Delores Galvan v. Robert Leake, Individually and Zebra Instruments Corporation

ACCEPTED
03-15-00376-CV
8118883
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/7/2015 2:37:24 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00376-CV
________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD JUDICIAL DISTRICT12/7/2015 2:37:24 PM
OF TEXAS AT AUSTIN JEFFREY D. KYLE
Clerk
________________________________
DOLORES GALVAN, Appellant
V.
ROBERT LEAKE, INDIVIDUALLY AND
ZEBRA INSTRUMENTS CORPORATION, Appellee
________________________________
On Appeal from County Court at Law Number Four
of Williamson County, Texas
The Honorable John B. McMaster
Presiding in Cause No. 14-0842-CC4
_____________________________________
APPELLANT’S BRIEF
Scott Ogle
TBN: 00797170
Law Office of Scott P. Ogle
2028 Ben White Blvd.
Austin, TX 78704
Phone: (512) 442-8833
Fax: (512) 442-3256
soglelaw@peoplepc.com
Attorney for Appellant
Dolores Galvan
No Oral Argument Requested
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties to the trial
court’s final judgment, as well as the names and
addresses of all trial and appellate counsel.
Trial Judge: The Honorable John B. McMaster,
presiding judge, Williamson
County Court Number Four
Appellant: Dolores Galvan
Appellant’s Trial and Scott Ogle
Appellate Counsel: TBN: 00797170
Law Office of Scott P. Ogle
2028 Ben White Blvd.
Austin, TX 78704
Appellees: Robert Leake, individually, and
Zebra Instruments Corporation
Appellees’ Trial and Christopher Stanley
Appellate Counsel: TBN: 19044400
Law Office of Sneed, Vine & Perry
1104 South Rock Street
Georgetown, Texas 78726
i
TABLE OF CONTENTS
page
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i.i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
POINTS OF ERROR PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . .2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . 3
I. The trial court erred when it granted Appellees’ Motion
to Strike . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
II. The trial court erred when it granted Appellees’
No-Evidence Motion for Summary Judgment. . . . . . . . . .11
A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 18
ii
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
iii
TABLE OF AUTHORITIES
Cases
page
Garner v. Fid. Bank,
N.A., 244 S.W.3d 855 (Tex. App.–Dallas 2008, no pet.). . . .4
Cire v. Cummings,
134 S.W.3d 835 (Tex. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Gee v. Liberty Mut. Fire Ins. Co.,
765 S.W.2d 394 (Tex. 1989). . . . . . . . . . . . . . . . . . 4, 6, 8, 9, 11
Huckabee v. Time Warner Entertainment Co. L.P.,
19 S.W.3d 413 (Tex. 2000). . . . . . . . . . . . . . . . . . . . . 14, 15, 17
Jackson v. Fiesta Mart, Inc.,
979 S.W.2d 68 (Tex. App.–
Austin 1998, no pet.). . . . . . . . . . . . . . 11, 12, 14, 15, 17
Merrell Dow Pharmaceuticals, Inc. v. Havner,
953 S.W.2d 706 (Tex. 1997). . . . . . . . . . . . . . . . . . . . 12, 15, 17
Montenegro v. Ocwen Loan Servicing, LLC,
419 S.W.3d 561 (Tex. App.–Amarillo 2013, pet. denied). . .4
Olsen v. Commission for Lawyer Discipline,
347 S.W.3d 876 (Tex. App.–Dallas 2011, pet. denied). . . . .5
Roth v. FFP Operating Partners, L.P.,
994 S.W.2d 190 (Tex. App.–Amarillo 1999, pet. denied). .11
Webster v. Allstate Ins. Co.,
833 S.W.2d 747 (Tex. App.–
Houston [1st Dist.] 2002, no pet.). . . . . . . . . . . . . . . . . . . . . .5
iv
Court Rules
TEX. R. APP. P. 44.1(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . .4, 6, 8, 9, 11
TEX. R. EVID. 803(8)(A)(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
TEX. R. EVID. 901(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 15
TEX. R. EVID. 901(b)(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 9, 15
TEX. R. EVID. 902(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
TEX. R. EVID. 902(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
v
STATEMENT OF THE CASE
On June 6, 2014, Appellant Dolores Galvan (“Galvan” or
“Appellant”) filed suit in Williamson County Court Number Four
against Robert Leake, individually, and Zebra Instruments
Corporation (“Leake” and “Zebra” or “Appellees”), alleging
negligence on the part of Defendants which caused Galvan to
suffer serious personal injuries. [C.R. 6-10]. After an adequate
time for discovery, Appellees filed their No-evidence Motion for
Summary Judgment on May 4, 2015. [C.R. 39-42]. Galvan filed her
Response to the motion on June 11, 2015, with an attached
affidavit and exhibits. [C.R. 54-81]. A live hearing held on June 17,
2015, regarding the summary judgment motion, and Appellees
filed their Motion to Strike on that same date, seeking exclusion
of Galvan’s summary judgment evidence. [C.R. 83]. Appellees’
Motion to Strike and Motion for Summary Judgment were
granted by the trial court on June 17, 2015. [C.R. 88]. Galvan
timely filed her Notice of Appeal on June 18, 2015. [C.R. 93]. This
timely appeal ensued.
1
POINTS OF ERROR PRESENTED
POINT OF ERROR ONE
I. The trial court erred when it granted Appellees’ Motion to
Strike.
POINT OF ERROR TWO
II. The trial court erred when it granted Appellees’ No-
Evidence Motion for Summary Judgment.
STATEMENT OF FACTS
On or about September 26, 2012, Galvan was injured while
performing her job duties while employed by Appellees. [C.R. 54].
Galvan’s injuries occurred during the course and scope of her
employment when she was forced to operate a clamp press after
a protective guard had been removed. [C.R. 54]. Galvan suffered
a crushed finger while operating the clamp press, and injury
which would not have happened had the protective guard been
in place as designed. [C.R. 54]. At all time relevant, Appellees
were aware of the danger represented by the clamp press with the
missing guard. [C.R. 54-55].
Appellees filed their No-evidence Motion for Summary
2
Judgment on May 4, 2015. [C.R. 39-42]. Galvan filed her Response
to the motion on June 11, 2015, with an affidavit and exhibits
attached. [C.R. 54-81]. A live hearing held on June 17, 2015,
regarding the summary judgment motion, and Appellees filed
their Motion to Strike on that same date, seeking exclusion of
Galvan’s summary judgment evidence. [C.R. 83]. Appellees’
Motion to Strike and Motion for Summary Judgment were
granted by the trial court on June 17, 2015.
SUMMARY OF THE ARGUMENT
Because the affidavit of undersigned counsel and the
included Exhibits were competent summary judgment evidence,
the trial court erred in granting Appellees’ Motion to Strike. The
trial court’s error likely caused the rendition of a proper
judgment.
Because Galvan raised at least more than a scintilla of
evidence to raise a fact issue on each and every challenged
element, the trial court erred in granting Appellees’ Motion for
No-Evidence Summary Judgment.
3
ARGUMENT AND AUTHORITIES
POINT OF ERROR ONE (RESTATED)
I. The trial court erred when it granted Appellees’ Motion to
Strike.
A. Standard of Review
A trial court’s determination of an objection to summary
judgment evidence is reviewed for abuse of discretion.
Montenegro v. Ocwen Loan Servicing, LLC, 419 S.W.3d 561, 572
(Tex. App.–Amarillo 2013, pet. denied); Garner v. Fid. Bank, N.A.,
244 S.W.3d 855, 859 (Tex. App.–Dallas 2008, no pet.). A trial court
abuses its discretion if it acts without reference to any guiding
rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.
2004). To obtain reversal, an appellant must show error that
probably caused the rendition of an improper judgment. TEX. R.
APP. P. 44.1(a)(1); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394,
396 (Tex. 1989).
B. Discussion
At the hearing, Appellees objected to the form of the
affidavit submitted by Galvan in support of her Response to
4
Defendant’s Motion for No Evidence Summary Judgment. [II R.R.
5-6]. Appellees also objected to Exhibits A, B, and C which were
attached to Galvan’s Response. [C.R. 84-85]. After hearing
argument of counsel, the trial court granted Appellees’ objection
to and motion to strike all of the complained of materials. [II R.R.
19]. The trial court erred in excluding the affidavit and exhibits;
a discussion of each component follows.
1. Scott Ogle Affidavit
The affidavit in question states in substantive part:
My name is Scott Ogle. I am over 18 years of age, of sound
mind and capable of making this affidavit. The facts stated
in this Plaintiff’s Response to Defendant’s Motion for No
Evidence Summary Judgment are within my personal
knowledge and are true and correct.
[C.R. 58]. Undersigned counsel’s research has discovered no case
where either this Court or the Texas Supreme Court has directly
held in a published opinion that such a verification is not
competent summary judgment evidence.1 As will be discussed in
1
But see Olsen v. Commission for Lawyer Discipline, 347 S.W.3d 876, 886 (Tex.
App.–Dallas 2011, pet. denied)(party may not support its response to
motion for summary judgment with affidavit attempting to verify truth
and correctness of all allegations and facts, such document amounts to
5
greater detail in Point of Error Two, the affidavit swore to
essential facts necessary to controvert Appellees’ Motion for No
Evidence Summary Judgment.
Finally, assuming arguendo that the Ogle affidavit is not
competent summary judgment evidence, the trial court erred in
failing to afford Galvan an opportunity to cure the deficiency in
her summary judgment proof. Webster v. Allstate Ins. Co., 833
S.W.2d 747, 750 (Tex. App.–Houston [1st Dist.] 2002, no pet.).2 The
trial court’s error served to eliminate vital evidence, and likely
caused the rendition of an improper judgment. TEX. R. APP. P.
44.1(a)(1); Gee, 765 S.W.2d at 396.
2. Exhibit A
Exhibit “A” is a two-page document bearing the seal of the
Texas State Comptrollers office, which shows that Robert Leake
nothing more than verified responsive pleading, which is not competent
summary-judgment evidence).
2
As is required under Texas law in this circumstance, counsel’s following
statements can be construed as an attempt to request an opportunity to
cure the allegedly defective affidavit: “And for me to be brought in and
having to defend, and make a mistake or two if I did in terms of a
verification, authentication, in regard to my evidence that I did
provide....” [C.R. 25].
6
is the Registered Agent, Director, and Chief Executive Officer of
Zebra Industries, Inc. Under Rule 901,3 the proponent of an item
of evidence must only show that the item is what it purports to
be. TEX. R. EVID. 901(a), (b)(7). Resolving all issues in favor of
Galvan, the two pages of Exhibit A are clearly what they purport
to be, public documents promulgated by the Office of the Texas
State Comptroller. Id. Any doubts about the document would go
to the evidentiary weight of the Exhibit, rather than the
admissibility. The trial court’s error served to eliminate vital
evidence relied on by Galvan, and likely caused the rendition of
3
Rule 901 of the Texas Rules of Evidence holds in pertinent part:
(a) In General. To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the
proponent claims it is.
(b) Examples. The following are examples only--not a complete
list--of evidence that satisfies the requirement:
****
(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public
office as authorized by law; or
(B) a purported public record or statement is from the
office where items of this kind are kept.
****
Tex. R. Evid. 901.
7
an improper judgment. TEX. R. APP. P. 44.1(a)(1); Gee, 765 S.W.2d
at 396.
3. Exhibit B
Exhibit “B” is a three-page document, with two of the pages
bearing the seal of the Texas State Comptrollers office. [C.R. 62-
63]. The two pages are much like Exhibit “A,” with the exception
that they show that Robert Leake is the Registered Agent,
Director, and Chief Executive Officer of Coyote Work
Management, Inc., rather than Zebra Industries, Inc. As shown in
Exhibit “A.” [C.R. 62-63]. Thus, the same analysis applies here,
Rule 901 requires the proponent of an item of evidence to only
show that the item is what it purports to be. TEX. R. EVID. 901(a),
(b)(7). Resolving all issues in favor of Galvan, the first two pages
of Exhibit “B” are clearly what they purport to be, public
documents promulgated by the Office of the Texas State
Comptroller. Id. Any doubts about the document would go to the
evidentiary weight of the Exhibit, rather than the admissibility.
The trial court’s error served to eliminate vital evidence relied on
8
by Galvan, and likely caused the rendition of an improper
judgment. TEX. R. APP. P. 44.1(a)(1); Gee, 765 S.W.2d at 396.
4. Exhibit C
Exhibit C consists of various federal government documents
which show that Zebra Instruments, Inc., was the employer
penalized by the Occupational Safety and Health Administration
(“OSHA”) of the United States Department of Labor for the
September 26, 2012, incident wherein Galvan’s finger was
crushed by a press due to the lack of a proper guard. [C.R. 65-81].
A facial examination of the OSHA documents reveals that the
documents collectively contain a seal of the United States
Department of Labor, and are signed by the Area Director of
OSHA. [C.R. 65-81]. Thus, Exhibit C is admissible under Rules 901
and 902 of the Texas Rules of Evidence. TEX. R. EVID. 901(b)(7),
902(1)(A), (B).4 Further, factual findings from a legally authorized
4
Rule 902 of the Texas Rules of Evidence holds in pertinent part:
The following items of evidence are self-authenticating; they require no
extrinsic evidence of authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed. A
document that bears:
(A) a seal purporting to be that of the United States; any
state, district, commonwealth, territory, or insular
9
investigation are admissible in a civil trial. TEX. R. EVID.
803(8)(A)(iii).
Finally, at the hearing, Appellants asserted that the OSHA
narratives were never authenticated and were therefore
inadmissible. [C.R. 7]. Under Texas Rule of Evidence 901(a), a
proponent of evidence must only produce “evidence sufficient to
support a finding that the item is what the proponent claims it is.”
An official publication–“[a] book, pamphlet, or other publication
purporting to be issued by a public authority”–is
self-authenticating under Rule 902(5). TEX. R. EVID. 902(5).
Additionally, the document collectively bears a seal of the United
States Department of Labor, and a signature of the Area Director
of OSHA, rendering it admissible under Rule 902(1). TEX. R. EVID.
902(1). [C.R. 65-81].
possession of the United States; the former Panama Canal
Zone; the Trust Territory of the Pacific Islands; a political
subdivision of any of these entities; or a department, agency,
or officer of any entity named above; and
(B) a signature purporting to be an execution or attestation.
****
TEX. R. EVID . 902.
10
The trial court erred in granting Appellees’ objections to and
Motion to Strike Galvan’s summary judgment evidence. In doing
so, it likely caused the rendition of an improper judgment. TEX. R.
APP. P. 44.1(a)(1); Gee, 765 S.W.2d at 396.
POINT OF ERROR TWO (RESTATED)
II. The trial court erred when it granted Appellees’ No-
Evidence Motion for Summary Judgment.
A. Standard of Review
Because a no-evidence summary judgment is essentially a
pretrial directed verdict, a reviewing court will apply the same
legal sufficiency standard in reviewing a no-evidence summary
judgment as it would apply in reviewing a directed verdict. See
Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 195 (Tex.
App.–Amarillo 1999, pet. denied); Jackson v. Fiesta Mart, Inc., 979
S.W.2d 68, 70 (Tex. App.–Austin 1998, no pet.). Thus, an appellate
court must determine whether the nonmovant produced any
evidence of probative force to raise a fact issue on the material
questions presented. Roth, 994 S.W.2d at 195; Jackson, 979 S.W.2d
at 70. The court must consider all the evidence in the light most
11
favorable to the party against whom the no-evidence summary
judgment was rendered, disregarding all contrary evidence and
inferences. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997). A no-evidence summary judgment is
improperly granted if the nonmovant presents more than a
scintilla of probative evidence to raise a genuine issue of material
fact. Jackson, 979 S.W.2d at 70–71. More than a scintilla of evidence
exists when the evidence “rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions.”
Merrell Dow, 953 S.W.2d at 711.
B. Discussion
In its No Evidence Motion for Summary Judgment,
Appellees argued that Galvan presented no evidence that:
a) Zebra Instruments owned or maintained the punch press
made the subject of Plaintiff’s claims;
b) Zebra Instruments was Plaintiff’s employer at the time of
her injury; or that
c) As a third party who was not the owner or the maintainer
12
of the punch press, and who was not the employer of
Plaintiff, Zebra Industries owed a duty to Plaintiff as
alleged in Plaintiff’s Original Petition. [C.R. 40-41].
In response, Galvan submitted her Response to Defendants’
Motion for No Evidence Summary Judgment, the attached
affidavit of undersigned counsel, and Exhibits A, B and C. [C.R.
54-81]. After hearing argument of counsel, the trial court granted
Appellees’ objection to and motion to strike all of the complained
of materials. [II R.R. 19]. A discussion of the summary judgment
evidence submitted by Galvan follows.
1. Scott Ogle Affidavit
The affidavit in question states in substantive part:
My name is Scott Ogle. I am over 18 years of age, of sound
mind and capable of making this affidavit. The facts stated
in this Plaintiff’s Response to Defendant’s Motion for No
Evidence Summary Judgment are within my personal
knowledge and are true and correct.
[C.R. 58]. The affidavit swore to the accuracy of the facts detailed
in the Response, which set forth that:
“[Galvan] reported to work at Zebra Instruments, Inc....and
was assigned to work at the crimping press made the
13
subject of this lawsuit.” [C.R. 55].
“Robert Leak (sic) is the Director and Chief Executive
Officer of Zebra Instruments, Inc.” and a related company,
with a reference to supporting documents attached as
Exhibits “A” and “B.”[C.R. 56, 60-64].
Zebra Industries, Inc. was issued Citation Number 690438
by OSHA, with the documents encompassing said violation
attached as Exhibit “C” and incorporated by reference.
Those documents identify Zebra Industries as the employer
in the September 26, 2012, wherein Galvan’s finger was
crushed in the press. [C.R. 56, 65-81].
Thus, the sworn assertions raise at least more than a
“scintilla” of evidence raising a fact issue on every challenged
element, which is all that is required of Galvan to survive
summary judgment. Jackson, 979 S.W.2d at 70–71. Finally, Texas
law has always emphasized that trial courts must not weigh the
evidence at the summary judgment stage. Instead, a trial court’s
only duty at the summary judgment stage is to determine if a
material question of fact exists. Huckabee v. Time Warner
Entertainment Co. L.P., 19 S.W.3d 413, 422 (Tex. 2000).
2. Exhibit A
Exhibit “A” is a two-page document bearing the seal of the
14
Texas State Comptrollers office, which shows that Robert Leake
is the Registered Agent, Director, and Chief Executive Officer of
Zebra Industries, Inc. As stated previously, under Rule 901, the
proponent of an item of evidence must only show that the item is
what it purports to be. TEX. R. EVID. 901(a), (b)(7). Resolving all
issues in favor of Galvan, see Merrell Dow v. Havner, 953 S.W.2d at
711, the two pages of Exhibit A are clearly what they purport to
be, public documents promulgated by the Office of the Texas
State Comptroller. TEX. R. EVID. 901(a), (b)(7). Any doubts about
the document would go to the evidentiary weight of the Exhibit,
rather than the admissibility. The Exhibit raises more than a
scintilla of evidence sufficient to raise a fact issue regarding every
challenged element raised in Appellees’ Motion for No Evidence
Summary Judgment. Jackson, 979 S.W.2d at 70–71.
Restated, Texas law has always emphasized that trial courts
must not weigh the evidence at the summary judgment stage.
Instead, a trial court’s only duty at the summary judgment stage
is to determine if a material question of fact exists. Huckabee v.
15
Time Warner, 19 S.W.3d at 422.
3. Exhibit B
Exhibit “B” provides facts to support an inference that
Leake is in fact in control of the entity which pays Galvan for her
employment with Zebra Instruments, Inc. [C.R. 62]. Thus, the
Exhibit raises more than a scintilla of evidence sufficient to raise
a fact issue regarding every challenged element raised in
Appellees’ Motion for No Evidence Summary Judgment. Jackson,
979 S.W.2d at 70–71. Again, Texas law has always emphasized
that trial courts must not weigh the evidence at the summary
judgment stage. Instead, a trial court’s only duty at the summary
judgment stage is to determine if a material question of fact exists.
Huckabee v. Time Warner, 19 S.W.3d at 422.
4. Exhibit C
Exhibit C definitively demonstrates that Zebra Industries,
Inc. was the employer which received a citation for violations
described thusly: “on September 26, 2012, an employee operating
one of the [crimping] tools had their right index finger crushed by
16
the ram up to the top of the nail, breaking the bones, but not
resulting in amputation.” [67, 76, 81]. This document at the least
raises more than a scintilla of evidence regarding the three
specific elements challenged by Appellees in their Motion for No
Evidence Summary Judgment. Huckabee v. Time Warner, 19 S.W.3d
at 422; Jackson, 979 S.W.2d at 70–71. Under the proper standard,
a trial court’s only duty at the summary judgment stage is to
determine if a material question of fact exists. Huckabee v. Time
Warner, 19 S.W.3d at 422.
In considering all the evidence in the light most favorable to
Galvan and disregarding all contrary evidence and inferences, see
Merrell Dow Pharmaceuticals v. Havner, 953 S.W.2d at 711, the trial
court improperly granted Appellees’ Summary Judgment Motion,
as Galvan presented more than a scintilla of probative evidence
to raise a genuine issue of material fact. Jackson, 979 S.W.2d at
70–71. The trial court erred in granting Appellees’ Motion for No
Evidence Summary Judgment.
PRAYER
17
PREMISES CONSIDERED, Galvan respectfully requests
that this Court sustain the points of error in this brief and that this
Court reverse the trial court’s judgment in this case and remand
to the trial court for proceedings consistent with the opinion.
Respectfully submitted,
/s/ Scott Ogle
Scott Ogle
TBN: 00797170
Law Office of Scott P. Ogle
2028 Ben White Blvd.
Austin, TX 78704
Phone: (512) 442-8833
Fax: (512) 442-3256
soglelaw@peoplepc.com
Attorney for Appellant
Dolores Galvan
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4 of the Texas Rules of Appellate
Procedure, I certify that this document was computer-generated
using Corel WordPerfect and is printed in a standard font using
14-point type. I certify that the word count for the portion of this
filing included by Rule 9.4(i)(1) of the Texas Rules of Appellate
Procedure is 3,253.
/s/ Scott Ogle
Scott Ogle
18
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the Appellees listed
below pursuant to Rule 9.5(b)(1) of the Texas Rules of Appellate
Procedure through the electronic filing manager, as opposing
counsel’s email address is on file with the electronic filing
manager, on this 7th day of December , 2015.
/s/ Scott Ogle
Scott Ogle
Christopher Stanley
Law Office of Sneed, Vine & Perry
1104 South Rock Street
Georgetown, Texas 78726
19
APPENDIX
20
APPENDIX TABLE OF CONTENTS
TAB DESCRIPTION
A Trial Court Judgment
B Defendant’s No Evidence Motion for Summary Judgment
C Plaintiff’s Response to Defendant’s No Evidence Motion for
Summary Judgment
D Text of Tex. R. App. P. 44.1(a)(1)
E Text of Tex. R. Evid. 803(8)(A)(iii)
F Text of Tex. R. Evid. 901(a), (b)(7)
G Text of Tex. R. Evid. 902(1), (5)
EXHIBIT A
89
EXHIBIT B
Filed: 5/4/2015 3:14:35 PM
Nancy E. Rister, County Clerk
Williamson County, Texas
By: Anita Wiseman, Deputy Clerk
39
40
41
42
EXHIBIT C
Filed: 6/10/2015 3:28:54 PM
Nancy E. Rister, County Clerk
Williamson County, Texas
By: Anita Wiseman, Deputy Clerk
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
EXHIBIT D
Text of Tex. R. App. P. 44.1(a)(1)
(a) Standard for Reversible Error. No judgment may be reversed on appeal on
the ground that the trial court made an error of law unless the court of
appeals concludes that the error complained of:
(1) probably caused the rendition of an improper judgment; or
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EXHIBIT E
Text of Tex. R. Evid. 803(8)(A)(iii)
The following are not excluded by the rule against hearsay, regardless of
whether the declarant is available as a witness:
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(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(iii) in a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation; and
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EXHIBIT F
Text of Tex. R. Evid. 901(a), (b)(7)
(a) In General. To satisfy the requirement of authenticating or identifying an
item of evidence, the proponent must produce evidence sufficient to support
a finding that the item is what the proponent claims it is.
(b) Examples. The following are examples only--not a complete list--of
evidence that satisfies the requirement:
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(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law;
or
(B) a purported public record or statement is from the office where items of
this kind are kept.
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EXHIBIT G
Text of Tex. R. Evid. 902(1), (5)
The following items of evidence are self-authenticating; they require no
extrinsic evidence of authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed. A document that
bears:
(A) a seal purporting to be that of the United States; any state, district,
commonwealth, territory, or insular possession of the United States; the
former Panama Canal Zone; the Trust Territory of the Pacific Islands; a
political subdivision of any of these entities; or a department, agency, or
officer of any entity named above; and
(B) a signature purporting to be an execution or attestation.
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(5) Official Publications. A book, pamphlet, or other publication purporting
to be issued by a public authority.
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