Kuester v. Green

ACCEPTED
03-13-00704-cv
1379609
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/28/2014 2:22:14 PM
JEFFREY D. KYLE
CLERK
NO. 03-13-00704-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
THIRD DISTRICT OF TEXAS 5/28/2014 2:22:14 PM
AT AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
KAREN KUESTER,
Appellant
V.
IVOR GREEN,
Appellee
ON APPEAL FROM THE 200TH DISTRICT COURT

TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. D-l-FM-12-006430
HONORABLE PAUL DAVIS, PRESIDING JUDGE
BRIEF OF APPELLEE
James G. Ruiz Carly Gallagher

State Bar No. 17385860 State Bar No. 24062733
iruiz@winstead.com carly@carlylaw.com
WLNSTEAD PC LAW OFFICE OF CARLY GALLAGHER
401 Congress Ave., Suite 2100 9600 Great Hills Trail, Suite 150W
Austin, Texas 78701 Austin, Texas 78759
(512)370-2800; (512) 633-2204
(512) 370-2850 (facsimile) (512) 597-3329 -Fax
ATTORNEYS FOR APPELLEE
ORAL ARGUMENT REQUESTED

IDENTITIES OF PARTIES AND COUNSEL
The following is a complete list of the names of all parties affected by the
trial court's Order on Respondent's Motion for Summary Judgment on Common
Law Marriage Claim and their trial and appellate counsel:
APPELLANT:
Karen Kuester
TRIAL & APPELLATE COUNSEL:
Matthew A. Tiffee
LAW OFFICE OF MATTHEW A. TIFFEE
806 West 10th Street, Suite A
Austin, Texas 78701
(512)219-4056
(512) 298-1251-Fax
APPELLEE:
IVOR GREEN
TRIAL & APPELLATE COUNSEL:
James G. Ruiz
WINSTEAD PC
401 Congress Ave., Suite 2100
Austin, Texas 78701
(512)370-2800
(512)370-2850 -Fax
Carly Gallagher
LAW OFFICE OF CARLY GALLAGHER
9600 Great Hills Trail, Suite 150W
Austin, Texas 78759
(512) 633-2204
(512) 597-3329-Fax
ii
STATEMENT REQUESTING ORAL ARGUMENT
Appellee
Appellee herein
herein requests
requests the
the Court
Court grant
grant oral
oral argument
argument on
on the
the appeal
appeal of
of this
this matter.
iii
Ill
STATEMENT OF THE CASE
Nature of the Case: Green prevailed on his traditional summary judgment

motion on Kuester's common law marriage claim that was
filed over two years after the parties ended their relationship
and ceased living together. Green introduced summary
judgment evidence to negate each of the three essential
elements of a common law marriage claim. Kuester,
however, has chosen to challenge the trial court's summary
judgment solely on no evidence grounds.
Trial Court: The Honorable Paul Davis, Presiding Judge for the 200th
Judicial District Court of Travis County, Texas.
Trial Court
Disposition: The trial court entered its Order on Respondent's Motion for
Summary Judgment on Common Law Marriage Claim.
Parties in the
Court of Appeals'. Appellant - Karen Kuester
Appellee - Ivor Green
iv
TABLE OF CONTENTS
Page
IDENTITIES OF PARTIES AND COUNSEL . II
STATEMENT REQUESTING ORAL ARGUMENT Ill
STATEMENT OF THE CASE IV
BRIEF OF APPELLEE 1
INTRODUCTION 1
ISSUES PRESENTED 2
STATEMENT OF FACTS 3
SUMMARY OF ARGUMENT 7
ARGUMENT 8
I. STANDARD OF REVIEW 8
II. KUESTER WAIVED HER RIGHT TO CHALLENGE THE

SUMMARY JUDGMENT ON THE GROUNDS ASSERTED IN THE
TRADITIONAL MOTION FOR SUMMARY JUDGMENT 10
A. KUESTER FAILED TO RAISE AN ISSUE ON APPEAL

COVERING TRIAL COURT'S GRANT OF SUMMARY
JUDGMENT BASED ON GREEN NEGATING AT LEAST
ONE ELEMENT OF HER COMMON LAW MARRIAGE
CLAIM 10
B. KUESTER CHALLENGED THE TRIAL COURT'S

SUMMARY JUDGMENT IN HER BRIEF SOLELY ON NO
EVIDENCE GROUNDS 13
1. No Evidence Summary Judgment 13
2. Traditional Summary Judgment 13
v
3. Kuester did not challenge the Trial Court's grant of a
summary judgment on traditional grounds, choosing
instead to attack its manufactured straw man argument
based on a no evidence grounds 14
III. TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT

BECAUSE GREEN NEGATED AT LEAST ONE OF THE
ESSENTIAL ELEMENTS OF A COMMON LAW MARRIAGE 15
A. KUESTER FAILED TO OVERCOME THE STATUTORY

REBUTTABLE PRESUMPTION THAT THERE WAS NO
AGREEMENT TO BE MARRIED BETWEEN THE PARTIES 16
1. Summary judgment evidence established Kuester and

Green only agreed to present cohabitation and future
marriage which is insufficient to support a claim of
marriage as a matter of law 18
2. Kuester repeatedly admitted she was not married and held

herself out as "Single" during the entire period of time she
and Green were living together 21
B. GREEN NEGATED THE SECOND ELEMENT OF A

COMMON LAW MARRIAGE CLAIM THAT THE PARTIES
LIVE TOGETHER AS HUSBAND AND WIFE IN TEXAS
AND KUESTER DID NOT CHALLENGE THIS ELEMENT 24
C. GREEN NEGATED THE THIRD ELEMENT OF A COMMON

LAW MARRIAGE THAT THE PARTIES REPRESENTED TO
OTHERS THEY WERE MARRIED AND KUESTER COULD
NOT INTRODUCE ANY TESTIMONY FROM A THIRD
PARTY OR OTHER COMPETENT EVIDENCE TO SHOW
OTHERWISE 25
IV. TRIAL COURT PROPERLY EXCLUDED HEARSAY AND OTHER

INCOMPETENT AND UNTRUSTWORTHY EVIDENCE FROM
THE SUMMARY JUDGMENT EVIDENTIARY RECORD 27
A. KUESTER'S AFFIDAVIT TESTIMONY CONCERNING

STATEMENTS BY FAMILY MEMBERS 31
B. KUESTER'S AFFIDAVIT TESTIMONY CONCERNING

ALLEGED STATEMENTS BY OTHERS 32
vi
C. ARCHITECTURAL BLUEPRINTS 34
CONCLUSION 36
PRAYER 37
CERTIFICATE OF SERVICE 38
CERTIFICATE OF COMPLIANCE 39
vii
TABLE OF AUTHORITIES
Page(s)
CASES
Aguillera v. John G. & Marie Stella Kenedy Mem 7 Found.,

162 S.W.3d 689 (Tex.App.- Corpus Christi 2005, pet. denied) 41,42
Amaye v. Oravetz,
57 S.W.3d 581 (Tex. App.- Houston [14th Dist.] 2001, pet. denied.) 28
Grace v. C olorito,
4 S.W.3d 765 (Tex.App.-Austin 1999, pet. denied) 23,25
Burleson v. Fi nley,
581 S.W.2d 304 (Tex.Civ.App.-Austin 1979, writ ref d n.r.e.) 46
Caffe Ribs, Inc. v. St ate,

328 S.W.3d 919 (Tex.App.- Houston [14th Dist.] 2010, no pet.) 39
Cathay v. Booth,
900 S.W.2d 339 (Tex. 1995) 23, 25
Chandler v. Chandler,
842 S.W.2d 829 (Tex.App.-El Paso 1992, no writ) 46
Cimarron Ins. Co. v. Pr ice,

409 S.W.2d 601 (Tex.App.-Austin 1966, writ ref. n.r.e.) 27
Cincinnati Life Ins. Co. v. C ates,

927 S.W.2d 623 (Tex. 1996) 19
City of Brownsville v. Al varado,

897 S.W.2d 750 (Tex. 1995) 20, 38
Collora v. Navarro,
574 S.W.2d 65 (Tex. 1978) 38
Cove Investments, Inc. v. M anges,

602 S.W.2d 512 (Tex. 1980) 23
Dalworth Trucking Co. v. Bu len,

924 S.W.2d 728 (Tex.App.-Texarkana 1996, no writ) 20,38
viii
Dingman v. Spengler,
371 S.W.2d 416 (Tex.Civ.App.- El Paso 1963, writ ref d n.r.e.) 41,45
Donaldson v. Bu rr,
86 S.W.3d 718 (Tex.App.-Houston [1st Dist.] 2002, no pet.) 20
Dow Chem. Co. v. F rancis,

46 S.W.3d 237 (Tex. 2001) 19
Eris v. P hares,
39 S.W.3d 708 (Tex. App.- Houston [1st Dist.] 2001, pet. denied) 26, 28, 37
Fairfield Fin. Group, Inc. v. Synnott,

300 S.W.3d 316 (Tex.App.-Austin 209, no pet.) 38
Garduno v. G arduno,
760 S.W.2d 735 (Tex.App.- Corpus Christi 1988, no writ) 32
General Motors Corp. v. Saenz,

873 S.W.2d 353 (Tex. 1993) 27,28
Howell v. M auzy,
899 S.W.2d 690 (Tex.App.-Austin 1994, writ denied) 23
In re Glasco,
619 S.W.2d 567 (Tex.App.- San Antonio 1981, no writ) 38
Isbell v. R yan,
983 S.W.2d 335 (Tex. App.—Houston [14th Dist.] 1998, no pet.) 24
Jacobs v. Sa tterwhite,
65 S.W.3d 653 (Tex. 2001) 21, 35
Joplin v. Borusheski,
244 S.W.3d 607 (Tex. App- Dallas 2008, no pet.) 26,27
Jordan v. Jo hnson,
155 S.W. 1194 (Tex.Civ.App.-Ft Worth 1913, no writ) 46
Leal v. M oreno,
733 S.W.2d 322 (Tex.App.-Corpus Christi 1987, no writ) 28
Lehrer v. Zwernemann,
14 S.W.3d 775 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) 24
ix
Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572 (Tex. 2006) 20
Malooly Bros., Inc. v. Na pier,

461 S.W.2d 119 (Tex. 1970) 23
Matter of Giessel,
734 S.W.2d 27 (Tex.App.-Houston [1st Dist.] 1987, writ ref d n.r.e.) 36
McCraw v. M aris,
828 S.W.2d 756 (Tex. 1992) 20
Mid-Century Ins. v. Ademaj,

243 S.W.3d 618 (Tex. 2007) 19
North Texas Lumber Co. v. K aspar,

415 S.W.2d 470 (Tex.Civ.App.-Dallas 1967, writ ref. n.r.e.) 45
Owens-Corning Fiberglass Corp. v. M alone,

972 S.W.2d 35 (Tex. 1998) 20, 39
Pena v. State Farm Lloyds,

980 S.W.2d 949 (Tex.App.-Corpus Christi 1998, no pet.) 26
Perez v. Embree Const. Group, Inc.

228 S.W.3d 875 (Tex. App.-Austin 2007, pet denied.) 39
Regency Advantage Ltd. Partnership v. B ingo Idea-Watauga, Inc.,

928 S.W.2d 56 (Tex.App.-Ft. Worth 1995) affirmed in part, reversed in
part on other grounds, 936 S.W.2d 275 (Tex. 1996) 40
Ruizv. Government Employees Ins. Co.,

4 S.W.3d 838 (Tex. App.—El Paso 1999, no pet.) 24
Russell v. Ru ssell,
865 S.W.2d 929 (Tex. 1993) 26
Shepherd v. Le dford,
962 S.W.2d 28 (Tex. 1998) 26
Sterner v. M arathon Oil Co.,

767 S.W.2d 686 (Tex. 1989) 21
x
Sudduthv. Commonwealth County Mutual Ins. Co.,
454 S.W.2d 196 (Tex. 1970) 27
Temple I.S.D. v. En glish,

896 S.W.2d 167 (Tex. 1995) 27
Tex. Dept. of Transportation v. City of Sunset Valley,

146 S.W.3d 637 (Tex. 2004) 21
Texas Employers' Ins. Ass 'n v. Borum,

834 S.W.2d 395 (Tex. App.-San Antonio 1992, writ denied) 31
Tompkins v. S tate,
774 S.W.2d 195 (Tex. Crim. App. 1987) 28, 35, 37
Unifund CCR Partners v. Vi lla,

299 S.W.3d 92 (Tex. 2009) (per curiam) 39
Volkswagen of America v. Ramirez,

159 S.W.3d 897 (Tex. 2004) 42
Waffle House, Inc. v. Williams,

313 S.W.3d 796 (Tex. 2010) 39
Winfield v. Ren fro,

821 S.W.2d 640,645 (Tex.App.-Houston [1st Dist.] 1991, writ denied)
36, 37, 38
STATUTES
TEX. FAM. CODE ANN. §2.401(a)(2) (Vernon 2012) 26,27
TEX. FAM. CODE ANN. §2.401(b) (Vernon 2012) 12,27
OTHER AUTHORITIES
TEX. R. APP. P. 38.1(e) 21
TEX. R. CIV. P. 166a(c) 25
Tex. R. Evid. 801 (d) 41
xi
NO. 03-13-00704-CV
IN THE COURT OF APPEALS FOR THE

THIRD DISTRICT OF TEXAS
AT AUSTIN, TEXAS
KAREN KUESTER,
Appellant
V.
IVOR GREEN,
Appellee

BRIEF OF APPELLEE
Ivor Green ("Green"), Appellee, submits his Brief of Appellee in response to
the Appellant's Brief filed by Karen Kuester ("Kuester").
INTRODUCTION
Under §2.401(b), TEX. FAM. CODE ANN., a rebuttable presumption exists in
this case that the parties did not enter into an agreement to be married because over
two years past after the parties no longer lived together before Kuester filed her
suit claiming a common law marriage. Kuester and Green ended their relationship
and ceased living together by May of 2010. Kuester did not file a suit for divorce
1
alleging for the first time that she and Green were married under common law until
November 14, 2012. The trial court granted Green's traditional motion for
summary judgment on the common law marriage claim without identifying the
grounds relied upon in granting the motion.
Kuester challenges the summary judgment in this appeal by attempting to
create a straw man argument premised on a no evidence motion for summary
judgment that was not considered by the trial court, and attacking the trial court's
summary judgment on no evidence grounds. Because Kuester failed to challenge
the summary judgment on every possible ground upon which the trial court could
have based its summary judgment in Appellant's Brief, the law is clear that the
Court should affirm the trial court's summary judgment.
ISSUES PRESENTED
1. WHETHER KUESTER WAIVED HER RIGHT TO CHALLENGE THE

TRIAL COURT'S GRANT OF A TRADITIONAL SUMMARY
JUDGMENT BECAUSE THE ONLY ISSUE RAISED AND HER
BRIEFING ON APPEAL ADDRESSES SOLELY NO EVIDENCE
GROUNDS.
2. WHETHER THE TRIAL COURT PROPERLY GRANTED A

TRADITIONAL SUMMARY JUDGMENT IN FAVOR OF GREEN THAT
NO COMMON LAW MARRIAGE EXISTED BETWEEN HIM AND
KUESTER.
3. WHETHER TRIAL COURT'S EXCLUSION OF HEARSAY OR

OTHERWISE INCOMPETENT SUMMARY JUDGMENT EVIDENCE
WAS JUSTIFIED OR HARMLESS.
2
STATEMENT OF FACTS
Green is dissatisfied with the Statement of Facts set out in Appellant's Brief
and submits the following Statement of Facts supported by the record in this
appeal.
Kuester and Green began dating on June 6, 2001. [C.R. 108]. Kuester ended
the relationship in early 2002 because she did not feel Green would ever marry her.
[C.R. 108-110].
In late 2002, Green told Kuester he wanted to get back together. [C.R. 110].
During that conversation, Kuester claims Green told her he would take care of her
for "the rest of her life," and that they were to be married and buy a house together
sometime in the future. [C.R. 110].
On April 1, 2004, Kuester was no longer able to work at Dell because of a
claimed disability. [Appendix B at 1]. After a year had past and the promises
Green allegedly made to her in 2002 were still unrealized, Kuester agreed to move
in with Green. [C.R. 110].
On April 24, 2004, Kuester moved in with Green at his residence in Austin,
Texas. [C.R. 16] After moving in with Green, Kuester sold her home on May 26,
2004, indicating she was an unmarried individual. [C.R. 88]. The parties did not
buy a house together as allegedly promised in late 2002.
Within four months of Kuester moving into his residence, Green executed a
First Amended and Restated Trust Agreement as settlor that contained some
3
provisions making clear there was no agreement to be married as of that date. [C.R.
9-50]. The Trust Agreement expressly provides as follows:
"1.4. KAREN. "KAREN" means KAREN KUESTER. For the

purposes of this Trust Agreement, Settlor and KAREN shall not be
considered married, formally or informally, unless they are formally
married after the issuance of a wedding license and pursuant to a
formal wedding ceremony conducted by an authorized person
pursuant to the laws of any applicable jurisdiction."
[C.R. 22].
The Trust Agreement provided for Kuester in differing ways depending on whether
the parties eventually were married, or if the parties remained unmarried but still
were living together. [C.R. 25].
The parties did not participate in a formal wedding ceremony, no marriage
license was ever issued to them, and they were not formally married under the laws
of Texas. [C.R. 17].
Throughout the period of time in which she was living with Green, Kuester
designated her filing status on her IRS income tax returns as "Single" for the years
2004, 2007-2010. [C.R. 78-84].
In November of 2006, Kuester sought legal counsel to draft a prenuptial
agreement for her and Green and to explain her rights as a "domestic partner" in
case Green "gets cold feet." [C.R. 93]. The parties did not agree to marry so no
further action was taken with respect to the prenuptial agreement. [C.R. 17].
On May 27, 2007, Kuester signed her Last Will and Testament stating that
she was "not married." [C.R. 51-55].
4
On September 24, 2009, Kuester purchased a home in her individual name
alone. [C.R. 91]. Kuester amended her 2009 income tax return to claim a First
Time Home Buyer's Credit in connection with the purchase of her current
homestead property on September 24, 2009, and again designated her filing status
as "Single." [C.R. 83].
The parties ceased living together on May 22, 2010. [C.R. 16]. The Austin
Police were required to go to Green's residence on the day Kuester was moving
out of Green's house because Kuester "accidently discharged" a .38 revolver in his
house. [Appendix A at 14]1. At the time of the incident, Kuester told police she
was separating from her "life partner" and was having a hard time dealing with
their break up. [Appendix A at 21].
Later that year, on October 13, 2010, Kuester submitted an application to the
Social Security Administration under the penalty of perjury wherein she stated:
"I NEVER MARRIED OR I HAD NO PREVIOUS MARRIAGES

THAT LASTED 10 YEARS OR MORE OR ENDED IN DEATH."
In the application Kuester expressly acknowledged and affirmed:
"I know that anyone who makes or causes to be made a false

statement or representation of material fact in an application or for use
in a determining a right to payment under the Social Security Act
commits a crime punishable under Federal law by fine, imprisonment
1 Appellee has requested that the District Clerk Supplement the Clerk's Record to include
Respondent's Reply in Support of Motion for Summary Judgment on Common Law Marriage
Claim, filed on June 10, 2013 (attached hereto as Appendix A) and Exhibit C-6 of
Respondent's Motion for Summary Judgment on Common Law Marriage Claim (attached
hereto as Appendix B) which were omitted from the Clerk's Record.
5
or both. I affirm that all information I have given in connection with
this claim is true."
[Appendix B at 1].
On July 25, 2011, Kuester changed her Last Will and Testament to remove
Green as a beneficiary, and again stated that she was "not married" in her Will.
[C.R. 56]. Kuester changed her Last Will and Testament yet again three months
later, but she still maintained she was "not married' in her Will. [C.R. 69].
On November 29, 2011, Kuester writes Green to tell him she intends to keep
the jewelry he gave her, including the "we are not going to get married" ring.
[Appendix A at 7].
In May and June of 2012, Kuester completed Registration and Medical
Information forms for healthcare providers wherein she continued to identify her
marital status as "Single." [C.R. 86-87].
On November 14, 2012, Kuester filed her "Original Petition for Divorce and
Independent Causes of Action" claiming she has been married to Green since
2004. [C.R. 184].
On April 29, 2013, Green filed Respondent's Motion for Summary
Judgment on Common Law Marriage Claim on the grounds that the undisputed
summary judgment evidence establishes that (i) the parties did not agree to be
married; (ii) the parties did not live together in Texas as husband and wife; and
(iii) the parties did not represent to others they were married. [C.R. 6-93].
6
On June 13, 2013, the trial court granted a traditional summary judgment in
favor of Green on Kuester's common law marriage claim and dismissed her suit
for divorce. [C.R. 175].
On August 28, 2013, the trial court entered its Order Granting Severance,
severing all claims not governed by the Texas Family Code into a separate cause of
action. [C.R. 180-181].
On September 24, 2013, Kuester filed her Notice of Appeal. [C.R. 182-183].
SUMMARY OF ARGUMENT
Green prevailed on his traditional summary judgment motion by negating at
least one of the elements of Kuester's common law marriage claim. Rather than
challenging the trial court's summary judgment on the traditional grounds on
which it is based, Kuester attempts to create a straw man argument premised on a
no evidence summary judgment motion and to attack the trial court's summary
judgment on that inapplicable basis. The trial court's summary judgment should be
affirmed because Kuester waived her right to challenge the judgment based on
traditional grounds.
In the alternative, the trial court's traditional summary judgment should be
affirmed because Kuester failed to overcome the statutory presumption that she
and Green had no agreement to be married, and Green successfully negated at least
one element of Kuester's common law marriage claim. Kuester was unable to
introduce any testimony or other competent summary judgment evidence to
7
support a claim that anyone other than herself believed she and Green were
married. No family member, friend, colleague or neighbor came forward to testify
that Kuester and Green were married, and the summary judgment evidentiary
record conclusively established there were not.
The trial court's summary judgment evidentiary rulings were correct with
respect to the email communications, blueprints, and the portions of Kuester's
affidavit testimony that were excluded because the evidence constituted hearsay,
and/or was untrustworthy or otherwise incompetent summary judgment evidence.
Further, Kuester failed to show how the excluded evidence, if erroneously
excluded, probably caused the rendition of an improper judgment; particularly
when her appeal is based on the wrong grounds. For such reasons, the trial court's
traditional summary judgment should be affirmed.
ARGUMENT
I. STANDARD OF REVIEW
A traditional motion for summary judgment is reviewed on appeal de novo.
Mid-Century Ins. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). Where, as here,
the judgment does not identify the grounds relied upon in granting Green's motion
for summary judgment, this Court may review and affirm on any ground the
movant presented to the trial court in the motion for summary judgment. Dow
Chem. Co. v. F rancis, 46 S.W.3d 237, 242 (Tex. 2001); Cincinnati Life Ins. Co. v.
Cates, 927 S.W.2d 623, 625 (Tex. 1996).The Court reviews the evidence presented
8
by the motion and response in the light most favorable to the party against whom
summary judgment was rendered, crediting evidence to the party if a reasonable
jury could, and disregarding contrary evidence unless a reasonable jury could not.
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
The trial court's decisions concerning the admissibility of evidence is
subject to an abuse of discretion standard of review. Dalworth Trucking Co. v.
Bulen, 924 S.W.2d 728, 735 (Tex.App.-Texarkana 1996, no writ). A trial court
abuses its discretion if it rules without regard for guiding rules or principles. City of
Brownsville v. A lvarado, 897 S.W.2d 750, 753 (Tex. 1995). The Court will uphold
the trial court's evidentiary rulings if there is any legitimate basis for the ruling.
Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). In
other words, a trial court does not abuse its discretion in excluding evidence if it
reaches the right result for the wrong reason. Donaldson v. Burr, 86 S.W.3d 718,
720 (Tex.App.-Houston [1st Dist.] 2002, no pet.).
A trial court's improper admission or exclusion of evidence is reversible
error only if the error probably resulted in an improper judgment. McCraw v.
Maris, 828 S.W.2d 756, 757 (Tex. 1992). Rulings in which excluded evidence was
harmless include cases where the excluded evidence did not bear on the issues in
the case, was immaterial, was unfavorable to the complaining party, or was
inadmissible. If error is found, courts review the entire record to determine if the
exclusion of evidence probably resulted in an improper judgment. Id.
9
II. KUESTER WAIVED HER RIGHT TO CHALLENGE THE SUMMARY
JUDGMENT ON THE GROUNDS ASSERTED IN THE TRADITIONAL
MOTION FOR SUMMARY JUDGMENT.
A. KUESTER FAILED TO RAISE AN ISSUE ON APPEAL

COVERING TRIAL COURT'S GRANT OF SUMMARY
JUDGMENT BASED ON GREEN NEGATING AT LEAST ONE
ELEMENT OF HER COMMON LAW MARRIAGE CLAIM.
The Court can affirm the summary judgment at issue in this case simply
because Kuester failed to challenge all of the possible grounds on which the trial
court could have based its summary judgment. It is well established that grounds
or error not asserted by points of error or argument in the court of appeals are
waived. See Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001); citing San
Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-10 (Tex. 1990). The courts
liberally construe points of error in order to obtain a just, fair, and equitable
adjudication of the rights of the litigants. Sterner v. Marathon Oil Co., 161 S.W.2d
686, 690 (Tex. 1989). The statement of an issue or point will be treated as covering
every subsidiary question that is fairly included." TEX. R . APP. P . 38.1(e). Even
though a specific point on appeal may not be recited within the statement of the
issue presented, that point is not waived if it is raised in the body of the brief. See
Tex. Dept. of Transportation v. City of Sunset Valley, 146 S.W.3d 637, 642 n.l
(Tex. 2004). Kuester did not challenge the trial court's summary judgment in her
brief on traditional grounds, choosing instead to pursue only no evidence grounds.
10
Kuester's stated issues on appeal are:
1. The trial court erred when granting Green's no evidence motion

for summary judgment as Kuester showed a genuine issue of
material fact.
2. The trial court erred by sustaining in part Green's objections to

portions of evidence offered by Kuester in her response to
Green's motion for summary judgment as statements were not
hearsay or otherwise fell under an exception and because the
personal knowledge objections were not tenable.
Appellant's Brief at 8. Contrary to Kuester's assertion, Respondent's Motion for
Summary Judgment on Common Law Marriage Claim was not a no evidence
motion for summary judgment. Green filed a traditional summary judgment motion
and moved for summary judgment on the grounds that the undisputed summary
judgment evidence established:
(i) the parties did not agree to be married;

(ii) the parties did not live together in Texas as husband and wife; and
(iii) the parties did not represent to others they were married. [C.R. 7].
Green's summary judgment grounds were bolstered by a legal presumption that the
parties were not married because Kuester did not bring the suit before the second
anniversary of when she and Green ended their relationship, separated, and ceased
living together. [C.R. 7].
The trial court's summary judgment ruling states:
Having considered the Motion, Petitioner's Response thereto, the

argument of counsel and the summary judgment evidentiary record,
the Court, noting that a statutory rebuttable presumption exists that the
parties were not married, finds that the Motion for Summary
Judgment on the Common Law Marriage should be granted.
11
* * *
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the

Respondent's Motion for Summary Judgment on the Common Law
Marriage Claim is granted and the Petitioner's suit for divorce is
hereby dismissed. [C.R. 175].
When there are multiple grounds stated for a summary judgment and the order
does not specify the ground on which summary judgment was granted, the
appellate court will affirm the judgment if there is any ground raised in the motion
that will support summary judgment. Howell v. Mauzy, 899 S.W.2d 690, 701
(Tex.App.-Austin 1994, writ denied). Green is entitled to a summary judgment if
he negated at least one essential element of Kuester's common law marriage claim.
Cathay v. B ooth, 900 S.W.2d 339, 341 (Tex. 1995).
If any ground raised in the motion is not attacked by issue or point of error
in the appellant's brief, the summary judgment will be affirmed on that ground.
SQQ Ma looly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); accord, Cove
Investments, Inc. v. Manges, 602 S.W.2d 512, 517 (Tex. 1980); and Grace v.
Colorito, 4 S.W.3d 765, 768 (Tex.App.-Austin 1999, pet. denied)(Where an
appellant from a summary judgment does not successfully attack every possible
ground upon which the lower court could have based its summary judgment, the
summary judgment must be affirmed). Because Kuester only attacked the summary
judgment in her brief on a no evidence ground, and not on the traditional summary
judgment grounds on which the motion was based, the trial court's summary
judgment can be affirmed on that ground alone.
12
B. KUESTER CHALLENGED THE TRIAL COURT'S SUMMARY
JUDGMENT IN HER BRIEF SOLELY ON NO EVIDENCE
GROUNDS.
The granting of a no evidence motion for summary judgment is distinct from
a traditional motion for summary judgment and is subject to a different burden of
proof and standard of review.
1. No EVIDENCE SUMMARY JUDGMENT.
Under a no evidence summary judgment motion, the movant does not have
the burden to produce evidence; the party with the burden of proof at trial has the
burden of proof in the summary judgment proceeding. See Lehrer v. Z wernemann,
14 S.W.3d 775, 111 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). A no
evidence summary judgment motion is properly granted if the respondent brings
forth no more than a scintilla of probative evidence to raise a genuine issue of
material fact. See Ruiz v. Government Employees Ins. Co., 4 S.W.3d 838, 840
(Tex. App.—El Paso 1999, no pet.); Isbell v. Ryan, 983 S.W.2d 335, 338 (Tex.
App.—Houston [14th Dist.] 1998, no pet.). Kuester argues that the trial court's
judgment should be reversed because she "presented a scintilla of evidence as to
each of the elements of common law marriage. Appellant's Brief at 25.
2. TRADITIONAL SUMMARY JUDGMENT.
A traditional summary judgment on the other hand is proper when the
pleadings, depositions, admissions and affidavits show that there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a
13
matter of law. See TEX. R. Civ. P. 166a(c). A defendant who conclusively negates
at least one of the essential elements of each of the plaintiffs causes of action, or
who conclusively establishes all of the elements of an affirmative defense, is
entitled to summary judgment. Cathay v. Bo oth, 900 S.W.2d 339, 341 (Tex. 1995).
Green moved for summary judgment on the grounds that he negated each of the
three essential elements of a common law marriage. As a result, Kuester was
required to attack each ground raised in Green's motion. Otherwise, the trial
court's judgment should be affirmed. Grace, 4 S.W.3d at 768.
3. KUESTER DID NOT CHALLENGE THE TRIAL COURT'S GRANT OF A

SUMMARY JUDGMENT ON TRADITIONAL GROUNDS, CHOOSING
INSTEAD TO ATTACK ITS MANUFACTURED STRAW MAN
ARGUMENT BASED ON A NO EVIDENCE GROUNDS.
Kuester attacked the trial court's summary judgment on no evidence grounds
and argues that the summary judgment should be reversed because she presented
"a scintilla of evidence as to each of the elements of common law marriage."
Appellant's Brief at 25. Kuester's reliance on the standard of review for a no
evidence summary judgment is misplaced. Green did not move for summary
judgment on the grounds there was no evidence to support a claim on common law
marriage, he moved for summary judgment on the grounds that the summary
judgment evidence conclusively negated at least one of the three elements
necessary to support a claim for a common law marriage.
14
Kuester failed to attack the summary judgment based on the grounds stated
in Green's motion. Therefore, Kuester waived her right to challenge the summary
judgment order on the traditional summary judgment grounds set out in the
Green's dispositive motion. See Pena v. S tate Farm Lloyds, 980 S.W.2d 949, 959
(Tex.App.-Corpus Christi 1998, no pet.). For such reason, the trial court's
summary judgment should be affirmed.
III. TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT

BECAUSE GREEN NEGATED AT LEAST ONE OF THE ESSENTIAL
ELEMENTS OF A COMMON LAW MARRIAGE.
Common law marriages have been recognized in Texas, but have been only
"grudgingly" accepted by courts. Shepherd v. Ledford, 962 S.W.2d 28, 31 (Tex.
1998); Russell v. R ussell, 865 S.W.2d 929, 931 (Tex. 1993). In Texas, a common
law marriage requires proof of three essential elements:
(1) a man and woman agreed to be married;
(2) they lived together in Texas as husband and wife; and
(3) they represented to others they were married.
TEX. FAM. CODE ANN. §2.401(a)(2) (Vernon 2012); Joplin v. Borusheski, 244
S.W.3d 607, 610 (Tex. App- Dallas 2008, no pet.). All three elements must be
present at the same time and the absence of any one defeats a claim for informal
marriage. See Eris v. Phares, 39 S.W.3d 708, 713 (Tex. App.- Houston [1ST Dist.]
2001, pet. denied). Green negated each of the three elements.
15
A. KUESTER FAILED TO OVERCOME THE STATUTORY
REBUTTABLE PRESUMPTION THAT THERE WAS NO
AGREEMENT TO BE MARRIED BETWEEN THE PARTIES.
Kuester and Green ended their relationship and ceased living together in
May of 2010. [C.R. 17]. Kuester did not file her "Petition for Divorce" until
November 14, 2012, more than two years after the parties separated and ceased
living together. Texas law provides that if the proponent of the marriage does not
commence a proceeding to prove the marriage under §2.401(a)(2), TEX. FAM.
CODE ANN., within two years of the date on which the parties to the alleged
marriage separated and ceased living together, then there is a presumption the
parties did not enter into an agreement to be married. TEX. FAM CODE ANN.
§2.401(b); Joplin, 244 S.W.3d at 611.
A presumption is a rule of law requiring the fact finder to reach a particular
conclusion in the absence of evidence to the contrary. Temple I.S.D. v. English,
896 S.W.2d 167, 169 (Tex. 1995); Sudduth v. C ommonwealth County Mutual Ins.
Co., 454 S.W.2d 196, 198 (Tex. 1970). The effect of a rebuttable presumption is to
shift the burden of producing evidence to the party against whom it operates.
General Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1993). The
presumption vanishes only when positive evidence contrary to it is admitted.
Cimarron Ins. Co. v. Price, 409 S.W.2d 601, 607 (Tex.App.-Austin 1966, writ ref.
n.r.e.). But it is also true that the evidence that gave rise to the presumption in the
first place does not disappear but remains in evidence and will support any
16
inferences that may be properly be drawn therefrom. General Motors. 873 S.W.2d
at 359.
Because a statutory presumption exists that there was no agreement to be
married, Kuester was required to present more than a scintilla of evidence in order
to withstand summary judgment on the basis that she and Green did not agree to be
married. See Amaye v. Oravetz, 57 S.W.3d 581, 584 (Tex. App.- Houston [14th
Dist.] 2001, pet. denied.). Testimony of a witness that merely constitutes a
conclusion that a common law marriage exists is not sufficient, standing alone, to
establish a common law marriage. Tompkins v. S tate, 774 S.W.2d 195, 209 (Tex.
Crim. App. 1987). By her own admission, Kuester states that she only presented a
scintilla of evidence as to each element of a common law marriage claim.
Appellant's Brief at 25. Kuester failed to present sufficient evidence to overcome
the presumption that there was a present agreement between her and Green to be
married.
The law is clear that the parties must intend to create a present, immediate,
and permanent marital relationship - an intention to marry sometime in the future is
not enough - and they did in fact agree to be husband and wife. Eris, 39 S.W.3d at
714. The record in this case established that there was no such an agreement
between Kuester and Green. It is not sufficient to agree on present cohabitation and
future marriage; there must be a present agreement to be married. Leal v. Moreno,
733 S.W.2d 322, 323 (Tex.App.-Corpus Christi 1987, no writ).
17
1. SUMMARY JUDGMENT EVIDENCE ESTABLISHED KUESTER AND
GREEN O NLY A GREED T O PR ESENT C OHABITATION A ND FU TURE
MARRIAGE WHICH IS INSUFFICIENT TO SUPPORT A CLAIM OF
MARRIAGE AS A MATTER OF LAW.
The summary judgment record included the following response by Kuester
to an interrogatory seeking date of the claimed agreement to be married and the
words spoken or written indicating the assent to any such agreement:
INTERROGATORY NO. 1: Please describe, including but not limited to

identifying any documents supporting your responses, in detail what you
contend is the agreement to be married between you and Ivor Green by:
a. stating the date of the agreement;
b. stating any words spoken or written or in any way communicated

by you indicating either your assent as to the agreement or your
knowledge of the fact of the agreement;
c. stating any words spoken or written or in any way communicated

by Ivor Green indicating his assent to the agreement or his
knowledge of the fact of the agreement;
d. identifying any person that was told of the agreement and the
words that were said or written or in any way communicated by
them and by whom; and
e. as to any such person identified in (d), state any words spoken or

written or in any other way communicated by any such person
indicating such person's knowledge of the facts of the agreement.
ANSWER: Prior to moving in together, Ivor and I were in my home

having a conversation about getting married and about what he wanted.
Ivor and I discussed he would take care of me. Ivor said "I am going to
take care of you for the rest of your life. " During the conversation, Ivor
and I agreed that I would quit my job and sell my house. We also
agreed that I would give all of my belongings to his daughter, son-in-
law, and niece. We agreed that he would sell his house and we would
buy a home to live in together. Shortly thereafter, we got a real estate
18
agent, Russell Tam, and began looking at new houses for us to live in. I
can't remember the exact dates these events occurred. Ivor and I moved
in together in early 2004.(Emphasis added).[C.R. 73].
Glaringly missing from this interrogatory answer are words that show a present
agreement to be married. Also missing is the identity of any individual who was
told of the claimed agreement to be married. The only agreements between the
parties in that discussion were that: i) Kuester would quit her job, and sell her
house; ii) Kuester would give away her belongings; and iii) Green would sell his
house and he and she would buy a house together to live in. Kuester later clarified
the conversation occurred in late 2002. [C.R.108]. With respect to marriage itself,
the conversation was limited to a discussion about getting married in the future.
Kuester affidavit is replete with admissions and statements that she and
Green did not have a present agreement to be married in late 2002 when the
alleged conversation occurred, but only that Green allegedly promised that they
"were to be married" in the future. [C.R. 110]. Kuester argues that "Green made
explicit statements about marriage." Appellant's Brief at 18. The statements
identified by Kuester are as follows:
© I n late 2002, Ivor suddenly and without warning asked to meet me

outside of work.
• At our meeting, Ivor stated he wanted to get back together.
• Ivor made several promises.
• Our promises and agreements expressed during this conversation
included that we were to be married, and he further stated he would
take care of me for 'the rest of [my] life.'
19
[C.R. 110]. These statements do not constitute positive evidence of an agreement
to be married, but at best, are merely statements concerning an intention to marry
in the future.
To the extent Kuester tries to argue the 2002 conversation constituted a
present and immediate promise to be married at that time, in her Amended Petition,
Kuester alleges the marriage began "on or around April 24, 2004." [C.R. 166].
Kuester admitted the promises made in late 2002 were not realized over a year
later:
After a year past - logistical matters delayed things a bit - and at Ivor's
behest, Ivor and I agreed for me to move into the house he was living
in. Though we had not yet purchased our home together, I still
believed that we would. On April 24, 2004, I moved in with Ivor
leaving my previous home that I owned behind.
[C.R. 110].
The uncontroverted evidence established the parties did not agree to be married in
late 2002, when the alleged statements were made by Green, and the parties did not
have an agreement to be married eighteen months later when she moved into
Green's residence in 2004. Kuester can testify when she and Green started dating,
June 6, 2001, and the date she moved in with Green, April 24, 2004, but not the
date on which they supposedly agreed to be married. [C.R. 108 and 110]. This is
because the two did not agree to be married at any time.
An intention to marry at some point in the future is not enough to establish
an agreement to be married. See Texas Employers' Ins. Ass'n v. Borum, 834
20
S.W.2d 395, 399 n. 3 (Tex. App.-San Antonio 1992, writ denied). Green testified
that the parties never agreed to be married. [C.R. 17]. In fact, on August 26, 2004,
Green signed a revocable trust instrument wherein he expressly stated that he and
Kuester:
"shall not be considered married, formally or informally, unless

they are formally married after the issuance of a wedding
license and pursuant to a formal wedding ceremony conducted
by an authorized person pursuant to the laws of any applicable
jurisdiction." [C.R. 22].
The trust instrument created by Green in August of 2004 further establishes that
there was no intent to be married absent a formal wedding ceremony after a
marriage license was issued. The parties did not have a formal wedding ceremony
and did not have a wedding license issued at any time because they never agreed to
be married. [C.R. 17]. An agreement to be married cannot be implied contrary to
direct evidence which definitely shows that there was no such present agreement to
be married. Garduno v. Ga rduno, 760 S.W.2d 735, 739 (Tex.App.- Corpus Christi
1988, no writ).
2. KUESTER RE PEATEDLY AD MITTED SH E WAS NO T M ARRIED A ND

HELD H ERSELF OUT AS "SINGLE" DURING THE ENTIRE P ERIOD OF
TIME SHE AND GREEN WERE LIVING TOGETHER.
In addition, a myriad of documentary representations made by Kuester after
the date of the alleged promise in late 2002 that she and Green "were to be
married" further established that the marriage did not occur and she considered
herself to be a single person from the time she moved into Green's residence in
21
April 2004 through June 2012. [See Appendix C - Timeline]. The summary
judgment evidentiary record established that:
• On May 26, 2004, Kuester sold her property stating she is "an
unmarried person." [C.R. 88].
® In November of 2006, Kuester was seeking legal counsel to
draft up a prenuptial agreement for her and Green and to
explain her rights as a "domestic partner," in case Green "gets
cold feet." [C.R. 93].
• Kuester designated her filing status as "Single" in her income
tax returns for the years 2004, 2007-2010. [C.R.78-84].
• In her Last Will and Testament dated May 29, 2007, Kuester
states "at the time of the execution of this Will, I am not
married and have no children." [C.R. 51].
• In September of 2009, Kuester bought property in her name
alone. [C.R. 91-92].
• On May 22, 2010, Kuester told the Austin Police Officer who
was responding to a call after she discharged a firearm in
Green's residence that she and her "life partner" were going
through a separation. [Appendix A at 21].
• In her Last Will and Testament dated July 25, 2011, Kuester
again stated "at the time of the execution of this Will, I am not
married and I have no children." [C.R. 56].
• Kuester executed another Last Will and Testament on October
20, 2011, wherein she again reiterates she is unmarried and has
no children. [C.R. 63].
22
• On November 29, 2011, Kuester wrote Green to tell him she
was holding onto to the jewelry he gave her, including the "we
are not going to get married" ring from Lang's he gave her.
[Appendix A at 7].
® In addition, on October 13, 2010, Kuester submitted an
application to the Social Security Administration under the
penalty of perjury wherein she stated:
"I NEVER MARRIED OR I HAD NO PREVIOUS
MARRIAGES THAT LASTED 10 YEARS OR MORE OR
ENDED IN DEATH." [Appendix B at 1].
• Kuester continued to represent to her healthcare providers she

was single as late as June of 2012. [C.R. 86-87].
Kuester understood she was not married to Green and represented to her
doctors, the IRS and Social Security Administration, her legal counsel and the
witnesses to her Will, and to the police that she was not married. If Kuester
believed she was married in 2004 there is no explanation for her wanting a
prenuptial agreement drafted in November 2006, in anticipation of a future
marriage, and an explanation of her rights as a domestic partner in case Green gets
"cold feet." [C.R. 93]. A "domestic partnership" is a "nonmarital relationship
between two persons of the same or opposite sex who live together as a couple for
a significant period of time." Garner, BLACK'S L AW D ICTIONARY a t 558 (9th ed.
2009). Kuester identifying herself as not married from 2004 to 2012, two years
after her relationship with Green ended, constitutes direct evidence there was no
23
present agreement to be married in late 2002 or 2004, or any other time when she
was living with Green.
B. GREEN NEGATED THE SECOND ELEMENT OF A COMMON

LAW MARRIAGE CLAIM THAT THE PARTIES LIVE
TOGETHER AS HUSBAND AND WIFE IN TEXAS AND
KUESTER DID NOT CHALLENGE THIS ELEMENT.
Kuester, relying again on the wrong summary judgment standard (no
evidence standard) failed to argue how the trial court erred in granting a summary
judgment based on Green conclusively establishing he and Kuester did not live
together in Texas as husband and wife. Kuester does not raise this issue on appeal
and argue that there was a genuine issue of material fact whether Green and
Kuester lived together as husband and wife. Instead, the entirety of Kuester's
argument on this point consists of the following statement.
"In this case, the parties lived together beginning on or about January
of 2004 and continued so until their separation on or about May of
2010."
Appellant's Brief at 21. Kuester then states that the bulk of the evidence showing
the other two elements of a common law marriage, an agreement and of holding
out, occurred during that time period. Id. Living together as husband and wife is a
distinct element to a common law marriage claim and Kuester's failure to raise it
as an issue and to brief it constitutes a waiver of the issue on appeal. See Jacobs v.
Satterwhite, 65 S.W.3d at 655.
24
"Merely living together with a person of the opposite sex and having
intimate relations with that person do not establish, without more, the relationship
of husband and wife." Tompkins, 11A S.W.2d at 209. Rather, "the cohabitation
must be professedly as husband and wife, and public, so that by their conduct
towards each other they may be known as husband and wife." Matter of Giessel,
734 S.W.2d 27, 31 (Tex.App.-Houston [1st Dist.] 1987, writ refd n.r.e.). Kuester
did not introduce any competent summary judgment evidence to create a genuine
issue of material fact that her and Green's cohabitation was such that they were
living as husband and wife. Thus, Green negated this element of a common law
marriage and was justly entitled to a summary judgment on this ground alone.
C. GREEN NEGATED THE THIRD ELEMENT OF A COMMON

LAW MARRIAGE THAT THE PARTIES REPRESENTED TO
OTHERS THEY WERE MARRIED AND KUESTER COULD NOT
INTRODUCE ANY TESTIMONY FROM A THIRD PARTY OR
OTHER COMPETENT EVIDENCE TO SHOW OTHERWISE.
The summary judgment evidentiary record showed Green at no time held
himself out as married to Kuester. [C.R. 17]. It should not go unnoticed that
Kuester was unable to find a single person other than herself to support her claim
of a common law marriage. This fact alone destroys her claim. "A common law
marriage is more than a contract; it is a public status." Winfield v. Renfro, 821
S.W.2d 640,645 (Tex.App.-Houston [1st Dist.] 1991, writ denied). If the marriage
was a secret, it was not a common law marriage. Id. at 650. As in Winfield, the
alleged marriage between Kuester and Green seemed to have been one of the best
25
kept secrets as no family member, friend, colleague or neighbor is able to testify
the two held themselves out as married.
Courts have frowned on cases in which only one person did any "holding
out," and have heavily weighed this as a negative factor when considering if
legally or factually sufficient evidence was presented to the trial court. See,
Winfield, 821 S.W.2d at 651; Lee, 981 S.W.2d at 907; Tompkins, 774 S.W.2d at
209. The evidence in this case is that Green never held himself out as married.
[C.R. 17]. Kuester did not contradict that fact. Instead, Kuester only produced a
few instances where she represented to others that she had a husband. The totality
of her statements evidencing "holding out" are as follows:
1. Kuester told a jeweler in July 2009 she will get her "computer
genius husband" involved in resolving a problem with sending
attachments by email. [C.R. 129].
2. Kuester told an antiques dealer in May of 2010 she would have
to discuss certain items with her "husband." [C.R.131]
3. Kuester sent an email in September 2004 to a hotel resort
website inquiring about a bed and stating, "My husband loved
the bed so much he wants to buy one just like it." [C.R. 144].
None of the communications Kuester listed as proof to support the holding
out requirement is evidence that any of the individuals Kuester was communicating
with understood or believed Green was Kuester's husband. Moreover, Texas courts
have found no common law marriage is established when:
26
• A couple only made occasional introductions in public as
husband and wife. Eris, 39 S.W.3d at 715.
© A couple's agreement to be married was shared with only a few
people, or only close relatives and friends, while the couple
acted to conceal the agreement to the rest of the community.
Lee, 981 S.W.2d at 907; Winfield, 821 S.W.2d at 650-651.
In this case, Kuester did not even show the two were ever introduce in public as
married, or that any close friends or family knew of the alleged agreement of
marriage.
The testimony of colleagues, neighbors, relatives, friends and disinterested
third parties has been found to be relevant and considered valuable in establishing
the "holding out" element. See Collora v. Navarro, 574 S.W.2d 65, 67 (Tex.
1978); Dalworth Trucking, 924 S.W.2d at 735-736; In re Glasco, 619 S.W.2d 567,
570 (Tex.App.- San Antonio 1981, no writ). Kuester offered no testimony from
any colleagues, neighbors, relatives, friends or even immediate family members,
much less any disinterested individuals, to support her claim of a common law
marriage. As established by her interrogatory answer, no family member, relative,
neighbor, friend, or colleague was told of the claimed marriage. [C.R. 73].
IV. TRIAL COURT PROPERLY EXCLUDED HEARSAY AND OTHER

INCOMPETENT AND UNTRUSTWORTHY EVIDENCE FROM THE
SUMMARY JUDGMENT EVIDENTIARY RECORD.
Rulings on the admission or exclusion of evidence are committed to the trial
court's sound discretion. City of Brownsville, 897 S.W.2d at 753. A trial court's
27
rulings on the admissibility of summary judgment evidence are reviewed under an
abuse of discretion standard. Fairfield Fin. Group, Inc. v. Synnott, 300 S.W.3d
316, 319 (Tex.App.-Austin 2009, no pet.). A trial court abuses its discretion when
it acts without regard for guiding rules or principles. Owens-Corning, 972 S.W.2d
at 43. The trial court does not abuse its discretion if it bases its decision on
conflicting evidence and some evidence supports its decision. Unifund CCR
Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009) (per curiam). The Court must
uphold the trial court's ruling if there is any legitimate basis for it. Owens-Corning,
972 S.W.2d at 43.
The exclusion of evidence is reversible error if the complaining party shows
that the trial court committed error that probably caused the rendition of an
improper judgment. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 812 (Tex.
2010). In determining whether excluded evidence probably resulted in the
rendition of an improper judgment, the Court reviews the entire record. Caffe Ribs,
Inc. v. State, 328 S.W.3d 919, 927 (Tex.App.- Houston [14th Dist.] 2010, no pet.).
In order to obtain a reversal based on alleged error in an evidentiary ruling, Kuester
must show that:
1. the trial court erred in not admitting the evidence;

2. the excluded evidence was controlling on a material issue
dispositive of the case and was not cumulative; and
3. the error in the exclusion of the evidence probably caused
the rendition of an improper judgment.
28
See Perez v. E mbree Const. Group, Inc. 228 S.W.3d 875 (Tex. App.-Austin 2007,
pet denied.). Kuester failed to make a sufficient showing to obtain a reversal based
upon any alleged error in the trial court's evidentiary rulings.
Kuester fails to perform the required analysis to support a reversal based on
the excluded evidence. Kuester failed to discuss the facts or authority on why error
exists, and where she does discuss some of the facts and authority, she does so in
only a cursory manner. In addition, Kuester only addressed the hearsay and
personal knowledge objections, ignoring the other objections to the excluded
evidence. Finally, Kuester failed to show any of the evidence excluded by the trial
court was trustworthy. Therefore, Kuester's brief is woefully insufficient and thus
any error should be considered waived. See Regency Advantage Ltd. Partnership v.
Bingo Idea-Watauga, Inc., 928 S.W.2d 56, 63 (Tex.App.-Ft. Worth 1995) affirmed
in part, reversed in part on other grounds, 936 S.W.2d 275 (Tex. 1996).
The excluded evidence complained of consists of portions of Kuester's
affidavit testimony and three email exhibits attached to her affidavit.
EXCLUDED EVIDENCE OBJECTIONS

"Ivor's father frequently refers to me Hearsay
as being "like a daughter" [C.R.I 12.].
"Rachel calls him [Green] 'Uncle Hearsay
Ivor'" [C.R. 112].
"When Austin was small, the family Hearsay, vague and ambiguous as to
referred to me as 'Grandma'"[C.R. identity of speaker(s), fail to show
112]. personal knowledge of parties'
relationship by declarant
29
EXCLUDED EVIDENCE OBJECTIONS
"both Ms. Palmer and I refer to my Hearsay, fail to show declarant had
'Grandson' - Ivor's biological personal knowledge of parties'
Grandson, Austin," and the underlying relationship
email communication. [C.R. 112 and
125].
"There are also many instances where Hearsay, Best Evidence Rule, vague and
Ivor is referred to as my husband, ambiguous as to identity of speaker (s),
either by me or by a member of the and fail to show unidentified
community." [C.R. 112]. individual(s) have personal knowledge of
parties' relationship
"Ms. Kunlcel refer to Ivor as being my Hearsay, fail to show Ms. Kunkel has
husband," and the underlying email personal knowledge of parties'
communication. [C.R. 113 and 135]. relationship
"In the margins of the plans you will Hearsay, fail to show individual has
see where we are listed as 'Mr. Green personal knowledge of parties'
and Mrs. Kuester.' The architects who relationship
designed the remodel placed this tag
here, including the reference to me as
'Mrs. Kuester' and the underlying
blueprints." [C.R. 116-117 and 155
161].
Hearsay is defined as an out-of -court statement offered in evidence to prove
the truth of the matter asserted. TEX. R. EVID. 801 (d). Hearsay and conclusions are
not admissible and the exclusion of such evidence is not reversible error. Dingman
v. Spengler, 371 S.W.2d 416, 424 (Tex.Civ.App.- EL Pas o 1963, writ ref d n.r.e.).
The proponent of hearsay has the burden of establishing the evidence fits within an
exception to the general rule prohibiting the admission of hearsay testimony.
Aguillera v. John G. & Marie Stella Kenedy Mem 7 Found., 162 S.W.3d 689, 694
30
(Tex.App.- Corpus Christi 2005, pet. denied). In addition, all hearsay exceptions
require a showing of trustworthiness. Id. Kuester completely ignores this
requirement.
The excluded evidence can be broken down into three categories -
i) Portions of Kuester's affidavit testimony concerning

alleged statements by family members;
ii) Portions of Kuester's affidavit testimony concerning

alleged statements by others; and
iii) The architectural blueprints.
Kuester appears to argue that the evidence should have been admitted because she
did not offer the statements as proof she and Green were married, or even that the
individual believed they were married, but to "show reputation in the community."
Appellant's Brief at 29. Kuester's narrow definition of hearsay would allow
circumvention of the safeguards that were created by the hearsay rules to guarantee
the trustworthiness of out-of-court statements and prevent the unfair prejudice that
could arise from their admission. See Volkswagen of America v. Ramirez, 159
S.W.3d 897, 907 (Tex. 2004).
A. KUESTER'S AFFIDAVIT TESTIMONY CONCERNING

STATEMENTS BY FAMILY MEMBERS.
Any alleged out of court statement attributed to Green's father or her niece
Rachel is hearsay and was therefore properly excluded as it presumably was
introduced to prove Kuester was "like a daughter" to Green's father and Green was
31
her niece's uncle as a result of an alleged common law marriage. If not introduced
for that reason, Kuester fails to explain how the claim that Green's father referring
to her as being "like a daughter," or Rachel calling Green, "Uncle Ivor," creates an
issue of material fact with respect to whether she and Green were married under
common law. Kuester also fails to explain how the exclusion of the portions of her
affidavit constituted an abuse of discretion that probably caused an improper
judgment.
The statement attributed to unidentified family members that allegedly
referred to Kuester as "Grandma" also was properly excluded. First, the fact that
the trial court cannot even identify who made the alleged statement constitutes
grounds to exclude the evidence. And again the statement is hearsay because
presumably Kuester introduced the testimony to prove she was in fact called
grandma because of an alleged common law marriage to Green. Further, to the
extent she is referring to the statement being made by Austin, a small child,
Kuester introduced no evidence to show Green's grandchild was competent to
understand the nature of her relationship with him.
B. KUESTER'S AFFIDAVIT TESTIMONY CONCERNING

ALLEGED STATEMENTS BY OTHERS.
Kuester also complains of the trial court exclusion of portions of her
affidavit testimony and email dealing with her testimony concerning Ms. Palmer
asking Kuester how old her grandson is in response to Kuester's earlier email
32
stating "I've my daughter-in-law and grandson in town." [C.R. 217]. Presumably
Kuester is again introducing the evidence to show Ms. Palmer believed Green's
grandchild is Kuester grandchild as a result of a common law marriage. First,
Kuester introduced no evidence to show Ms. Palmer even knows which grandchild
is referred to in Kuester's July 28, 2009 email, much less that she knows the
grandchild is Green's biological grandchild. Second, Kuester failed to show if Ms.
Palmer even knows Green or the nature of his relationship with Kuester. Therefore,
the evidence was properly excluded as untrustworthy to show reputation as being
married in the community.
Similarly, the portion of that Kuester's affidavit testimony and email dealing
with Ms. Kunkel referring to Ivor as being her "husband," was properly excluded
as well. Kuester did not introduce any evidence to show Ms. Kunkel knows the
nature of the relationship between Green and Kuester, much less that she believes
Green is Kuester's husband. The statement in the email attributed to Ms. Kunkel
simply states "I hope you and your husband had a lovely weekend." [C.R.135]. It
does not in any way indicate Ms. Kunkel believes Green is married to Kuester.
Thus it is untrustworthy or otherwise incompetent evidence to show "reputation in
community."
Finally, Kuester's affidavit testimony that there are many instances in where
Green is referred to as her husband "by a member of the community" was properly
excluded as the statement is conclusory and fails to identify any such instance.
33
Hearsay and conclusions are not admissible and the exclusion of such evidence is
not reversible error. Dingman v. S pengler, 371 S.W.2d at 424. The best evidence of
a member of the community referring to Green as Kuester's husband would be a
clear statement from an identified member of the community to that effect. Kuester
failed to introduce any such evidence. Without knowing the identity of the alleged
member of the community who referred to Green as Kuester's husband, the trial
court cannot find the evidence trustworthy and properly excluded it.
C. ARCHITECTURAL BLUEPRINTS.
Trial court's exclusion of the portion of the architectural drawings as
inadmissible was proper because there was no proof as to who wrote the
information contained therein, nor whether that person had personal knowledge of
the information so written. It was essential to establish that some employee who
either made the record or transmitted the information to another to record must
have personal knowledge of the act, event or condition described in the document.
See North Texas Lumber Co. v. Kaspar, 415 S.W.2d 470, 475 (Tex.Civ.App.-
Dallas 1967, writ ref. n.r.e.). Kuester did not identify who prepared the drawings,
much less whether that person had any personal knowledge of the relationship
between Kuester and Green. Therefore, the trial court's exclusion of that portion of
the document was proper. See Id. at 474-475. (Excluded portion of new account
card stating "New Joint Venture" was inadmissible because no proof person who
wrote the information had personal knowledge of parties' relationship.).
34
The cases cited by Kuester are inapposite and lend no support to finding any
error on the part of the trial court, much less an abuse of discretion. In Chandler,
the trial court allowed an ex-spouse to testify that a Mexican judge stated "I give
her divorce" as an exception to the hearsay rule because it was introduce to show
her state of mind that she believed she was divorced. Chandler v. Chandler, 842
S.W.2d 829, 830-831 (Tex.App.-El Paso 1992, no writ). It was not permitted to
show the state of mind of the out-of-court declarant. To the extent, Kuester
introduced the statements to show her state of mind as to her belief that she was
married, such evidence is immaterial. Therefore the trial court's exclusion of the
evidence was appropriate.
Similarly, in Burleson, the trial court allowed testimony of a party, Finley,
that hunters related to him that Burleson appeared carrying a gun and told them to
stay away from the fence to show its effect on Finley's state of mind and because it
was material to Finley's claim for damages for fright, emotional disturbance and
mental anguish. Burleson v. Finley, 581 S.W.2d 304, 309 (Tex.Civ.App.-Austin
1979, writ ref d n.r.e.). Again, in this case, Kuester did not introduce the hearsay
statements to establish her state of mind.
Finally, in Jordan, the trial court allowed the testimony of a witness that "it
was [his] understanding that she and Henry Owens claimed to be husband and
wife" to show general reputation of a marriage. Jordan v. Joh nson, 155 S.W. 1194,
1195 (Tex.Civ.App.-Ft Worth 1913, no writ). The testimony in that case was not
35
an out of court unsworn statement as Kuester attempted to introduce into evidence
in this case. Had Kuester obtained testimony from Green's father, her niece, Ms.
Palmer, Ms. Kunkel, or any of the unidentified family members and members of
the community, the ruling in Jordan could possibly have some application to this
case. Kuester did not introduce any testimony from any person other than herself.
Kuester was unable to find a single person who could testify he/she believed
Green was married to Kuester. In essence, Kuester argues that all she needs to do
to defeat a summary judgment is to submit a self-serving uncorroborated affidavit
stating that she believed the parties were married and that she occasionally referred
to Green as her "husband," and that the trial court should admit the hearsay
statements as trustworthy on their face. Such a standard would make the statutory
rebuttable presumption meaningless and open the gates for anyone who has lived
with a person to get a divorce trial even though no other person believes they were
married. For all such reasons, the trial court properly excluded the incompetent
evidence submitted by Kuester and granted Green's traditional motion for
summary judgment dismissing Kuester's common law marriage claim.
CONCLUSION
In sum, Green negated each of the three necessary elements for
establishment of a common law marriage in this case. Kuester and Green did not
agree to be married. They did not live together as husband and wife, and they did
not represent to others that they were married. Kuester waived her objection to
these grounds in this appeal having only objected to the grant of a summary
judgment on no evidence grounds.
In addition, Kuester repeatedly stated she was not married during the period
she now claims she was married under common law to Green. The summary
judgment evidence showed beyond peradventure the parties were not married
under common law. For such reasons, the Court should affirm the trial court's
grant of the summary judgment because Kuester did not present sufficient evidence
to rebut the presumption the parties were not married or make a prima facie
showing of the necessary elements to establish a common law marriage.
PRAYER
Appellee, Ivor Green, requests that the Court affirm the trial court's
summary judgment in his favor on the Kuester's claim of common law marriage.
Green further requests such other and further relief to which he may be justly
entitled.
37
Respectfully submitted,
By /s/ James G. Ruiz

' James G. Ruiz SBN 17385860
iruiz@winstead.com
WINSTEAD PC
401 Congress Avenue, Suite 2100
Austin, Texas 78701
512-370-2800 telephone
512-370-2850 telecopier
and
Carly Gallagher SBN 24062733

c arlvffica rlvl aw.c om
LAW OFFICE OF CARLY GALLAGHER
Austin, Texas 78759
512-597-3329 fax
ATTORNEYS FOR APPELLEE

IVOR GREEN
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Brief of Appellee was
forwarded via certified mail to the following on the 27th day of May, 2014:
Matthew A, Tiffee
Law Offices of Matthew A. Tiffee
806 West 10lh Street, Suite A
Austin, Texas 78701
/s/ James G. Ruiz

James G. Ruiz
38
CERTIFICATE OF COMPLIANCE
I certify that the word count for this filing, excluding portions of the brief
that need not be counted under Rule 9.4(i)(l), is 10,614 according to the Microsoft
Word 2010 word count feature, within the 15,000 word limit set for merits briefing
by Rule 9.4(i)(2)(B).
/s/ James G. Ruiz

James G. Ruiz
39
AUSTIN_l/743681v.l
23342-3 0 5/27/2014
NO. 03-13-00704-CV
IN THE COURT OF APPEALS FOR THE

THIRD DISTRICT OF TEXAS
AT AUSTIN, TEXAS
KAREN KUESTER,
Appellant
V.
IVOR GREEN,
Appellee

APPENDIX TO BRIEF OF APPELLEE
Appendix A: Respondent's Reply in Support o f Motion for Summary

Judgment on Common Law Marriage Claim
Appendix B: Exhibit C-6 (Application Summary for Disability Insurance

Benefits) to the Respondent's Motion for Summary Judgment
on Common Law Marriage Claim
Appendix C: Green / Kuester Relationship Timeline
Page 1
AUSTIN_1 /744494v. 1
23342-3 05/27/2014
APPENDIX A
Filed
1 3 J u n e 10 P4:45
Amalia Rodriguez-Mendoza
District Clerk
Travis District
CAUSE NO. D-l-FM-12-006430 D-l-FM-12-006430
TN T H E MATTER OF THE § IN THE DISTRICT COURT OF

MARRIAGE O F §
§
KAREN KUESTER § TRAVIS COUNTY, TEXAS
§
AND
§ 200™ JUDICIAL DISTRICT
IVOR GREEN §
RESPONDENT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

ON COMMON LAW MARRIAGE CLAIM
Ivor Green ("Green"), Respondent, submits his reply in support of his motion for
summary judgment on the claim of common law marriage asserted against him in the Original
Petition for Divorce with Independent Causes of Action (the "Petition") filed by Petitioner,
Karen Kuester. « .
SUMMARY
1. Kuester has failed to overcome the statutory presumption that a common law
marriage did not exist between the parties. In her Response, Kuester only submits her own self-
serving Affidavit in support of her claim of a common law marriage. Kuester does not introduce
any competent testimony or evidence from colleagues, neighbors, friends or relatives to establish
the "holding out" element of a common law marriage. In addition, Kuester fails to present any
evidence of an agreement of marriage between the parties to establish an informal or common
law marriage. Instead, Kuester only claims that in late 2002, approximately 15 months before
she moved into Green's residence, Green promised that they would get married and buy a house
together. The events did not happen. For such reasons, Green is entitled to a summary judgment
dismissing the common law marriage claim asserted in this case.
R E S P O N D E N T ' S R E P L Y I N S U P P O R T OF
M O T I O N FOR SUMMARY J U D G M E N T
SUPPLEMENTAL SUMMARY JUDGMENT EVIDENCE
2. Green offers the following supplemental evidence in support of his motion for
summary judgment:
Supp. Exhibit A: Supplemental Affidavit of Ivor Green ("GREEN A F F . " )
Exhibit A-5: Email dated November 29, 2011, from Kuester to Green Re:
Jewelry Significance
Supp. Exhibit C: Supplemental Affidavit of James G. Ruiz ("Ruiz Aff")
Exhibit C-12: Austin Police Department Report on May 22, 2010 incident at
Green Residence.
R E P L Y AND B R I E F OF AUTHORITIES
3. A common law marriage is more than a contract; it is a public status. Lee v. Lee,
981 S.W.2d 903, 907 (Tex.App.-Houston st[1 Dist.] 2001, pet. denied). Evidence of a couple's
reputation in the community, as being married or not, is relevant and admissible on the issue of
representation. Winfield v. Renfro, 821 S.W.2d 640, 651 (Tex.App.-Houston st[1 Dist.] 1991,
writ denied). Testimony of third parties, such as colleagues, neighbors, relatives, and friends, is
relevant and considered valuable in establishing the holding out element. Dalworth Trucking
Co. v. Bulen, 924 S.W.2d 728, 735 (Tex. App.-Texarkana 1996, no writ). Petitioner has been
unable to present any competent summary judgment evidence that any colleagues, neighbors,
relatives or friends believed she and Green were married, or that they held themselves out as
being married. "If secret, it is not a common-law marriage." Lee, 981 S.W.2d at 907; Winfield,
821 S.W.2d at 650, •
4. Merely living together with a person o f the opposite sex and having intimate
relations with that person do not establish, without more, the relationship of husband and wife.
Tompkins v. State, 774 S.W. 2d 195, 209 (Tex. Crim. App. 1987). Texas courts have found no
common law marriage is established when:
R E S P O N D E N T ' S REPLY I N SUPPORT O F

M O T I O N F O R SUMMARY JUDGMENT
• A couple only made occasional introductions in public as husband and
wife. Eris v. Phares, 39 S.W.3d 708, 715 (Tex.App.- Houston[ sI' Dist.]
2001, pet. denied).
• A couple's agreement to be married was shared with only a few people, or

only close relatives and friends, while the couple acted to conceal the
agreement from the rest of the community. Lee, 981 S.W.2d at 907;
Winfield, 821 S.W.2d at 650-651.
In this case, the parties' alleged agreement to be married was not shared with anyone, not even
parents, relatives or friends. Petitioner has not introduced any evidence that Green held himself
out to the public, family or friends as being married, nor has she even established any agreement
to be married, Kuester provides only one incident when she referred to Green as her husband to
a sales representative. Courts have frowned on cases in which only one party did the "holding
out," and heavily weigh this as a negative factor when considering if legally or factually
sufficient evidence was presented, Winfield, 821 S.W.2d at 651; Lee, 981 S.W.2d at 907; and
Tompkins, 71 A- S.W.2d at 209.
5. Petitioner asserts that sometime in late 2002, Green promised that "the parties
were to be married," and that "he would sell his house and [they] would buy a house together,
and both names would be on the deed." Kuester Aff. at 5. Kuester then assets Green indicated
"he wanted to immediately move forward with these agreements." Id. It is undisputed that
Petitioner did not move into Green's residence until April of 2004, that Green did not sell his
house, that the parties did not buy a house together, and that the parties did not have both their
names on any deed. It is also undisputed that as late as November of 2006, Petitioner was
seeking legal representation to review a draft prenuptial agreement between her and Green and
wanted legal advice on her rights as a "domestic partner" in case Green gets "cold feet" and does
not marry her. See Resp. Ex. C - l l .
6. In her Response, Petitioner now asserts she received a wedding band from Green.
RESPONDENT'S R E P L Y IN SUPPORT OF
M O T I O N F OR SUMMARY JUDGMENT
However, in an email message to Green on November 29, 2011, Kuester admits the piece of
jewelry was given to her as a "we are not going to get married" ring. See Resp. Ex. C-12,
Finally, the Austin Police Department Report on the May 22, 2010 incident at Green's residence
tells a completely different story than the one Kuester presents to the Court, and shows once
again that Kuester did not claim to be married at the time of the parties' relationship ended and
she moved out of Green's residence. Kuester did not file this action within the two years of the
end of her relationship with Green because she knew she was not married to Green. For such
reasons, summary judgment dismissing Petitioner's claim of a common law marriage is
warranted in this case.
PRAYER
WHEREFORE, Ivor Green, Respondent, requests that the Court grant summary
judgment in his favor on the Petitioner's claim of common law marriage, and dismiss such claim
in its entirety. Respondent further requests such other and further relief to which Respondent
may be justly entitled. •
Respectfully submitted,
By Isi James G. Ruiz

James G. Ruiz SBN 17385860
WINSTEAD P C
401 Congress Avenue, Suite 2100
Austin, Texas 78701
512-370-2850 telecopier
and
Carly Gallagher SBN 24062733
L A W OFFICE O F CARLY GALLAGHER
Austin, Texas 78759
512-597-3329 fax
ATTORNEYS F O RRESPONDENT
IVOR GREEN
R E S P O N D E N T ' S REPLY IN SUPPORT OF

M O T I O N F OR SUMMARY JUDGMENT
CERTIFICATE OF SERVICE
By signature above, I certify that a true and correct copy of the foregoing document was
forwarded via certified mail to the following on the 10th day of June, 2013:
Matthew A. Tiffee
Tiffee McPheeters, PLLC
th
806 West 10 Street, Suite A
Austin, Texas 78701
AUSTINJ Y703811 v1 06/10/2013
R E S P O N D E N T ' S R E P L Y I N SUPPORT OF
M O T I O N F O R SUMMARY JUDGMENT
CAUSE NO. D-l-FM-12-006430
IN THE MATTER OF THE § IN THE DISTRICT COURT OF

MARRIAGE OF §
§
§
AND
§ 200™ JUDICIAL DISTRICT
IVOR GREEN §
SUPPLEMENTAL AFFIDAVIT OF IVOR GREEN
Before me, the undersigned authority appeared, Ivor Green, who, after being duly sworn,
stated under oath that the following matters are within his personal knowledge and are true and
correct. .
1. My name is Ivor Green, I hereby supplement my prior Affidavit in this case. The
facts and matters set forth in this Supplemental Affidavit are within my personal knowledge.
2. Attached hereto as Exhibit A-5 is a true and correct copy of an email message
sent to me by Karen Kuester on November 29,2011, addressing the significance of the ring from
Lang's I gave her that she now claims was a wedding band.
FURTHER AFFIANT SAYETH NOT.
IVOR GREEN
da o f eJun 32 0 1
SWORN TO AND SUBSCRIBED before me on the Y > •
mn D m m SK
^Public,:SWJoiTim I
M
y OonwmlM Eapl/si Notary Public, State of Texas
mn,m
Typed or Printed Name of Notary
My Commission Expires:
SUPPLEMENTAL AFFIDAVIT OF IVOR GREEN

K a r e n Kuester <kkuester@austin.rr.corn>1* N o v e m b e r 2 9 , 2011 6 : 1 4 PM
T o : Ivor G r e e n
Jewelry Significance
Y o u k n o w h o w y o u a l w a y s g a v e m e S a p p h i r e a n d D i a m o n d j e w e l r y ? I d i d n ' t r e a l i z e until t o d a y t h e s i g n i f i c a n c e . T h e s a p p h i r e i s y o u r b i r t h s t o n e .
T h e d i a m o n d i s m y b i r t h s t o n e . S o j u s t a w e e bit of a d d e d s i g n i f i c a n c e . I d o n ' t think y o u k n e w . It m a d e m e feel a bit m o r e s e n t i m e n t a l a b o u t t h e
p i e c e s y o u h a v e g i v en m e !
I'm h a n g i n g o n t o everything you g a v e m e .
I a m selling e v e r y t h i n g e l s e I c a n . If y o u w a n t t o b u y a n y t h i n g f o r T o b e - o r a n y o n e e l s e - let m e k n o w . N o t h i n g is g o i n g for n e a r w h a t w a s p a i d for

it. A n o t h e r b o n e h e a d i d e a I h a d • thinking I w a s "investing" a n d c o u l d s e l l if I n e e d e d m o n e y . S o s t u p i d !
I t h o u g h t it a n i c e bit o f i n fo rm at i o n a b o u t t h e j e w e l r y y o u g a v e m e - particularly t h e " w e a r e n o t g o i n g t o g e t m a r r i e d " r i n g from L a n g ' s . J u s t m a k e s

t h e m all m o r e s p e c i a l .
KK
EXHIBIT
CAUSE NO. D-l-FM-12-006430
IN THE MATTER OF THE § IN THE DISTRICT COURT OF

MARRIAGE OF §
§
§
AND §
th TH
§ 200 JUDICIAL DISTRICT
IVOR GREEN
SUPPLEMENTAL AFFIDAVIT OF JAMES G. RUIZ
Before me, the undersigned authority appeared, James G. Ruiz, who, after being duly
sworn, stated under oath that the following matters are within his personal knowledge and are
true and correct.
1. My name is James G. Ruiz. I hereby supplement my prior Affidavit in this case
to introduce the following additional summary judgment evidence.
2. A true and correct copy of the redacted Austin Police Department Report obtained
under an Open Records Request for the incident that occurred at Ivor Green's residence on
May 22, 2010, is attached hereto as Exhibit C-12
FURTHER AFFIANT SAYETHNOT.
JAMES G . ' R I H Z
SWORN T O AND SUBSCRIBED before me on the day o f June, 2013.
Notaty Public '

Notary
STATE OF TEXAS f u r sy
My Comm. Exp, Dec, 29,2016 Typed or Printed Name of Notary
•W0U
My Commission Expires:. m ? A
S U P P L E M E N T A L AFFIDAVIT OF JAMES G . R U I Z
„||l m MI
5129746662 07:40:00 03-13-2013 2/19
AUSTIN POLICE DEPARTMENT

GENERAL OCCURRENCE HARDCOPY
GO# 2010-1422360 CLEARED 3461-0
ADMINISTRATIVELY
OPEN RECORDS REOUEST

5129746662 07:40:15 03-13-2013 3/19

GO# 201(1-1422360 CLEARED 3461-0
ADMINISTRATIVELY
General Offense Information

Operational status: CLEARED ADMINISTRATIVELY
Reported on: May-22-2010 (Sat.) 2244
Occured on: May-22-2010 (Sat) 2244
Report submitted by: AP4729 - ASTRAN, KR1STY
Org unit: BAKER 700 REG I PATROL ;
Address:
Municipality: AUSTIN County: TRAVIS COUNTY
District: BA Beat: 4 Grid: 273
Premise code:
Bias: NONE (NO BIAS)
Family violence: NO
Offenses (Completed/Attempted)
Offense: # 1 3461-0 M — B M - COMPLETED
Location: RESIDENCES
Offender suspected of using: N/A
Weapon type: NONE
Offense: # 2 1508-0 FIREARMS - COMPLETED
Location: RESIDENCES
Offender suspected of using: N/A
Related Person^
1. COMPLAINANT # 1 - SHANN, RACHEL LEIGH
(Case Specific Information)

Sex: FEMALE
Race: WHITE
Date of birth: May-09-1983
Address:
Municipality: AUSTIN, TEXAS
Phone Numbers
HOME:
Particulars
Driver's license: COLORADO
Ethnicity: NON-HISPANIC
M a s t e r N a m e I n d e x Reference
Name: SHANN, RACHEL L E I G H
Sex; FEMALE
Race: W H I T E
Date of birth:
Address:.
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Phone numbers
HOME:
Linkage f a c t o r s
Resident status : RESIDENT OF AUSTIN
2. COMMITTED # 1 - KUESTER, KAREN ELIZABETH
(Case Specific Information)

Sex: F E M A L E
Race: W H I T E
Date of birth :
Address:
Particulars
Driver's license: H U H TEXAS
M a s t e r N a m e Index Reference
Name: KUESTER, KAREN ELIZABETH
Sex: F E M A L E
Race: W H I T E
Date of birth: -
Address:
Phone numbers
HOME:
Linkage factors
Resident status: RESIDENT OF AUSTIN
*** CONFIDENTIAL***
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Related Text Pagefsl

Document: PRESS RELEASE
Author: AP4729 - ASTRAN, KRISTY
Related date/time; May-22-2010 (Sat) 2244
REPORT TAKEN.
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Document: INITIAL REPORT
Author: AP4729 - ASTRAN, KRISTY
Related date/time: May-22-2010 (Sat.) 2244
ON 5 - 2 2 - 1 0 AT APPROXIMATELY 1 0 : 4 4 P . M . I RESPONDED TO A 9 1 1 CALL REGARDING
A CHECK WELFARE URGENT. THE TEXT STATED THE FOLLOWING
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t«f ~
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05/22/2010 2 2 : 4 5 : 3 7 A P 6 5 8 1 COMP S T A T I N G THAT HER AUNT I S THE S U B J WHO
0 5 / 2 2 / 2 0 1 0 2 2 : 4 5 : 1 0 A P 6 5 8 1 HEAR VERBAL D I S T
0 5 / 2 2 / 2 0 1 0 2 2 : 4 4 : 4 5 A P 6 5 8 1 EMS CLRD
0 5 / 2 2 / 2 0 1 0 2 2 : 4 4 : 4 0 A P 6 5 S 1 COMP STATED THAT SOMEONE J U S T
WHEN I A R R I V E D ON SCENE MEDIC 8 WAS EVALUATING THE S U B J E C T , I D E N T I F I E D AS
KUESTER, KAREN W / F
I SPOKE. TO HER N I E C E , I D E N T I F I E D AS
SHANN, RACHEL W / F
SHE STATED THAT HER AUNT KUESTER WAS GOING THRU A BAD S E P A R A T I O N . KUESTER
HAD BEEN TALKI NG ABOUT • • H g g i ALL DAY. SHE CALLED HER AUNTS WHO L I V E OUT
OF TOWN. THEY TOLD HER EVEN I F KUESTER D I D NOT WANT HER AT THE HOUSE, SHE
SHANN S T A T E D THEY HAD A CONFERENCE TCALLS WITH HER AUNTS OUT OF TOWN AND
K U E S T E R . THEY SPOKE FOR A COUPLE OF HOURS AND CONVINCED HER THAT HER
S H E D
C A L M E
S E P A R A T I O N WAS NOT WORTH ' DOWN. L A T E R KUESTER
BEGAN TO T R Y AND CALL HER E X , H E WOULD NOT ANSWER. SHE BEGAN TO GET U P S E T
A G A I N AND TALKED A B O U T | ^ H B B [ F O R A COUPLE OF HOURS. SHE WENT I N HER ROOM
AND BEGAN SLAMMING T H I N G S . SHE CAME OUT O F THE ROOM AND TOLD SHANN TO CALL
S H E W E N
T
HER UNCLE BECAUSE - BACK I N THE ROOM
AND SHANN HEARD THE - KUESTER S P O K E ABOUT
SHANN INFORMED ME THAT HUESTER HAD AN ACCIDENTAL DISCHARGED A FIREARM THE

P R E V I O U S DAY. KUESTER TOLD SHANN THAT S H E FOUND THE GUN AND WHEN SHE WAS
HANDLING I T , I T ACCIDENTALLY D I S C H A R G E D . NOBODY WAS HURT. KUESTER ALSO
TOLD SHANN THAT SHE HAD THOUGHTS OF ^
A C R I S I S COUNSELOR AND S H E REQUESTED ONE. WHEN I WENT I N 1KUESTER S BEDROOM

I•OBSERVED
OFC HAWKINS # 4 7 1 1 SPOKE T O KUESTERS S I S T E R . (SEE SUPP)
CONFIDENTIAL *** UsA / rC( Jj|*|

~ <' /£m
For: AP7I53 Printed On: Mar-12-2013 (Tue.)
,/fr'
5129746662 07:42:24 03-13-2013 8/19

21 G O # 2010-1422360 C L E A R E D 34 61-0 J|^J|
ADMINISTRATIVELY
I DETERMINED THAT KUESTER WAS A SUBSTANTIAL R I S K OF S E R I O U S HARM. S H E HAD

MADE M | AND WAS CALMED BY FAMILY MEMBERS MULTIPLE T I M E S . |
i
i
THE FIREARM AND AMMO WERE S E I Z E D AMD TURNED I N AT T H E EAST SUBSTATION FOR
SAFEKEEPING, ONE OF THE BULLETS HAD BEEN F I R E D WAS ONLY THE C A S I N G .
ASTRAN # 4 7 2 9
W
For: AP7153 Printed Cm Mar-12-2013 ( 1 m . )
5129746662 Q7;42;42 03-13-2013 9/19

GO# 2010-14223 60 CLEARED 34 61-01
ADMINISTRATIVELY
Follow U p R e p o r t # I
Follow Up Report # 1
Assignment Information
Assigned to: AP4607 - DIVEN, CHRISTINA Rank: POLICE OFFICER
Capacity: LEAD INVESTIGATOR Org unit: CRISIS INTERVENTION
Assigned on: May-24-2010 (Mon.) 942 by: API672- TURNER, MICHAEL GLYNN
Report due on: Jun-23-2010 (Wed.)
Submission Information
Submitted on: May-24-2010 (Mon.) 1007
Approved on: May-24-2010 (Mon.) by: AP1672 - TURNER, MICHAEL GLYNN
Follow Up Conclusion
Follow Up concluded: YES
Narrative Text Report # 1

Document SUPPLEMENTS
Author: AP4607 - DIVEN, CHRISTINA
Related date/time: May-24-2010 (Mon.)
NO FOLLOW UP BY C I T NECESSARY AT T H I S
TIME.
CLEARED,
DIVEN # 4 6 07
5129746662 07:43:04 03-13-2013 10/19
1 AUSTIN POLICE DEPARTMENT

FAGGL GENERAL OCCURRENCE HARDCOPY
! w S G O # 2010-1422360 C L E A R E D '
ADMINISTRATIVELY
Fallow U p R e p o r t # 1
Assignment I n f o r m a t i o n
Assigned to: AP1199 - BALDERAMA, ARMANDO ALBERTO Rank: DETECTIVE
Capacity; LEADS FOR INVESTIGATION Org unit: FIREARMS UNIT O C D
Assigned on: May-27-2010 (Thu.) 717 by: AP4259 - CONNOR, PATRICK
Report due on: Jun-26-2010 (Sat.) .
Submission I n f o r m a t i o n
Submitted on: Jun-28-2010 (Mon.) 1501
Approved on: JnI-13-2010 (Tue.) by: AP4259 - CONNOR, PATRICK

Document INVESTIGATOR'S REPORT
Author: AP1199 - BALDERAMA, ARMANDO ALBERTO
Related date/time: Jun-28-2010 (Mon.) 1124
ON 0 5 - 2 7 - 2 0 1 0 , THIS CASE WAS ASSIGNED TO ME TO REVIEW FOR FIREARMS U N I T .
0N
T H I S REPORT I S TITLED 0 5 - 2 2 - 2 0 1 0 , PATROL OFFICERS
RESPONDED TO A CHECK WELFARE CALL AT I N AUSTIN, TRAVIS
COUNTY, TEXAS. PATROL OFFICERS ARRIVED AND MADE CONTACT WITH .COMPLAINANT,
RACHEL SHANN., WHO INFORMED OFFICERS THAT HER AUNT, KAREN ELIZABETH ECUESTER
(W/F, ) HAD BEEN - SHANN TOLD
KUESTER WAS EVALUATED BY A MEDIC U N I T FOR

KUESTER WAS NOT TRANSPORTED BY EMS, HOWEVER, AIT EVALUATION BY
RESULTED FOR-KAREN KUESTER. THE REPORTING OFFICER ALSO
S E I Z E D AND TURNED I N A TAURUS . 3 8 REVOLVER ( S E R I A L # L D 5 1 8 9 & ) . THE . 3 8
REVOLVER WAS TAKEN AS A SAFETY PRECAUTION AS I T WAS SAID TO BE OWNED BY
KUESTER AND HAD BEEN ACCIDENTALLY DISCHARGED THE PREVIOUS DAY.
AFTER REVIEWING T H I S CASE, I FIND THAT THERE ARE NO FIREARM VIOLATIONS AT
AS FOLLOW UP TO THE SEIZURE OF THE REVOLVER, I CONDUCTED A BACKGROUND CHECK

TO SEE I F KAREN ELIZABETH KUESTER I S E L I G I B L E TO OWN OR POSSESS A FIREARM.
/ffST

for; AP7153 Printed OB; Mar-12-2013 (Tue.)
5129746662 07:43:36 03-13-2013 11 / 1 9
AUSTINPOLICEDEPARTMENT
G O # 2010-1422360 C L E A R E D 3461-0
ADMINISTRATIVELY
FolowUp Report# 2
I BEGAN BY SEARCHING THE AUSTIN POLICE DEPARTMENT COMPUTER AND FOUND THAT
KAREN KUESTER SHOWED THE FOLLOWING INVOLVEMENTS WITH THE AUSTIN POLICE
DEPARTMENT:
KUESTER I S L I S T E D AS "WITNESS" I N THE FOLLOWING I N C I D E N T :

LEAVING THE SCENE CRASH, JULY 2 0 0 0
KUESTER HAD NO ARRESTS NOR ANY OTHER INVOLVEMENTS WITH THE AUSTIN POLICE
DEPARTMENT EXCEPT FOR THE TWO STATED ABOVE. •
I CONDUCTED A CRIMINAL HISTORY CHECK THROUGH THE DEPARTMENT OF PUBLIC

SAFETY AND FOUND THAT KAREN ELIZABETH KUESTER HAS NO CRIMINAL HISTORY
RECORD.
I CHECKED K U E S T E R ' S D R I V E R ' S LICENSE HISTORY AND FOUND SHE HAS BEEN ISSUED
TEXAS D R I V E R ' S LICENSE NUMBER THE HISTORY ON T H I S LICENSE SHOWS
KUESTER DOES NOT APPEAR TO HAVE ANY DRUG RELATED E N T R I E S AND THE STATUS O F
THE LICENSE SHOWS E L I G I B L E .
I RAN A LOCAL/STATE/NATIONAL WARRANT CHECK ON KUESTER AND DID NOT FIND ANY
ACTIVE WARRANTS OR CURRENT PROTECTIVE ORDER H I T S .
I CONDUCTED A STOLEN QUERY ON THE TAURUS . 3 8 CALIBER REVOLVER, SERIAL

NUMBER L D 5 1 8 9 8 WITH THE RESULTS BEING NEGATIVE FOR STOLEN AT THIS TIME.
BASED ON THE ABOVE RESEARCH, KAREN ELIZABETH KUESTER:
* DOES NOT APPEAR TO BE CHARGED BY INFORMATION OR UNDER INDICTMENT I N ANY

COURT FOR A FELONY, OR ANY OTHER CRIME, FOR WHICH THE JUDGE COULD IMPRISON
THEM FOR MORE THAN A YEAR.
* DOES NOT APPEAR TO BE A F U G I T I V E FROM J U S T I C E .
* DOES NOT APPEAR TO BE AN A L I E N WHO I S ILLEGALLY OR UNLAWFULLY I N THE

UNITED S T A T E S .
* DOES NOT APPEAR TO BE AN UNLAWFUL USER OF, OR ADDICTED TO, MARIJUANA, OR

ANY DEPRESSANT, STIMULANT OR NARCOTIC DRUG, OR ANY OTHER CONTROLLED
SUBSTANCE. * ,

Fox; AT7iS3 ..Printed On: Mar-12-2013 {Tue.)
5 129716662 07:44:13 03-13-2013 12/19
AUSTINPOLICEDEPARTMENT
F B L F GENERAL OCCURRENCE HARDCOPY

VPP? GO# 2010-1422360
CLEARED 3461-0!—
ADMINISTRATIVELY
Follow U p R e p o r t s 2
* DOES NOT APPEAR TO BE SUBJECT TO A COURT ORDER RESTRAINING THEM FROM

HARASSING, STALKING, OR THREATENING TH E I R CHILD OR AN INTIMATE PARTNER OR A
CHILD OF SUCH PARTNER.
* DOES NOT APPEAR TO HAVE BEEN CONVICTED I N ANY COURT OF A FELONY, OR ANY
OTHER CRIME, FOR WHICH A JUDGE COULD HAVE IMPRISONED THEM FOR MORE THAN ONE
YEAR,
* DOES NOT APPEAR TO HAVE BEEN DISCHARGED FROM THE ARMED FORCES UNDER
DISHONORABLE CONDITIONS.
* DOES NOT APPEAR TO HAVE BEEN ADJUDICATED AS A MENTAL DEFECTIVE, WHICH

INCLUDES HAVING BEEN ADJUDICATED INCOMPETENT TO MANAGE TH E I R OWN AFFAIRS,
OR BEEN COMMITTED TO A MENTAL I N S T I T U T I O N .
* DOES NOT APPEAR TO HAVE RENOUNCED HER UNITED STATES C I T I Z E N S H I P .
* DOES NOT APPEAR TO HAVE BEEN CONVICTED I N ANY COURT OF A MISDEMEANOR

CRIME OF DOMESTIC VIOLENCE.
A F T E R COMPLETING THE BACKGROUND CHECK ON KAREN ELIZABETH

KUESTER, I FIND NOTHING TO PREVENT HER FROM OWNING OR POSSESSING A FIREARM
AT T H I S TIME, BUT SINCE I AM NOT A
AS MENTIONED EARLIER I N
T H I S REPORT, THERE ARE NO FIREARMS VIOLATIONS I N T H I S CASE. HOWEVER, THE
RELEASE OF T H I S FIREARM SHOULD BE MADE
xu /
For: AP7153 f m M On: Mar-124013 (tue.) JBage. 10 -
*
<A
$!
5129746662 07:44:42 03-13-2013 13/19

C O H 2010-1422360 C L E A R E D 3461-01
ADMINISTRATIVELY
Follow Up R e p o r t # 3
ssignment
A Information
Assigned to: AP4711 - HAWKINS, STEVE Rank:
Capacity: SUPPLEMENTAL Org unit: BAKER 700 R E G I PATROL
Assigned on: May-23-2010 (Sun.) 1218 by:AP4711- HAWKINS, STEVE
Report due on: Feb-10-201I (Thu.)
Submission Information
Submitted on: Ju!-03-2010 (Sat.) 445
Checked by: AP4134 - JONES, MICHAEL LEE
Approved on: Feb-12-2011 (Sat.) by: AP4134 - JONES, MICHAEL L E E

Document; SUPPLEMENTS
Author: AP4711 - HAWKINS, STEVE
Related date/time: May-22-2010 (Sat.) 2244
ON MAY 2 2 , 2010, ( 2 2 4 4 HOURS SATURDAY N I G H T ) I WAS D I S P A T C H E D TO A CHECK
WELFARE CALL AT THE CALL TEXT WAS A S FOLLOWS:
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 9 : 2 2 BY A P 6 5 8 1
COMMENT AUNT I S S T A T I N G THAT SHE I S NOT A HAPPY PERSON . . . . A U N T I S STATING
COMP I S OVERACTING
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 8 : 3 6 BY A P S 5 3 1
COMMENT AUNT I S NOW ON THE PHONE . . . S T A T I N G SHE TOOK H E R N I G H T L Y MEDICATION
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 8 : 1 2 BY A P 6 5 B 1
COMMENT COMP ADV THAT AUNT ONLY
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 7 : 4 7 BY A P 6 5 8 1
COMMENT BREATH/CONSC
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 7 : 4 4 BY A P 6 7 2 4
COMMENT UPGRADE P E R B 7 9 0 DUE TO S U B J S
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 7 : 0 5 BY A P 6 5 8 1
COMMENT S U B J I S I N THE BACKYARD

For; AF7153 Printed On: Mw43W013 (Tae.) ?a*c"l
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GO#2010-1422360 C L E A R E D 3461-011
ADMINISTRATIVELY
Follow U p R e p o r t # 3
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 6 : 5 6 BY A P 6 5 8 1
COMMENT COMP NOW STATING NO WEAPONS
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 6 : 2 1 BY A P 6 5 8 1
COMMENT POSS INTOX
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 6 : 1 7 BY A P 6 5 8 1
COMMENT UNKNOWN WEAPONS
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 6 : 1 1 BY A P 6 5 8 1
COMMENT COMP STATED THAT SHE WILL BE I N THE FRONT OF THE HOME
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 5 : 5 4 BY AP6.581
COMMENT COMP STATED AUNT HAS BEEN
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 5 : 3 7 BY A P 6 5 8 1
COMMENT COMP STATING THAT HER AUNT I S THE SUBJ WHO
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 5 : 1 0 BY A P 6 5 8 1
COMMENT HEAR VERBAL D I S T
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 4 : 4 5 BY A P 6 5 8 1
COMMENT EMS CLRD
DATE 0 5 / 2 2 / 2 0 1 0 2 2 : 4 4 : 4 0 BY A P 6 5 8 1
COMMENT COMP STATED THAT SOMEONE J U S T M M M l l i H I U I H M M
MYSELF AND OFFICER ASTRAN, WHO ARE BOTH W B K K K t / K K M K t K B K M ' W E R £

DISPATCHED TO THE SCENE, MEDIC 8 WAS ON SCENE AND SPEAKING TO THE RESIDENT:
KAREN KUESTER W/F 0 4 - 3 0 - 6 1
KAREN WAS L U C I D , COHERENT AND COOPERATIVE. SHE ADVISED EMS SHE WAS
B H H AND REFUSED TRANSPORT. I SPOKE TO KAREN I N S I D E HER RESIDENCE
WHILE O F F I C E R ASTRAN SPOKE TO HER NIECE WHO WAS ALSO THE COMPLAINANT.
KAREN STATED SHE AND HER ' L I F E PARTNER' WERE GOING THRU A SEPARATION AND
SHE HAB FOUND OUT HE WAS WITH ANOTHER YOUNG WOMAN AT THE COAST. SHE ALSO
H A V
E
STATED HER MEDICAL PROBLEMS, CONTRIBUTED TO HER
RELATIONSHIP PROBLEMS. KAREN WENT ON TO SAY, SHE HAS BEEN HAVING A HARD
TIME DEALING WITH HER RECENT BREAK UP BUT DID NOT WANT TO HURT HERSELF.

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5 129746662 07:45:42 03-13-2013 15/19

G O # 2010-1422360 C L E A R E D 3461-0
ADMINISTRATIVELY
Follow U p R e p o r t # 3
OFFICER ASTRAN ADVISED KARENS NIECE HAD BEEN WITH HER ALL DAY. SHE STATED
KAREN HAD DISCHARGED A GUN I N THE HOUSE AND WAS GOING
WHEN I SPOKE TO KAREN ABOUT THE INCIDENT WITH THE GUN, SHE ADMITTED TO
ACCIDENTLY SHOOTING A ROUND INTO HER BED WHILE SHE WAS ON THE PHONE WITH
HER S I S T E R : -
SARAH GREEN
SHE STATED SHE HAD FOUND THE GUN, WHILE PACKING UP HER BELONGINGS, AND THE
GUN HAD ACCIDENTLY DISCHARGED. KAREN ALSO STATED SHE DID NOT MAKE ANY
STATEMENTS ABOUT I ASKED KAREN I F I COULD SPEAK TO HER
S I S T E R AND SHE VOLUNTEERED HER S I S T E R S PHONE NUMBER AND ALLOWED ME TO USE
HER LAND L I N E TO PLACE THE CALL TO HER.
I SPOKE TO SARAH WHILE I WAS I N S I D E THE HOUSE, WHILE KAREN SAT OUTSIDE
SMOKING A CIGARETTE. I ADVISED SARAH WHO I WAS AND WHY I WAS CALLING HER.
SARAH F I R S T QUESTION TO ME WAS I F HER S I S T E R WAS. OK. I ADVISED HER SHE WAS
F I N E AND THAT I WAS WITH HER AND ASKED HER I F SHE COULD ADVISE ME OF ANY
CONVERSATIONS SHE HAD WITH HER S I S T E R OVER THE LAST SEVERAL DAYS. SARAH
STATED KAREN HAS BEEN CONTEMPLATING • • • • ^ O R THE LAST TWO TO THREE
WEEKS. KAREN TOLD HER THE BREAK UP WAS TOO MUCH FOR HER TO DEAL WITH AND
HER MEDICAL CONDITION WAS TOO PAINFUL TO L I V E WITH ANYMORE. SARAH ALSO
STATED SHE WAS ON THE PHONE WITH HER WHEN SHE DISCHARGED THE GUN. SARAH
I FOUND SARAHS STATEMENTS TO BE GENUINE AND CREDIBLE, SARAH ONLY SEEMED

CONCERED WITH KARENS WELFARE.
I AGAIN SPOKE TO OFFICER ASTRAN WHO CONFIRMED SARAHS STATEMENTS WERE

CONSISTANT WITH THOSE OF KARENS N I E C E .
*** CONFIDENTIAL***
0For: AP7153 Printed On: Mar-12-2013 (Tue.)

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G O # 2010-1422360 C L E A R E D 3461-0
ADMINISTRATIVELY
Clearance Information
Agency: AUSTIN POLICE DEPARTMENT (AP)
Cleared status: NOT APPLICABLE - NOT APPLICABLE
Cleared on; May-24-2010 (Mon.)
Complainant/Victim notified: N O

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5129746662 07:46:32 03-13-2013 17/19

GO# 2010-1422360 CLEARED 3461-0
ADMINISTRATIVELY
Related Property Report

s -
Report Information
Property Report#: 1729989
Property case status: SAFEKEEPING
Submitted on: May-23-2010 (Sun.) by: ASTRAN, KRISTY
Related:
Offense: GO 2010-1422360
Location:
Municipality: AUSTIN County: TRAVIS COUNTY
District: BA Zone: 4
Related items: 1
F i r e a r m -Evidence
Status: SAFEKEEPING
Tag#: 1729989-1
Make: TAURUS
• Item: O T H E R Type: REVOLVER
Barrel length: 0.4 Finish:
Serial #: LD51898
OAN: Value: $1.00
Description: .38 REVOLVER BLACK BARREL W BROWM HAND GRIP
Recovered date: - Recovered value: $0.00
Flags: *e
Current Location: H G 134
Flags = d (disposed) x (x-reference) n (entered on NCIC) *e (evidence)

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5129746662 07:46:54 03-13-2013 18/19

GO# 201(1-1422360 CLEARED 3461-0
ADMINISTRATIVELY
Related Property Report(s)

Report Information
Property R e p o r t #: 1729993
Property case status; SAFEKEEPING
Submitted on: May-23-2010 (Sun,) by: ASTRAN, KRISTY
Related:
Offense: GO 2010-1422360
Location:
Municipality: AUSTIN County: TRAVIS COUNTY •
District: BA Zone: 4
Related items: 1
Firearm - E
e videnc •
Status; SAFEKEEPING
Tag#: 1729993-1
Make: TAURUS
Item: LIVE AMMO/BULLETS Type: REVOLVER
OAN: Value: $1.00
Description: F O U R BULLETS UNFIRED , 1 BULLET F I R E D
Recovered date: - Recovered value: $0.00
Flags; *e
Current Location: I-IG134
Flags = d (disposed) x (x-reference) n (entered oaNCIC) *e (evidence)

For: AP7153 Printed On: Mar-'12-2013 (Tue.) Page 1
5129746662 07:47:15 03-13-2013 19/19

GO# 2010-14223 60 CLEARED 3461-0111 .gSMSMi
ADMINISTRATIVELY '
*** END O F HARDCOPY ***

For; AP7153 Printed On: Mar-IMOD ( T r n )
APPENDIX B
October 13, 2010, 10:45
PAGE 1
NH SG-SSA-16
UNIT: V W D I B
KAREN E KUESTER
AUSTIN TX
APPLICATION SUMMARY FOR DISABILITY INSURANCE BENEFITS
O n October 13, 2010, we talked with you and completed your application f o r
SOCIAL SECURITY BENEFITS. We stored this information electronically in o u r
records. W e are enclosing a summary of your statements.
I APPLY FOR A PERIOD OF DISABILITY AND/OR ALL INSURANCE BENEFITS FOR WHICH I AM
ELIGIBLE UNDER TITLE II AND PART A OF TITLE XVIII OF THE SOCIAL SECURITY ACT,
A S PRESENTLY AMENDED.
M Y NAME IS KAREN E KUESTER.
I HAVE USED THE FOLLOWING NAME(S) :

KAREN E KVESTER
M Y SOCIAL SECURITY NUMBER IS
M Y DATE O F BIRTH IS *.
I AM A CITIZEN O F THE UNITED STATES.
I BECAME UNABLE TO WORK BECAUSE OF MY DISABLING CONDITION O N April 1, 2004.
I AM STILL DISABLED.
NO PREVIOUS APPLICATION HAS BEEN FILED WITH THE SOCIAL SECURITY ADMINISTRATION
BY OR FOR ME.
I HAVE FILED O R INTEND TO FILE FOR SSI.
I HAVE N O T FILED N O R DO I INTEND TO FILE FOR ANY WORKERS' COMPENSATION, PUBLIC

DISABILITY O R BLACK LUNG BENEFITS.
I AM N O T ENTITLED TO NOR DO I EXPECT TO BECOME ENTITLED TO A PENSION OR ANNUITY
BASED I N WHOLE OR IN PART O N WORK AFTER 1956 NOT COVERED BY SOCIAL SECURITY.
I NEVER MARRIED OR I HAD NO PREVIOUS MARRIAGES THAT LASTED 10 YEARS OR MORE OR

ENDED I N DEATH.
000119
oz:iooo "
October 13, 2010, 10:45"
PAGE 2
NH SG-SSA-16
I DO N O T HAVE A N Y CHILDREN UNDER AGE 18; AGE 18-19 ATTENDING ELEMENTARY O R

SECONDARY SCHOOL FULL TIME; OR AGE 18 OR OVER AND DISABLED BEFORE A G E 22 WHO
MAY B E ELIGIBLE FOR SOCIAL SECURITY BENEFITS ON THIS RECORD. THIS INCLUDES
CHILDREN WHO M A Y OR M A Y NOT BE LIVING WITH ME.
I UNDERSTAND THAT I MUST PROVIDE MEDICAL EVIDENCE ABOUT MY DISABILITY, O R .

ASSIST THE SOCIAL SECURITY ADMINISTRATION IN OBTAINING THE EVIDENCE.
I UNDERSTAND THAT I MAY B E REQUESTED BY THE STATE DISABILITY DETERMINATION

SERVICES TO HAVE A CONSULTATIVE EXAMINATION AT THE EXPENSE OF THE SOCIAL
SECURITY ADMINISTRATION AND THAT IF I DO NOT GO, M Y CLAIM MAY B E DENIED.
I AUTHORIZE ANY PHYSICIAN, HOSPITAL, AGENCY, OR OTHER ORGANIZATION TO DISCLOSE

ANY MEDICAL RECORD O R INFORMATION ABOUT MY DISABILITY TO THE SOCIAL SECURITY
ADMINISTRATION O R T O THE STATE DISABILITY DETERMINATION SERVICES THAT M A Y
REVIEW M Y CLAIM OR CONTINUING DISABILITY.
I AUTHORIZE THE SOCIAL SECURITY ADMINISTRATION TO RELEASE ANY INFORMATION ABOUT

ME TO A PHYSICIAN O R MEDICAL FACILITY PREPARATORY TO A N EXAMINATION O R TEST.
RESULTS OF SUCH EXAMINATION OR TEST MAY BE RELEASED TO M Y PHYSICIAN O R OTHER
TREATING SOURCE.
I AUTHORIZE THAT INFORMATION ABOUT MY DISABILITY MAY B E FURNISHED TO ANY

CONTRACTOR FOR CLERICAL SERVICES B Y THE STATE DISABILITY DETERMINATION
SERVICES.
I AGREE TO NOTIFY THE SOCIAL SECURITY ADMINISTRATION O F ALL EVENTS A S EXPLAINED

TO ME.
REMARKS:
I AGREE WITH THE EARNINGS AS SHOWN ON MY SOCIAL SECURITY STATEMENT.
I KNOW THAT ANYONE WHO MAKES OR CAUSES TO BE MADE A FALSE STATEMENT OR

REPRESENTATION OF MATERIAL FACT IN AN APPLICATION O R FOR USE IN DETERMINING A
RIGHT T O PAYMENT UNDER THE SOCIAL SECURITY ACT COMMITS A CRIME PUNISHABLE UNDER
FEDERAL LAW BY FINE, IMPRISONMENT OR BOTH. I AFFIRM THAT ALL INFORMATION I HAVE
GIVEN I N CONNECTION WITH THIS CLAIM IS TRUE.
MY TELEPHONE NUMBER IS ( 512)

IZIOOO
October 13, 2010, 10:45
PAGE 3
NH SG-SSA-16
SOCIAL SECURITY ADMINISTRATION
IMPORTANT INFORMATION
RECEIPT FOR YOUR CLAIM FOR SOCIAL SECURITY DISABILITY INSURANCE BENEFITS
KAREN E KUESTER
AUSTIN TX
UNIT: V W D I B
YOUR APPLICATION FOR SOCIAL SECURITY BENEFITS HAS BEEN RECEIVED AND WILL B E
PROCESSED AS QUICKLY A S POSSIBLE.
Y O U SHOULD HEAR FROM US WITHIN DAYS AFTER YOU HAVE GIVEN US ALL THE
INFORMATION W E REQUESTED. SOME CLAIMS MAY TAKE LONGER IF ADDITIONAL INFORMATION
IS NEEDED.
IN THE MEANTIME, IF Y O U CHANGE YOUR ADDRESS, OR IF THERE IS SOME OTHER CHANGE

THAT M A Y AFFECT YOUR CLAIM, YOU - O R SOMEONE FOR Y O U - SHOULD REPORT THE
CHANGE.
We are providing the attached application for your records.
We stored your application information electronically so there is no reason for

us to retain a paper copy of your application.
IMPORTANT REMINDER
Penalty of Perjury
You declared under penalty of perjury that you examined all the information on
this form and it is true and correct to the best of your knowledge. You were
told that you could be liable under law for providing false information.
THE TELEPHONE NUMBERS TO CALL IF YOU HAVE A QUESTION O R SOMETHING TO REPORT

ARE:
BEFORE YOU RECEIVE A NOTICE ABOUT YOUR CLAIM:
AFTER YOU RECEIVE A NOTICE ABOUT YOUR CLAIM:

October 13, 2010, 10:45"
PAGE 4
NH SG-SSA-16
SOCIAL SECURITY INFORMATION IS ALSO AVAILABLE TO INTERNET USERS A T

WWW. SOCIALSECURITY. GOV.
What Y o u Need To Do
o Review the summary to make sure we recorded your statements correctly.
o If you agree with all your statements, you may keep the information for
y o u r records.
o If you disagree with any of your statements, please contact us within 10

days after receiving this notice to let us know.
ALWAYS GIVE US YOUR CLAIM NUMBER WHEN WRITING O R TELEPHONING ABOUT YOUR
CLAIM. IF YOU HAVE ANY QUESTIONS ABOUT YOUR CLAIM, W E WILL BE GLAD TO
HELP Y O U .
W E ARE RETURNING ANY DOCUMENT(S) YOU MAY HAVE SUBMITTED WITH YOUR APPLICATION.
HELPFUL HEALTH CARE WEBSITES
Health Information
The U.S. Department of Health and Human Services provides information on many
health topics at www.healthfinder.gov on the Internet. You may wish to visit
*-.hat site to review that information, which may be helpful to you.
Prescription Drug Assistance Programs
You m a y be able to get help paying for prescription drugs. To find out what
programs are offered b y drug companies, state and local governments, and local
organizations, please visit www.healthfinder.gov/rxdrug o n the Internet.
CLAIMANT SOCIAL SECURITY CLAIM NO.

KAREN E KUESTER
000122
October 13, 2010, 10:45
PAGE 5
NH SG-SSA-16
REPORTING RESPONSIBILITIES FOR DISABILITY INSURANCE BENEFITS
KAREN E KUESTER
AUSTIN TX
CHANGES TO B E REPORTED AND HOW TO REPORT
FAILURE TO REPORT MAY RESULT IN OVERPAYMENTS THAT MUST BE REPAID, AND I N

POSSIBLE MONETARY PENALTIES
o Y o u change your mailing address for checks or residence. To avoid delay

i n receipt of checks you should ALSO file a regular change of address
notice with your post office.
o Y o u r citizenship o r immigration status changes.
o Y o u go outside the U.S.A. for 30 consecutive days or longer.
o A n y beneficiary dies o r becomes unable to handle benefits.
o Y o u are confined to jail, prison, penal institution or correctional

facility for conviction of a crime or you are confined to a public
institution b y court order in connection with a crime.
o Y o u have a n unsatisfied warrant for your arrest for a crime o r attempted

crime that is a felony (or, in jurisdictions that do not define crimes as
felonies, a crime that is punishable by death o r imprisonment for a term
exceeding 1 year).
o Y o u have a n unsatisfied warrant for a violation of probation o r parole

under Federal or State law.
o Your stepchild is entitled to benefits on your record and you and the
stepchild's parent divorce. Stepchild benefits are not payable beginning
w i t h the month after the month the divorce becomes final.
o Custody Change - Report if a person for whom you are filing, o r who is in
your care dies, leaves your care or custody, o r changes address.
o Change of Marital Status - Marriage, divorce, annulment of marriage.
o You become entitled to a pension or annuity based on your employment

after 1956 not covered b y Social Security, or if such pension or annuity
stops.
o Y o u return to work (as a n employee or self-employed) regardless of the
amount of earnings.
000123
reiooo
October 13, 2010, 10:45*
PAGE 6
NH ' SG-SSA-16
o Your condition improves.
o If you are under age 65 and you apply for or begin to receive Workers'
Compensation or another public disability benefit (including Black Lung
benefits), o r the amount of your present Workers' Compensation or public
benefit changes or stops, or you receive a lump sum settlement.
HOW TO REPORT
You can make your reports by telephone, mail, or in person, whichever you
prefer.
If you are awarded benefits, and one or more of the above change(s) occur, you
should report by:
O Calling us TOLL FREE at 1-800-772-1213;
o If you are deaf or hearing impaired, calling us TOLL FREE at TTY

1-800-325-0778; or
o Calling, visiting or writing your local Social Security Office at the

phone number and address above.
For general information about Social Security, visit our website at

w
, ww.socialsecurity.gov
^or those under full retirement age, the law requires that a report of earnings
filed with SSA within 3 months and 15 days after the end of any taxable year
in which you earn more than the annual exempt amount. You may contact SSA to
file a report. Otherwise, SSA will use the earnings reported b y your
employer(s) and your self-employment tax return (if applicable) as the report
of earnings required by law and adjust benefits under the earnings test. It is
your responsibility to ensure that the information you give concerning your
earnings is correct. You must furnish additional information as needed w h e n
your benefit adjustment is not correct based on the earnings o n your record.
NOTICE ABOUT DOCUMENTS
We recommend that you keep all documents you submitted to us.

We are returning the documents you submitted with this claim.
Collection and Use of Information From Your Application -

Privacy Act Notice / Paperwork Reduction Act Notice
The Social Security Administration is authorized to collect the information

requested on this form under sections 202, 205 and 223 of the Social Security
Act. The information you provide will be used by the Social Security
Administration to determine if you or a dependent is eligible to insurance
coverage and/or monthly benefits. You do not have to give us the requested
information. However, if you do not provide the information, w e will be unable
to make a n accurate and timely decision concerning your entitlement or a
dependent's entitlement to benefit payments.
October 13, 2010, 10:45
PAGE 7
NH SG-SSA-16
The information you provide may be disclosed to another Federal, State o r local
government agency for determining eligibility for a government benefit o r
program, to a Congressional office requesting information on your behalf, to an
independent party for the performance of research and statistical activities,
or to t h e Department of Justice for use in representing the Federal Government.
We may also use this information when we match records by computer. Matching
programs compare our records with those of other Federal, State, o r local
government agencies. Many agencies may use matching programs to find o r prove
that a person qualifies for benefits paid by the Federal government. The law
allows u s to do this even if you do not agree to it.
Explanations about these and other reasons why information you provide m a y be
used o r given out are available in Social Security offices. If you want t o
learn m o r e about this, contact any Social Security office.
Paperwork Reduction Act Statement - This information collection meets t h e

requirements of 44 U.S.C. 3507 as amended in section 2 of the Paperwork
Reduction Act of 1995. You do not need to answer these questions unless w e
display a valid Office of Management and Budget control number. We estimate
that it will take about 20 minutes to read the instructions, gather the facts
and a n s w e r the questions. SEND OR BRING THE COMPLETED FORM TO YOUR LOCAL SOCIAL
SECURITY OFFICE. The office is listed under U.S. Government agencies in your
telephone directory or you may call Social Security at 1-800-772-1213. You may
send comments o n our time estimate above to: SSA, 6401 Security Blvd. Baltimore
MD 21235-6401. Send only comments relating to our time estimate to this
address, not the completed form.
000125
APPENDIX C
GREEN I KUESTER RELATIONSHIP TIMELINE
Kuester submits
Kuester and Application to
Green Social Security
conversation Administration for
where Green Disability
allegedly Insurance
promises that Benefits under
"they were to be penalty of perjury Kuester tells Kuester
married' and - "I never married Kuester Green she completes
Green would take or I had no signs Last intends to admission form to
care of Kuester Kuester filed Kuester signs Kuester filed Kuester filed previous marriage Will and keep the "we Mountain View
Green and "for the rest of her Kuester sells her income tax return Last Will and income tax return income tax return that lasted 10 Testament - are not facility -
Kuester began life," and buy a home as a "Single with "Single" Testament-"! am with "Single" with "Single" years or more or "I am not going to get designates
dating house together Person" designation not married" designation designation ended in death" married" married" ring herself as "Single"
V v v V
A A A A A A A A
Kuester breaks off Kuester moves into Green signs Trust Kuester looks for Kuester purchases Kuester amends Kuester filed Kuester signs Last Kuester completes
Kuester filed
relationship with Green Residence Agreement - He attorney to review income tax return new Home as tax return to take income tax return Will and admission form to
Green and Kuester "shall draft Prenup with "Single" individual in her advantage of First with "Single" Testament-"! am A Woman's View
not be considered Agreement and designation name alone Time Home Buyer designation not married" facility - designates
married, formally or explain her rights Tax Credit-again herself as "Single"
informally, unless as a "domestic designates herself
they are formally partner," in case as "Single"
married after Green gets "Cold
issuance of a Feet." (Ex. C-4)
marriage license
and pursuant to a
formal wedding
ceremony"

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ACCEPTED

ON APPEAL FROM THE 200TH DISTRICT COURT

James G. Ruiz Carly Gallagher

ATTORNEYS FOR APPELLEE

ORAL ARGUMENT REQUESTED

TRIAL & APPELLATE COUNSEL:

TRIAL & APPELLATE COUNSEL:

Nature of the Case: Green prevailed on his traditional summary judgment

IDENTITIES OF PARTIES AND COUNSEL . II

STATEMENT REQUESTING ORAL ARGUMENT Ill

STATEMENT OF THE CASE IV

II. KUESTER WAIVED HER RIGHT TO CHALLENGE THE

A. KUESTER FAILED TO RAISE AN ISSUE ON APPEAL

B. KUESTER CHALLENGED THE TRIAL COURT'S

1. No Evidence Summary Judgment 13

2. Traditional Summary Judgment 13

III. TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT

A. KUESTER FAILED TO OVERCOME THE STATUTORY

1. Summary judgment evidence established Kuester and

2. Kuester repeatedly admitted she was not married and held

B. GREEN NEGATED THE SECOND ELEMENT OF A

C. GREEN NEGATED THE THIRD ELEMENT OF A COMMON

IV. TRIAL COURT PROPERLY EXCLUDED HEARSAY AND OTHER

A. KUESTER'S AFFIDAVIT TESTIMONY CONCERNING

B. KUESTER'S AFFIDAVIT TESTIMONY CONCERNING

Aguillera v. John G. & Marie Stella Kenedy Mem 7 Found.,

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Ruizv. Government Employees Ins. Co.,

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Temple I.S.D. v. En glish,

Tex. Dept. of Transportation v. City of Sunset Valley,

Texas Employers' Ins. Ass 'n v. Borum,

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Winfield v. Ren fro,

TEX. FAM. CODE ANN. §2.401(a)(2) (Vernon 2012) 26,27

TEX. FAM. CODE ANN. §2.401(b) (Vernon 2012) 12,27

TEX. R. APP. P. 38.1(e) 21

TEX. R. CIV. P. 166a(c) 25

Tex. R. Evid. 801 (d) 41

IN THE COURT OF APPEALS FOR THE

ON APPEAL FROM THE 200TH DISTRICT COURT

Ivor Green ("Green"), Appellee, submits his Brief of Appellee in response to