
Pleas
and
Matter
in
302kl04(l) k. In general. Most Cited District court did not en- when it granted State's plea to jurisdiction and dismissed plaintiffs claims with prejudice, where claim of theft alleged by plaintiff was barred by sovereign immunity.
302111(B) Dilatory
Abatement
Pleas
and
Matter
in

Cases
A plea to jurisdiction contests a trial court's subject matter jurisdiction; the purpose of the plea is not to force the plaintiffs to preview their case on the merits, but to establish a reason why the merits of the plaintiffs' claims should never be reached.
[23| Appeal and Error 30 =>977(3)

30 Appeal and Error
30XVI Review
30XVI(H) Discretion of Lower Court 30k976 New Trial or Rehearing

30k977 In General
|20| Pleading 302 0=111.48

302 Pleading 3021II Responses or Responsive Pleadings in
General
30k977(3) k. Grant of new trial in general. Most Cited Cases
Appeal and Error 30 0=977(5)

Dilatory Pleas and Matter in 30 Appeal and Error
30XVI Review
302111(B)
Abatement
302klll Decision of Issue, and Proceed
ings Thereon 302kl 11.48 k. Amendments following sustaining of pleas. Most Cited Cases A trial court must grant a plea to the jurisdic tion, after providing an appropriate opportunity to amend, when the pleadings do not state a cause of action on which the trial court has jurisdiction. [21] Officers and Public Employees 283 0=114 283 Officers and Public Employees 283III Rights, Powers, Duties, and Liabilities
283k 114 k. Liabilities for official acts. Most
Cited Cases
30XV1(H) Discretion of Lower Court 30k976 New Trial or Rehearing

30k977 In General
30k977(5) k. Refusal of new trial.

Most Cited Cases
New Trial 275 0=6

275 New Trial
2751 Nature and Scope of Remedy

275k6 k.
Cases
Discretion
of court.
Most
Cited
To the extent a petition alleging a tort names officers in their official capacities, the claims are barred by sovereign immunity.
Whether to grant or deny a motion for new trial is generally a matter addressed to the broad discre tion of the trial court, and the trial court's action will not be disturbed on appeal absent an abuse of
that discretion.
|22| Pleading 302 0=104(1)

302 Pleading 3021II Responses or Responsive Pleadings in
General
|24| Appeal and Error 30 0=946

30 Appeal and Error
30XV1 Review
30XVI(H) Discretion of Lower Court
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Page 6
190S.W.3d796
(Cite as: 190 S.W.3d 796)
30k944 Power to Review 30k946 k. Abuse of discretion. Most Cited Cases A trial court abuses its discretion when it fails
228V On Motion or Summary Proceeding 228k 178 k. Nature of summary judgment.

Most Cited Cases
to correctly analyze or apply the law; the test is whether the trial court acted in an arbitrary and un reasonable manner or without reference to any guiding principles.
Jury 230 0=31.2(4)

230 Jury 230II Right to Trial by Jury 230k30 Denial or Infringement of Right 230k31.2 Rights of Action and Procedure
in Civil Cases
|25) Judgment 228 0=186

228 Judgment 228V On Motion or Summary Proceeding 228kl 82 Motion or Other Application 228kl86 k. Hearing and determination.
Most Cited Cases
230k31.2(4) k. Judgment. Most Cited

Cases
When a trial court grants summary judgment relief, findings of fact are not appropriate because the summary judgment proceeding has not been
tried. Vernon's Ann.Texas Rules Civ.Proc, Rule 296.
The summary judgment process provides a method of tenninating a case when only questions of law are involved and there are no genuine issues of fact; however, where no material issues of fact exist to submit to a jury then the granting of sum mary judgment cannot violate a party's constitution al right to a jury trial.
|26| Judgment 228 0=186

228 Judgment 228V On Motion or Summary Proceeding 228kl82 Motion or Other Application 228k 186 k. Hearing and determination.
Most Cited Cases
[29] Appeal and Error 30 0=712

30 Appeal and Error
3OX Record
30X(N) Matters Not Apparent of Record

30k7l2 k. Matters not included or shown
Findings of fact and conclusions of law have no place in a summary judgment proceeding; if summary judgment is proper, there are no facts to find, and the legal conclusions have already been
stated in the motion and response.
in general. Most Cited Cases The Court of Appeals cannot consider docu ments that are not included in the appellate record. Rules App.Proc, Rule 34.5.
[30] Appeal and Error 30 =529(1)

30 Appeal and Error
30X Record
[27| Jury 230 0=9

230 Jury 230II Right to Trial by Jury 230k9 k. Nature and scope in general, Most
Cited Cases
30X(B) Scope and Contents 30k529 Judgment or Decree 30k529(l) k. In general. Most Cited
Cases
The right to a jury trial in civil cases is not ab

solute.
The clerk is not required to include a response to a motion for summary judgment in the clerk's re cord for purposes of appeal. Rules App.Proc, Rule
34.5.
J28| Judgment 228 0=178

228 Judgment
|311 Judgment 228 0=183
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228 Judgment 228V On Motion or Summary Proceeding 228k 182 Motion or Other Application 228kl83 k. In general. Most Cited Cases
Wilson; (3) granted the State's plea to the jurisdic tion; (4) denied the Willmses' motion for new trial; and (5) denied the Willmses' request for a jury trial.
FNI. The record shows that Mrs. Melvin
Judgment 228 0=185.3(21)

228kl85.3
Particular Cases
Willms's first name is "Petra."
We conclude the district court did not err when
Evidence
and
Affidavits
in
228k 185.3(21) k. Torts.

Cases
Most Cited
it: (1) adjudicated the Willmses vexatious litigants; (2) granted summary judgment in favor of Amer icas Tire and Wilson; (3) granted the State's plea to the jurisdiction; (4) denied the Willmses' motion for a new trial; and (5) denied the Willmses' request for a jury trial. The district court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACK GROUND
Automobile repair shop patrons' response to motion for summary judgment filed by the repair shop, in patrons' action for negligence, criminal
fraud, and other claims, was insufficient to raise a
genuine issue of material fact precluding summary judgment, where the response contained only argu ment and did not address the necessary facts, re sponse referred to exhibits that were not attached to the response, and patrons did not offer, and trial court did not admit, any of the exhibits into evid
ence.
This case allegedly arises from the improper repair of the engine in the Willmses' 1984 Chrysler
automobile in 1996. The Willmses filed their first
lawsuit relating to this matter in a justice of the peace court on August 23, 1996. In that lawsuit, the Willmses sued Wilson alleging damage to their car as a result of poor workmanship. After a trial, that court entered a take nothing judgment against the Willmses. The Willmses filed three post-trial peti
tions and the case was transferred because the
*799 Melvin Willms, Grand Prairie, pro se. Ronald W. Roberts, Grand Prairie, Greg Abbott, Attorney Gen. of Texas, Austin, for Appellee.
justice of the peace recused himself. The case was retried before the second justice of the peace court which also denied the Willmses recovery on their claim. The Willmses appealed to the county court at law, but the appeal was dismissed.
On June 7, 2000, Mr. Willms sued Wilson al
Before Justices R1CHTER, LANG, and MAZ2ANT .
OPINION
Opinion by Justice LANG. Pro se appellants, Mr. and Mrs. Melvin Willms, FNI appeal from several orders entered by the dis trict court in favor of appellees, Americas Tire Co., Inc., Fred Wilson d/b/a Americas Automotive, and the State of Texas. The Willmses specify sixty-two points on appeal, but condense them into five broad
issues that claim the district court erred when it: (!) adjudicated them vexatious litigants; (2) granted summary judgment in favor of Americas Tire and
leging breach of contract. Wilson filed a motion to dismiss with prejudice *800 and a request for sanc tions. The justice of the peace court entered a take nothing judgment against Mr. Willms on December
8, 2000. Mr. Willms appealed to the county court at
law, but, again, his appeal was dismissed.

On June 26, 2002, in the district court, the
Willmses filed the underlying lawsuit against Americas Tire, Wilson, and the Dallas County Court at Law alleging criminal fraud, fraud on the
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court, attempted theft, theft, negligence, and gross negligence. Americas Tire and Wilson filed a gen eral denial, asserted the affirmative defenses of res judicata and collateral estoppel, and requested the
igants and to impose sanctions against them.

On November 8, 2002, Americas Tire and
Wilson filed a motion for the district court to de
was liable for the actions of elected state judges and that various judges "stole" from them when they imposed sanctions against them in previous litiga tion; and (3) a claim of aggravated perjury against Americas Tire. The State filed a plea to the jurisdic tion on January 20, 2005. The district court entered an order granting the State's plea to the jurisdiction, dismissing the Willmses' claim against the State,
and stated "This case is final" because the
termine the Willmses vexatious litigants. On December 19, 2002, the district court held a hearing and on January 13, 2003, the district court signed
an order that determined the Willmses vexatious lit
Willmses' claims against the Dallas County Court of Law had previously been dismissed. FN2. The record does not show that Jimmy
Wilson was served.
igants, found they were repeatedly suing the same parties over the same controversies and were un likely to prevail in the litigation, and required the Willmses to post a bond in the amount of $2,500 in order for the current litigation to proceed.
On March 4, 2005, the Willmses filed a request for findings of fact and conclusions of law with re
On May 1, 2003, Americas Tire and Wilson filed a motion requesting traditional summary judg
ment on their affirmative defenses or no-evidence
summary judgment on the Willmses' claims. Also, Americas Tire and Wilson requested the imposition
of sanctions and, based on the district court's earlier
determination that the Willmses were vexatious lit
spect to the district court's orders determining them vexatious litigants and the district court's order granting summary judgment. On March 24, 2005, the Willmses filed a motion for new trial requesting the district court to set aside its order granting sum mary judgment in favor of Americas Tire and Wilson and its order granting the State's plea to the jurisdiction. On March 31, 2005, the *801 Willmses filed notice of past due findings of fact and conclu
sions of law. The district court denied the Willmses'
igants, an order propria persona, 2003, the district granted summary

Tire and
prohibiting them from filing, in any new litigation. On July 16, court entered an order that: (1) judgment in favor of Americas
and dismissed the Willmses'
Wilson
motion for new trial on April 4, 2005. Also, the dis trict court signed an order denying the Willmses' re quest for findings of fact and conclusions of law on April 26, 2005. Between September 25, 2003 and April 4, 2005, the Willmses filed six supplemental amended petitions. The Willmses' sixth supplemental amended original petition was filed after the district
court denied the Willmses motion for new trial.
II. VEXATIOUS LITIGANTS
claims against them; (2) determined, again, the Willmses are vexatious litigants and enjoined them from filing lawsuits in Dallas County, Texas
without the approval of the local administrative

judge; and (3) denied Americas Tire's and Wilson's
request for the imposition of sanctions.

On August 4, 2003, the Willmses filed a mo tion for new trial requesting the district court to set aside the summary judgment in favor of Americas
Tire and Wilson. However, it does not appear the

district court ruled on this motion. On August 12, 2003, the Willmses filed an amended original peti tion that added: (1) Jimmy Wilson as a party :; (2) the State of Texas as a party, claiming the State
In their first broad issue, the Willmses argue the district court erred when it adjudicated them vexatious litigants. The first broad issue is based on seven points raised by the Willmses: (1) Americas
Tire committed fraud seventeen times in its motion;
(2) the district court's determination that they are vexatious litigants was "not based on evidence" be-
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cause the order states the district court considered
late courts are not obliged to give them the same

level of deference. Id.
the pleadings and motions on file, and arguments; (3) the district court admitted only five of their sixty-five exhibits; (4) the "[district] court was neg ligent in challenging [Ajmericas [Tire's] pleadings, motions and arguments"; (5) the findings of fact and conclusions of law requested by the Willmses will show they are not vexatious litigants; (6) the past due findings of fact and conclusions of law will reveal which party is telling the truth; and (7) the appeal should be abated until the district court enters its findings of fact and conclusions of law. Only subpoints two, five, six, and seven allege er ror. The errors claimed in the three other subpoints
raised under the Willmses' first broad issue are not
legal issues. Rather, they are merely argument. As such, these three subpoints do not direct this Court's attention to any specific error on which the
Willmses base their first broad issue and there is
nothing to address. See TEX.R.APP. P. 3 8.1(e). A. No Findings of Fact and Conclusions of Law In subpoints five, six, and seven, the Willmses claim they are entitled to findings of fact and con clusions of law, which they argue will reveal they are not vexatious litigants and the party that is telling the truth. Americas Tire and Wilson respond that the Willmses are not entitled to findings, of fact
and conclusions of law.
[2][3][4j[5] A trial court's failure to respond to a timely request for findings of fact and conclusions of law is error and is presumed harmful unless the record before the appellate court affirmatively shows that the complaining party has suffered no harm. Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex.1989); Larry F. Smith. Inc. v. The Weber Corp.. 110 S.W.3d 611, 614 (Tex.App.-Dallas 2003, pet. denied). The general rule is that an *802 appellant has been harmed if, under the circumstances of the case, he has to guess at the reason the trial court ruled against him. See Lariy F. Smith, 110 S.W.3d at 614; Sheldon Pol lack Corp. v. Pioneer Concrete, 765 S.W.2d 843, 845 (Tex.App.-Dallas 1989, writ denied). Recita tions in the judgment do not meet the requirements for findings and conclusions or alleviate harm. See FDIC v. Morris. 782 S.W.2d 521, 523-24 (Tex.App.-Dallas 1989, no writ). If there is only a single ground of recovery or a single defense, an appellant does not usually have to guess at the reas ons for the trial court's ruling. See Larr)< F. Smith.
110 S.W.3d at 614. However, if there are two or
more possible grounds of recovery or defense, an appellant is forced to guess what the trial court found unless the trial court's findings are provided
to him. See id.
1. Applicable Law [1] In any case tried in the district court without a jury, any party may request the court to state in writing its findings of fact and conclusions
of law. See TEX.R. CIV. P. 296. The request must be filed within twenty days after the judgment is signed. See id. The purpose of rule 296 is to give a
party the right to findings of fact and conclusions of law following a conventional bench trial on the merits. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex.1997). In other
2. Application of the Law to the Facts [6] It is undisputed that the district court failed to make findings of fact and conclusions of law after being timely requested to do so. Texas Rules
of Civil Procedure 296 and 297 state that a trial
court must prepare findings of fact and conclusions

of law in cases tried before the district court.
situations, findings and conclusions are proper, but a party is not entitled to them because: (1) they are often unnecessary; (2) requiring them in every case would unduly burden the trial courts; and (2) appel
TEX.R. CIV. P. 296, 297. The order determining the Willmses vexatious litigants and the portion of the order granting summary judgment declaring the Willmses vexatious litigants were made after hear ings on Americas Tire's and Wilson's motions. While findings of fact and conclusions of law may have been helpful, they were not required because
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the vexatious litigant issue was not tried in a con

ventional bench trial. See IKB, 938 S.W.2d at 442.
Also, the vexatious litigant statute does not require written findings of fact and conclusions of law. Further, the Willmses do not direct us to and we do not find any cases addressing whether, on timely re quest, a trial court is required to file written find ings of fact and conclusions of law respecting its order determining a plaintiff a vexatious litigant. However, assuming, without deciding, such find ings and conclusions were required, we would be required to find harm in order to grant the relief re quested by the Willmses. [7] Americas Tire and Wilson moved for the
district court to determine the Willmses vexatious
court and the Willmses did not have to guess at the *803 reasons for the district court's ruling. See Larry F. Smith, 110 S.W.3d at 614. Although we conclude that if the district court were required to make findings of fact and conclu sions of law, the Willmses were not harmed by the
district court's failure to do so, we must still address
the Willmses' subpoint that claims there was no evidence to support that determination.
B. Orders Determining the Willmses Vexatious Litigants In subpoint number two, the Willmses argue the district court's determination that they are vexa tious litigants was "not based on evidence" because
the order states the district court considered the
litigants based on section 11.054(2), which spe cifies certain conduct on the part of the plaintiffs
that, if found by the trial court, will permit a trial
court to determine the plaintiff a vexatious litigant.

See TEX. CIV. PRAC. & REM.CODE ANN. 11.054(2) (Vemon 2002). The district court's order determining the Willmses vexatious litigants tracks section 11.054(2) and states:
This Honorable Court has found that the
[Willmses] have continually sued the same parties, and further finds that the [Willmses] are
pleadings and motions on file, and arguments. Americas Tire and Wilson respond by asserting: (I) Mr. Willms attended and testified at each hearing conducted in this case and "provided sufficient evidence to find [the Willmses] vexatious litig ants"; and (2) "[the Willmses] surreptitiously ob tained the [district] court's signature on an order of January 13, 2003, that did not conform to the court's ruling, and on July 16, 2003, the proper or der was signed and entered by the court."
1. Standard of Review
litigating the same controversies and causes of action over and over again, with different names and different styles.
In their summary judgment motion, Americas Tire and Wilson sought an order enjoining the Willmses from filing a new litigation, in propria persona, based on the district court's prior order de termining them to be vexatious litigants. The dis trict court's order granting summary judgment states, "Plaintiff Mr. & Mrs. Willms are hereby de termined to be vexatious litigants," and enjoins them from filing a new litigation without authoriza tion. Accordingly, we conclude that, if the district court was required to file findings of fact and con
clusions of law, the Willmses were not harmed.
Chapter 11 of the Texas Civil Practice and

Remedies Code does not establish the standard for
reviewing a trial court's order declaring a plaintiff a vexatious litigant, requiring a plaintiff to furnish se curity, or enjoining a plaintiff from filing a new lit igation. As a result, the San Antonio Court of Ap peals determined that chapter 11 was analogous to chapter 13 and adopted the abuse of discretion standard applicable to chapter 13. See Nell Nations Forist v. Vanguard Underwriters Ins. Co., 141 S.W.3d 668, 670 (Tex.App.-San Antonio 2004, no pet.); see also Devoll v. State, 155 S.W.3d 498, 502 (Tex.App.-San Antonio 2004, no pet.). The Austin Court of Appeals agreed that a trial court's determ ination that a plaintiff is a vexatious litigant is re
viewed under an abuse of discretion, but added that
There was only a single ground for determining the Willmses vexatious litigants before the district
a trial court's findings under chapter 11 are re-
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viewed for legal and factually sufficiency because section 11.054 requires the trial court to make evid entiary findings. See Leonard v. Abbott, 171 S.W.3d 451, 459 (Tex.App.-Austin 2005, pet. denied). [8][9] However, without a reporter's record, an appellate court cannot review a trial court's order
for an abuse of discretion. See Christiansen v.
LYSIS, TEX. H.B. 3087, 75th Leg., R.S. (1997). The purpose behind the statute was to curb vexa tious litigation by requiring plaintiffs found by a court to be "vexatious" to post security for costs be fore proceeding with a lawsuit. See HOUSE
COMM. ON STATE PRACTICES, BILL ANA LYSIS, TEX. H.B. 3087.
Section 11.051 of the Texas Civil Practice and Remedies Code authorizes a defendant to move for
Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (burden is on appellant to present a sufficient record to show error requiring reversal); Simon v. York Crane < Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987); Marion v. Davis, 106 S.W.3d 860, 869 (Tex.App.-Dallas 2003, pet. denied); Birnbaum v. Lom> Offices ofG. David Westfall, P.C., 120 S.W.3d
an order that determines the plaintiff is a vexatious litigant and requires that plaintiff to furnish secur ity. See TEX. CIV. PRAC. &. REM.CODE ANN. 11.051 (Vernon 2002). However, the motion must be filed on or before the ninetieth day after the date the defendant files his original answer. Id. 11.051
; Dishner v. Huilt-Zollars, Inc., 162 S.W.3d 370,
470, 476 (Tex.App.-Dallas 2003, pet. denied), cert,

denied 543 U.S. 1051, 125 S.Ct. 875, 160 L.Ed.2d
772 (2005). Also, when an appellant fails to bring a reporter's record, an appellate court must presume the evidence presented was sufficient to support the trial court's order. See Sandoval v. Comm'n for Lawyer Discipline, 25 S.W.3d 720, 722 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (holding reviewing court must presume omitted evidence supported trial court's discretionary sanc tion decision when party failed to bring reporter's record of sanction hearing).
2. Applicable Law
377 (Tex.App.-Dallas 2005, no pet.); Spiller v. Spiller. 21 S.W.3d 451, 454 (Tex.App.-San Antonio 2000, no pet.). When a defendant files a motion pursuant to section 11.051, the litigation is stayed until the tenth day after the motion is denied or the tenth day after the defendant receives notice that the plaintiff has furnished the required security. TEX. CIV. PRAC. & REM.CODE ANN. I 1.052. [10] On receipt of the motion and after notice has been given to all parties, the trial court shall conduct a hearing to determine whether to grant the motion and may consider any material evidence. Id. 11.053. A court may find a plaintiff a vexatious litigant if the defendant shows: (1) there is not a reasonable probability the plaintiff will prevail in the litigation; and (2) there is other evidence re garding previous litigation by the defendant. Id.
11.054; seealso Leonard, 171 S.W.3d at 458-59.
The Willmses' contentions are broad. Although

we address only those contentions that claim error, we include a discussion of the legislation relating to vexatious litigants so that the ramifications of the
district court's order as to the Willmses are clear.
*804 In 1997, the Texas Legislature enacted Chapter 11 of the Texas Civil Practice and Remed ies Code which is entitled, "Vexatious Litigants." In that chapter, the Texas Legislature struck a bal ance between Texans' right of access to their courts and the public interest in protecting defendants from those who abuse the Texas court system by systematically filing lawsuits with little or no merit. See Leonard. 171 S.W.3d at 455-56; HOUSE COMM. ON STATE PRACTICES, BILL ANA
Other evidence regarding previous litigation is spe

cified in section 11.054 as follows:
(1) the plaintiff, in the seven year period immedi ately preceding the date the defendant makes the motion under Section 11.051, has commenced, prosecuted, or maintained in propria persona at least five litigations other than in small claims
court that have been:
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(A) finally determined adversely to the plaintiff;

(B) permitted to remain pending at least two years without having been brought to trial or hearing; or
be
furnished.
See
TEX.
CIV.
PRAC.
&
(C) determined by a trial or appellate court to be frivolous or groundless under state or feder al laws or rules of procedure; (2) after a litigation has been finally determined against the plaintiff, the plaintiff repeatedly relitigates or attempts to relitigate, in propria persona,
either:
REM.CODE ANN. 11.055(b). If the plaintiff fails to furnish the security by the date specified in the trial court's order, the trial court must dismiss the litigation against the moving defendant. See id. 11.056; Nell Nations, 141 S.W.3d at 670. However, if the security is furnished and the litigation is dis missed on the merits, the moving defendant has re course to the security. See TEX. CIV. PRAC. & REM.CODE ANN. 11.057.
(A) the validity of the determination against the same defendant as to whom the litigation was finally detennined; or (B) the cause of action, claim, controversy, or
any of the issues of fact or law determined or
concluded by the final determination against the same defendant as to whom the litigation was finally determined; or
(3) the plaintiff has previously been declared to be a vexatious litigant by a state or federal court in an action or *805 proceeding based on the same or substantially similar facts, transition, or
occurrence.
[13] A trial court is authorized to enter a prefil ing order enjoining a person from filing a new litig ation, in propria persona, without the prior permis sion of the local administrative judge if, after notice and a hearing, the trial court finds: (I) the person is a vexatious litigant; and (2) the local administrative judge has not granted permission to the person to file the litigation. See TEX, CIV. PRAC. & REM.CODE ANN. 11.101(a); Johnson, 178 S.W.3d at 120; Devoll, 155 S.W.3d at 502. In pro pria persona is synonymous with pro se. Spiller, 21
S.W.3d at 454. However, a local administrative
TEX. CIV. PRAC. & REM.CODE ANN. 11.054; see also Johnson v. Sepulveda, 178 S.W.3d 117, 120 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.); Leonard, 171 S.W.3d at 455-56; Devolf,
155 S.W.3d at 502-03; Nell Nations, 141 S.W.3d at 669; Spiller, 21 S.W.3d at 454.
judge may grant a person found to be a vexatious litigant under section 11.101 to file a litigation only if it appears that the litigation: (1) has merit; and (2) has not been filed for the purpose of harassment or delay. See TEX. CIV. PRAC. & REM.CODE ANN, 1I.'102. A clerk of the court must provide a copy of the prefiling order to the Office of Court Administration of the Texas Judicial System which is required to maintain a list of vexatious litigants. See id. 11.104. A person who disobeys a prefiling order is subject to contempt of court. See id.
11.101(b).
3. Analysis
[11][ 12]
If the
trial
court
determines
the
plaintiff is a vexatious litigant, after hearing the evidence on the motion, the trial court is required to
order the plaintiff to furnish security for the benefit of the moving defendant. TEX. CIV. PRAC. & REM.CODE ANN, 11.055(a); Nell Nations, 141
S.W.3d at 670. It is within the trial court's discre
[14] The heart of the Willmses' argument is that the order declaring them vexatious litigants "is not based on evidence." Accordingly, we review
the two orders which declare the Willmses vexa
tious litigants: (1) the "Order Determining [the Willmses] Vexatious Litigants" entered on January 13, 2003; and (2) the "Order Granting [Americas Tire's and Wilson's] Motion for Summary Judg-
tion to determine the date when the security must
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ment" entered on July 16, 2003.
First, we review the January 13, 2003 order. The record shows both Americas Tire and Wilson, and the Dallas County Court at Law moved for the
igants. In their original answer, Americas Tire and

Wilson moved for the district court to declare the
Willmses vexatious litigants pursuant to section 11.054(2). Also, in a separate motion, Americas
Tire and Wilson moved for the Willmses to be de
motion for summary judgment. Attached to the mo tion were numerous exhibits representing the law suits filed by the Willmses. The district court's or der granting summary judgment in favor of Amer icas Tire and Wilson provided, in part, that the Willmses "are determined to be vexatious litigants" and they are prohibited from filing lawsuits "in Dallas County, Texas without approval of the local administrative judge." See TEX. CIV. PRAC. &
REM.CODE ANN, 11.101. We conclude the dis
trict court did not abuse its discretion and there was
clared vexatious litigants pursuant to section 11.054(2). The record reflects that a hearing was
held on the motion of Americas Tire and Wilson on
December 19, 2002. The district court's order de
termined the Willmses to be vexatious litigants and required them to post a 52,500 bond before the lit igation would proceed. See TEX. CIV. PRAC. & REM.CODE ANN. 11.055.
sufficient evidence to support the district court's or der declaring the Willmses vexatious litigants and enjoining them from filing a new litigation in pro pria persona without the prior authorization of the local administrative judge pursuant to section 11.101.
The Willmses'
first
broad
issue
is
decided
against them.
III. SUMMARY JUDGMENT
*806 The record does not contain a reporter's record of the December 19, 2002 hearing or a re porter's certificate that the hearing was not recorded or that no evidence was presented. Without a re
porter's record, we cannot review the order determ
In their second broad issue, the Willmses argue the district court erred when it granted Americas Tire's and Wilson's motion for summary judgment.
The Willmses' second broad issue is based on nine
ining the Willmses to be vexatious litigants and re

quiring them to furnish security pursuant to sec
tions 11.054 and 11.055 for an abuse of discretion
or the sufficiency of the evidence. See Birnbaum, 120 S.W.3d at 476 (abuse of discretion); Sandoval, 25 S.W.3d at 722 (sufficiency of evidence).
teen subpoints, which are not clear. Many of these subpoints contain argument or purport to be state ments of the law. Accordingly, we address only the subpoints which articulate appellate issues. See TEX.R.APP. P. 38.1(e). We glean the following
claims of error from the Willmses' nineteen sub-
Without an adequate record being supplied by the

Willmses, we must presume the evidence was suffi cient to support the district court's order. Christi ansen, 782 S.W.2d at 843; Sandoval, 25 S.W.3d at
722.
points: (1) the district court improperly gave Amer icas Tire legal advice, and acted unreasonably and without reference to guiding statutes, rules, prin ciples or precedents; (2) Americas Tire's motion did not state the grounds for summary judgment, the Willmses were not provided with the time and a
forum to prove their case, the district court did not
Second, we review the July 16, 2003 order granting summary judgment. On May 1, 2003,
Americas Tire and Wilson filed a motion for sum
review their evidence, but stated they did not prop

erly put evidence before the court, and the district
mary judgment, which, based on the district court's

earlier determination that the Willmses were vexa
tious litigants, requested the district court to enter an order "prohibiting [the Willmses] from filing, in propria persona, a new litigation in a court of this state." The Willmses did not file a response to the
court considered pleadings and argument, which are not evidence; and (3) an adequate time for discov ery had not passed because they had not received Americas Tire's discovery responses and had a
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pending request for depositions on written ques

tions.
(Tex.1982); First Union, 168 S.W.3d at 923.
A. Standard of Review When the trial court does not specify the basis for its summary judgment, the appealing party must show on appeal that each independent ground al leged is insufficient to support the summary judg ment granted. See *&Q7FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000); Star-Telegram, Inc. v. Doe, 915 S,W.2d 471, 473 (Tex. 1995); see also Adams v. First Nat'l Bank of Bells/Savoy, 154 S.W.3d 859, 867 (Tex.App.-Dallas 2005, no pet.); Caldwell v. Curi am, 125 S.W.3d 784, 789 (Tex.App.-Dallas 2004, pet. denied). Both the no-evidence and traditional grounds for summary judgment are evaluated to de
termine whether the trial court was correct under
After an adequate time for discovery, a party may move for summary judgment- on the ground
that there is no evidence of one or more of the es sentia! elements of a claim. See TEX.R, CIV. P.
166(i). In order to preserve a complaint that the summary judgment was premature, the party claim ing it did not have adequate time for discovery must file either an affidavit explaining the need for fur ther discovery or a verified motion for continuance.
See Tenneco, Inc. v. Enter. Prod. Co.. 925 S.W.2d
640, 647 (Tex. 1996); Yokogawa Corp. of Am. v. Skye Int'l Holdings, Inc., 159 S.W.3d 266, 271-72 (Tex.App.-Dallas 2005, no pet.).
C. Analysis [15] First, we review the propriety of the sum mary judgment. Americas Tire and Wilson moved for traditional summary judgment on their affirmat ive defenses of res judicata and collateral estoppel and no-evidence summary judgment on the
Willmses' claims of criminal fraud, fraud on the
any theory. See Skiles v. Jack in the Box, Inc., 170 S.W.3d 173, 178 (Tex.App.-Dallas 2005, pet. filed) ; Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex.App.-Corpus Christi 2003, no pet.); McKillip v. Employers Fire Ins. Co., 932 S.W.2d 268, 270 (Tex.App.-Texarkana 1996, no writ). An appellate court must affirm the summary judgment if any one of the movant's theories, which supports the sum mary judgment, has merit. Star-Telegram, 915
S.W,2d at 473; First Union Nat'l Bank v. Richmont
court, attempted theft, theft, negligence, and gross negligence. See TEX.R. CIV. P. 94; see also John
G. and Marie Stella Kenedy Mem'/ Found, v.
Capital Partners 1, L.P., 168 S.W.3d 917, 923 (Tex.App.-Dallas 2005, no pet.); Adams, 154
S.W.3dat867.
Dewhurst, 90 S.W.3d 268, 288-89 (Tex.2002) (res judicata and collateral estoppel both serve the dual purpose of protecting litigants from the burden of
B. Applicable Law
To prevail on summary judgment, a defendant

must either disprove at least one element of each of the plaintiffs theories of recovery or plead and con clusively establish each essential element of an af firmative defense, thereby rebutting the plaintiffs
cause of action. General Mills Restaurants, Inc. v.
relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation). The Willmses did not respond to the motion for summary judgment. The only argument made by the Willmses on this
point is that Americas Tire and Wilson did not prove that at least one element of their fraud and
theft claims were missing. However, by failing to

respond to Americas Tire's and Wilson's motion for summary judgment, the Willmses did not offer any evidence to support the elements of the causes of action alleged in their pleadings. We conclude the trial court properly granted summary judgment in
favor of Americas Tire and Wilson because*808
Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.). A matter is con clusively established if ordinary minds could not
differ as to the conclusion to be drawn from the
evidence. Triton Oil & Gas Corp. v. Marine Con tractors & Supply, Inc., 644 S.W.2d 443, 446
the Willmses failed to meet their summary judg

ment burden.
20.12 Thomson Reuters. No Claim to Orig. US Gov. Works.
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Second, we review the district court's alleged improper legal advice. The Willmses complain of the following statement by the district court:
The problem I have with your motion to dismiss is that its not verified, there is no affidavit to sup port the fact. You claim res judicata and collater al estoppel and statute of limitations. I think you're going to need to file summary judgment in order to get that before the Court.
The district court's comment addressed the or
derly conduct of the litigation. It was not legal ad vice. See TEX.R. JUD. ADMIN. 7(a)(6) (oversee the prompt disposition of all cases). Accordingly,
the district court did not en- when it told Americas
Tire it would "need to file [a motion for] summary judgment in order to get that before the court,"
[16] Third, we review the Willmses' claim that an adequate time for discovery had not passed when the district court granted summary judgment. The Willmses did not file an affidavit explaining the need for further discovery because they had not re ceived Americas Tire's discovery responses and had a pending request for depositions on written ques tions. Also, the Willmses did not file a verified mo tion for continuance. Accordingly, we conclude the Willmses waived their complaints as to the continu ance of the motion for summary judgment by the
district court. See Tenneco, 925 S.W.2d at 647;
(4) the State's pleadings do not show the district court does not have jurisdiction; (5) the district court's order granting the State's plea to the juris diction does not state the specific jurisdiction under which the plea was granted; and (5) the district court improperly dismissed their claims against the State with prejudice because, if there is no subject matter jurisdiction, it may only dismiss without pre judice. The Willmses claim the State is liable for the actions of elected state judges and that various judges "stole" from them when they sanctioned them in previous litigation. They assert the State is liable under the Theft Liability Act. See TEX. CIV. PRAC. & REM.CODE ANN. 134.001 - 134.005 (Vernon 2005), The State asserts that sovereign im munity prevents the Willmses from invoking the district court's jurisdiction over this claim,
[17] Whether a trial court has subject matter jurisdiction is a matter of law. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex.2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Dallas County v. Wadle)-, 168 S.W.3d 373, 376 (Tex.App.-Dallas 2005, pet. denied). Ac cordingly, an appellate court reviews a challenge to the trial court's subject matter jurisdiction de novo. Thompson v. City of Dal/as, 167 S.W.3d 571, 574 (Tex.App.-Dallas 2005, pet. filed) (quoting Mir anda, 133 S.W.3d at 228); *809Benefit Realty Corp. v. City of Carrollton, r4I S.W.3d 346, 348 (Tex.App.-Dallas 2004, pet. denied). In performing this review, an appellate court does not look to the merits of the case, but considers only the pleadings and evidence relevant to the jurisdictional inquiry. Miranda, 133 S.W.3d at 227; County of Cameron v.
Yokogawa, 159 S.W.3d at 271-72.

The Willmses' second broad issue is decided
against them.
IV. PLEA TO THE JURISDICTION
In their third broad issue, the Willmses argue the district court erred when it granted the State's plea to the jurisdiction. The Willmses' third broad
Brown, 80 S.W.3d 549, 555 (Tex.2002).'

B. Applicable Law
issue is based on seventeen points that generally

claim: (1) they were entitled to a no-answer default judgment against the State; (2) the district court did not know the meaning of subject matter jurisdic tion; (3) they had requested a jury trial eighteen
months before the district court dismissed the case;
[18][19][20][2I] A plea to the jurisdiction is a dilatory plea. Its purpose is "to defeat a cause of ac
tion without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547. 554 (Tex.2000). A plea to jurisdiction
0000414
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contests a trial court's subject matter jurisdiction. Tex.. Dep't of Tramp, v. Jones, 8 S.W.3d 636, 638 (Tex.1999); Benefit Realty Corp., 141 S.W.3d at 348. The purpose of the plea "is not to force the plaintiffs to preview their case on the merits, but to establish a reason why the merits of the plaintiffs'
claims should never be reached." Bland, 34 S.W.3d
In their fourth broad issue, the Willmses argue

the district court erred when it denied their motion for new trial. The Willmses' fourth broad issue is
based on seven points that generally claim: (1)

Americas Tire committed fraud one hundred and
thirty-one times to obtain their judgments; (2) the

district court did not review their evidence; and (3)
the district court violated Texas Rule of Civil Pro
at 554. A trial court must grant a plea to the juris
diction, after providing an appropriate opportunity

to amend, when the pleadings do not state a cause of action on which the trial court has jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex.2004). To the extent a petition alleging a tort names officers in their official capacities, the claims are barred by sovereign immunity. Minix v. Gonzales, 162 S.W.3d 635, 639 (Tex.App.-Houston [14th Dist.] 2005, no pet.).
C. Analysis
cedure 297 when it failed to file findings of fact and

conclusions of law.
A. Standard of Review [23][24] Whether to grant or deny a motion for new trial is generally a matter addressed to the broad discretion of the trial court, and the trial court's action will not be disturbed on appeal absent an abuse of that discretion. Cliff v. Muggins, 724
S.W.2d 778, 778-79 (Tex. 1987); Nat'l Med. Fin.
Once again, the multiple subpoints underlying the Willmses' challenge to the district court's order granting the State's plea to the jurisdiction are not clear, nor are they legal appellate issues. Accord ingly, we address the heart of the Willmses' com plaint, the district court's order granting the plea. TEX.R.APP. P. 38.1(e). [22] The Willmses pleaded a claim of theft against the State, its agencies and officials. The State timely interposed a plea to the jurisdiction. The claim of theft alleged by the Willmses is barred by sovereign immunity. See Minix, 162 S.W.3d at 639. Accordingly, although the Willmses amended their pleadings after the plea to the jurisdiction was
Servs., Inc. v. Irving Indep. .Sch. Dist., 150 S.W.3d 901. 904 (Tex.App.-Dallas 2004, no pet,). A trial court abuses its discretion when it fails to correctly *8I0 analyze or apply the law. In re E.I. DuPonl de Nemours & Co., 136 S.WJd 218, 223 (Tex.2004) (orig.proceeding). The test is whether the trial court acted in an arbitrary and unreasonable manner or without reference to any guiding principles. Cire v. Cummings, 134 S.WJd 835, 838 (Tex.2004); Ricks
v. Ricks, 169 S.WJd 523, 526 (Tex.App.-Dallas

2005, no pet.).
B. Analysis
In their motion for new trial the Willmses al
leged the district court erred in granting the motion for summary judgment, in failing to make requested
findings of fact and conclusions of law, and in not
filed, neither that amendment, nor the earlier plead ings alleged facts that revealed any basis for assert ing waiver of the State's immunity. Accordingly,
we conclude the district court did not. err when it
giving them enough opportunity to present their evidence to the trial court. We have already determ
ined summary judgment was appropriate in this
case. Accordingly, we now address appellants' complaints that the district court failed to make the
granted the State's plea to the jurisdiction and dis missed the Willmses' claims with prejudice. See
Svkes. 136S.W.3dat639.
The Willmses' third broad issue is decided
requested findings of fact and conclusions of [a.w_ and that they did not have the opportunity to pro
duce evidence to the district court. "
against them. [25][26] According to Rules 296 and 297 of the

V. MOTION FOR NEW TRIAL
Texas Rules oT'Civil Procedure, a trial judge must.
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prepare findings of fact in cases tried in the district
court without a jury. See TEX.R. CIV. P. 296, 297.
When a trial court grants summary judgment relief,

however, findings of fact are not appropriate~pe-
cause the summary judgment proceeding has not been "tried" within the scope of rule 296. See IKB, 938 S.W.2d at 441; Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). Findings of fact and
The summary judgment process provides a method of terminating a case when only questions of law are involved and there are no genuine issues of fact. Bliss, 162 S.W.3d at 437; see also Lattrell v. Chrysler Corp., 79 S.W.3d 141, 150 (Tex.App.-Texarkana 2002, pet. denied). However,
where no material issues of fact exist to submit to a
conclusions of law have no place in a summary

judgment proceeding. Linwood. 885 S.W.2d at 103.
jury then the granting of summary judgment cannot violate a party's constitutional right to a jury trial.
See Bliss. 162 S.W,3d at 437; Martin, 138 S.W.3d
at 627; Lattrell, 79 S.W.3d at 150. *8U We have
If summary judgment is proper, there are no facts to
find, and the legal conclusions have already been

stated in the motion and response. See IKB, 938
S.W.2dat441.
already concluded summary judgment was appro

priate in this case,
The Willmses' fifth broad issue is decided
The Willmses' complaint of not being given an opportunity to present their evidence is not suppor ted by the record. They do not complain that they were precluded from filing a response to the motion for summary judgment. A response to a motion for
summary judgment may include evidence offered to
against them.
VII. CONCLUSION
The district court did not err when it: (I) adju dicated the Willmses vexatious litigants; (2) gran
ted summary judgment in favor of Americas Tire
defeat a motion for summary judgment. The Willmses failed to file such a response and,
thereby, did not exercise the opportunity to offer
evidence to the trial court. On this record we cannot
conclude the district court abused its discretion in
and Wilson; (3) granted the State's plea to the juris

diction; (4) denied the Willmses' motion for a new
trial; and (5) denied the Willmses' request for a jury trial. The Willmses' issues are decided against them. The district court's judgment is affirmed.
SUPPLEMENTAL OPINION ON MOTION
denying the Willmses' motion for new trial.

The Willmses' fourth broad issue is decided
FOR REHEARING
against them.
VI. RIGHT TO TRIAL BY JURY
In their fifth broad issue, the Willmses argue the district court erred when it denied their request
for a jury trial. The Willmses' fifth broad issue is
On March 28, 2006, this Court issued its opin ion in this case affirming the trial court's judgment. Pro se appellants, Mr. and Mrs. Melvin Willms, filed their motion for rehearing on April 7, 2006 as serting, in part, that they filed a response to Amer icas Tire's and Wilson's motion for summary judg
ment.
based on twelve points that generally claim "the district court erred when it disposed of the case and allowed it to proceed to an appeal without a jury tri
al."
This supplemental opinion on motion for re
[27][28] The right to a jury trial in civil cases is
not absolute. See Green v. WE. Grace Mfg. Co.,

422 S.W.2d 723, 725 (Tex. 1968); Bliss v. NRG In
hearing is issued in order to clarify our earlier opin ion with respect to the Willmses' response to the motion for summary judgment and does not change the Court's opinion in this appeal. The Willmses'
motion for rehearing is denied.
I. PROCEDURAL BACKGROUND ON MO
TION FOR REHEARING
dus., 162 S.W,3d 434, 437 (Tex.App.-Dallas 2005,

pet. denied); Martin v. Commercial Metals Co., 138
S.W.3d 619, 626 (Tex.App.-Dallas 2004, no pet.).
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[29] In their motion for rehearing, the Willmses claimed the Court's opinion incorrectly states, "The Willmses did not respond to the motion for sum
mary judgment." See Willms v. Americas Tire Co., 190 S.W.3d 796, 807, No. 05-05-00591-CV, 2006
However,
the
Court
liberally
construed
the
Willmses* motion for rehearing to include a request

to supplement the clerk's record with the document entitled "Plaintiffs Opposition to Defendant Amer icas' Motion for Summary Judgment."
WL 772845, at *9 (Tex.App.-Dallas Mar.28, 2006, no pet. h.). They contended their response was in the district court's file, they "paid the district clerk to produce a copy of the record and deliver it to the [Court]," and a copy was attached to their motion.
The document attached to the Willmses' motion for
[30] Texas Rule of Appellate Procedure 34.5 requires all pleadings on which *812 the trial was
held to be included in the clerk's record unless the
parties designate the filings in the appellate record

by agreement, See TEX.R.APP. P. 34.5. The clerk is not required to include a response to a motion for summary judgment in the clerk's record. See Pierson v. SMS. 959 S.W.2d 343, 348
rehearing, was entitled "Plaintiffs Opposition to Defendant Americas' Motion for Summary Judg
ment," and displays the file stamp of the Dallas County District Clerk dated May 13, 2003. However, at the time of submission, the appellate
record did not contain this document or show the
(Tex.App.-Texarkana 1998, no pet.). However, if a

relevant item has been omitted from the clerk's re
Willmses requested it to be included in the clerk's

record.1 The Court cannot consider documents
cord, the trial court, the appellate court, or any party may direct the trial court clerk to prepare, cer tify, and file in the appellate court a supplement
containing the omitted item. See TEX.R.APP. P. 34.5(c)(1). Then, the supplemental clerk's record becomes part of the appellate record. See TEX.R.APP. P. 34.5(c)(3).
that are not included in the appellate record. See Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex.App.-Dallas 2005, pet. denied); Green v. Kaposta, 152 S.W.3d 839, 841 (Tex.App.-Dallas
2005, no pet.).
The Court granted the Willmses' request to
FNI. The Willmses' request for preparation of the clerk's record tracks the language of Texas Rule of Appellate Procedure 34.5(a)
and requests the District Clerk to either
strike or eliminate certain documents from
supplement the clerk's record and ordered the clerk
of the court to file a supplemental clerk's record containing the Willmses' response.
II. WILLMSES' RESPONSE TO MOTION FOR SUMMARY JUDGMENT
the clerk's record alleging they were im properly filed. Among the documents the Willmses specifically requested to be re
moved from the clerk's record are the mo tion to declare the Willmses vexatious lit
[3 I] In their motion for rehearing, the Willmses

argue their response to Americas Tire's and
Wilson's motion for summary judgment shows they

raised an issue of material fact. However, we dis
agree.
igants
and
Americas Tire's and Wilson's
motion for summary judgment. Americas Tire and Wilson requested a supplemental
clerk's record so that their motion to de
The Willmses' response to the motion for sum
clare the Willmses vexatious litigants and their motion for summary judgment were
included in the appellate record.
mary judgment contains only argument and does not address the facts necessary to raise an issue of
material fact with respect to Americas Tire's and
Wilson's affirmative defenses or support the ele

ments of the Willmses' causes of action. In their re
The Willmses did not formally request leave to supplement the record after the opinion issued.
sponse to the motion for summary judgment, the Willmses refer to Plaintiffs Exhibit Nos. 1-2,
12-15, 28, 40^12, and 47-49. These exhibits are
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not attached to the Willmses' response to the mo tion for summary judgment. Rather, it appears the exhibits referenced in the Willmses' response to the motion for summary judgment correspond to the exhibits referenced in their amended original peti
tion. However, the exhibits referenced in the
Willmses' amended original petition were not in
cluded in the clerk's record. Further, it does not ap

pear the Willmses offered or the trial court admitted
any of these exhibits into evidence. In their brief, the Willmses advised the Court that "[djuring the hearing on the motion for summary judgment, the
[district] court claimed that it did not believe the
[Willmses] had properly put before the [district court] any evidence of theft, any evidence of fraud, or any evidence of attempted theft," and "[the
Willmses] took all of their exhibits into the
courtroom for every hearing with the hope that the judge would view and challenge the evidence, but
the judge did not do so." Accordingly, we conclude the Willmses' re
sponse to the motion for summary judgment was in sufficient to raise a genuine issue of material fact. Our opinion is not affected by the Willmses' con
tentions.
III. CONCLUSION
The Court construed the Willmses' motion for
rehearing to include a request to supplement the clerk's record with their response to the motion for summary judgment. Accordingly, the clerk of the
court was ordered to supplement the clerk's record.
After reviewing the Willmses' response to the mo tion for summary judgment, we conclude their re sponse was insufficient to raise a genuine issue of
material fact.
The Willmses' motion for rehearing is denied.

Tex.App.-Dallas,2006. Willms v. Americas Tire Co., Inc.
190S.W.3d796 END OF DOCUMENT
'2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
0000418 http://web2.westlaw.com/prmt/prmtstream.aspx?utid=]&prft=HTMLE&vr=2.0&destinatio... 6/19/2012
CAUSE NO. 20U-CCV-61850-5
JENA GONZALEZ PLAINTJFF

V.
INTHE COUNTY COURT
AT LAW NO. 5
SOUTH TEXAS VETERINARY ASSOCIATES, INC.

DEFENDANT
ORDER SETTING HEARING DATE
IT IS ORDERED that the hearing on the Motion for New Trial be set for
frm-
9 : C0
_.
o'clock on the
^.tifr udy or davof
>Mm ^^rg
5ni*> m*ka 2oi2_ in the courtroom of theCounty Court ah a,
No5, in the County ofNueces in Corpus Christi, Texas.
SIGNED this the
35
day nf
TKo e.
Tt>l2_
/L/G^y
JUDGE Brent Chesney
(^Jer^ Gonzalez, Pro Se Plaint^

3717 Aransas St.
JUN 2 o 2012
. U
0000419
Jena Gonzalez Plaintiff v. South Texas Veterinary Associates, Inc. Defendant
In the County Court
At Law No. 5
ORDER ON PLAINTIFF'S MOTION FOR NEW TRIAL
After considering Plaintiffs Motion for New Trial and Defendant's Response to Plaintiffs Motion for New Trial, along with all other evidence presented to the Court, it is
hereby ORDERED, ADJUDGED and DECREED by this Court that Plaintiffs Motion for New
Trial is DENIED.
It is further ORDERED, ADJUDGED and DECREED that all other relief not expressly
granted herein is denied.
SIGNED this the Ôday of
^ *Ay
2012.
U*J
JUDGE BRENT CHESNE
env
JUL 2 0 2012
PATSY PEREZ, DISTRICT CLERK

100-506
NUECES COUNTY
Page I
0000420
By: luW: C, 1|iLJ J AintMj^j^ %>

Robert C. Hilliard
' /
Telephone: (361)882-1612 Telecopier: (361)882.3015

and
By:.
Ilfl- UvvL.
Keith B. O'Connell State Bar No. 15179700 Valerie L. Cantu State Bar No. 24012498
ATTORNEYS FOR DEFENDANT SOUTH TEXAS VETERINARY ASSOCIATES, INC.
100-506
Page 2
0000421
CAUSE NO. 2011-CCV-61850-5
JENA GONZALEZ PLAINTIFF
IN THE COUNTY COURT
V.
AT LAW NO. 5
ASSOCIATES, INC.
DEFENDANT
PLAINTIFF'S NOTICE OF APPEAL
Plaintiff, Jena Gonzalez, desires to appeal from the final Summary Judgment signed by the court on May
9, 2012, to the Texas Thirteenth Court of Appeals.
3717 Aransas St.
document has been served upon all attorneys of and any parties who are not represented by-an
attorney on this 13th day of August 2012, by First Class U.S. Mail Via Certified Mail, RRR 701&1870 OOOOlC^f^f.
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0000422
Attorney for:
Attorney's name:

Valerie L. Cantu
Attorney's address:
fo&~*
Jena Gonzalez, Pro Se Plainti
0000423
CHIEF JUSTICE ROGELIO VALDEZ JUSTICES NELDA V. RODRIGUEZ DORI CONTRERAS GARZA
NUECES COUNTY COURTHOUSE
901 LEOPARD, 10TH FLOOR CORPUS CHRISTI, TEXAS 78401
361-888-0416 (TEL) 361-888-0794 (FAX)

HIDALGO COUNTY
ADMINISTRATION BLDG.
GINA M. BENAVIDES
ROSE VELA
GREGORY T.PERKES CLERK DORIAN E. RAMIREZ
Court of Appeals!
^Jjtrteentlj ffiisftrict of tlexasf
August 14, 2012
100 E. CANO, 5TH FLOOR EDINBURG, TEXAS 78539 956-318-2405 (TEL) 956-318-2403 (FAX)
www. 13thcoa.courts.state.tx.us
Jena Gonzalez
3717 Aransas St.
Corpus Christi, TX 78411
Re:
Cause No. 13-12-00519-CV

Tr.Ct.No. 2011-CCV-61850-5 JENA GONZALEZ V. SOUTH TEXAS VETERINARY
ASSOCIATES, INC.
Dear Ms. Gonzalez:
The appellant's motion for extension of time to file notice of appeal and docketing statement in the above cause were received and filed in this Court on Monday, August 13, 2012. The $185.00 filing fee was also received.
To assist us with the administration of the appeal, all parties should complete the
DOCKETING STATEMENT and return it to us WITHIN 15 DAYS OF THE DATE OF
THIS LETTER. The Docketing http://www.13thcoa.courts.state.tx.us
Statement
is
located
on
our
website
at
In accordance with the policy of this state and our responsibility to encourage the peaceable resolution of disputes we suggest that all parties read our procedure for
alternative dispute resolution, which is located on our website.
In accordance with the amended Rules of Appellate Procedure, please no
following requirements of this Court:
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Jena Gonzalez
August 14, 2012 Page 2
This Court requires the original and two copies of all motions, and the
original and five copies of all other documents.
See Tex. R. App. P. 9.3(1).
In
accordance with Tex. R. App. P. 6.3, any communications from this Court will be sent to
each party's lead counsel, as defined by that rule. Notices of filing will only be sent
upon receipt of a copy of the notice of appeal and the record. In addition, notices of submission and notices of any judgment, order, or ruling on motions will be sent to each
party's lead counsel. We suggest that you review Tex. R. App. P. 9.4 regarding specific form requirements for documents filed in the Court. Pursuant to Tex. R. App. P. 9.5, all documents (except the record) must be served by the parties on all other parties. Lead
counsel is to be served if the party is represented by an attorney. Service is critical since the Clerk is only required to send notice of those documents set out above.
Pursuant to Tex. R. App. P. 10.1(a)(5), all motions must contain or be accompanied by a certificate of conference. A motion need not be verified unless it
depends on the types of facts set out in Tex. R. App. P. 10.2. Motions for extensions of
time to file the brief, unopposed motions, and emergency motions will be ruled upon as
soon as practicable; other motions will not be determined until ten days after the motion was filed. All motions, with the exception of motions for rehearing and motions for rehearing en banc, require a $10.00 filing fee. Motions for rehearing and motions for
rehearing en banc require a $15.00 filing fee.
Please review Tex. R. App. P. 35.3 regarding responsibility for filing the record.
The Court requires strict adherence to the briefing rules. We suggest that you read Tex. R. App. P. 38 for a list of briefing requirements. Please note the requirement
for an appendix in Rule 38.1(k) and the length limitations in Rule 38.4. A party desiring
oral arguments must note that request on the front cover of the party's brief. Failure of a party to file a request shall be deemed a waiver of his/her right to oral arguments in the case. As has been the rule of this Court, submissions wilt not be reset except in
cases of emergency.
It has always been the policy of this Court to encourage settlement of appealed cases. If your case can be settled, it may be finally disposed of by a motion signed by all parties or their attorneys and filed with the Clerk. Your appeal will be disposed of
thereafter without delay. Very truly yours,
Dorian E. Ramirez, Clerk
DER/pf
cc: Hon. Valerie Cantu
Hon. Patsy Perez, District Clerk Hon. Bernice Beem, Court Reporter
0000425
CAUSE NO. 2011-CCV-61850-5
JENA GONZALEZ
PLAINTIFF
IN THE COUNTY COURT
V.
AT LAW NO. 5
ASSOCIATES, INC.
DEFENDANT
PLAINTIFF'S DESIGNATION OF CLERK'S RECORD ON APPEAL
TO THE CLERK OF THE DISTRICT COURT, NUECES COUNTY, TEXAS:
Jena Gonzalez, Plaintiff and now Appellant, is appealing from the Final Judgment signed
May 9, 2012, to the Thirteenth Court of Appeals, sitting in Corpus Christi, Texas, and
respectfully requests the clerk of the court to prepare, for inclusion in the clerk's record, the
following designated items:
Mandatory Items to be Included in Clerk's Record
Plaintiff/Defendant respectfully requests the clerk to include all matters required by

Rule 34.5(a) of the Texas Rules of Appellate Procedure in the clerk's record in this appeal.
II.
Additional Specified Items to Include in the Clerk's Record
In addition to the matters required by Rule 34.5(a) of the Tex$i. RQ

cs> '
Appellate Procedure,. Plaintiff/Defendant respectfully requests that the following $g

items be included in the clerk's record in the appeal of this case.
ro
en
0000426
Request
No.
1.
Document Description Letter Plaintiff's Original Petition Small Claims Court
Date
09/02/2011
2. 3. 4.
5.
Defendant's Original Answer to Plaintiff's Original Petition

Letter Order Granting Defendant's Motion for Direct Verdict
Letter Judgment
09/02/2011 09/02/2011 09/02/2011 09/02/2011 10/10/2011 10/10/2011 11/07/2011 11/16/2011 03/08/2012 03/22/2012
Original Petition (Notice of Appeal} {OCA}
6.
7.
Jury Demand/Jury Fee Paid

Motion To Retain Cause On Docket
8. 9. 10.
Order (Judicial Officer: Chesney, Brent) Agreed Docket Control Order

Notice of Appearance of Counsel for Defendant
Order (Judicial Officer: Chesney, Brent) Order of Referral for

Mediation
11.
Hearing (1:30 PM) (Judicial Officer Chesney, Brent) Emergency

Result: Held
12.
13. 14. 15.
Defendant's Emergency Motion to compel
03/22/2012
03/22/2012 03/22/2012
(fax) Briefin Support of Defendant's Emergency Motion to Compel

Plaintiff's Motion for Protection from Discovery
Email from Jena Gonzalez to the Court
04/03/2012
04/10/2012 04/10/2012 04/10/2012
16.
Defendant's First Amended Original Answer to Plaintiff's Original

Petition & Counter Claim
17. 18.
Original Counter Claim
Notice of setting: 5-1-12 @ 1:30p.m.

of all of Plaintiff's claims and Defendant's Traditional Motion for Summary Judgment of its counterclaim
19.
Defendant's No Evidence & Traditional Motion for summary Judgment 04/10/2012
20.
Defendant's Motion to Seal Defendant's No evidence & Traditional
04/10/2012
Motion for Summary and Defendant's Traditional Motion for summary Judgment of its counterclaim
21.
Plaintiff's Objection To Authenticity Of Documents Produced In

Discovery
04/16/2012
22.
Plaintiffs Answer to South Texas Veterinary Associates, Inc.

Counterclaim to Plaintiff's Original Petition
04/16/2012 04/18/2012 04/18/2012
23.
24.
Pro Se PlaintiffJena Gonzalez's First Amended Original Complaint

Motion For Sanctions
0000427
25.
26.
Motion For Discovery Sanctions Response To Defendant's Motion To Seal Defendant's No Evidence & Traditional Motion For Summary Judgment Of All Of Plaintiff's Claims
04/18/2012
04/19/2012
And Defendant's Traditional Motion For Summary Judgment Of its

Counterclaims And Order
27.
28.
29. 30.
Response To Plaintiff's Objection To Authenticity Of Documents Produced In Discovery Response To Defendant's No Evidence & Traditional Motion For Summary Judgment Of All Of Plaintiff's Claims Notice Of Setting
04/23/2012 04/25/2012
04/25/2012 04/26/2012 04/26/2012 04/26/2012
Letter from Dispute Resolution Services Re: parties were not able to
reach a resolution.
31. 32. 33.
Response Verified / To Plaintiff's Motions For Sanctions Notice Of Setting
Plaintiff's Reply to Defendant's Reply to Plaintiff's Response to 04/30/2012 Defendant's No-Evidence & Traditional Motion for Summary Judgment of all of Plaintiff's Claims/walked to Court by Pro Se Plaintiff
Defendant's Reply to Plaintiff's Response to Defendants' No-Evidence & Traditional Motions for Summary Judgment
04/30/2012 05/01/2012 05/02/2012 05/07/2012 05/09/2012
34.
35.
Motion Hearing (1:30 PM) (Judicial Officer Chesney, Brent)

Defendant's Sur-Reply to Plaintiff's Reply to Defendants' No-Evidence & Traditional Motions for Summary Judgment Defendant's Second Amended Original Answer to Plaintiff's Original
Petition & First Amended Counter Claim
36.
37. 38.
Order (Judicial Officer: Chesney, Brent)

Order on Defendant's No-Evidence and Traditional Motions for
Summary Judgment, Defendant's Motion to dismiss, Defendant's

Motion to Seal and all Parties Motions for Sanctions
39.
40.
41.
CANCELED Jury Trial (10:00 AM} (Judicial Officer Chesney, Brent) Case Disposed Request for Finding of Fact and Conclusions of Law
Plaintiff Jena Gonzalez's Motion for New Trial
05/14/2012
05/30/2012 06/06/2012
42.
Email from the court to both sides Re: submit proposed finding of fact 06/08/2012
& conclusion of law
43.
Letter from Valerie Cantu Re: findings of Facts is improper request

from the court
06/11/2012 06/18/2012 06/25/2012
44. 45. 46.
Defendant's Response to Plaintiff's Motion for NewTrial/e-filed Defendant's response to Jena Gonzalez June 19, 2012, letter
Plaintiff response to Judge Chesney request
06/25/2012
0000428
47.
48.
{Judicial Officer: Chesney, Brent) Order Setting Hearing date: 7-20-12 @ 9:00a.m. Motion Hearing (10:00 AM) (Judicial Officer Chesney, Brent)
re: New Trial
06/25/2012
07/20/2012
49.
Order Denying New Trial (Judicial Officer: Chesney, Brent) Notice and copy of Order denying Motion for New trial Mailed to Attorney, Valerie Cantu and Plaintiff: Jena Gonzalez Plaintiff's Notice of Appeal
07/20/2012 07/20/2012 08/13/2012
50.
51. 52.
53.
Letter from Court of Appeals: appellant's motion for extension of time 08/15/2012 to file notice of appeal and docketing statement rcvd & filed Plaintiff's Designation of Clerk's Record on Appeal 08/21/2012
Plaintiffs Request for Reporter's Record
The Court's Docket Sheet Certified Bill of Costs
54.
08/21/2012
55.
56.
III.
Due Date for Clerk's Record
The trial court signed the Final Judgment on May 9, 2012 and timely post judgment motions
were filed. Therefore, the clerk's record is due to be filed in the Thirteenth Court of Appeals on
or before September 6, 2012. Tex. R. App. P. 35.1(a).
3717 Aransas St.
0000429
attorney on this 21st day of August 2012, by First Class U.S. Mail Via Certified Mail, RRR70101870 0000
7692 0701

Valerie L. Cantu
Attorney's address:

0000430
CAUSE NO. 2011-CCV-61850-5
JENA GONZALEZ
IN THE COUNTY COURT
PLAINTIFF
V.
AT LAW NO. 5
ASSOCIATES, INC.
DEFENDANT
PLAINTIFF'S REQUEST FOR PREPARATION OF

REPORTER'S RECORD
TO THE COURT REPORTER OF THE COUNTY COURT AT LAW NO. 5:
Jena Gonzalez, Pro Se Plaintiff and now Pro Se Appellant, requests that the official court reporter and any substitute court reporter of the County Court At Law No. 5, Nueces County, Texas, prepare, certify, and file the reporter's record from these
proceedings in the Thirteenth Court of Appeals, sitting in Corpus Christi, Texas. This
request is filed in accordance with Rule 34.6(b) of the Texas Rules of Appellate
Procedure.
Under Rule 34.6(a), the reporter's record should contain the following:
(1) (2) (3)
all pre-trial proceedings; voir dire; opening statements to the jury;
(4) (5)
the testimony of all witnesses; all trial exhibits (including all exhibits tendered as well as the exhibited into evidence);
all offers of proof or bills of exception;
^>
(6)
0000431
(7)
all evidentiary objections;
(8) (9)
all motions made during trial; all arguments of counsel (including closing arguments);
(10)
(11) (12)
the charge conference (including objections to the charge);

all court rulings; and all post-trial proceedings.
The Final Judgment was signed on May 9, 2012, and Plaintiff timely filed a motion for new trial. Therefore, the reporter's record is due to be filed with the Thirteenth Court of Appeals within 120
days from that date, or by September 6, 2012. TEX. R. APP. P. 35.1(a).
Respectfully submitted.
By:
L^PTOU^ 1
ejw Gonzalez, Pro Se&ppellant
3717 Aransas St.
This is to certify that a true, full and correct copy of the above and forgoing pleading or document has been served upon all attorneys of and any parties who are not represented by an
attorney on this 21st day of August 2012, by First Class U.S. Mail Via Certified Mail, RRR 7010
1870 0000 7692 0701
Attorney for:
Attorney's name:

0000432
Valerie L. Cantu
Attorney's address:
<j}nj^
Jena Gocrzalez, Pro Se Appellan
0000433
CCAL5
Case Summary
Case No. 2011CCV-61850-5
Jena Gonzalez
vs.
Location:
CCAL5
Judicial Officer:
Filed on:
Chesney, Brent
09/02/2011
South Texas Veterinary Associates, Inc
Cask Information Statistical Closures
Case Type:
JP Appeal
05/09/2012
Summary Judgments Disposing of Cases
Case Status: 08/13/2012 Appeal Pending

Case Flags: LCOCCL5
Date Cask assignment
Current Case Assignment

Case Number Court
20I1CCV-6I850-5
CCAL5 09/02/2011
Date Assigned
Judicial Officer
Chesney, Brent
Party information
LeadAttorneys
Plaintifr
Gonzalez, Jena
ProSe
361-425-9359(H)
Defendant
South Texas Veterinary Associates, Inc
Cantu, Valerie L.
Retained
210-824-0009(W) Counter
Defendant
Gonzalez, Jena
ProSe
361-425-9359(H) South Texas Veterinary Associates, Inc

Cantu, Valerie L.
Retained
Counter Plaintiff
210-824-0009(W)
Date
Events & Orders of hie Court
Index
09/02/2011
09/02/2011
Original Petition (Notice of Appeal) (OCA)

Letter
Party: Plaintiff Gonzalez, Jena; Defendant South Texas Veterinary Associates, Inc; Attorney Cantu, Valerie L. ROA Report/tgarza
09/02/2011
Letter
Party: Plaintiff Gonzalez, Jena; Defendant South Texas Veterinary Associates, Inc; Attorney Cantu, Valerie L. Complete Case History/tgarza
09/02/2011
Letter
Party: Plaintiff Gonzalez, Jena; Defendant South Texas Veterinary Associates, Inc; Attorney Cantu, Valerie L. Bill o/Costs/tgarza
09/02/2011
Letter
Party: Plaintiff Gonzalez, Jena Plaintiffs OriginalPetitionSmall ClaimsCourt/tgarza

09/02/2011
Letter
PAGE I OF 6
Printr '
0000434
CCAL5
Case Summary
Case NO. 2011CCV-61850-5
Party: Defendant South Texas Veterinary Associates, Inc; Attorney Cantu, Valerie L.
Citiation SmallClaims Court/tgarza
09/02/2011
Original Answer
Party: Defendant South Texas Veterinary Associates, Inc; Attorney Cantu, Valerie L. Defendant's Original Answer toPlaintiffs Original Petition/tgarza
09/02/2011 Letter
Party: Attorney Cantu, Valerie L.

09/02/2011
Letter
09/02/2011 Notice
09/02/2011
Letter
09/02/2011
Subpoena
Party: Defendant SouthTexas Veterinary Associates, Inc; Attorney Cantu,Valerie L.

09/02/2011
Letter
Party: Defendant SouthTexas Veterinary Associates, Inc; Attorney Cantu,Valerie L.

09/02/2011
Letter
Party: Defendant South Texas Veterinary Associates, Inc; Attorney Cantu, Valerie L. Order Granting Defendant's Motionfor Direct Verdict/tgarza
09/02/2011
Letter
Party: Plaintiff Gonzalez,Jena; Defendant South Texas Veterinary Associates,

Inc; Attorney Cantu, Valerie L. Judgment/tgarza
09/02/2011 Documents Transferred from
JP Court
10/10/2011
Jury Fee Paid Party: Plaintiff Gonzalez, Jena Jury Demand Party: Plaintiff Gonzalez, Jena
Motion
10/10/2011
10/10/2011
Party: Plaintiff Gonzalez, Jena

To Retain Cause On Docket 10/10/2011
10/24/2011 Civil Case Information Sheet All Documents Filed
LetterofAppearance
11/07/2011
Order (Judicial Officer: Chesney, Brent) Agreed Docket Control Order/1

Vacation Schedule
11/09/2011 11/16/2011
Notice
Party: Attorney Cantu, Valerie L. Notice ofAppearance ofCounselfor Defendent

11/30/2011
Vacation Schedule
0000435
PAGE 2 OF 6
Printed on 08/30/2012 at 10:12 AM
CCAL5
Case Summary
Case No. 2011CCV-61850-5
03/08/2012
Order (Judicial Officer: Chesney, Brent) Order ofReferralfor Mediation/1

Pro Se Notice
03/19/2012
Party: Plaintiff Gonzalez, Jena Pr Se Notice ofAppearance

03/19/2012 All Documents Filed Motion to Withdraw 03/19/2012
Order on Motionfor withdrawal ofCounsel-granted/1

03/22/2012
Hearing (1:30 PM) (Judicial Officer: Chesney, Brent)

Emergency
Held; Discovery dispute overexperts, court grants Plaintiffs motion to compel court denies
deft's motion to protection. Deft's counsel to provideorder.
03/22/2012 All Documents Filed
Deft'sEmergency Motion to compel

(fax) Briefin Support ofDefendant's Emergency Motion to Compel

03/22/2012
All Documents Filed
PlaintiffsMotionfor Protectionfrom Discovery

(faxJDeft's Emergency Motion to compel

Emailfrom Jena Gonzalez to the Court

04/10/2012
Original Answer
Defendant's FirstAmended Original Answer to PlaintiffsOriginal Petition & Counterclaim

04/10/2012
Counter Claim/ Counter Petition
Party: Defendant South Texas Veterinary Associates, Inc Original Counterclaim

04/10/2012 Notice
Party: Defendant South Texas Veterinary Associates, Inc Notice ofsetting.3-1-12 @ 1:30p.m.
Deft's No Evidence & Traditional Motionfor summary Judgment ofall ofPlaintiffs claims
and Deft's Traditional Motion for Summary Judgment ofits counterclam
04/10/2012
Notice
Party: Defendant South Texas Veterinary Associates, Inc Notice of Setting:5-1-12 @ 1:30p.m.
04/10/2012
All Documents Filed
deft's Motion toSeal Deft's No evidence & Traditional Motionfor Summary andDeft's
Traditional Motionfor summaryJudgmentofits counterclaim
04/16/2012
Objection
Plaintiffs/ To Authenticity OfDocuments Produced InDiscvoery

04/16/2012
Original Answer
0000436
PAGE 3 OF 6
Printed on 08/30/2012 at 10:12AM
CCAL5
Case Summary
Case No. 2011CCV-61850-5
Jena Gonzalez's Answer to South Texas Veterinary Associates, Inc. Counterclaim to Plaintiffs
Original Petition
04/18/2012 Amended Petition
Pro Se PlaintiffJena Gonzalez's First Amended Original Complaint

04/18/2012
Deposition Party: Attorney Cantu, Valerie L.
Reporter's Certification / OfRobert "Bob" Rogers DVM

04/18/2012
Motion

For Sanctions
04/18/2012
Motion
Party: Plaintiff Gonzalez, Jena For Discovery Sanctions

04/19/2012
Response Party: Plaintiff Gonzalez, Jena
To Defendant's Motion To Seal Defendant's No Evidence &Traditional Motion For Summary Judgment OfAll OfPlaintiffs Claims And Defendant's Tradiational Motion Fro Summary
Judgmetn Of its Conterclaaims AndOrder
04/23/2012
Response
Party: Defendant South Texas Veterinary Associates, Inc
To Plaintiffs Objection To Authenticiy OfDocuments Produced In Discovery

04/25/2012
To Defendant's No Evidence &Traditional Motion For Summary Judgment OfAll Of

Plaintiffs Claims
04/26/2012
All Documents Filed
Letterfrom Dispute Resolution Servcies Re .-parties were notabletoreach a resolution.

04/26/2012
Notice
OfSetting
04/26/2012
Response
Party: Defendant South Texas Veterinary Associates, Inc Verified/ To Plaintiffs Motions For Sanctions
04/26/2012
Motion to Dismiss
Party: Defendant South Texas Veterinary Associates, Inc Plaintiffs Claims ForBreach OfContract And Negligent Misrepresentation
04/26/2012 Notice
OfSetting
04/30/2012
Plaintiffs Reply toDefendant's Reply toPlaintiffs Response toDefendant's No-Evidence &
Traditional MotionforSummary Judgment ofallofPlaintiffs Claims/walked to Court by Pro

Se Plaintiff
04/30/2012
Response
Party: Defendant South Texas Veterinary Associates, Inc Defendant's Reply to Plaintiffs Response to Defendants' No-Evidence & Traditional Motions
0000437
PAGE 4 OF 6
Printed on 08/30/2012 at 10:12 AM
CCAL5
Case Summary
CASE NO. 2011CCV-61850-5
for Summary Judgment
05/01/2012 05/02/2012
Motion Hearing (1:30 PM) (Judicial Officer: Chesney, Brent)

Motion
Defendant's Sur-Reply to Plaintiffs Reply to Defendants' No-Evidence & Traditional Motions

for Summary Judgment
Emailfrom J/Chesney ofhis ruling

05/04/2012
Deposition
Party: Defendant South Texas Veterinary Associates, Inc Reporter's Certification, Deposition ofArnulfoGonzalez
05/04/2012
Certificate
Party: Plaintiff Gonzalez, Jena Reporter's Certification Oral/Video Depostition ofJena Gonzalez
05/07/2012 Amended Answer
Party: Defendant South Texas Veterinary Associates, Inc Defendant's SecondAmended Original Answer to Plaintiffs Original Petition & First
Amended Counter Claim
05/09/2012
All Documents Filed
Emailfrom Valerie Cantu.attorneyfor deft.

05/09/2012
Order on Deft's No-Evidence and Traditional Motionsfor Summary judgment,Deft's Motion

to dismiss, Deft'sMotionto Seal and all Parties Motinsfor Sanctions/1
05/14/2012
CANCELED Jury Trial (10:00 AM) (JudicialOfficer: Chesney, Brent)

Case Disposed (1 DAY)
05/21/2012
Certificate
Party; Plaintiff Gonzalez, Jena Reporter's Certification Deposition ofAlan Garett, DVMApril5, 2012
05/29/2012 Certificate
Party: Defendant South Texas Veterinary Associates, Inc
Reporters Certification deposition ofDarrel L. Ferris, DVMApril 4,2012

05/30/2012
Request Requestfor Finding ofFact and Conclusions ofLaw

Certificate
05/30/2012
Party: Plaintiff Gonzalez, Jena Reporters Certification Deposition ofDavid Shaffer, DVMApril 4,2012
06/06/2012 Vacation Schedule From Jena Gonzalez
06/06/2012 Motion for New Trial
Party: Plaintiff Gonzalez, Jena PlaintiffJena Gonzalez's Motionfor New Trial

Emailfrom the court to both sides Resubmit proposedfinding offact & conclusio of law.
0000438
PAGE 5 OF 6
Printed on 08/30/2012 at 10:12 AM
CCAL5
Case Summary
Case No. 2011CCV-61850-5
06/11/2012
All Documents Filed
Letterfrom Valerie Cantu Reffindings ofFacts is improper requestfrom the court

06/18/2012
Response
Party: Defendant SouthTexas Veterinary Associates, Inc
Defendant's Response toPlaintiffs Motionfor New Trial/e-filed

06/25/2012
All Documents Filed
Deft's response to Jena Gonzalez June 19,2012 letter

06/25/2012
All Documents Filed
Plaintiffresponse toJudge Chesney request

06/25/2012
Order Setting Hearing date: 7-20-12 @ 9:00a.m./I

07/20/2012
Motion Hearing (10:00 AM) (Judicial Officer: Chesney, Brent)

re: New Trial
07/20/2012 07/20/2012
OrderDenying New Trial(Judicial Officer: Chesney, Brent)

Notice
Notice and copy ofOrder denying Motionfor New trial Mailed toAttorney, Valerie Cantu and
PlaintiffJena gonzalez
07/20/2012
Final Judgment (Judicial Officer: Chesney, Brent) Comment (Orderon Plaintiffs MOtion for New trial-Denied)
All Documents Filed
07/20/2012
prinoutfrom vetnegligene-vaccines. com

08/13/2012
Notice of Appeal Party: Defendant South Texas Veterinary Associates, Inc

Letter
08/15/2012
Party: Plaintiff Gonzalez, Jena; Defendant South Texas Veterinary Associates, Inc
frm coa:appellant's mtnfor extension oftime tofile notice ofappeal and docketing statement
rcvd& filed
08/21/2012
Designation Party: Plaintiff Gonzalez, Jena OfClerk's Records On Appeal

Request Party: Plaintiff Gonzalez, Jena For Preparation OfReporter'sRecords
Financial Information
08/21/2012
Date
Defendant South Texas Veterinary Associates, Inc Total Charges Total Payments and Credits
Balance Due as of 8/30/2012
35.00 35.00
0.00
Plaintiff Gonzalez, Jena
Total Charges Total Payments and Credits

Balance Due as of 8/30/2012
296.00 296.00
0.00
0000439
PAGE 6 OF 6
Printed on 08/30/2012 at 10:12AM
LiJII!l!Upirasii
CIVIL D
JP Appeal
NAMES OF PARTIES
Filed: 09/02/2011
NUMBER OP CASE
Jena Gonzalezvs. Associates, Inc
Plantiff
Defendant
FEE BOOK
Gonzalez, Jena
South Texas Veterinar
Vol.
Page
DATE OF ORDERS
Wu
Sialographs ORDERS OF COURT
MINUTE &OOK
Monlh
Day
Year
Uied?
Vol.
Page
PROCESS
/o
^KA^g^r-or-t^
fcyoo a
^s.. ^.Lte ^ ^
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- ^/'i io <j?,2^
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O rsco^l c) v< y. V -c, ^> r e..^ Â^

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CT
0000441
Bill Of Cost
Jena Gonzalez
vs
IN THE COUNTY COURT AT LAW #5 2011CCV-61850-5
OF NUECES COUNTY, TEXAS
South Texas Veterinary Associates, INC.
[CLERK'S FEES {Art 3927)

For each suit filed, including appeals from inferior courts
[COSTS
SHERIFF'S FEES {Art. 3933a) jCHARGESl

Citation 1 Citation 2 Citation 3 Show Cause 1 Show Cause 2 Show Cause 3
TR0 1 TR0 2 TR0 3
For each cross action, intervention, contempt

action or motion for new trial filed For issuing each citation, including one copy thereof, when reguested at the time a suit of action is filed
For issuing each show cause, including one copy

For issuing each temporary restraining order, including
one (1) copy thereof
For issuing each subpoena, including one (1) copy thereof For issuing each writ of execution, order of sale, writ of injunction, writ of garnishment, writ of attachment. Habeas Corpus. Precept to Serve For issuing each commitment, including one (1) copy For abstracting judgment For approving each bond
Subpoena 1 Subpoena 2 Subpoena 3 Precept 1 Precept 2 Precept 3
Out of County Service 1 Out of County Service 2 Out of County Service 3
CLERK'S RECORD August 30, 2012
$443.00
Execution Injunction
Sale, order of Commitment
Possession, writ of
Jury Fee
TOTAL SHERIFF'S FEES

Recapitulation Jury Fee (R.C.P. 2161
Clerk's Costs
Sheriffs Costs
Out of County Service Fees for Depositions Attorney's Fees County Law Library
Deposit Resolution Fund
Please Remit Payment from this Bill - Thanks
State General Fund Abstractor's Fees Steno's Fees Certified Mail Certificate BALANCE DUE
$0.00
0000442
THE STATE OF TEXAS ) COUNTY OF NUECES )
I, PATSY PEREZ, Clerk of the District and County Courts at Law in and for
Nueces County, State of Texas, do hereby certify that the above and foregoing are true
and correct copies of all the proceedings directed by counsel to be included in the
CLERK'S RECORD had in the case of Jena Gonzalez -vs- South Texas Veterinary
Associates, INC. , the same appear from the originals now on file and of cord in this
office.
GIVEN UNDER my hand and seal of said Court, at office, in the City of Corpus
Christi, on the 30th day of August, 2012
PATSY PEREZ, District Clerk

Nuecet
Appeals Clerk
VV\7n/V
0000443

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CAUSE NO.

IN THE COUNTY COURT

South Texas Veterinary Associates, INC.

Plaintiffs Response to Defendant's No-Evidence and

Traditional Motion for Summary Judgment of all of

271 273 277

Defendant's Verified Response to Plaintiffs Motions

Dispute Resolution Services

Plaintiffs Reply to Defendant's Reply to Plaintiffs

Traditional Motion for Summary Judgment of all of

Defendant's Reply to Plaintiff's Response to

Summary Judgment Defendant's Sur-Reply to Plaintiffs Reply to

Order on Defendant's No-Evidence and Traditional

Motions for Summary Judgment, Defendant's Motion

To Dismiss, Defendant's Motion to Seal and all

/Request for Findings of Fact and Conclusions of Law

344 346 349 350 363

Defendant's Response to Plaintiffs Motion for New

/ XTrvoA V,U\ Vl3i^ V J Letter from Court of Appeals * %

CAUSE NO. 2011-CCV-61850-5

IN THE COUNTY COURT

SOUTH TEXAS VETERINARY

NUECES COUNTY, TEXAS

TO THE HONORABLE JUDGE OF SAID COURT:

Kitty Kat's Medical Record from Doddridge Animal Clinic.

Exhibit B ANTECH Diagnostics, Kitty's Pathology Report.

Enforcement of the TSBVME, to Dr. David G. Shaffer.

Plaintiff sues Defendant for veterinary malpractice in the following ways:

Vicarious Liability / Respondeat Superior

PLAINTIFF'S RESPONSE TO DEFENDANTS NO-EVIDENCE MOTION FOR SUMMARY JUDGEMENT

diligence as is ordinarily exercised by skilled veterinarians;

rule is not applicable in modern medical malpractice actions.

The Texas Supreme Court's

322, 326-31 (Tex.App.-Texarkana 2008, no pet.)

at the vaccine site that could be a reaction to the vaccine?

administer a feline leukemia vaccine?

We do in kittens. We do in feral cats. We do in Humane Society cats can,

See Exhibit "C", pages 40-42, Deposition of Alan Garett, DVM

What was your assignment in this case?

My assignment was to testify as to the standard of care by the local

procedures? Can you just kind of walkthrough that?

On a stray cat or when they purchase -Okay. Let's just say--

It does make a difference.

- an eight year adult cat Okay.

Can I ask you more specific? Is the cat indoors or outdoors?

-- would you mention those names and explain -A

Oh, yeah, yeah, yeah, absolutely.

If they have more specific questions, I try my best to be as

Summary Judgment Standard of Review

diligence as is ordinarily exercised by skilled veterinarians;

Recovery of damages to complainants is beyond the scope of the Board's authority.

information or other circumstances indicate a lack of trustworthiness.

Four nonexclusive factors that

Summary Judgment Standard of Review

A nonmovant in a traditional summary judgment proceeding is not required to produce summary

The standard for reviewing whether a pleading is groundless is objective:

Did the party and

Defendant/Counter-Plaintiffs pleading is frivolous because the pleading is intended to harass or cause

the Defendant/Counter-Plaintiffs malpractice insurance.

Plaintiff/Counter-Defendant has also spent

If Mr. Hilliard and Ms. Cantu truly felt this was a

3717 Aransas St.