City of San Antonio v. Roxana Tenorio, Individually and on Behalf of Pedro Tenorio

ACCEPTED
04-15-00259-CV
FOURTH COURT OF APPEALS
Appellate Docket Number: 04-15-00259-CV SAN ANTONIO, TEXAS
4/28/2015 4:17:35 PM
KEITH HOTTLE
Appellate Case Style: City of San Antonio CLERK

Vs.
Roxana Tenorio, Individually and on behalf of Pedro Tenorio, Deceased

Companion Case No.:
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
4/28/2015 4:17:35 PM
Amended/corrected statement: DOCKETING STATEMENT (Civil) KEITH E. HOTTLE
Clerk
Appellate Court:4th Court of Appeals
(to be filed in the court of appeals upon perfection of appeal under TRAP 32)

I. Appellant II. Appellant Attorney(s)
Person Organization (choose one) Lead Attorney
Organization Name: City of San Antonio First Name: Daniel
First Name: Middle Name: V
Middle Name: Last Name: Pozza
Last Name: Suffix:
Suffix: Law Firm Name: Law Offices of Dan Pozza

Pro Se: Address 1: 239 E. Commerce
Address 2:
City: San Antonio
State: Texas Zip+4: 78205
Telephone: 210-226-8888 ext.
Fax: 210-222-8477
Email: danpozza@yahoo.com
SBN: 16224800

I. Appellant II. Appellant Attorney(s)
Person Organization (choose one) Lead Attorney
Organization Name: City of San Antonio First Name: Michael
First Name: Middle Name: David
Middle Name: Last Name: Siemer
Last Name: Suffix:
Suffix: Law Firm Name: City of San Antonio, City Attorney's Office

Pro Se: Address 1: 111 Soledad, 10th floor
Address 2:

Page 1 of 8
 City: San Antonio
State: Texas Zip+4: 78205
Telephone: 210-207-8784 ext.
Fax: 210-207-4357
Email: michael.siemer@sanantonio.gov
SBN: 18343670

III. Appellee IV. Appellee Attorney(s)
Person Organization (choose one) Lead Attorney
First Name: Joe
First Name: Roxana Middle Name: Brad
Middle Name: Last Name: Brock
Last Name: Tenorio Suffix:
Suffix: Law Firm Name: Law Office of Joe Brad Brock
Pro Se: Address 1: 5866 S. Staples, Suite 103
Address 2:
City: Corpus Christi
State: Texas Zip+4: 78413
Telephone: 361-884-1086 ext.
Fax: 361-884-8446
Email: joebrad@thebrocklawfirm.com
SBN: 03040830

Page 2 of 8
V. Perfection Of Appeal And Jurisdiction

Nature of Case (Subject matter or type of case): Governmental Immunity

Date order or judgment signed: April 20, 2015 Type of judgment: Interlocutory Order
Date notice of appeal filed in trial court: April 28, 2015
If mailed to the trial court clerk, also give the date mailed: April 28, 2015
Interlocutory appeal of appealable order: Yes No
If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28):
TEX CIV. PRAC & REM CODE ANN. SECTION 51.014(a)(8)
Accelerated appeal (See TRAP 28): Yes No
If yes, please specify statutory or other basis on which appeal is accelerated:
TRAP 28.1

Parental Termination or Child Protection? (See TRAP 28.4): Yes ■ No

Permissive? (See TRAP 28.3): Yes No
If yes, please specify statutory or other basis for such status:

Agreed? (See TRAP 28.2): Yes No
If yes, please specify statutory or other basis for such status:

Appeal should receive precedence, preference, or priority under statute or rule: Yes No
If yes, please specify statutory or other basis for such status:

Does this case involve an amount under $100,000? Yes No
Judgment or order disposes of all parties and issues: Yes No
Appeal from final judgment: Yes No
Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? Yes No

VI. Actions Extending Time To Perfect Appeal

Motion for New Trial: Yes No If yes, date filed:
Motion to Modify Judgment: Yes No If yes, date filed:
Request for Findings of Fact Yes No If yes, date filed:
and Conclusions of Law:
Yes No If yes, date filed:
Motion to Reinstate:
Yes No If yes, date filed:
Motion under TRCP 306a:
Other: Yes No
If other, please specify:

VII. Indigency Of Party: (Attach file-stamped copy of affidavit, and extension motion if filed.)

Affidavit filed in trial court: Yes No If yes, date filed:

Contest filed in trial court: Yes No If yes, date filed:

Date ruling on contest due:

Ruling on contest: Sustained Overruled Date of ruling:

Page 3 of 8
VIII. Bankruptcy

Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? Yes No
If yes, please attach a copy of the petition.

Date bankruptcy filed: Bankruptcy Case Number:

IX. Trial Court And Record

Court: 73rd Judicial District Court Clerk's Record:
County: Bexar County Trial Court Clerk: District County
Trial Court Docket Number (Cause No.): 2014CI14704 Was clerk's record requested? Yes No
If yes, date requested: April 22, 2015
Trial Judge (who tried or disposed of case): If no, date it will be requested:
First Name: Stephani Were payment arrangements made with clerk?
Middle Name: Yes No Indigent
Last Name: Walsh
(Note: No request required under TRAP 34.5(a),(b))
Suffix:
Address 1: 100 Dolorosa
Address 2 :
City: San Antonio
State: Texas Zip + 4: 78205
Telephone: 210-335-2507 ext.
Fax: 210-335-1317
Email: stephani.walsh@bexar.org

Reporter's or Recorder's Record:

Is there a reporter's record? Yes No
Was reporter's record requested? Yes No

Was there a reporter's record electronically recorded? Yes No
If yes, date requested: April 22, 2015

If no, date it will be requested:
Were payment arrangements made with the court reporter/court recorder? Yes No Indigent

Page 4 of 8
 Court Reporter Court Recorder
Official Substitute

First Name: Sharon
Middle Name:
Last Name: McDonald
Suffix:
Address 1: 6838 Country Hill
Address 2:
City: San Antonio
State: Texas Zip + 4: 78240
Telephone: 210-887-4477 ext.
Fax:
Email: sherrimc777@aol.com

X. Supersedeas Bond
Supersedeas bond filed: Yes No If yes, date filed:

Will file: Yes No

XI. Extraordinary Relief

Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? Yes No
If yes, briefly state the basis for your request:

XII. Alternative Dispute Resolution/Mediation (Complete section if filing in the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th,
or 14th Court of Appeal)
Should this appeal be referred to mediation?
Yes No

If no, please specify:The legal issue involved is difficult to mediate.
Has the case been through an ADR procedure? Yes No
If yes, who was the mediator?
What type of ADR procedure?
At what stage did the case go through ADR? Pre-Trial Post-Trial Other

If other, please specify:

Type of case? Governmental Immunity
Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without
prejudice to the right to raise additional issues or request additional relief):
Governmental immunity based upon Plaintiff's failure to give notice

How was the case disposed of? Other
Summary of relief granted, including amount of money judgment, and if any, damages awarded.
If money judgment, what was the amount? Actual damages: $0.00
Punitive (or similar) damages: $0.00

Page 5 of 8
Attorney's fees (trial): $0.00
Attorney's fees (appellate): $0.00
Other: $0.00
If other, please specify:

Will you challenge this Court's jurisdiction? Yes No
Does judgment have language that one or more parties "take nothing"? Yes No
Does judgment have a Mother Hubbard clause? Yes No
Other basis for finality?
Rate the complexity of the case (use 1 for least and 5 for most complex): 1 2 3 4 5
Please make my answer to the preceding questions known to other parties in this case. Yes No
Can the parties agree on an appellate mediator? Yes No
If yes, please give name, address, telephone, fax and email address:
Name Address Telephone Fax Email

Languages other than English in which the mediator should be proficient:
Name of person filing out mediation section of docketing statement:

XIII. Related Matters
List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.

Docket Number: Trial Court:

Style:

Vs.

Page 6 of 8
XIV. Pro Bono Program: (Complete section if filing in the 1st, 3rd, 5th, or 14th Courts of Appeals)
The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar
Associations, are conducting a program to place a limited number of civil appeals with appellate counsel who will represent the appellant in
the appeal before this Court.

The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of
discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can be matched
with appellate counsel, that counsel will take over representation of the appellant or appellee without charging legal fees. More information
regarding this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the Internet at
www.tex-app.org. If your case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Committee within
thirty (30) to forty-five (45) days after submitting this Docketing Statement.
Note: there is no guarantee that if you submit your case for possible inclusion in the Pro Bono Program, the Pro Bono Committee will select
your case and that pro bono counsel can be found to represent you. Accordingly, you should not forego seeking other counsel to represent you
in this proceeding. By signing your name below, you are authorizing the Pro Bono committee to transmit publicly available facts and
information about your case, including parties and background, through selected Internet sites and Listserv to its pool of volunteer appellate
attorneys.
Do you want this case to be considered for inclusion in the Pro Bono Program? Yes No

Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the committee may have
regarding the appeal? Yes No

Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for
the purposes of considering the case for inclusion in the Pro Bono Program.

If you have not previously filed an affidavit of Indigency and attached a file-stamped copy of that affidavit, does your income exceed 200% of
the U.S. Department of Health and Human Services Federal Poverty Guidelines? Yes No

These guidelines can be found in the Pro Bono Program Pamphlet as well as on the internet at http://aspe.hhs.gov/poverty/06poverty.shtml.

Are you willing to disclose your financial circumstances to the Pro Bono Committee? Yes No
If yes, please attach an Affidavit of Indigency completed and executed by the appellant or appellee. Sample forms may be found in the Clerk's
Office or on the internet at http://www.tex-app.org. Your participation in the Pro Bono Program may be conditioned upon your execution of
an affidavit under oath as to your financial circumstances.

Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without
prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary).

XV. Signature

Signature of counsel (or pro se party) Date: April 28, 2015

Printed Name: Daniel V. Pozza State Bar No.: 16224800

Electronic Signature: /s/ Daniel V. Pozza
(Optional)

Page 7 of 8
XVI. Certificate of Service

The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial
court's order or judgment as follows on April 28, 2015 .

Signature of counsel (or pro se party) Electronic Signature: /s/ Daniel V. Pozza
(Optional)

State Bar No.: 16224800
Person Served
Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must
state:
(1) the date and manner of service;
(2) the name and address of each person served, and
(3) if the person served is a party's attorney, the name of the party represented by that attorney

Please enter the following for each person served:

Date Served: April 28, 2015
Manner Served: eServed

First Name: Joe

Middle Name: Brad
Last Name: Brock
Suffix:
Law Firm Name: Law Offices of Joe Brad Brock
Address 1: 5866 S. Staples, Suite 103
Address 2:
City: Corpus Christi
State Texas Zip+4: 78413
Telephone: 361-884-1086 ext.
Fax: 361-884-8446

Email: joebrad@thebrocklawfirm.com

If Attorney, Representing Party's Name: Roxana Tenorio

Page 8 of 8
 04-15-00259-CV

NO. 2014-CI-14704

ROXANA TENORIO, § IN THE DISTRICT COURT
IDNIVIDUALLY AND ON BEHALF §
OF PEDRO TENORIO, DECEASED §
§
vs. § 73rd JUDICIAL DISTRICT
§
BENITO GARZA AND §
CITY OF SAN ANTONIO § BEXAR COUNTY, TEXAS

CITY OF SAN ANTONIO’S NOTICE OF APPEAL

Defendant, City of San Antonio (“COSA”), desires to appeal from the Order Denying

Defendant, City of San Antonio's Plea to the Jurisdiction signed by the Honorable Stephani

Walsh, Presiding Judge of the 45th Judicial District Court of Bexar County, on April 20, 2015.

I.

COSA appeals to the Fourth Court of Appeals.

II.

The appeal of this case is an accelerated appeal.

III.

Attached to this Notice is the interlocutory order from which COSA files this appeal.

Respectfully submitted,

CITY OF SAN ANTONIO
Martha G. Sepeda, Acting City Attorney
State Bar No. 13143100
Michael D. Siemer, Assistant City Attorney
State Bar No. 18343670
Office of the City Attorney
Litigation Division
111 Soledad Street, 10th Floor
San Antonio, TX 78205
(210) 207-8784 – Phone
(210) 207-4357 – Fax

City of San Antonio’s Notice of Appeal Page 1
 LAW OFFICE OF DAN POZZA
239 E. Commerce Street
San Antonio, TX 78205
(210) 226-8888 – Phone
(210) 224-6373 – Fax
danpozza@yahoo.com

/s/Dan Pozza
State Bar No. 16224800

Attorneys for Defendant, City of San Antonio

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing City of San Antonio’s Notice
of Appeal was forwarded via e-mail transmission on the 28th day of April, 2015, to:

Joe Brad Brock
Law Office of Joe Brad Brock
5866 S. Staples, Suite 103
Corpus Christi, TX 78413
joebrad@thebrocklawfirm.com

/s/Dan Pozza

City of San Antonio’s Notice of Appeal Page 2
 No. 2014CI14704

ROXANA TENORIO, INDIVIDUALLY § IN THE DISTRICT COURT
AND ON BEHALF OF PEDRO
TENORIO, DECEASED
§
v. § 73RD JUDICIAL DISTRICT
§
BENITO GARZA AND CITY OF SAN §
ANTONIO § BEXAR COUNTY, TEXAS

ORDER DENYING DEFENDANT, CITY OF SAN ANTONIO'S
PLEA TO THE JURISDICTION

On this date came on to be heard Defendant CITY OF SAN ANTONIO'S Plea to

the Jurisdiction. The Plaintiff and the Defendant appeared by and through counsel, and

after considering the City of San Antonio's Plea to the Jurisdiction, the pleadings on file

and the argument of counsel, the Court finds the Defendant, City of San Antonio's Plea

to the Jurisdiction should be in all things DENIED.

Accordingly, it is Ordered, Adjudged, and Decreed that Defendant, City of San

Antonio's, Plea to the Jurisdiction is DENIED.
J'rf11../l-
SIGNED AND ENTERED this l0 day ofMttrch, 2015.
APPROVED AS TO FORM ONLY:

CITY OF SAN ANTONIO
Martha G. Sepeda, Acting City Attorney
SBN: 13143100
Office of the City Attorney
Litigation Division
111 Soled St., 1Otl1 Floor
'o, TX 78205
......

1emer
Assistant City Attorney
SBN: 18343670
(210) 207-8784 / (210) 207-4357 FAX
Attorney for Defendant, City ofSan Antonio
Envelope Details Page 1 of 2

Print this page

Case # 2014CI14704
Case Information
Location Bexar County - District Clerk
Date Filed 04/28/2015 08:03:12 AM
Case Number 2014CI14704
Case Description
Assigned to Judge
Attorney Michael Siemer
Firm Name San Antonio City Attorney's Office
Filed By Barbara Wagner
Filer Type Not Applicable
Fees
Convenience Fee $0.00
Total Court Case Fees $0.00
Total Court Filing Fees $0.00
Total Court Service Fees $0.00
Total Filing & Service Fees $0.00
Total Service Tax Fees $0.00
Total Provider Service Fees $0.00
Total Provider Tax Fees $0.00
Grand Total $0.00
Payment
Account Name Waiver
Transaction Amount $0.00
Transaction Response
Transaction ID
Order #

Notice of Appeal
Filing Type EFileAndServe
Filing Code Notice of Appeal
Filing Description City of San Antonio's Notice of Appeal
Reference Number
Comments City of San Antonio's Notice of Appeal
barbara.wagner@sanantonio.gov,
Courtesy Copies
danpozza@yahoo.com
Status Submitted

https://efile.txcourts.gov/EnvelopeDetails.aspx?envelopeguid=dce99653-4096-40dd-b9e9-... 4/28/2015
Envelope Details Page 2 of 2

Fees
Court Fee $0.00
Service Fee $0.00
Documents
Lead Document Notice of Appeal (7).pdf [Original]

eService Details
Date/Time
Name/Email Firm Service Type Status Served
Opened
Joe Brad Brock 04/28/2015
EServe Sent Yes
joebrad@thebrocklawfirm.com 08:54:55 AM
Martin J. Navarro Frey, Navarro &
EServe Sent Yes Not Opened
marty@fnwlawfirm.com Whorton, PLLC
San Antonio
Michael D. Siemer 04/28/2015
City Attorney's EServe Sent Yes
michael.siemer@sanantonio.gov 08:11:26 AM
Office
Elizabeth Smith Law Office of
EServe Sent Yes Not Opened
esmith@thebrocklawfirm.com Joe Brad Brock

https://efile.txcourts.gov/EnvelopeDetails.aspx?envelopeguid=dce99653-4096-40dd-b9e9-... 4/28/2015
 04-15-00259-CV

ALTERNATIVE DISPUTE RESOLUTION ADDENDUM TO CIVIL DOCKETING STATEMENT
FOURTH COURT OF APPEALS

Addendum Filing Due Date: APRIL 28, 2015_______________________________________

Court of Appeals No. ______________________________________________

Trial Court Case No. 2014-CI-14704___________________________________________

Trial Court Style: Roxana Tenorio, Individually and on Behalf of Pedro Tenorio, Deceased v. Benito Garza
and City of San Antonio

1. Was this case mediated at the trial court level? □ Yes X No

2. If yes, who was the mediator? N/A

3. State briefly the type of case and issues on appeal (e.g., breach of contract, divorce, oil and gas):
Governmental immunity, lack of actual notice under the Tort Claims Act

4. Do you believe mediation would be a beneficial tool in the resolution of this appeal?

□ Yes X No □ Willing to mediate if ordered by the Court.

5. If your answer to #4 above is no, please explain:

The legal issue involved is not readily subject to mediation

6. If this appeal is ordered to mediation, do you have a preferred mediator? NO
If so, state mediator’s name, address, and telephone number: N/A

Signature: /s/Dan Pozza Date: April 28, 2015

Type name and TBN: Daniel V. Pozza, 16224800

Attorney of Record for: City of San Antonio