NO.

____________________
__________________________________________________
____________
IN THE SUPREME COURT OF TEXAS
__________________________________________________
_____________
KELLY KANTON LABAJ AND THIRD COAST AUTO GROUP,
LP
Petitioners
v.
DEEANN VANHOUTEN
Respondent
_________________________________________________
____________
On Appeal From Cause No. 07-09-00241CV
Seventh Court of Appeals
Amarillo, Texas
__________________________________________________
_
PETITION FOR REVIEW
__________________________________________________
_
ROBLES & ASSOCIATES
Lloyd Robles
5205 Airport Blvd., Ste, 100
Austin, Texas 78751
(512) 416-1208
(512) 416-0082 Facsimile
ATTORNEY FOR PETITIONER
i
ORAL ARGUMENT REQUESTED

INDEX OF PARTIES AND COUNSEL
PETITIONERS: Kelly Kanton Labaj and Third Coast Auto Group, L.P.
PETITIONERS COUNSEL:
Lloyd Robles
ROBLES & ASSOCIATES
5205 Airport Blvd., Ste. 100
Austin, Texas 78751
(512) 416-1208
(512) 416-0082 Facsimile
RESPONDENT: DeeAnn VanHouten
RESPONDENT COUNSEL:
Charles L. Levy
Rosenthal & Watson
6601 Vaught Road, Ste. 200
Austin, Texas 78730
512-477-2275
Fax: 512-474-2667
Signed this 18th day of November, 2010.
___________________________________
Lloyd Robles


ii
TABLE OF CONTENTS
INDEX OF
COUNSEL.....................................................................................
i
TABLE OF
CONTENTS...................................................................................
ii
INDEX OF
AUTHORITIES...............................................................................
iii
I. STATEMENT OF THE
CASE......................................................................
iv.
II. STATEMENT OF
JURISDICTION..............................................................
v.
III. ISSUES PRESENTED FOR
REVIEW........................................................
Did the Court of Appeals Err By Holding That Petitioners Could
Be Held Liable For An Attack By A Non-vicious Dog Which
Occurred Where The Dog Had A Right To Be?
vi.
IV. STATEMENT OF THE
FACTS...................................................................
1
V. SUMMARY OF THE
ARGUMENT............................................................
4
VI.
ARGUMENTS............................................................................................
4
VII. CONCLUSION AND
PRAYER..................................................................
7
CERTIFICATE OF
SERVICE............................................................................ 8




iii
TABLE OF AUTHORITIES
CASES
Bushnell v. Mott, 254 S.W.3 d 451 (Tex.
2008)........................................................ 2,3, 4
Bushnell v Mott, 4-05-00846-CV (Tex.App. [4th Dist.] 2006
................................ 5,6
Jones v. Gill, 2-03-298-CV (Tex.App.-Ft. Worth [2nd Dist.]
2005)........................ 5,6
Lewis v. Great S.W. Corp., 473 S.W.2d 228, 230 (Tex.Civ.App.-Fort Worth
1971, writ ref'd
n.r.e)................................................................................... 5
Petry v. Gasca, No. A14-93-00433-CV, 1994 WL 132772, at *1
(Tex.App.-Houston [14th Dist.] 1994, no
writ)............................................ 5
Rodriguez v. Haddock, 2003 WL 1784923, at *2 (Tex.App.-Fort Worth,
Apr.3, 2003, no pet.)
(mem.op.)................................................................... 5
Searcy v Brown, 607 SW2d 937 (Tex. Civ. App. - 1
st
Dist. Houston-1980)
............. 5
1
NO. ____________________
______________________________________________________________
IN THE SUPREME COURT OF TEXAS
______________________________________________________________
_
KELLY KANTON LABAJ AND THIRD COAST AUTO GROUP, LP
Petitioners
v.
DEEANN VANHOUTEN
Respondent
_____________________________________________________________
On Appeal From Cause No. 07-09-00241CV
Seventh Court of Appeals
Amarillo, Texas
___________________________________________________
PETITION FOR REVIEW
___________________________________________________
TO THE HONORABLE SUPREME COURT OF TEXAS:
Petitioners Kelly Kanton Labaj and Third Coast Auto Group, LP,
pursuant to Texas Rule Of Appellate Procedure 53, respectfully submit this
petition seeking review of the Seventh Court of Appeals opinion in this
matter. As set forth below, this Honorable Court should grant this petition.

STATEMENT OF THE CASE
2
This is a dog bite case in which the Respondent was bit by a dog
named Star while on premises belonging to Petitioner Third Coast Auto
Group LP on May 30, 2007. Respondent filed suit alleging a strict liability
cause of action as well as a negligent handling of a dog cause of action. The
case was submitted to a jury on jury questions. In response to jury question
No. 2
(Appendix, No. 1), which asked the jury if they found that Star (the dog
involved) had dangerous propensities abnormal to an animal of its class, the
jury answer No. The jury answered Yes with respect to both Petitioners in
response to Jury Question No. 6 (Appendix, No. 1), which inquired about
simple negligence. After the trial both parties filed Motions for Judgment.
Petitioners filed a motion for judgment based on the jurys answer to Jury
Question No. 2 while
Respondent based its motion for judgment on the jurys answer to Jury
Questions No. 1, 5, 6, 7 & 8. The trial court entered a judgment in favor of
Respondent awarding Respondent damages in the amount of $50,000.00
(Appendix, No. 2).
Petitioners appealed the trial courts judgment to the Third Court of
Appeals which transferred the case to the Seventh Court of Appeals. On
September 1, 2010 the Court of Appeals issued an opinion authored by
Justice Patrick A. Pirtle. Petitioners filed a motion for rehearing on
3
September 16, 2010 (Appendix, No. 4) which was overruled on October 4,
2010.
II. STATEMENT OF JURISDICTION
This Honorable Court has jurisdiction over this appeal under 22.001(a)(2) of
the Texas Government Code because the Court of Appeals decision conflicts
with the decisions of this Honorable Court in Bushnell V. Mott, 254 S.W.3d
451 (Tex. 2008) where this Honorable court approved the holding of the
Fourth Court of Appeals that a dog owner cannot be held liable for an attack
by a non-vicious dog where the alleged attack occurred where the dog had a
right to be.
1

Additionally, this Honorable Court enjoys jurisdiction over this appeal under
Texas
Government Code 22.001(a)(6) because the Court of Appeals committed an
error of substantive law that is important to the jurisprudence of Texas. The
court of appeals has misconstrued the applicable case law by holding that an
owner or possessor of a non-vicious dog can be held for an attack that occurs
where the dog has a right to be. Such a holding contradicts holdings from the
1
st
Circuit Court of Appeals, the 2
nd
Circuit Court of Appeals, the 4
th
Circuit
Court of Appeals and 14
th
Circuit Court of Appeals as well as this Courts
decision in Bushnell v. Mott, 254 S.W.3d 451 (Tex. 2008). This error is so
egregious that it can adversely affect the jurisprudence of this state and
should be addressed by this Court

This Court reversed the decision in this case because this Court adopted comment J of 518 of
the RESTATEMENT (SECOND) OF TORTS (1977) which provides that regardless of whether
the animal in question was non-vicious, the owner of same has a duty to stop the dog from
continuing an attack but did not criticize or disapprove of this holding.
4
III. ISSUES PRESENTED FOR REVIEW
Did the Court of Appeals Err By Holding That Petitioners Could Be Held Liable
For An Attack By A Non-vicious Dog Which Occurred Where The Dog Had A
Right To Be?
IV. STATEMENT OF THE FACTS
The instant cause involves a dog biting incident involving Respondent
which occurred on premises owned by her employer, Appellant Third Coast
Auto Group, L.P. on May 30, 2007. Respondent filed suit alleging a strict
liability cause of action and alleging negligent handing of a dog. The case
was submitted to a jury on jury questions. In response to jury question No. 2
(Charge of the Court, Appendix 1), which asked the jury if they found that Star
(the dog involved) had dangerous propensities abnormal to an animal of its
class, the jury answer No. The jury answered Yes with respect to both
Appellants in response to Jury Question No. 6. Id., which inquired about
simple negligence. It was undisputed by Respondent at trial that at the time of
the biting incident that Star was in a place it had the right to be. Nor was this
disputed on appeal by Respondent or by the Court of Appeals (Opinion of
Court Appeals, Appendix 3).
5
V. SUMMARY OF THE ARGUMENT
The instant cause was submitted to the jury on two theories of liability:
1) strict liability and 2) negligent handling of a dog. The jury failed to find that
Star, the dog in question, had dangerous propensities that were abnormal to
her class (Jury Question No. 2, Appendix 1). Although the jury found
Defendants were negligent in response to Jury Question No. 6, this finding will
not support a judgment for Plaintiff under the applicable law. This is
particularly so in view of the undisputed evidence showing that Star was
tethered and in an area she had a right to be. The 1
st
, 2
nd
, 4
th
and 14
th

Circuit Courts of Appeals have all held that dog owners are not negligent if
the injury occurred where the dog had a right to be and the owner had no
knowledge of any dangerous propensities. This Court has itself cited this rule
in Bushnell v. Mott, 254 S.W.3d 451 (Tex. 2008).
VI. ARGUMENTS
Petitioners do not dispute that Respondent was bitten by a dog named
Star while Star and Petitioner were on premises owned or controlled by
Petitioners. It is of paramount importance to note, however, that Star was in a
place it had every right to be when the biting incident occurred. Petitioner,
Kanton Labaj, testified that on the occasion in question, Star, was in an area
6
described as the make ready area and that Star had the right to be in this
area of the premises. (Court
Reporters Record, Vol 4, P. 188). This testimony was never contradicted or
disputed by
Respondent or any of Respondents witnesses. Steve Quiroz, the general
manager of Third Coast Auto, also testified that the dog was kept in this make
ready area and that no part of Respondents job responsibilities required her
to be in this area. (Court Reporters Record, Vol. 3, PP. 196-197).
In fact, Respondent herself acknowledged that she saw a dog house in the
area where she was bitten
(Court Reporters Record, Vo. 3, P. 36) and knows that the dog was chained
at the time of the biting incident (Court Reporters Record, Vol. 3, P. 73). Star
had recently had a litter of puppies before the biting incident and naturally
reacted aggressively when Respondent, a person unknown to Star, entered
Stars home area. Respondent herself acknowledged that it was normal for a
dog that had just had puppies to be protective. (Ct. Reporters Record, Vol 3,
Pg 135, Lines 1-14). After considering all the evidence, the jury failed to find
that Star had dangerous propensities that were known to Petitioners. Every
Court of Appeals that has considered cases involving dog bite incidents has
held that dog owners are not negligent if the injury occurred where the dog
had a right to be and the owner had no knowledge of any dangerous
propensities. Jones v. Gill, No. 2-03-298-CV, 2005 WL 503182, at * 4
(Tex.App.-Fort Worth Mar. 3, 2005, no pet.); Lewis v. Great S.W. Corp., 473
S.W.2d 228, 230 (Tex.Civ.App.-Fort Worth 1971, writ ref'd n.r.e); Rodriguez v.
Haddock, No.
2-01-386-CV, 2003 WL 1784923, at *2 (Tex.App.-Fort Worth Apr. 3, 2003, no
pet.); Petry v. Gasca, No. A14-93-00433-CV, 1994 WL 132772, at *1
7
(Tex.App.-Houston [14th Dist.] Apr. 14, 1994, no writ) (not designated for
publication); Searcy v. Brown, 607 S.W.2 d 937, 941
(Tex.Civ.App.-Houston [1st Dist.] 1980, no writ). When this Court reviewed
the Fourth Court of Appeals decision in Bushnell v. Mott, 4-05-00846-CV
(Tex.App. [4th Dist.] 2006) you noted that the Court of Appeals relied on this
line of cases without taking issue with the holdings therein. Instead, this Court
distinguished these cases from the facts in Bushnell where the facts showed
that once Motts dogs began attacking Ms. Bushnell, Mott failed to take
reasonable steps to stop the attack.
In addressing the foregoing line of cases which were cited by
Petitioners, the Court of Appeals said two things: 1) that these cases were
simply restating the strict liability rule and 2) that these cases were
distinguishable because they involved attacks at residences except for the Gill
case in which the dog bite occurred at a business during non-business hours.
Petitioners contend that the first assertion is patently incorrect and that the
second presents no sound basis of distinction. (See Petitioners Motion for
Rehearing, Appendix No. 4). The Gill, Haddock and the Fourth Court of
Appeals decision in Bushnell all involved negligence theories of liability and in
each case the courts found that the dog owner/possessor could not be held
liable because there was no evidence shown that the dogs in questions had
8
dangerous propensities. A close reading of the Gill case clearly shows that
the court therein attached no special significance to the fact that the business
where the dog had the right to be was closed. Although the plaintiff in Gill
put on evidence that Gill kept his dog behind the counter during business
hours, it was apparent from the Courts discussion that the intent of this
evidence was to convince the trial court that this behavior evidenced Gills
awareness of the dogs aggressive nature. The Court dismissed this
inference pointing out that the dog could just as logically have been kept
behind the counter to protect the customers from the dogs friendliness. It
seems unlikely that the Gill court would have decided that case differently if
Jones child had been bit during business hours. A more logical way of
discerning the common thread in the Gill line of cases is that the courts therein
felt that, even in negligence cases, some consideration should be given to the
fact that the owner/possessor of the dogs in question have kept their dogs in
places where the dogs have been conditioned to believe are their domains
and that those owners/possessors should not be held be liable for injuries
resulting from encounters between their guests and their animals unless it be
shown that the owner/possessors had actual or constructive knowledge of
dangerous propensities on the part of their dogs that militates in favor of
taking special measures.
9
In view of the obvious fact that many Texans own dogs and other pets
which can inflict harm under the proper circumstances and the countervailing
concern to prevent needless injury to those who may come in contact with
such animals, it is certain that there will be many more cases presenting
similar facts to the case at bar. This reality requires that there be a sound,
clearly articulated rule that dog owners can rely upon in the management of
their dogs.
VII. CONCLUSION AND PRAYER
As this Petition for Review demonstrates, this cause poses critically
important issues concerning the proper rule of liability applicable to dog (or
other domestic animals for that matter) bites occurring on property where the
dog has a right to be. For the reasons stated in this Petition for Review,
Petitioners respectfully request that the Court grant this Petition for Review,
reverse the Court of Appeals judgment and issue an opinion reversing the
judgment of the trial court or otherwise rendering judgment for Petitioners.
Petitioners pray for all other and further relief to which they may be entitled.



10

Respectfully submitted,
ROBLES & ASSOCIATES
5205 Airport Blvd., Ste. 100
Austin, Texas 78751
(512) 416-1208
(512) 416-0082 Facsimile
____/s/______________________
Attorney for Petitioners
Lloyd Robles
Bar No. 17118150
For the Firm
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument
has been delivered in accordance with Rule 21a of the Texas Rules of Civil
Procedure to the following persons:
Charles L. Levy
Rosenthal & Watson
6601 Vaught Road, Ste. 200
Austin, Texas 78730
Attorney for Respondent
Signed this 18th day of November, 2010.
___/s/_________________________
Lloyd Robles