Page 1 of 22 en 'ij^'1 No.04-14-00509-CV ^-7^ ? J" C.X ~&. » Sir CAUSE No 2013-CI-12691 ~ o XT FOURTH COURT OF APPEALS DISTRICT CADENA-REEVES JUSTICE CENTER 300 Dolorosa, Suite 300 San Antonio, Texas 78205-3037 Original Brief date February 9, 2015 APPELLANTS BRIEF - AMENDED 4-30-15. Page 2 of 22 GLORIA E. OCHOA-APPELLANT, APPELLANT IN PROPIA PERSONA V. NAIL FLOWER NAIL/BEAUTY SALON-APPELLEE. ON APPEAL FROM THE 224TH JUDICIAL DISTRICT COURT IN BEXAR COUNTY, TEXAS From the 224th Judicial District Court, Bexar County, Texas Trial Court No 2013-CI-12691 Honorable Antonia Arteaga, Judge Presiding Page 3 of 22 Appellant/Plaintiff: Plaintiff/Appellant's Counsel Gloria E. Ochoa - Appellant in Propria Persona 542 Williamsburg Place San Antonio, Texas 78201 Phone: 210-309-0744 Phone: 210-736-1408 Page 4 of 22 Appellee/Defendant: Defendant/Appellee's Counsel: Campbell, Miller & Associates Elizabeth W. Lennane IBN. 24053014 300 Convent, Suite 2350 San Antonio, Texas 78205 Phone: 210-229-9879 Fax 210-229-9878 PAGE 5 OF 22 TABLE OF CONTENTS: INDENTITY OF PARTIES AND COUNSEL ..........i INDEX OF AUTHORITIES iv STATEMENT OF CASE vi ISSUES PRESENTED vii STATEMENT REGARDING ORAL ARGUMENT viii STATEMENT OF FACTS 1 STATEMENT OF THE ARGUMENT 2 ARGUMENT 4 CONCLUSION AND PRAYER 5 CERTIFICATE OF SERVICE 6 APPENDIX 7 PAGE 6 OF 22 INDEX OF AUTHORITIES NEGLIGENCE. 322.01 (2), 322, 05 (2 CH 290). CASES Beauty Shops, Inc, v Foreman, 319 S. W. 2D 737, 738-739 9 Civ, App., - Houston 1958, see 322.01 (6). For additional causes of action, see 322.100 (2). (b)...Elements of Cause of Action for Negligence of Barber or Cosmetologist. Dickey v Jackson, 193 S. W. 584, 585 (CIV., Galveston 1927), reviewed on other ground. 1 s.w. 2D 577, (Comm, App 1928, judgement adopted and holding approved, see 322.05 (2) (a); See also Chg 20, damages in Tort). PROFESSIONAL MALPRACTICE 322.103 (1) (b) (322.76 (b)-ELEMENTS OF CAUSE OF ACTION FOR NEGLIGENCE OF BARBER OR COSMETOLOGISTS. This form alleges the five stanrdard elements of negligence: duty, breach of duty, proximate causation, injury and damages. See 322.01, (1) 322.05 (2); CH 2980, Negligence). The duty owed to the plaintiff arrises out of the professional relationship between the barber or cosmetologist and the client and the breach of duty is the professionals' failure to perform services for the client with the care and diligence commonly exercised by similar professionals in similar circumstances (see 322.05 (2) (a). The harm generally takes the form of physical personal injuries, although the plaintiff may recover damages for mental iv PAGE 7 of 22 INDEX OF AUTHORITIES (CONTINUED) anguish for an embarrassment of humiliation resulting from alterations in his or her appearance caused by the professional's negligence (Dickey v Jackson, 193 S.W. 5854, 585 (Civ. App. - Galveston 1927), reviewed on other ground. 1 s.w. 2D 577, (Comm, App 1928, judgement adopted and holding approved, see 322.05 (2) (a); see also Chg 20, Damages in Tort. IV. Page 8 of 22 STATEMENT OF THE CASE STATEMENT OF FACTS - & SEE ATTACHED "RECORD" REFERENCES. On 8-09-2011, I received severe "staph infection" to my left thumb after a manicure at Nail Flower Beauty Salon. This resulted in ONGOING, chronic pain, loss of use for thumb, fingers, disfigurement and other related injuries and ongoing medical treatment. SUMMARY JUDGEMENT WAS RENDERED 6-19-14 FOR NOT PROVIDING LEGAL RESPONSE IN A TIMELY MANNOR. Citation: This case did not go to trial and thus no court reporter records available. **ORAL ARGUMENT REQUESTED** Page 9 of 22 GOOD CAUSE. There was "Good Cause" for the failure to timely make, amend or supplement the discovery response. REFER TO ITEMS 3, 4, 5, 6, 7, BELOW. 1. This motion is presented within the time limits prescribed by the Texas rules of Civil procedure for Motion for a new trial. 2. The Judgment of the court is contrary to law. 3. There was insufficient evidence to support the engorgement as delivered, as Plaintiff was NOT ALLOWED to present REASONS for not responding in a timely manner. **The Court erred in this regard. As the victim of Defendants negligence & suffering from effects of the infection , I was not able to physically, mentally, emotionally, respond in timely mannor. See "Good Cause" above.** 4. Plaintiffs failure to file an answer before judgment was the result of an accident and or mistake, rather than due to an intentional act or the result of conscious indifference. 5. Plaintiff "is" the "Injured Party" and unrepresented by attorney as previous attorney abruptly canceled agreement to represent her. **ORAL ARGUMENT REQUESTED** PAGE 10 OF 22 Good Cause (continued) Plaintiff has been unable to locate other attorney who would take case due to limited time frame to work on this case. 6. Plaintiff/Gloria E Ochoa has been and is CURRENTLY under PHYSICIANS CARE & ONGOING MEDICAL CARE and on MEDICATIONS. See INCLUDED/ATTACHED ongoing MEDICAL TREATMENT RECORDS - 2011 year to present year 2015. 7. Above described situation and suffering from severe injuries from staph infection incurred at above named nail salon prevented Plaintiff from responding in a timely manner. 8. Gloria E Ochoa files this Appeal Brief complaining of defendant and how defendant caused great "Personal Injury" to her. 9. Gloria E Ochoa requests opportunity for verbal discussion etc, to answer, in person, any questions from the judges to decide this case. Page 11 of 22 ISSUES PRESENTED 1. This motion is presented within the time limits prescribed by the Texas rules of Civil procedure for Motion for a new trial. 2. The Judgment of the court is contrary to law. 3. There was insufficient evidence to support the engorgement as delivered, as Plaintiff was NOT ALLOWED to present REASONS for not responding in a timely manner. 4. Plaintiffs failure to file an answer before judgment was the result of an accident and or mistake, rather than due to an intentional act or the result of conscious indifference. 5. Plaintiff "is" the "Injured Party" and unrepresented by attorney as previous attorney abruptly canceled agreement to represent her.Plaintiff has been unable to locate other attorney who would take case due to limited time frame to work on this case. 6. Plaintiff/Gloria E Ochoa has been and is CURRENTLY under PHYSICIANS CARE & ONGOING MEDICAL CARE and on MEDICATIONS. See included/attached Dr's bill showing dates of medical care on June 2014. Same month and year of the Summary Judgement. Page 12 of 22 ISSUES PRESENTED (CONTINUED). SEE INCLUDED/ATTACHED ongoing MEDICAL TREATMENT RECORDS - 2011 year to present year 2015. 7. Above described situation and suffering & treatment from severe injuries from staph infection incurred at above named nail salon prevented Plaintiff from responding in a timely manner. 8. Gloria E Ochoa files this Appeal Brief complaining of defendant and how defendant caused great "Personal Injury" to her. PAGE 13 OF 22 STATEMENT REGARDING ORAL ARGUMENT. The courts orders granting immunity to Defendants are erroneous because they are contrary to Texas Court decisions, Appellants submit that oral argument would help the Court craft an opinion that explains simply and clearly why these decisions apply so that future courts will not make the same errors. Moreover, the fundamental issue in this cqse is whether courts have the power to consider obvious personal injury beauty/nail salon;claims by law abiding Texas citizens , that their constitutional-guaranteed rights have been unlawfully denied. This issue is an important one worthy of the Courts full attention consideration. By refusing to weigh, consider, grant relief, to such claims, the courts have made the constitutional rights of injured Texas citizens a hollow premise. Its decisions will have a far reaching negative consequence if allowed to stand. PAGE 14 OF 22 APPENDIX. NOTICE OF APPEAL SEE STAMPED DATE 7-14-14 MOTION FOR NEW TRIAL SEE STAMPED DATE 7-16-14 DOCKETING STATEMENT. SEE STAMPED DATE 7-14-14 SEE COPY OF DOCKETING STATEMENT. SEE STAMPED DATE 7-31-14 LETTER FROM COURT OF APPEALS DATED 7-22-14 ORDER FROM COURT OF APPEALS DATED 7-31-14 AFFIDAVIT OF INDIGENCY. SEE STAMPED DATE 7-29-14 CLERKS RECORD BRIEF DUE 11-17-2014 DATED 10-17-14 PAGE 15 OF 22 APPENDIX (CONTINUED). ORDER FROM COURT OF APPEALS DATED 1-29-15 LETTER COURT OF APPEALS BRIEF FILED DATED 2-13-15 LETTER COURT OF APPEALS & ORDER / NON COMPLIANCE DATED 2-23-15 APPELLANTS REVISED BRIEF. SEE STAMPED DATE 3-18-15 CURRENT ABBREVIATED MED RECORDS/ & DR STATEMENT/BILL SEE DATE 6/2014 . SUMMARY JUDGEMENT DATED 6-19-14. -~>, SUMMARY JUDGEMENT DATED 6-19-14 CLERKS RECORD FROM APPEALS COURT 2015 Page 16 of 22 ADDITIONAL RECORDS - INFORMATION See included copy of my BANK RECORD showing DATE OF VISIT 8-9-11, to The Nail Flower Nail/Beauty Salon and charges. Manicure preformed by employee, Ben Nguyen. Gloria Ochoa, plaintiff was instructed by "soak" her nails in manicure dish that had a soap solution to soften cuticles. A short while later, Gloria Ochoa, plaintiff, suffered severe infection to thumb, that necessitated emergency medical treatment. Thumb was infected, very swollen, blue in color and extremely painful. Page17of 22 DEFENDANTS BREACH OF DUTY. Defendant "OWED" plaintiff a "Duty" to "Care", "To Protect" its client by cleaning, disinfecting, sterilizing all its equipment. Emergency room doctors termed this a severe "Staph" infection due to nail salon not /sterilizing/cleaning their soaking dishes /equipment etc. Defendant "Breached the duty owed" to Plaintiff in that they FAILED to properly disinfect, sterilize, clean their equipment. DEFENDANTS NEGLIGENCE. As the direct and proximate cause of the defendants "NEGLIGENCE", plaintiff suffered personal injury etc as described below. Pain and Suffering, Loss of Use for thumb and hand. Inability to continue working/earn a living, disabled status, loss of earning ability, now and future earnings, emotional stress, anxiety, etc. Significant unpaid med bills due to these injuries. Cost of Ongoing medical treatment*. PAGE 18 OF 22 ARGUMENT. 1. I THE PLAINTIFF, do not want this to happen to any other innocent person walking in to this nail salon for a simple manicure. Current ONGOING SUFFERING due to Defendants Negligence. 2. Defendant must ACCEPT RESPONSIBILITY FOR THE GREAT INJURY THEY HAVE CAUSED. They must sterilize all equipment with each client or use disposable equipment. 3. SEEKING REASONABLE COMPENSATION for ONGOING PAIN and SUFFERING /LOSS OF USE FOR THUMB/HAND. DISFIGUREMENT FOR THUMB. DISABLED STATUS DUE TO "STAPH INFECTION" THAT COULD HAVE NEEN AVOIDED BY DEFENDANT "STERILIZIING" EQUIPMENT. LOSS OF ABILITY TO EARN A LIVING NOW AND FUTURE EARNINGS and PAYMENT OF UNPAID MED BILLS. PAGE 19 OF 22 SUMMARY GLORIA E OCHOA, plaintiff, moves the court to set aside the Summary Judgement rendered against it on 6-19-14 and grant a new trial. PAGE 20 OF 22 PRAYER FOR RELIEF. Therefore, plaintiff, respectfully requests Reversal of summary judgment against plaintiff and grant a New Trial. 1. Damages in an amount within the jurisdictional limits of the court. 2. Pre-and postjudgement interest on that amount of the legal rates. 3. Costs of suit and 4. Any other relief to which plaintiff is entitled. Respectfully submitted, Gloria E. Ochoa an Individual, Plaintiff. 542 Williamsburg Place San Antonio, Texas 78201 Phone: 210-309-0744. 210-736-1408 Page 21 OF 22 CERTIFICATE OF SERVICE 192.3 I, the undersigned, Gloria E. Ochoa, certify that a true and correct copy of the foregoing document was served to Defendants attorney by "Certified" mail, return receipt requested. Gloria E Ochoa 542 Williamsburg PI. San Antonio, Texas 78201 Phone: 210-309-0744 Phone:210-736-1408 PAGE 22 OF 22 CERTIFICATION OF COMPLIANCE WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS. BRIEF LENTH: I certify that (1) this brief complies with the word-count limitation in ORAP 5.05 (2) the word count of this brief (as described in ORAP 5.5 (2) (a) is 1,747 or less. (1163 words). I certify that the size of the type in this brief is not smaller that 14 points for both the text of the brief and footnotes as required by ORAP 5.05 (4) (1). 14 font size. Gloria E. Ochoa, .liS^^^ssH^mxte™$;g^^.^|^1IIIK111IIS File Edit Connect Help ®GE Healthcare- , • -' Patient Action Screen Username: MGA56550 1 I6PS.A Patient: OCHOA,GLORIA MEN: 09029980 0 DOB: 01/26/1951 Age: 64 Visit #: Adra Dt: VTYP : Action: ai Dis Dt: REVFSC: F7Q-Quit F7P-Page F10-OK F4-Major F5-Help F3-More keys PreDt Adm Dt Dis Dt Admit # PYTP location DD FSC Bill St 1) 12/28/11 12/28/11 136156391 OPUH UH-RAD-XRAY HME 420 Billed 2) 11/17 11/17/11 11/17/11 135961324 XNBU UP-CMA EXPRESSMED CL HME 420 Final V 3} 11/15 11/15/11 11/15/11 135944547 XNBU UP-CMA EXPRESSMED CL HME 1 Final V 4) 11/15/11 11/15/11 135945830 OPPA UP-CMA EXPRESSMED CL HME 1 Billed 5) 11/11 11/11/11 11/11/11 135910373 OPUH UH-RAD-CT HME 420 Billed 6) 11/02 11/02/11 11/02/11 135876674 XNBU UP-CMA EXPRESSMED CL HME 1 Final V 7) 11/01 11/01/11 11/01/11 135867639 XNBU UP-CMA EXPRESSMED CL HME 1 Final ¥ 8) 11/01/11 11/01/11 135875030 OPPA UP-CMA EXPRESSMED CL HME 1 Billed 9) 10/07 10/07/11 10/07/11 135719721 XNBU UP-CMA EXPRESSMED CL HME 1 Final V 10) /fo7Q77ll 10/077TT\t35726106 OPPA UP-RAD XRAY HME 1 Billed 11) 09/10 09/10/11 09/10/11 135580197 XNBU UP-CMA EXPRESSMED CL HME 1 Final V 12) 09/01' 09/08/11 09/08/11 B5562983 XNBU UP-CMA EXPRESSMED CL HME 1 Final V 13) V09/08/11 09/08/11JO5570804 OPEC ERUH-EC ACUTE AMA 1. Billed 14) 08/26 TO/26/11 08/26/11 135505452 XNBU UP-CMA EXPRESSMED CL HME 1 Final ¥ 15) .08/19 08/19/11 08/19/11 135475207 XNBU UP-CMA EXPRESSMED CL HME 1 Final ¥ Enter choice or Press to continue: University Health System Medical Records Department 4502 Medical Dnve San Antonio. Texas 78229 Sm>ddxSSH;-'ipXterm;;^--•;",;.^^cM-'-S::^'^^ hjJ^-K FJe Edit Connect Hel{> ®GE Healthcare .- -• .t .\... •'_• Patient Action Screen Username: MGA56550 1 I6PS.A Patient: OCHOA,GLORIA MRN: 09029980 DOB: 01/26/1951 Age: 64 Visit #: Adm Dt: VTYP: Action: ai Dis Dt: REVFSC: F7Q-Quit FTP-Page F10-OK F4-Major F5-Help F3-More keys PreDt Adm Dt Dis Dt Admit # PYTP location DD FSC Bill St 1) 02/01/15 02/02/15 142281915 OPOB ST-9TH FL ACUTE CARE HME 201 Billed 2) 10/31/14 10/31/14 141804720 OPDR UH-OUT PT PHARM AT U HME 1 Billed 3) 10/29/14 10/29/14 141797423 OPEC ERUH-EC ACUTE . 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HME 200 Billed 10) 11/27 11/27/13 11/27/13 139773179 XNBD DT-HEPATITIS CHART C HME 1 Final ¥ 11) 10/30 10/30/13 10/30/13 139592607 OPDT DT-RAD-XRAY HME 200 Billed 12) 08/26 08/26/13 08/26/13 139384135 OPUH CC-RAD-MAMMO HME 410 Billed 13) 07/31 07/18/13 07/31/13 139143279 OPTU UH-OCCUPATIONAL THER HME 410 Billed 14) 02/20 02/20/13 02/20/13 138336832 OPUH UH-REHAB EMG CLINIC HME 400 Billed 15) 01/30 01/30/12 01/30/12 136351005 OPUH CC-RAD-MAMMO HME 420 Billed Enter choice or Press to continue: '•&i3t^$Misi'if&>tt&'7$ alaixidx-SSH t IDXterm, File Edit Connect Help ® GEHealthcare Patient Action Screen Username: MGA56550 1 I6PS.A ** Patient: OCHOA,GLORIA MRN: 09029980 DOB: 01/26/1951 Age: 64 Visit #: Adm Dt: VTYP: Action: ai Dis Dt: REVFSC: F7Q-Quit F7P-Page F10-OR F4-Major F5-Help F3-More keys Visit Display for OCHOA,GLORIA MRN: 09029980 PreDt Dis Dt Admit # PYTP location DD FSC Bill St 1) /8/19/11 135476586 OPEC ERUH-EC ACUTE HME 1 Billed 2) 03/1T 0a/377US03/17/05 125575970 XNBU UH-CMA EXPRESSMED HME 600 Final ¥ 3) 02/24 02/24/04 02/24/04 124214291 OPUH UH-CMA EXPRESSMED HME 410 Billed 4) 01/22 01/22/04 01/22/04 124097607 OPUH UH-CMA EXPRESSMED HME 410 Billed 5) 01/15 01/15/04 01/15/04 124066698 OPUH CC-RAD-MAMMO HME 410 Billed 6) 03/11 03/11/03 03/11/03 123008539 OPDT DT-RAD-MAMMO HME 410 Billed 1) 02/18 02/18/03 02/18/03 122919430 XNBD DT-FP NURSE OB HME 410 Final ¥ 8) 02/18/03 02/18/03 122958991 OPDT DT-FP NURSE OB HME 410 Billed 9) *** Display Canceled *** Enter choice: JD Cardiology Clinic Of San Antonio PLLC STATEMENT DATE 03/17/15 GandfolOgwQ PO Box 741248 rvrtliniC Atlanta, GA 30374-1: or v*» ANTowia 1248 ACCOUNT NUMBER 123786 PAYMENT DUE DATE ^~JM/Q6/15 1/1 PAY AMOUNT DUE • $301.45 "'"V DDDDD0D?m "lllll |>ill>ll|l'll'HI'l"lll-ll'llllllllllllll>ll"l< Questions About Your Account Call 210-614-1440. Ochoa, Gloria 542 WILLIAMSBURG PL SAN ANTONIO, TX 78201-2652 STATEMENT - Cardiology Clinic Of San Antonio PLLC «.,•>- ,.* • -,- \> Description\ i Charge Adjusted Insurance Insurance Patient i * Patient; **£< Date Provider Amount Paid Pending Paid Balance; "\* 11/21/13 Donovan MD Intital Hospital Care/Consult 492.00 303 93 149 84 38.23 11/22/13 Donovan MD HOSPITAL DISCHARGE DAY 256.00 256.00 11/22/13 Donovan MD Echocardiogram 2-D Doppler 171.00 111 74 47.22 12.04 Color Interp „ . , ' 11/22/13 Donovan MD LEFT HEART CATH, CORS, LV.W/WO 819.00 670 94 117.97 30.09 • 11 "O'l T Dnn-wn MO AMI PTCA'Rtont/AthrpV-t" '"' - Ifififinf) KTiflRC) 506 0? 129.09 1^ I 1-l)i I'viiiMD C'FFH EuHIP/llENl VIMI E >T i 11""" 1' ' "14 13 51 '<11 JJ^KiP i . ir Ml J LLI ' IPCji ArDli'1-.PAM (uMPIETE C| ' • • 4, jn 1J 14*>J i . in MIT orFU Li UII-ATIENTMMT E'.T - u. 5 11 1"- !nt i ••• i ' 1". IT^n. . in Ml) riH [Ri'i #"RDI')i".P*M LOMPLLTE c ', •>•• ' ''1 '4 D-ijiN. 11 MP n\\ |i l t ijrPAHLNI 7II.IT L -T !• r. in ~i.r 1 « 1 «•» «1A r^ I -^ j • ji _ _ m. n* Willi Bill Ovci 3G Day a CVci SG Says Tuieri BsScinwO ItTIBT *flllU>UCIl U F V $0 00 —i SOOOv .-i/* *:v*;t'»$0 00.- >• S301 45 $301 45 $301 45 4 J r t-<* •»•• J-L PLEASE DETACH AT THE PERFORATION AND MAIL THIS PORTION WITH YOUR PAYMENT • Please check box if above address is incorrect or if insurance information has changed andindicate change(s) on reverse. MASTERCARD r as- I\'«~?i j amex W in \rxr'"'rx;n visa CARD NUMBER 3 DIGIT CODE AMOUNT PAID Balance is OVERDUE - Contact us to Avoid Further Collection Action. SIGNATURE EXP. DATE NAME STATEMENT ID Cardiology Clinic Of San Antonio PLLC Ochoa, Gloria 38194505 PO Box 741248 ACCOUNT NUMBER PAYMENT DUE DATE Atlanta, GA 30374-1248 | $301.45 123786 04/06/15 SANDEE BRYAN MARION COURT OF APPEALS CHIEF JUSTICE FOURTH COURT OFAPPEALS DISTRICT KEITH E. HOTTLE KAREN ANGELINI CADENA-REEVES JUSTICE CENTER CLERK OF COURT MARIALYN BARNARD 300 DOLOROSA, SUITE3200 REBECA C. MARTINEZ SANANTONIO, TEXAS 78205-3037 • PATRICIA 0. ALVAREZ WWW.TXCOURTS.GOV/4THCOA ASPX TELEPHONE LUZ ELENA D. CHAPA (210)335-2635 JASON PULLIAM JUSTICES FACSIMILE NO. 4 (210)335-2762 February 13, 2015 Gloria E. Ochoa Elizabeth Lennane 542 Williamsburg Place Bank of America Plaza San Antonio, TX 78201 300 Convent St Ste 2350 San Antonio, TX 78205-3703 * DELIVERED VIA E-MAIL RE: Court ofAppeals Number: 04-14-00509-CV Trial Court Case Number: 2013-CI-12691 Style: Gloria Ochoa v. Nail Flower Beauty Salon receiveJand received and filPH1IaT?' nriefofflthe*"appellee's filed. The filing ^ brief ^ is and nUmbered pending. cause has th* date been Very truly yours, KEITH E. HOTTLE, CLERK Deputy Clerk, Ext. 53219 cc: Dinah L. Gaines (DELIVERED VIA E-MAIL) COURT OF APPEALS SANDEE BRYAN MARION FOURTH COURT OF .APPEALS DISTRICT KEITH E. HOTTLE CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT KAREN ANGEL1N1 300 DOLOROSA, SUITE 3200 MARIALYN BARNARD SAN ANTONIO, TEXAS 78205-3037 REBECA C. MARTINEZ WWW.TXCOURTS.GOV/4THCOA.ASPX TELEPHONE PATRICIA 0 ALVAREZ (210) 335-2635 LUZ ELENA D. CHAPA JASON PULLIAM FACSIMILE NO. JUSTICES (210) 335-2762 February 23, 2015 Gloria E. Ochoa Elizabeth Lennane 542 Williamsburg Place Bank of America Plaza San Antomo-TX 78201 300 Convent St Ste 2350 San Antonio, TX 78205-3703 * DELIVERED VIA E-MAIL * RE: r Court of Appeals Number: 04-14-00509-CV Trial Court Case Number: 2013-CI-12691 Style: Gloria Ochoa v. .Nail Flower Beauty Salon Enclosed please find the order which the'Honorable Court of Appeals has issued in reference to the above styled and numbered cause! c If you should have any questions, please do not hesitate to contact me. Very truly yours, KEITH E. HOTTLE, CLERK Lwz EstKraa Deputy Clerk, Ext. 53219 cc: Dinah L. Gaines (DELIVERED VIA E-MAIL) JfourtF) Court of Appeals; H>an Antonio, ^exas; February 23, 2015 .- No. 04-14-00509-CV Gloria OCHOA, Appellant NAIL FLOWER BEAUTY SALON, Appellee From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2013-CI-12691 Honorable Antonia Arteaga, Judge Presiding ffeRB E R_ r Appellant filed her brief on February 13, 2015. The brief does not comply with Rule 38,1 of the Texas Rules ofAppellate Procedure. See Tex. R. App. P. 38.1. Specifically, the brief j/ violates Texas Rule of Appellate Procedure 38.1 in that it does not contain: v^ (l-V«K:table of contents; " ;" \ J" v \J^" r*y" w-' (2)-an index of authorities^-,' v/' , k,"^ f/j P^ (3) aproperstatenientpfthe.eas.e; /'U 'y •^/tK (4fe b,:ief statement of(the^issues presented; setting out what errors were allegedly c61riihitted-by4hejtHaIe6urt;_ ~ " " <^5) include a statement of facts with record references?^). (6) a proper summary of the argument; v.-;.(7.) proper-iegalrargument with appropriate citation to authorities^ahd the appellate record; or \, ./ . (S^ansappendixr ^^ , See id. R. 38.1(b) (requiring table of contents), 38.1(c) (requiring index of authorities), 38.1(d) (requiring statement of case); 38.1(f) (requiring statement of issues presented), 38.1(g) (requiring statement of facts with record reference), 38.1(h) (requiring summary of argument, 38.1(i) ^requiring argumenlj^jJli_ap^ citation to authority and record), and 38.1(k) (requiring , 1^tE€llfe@ii^IP'^^I^^^||0|her appealable order, any jury charge and verdict form, any (^findings of fact and_conclusions of law, and text of applicable rules, regulations, ordinance^ Table of Contents Page Summary of the Argument 6 Standard of Review 8 Argument 9 I. The District Court Erred In Dismissing The Porrettos' Constitutional Takings Claim 9 A. The Constitution waives governmental immunity from takings claims 10 B. The Porrettos have standing to bring a takings claim 11 II. The District Court Erred In Dismissing The Porrettos' Trespass To Try Title Claim Against Patterson and Muller 14 A. Officials who incorrectly claim title to or possession of private property on the government's behalf are not immune from suit 15 B. Lain includes disputes over title as well as possession 17 III. The District Court Erred In Dismissing The Porrettos' Claim That The GLO And Patterson Breached The SettlementAgreement 19 IV. The District Court Erred In Dismissing The Porrettos' Claims Against The Park Board And Muller BecauseThe Legislature WaivedTheir Immunity 21 Conclusion and Prayer 22 Certificate of Service 24 Appendix First Amended Petition (CR 216-28) Tab A Survey of Property (CR 152) Tab B Rule 11 Agreement / Settlement in Principle (CR 279-85) Tab C Orders Granting Pleas to the Jurisdiction (CR 214-15, 286) Tab D 111 COURT OF APPEALS CATHERINE STONE FOURTH COURT OF APPEALS DISTRICT KEITH E. HO'ITLE CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT KAREN ANGELINI 300 DOLOROSA, SUITE 3200 SANDEE BRYAN MARION SAN ANTONIO, TEXAS 78205-3037 MARIALYN BARNARD WWW.4THCOA.COURTS.STATE.TX.US TELEPHONE REBECA C. MARTINEZ (210)335-2635 PATRICIA O. ALVAREZ LUZ ELENA D. CHAPA FACSIMILE NO. JUSTICES (210) 335-2762 October 17, 2014 Gloria E. Ochoa Elizabeth Lennane 542 Williamsburg Place Bank of America Plaza San Antonio, TX 78201 300 Convent St Ste 2350 San Antonio, TX 78205-3703 * DELIVERED VIA E-MAIL * RE: Court of Appeals Number: 04-14-00509-CV Trial Court Case Number: 2013-CI-12691 Style: Gloria E. Ochoa v. Nail Flower BeautvSalon The Clerk's/Kecor, •ered cause has this date been filed. The appellant's brief is du Very truly yours, KEITH E. HOTTLE, CLERK Deputy Clerk, Ext. 3219 cc: Dinah L. Gaines (DELIVERED VIA E-MAIL) Donna Kay McKinney (DELIVERED VIA E-MAIL) "V- ....-./ PAGE 1 OF 2 NOTICE OF APPEAL CAUSE #2013-CI-12691 224th JUDICIAL DISTRICT COURT IN BEXAR COUNTY, TEXAS GLORIA E. OCHOA 542 WILLIAMSBURG PLACE SAN ANTONIO, TEXAS 78201 •C3- Phone: 210-309-0744 •r*» 3>3> 3^1. (-> .— Phone: 210-736-1408 m rn xr m -o a .-.3; Appellant in Propria Persona rn -< JUDGEMENT DECREE TO BE APPEALED WAS ENTERED AS: GLORIA E.OCHOA PLAINTIFF VS. NAIL FLOWER BEAUTY SALON DEFENDANT NOTICE IS GIVEN THAT, GLORIA E.OCHOA, HEREBY, APPEALS FROM SUMMARY JUDGEMENT ENTERED ON JUNE 19™, 2014, BY THE HONORABLE JUDGE, ANTONIA ARTEAGA, IN THE ABOVE CAPTIONED ACTION. Page 2 of 2 DATED 7-14-14 GLORIA E OCHOA 542 WILLIAMSBURG PLACE SAN ANTONIO, TEXAS 78201 Phone; 210-309-0744 Phone:210-736-1408 CERTIFICATE OF SERVICE I, certify, that Ihave caused a copy of this document to be delivered to all parties entitled to service as listed below by US Mail, Certified, Return receipt requested. Attorney for Defendant u Campbell, Miller & Associates 300 Convent, Suite 2350 San Antonio, Texas78205-3532 \ Page 1 of3 MOTION FOR NEW TRIAL i Gloria E. Ochoa 542 Williamsburg PL San Antonio, Texas 7$201 Phone:210-309-0744 Cause Number 2013-CI-12691 In the 224TH JUDICIAL COURT in Bexar County, Texfrs GLORIA E.OCHOA PLAINTIFF VS. NAIL FLOWER BEAUTY SALON DEFENDANT Gloria E. Ochoa, plaintiff, moves this court to set aside the judgment rendered against it on 6-19-14-by Summary Judgment and grant a new trial in this cause. 1.This motion is presented within the time limits prescribed by the Texas Rules of Civil Procedure for a Motion for New Trial. 2. The judgement of the court is contrary to law. 3. There was insufficient evidence to support the judgement as delivered, as Movant was not allowed to present reasons for not responding in a timely manner. ! 4.1. Movants failure to file an answer before judgment was the result of an accident and or mistake, rather than due to an intentional act of the result of conscious indifference. Page 2 of 3. MOTION FOR NEW TRIAL 4.2. The accident or mistake that prevented Movant from filing an answer is that the MOVANT is not represented by attorney as preyious attorney abruptly canceled agreement to represent her. Maffi^^ould not locate attorney who would take case due to limited time frame to research. Also, that the Movant IS the INJURED PARTY in this Personal Injury Lawsuit and suffering from effects of severe 'staph' infection received at the Defendants Nail Salon. Movant has been and is under physicians care and on medications for extreme pain diminished use of hands, fingers, loss of balance, other injuries, since date of injury in 2011. Movant is disabled and no longer able to work and needed to obtain Social Security Disability. Severe injuries/situation has caused Movant from responding in a timely manner. 5. Movant has meritorious defense as to the full amount to the judgement. Injuries as noted above from severe staph infection. See attached affidavit. 6.1. The granting ofa new trial will not prejudice the other parties to this cause. 6.2 Movant is ready, able and willing to go to trial immediately ancLnot delay, harm Or or nreilldice prejudice will nrmr in will occur to the, nthai* parties the other now+iac, as oo a n ..^..i* ~eTdk^l&fCQ.tlhr?^._. result of ftfirefeaS Action. Movant, Gloria E. Ochoa, prays that after notice and hearing that the judgement rendered in this cause be setaside and thatMovarit be granted a new trial. July 16,2014. Respectfully submitted, Gloria E. Ochoa 542 Williamsburg Place San Antonio, Texas 78201 Phone: 210-309-0744 Phone: 210-736-1408 CAUSE NO 2013-CI-12691 IN THE 224TH DISTRICT COUNT STATE OF TEXAS IN COUNTY OF BEXAR GLORIA E OCHOA PLAINTIFF VS NAIL FLOWER BEAUTY SALON DEFENDANT AFFIDAVIT IN SUPPORT OF MOTION FOR NEW TRIAL i,v • ««h w RpYar Countv, Texas, on this day personally appeared, Gloria E Ocnoa, to me Alr.d(lvit who being first Sworn on oath, and qualified in a» respecte f^^J^taS- i^tm and that she has and aUegation thereof, true and correct to affiants own personal knowledge. Gloria E. Ochoa SWORN TOAND SUBSCRIBED BEFORE ME ON_ ^'Ihtf-, ' .-.•' of Bexar County, Texas Appeal filed 7-14-14 -\^ summary Judgment signed by the Honorable Judge, Antonia Arteaga on 6-19-14. This did not go to trial. No court reporter. ( Request for findings of fact filed on 7-9-14. Plaintiff is not represented by attorney. Defendants attorney, Campbell, Miller, & Associates / Elizabeth Lennane 300 convent, Suite 2350 San Antonio, Texas 78205-3532 Phone: 210-229-9879 Fax 210-229-9878 personal Injury Lawsuit page 1 page % >f ^ certificate of service T _prtl-fv tnat j nave caused a copy of this document to be delivered to all parties, attofneyfor Sefenlant? entitled to service as listed below by Certified Mail, Return Receipt requested. Campbell, Miller, & Associates Law offices Bank of America Plaza 300 convent Street San Antonio, Texas 78205-3532 Resctectfully submitted, Gloria E. ochoa 542 Williamsburg Pi San Antonio, Texas 78201. 210 309-0744. Page 1 COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT KEITH E. HO'ITLF. CATHERINE STONE CaDENA-REc VES JUSTICE CENTER CLERK OF COURT CHIEF JUSTICE KAREN ANGELIN1 300 DOLOROSA, SUITE 3200 3 SANDEE BRYAN MARION SAN ANTONIO, TEXAS 78205-3037 WWW.4TKCOA.COURTS.STATE.TX.US P/o an gfotomo, t&zxas July 31, 2014 No. 04-14-00509-CV ; Gloria E. OCHOA, | Appellant NAIL FLOWER BEAUTY SALON, Appellee From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2013-CI-12691 Honorable Antonia Arteaga, Judge Presiding ORDER On July 22, 2014, appellant timely filed a notice ofappeal from the trial court's June 19, 2014 judgment. On July 29, 2014, appellant filed an affidavit of indigency in this court. It appears appellant did not file her affidavit in the trial court. Aparty who cannot pay the costs ofan appeal must file an affidavit ofindigence "in the trial court with or before the notice of appeal." Tex. R. App. P.-20. 1(c)(1). Appellant's affidavit ^wa^erefoTe^u^rfl4he trial court on July 22, 2014, the date her notice of appeal was filed, or a -TnoTiorr-fer extensions-time to file the affidavit was due in this court fifteen days later, on August 6, 2014. See Tex)r! App. P. 20.1(c)(1), (3). We construe the affidavit filed in this court as a motion for extension of time to file the affidavit in the trial court. Accordingly, we GRANT the motion to extend time to file an affidavit of indigency to pay costs. We ORDER the clerk of this court to send copies of the affidavit and this order to the district clerk, the court reporter, and all parties. See Tex. R. App. P. 20.1(d)(2). We further ORDER the deadline for filing a contest to the affidavit of indigence is August 11,2014. Any contest must be filed in this court. See Tex. R. App. P. 20.1(e)(1). !-^ IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 31st day of July, 2014. eitfiE. Kei Hottle * Clerk of Court ?* Request for Findings of Fact and conclusion of Law 7-8-14 Page 1 of 3 Gloria E. Ochoa 542 Williamsburg Pi. San Antonio, Texas 78201 Phone: 210-309-0744 cause Number 2013-CI-12691 In the 224TH JUDICIAL COURT of Bexar County, Texas. GLORIA E. OCHOA PLAINTIFF VS. NAIL FLOWER BEAUTY SALON DEFENDANT. REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW GLORIA E. OCHOA, MAKES THIS MOTION TO THE TRIAL COURT FOR FINDINGS OF FACT AND LAW IN THE ABOVE REFERRED AND NUMBERED CAUSE. In support of this motion, Gloria E. Ochoa, shows as follows: The above captioned cause did not come to trial before the court, due to a summary judgement. After considering the pleadings, the argument and briefs from counsel, the court rendered its decision to grant a Judgement in favor of the defendant. Gloria E Ochoa, requests for findings of fact and conclusions of law the following: FINDINGS OF FACT. Plaintiff is not represented by attorney and is the injured party and due to ongoing pain, suffering from staph infection received at Nail Flower Beauty salon was not able to respond in a timely manner, see original Petition - Paragraphs, 6, 7, 8, 9, 10, 11, 12. Page 1 Appellate Docket Nnmber: I'^rJ^T^ji '&£_ ~cJ.: ^-lf-f/ -' ' " '-* I"""-'- ..a Appellate Case Style: | m(jrt*J '• rO^Vvi> •rCl',':*?, \\±j,\-&foir!&-*' -• Companion Case No.: ,•--.;--;--: ; " 1 *ni/lx. • £^ Amended/corrected statement DOCKETING STATEMENT (Civil) > Appellate Court:Hl^^^^^^^Ks^MrJSi" 1/ (to be filed in the court of appeals upon perfection of appeal under TRAP 32) 4 . AppLIMIIt "I •> If \pjiLll.int'AttoriiL\(s) - i- '. ii Person fj Organization (choose one) • Lead Attorney -3 £hJ,- First Name: Ml .3S ^'s;_ -*K»- - • -c" ' ••yf-J-^- First Name: i~£§rZSTj2iL~\&J&\i7jZ*Lfr. Middle Name I _ Middle Nam. " ;'£: ]/ fl . . „ _/ ']_ „*„" ^ . .*_".-_" Last Name \ Last Name. ' J^C-fa O-O/''^~" ? ."'-. v Suffix: gSi. _ . Lawl inn i, mi | Suffix: K:i^v- 11 Pro Se: Addri 1 L • /- • "do—.- « Addri ' City: c *- *-» J State: |I<_\J, t '•P i Telephi'iu M Fax: C . ,"' . J i r* r - a PI Person ptorganizatiQn )rganization (choose (choose one) one) ZXM&^*.^&&B- Suffi: Suffix: Law J niu N mi ProSe: O Addn i .,„.:•;: ..^.'..^^S-ss^^ Aind30 Addrcs' ^>fi CjprttfatLS*?! city: l£psp: "8 VL&KzTo'.j "tD^-TL'J COXIV ICTflTWl State Telepl Aip)0 mxm . wno imxm Fax: MmmummQt Email Q31IJ- SBN: Pagel of 7 hjaag'..'.''-* • 'v. -*> • r• iii'—^ii_^=—' •£ii *e ^ " • * '-—l'1-*.i.'-!'.".-'.J." ^ i — 71"// Nature «i <.isl- (Suh|i-Li maHu ml>|v « ^ -"•'- »< f. :£i32iL^!ns!3^3 Date notice ofappeal filed in trial court: jg^^ggmBf'S^l^r*.——"-J Ifmailed to the trial court clerk, also give the date mailed L!k*."—£* ^'i:?.^^SS Interlocutory appeal ofappealable order: • Yes • No Ifyes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28): Accelerated appeal (See TRAP 28): • Yes • No Ifyes, please specify statutory or other basis on which appeal is accelerated: ^wr?? Parental Termination or Child Protection? (See TRAP 28.4): ^Yes ^N6 Agreed? (See TRAP 28.2): • Yes • No If yes, please specify statutory orother basis for such stetus !^JL£I.i Appeal should receive precedence, preference, or priority under statute or rule: U Yes |_| o f-7PT^r%^* *T" ^T^p* Jt^^^ Does this case involve an amount under $100,000? ^ Yes QNo Judgment or order disposes ofall parties and issues: • Yes QNo Appeal from final judgment: J^jYes QNo Does the appeal involve the constitutionality or the validity ofastatute, rule, or ordinance? Q Yes QNo Motion for New Trial: pYes • No Ifyes, date filed: }SMS\^&^\ Motion to Modify Judgment: •Yes • No Ifyes, date filed: [^{^^^.'H'^^i Request for Findings of Fact jYes QNo Ifyes, date filed: f^^^M''£L^i and Conclusions of Law: •Yes • No Motion to Reinstate: • Yes • No Ifyes, date filed: g|gg3iJ|Ei5 Motion under TRCP 306a: Other: • Yes QNo Yes • Wo If yes, date filed: Affidavit filed in trial court: Contest filed in trial court: J•Yes H&0 Ifyes, date filed: K?^B'iS*!&:tfeS^£l Date ruling on contest due: |*£5| Ruling on contest: •Sustained •Overruled Date ofruling: t Page 2 of 7 C1. • •»• •«* i/ -.:'•-.• * . . \#» • • lu.'Uankruii(c\ • - • *-,*"'.i"^i-"->',",J"' • Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? • Yes "fSlNo If yes, please attach a copy of the petition. bate bankruptcy filed: KT^$?%W^ Bankruptcy Case Number: j ^ S H I B l Count). {lia^fc,^ lualCourtUcik. >fsJL)i.liia • £ounty Trial Court Docket Number (Cause No.): s clerk's record requested? ""OYes • No Ifyes, date requested: ^§j$SHIj§$$&% Trial Judge (who tried or disposed ofcase): Ifno, date itwill be requested: ffffifr&ign-& ^.•£,,... J&LA First Name ^^f^^fJS^^^*^^^^^ Were payment arrangements made with clerk? Middle Name ^H^^E^k^illiKMZ^ • Yes QNo • Indigent Last Name iJtJ^D^P^^LLL. ^K-AJ3ii£l-r^.< (Note. No request required under TRAP 34.5(a),(b)) Suffix: fc',; .;£'::«*_• Address 1 ^Z7!^^^^^^^^^^ Address 2 City: G^3^nSSPjSS2S23 • K.. :. -°i v, . ^^^^J^-j-JiJ-J3^^Jiu±-i.i-iJi^JJ Uvnm^y ^uJaeteJ state: IfcWWrS^^i /ip. 4 EigCPSj^B try, 6--19-/V Telephone EHEESZ3<*1 E3Xi T^r-y Fax- prT^TirT' Email: fofc.,,, . j^-tll t- - jl ^^\JL£LsilZ*£» * sJXs^jeUi Reporter's or Recorder's Record: ( Is there areporter's record? • Yes [^ No Was reporter's record requested? QYes QNo Was there areporter's record electronically recorded? • Yes • No Ifyes, date requested: |^pP^^^^Sflaa Ifno, date it will be requested: IHl^i^^^i Were payment arrangements made with the court reporter/court recorder? rj Yes • No •indigent Page 3 of 7 • Court Reporter • Court Recorder • Official • Substitute i i #j • i. - First Name: . . —. •• W -1-1 Middle Name: • i - -.? • ».- \ 1 ^ Jll'll ^ Last Name - \ Suffix: Address 1 Address 2 ^ ^^"^"^V '^' '^ ~-^ e» ^-p jj »^wi>j • •. «»—•i.j.jt.>«n;f *»'„ing"u.y'11 • »• i-^"yjvay'i Pitv L-'t->vlc '.*> ^IvC-^fAi %3£ *e% date filed 'ill file: • Yes • No l&R\Vraoriliiiar> Relief ill you request extraordinary relief(e.g. temporary or ancillary relief) from this Court'.' • Yes • No Ifyes, briefly state the basis for your request: mEM^M^^^^^^^^^^^^^^^ Kttt'bjiurtjir Appeal) ;_i"'-'l' _ eL'J'L- " ' ' •': '. ' -V^i '".' '_._ i-' "•'•. J.---'- •— •-'- •—*'—*-£ '£*•'•'- Should this appeal be referred to mediation? Wyes • No If no. please specify:L - . ". . . v*!. "—j. ' *'J- _ -a \ J.uC' -A.'-"* -»--i ' Has the case been through an ADR procedure? QYes QNo A Ifyes, who was the mediator" .™I ".J". 7.7. ---' ™ -r''.—"-J-iii^ail^- —- ii-iCi-^ -'- —^^-.^l^H?^:. What type of ADR procedure .' Ij At what stage did the case go through ADR? QPre-Trial •Post-Trial •Other If other, please specify 1 ype Ol case; i%mmgmmffl!ggimmzimmm> isejiss^ji^aj^msms, -.•.•———— . /•..,:(.u„,.f Give abriefdescription ofthe issue to be raised on appeal, the reliefsought, and the applicable standard for review, .fknown (without prejudice to the right to raise additional issues or request additional relief): How was the case disposed of? Summary ofreliefgranted, including amount ofmoney judgment, and ifany, damages awarded. Ifmoney judgment, what was the amount? Actual damages: Punitive (or similar) damages: j Page 4 of 7 Attorney's fees (trial): B&'-VftB^SSO Attorney^ fees (appellate): p^l^j&^.WJ Ifother, please specify: ^SSS^SS^^L • --' Will you challenge this Court's jurisdiction? • Yes • No Does judgment have language that one or more parties "take nothing"? • Yes Q-No Does judgment have aMother Hubbard clause? QYes Q-No } Other basis for finality? Rate the complexity ofthe case (use 1for least and 5for most complex): Ql EH D^ D4 Q5 Please make my answer to the preceding questions known to other partjes in this case. • Yes • No Can the parties agree on an appellate mediator? • Yes • No -, Ifyes, please give name, address, telephone, fax and email address: Email Name Address _. Telephone Languages other th/n English in>hich the mediator should be proficient Name of person INiUIIC Ul 1111115 uuifmediafion pciauil filing uivuiutivu section jvvwv.. of v* docketing «~~ 0 statement: -— --— fm^mvsmmmt^^'w^nriwu™™^™™ •„ List aAy pendini'J^st related appeals before this or any other Texas appellate court by court, docket number, and style. &&~ dA^_ DockeVr^trrnblr- ^-'^^FT^^Virc^^?^. '. -« 1"•''l ""II [iL^'.^I/iTJl" J-."li-.-^.- - Page 5 of 7 The Courts ofAppeals listed above, in conjunction with the State Bar ofTexas Appellate Section Pro Bono Committee and local Bar Associations, are conducting aprogram to place alimited number ofcivil 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 anumber of discretionary criteria, including the financial means of the appellant or appellee. Ifacase is selected by the Committee, and can be matched with appellate counsel, that counsel will take over representation ofthe 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. Ifyour case is selected and matched with avolunteer lawyer, you will receive aletter from the Pro Bono Committee within thirty (30) to forty-five (45) days after submitting this Docketing Statement. Note- there is no guarantee that ifyou 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 sitesand Listserv to its pool ofvolunteer appellate attorneys. s^ Do you want this case to be considered for inclusion in the Pro Bono Program? Q Yes • No Do you authorize the ProBeno Committee to contact your trial counsel ofrecord in this matter to answer questions the committee may have regarding the appeal? 0Yes • 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 ofconsidering the case for inclusion inthe Pro Bono Program. Ifyou have not previously filed an affidavit ofIndigency and attached afile-stamped copy ofthata^taviCdoes your income exceed 200% of the U.S. Department of Health and Human Services Federal Poverty Guidelines? • Yes fj No These guidelines can be found in the Pro Bono Program Pamphlet as well as on the mtemetat>ffi.-//aspe.hhs.gov/povertv/06Povert\'.shtml. Are you willing to disclose your financial circumstances to the Pro Bono Committee? DYes • No Ifyes please attach an Affidavit ofIndigency 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 abriefdescription ofthe issues to be raised on appeal, the relief sought, and the applicable standard ofreview, ifknown (without prejudice to the right to raise additional issues or request additional relief; use aseparate attachment, if necessary). igiialure.-%. • \i, f. Q/Lse-~£i~ \%^ % i First Name: _ zJl Middle Name: •;.-.. Last Name. _!_,: - _.l^ Suffix: pS^t^SiL //?'/, i /) ^ * Law Finn Nam,-^•.C//i//V:- • ^/-V-Y.>././*-^ ^ ^ Address I PStftf:. f ^.^^f^^f^ Address ' [ji7_-!--J.\-^i-^.---Si^'.-i-' __'-J—-_! _ ,r City: _vL_? -KIT -.. —- _~- _—•Ik_ i.l_*.»i . . J~f. —• »(_*_- —I State Isi&-«:;-_/-_t-:--^ "p-.v, s_ii?^^S__7 3^^ ^ __y--^--^f-J^. ~—n^ ,1 ' me:l Telephone:! /i_^__ra_l_B.. -.j l Kt- ... If Attorney, Representing Party's Nairn- l*. „.-.. .I".'_3*Jb k>_—»j Page 7 of7 Certificate of Service I certify that I have caused a copy ofthis document to be delivered to all parties, attorney for Defendant, entitled toservice as listed below by Certified Mail, Return Receipt requested. Campbell, Miller, & Associates Bank of America Plaza 300 Convent Street San Antonio, Texas 78205-3532 Respectfully submitted, Y_i_-w^ iMlv+*^ Gloria E. Ochoa 542 Williamsburg PI San Antonio, Texas 78201. 210 309-0744. '~ft NOTICE: THIS FORM CONTAINS SENSITIVE DATA. Cause Number ^0C3 -£T"- I'l&Q/ »o?S& ^ °0PY 7 '^U j /\ fit r-n ~~ \ (The Clerk's office willfillin the Cause Number when you Wethis form.) In the (check one): ne): S^ —I—i Petitioner/ Plaintiff G-l 0\r)O- Qcki-£c*— [^District Court |_fDistricl _ (Court Number) .("] County Court atLav£ o j>c:-ti • Justice of the Peace^ U3 - ^ —ir- Respondent/ Cophi £T10 Defendant (County) X- —i. Affidavit of Indigency CO x.r' (Request to Not Pay CourtFees) en Use this form to ask the court not to You must either 1) sign this form in You can be prosecuted if you lie on charge you for court fees. This form is front of a notary public or 2) sign this this form. also called an "Affidavitof Inability to form and sign and attach acompleted Tne ^^ may or may not approve t^ Pay Court Costs" or a "Pauper's Oath." "Unsworn Declaration" form. By request to not pay court fees. The court You can only use this form if: (1) you signing in front of a notary, you swear may order you to answer questions get public benefits because you are under oath that the information about your finances at a hearing. At poor or (2) you can't pay court fees. provided is true and correct. By that hearing you will have to present The information you give on this form signing and attaching an "Unsworn evidence to the judge of your income must be current, complete, true and Declaration" form, you declare under and expenses to prove that you have no correct. penalty of perjury that the information ability to pay court fees. provided is true and correct ®The person who signed this affidavit appeared, in person, before me, the undersigned notary, and stated under oath: ^_^ c?>oO "My name is C^L-filr Li_»<5L-/ My phone number is (2-f<3) ^^ Q"7^^ "My mailing address is J^lLD f^J/'/^H/tf^.h^J^f p>L- "Myemail address is VyGuEtzM.bo^'l. IjWwt) ,Cj»^ "I am above the age ofEighteen of eighteen (18) years, and Iamfully competent to make this affidavit. Iam unable topay court costs. The nature and amount of my income, resources, debts, and expenses are described in this form. Check ALL boxes that apply andfill intheblanks describing theamounts andsources ofyour income. @"I receive these public benefits/government entitlements that are based on indigency: _, gg o • SSI DWIC CTFood Stamps/SNAP • TANF Qlvfedicaid QCHIP iQaABD * o • Needs-based VA Pension • County Assistance, County Health Career General Assistance (GA) c~ odSz • LIS in Medicare ("Extra Help") • Community Care via DADS [^flow-Income EnergyJAssistance^ • Emergency Assistance • Child Care Assistance under Child Care and Development Block Grang -en • Public Housing Q Other: (Describe) QQ_- • £?<<:<>-'"11Tyy J2)/Sf}i ',(fJ^L Ifyoureceive anyof theabovepublic benefits, attach proofandlabel it"Exhibit (D "My income sources are stated below. (Check an that apply) ProofofPublic Benefit^' iitf^roo M o m CO -< O Unemployed since: (date) . -or- • Wages: I work as a for Yourjob title Your employer • Child/spousal support • My spouse's income or income frprffanother member ofmy household (ifavailable) • Tips, bonuses • Military Housing D Worker's Comp |_fDisability • Unemployment • Social Security • Retirement/Pension • Dividends, interest, royalties • 2nd job or other income:. © "My income amounts are stated below. (describe) (a) Mymonthly net income aftertaxes are taken out is: Total income after taxes l<45frt>ii*l> (b)The amount I receive each month in public benefits is: Total amount received (c)The amount of income from other people in my household is:* Total amount received $ (d) The amount I receiveeach month from other sources is: Total amount received 1_ (e) MyTOTAL monthly income is Add all sources ofincome above-* $ T¥F7, 'List this income onlyifothermembers contribute toyourhousehold income. Page 1 of 2 ©TexasLawHelp.org - Affidavit ofIndigency, February 2014 'k About my dependents: "The people who.depend on me financially are listed below: Name Age Relationship to Me ' T.no6 , ofl ^ Bank accounts, other financial assets (List) Food and household supplies 1'V^ . $ ^5->o5 Utilities and telephone \*?b.0d Clothing and laundry $ Medical and dental expenses 1 Vehicles (cars, boats) (List make and year) , Insurance (life, health, auto, etc) L School and child care _. Vehicle payments £_ Gas, bus fare, auto repair l_ Iha.QG $ Child / spousal support i. Real estate (house or land) (Do not list the house you live in.) Wages withheld by court order I_ - $ *-"& ' Debt payments l_ $ Other expenses (Describe) .!_ Other property (like jewelry, stocks, etc.) (Describe) 5_ $ —- O ' l_ $ Total value ofproperty -> |= $ Total monthly Expenses -+ = $ / L7IX0 *The value is theamount theitem would sellfor less the amount you still oweon it(ifanything). f^e®, ®"My debts include: List debt and amount owed. J/l/1 0h'Tq A <3<' - /" r*> /rftf) To list any otherfacts you want the court toknow, such as unusual medical expenses, family emergencies, etc., attach another page tothis form andlabel it "Exhibit: Additional Supporting Facts. °Check hereifyou attach anotherpage.D ® "\ am unable to paycourt costs. Iverifythat the statements made inthis affidavit are true and correct." ® YourSignature. You must either: 1) sign this form in front ofa notary public or 2) s/bn this form and sion and attptfi acompleted "Unsworn Declaration"form. a— 7-2.9-/V Vour Signature Notary fills out this section if State of are signing in front of a notary] g Jr<=L where this Affidavit is notarized. ubscribed before metoday, jyi o Q _by >Y°|C\ ELOoh nQ Print name of person whois signingthisAffidavit. NOTthe notary'sname. Page 2 of 2 © TexasLawHelp.org - Affidavit of Indigency. February2014 COURT OF APPEALS SANDEh. 8RYAN MARION FOURTH COURT OP APPEALS DISTRICT KEITH E. HOTTLE CHIEP JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT KAREN ANGUl.fNl 300 DOLOROSA, SUITE 3200 MARIAl.YN BARNARD SAN ANTONIO, TEXAS 78205-3037 REBECA C. MARTINEZ WWW.TXCOURTS.GOV/4THCOA.ASPX TELEPHONE PATRICIA 0. ALVAREZ (210)335-2635 LtJZ ELENA I). CHAPA JASON 1'UL.LIAM FACSIMILE NO. JUSTICES (210)335-2762 April 10, 2015 Gloria E. Ochoa Elizabeth Lennane 542 Williamsburg Place Bank of America Piaza iX •Sari-Antonio- " ^ 78201 300 Convent St Ste 2350 San Antonio, TX 78205-3703 * DELIVERED VIA E-MAIL * RE: Court of Appeals Number: 04-14-00509-CV Trial Court Case Number: 2013-CI-12691 Style: Gloria Ochoa v. Nail Flower Beauty Salon The Appellant's Motion for Extension of Time to File Amended Brief has this date been received and filed in the above styled and numbered cause. Very truly yours, KEITH E. HOTTLE, CLERK Deputy Clerk, Ext. 53219 cc; Dinah L. Gaines (DELIVERED VIA E-MAIL) COURT OF APPEALS SANDEE 3RVAN MARION FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT KAREN ANGELINI 300 DOLOROSA, SUITE 3200 MARIA;..VN BARNARD SAN ANTONIO, TEXAS 78205-3037 KEBEC.aC. MARTINEZ WWW.TXCOURTS.COV/4THCOA.ASPX PATRICIA 0. ALVAREZ I..UZ ELENA U. CHAPA JASON PULLIAM FACSIMILE! JUSTICES (210)335-2762 March 23, 2015 G.-oria E. Ochoy 542 Williamsburg Place San Antonio, TX°78201 RE: Court of Appeals Number: 04-14-00509-CV Trial Court Case Number: 2013-CI-12691 Style: Gloria Ochoa v. Nail Flower Beauty Salon According to our records, you are the appellant on this appeal. According to our records, you are the appellant on this appeal. This Court previously struck appellant's original brief and rendered an order pointingout the deficiencies and requiring appellant to file an amended brief. The amended brief does not correct_all of the deficiencies previously noted by this Court. Specifically, the brief faTi^toTnclude a statement offacts with record references andjhe^argument irithe_brief_ is not a proper appellate argument givenjhe judgment and; it rs not supported "by record _ /^/gnceil^^ See Tex. R. Ap?^2^-3&Mg). (i). When we refer to the record; we refer to the clcik'sjecord Additionally, the "issues" presented by appellant are_ncrt -pioper issues --- issues arc errors-.allegedly--™rnroitM .by the trial court entitlinglgpffl^oafe J sMg? See^UL Iv.3o..lu,i. F lUiUy, the bnel=do^^ ^ppejlateProce^.ure,. See id. R. 38.1(k). The rule xt<^mxt&^^^^M^^int].u^^^JsidL\ cour^jjidgraent or other appealable orderTrom which relief is sought. Id. However, the Court is not ordering appellant to rebrief. Nevertheless, appellant should be advised that this court may consider her appellate complaints waived due to inadequate briefing if.the ,,; noted deficiencies are goj corrected prior to submission'; See,ej>.j^qttv^^ JJ/, 2014WL4ff23fc9ifl. jit *2 YTex. A~pp--^'ffrm ^^jW^^^^^^^^^^^^ lies, No_^4^^3n^CV, 2014 WL 1089750,. at *3 (Tex. App.—San Antonio Mar. 19, 2014^ As we have noted in a previous order, we recognize appellant is acting pro se on appeal. However, pro se litigants are held to the same standards as licensed attorneys and-must comply COURT OF APPEALS SANDEE BRYAN MARION FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT KAREN ANGELINI 300 DOLOROSA, SUrTE 3200 MAR1ALYN BARNARD SAN ANTONIO, TEXAS 78205-3037 REBECA C. MARTINEZ WWW.TXCOURTS.GOV/4THCOA.ASPX TELEPHONE PATRICIA 0. ALVAREZ (210) 335-2635 LUZ ELENA D. CHAPA JASON PULLIAM FACSIMILE NO. JUSTICES (210)335-2762 March 18, 2015 Gloria E. Ochoa Elizabeth Lennane 5-'12 Williamsburg Place Bank of America Plaza San Antonio, TX 78201 300 Convent St Ste 2350 San Antonio, TX 78205-3703 * DELIVERED VIA E-MAIL * RE: Court of Appeals Number: 04-14-00509-CV Trial Court Case Number: 2013-CI-12691 Styie: Gloria Ochoa v. Nail Flower Beauty Salon The Appellant's Amended Brief has this day been received and filed in the above styled and numbered cause. Very truly yours, KEITH E. HOTTLE, CLERK L\feF&da Deputy Clerk, Ext. 53219 cc: Dinah L. Gaines (DELIVERED VIA E-MAIL) statutes, constitutional provisions, or other law on which argument is based, or any contract or other document central to argument). Although substantial compliance with Rule 38.1 is generally sufficient, this court may order a party to amend, supplement, or redraw a brief if it flagrantly violates Rule 38.1. See id. R. 38.9(a). We conclude that the formal defects described above constitute flagrant violations of Rule 38.1. Accordingly, we ORDER appellant's brief stricken and ORDER appellant to file an amended brief in this court on or before March 25, 2015. The amended brief must correct the violations listed above and fully comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See R. 38.1. If the amended brief does not comply with this order, we "may strike the brief, prohibit [appellant] from filing another, and proceed as if [appellant] had failed to file a brief." See id. R. 38.9(a); see also id. R. 38.8(a) (authorizing this court to dismiss appeal if appellant fails to timely file brief). Even if we do not strike the brief and prohibit appellant from filing another brief, we may find that any issues raised by appellant are waived due to inadequate briefing, and overrule those issues. See, e.g., Marin Real Estate Partners v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.). We recognize that appellant represents herself on appeal, i.e., she is acting pro se. However, the law is clear that pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable rules of procedure, including the rules governing appellate briefs. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). A pro se litigant is required to properly present her case on appeal just as she is required to properly present her case to the trial court. Id. Accordingly, we will not apply different standards merely because an appeal is brought by a litigant acting without advice of counsel. Id. If appellant timely files a brief that complies with this order, appellee's brief will be due thirty days after appellant's brief is filed. See TEX. R. App. P. 38.6(b). Marialy: IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 23rd day of February, 2015. Keitfi E. Hottle Clerk of Court with all applicable rules, including the rules governing appellate briefs. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). Very truly yours, KEITH E. HOTTLE, CLERK DfeES Deputy Clerk, Ext. 53219 cc: Dinah L. Gaines (DELIVERED VIA E-MAIL) Elizabeth Lennane (DELIVERED VIA E-MAIL) jfourtf) Court of &ppeal£ H>an Antonio, t£exa£ February 23, 2015 No. 04-14-00509-CV Gloria OCHOA, Appellant v. NAIL FLOWER BEAUTY SALON, Appellee From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2013-CI-12691 Honorable Antonia Arteaga, Judge Presiding ORDER Appellant filed her brief on February 13, 2015. The brief does not comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 38.1. Specifically, the brief violates Texas Rule of Appellate Procedure 38.1 in that it does not contain: (1) a table of contents; (2) an index of authorities; (3) a proper statement of the case; (4) a brief statement of the issues presented, setting out what errors were allegedly committed by the trial court; (5) include a statement of facts with record references; (6) a proper summary of the argument; (7) proper legal argument with appropriate citation to authorities and the appellate record; or (9) an appendix. See id. R. 38.1(b) (requiring table of contents), 38.1(c) (requiring index of authorities), 38.1(d) (requiring statement of case); 38.1(f) (requiring statement of issues presented), 38.1(g) (requiring statement of facts with record reference), 38.1(h) (requiring summary of argument, 38.1(i) (requiring argument with appropriate citation to authority and record), and 38.1(k) (requiring appendix with copy ofjudgment or other appealable order, any jury charge and verdict form, any findings of fact and conclusions of law, and text of applicable rules, regulations, ordinances, statutes, constitutional provisions, or other law on which argument is based, or any contract or other document central to argument). Although substantial compliance with Rule 38.1 is generally sufficient, this court may order a party to amend, supplement, or redraw a brief if it flagrantly violates Rule 38.1. See id. R. 38.9(a). We conclude that the formal defects described above constitute flagrant violations of Rule 38.1. Accordingly, we ORDER appellant's brief stricken and ORDER appellant to file an amended brief in this court on or before March 25, 2015. The amended brief must correct the violations listed above and fully comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See R. 38.1. If the amended brief does not comply with this order, we "may strike the brief, prohibit [appellant] from filing another, and proceed as if [appellant] had failed to file a brief." See id. R. 38.9(a); see also id. R. 38.8(a) (authorizing this court to dismiss appeal if appellant fails to timely file brief). Even if we do not strike the brief and prohibit appellant from filing another brief, we may find that any issues raised by appellant are waived due to inadequate briefing, and overrule those issues. See, e.g., Marin Real Estate Partners v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.). We recognize that appellant represents herself on appeal, i.e., she is acting pro se. However, the law is clear that pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable rules of procedure, including the rules governing appellate briefs. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). A pro se litigant is required to properly present her case on appeal just as she is required to properly present her case to the trial court. Id. Accordingly, we will not apply different standards merely because an appeal is brought by a litigant acting without advice of counsel. Id. If appellant timely files a brief that complies with this order, appellee's brief will be due thirty days after appellant's brief is filed. See Tex. R. App. P. 38.6(b). Marialy IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 23rd day of February, 2015. Keitfi E. Hottle Clerk of Court '», Jfottrtfj Court of Appeals; Han Antonio, TEexasf January 29,2015 No. 04-14-00509-CV Gloria OCHOA, Appellant NAIL FLOWER BEAUTY SALON, V:: Appellee From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2013-CI-12691 Honorable Antonia Arteaga, Judge Presiding ORDER Appellant has filed a third motion for extension of time to file her brief, asking for an additional sixty days to file her brief. We previously granted her two prior extensions for a total of seventy-four days, making her brief due January 30, 2015. We have reviewed appellant's motion. Based on our review, we GRANT appellant's motion in part and DENY it in part. We GRANT appellant's request for a third extension, but we DENY appellant's request for an additional sixty days to file her brief. We GRANT appellant an aHrlijinnal givteon Hqys |n file her brief and we ORDER her to file her appellant's brief in this court/on or before February 16_J) 2015. We advise appellant that NO FURTHER EXTENSIONS OF TIME TO FILE THE BRIEF WILL BE GRANTED ABSENT WRITTEN PROOF OF EXTRAORDINARY CIRCUMSTANCES. We recognize appellant is pro se; however, pro se parties are held to the same standards as licensed attorneys arid are expected to comply with all rules and procedures applicable to appeals. Marial IN WITNpS^^P^i^^, Ihave hereunto set my ha*d and affisfcd the seal of the said iurt on this 29^A^aWr&%)15. ./ /) / Keith E. Hottle Clerk of Court r v COURT OP APPEALS SANDEE BRYAN MARION FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT KAREN ANGELINI 300 DOLOROSA^ SUITE 3200 MARIALYN BARNARD . SAN ANTONIO, TEXAS 78205-3037 REBECA C. MARTINEZ WWW.TXCOURTS.GOV/4THCOA.ASPX TELEPHONE PATRICIA O.ALVAREZ (210)335-2635 LUZ ELENA D. CHAPA JASON PULLIAM FACSIMILE NO. JUSTICES (210)335-2762 January 29, 2015 Gloria E. Ochoa Elizabeth Lennane 542 Williamsburg Place Bank of America Plaza San Antonio, TX 78201 300 Convent St Ste 2350 San Antonio, TX 78205-3703 * DELIVERED VIA E-MAIL * RE: Court of Appeals Number: 04-14-00509-CV Trial Court Case Number: 2013-CI-12691 Style: Gloria Ochoa Nail Flower Beauty Salon :" Enclosed please find the order which the Honorable Court of Appeals has issued in reference to the above styled and numbered cause. If you should have any questions, please do not hesitate to contact me. Very truly yours, KEITH E. HOTTLE, CLERK Deputy Clerk, Ext. 3219 cc: Dinah L. Gaines (DELIVERED VIA E-MAIL) COURT OF APPEALS SANDEE BRYAN MARION FOURTH COURT6F APPEALS DISTRICT CHIEF JUSTICE KEITH E. HOTTLE / CADENA-REEVES JUSTICE CENTER CLERK OF COUn:/' KAREN ANGELINI 300 DOLOROSA, SUITE 3200 MARIAl.YN BARNARD SAN ANTONIO, TEXAS 78205-3037 REBECA C MARTINEZ WWW.TXCOURTS.GOV/4THCOA.ASPX TELEPHQ^V PATRICIA O. ALVAREZ LUZ ELENA D. CHAPA (210) 335-2&: r , JASON PULLIAM FACSIMILE NO.! JUSTICES (210)335-2262 January 28, 2015 / ' J Gloria E. Ochoa Elizabeth Lennane 542 Williamsburg Place Bank of America Plaza San Antonio, TX 78201 300 Convent St Ste 2350 San Antonio, TX 78205-3703 * DELIVERED VIA E-MAIL * RE: Court of Appeals Number: 04-14-00509-CV Trial Court Case Number: 2013-CI-12691 Style: Gloria, Ochoa v. Nail Flower Beauty Salon - The Appellant's Third Motion for Extension of Time to File Brief has, this date been received and filed in the above styled and numbered cause. Very truly yours, KEITH E. HOTTLE, CLERK Deputy Clerk, Ext. 3219 cc: Dinah L. Gaines (DELIVERED VIA E-MAIL)