Victoria County District Clerk Cathy Stuart 115 N.

Bridge, Room 103 Victoria, Texas 77901 Phone (361) 575-1478 Fax (361) 575-6276

FILED - March 12, 2010 FILED CORRECTED COPY - March 15, 2010 FILED AMENDED COPY - date pending TO BE SERVED - date pending

Case # 10-3-69863-C SHIRLEY PERSONS PIGOTT M.D., plaintiff

pro se v.

IN THE 267th DISTRICT

COURT OF

DAVID BENNING SMITH, defendant, DEXTER EAVES, defendant

VICTORIA COUNTY TEXAS

PLAINTIFFS ORIGINAL PETITION, AMENDED Introduction and Facts On September 29, 2007, plaintiff had an encounter with Texas Department of Public Safety Officers in Wharton County, near Pierce, which resulted in criminal charges and the physical seizure of the car she had been driving. On or about October 15, 2007, Defendant signed a contract to represent Plaintiff in both the criminal and civil matters. Defendant agreed in writing to "take care of the felony" and "get your car back", according to Plaintiff's now deceased husband, Henry Dale Pigott. Plaintiff's

husband, as trustee of a trust for her benefit, paid Defendant $15,000 for work Attorneys Smith and Eaves were to do pursuant to the Texas Disciplinary Rules of Professional Conduct. Plaintiff was originally stopped for speeding 74 mph in a 65 mph zone, well after dark, at 8:15 PM on the evening in question. Wharton County District Attorney repeatedly threatened to have Plaintiff indicted with a felony unless she accepted a lesser charge of a Class B misdemeanor, but she would be required not to protest his unlawful seizure of the car she had been driving. At all times Plaintiff has maintained her innocence, that DPS officers had frightened her, that she had requested to go to the next lighted populated area, which would have been Wharton, and having been denied, she had requested the attendance of another officer she hoped would defuse the situation. The first officer answered, "Negative", to both requests. When the second officer arrived, she maintained she was further disconcerted. "Fleeing arrest" is a Class B Misdemeanor. "Fleeing arrest with a deadly weapon" is a felony. According to a recently enacted Texas law, a vehicle can be seized by the state if the driver is convicted of a felony offense. By such an agreement, Plaintiff believed she would forfeit her right to protest what she believed to be an unconstitutional seizure of her private property. Smith told Plaintiff, "Wharton County District Attorney Josh McCown is seizing your car because he can." In spite of Smith's explanation, he neither verbally offered any objection nor filed any objecting motion. Thus, he knowingly allowed McCown to violate his duty to seek the truth. Both defendants knowingly violated the ethics of their honorable profession and have brought shame to the Texas State Bar. Approximately three months after the precipitating event, a new Wharton County Grand Jury was convened, and with no new evidence, Plaintiff was indicted on two counts of fleeing arrest with a deadly weapon, the vehicle she was driving, once from Texas Department of Public Safety Officer Alfred Ochoa, and once from Texas DPS Officer Daniel Terronez. In the early morning hours of January 8th or the late evening hours of January 7, 2008, Plaintiff's husband of almost 39 years, Henry Dale Pigott, took his own life. approximately nine months after the precipitating event, with no new evidence, a second Wharton County Grand Jury, a different Grand Jury which rendered the first two indictments, indicted Plaintiff on charges of aggravated assault of a law

enforcement officer, Alfred Ochoa, in the line of duty with a deadly weapon, the car she was driving. If she had been convicted of this superseding indictment, a first degree felony, Plaintiff could have been sentenced to 99 years in prison. She was not notified of the new indictment until several weeks had passed. On March 13, 2008, Smith filed a motion with the 329th Texas District Court to withdraw from Plainfitt's defense, based on, he told Judge Randy Clapp, "failure to communicate". The motion was granted by Judge Clapp. At her next scheduled hearing, Assistant District Attorney Ross Kurtz again offered a misdemeanor plea bargain. At the conclusion of the hearing, without comment or instructions, Plaintiff, who was now pro se, was casually handed and directed to sign the first degree felony indictment. At no time did Attorney Smith review the district attorney's evidence file in Plaintiff's presence. He made no effort to obtain a true and correct copy of the original DPS video. Plaintiff is aware of evidence that supports a theory of collusion of DPS, the Texas Medical Board, Judge Randy Clapp's Court Administrator, and others with with the Wharton County District Attorney for the purpose of harming her which Attorney Smith did not seek. Plaintiff will demonstrate that Defendant's failures resulted in significant harm to her and contributed to the suicide of her husband. Plaintiff alleges Defendant David Benning Smith's breach of contract, negligent misrepresentation, fraud, abandonment, unethical conflict of interest, breaches of confidentiality, and that the contract was signed in bad faith; Defendant's egregious wrongs contributed to the death of Plaintiff's husband, Henry Dale Pigott. Plaintiff alleges Defendant Dexter Eaves' unethical conflict of interest. Plaintiff sustained damages due to the causes cited above and and seeks reparations. Parties 1. Plaintiff is Shirley Persons Pigott M.D (shirleypigottmd@gmail.com), who is referred to as "Plaintiff" or Dr. Pigott. She resides at and service can be perfected at 301 Woodway, Victoria, Texas 77904; Phone (361) 894-6464 Cell (361) 652-9474

2. Defendant #1 is David Benning Smith (david@dbsfirm.com), hereinafter referred to as Attorney Smith, who is also a resident of Victoria, Texas. His office and place of service is 106 North Main Street, Suite 200, Victoria, TX 77901; Phone: (361) 579-6900 . Fax: (361) 579-9009 . Cell: (361) 676-1974 3. Defendant #2 is Dexter Eaves ( ), herinafter referred to as "Attorney Eaves", also a resident of Victoria, Texas. His office and place of service is 206 North Liberty Street, Victoria, TX 77901-6531; (361) 574-9700 Jurisdiction and Venue 3. Jurisdiction and venue is proper; Victoria County, Victoria, Texas Conditions Precedent 4. All conditions precedent are in performance or have occurred. No service is required at this time. Causes of Action 5. Plaintiff will demonstrate the following causes of action: Count 1 Breach of Contract Attorney Smith failed to fulfill the obligations of his contract, individually, and as a member of the firm Eaves, Smith, and Bauknight. Count 2 Negligent Misrepresentation and incompetent counsel. Attorney Smith filed no substantive motions and subpoenaed no evidence. He failed to perform the most perfunctory investigation, such as to obtain a DPS video of the incident which was subsequently obtained with ease. As of two weeks before the scheduled trial, he had proposed no plan for a defense. His 'representation' was based on threats of, "Agree to a misdemeanor or you will go to prison," and "Give the DA your car or he will have you indicted for a felony." Count 3 - Abandonment Attorney Smith withdrew from the case two weeks before the trial was scheduled. Count 4 - Fraud Attorney Smith gave the reason for his motion to withdraw as "failure to communicate", when his real reason was that he was asked questions which would have required him to do his job. Count 5 - Actions taken in Bad Faith Attorney Smith never intended to try to get Plaintiff's car back; he never intended to defend her against criminal charges; he

intended to coerce her to agree to guilt. Count 6 - Unethical Conflict of Interest of both Attorney Smith and Attorney Eaves. When Plaintiff refused to plea bargain, Attorney Smith's partner, Dexter Eaves, made an attempt to persuade her to do so, "because we have our reputations to think about." This was, in fact, a threat to withdraw from her defense if obedience did not promptly follow, a threat which materialized. Both attorneys placed their own interests ahead of their client's. Count 7 - Breaches of Confidentiality Shortly before his suicide on January 7, 2008, plaintiff's husband angrily said to Plaintiff, "You are going to lose your medical license, go to prison, and bankrupt our family." This was completely out of character for him; he said it with such force and foreboding that it appeared to have been planted in his mind by another person. There was an occasion that Plaintiff sought to obtain information from DPS when Smith knowingly told her she would be unable to do so. when she contacted DPS by phone within the hour, several different DPS employees acted as though they were expecting her phone call. Plaintiff believes Smith discussed her pending indictment with Kevin Epley, and elder in Fellowship Bible Church where her husband was head elder. In the early morning hours before the indictment, Plaintiff's husband committed suicide. Plaintiff believes Smith knew Epley because of the latter's 27 year affiliation with the Victoria Police Academy and Victoria Police Department. Count 8 - Wrongful Death Due in part to a combination of causes of action of these defendants, in the late evening hours of January 7, 2008, or the early morning hours of January 8th, plaintiff's husband committed suicide. Damages 9. As a direct and proximate result of defendants conduct, plaintiff suffered the following injuries and damages:

a. b. c. d. e.

Medical expenses in the past and future. Property damage. Physical pain and mental anguish in the past and future. Lost earnings. Lost profits.

f. g. h. i.

Damage to earning capacity. Loss of consortium Damage to reputation Loss of medical license

Attorney Fees 10. Plaintiff is entitled to an award of attorney fees, costs, and damages. Prayer 11. For these reasons, plaintiff asks for judgment against defendant for the following: a. b. c. d. e. f. Actual damages Prejudgment and post judgment interest. Reasonable attorney fees. Punitive Damages. Costs of suit. All other relief the court deems appropriate.

Respectfully submitted,

SHIRLEY PERSONS PIGOTT, M.D.

__________________________ Shirley Persons Pigott M.D., pro se Seeking LEGAL counsel 301 Woodway Drive

Victoria, Texas 77904

On this day, Dr. Shirley Persons Pigott M.D. appeared before me, the undersigned notary public. After I administered an oath to her, upon her oath, she said that she read the PLAINTIFF ORIGINAL PETITION, AMENDED and that the facts stated in it are within her personal knowledge and are true and correct. _________________________ Dr. Shirley Persons Pigott M.D. SWORN TO and SUBSCRIBED before me by {name of affiant} on April 14, 2010.

Verification for Pleadings & Motions VERIFICATION