                                                                        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




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APPENDIX




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              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
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EXHIBIT B
Filed: 5/4/2015 3:14:35 PM
Nancy E. Rister, County Clerk
Williamson County, Texas
By: Anita Wiseman, Deputy Clerk




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EXHIBIT C
Filed: 6/10/2015 3:28:54 PM
Nancy E. Rister, County Clerk
Williamson County, Texas
By: Anita Wiseman, Deputy Clerk




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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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