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
§ IN THE 267th DISTRICT
PIGOTT M.D., plaintiff
pro se §
v. § COURT OF
§

DAVID BENNING SMITH,

§ VICTORIA COUNTY
defendant,
DEXTER EAVES,
§ TEXAS
defendant

PLAINTIFF’S 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 defendant’s conduct, plaintiff suffered the

following injuries and damages:

a. Medical expenses in the past and future.

b. Property damage.

c. Physical pain and mental anguish in the past and future.

d. Lost earnings.
 e. Lost profits.

f. Damage to earning capacity.

g. Loss of consortium

h. Damage to reputation

i. 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. Actual damages

b. Prejudgment and post judgment interest.

c. Reasonable attorney fees.

d. Punitive Damages.

e. Costs of suit.

f. 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