Page 1 of 16 ^
NO.04-14-00509-CV ° ™%3
FOURTH COURT OF APPEALS DISTRICT
CADENA-REEVES JUSTICE CENTER
300 Dolorosa, Suite 300
San Antonio, Texas 78205-3037 c=> — —■
February 9, 2015
APPELLANTS BRIEF- AMENDED 3-14-f5 -:■-:
GLORIA E. OCHOA-APPELLANT, APPELLANT IN PRORtA
PERSONA £ V.
NAIL FLOWER NAIL/BEAUTY SALON-APPELLEE.
APPEAL FROM THE 224TH JUDICIAL DISTRICT COURT IN BEXAR COUNTY, TEXAS
ORAL ARGUMENT REQUESTED.
I PAGE 2 OF 16
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL.............. i
INDEX OF AUTHORITIES .iv
STATEMENT OF THE CASE..... vii
ISSUES PRESENTED vii
STATEMENT REGARDING ORAL ARGUMENT. viii STATEMENT OF FACTS 1
STATEMENT OF THE ARGUMENT... 2
STANDARD REVIEW 3
ARGUMENT......... 4
CONCLUSION AND PRAYER 5
CERTIFICATE OF SERVICE 6
APPENDIX
ORIGINAL APPEAL PETITION 7-14-14
1ST MOTION TO EXTEND TIME TO FILE BRIEF 11-14-14
2ND MOTION TO EXTEND TIME TO FILE BRIEF 12-16-14
APPELLANTS BRIEF FILED 2-9-15. Page 3 of 16
IDENTITY OF PARTIES AND COUNSEL
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No 2013-CI-12691
Honorable Antonia Arteaga, Judge Presiding
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 16
IDENTITY OF PARTIES AND COUNSEL (CONTINUED)
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 16
INDEX OF AUTHORITIES
Texas #322.103 (1) (B) PROFESSIONAL MALPRACTICE
NEGLIGENCE. 322.01 (2), 322.05 <2 CH 290,.
CASES
Beauty Shops, Inc. v Foreman, 319 S.W. 2D 737, 738-739 9Civ, Apiv-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 of 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). Page 6 of 16
#. 322.103 (1) (b) Professional Malpractice 322-76
(b)—ELEMENTS OF CAUSE OF ACTION FOR NEGLIGENCE OF BARBER OF COSMETOLOGISTS.This form alleges the five standard elements of negligence: duty, breach of duty, proximate causation, injury, and damages (see 322.01 (), 322,05 (2); Ch 2980, Negligence). The duty owed to the plaintiff arises out of the professional relationship between the barber or cosmetologist and the client and the breach of duty is the professional's 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 anguish for any embarrassment or humiliation resulting from alterations in his or her appearance caused by the professional's negligence (Dickey v Jackson, 193 S. W. 584, 585 (Civ. Page 7 of 16
(continued from page 6)
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). Page 8 of 16
STATEMENT OF THE CASE
GLORIA E OCHOA, PLAINTIFF, WAS SEVERLY INJURED AT ABOVE DESCRIBED NAIL/BEAUTY SALON.
NAIL SALON DID NOT STERILIZE ITS EQUIPMENT FOR MANICURE AND SEVERE STAPH INFECTION WAS INCURRED AT THEIR SALON.
SUMMARY JUDGEMENT RENDERED 6-19-14 Page 9 of 16
ISSUES TO BE 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. Summary Judgment rendered.
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 research/work on this case. Also, Plaintiff is and has been under ongoing medical care and continues to suffer from effects of this staph infection obtained at the Defendants place of business. Page Wof 16
6. Plaintiff/Gloria E Ochoa has been and is currently under physicians care and on medication for extreme pain. Diminished use of hands, fingers, loss of balance in legs/feet & other related injuries, since the date of injury in 2011. Plaintiff is now disabled and no longer able to work. Prior to this injury, Plaintiff worked over 40 years and was going to work an additional 10 years before retiring.
7. Above described situation and severe injuries from staph infection at 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 9^of 16 SUMMARY
Gloria E Ochoa, plaintiff, moves the court to set aside the Summary Judgment rendered against it on 6-19-14 and grant a new Trial- Seeking justice in this Personal Injury case.
This case did not go to trial thus there were no court reporter records completed. Page 10 of 16
STATEMENT OF FACTS.
HOW WAS I INJURED?
On on August 9th, 2011, Gloria E Ochoa, plaintiff, went to Nail Flower Beauty/Nail Salon located at 4535 Fredericksburg Rd, Suite 211, San Antonio, Texas to have a manicure/pedicure.
See included copy of my bank record showing date of visit to 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 what appeared to be soap solution to soften cuticles.
A short while later, Gloria Ochoa, plaintiff, suffered severe infection to thumb, that necessitated emergency medical treatment. Thumb was very swollen, blue in color and extremely painful.
Treatment included "lancing" of thumb to expel Page tfl of 16
(Description of Injuries continued)
infection. Subsequent and ongoing pain in left thumb hand. Discoloration, Disfigurement /Loss of use on thumb and hand. Chronic ongoing pain in thumb and hand/shoulder, Page 11 of 16
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 case 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 promise.
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Page 1 of 16 ^
NO.04-14-00509-CV ° ™%3
FOURTH COURT OF APPEALS DISTRICT
CADENA-REEVES JUSTICE CENTER
300 Dolorosa, Suite 300
San Antonio, Texas 78205-3037 c=> — —■
February 9, 2015
APPELLANTS BRIEF- AMENDED 3-14-f5 -:■-:
GLORIA E. OCHOA-APPELLANT, APPELLANT IN PRORtA
PERSONA £ V.
NAIL FLOWER NAIL/BEAUTY SALON-APPELLEE.
APPEAL FROM THE 224TH JUDICIAL DISTRICT COURT IN BEXAR COUNTY, TEXAS
ORAL ARGUMENT REQUESTED.
I PAGE 2 OF 16
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL.............. i
INDEX OF AUTHORITIES .iv
STATEMENT OF THE CASE..... vii
ISSUES PRESENTED vii
STATEMENT REGARDING ORAL ARGUMENT. viii STATEMENT OF FACTS 1
STATEMENT OF THE ARGUMENT... 2
STANDARD REVIEW 3
ARGUMENT......... 4
CONCLUSION AND PRAYER 5
CERTIFICATE OF SERVICE 6
APPENDIX
ORIGINAL APPEAL PETITION 7-14-14
1ST MOTION TO EXTEND TIME TO FILE BRIEF 11-14-14
2ND MOTION TO EXTEND TIME TO FILE BRIEF 12-16-14
APPELLANTS BRIEF FILED 2-9-15. Page 3 of 16
IDENTITY OF PARTIES AND COUNSEL
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No 2013-CI-12691
Honorable Antonia Arteaga, Judge Presiding
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 16
IDENTITY OF PARTIES AND COUNSEL (CONTINUED)
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 16
INDEX OF AUTHORITIES
Texas #322.103 (1) (B) PROFESSIONAL MALPRACTICE
NEGLIGENCE. 322.01 (2), 322.05 <2 CH 290,.
CASES
Beauty Shops, Inc. v Foreman, 319 S.W. 2D 737, 738-739 9Civ, Apiv-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 of 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). Page 6 of 16
#. 322.103 (1) (b) Professional Malpractice 322-76
(b)—ELEMENTS OF CAUSE OF ACTION FOR NEGLIGENCE OF BARBER OF COSMETOLOGISTS.This form alleges the five standard elements of negligence: duty, breach of duty, proximate causation, injury, and damages (see 322.01 (), 322,05 (2); Ch 2980, Negligence). The duty owed to the plaintiff arises out of the professional relationship between the barber or cosmetologist and the client and the breach of duty is the professional's 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 anguish for any embarrassment or humiliation resulting from alterations in his or her appearance caused by the professional's negligence (Dickey v Jackson, 193 S. W. 584, 585 (Civ. Page 7 of 16
(continued from page 6)
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). Page 8 of 16
STATEMENT OF THE CASE
GLORIA E OCHOA, PLAINTIFF, WAS SEVERLY INJURED AT ABOVE DESCRIBED NAIL/BEAUTY SALON.
NAIL SALON DID NOT STERILIZE ITS EQUIPMENT FOR MANICURE AND SEVERE STAPH INFECTION WAS INCURRED AT THEIR SALON.
SUMMARY JUDGEMENT RENDERED 6-19-14 Page 9 of 16
ISSUES TO BE 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. Summary Judgment rendered.
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 research/work on this case. Also, Plaintiff is and has been under ongoing medical care and continues to suffer from effects of this staph infection obtained at the Defendants place of business. Page Wof 16
6. Plaintiff/Gloria E Ochoa has been and is currently under physicians care and on medication for extreme pain. Diminished use of hands, fingers, loss of balance in legs/feet & other related injuries, since the date of injury in 2011. Plaintiff is now disabled and no longer able to work. Prior to this injury, Plaintiff worked over 40 years and was going to work an additional 10 years before retiring.
7. Above described situation and severe injuries from staph infection at 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 9^of 16 SUMMARY
Gloria E Ochoa, plaintiff, moves the court to set aside the Summary Judgment rendered against it on 6-19-14 and grant a new Trial- Seeking justice in this Personal Injury case.
This case did not go to trial thus there were no court reporter records completed. Page 10 of 16
STATEMENT OF FACTS.
HOW WAS I INJURED?
On on August 9th, 2011, Gloria E Ochoa, plaintiff, went to Nail Flower Beauty/Nail Salon located at 4535 Fredericksburg Rd, Suite 211, San Antonio, Texas to have a manicure/pedicure.
See included copy of my bank record showing date of visit to 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 what appeared to be soap solution to soften cuticles.
A short while later, Gloria Ochoa, plaintiff, suffered severe infection to thumb, that necessitated emergency medical treatment. Thumb was very swollen, blue in color and extremely painful.
Treatment included "lancing" of thumb to expel Page tfl of 16
(Description of Injuries continued)
infection. Subsequent and ongoing pain in left thumb hand. Discoloration, Disfigurement /Loss of use on thumb and hand. Chronic ongoing pain in thumb and hand/shoulder, Page 11 of 16
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 case 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 promise. Its decisions will have a far reaching negative consequence if allowed to stand. Page 12 of 16
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 the following personal injuries:
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. Ongoing medical treatment. Page 13 of 16
SUMMARY
WHAT DO I WANT TO SEE COME OUT OF THIS NEW TRIAL?
1. I do not want this to happen to any other innocent person walking in to this nail salon for a simple manicure AND getting a life changing severe staph infection.
Needless ONGOING suffering due to Defendants Negligence.
2. Defendant must ACCEPT RESPONSIBILITY FOR THE GREAT INJURY THEY HAVE CAUSED ME.
They must immediately sterilize all equipment with each client or use disposable equipment.
3. I NEED REASONABLE COMPENSATION for ONGOING PAIN and SUFFERING /LOSS OF USE FOR THUMB/HAND. DISFIGUREMENT FOR THUMB. DISABLED STATUS DUE TO THIS TERRIBLE "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. I had intended to work another 10 years before starting social security. That option was taken from me. PAGE 14 of 16
PRAYER FOR RELIEF.
Therefore, plaintiff, respectfully requests Judgment/Reversal of summary iudgment 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.
Phone:210-309-0744. 210-736-1408 Page 15 of 16
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.
f. Gloria E Ochoa
542 Williamsburg PL
Phone:210-309-0744
Phone: 210-736-1408 Page 16 of 16
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. (1213 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,