                                                                               ACCEPTED
                                                                          03-14-00470-CV
                                                                                 3723534
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                    1/11/2015 11:41:18 AM
                                                                        JEFFREY D. KYLE
                                                                                   CLERK

             No. 03-14-00470-CV
                                                         FILED IN
                                                  3rd COURT OF APPEALS
                    IN THE COURT OF APPEALS            AUSTIN, TEXAS
                FOR THE THIRD DISTRICT OF TEXAS   1/12/2015 11:41:18 AM
                                                      JEFFREY D. KYLE
                                                           Clerk

           Jose G. Chavez, appellant
                      v.
       Juan Francisco Martinez, appellee

            On Appeal from County Court at Law No. 2
                      Travis County, Texas
                  Tr. Ct. No. C-1-CV-13-008449



               APPELLEE’S BRIEF
                                Timothy A. Hootman, SBN 09965450
                                2402 Pease St
                                Houston, TX 77003
                                713.247.9548
                                713.583.9523 (f)
                                Email: thootman2000@yahoo.com
                               Bill Malone, Jr., SBN 12877500
                               8650 Spicewood Springs, No 145-598
                               Austin, TX 78759
                               512.346.9600
                               ATTORNEYS FOR APPELLEE,          JUAN
                               FRANCISCO MARTINEZ

ORAL ARGUMENT NOT REQUESTED


                               1
      LIST OF PARTIES AND COUNSEL
     The following persons and entities are parties or counsel in this case:


Appellant:                   Jose G. Chavez, pro se


Appellee:                    Juan Francisco Martinez
Counsel for appellee in      Bill Malone, SBN 12877500
the trial court:             8650 Spicewood Springs, No. 145-598
                             Austin, TX 78759
                             512.346.9600

Counsel for appellee on Timothy A. Hootman, SBN 09965450
appeal:                 2402 Pease St.
                        Houston, TX 77003
                        713.247.9548
                        713.583.9523 (f)
                        Email: thootman2000@yahoo.com
                             and
                             Bill Malone




                                     2
                         TABLE OF CONTENTS
LIST OF PARTIES AND COUNSEL ................................................................. 2
TABLE OF CONTENTS ................................................................................... 3
INDEX OF AUTHORITIES .............................................................................. 4
STATEMENT OF CASE ................................................................................... 7
STATEMENT OF FACTS ................................................................................. 8
SUMMARY OF ARGUMENT .......................................................................... 13
ARGUMENT AND AUTHORITIES .................................................................. 14
    a. Standard of review applicable to this case. ..............................14
            i.     The standard of review regarding a
                   traditional motion for summary
                   judgment. .............................................................................14
            ii. Late filed evidence responsive to a
                motion for summary judgment...................................... 15
    b. Procedural default. ........................................................................16
    d. Discussion. ...................................................................................... 18
            i.     Whether there is a fact question that
                   Chavez     signed               the           personal
                   guarantee. ........................................................................... 18
            ii. Late filed evidence responsive to a
                motion for summary judgment..................................... 20
            iii. Whether the trial court erred
                 “regarding the amount of interest
                 owed under the Note”. ......................................................21
            iv. Whether the award of $33,333.33 for
                attorney’s fees for work performed in
                the trial court is proper. .................................................. 23
PRAYER ..................................................................................................... 33
CERTIFICATE OF WORD COUNT ................................................................. 34
CERTIFICATE OF SERVICE ......................................................................... 34
                                                      3
                     INDEX OF AUTHORITIES
Cases:
½ Price Checks Cashed v. United Automobile Ins. Co., 344 S.W.3d
     378 (Tex. 2011) ........................................................................ 24, 25, 26
Amesisys, Inc. v. Kingwood Home Helath Care, LLC, 437 S.W.3d
     507 (Tex. 2013) .....................................................................................14
AMX Enterprises v. Master Realty, Corp., 283 S.W.3d 506 (Tex.
    App.—Fort Worth 2009, no pet. ) .......................................................... 30
Aquila Sw. Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d
      225 (Tex. App.—San Antonio 2001, pet. denied) ............................... 31, 33
Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex.
     1997) ................................................................................. 23, 27, 29, 30
Benchmark Bank v. Crowder, 919 S.W.2d 657 (Tex. 1996) ......................... 15, 19
Blankinship v. Brown, 399 S.W.3d 303 (Tex. App.—Dallas 2013, pet.
     denied) ................................................................................................ 18
Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) ............................................... 26
Brooks v. Brooks, 786 S.W.2d 499 (Tex. App.—Houston [1st Dist.]
     1990, writ denied) ................................................................................. 17
Burnside Air Conditioning v. T.S. Young, 113 S.W.3d 889 (Tex.
     App.—Dallas 2003, no pet. ) ................................................................. 28
Castle Tex. Prod. Ltd. P’ship v. Long Trusts, 134 S.W.3d 267 (Tex.
      App.—Tyler 2003, pet. denied) ............................................................. 29
City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2014) ............................. 31, 32
Cleveland v. Taylor, 397 S.W.3d 683 (Tex. App.—Houston [1st Dist.]
      2012, pet. denied) ................................................................................ 29
Elite Towing, Inc. v. LSI Financial Group, 985 S.W.2d 645 (Tex.
      App.—Austin 1999, no pet. ) ..................................................................16
El Apple I, Ltd v. Olivas, 370 S.W.3d 757 (Tex. 2012) ... 23, 27, 28, 29, 30, 31, 32
Enterprise Leasing of Houston v, Barrios, 156 S.W.3d 547 (Tex.
     2004) ....................................................................................... 14, 16, 28
Farmer v. Ben E. Keith Co., 919 S.W.2d 171 (Tex. App.—Fort Worth
     1996, no writ).................................................................................. 15, 19

                                                       4
Great American Reserve Ins. Co. v. Britton, 406 S.W.2d 901 (Tex.
      1966) ................................................................................................... 29
Hasty v. Inwood Buckhorn, 908 S.W.2d 494 (Tex. App.—Dallas
     1995, writ denied) ................................................................................ 26
Healthronics, Inc. v. Lisa Laser USA, Inc., 382 S.W.3d 567, 577
      (Tex. App.—Austin 2012, no pet. ) ......................................................... 28
Izen v. Comm’n for Lawyer Discipline, 322 S.W.3d 308 (Tex. App.—
      Houston [1st Dist.] 2010, pet. denied) .................................................... 17
Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962
     S.W.2d 507 (Tex. 1998) .........................................................................21
Long v. Griffin, 442 S.W.3d 253 (Tex. 2014) ........................................30, 31, 32
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
    844 (Tex. 2009) .................................................................................... 15
McMahan v. Greenwood, 108 S.W.3d 467 (Tex. App.—Houston [14th
    Dist.] 2003, pet. denied) .................................................................. 16, 19
McMahon v. Zimmerman, 433 S.W.3d 680 (Tex. App.—Houston [1st
    Dist.] 2014, no pet. ) ........................................................................ 31, 32
Mercier v. Southeastern Bell Yellow Pages, Inc., 214 S.W.3d 770
     (Tex. App.—Corpus Christi 2007, no pet. ) ............................................. 24
Moayedi v. Interstate 35/Chisam Road, L.P., 438 S.W.3d 1 (Tex.
    2014) ....................................................................................................21
Murphy v. McDermott, Inc., 807 S.W.2d 606 (Tex. App.—Houston
    [14th Dist.] 1991, no writ) ................................................................. 15, 19
Neimes v. Ta, 985 S.W.2d 132 (Tex. App.—San Antonio 1998, pet.
     dism’d by agr. ) ..................................................................................... 15
O and B Farms, Inc. v. Black, 300 S.W.3d 418 (Tex. App.—Houston
     [14th Dist.] 2009, pet. denied) ............................................................... 29
O’Farrill Avila v. Gonzalez, 974 S.W.2d 237 (Tex. App.—San Antonio
     1998, pet. denied) ........................................................................... 31, 33
Perry v. Cohen, 272 S.W.3d 585 (Tex. 2008) .................................................. 18
Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Tex. App.
      Austin 2004, no pet. ) ........................................................................... 28


                                                        5
Priesmeyer v. Pac. Sw. Bank, F.S.B., 917 S.W.2d 937 (Tex. App.—
      Austin 1991, no writ) ....................................................................... 15, 19
Protect Envtl. Servs. v. Norco Corp., 403 S.W.3d 532 (Tex. App.—El
      Paso 2013, pet. denied) .................................................................... 31, 32
Rockwall Commons Associates, Ltd v. MRC Mortgage Grantor
     Trust, 331 S.W.3d 500 (Tex. App.—El Paso 2010, no pet. ) ...................... 17
Sabine Offshore Svc. Inc. v. City of Port Arthur, 595 S.W.2d 840
     (Tex. 1970)............................................................................................ 17
San Antonio Credit Union v. O’Connor, 115 S.W.3d 82 (Tex. App.—
     San Antonio 2003, pet. denied)....................................................... 24, 29
Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545 (Tex. 2009).................. 25, 30
Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211 (Tex. 2002) ................................. 15
Waddy v. City of Houston, 834 S.W.2d 97 (Tex. App.—Houston [1st
    Dist.] 1992, writ denied) .................................................................. 16, 19
Woollett v. Matyastik, 23 S.W.3d 48 (Tex. App.—Austin 2000, pet.
     denied) ................................................................................................ 29
World Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662 (Tex. App.—
     Fort Worth 1998, pet. denied) ............................................................... 22
Statutes:
TEX. CIV. PRAC. & REM. CODE § 38.001 ............................................................ 25
TEX. CIV. PRAC. & REM. CODE § 38.004 ....................................................... 26, 31
TEX. R. APP. P. 38.1 ................................................................................... 17, 20
TEX. R. APP. P. 38.9 ........................................................................................ 18
TEX. R. CIV. P. 166a(c) ........................................................................ 15, 19, 28
TEX. R. DISCIPLINARY P. 1.04 ........................................................................... 27
TEX. R. EVID. 702 ........................................................................................... 29




                                                       6
           STATEMENT OF THE CASE
      Appellee, Juan Francisco Martinez (“Martinez”), sued appellant,

Jose G. Chavez (“Chavez”), for fraud in the inducement, breach of contract,

and unjust enrichment related to Martinez loaning Design Workz LLC

$100,000.00 as documented with a “Real Estate Lien Note” that contains a

personal guarantee provision signed by Chavez (CR 5-6). Chavez filed a

pro se answer asserting a general denial (CR 11).

      After Martinez filed a motion for summary judgment, Chavez sought

a continuance so that he could (1) “hire an attorney”; and (2) have “more

time to produce documents relative to case” (CR 18).       The trial court

granted the motion for continuance (CR 19), but Martinez neither hired an

attorney nor filed a response to the motion for summary judgment; thus,

the trial court signed a final judgment that awards Martinez $100,000.00,

interest in the amount of $62,876.71, attorney’s fees, and post judgment

interest in the amount of 18% per year (CR 21).

      Thirty days after the final judgment was signed, Chavez filed a

“Defendants’ Notice of Appearance of Counsel” (CR 22) and a motion for

new trial including evidence that had not be filed before (CR 24-41). The

motion for new trial was denied.

      This appeal follows.




                                     7
               STATEMENT OF FACTS
      The appellate record reflects that on 1 October 2009, Martinez and

Design Workz, LLC signed a document entitled “Real Estate Lien Note”

(called “Note” herein) (CR 15-17). The Note states that Design Workz, LLC

will pay Martinez $100,000.00 by 1 October 2010 (CR 15). The Note also

contains a personal guarantee signed by Chavez which states:

             For value received, I, Jose Chavez, absolutely and
             unconditionally guarantee payment of this note
             according to its terms to the same extent as if I
             were Marker of this Note (CR 17).

      Chavez did not include in the appellate record the motion for

summary judgment filed by Martinez. He admits in his Appellant’s Brief,

however, that Martinez did in fact file a motion for summary judgment.

See Aplt. Br. at 6, 7, 9, 10, 11. This is also admitted in Chavez’s motion for

new trial (CR 24).

      Chavez includes in the appellate record the affidavit of Martinez (CR

13-14) and Martinez’s trial counsel (CR 12) which were part of the evidence

before the trial court when the motion for summary judgment was ruled

on—this can be determined by looking at the dates the affidavits were filed

compared with the dates of the other trial court filings.

      Martinez states in his affidavit that:

             Chavez guaranteed that he would pay the
             $100,000.00 promissory note signed by Design
             Workz, LLC.


                                      8
             Payments on the note were in default since on or
             about 1 October 2010.
             The agreed upon rate of interest was 18% per
             year.
             Demand had been made and refused.
             “Plaintiff has performed all conditions precedent
             for recovery on the agreements for recovery of
             attorney’s fees.” (CR 13-14).

Also attached to Martinez’s affidavit is the Note that is the basis of this case

(CR 15-17) which provides that the principal amount owed is $100,000.00,

that there is a fixed rate of interest of 40% (CR 15), and states:

             “If this note … is given to an attorney for
             collection or enforcement, or if suit is brought for
             collection or enforcement … then Maker shall pay
             Payee all costs of collection and enforcement,
             including reasonable attorney’s fees and court
             costs, in addition to other amounts due.
             Reasonable attorney’s fees shall be 10% of all
             amounts due unless either party pleads
             otherwise” (CR 16).
             “Interest on the debt evidenced by this note shall
             not exceed the maximum amount of nonusurious
             interest that may be contacted for” (CR 16).
             “Interest shall be computed on the basis of a year
             of three hundred sixty (360) days, and accrued on
             the number of days funds are actually
             outstanding” (CR 16).
             “If any payment or installment becomes overdue
             for more than ten (10) days, at Investor’s option,
             five percent (5%) of the overdue payment, with a
             minimum of $25.00, may be charged in order to
             defray the expense of handling the delinquent
             payment” (CR 16-17).

      The portion of Martinez’s trial counsel’s affidavit that is particularly

relevant to this appeal states:

                                       9
              “It is my opinion that a reasonable and necessary
              attorney’s fee for the prosecution of this action
              through the signing of a Judgment on this Motion
              for Summary Judgment is at least $33,333.33”
              (CR 12).

       Chavez sought a continuance of Martinez’s motion for summary

judgment so that he could (1) “hire an attorney”; and (2) have “more time

to produce documents relative to case” (CR 18). The trial court granted the

motion for continuance (CR 19), but Martinez neither hired an attorney

nor filed a response to the motion for summary judgment, and therefore,

the trial court signed a final judgment (CR 21).

       Chavez states in his Appellant’s Brief that he testified at the hearing

on the motion for summary judgment, but he has not caused a

transcription of that hearing to be made part of the appellate record. See

Aplt. Br. at 6, 7.

       Thirty days after the final judgment was signed, Chavez filed a

“Defendants’ Notice of Appearance of Counsel” (CR 22) and a motion for

new trial including new evidence that had not be filed in response to the

motion for summary judgment (CR 24-41). Attached to the motion for new

trial were the affidavits of Chavez (CR 31-32) and Dan Honig (CR 37-38).

Chavez states in his affidavit:

              He is the President of Design Workz LLC (CR 32).
              Martinez “agreed to invest $100,000.00 in the
              project in the form of a loan” (CR 32).
              He attaches a copy of a signed note that does not
              contain a personal guarantee (CR 34-36).

                                      10
Honig states in his affidavit that:

             He is the founder of Design Workz LLC (CR 34).
             Martinez “agreed to invest $100,000.00 in the
             project in the form of a loan” (CR 34).
             He attaches a copy of an unsigned “standard
             form” note he claims is “given to all investors,
             such as Mr. Martinez”—the form does not contain
             a personal guarantee provision (CR 38-41).

      Although he did not file a motion for leave to file this evidence out-

of-time, Chavez argues in his motion for new trial that the this late-filed

evidence presents fact questions as to (1) whether Chavez signed the

personal guarantee; (2) “the amount owed pursuant to the Note”; and (3)

“the amount of interest owed under the Note” (CR 25-26). The motion for

new trial also argues that (4) the award of $33,333.33 for attorney’s fees

incurred in the trial court is improper because the attorney’s fee affidavit

“provides no detail whatsoever on the nature of the work conducted, who

performed those services, their rate, when the services were performed, or

how long those services took” (CR 28). The motion for new trial does not

challenge the award of appellate attorney’s fees.

      The motion new trial was denied either by operation of law or by

written motion—Chavez did not cause the order denying the motion for

new trial, if any, to be made part of the appellate record.

      In his Appellant’s Brief, Chavez argues that (1) there is a question of

fact as to whether he signed a personal guarantee; (2) there is a question of

fact as to the amount owed pursuant to the Note; (3) the trial court erred

                                      11
“regarding the amount of interest owed under the Note”; and (4) the award

of $33,333.33 for attorney’s fees incurred in the trial court is improper—

Chavez does not challenge the award of appellate attorney’s fees.




                                    12
           SUMMARY OF ARGUMENT
      Point of Error 1—which argues that there is a fact question as to

whether Chavez signed the personal guarantee—should be overruled

because the evidence Chavez attached to his motion for new trial in support

of this argument was not timely filed in the trial court, and therefore, may

not be used on appeal.

      Point of Error 2—which argues that there is a fact question as to the

amount owed on the Note—should be overruled because there is no

evidence in the appellate record supporting the factual grounds that

Chavez cites to for this argument.

      Point of Error 3—which argues that an issue of material fact exists

regarding the amount of interest to be paid on the amount of debt—should

be overruled because the unambiguous language of the Note supports the

trial court’s calculation of interest as a matter of law.

      Point of Error 4—which argues the trial court’s summary judgment

regarding attorney’s fees in the amount of $33,333.33 for the trial work is

improper—should be overruled because the contingency fee method of

calculating a reasonable attorney’s fee was used by Martinez and the sum

of $33,333.33 was bolstered by the trial court’s taking judicial notice of the

usual and customary attorney’s fee and of the contents of the case file, as

allowed by section 38.004 of the Civil Practice & Remedies Code regarding

a claim to collect on a written agreement.
                                       13
     ARGUMENT AND AUTHORITIES
a.    Standards of review applicable to this case.
           i.   The standard of review regarding
                a traditional motion for summary
                judgment.
        Summary judgment is reviewed de novo. Enterprise Leasing of

Houston v, Barrios, 156 S.W.3d 547, 549 (Tex. 2004). The party moving

for a traditional summary judgment has the burden to submit sufficient

evidence that establishes on its face that there is no genuine issue as to any

material fact and that it is entitled to judgment as a matter of law.

Amesisys, Inc. v. Kingwood Home Helath Care, LLC, 437 S.W.3d 507, 511

(Tex. 2013). When a movant meets its burden of establishing each element

of the claim or defense on which it seeks summary judgment, the burden

then shifts to the non-movant to disprove or raise an issue of fact as to at

least one of those elements. Id. But if the movant does not satisfy its initial

burden, the burden does not shift and the non-movant need not respond or

present any evidence. Id. This is because summary judgments must stand

or fall on their own merits, and the non-movant’s failure to answer or

respond cannot supply by default the summary judgment proof necessary

to establish the movant’s right to judgment. Id. at 511-12. Thus, a non-

movant who fails to raise any issues in response to a summary judgment

may still challenge, on appeal, the legal sufficiency of the grounds

presented by the movant. Id. at 512.
                                       14
         To determine if there is a fact issue, the evidence is viewed in the

light most favorable to the non-movant, crediting favorable evidence if

reasonable jurors could do so, and disregarding contrary evidence unless

reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc.

v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A reviewing court should

indulge every reasonable inference and resolve any doubt in the non-

movant’s favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.

2002).

            ii. Late filed evidence responsive to a
                motion for summary judgment.
      Rule 166a(c) provides that “[e]xcept on leave of court, the adverse

party, not later than seven days prior to the day of hearing may file and

serve opposing affidavits or other written response.”       TEX. R. CIV. P.

166a(c); Murphy v. McDermott, Inc., 807 S.W.2d 606, 609 (Tex. App.—

Houston [14th Dist.] 1991, no writ). Evidence may be late-filed only with

leave of court. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.

1996); Neimes v. Ta, 985 S.W.2d 132, 139 (Tex. App.—San Antonio 1998,

pet. dism’d by agr.); Farmer v. Ben E. Keith Co., 919 S.W.2d 171, 176 (Tex.

App.—Fort Worth 1996, no writ); see also Priesmeyer v. Pac. Sw. Bank,

F.S.B., 917 S.W.2d 937, 939 (Tex. App.—Austin 1991, no writ) (per curiam)

(“Summary judgment evidence must be submitted, at the latest, by the date

the summary judgment was [signed].”). If the trial court allows late filing



                                     15
of a response to a motion for summary judgment, the court “must

affirmatively indicate in the record acceptance of the late filing.” Farmer,

919 S.W.2d at 176. In the absence of such an indication that the trial court

allowed the late filing, the appellate court should presume that the trial

court refused the late filing, even if the response appears as part of the

appellate record. Waddy v. City of Houston, 834 S.W.2d 97, 101 (Tex.

App.—Houston [1st Dist.] 1992, writ denied) (finding nothing in the record

indicating that the trial court granted leave for a late filing, giving rise to a

presumption that the court did not consider the late response and, thus,

the appellate court could not consider the response).

      Unless the movant on rehearing or motion for new trial following the

grant of a summary judgment shows that the evidence “could not have

been discovered through due diligence prior to the ruling on a summary

judgment motion,” additional evidence may not be considered on

rehearing. McMahan v. Greenwood, 108 S.W.3d 467, 500 (Tex. App.—

Houston [14th Dist.] 2003, pet. denied).

b.    Procedural default.

      When an appellant fails to cause relevant portions of the trial court’s

record to be made part of the appellate record, the issues in question are

waived. See Enterprise Leasing, 156 S.W.3d at 549-50; Elite Towing, Inc.

v. LSI Financial Group, 985 S.W.2d 645, 645 (Tex. App.—Austin 1999, no

pet.). Here, Chavez claims that he testified during the motion for summary

                                       16
judgment hearing and that that evidence should be a reason to set aside the

trial court’s summary judgment order. See Aplt. Br. at 6, 7. Even if such

evidence could be used as a basis for challenging the summary judgment

order, it has not been made part of the appellate record. Additionally, he

attaches documents to his Appellant’s Brief which are not included in the

Clerk’s Record. These items cannot be considered by this Court. Sabine

Offshore Svc. Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1970);

Brooks v. Brooks, 786 S.W.2d 499, 501 (Tex. App.—Houston [1st Dist.]

1990, writ denied).

      This Court could overrule Points of Error 1, 2, and 3 raised in

Appellants’ brief because of the inadequate briefing of Chavez failing to

provide record citations in the statement of facts and citations to legal

authorities in the argument portion of the brief regarding these Points.

TEX. R. APP. P. 38.1 (f), (h).    In this regard, Rule 38 of the Rules of

Appellate Procedure and many opinions make clear that a brief on appeal

must provide legal argument discussing pertinent facts supported by

record citations and citations to legal authority demonstrating the basis for

the relief requested, otherwise the issues are waived. TEX. R. APP. P. 38.1

(f), (h); Rockwall Commons Associates, Ltd v. MRC Mortgage Grantor

Trust, 331 S.W.3d 500, 509 (Tex. App.—El Paso 2010, no pet.); Izen v.

Comm’n for Lawyer Discipline, 322 S.W.3d 308, 321 (Tex. App.—Houston

[1st Dist.] 2010, pet. denied). This rule should not be lightly applied by the

                                     17
appellate courts. TEX. R. APP. P. 38.9; Ditta v. Conte, 298 S.W.3d 187, 190

(Tex. 2009); Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per

curiam). The Fifth Court of Appeals recently summed up this are of the

law by saying:

            Although appellate courts generally construe the
            briefing rules liberally, points of error
            unsupported by the citation of authority present
            nothing for review. Blankinship v. Brown, 399
            S.W.3d 303, 307 (Tex. App.—Dallas 2013, pet.
            denied).

Assuming this Court is willing to overlook Chavez’s briefing inadequacies,

the following discussion is applicable to the merits of Chavez’s arguments.

c.    Discussion.
           i.    Whether there is a fact question
                 that Chavez signed the personal
                 guarantee.
      In his Point of Error 1, Chavez argues that there is a fact question as

to whether he signed the personal guarantee. See Aplt. Br. at 7, 9. In

making this argument, Chavez relies exclusively on two affidavits—his own

affidavit and that of Dan Honig—that he attached to his motion for new

trial (CR 31-32; 37-38). More particularly, Chavez claims that because his

affidavit attaches a signed note that does not have a personal guarantee

signed by Chavez, and because Honig’s affidavit attaches a form note which

Design Works LLC routinely uses which also does not have a personal

guarantee provision, that therefore a fact question arises as to whether the



                                     18
Note attached to Martinez’s summary judgment that does have a personal

guarantee signed by Chavez was in fact signed by Chavez.

      The two affidavits, however, cannot be relied on as a basis for

challenging the trial court’s grant of summary judgment because they were

filed after the summary judgment order was signed, Chavez did not obtain

leave of court to file them out-of-time, and there is no evidence that the

evidence could not have been discovered through due diligence prior to the

ruling on a summary judgment motion.              TEX. R. CIV. P. 166a(c);

Benchmark Bank, 919 S.W.2d at 663; McMahan, 108 S.W.3d at 500;

Neimes, 985 S.W.2d at 139; Farmer, 919 S.W.2d at 176; Priesmeyer, 917

S.W.2d at 939; Waddy, 834 S.W.2d at 101; Murphy, 807 S.W.2d at 609;.

      Chavez does not argue that the evidence offered by Martinez in

support of his motion for summary judgment is insufficient, but only that

the two affidavits attached to his motion for new trial give rise to a material

fact question. Accordingly, Chavez’s argument in Point of Error 1 that

there is a fact question as to whether he signed the personal guarantee

should be overruled.




                                      19
           ii. Whether there is a fact question
               as to the amount owed on the
               Note.
      In his Point of Error 2, Chavez argues that there is a fact question as

to the amount owed on the Note. See Aplt. Br. at 7, 10. The entirety of the

argument made by Chavez in his Appellant’s Brief in support of this claim

is the following:

             A fact issue also exists as to whether Mr. Martinez
             received partial payment on the Note and is not
             due the entire principle of $100,000. In 2010,
             Mr. Martinez was provided 3,500,000 shares of
             tradable stock in a company called CLX Medical,
             Inc. in consideration of the debt under the Note.
             The transfer of stock constituted partial payment
             on the Note. Therefore, a genuine issue of
             material fact exists regarding the amount of
             money owed to Plaintiff. See Aplt. Br. at 10.

Chavez cites to no portion of the record for the factual basis of his

argument that Martinez was provided stock, that the stock were tradable,

that CLX Medical is in fact a company, or that the alleged transfer was to

be partial payment on the Note. Of course, factual assertions on appeal

must be supported by the record. TEX. R. APP. P. 38.1(g).

      There being no factual basis in the summary judgment record to

support the factual allegations underlying Chavez’s Point of Error 2, the

point should be overruled.




                                     20
           iii. Whether the trial court erred
                “regarding the amount of interest
                owed under the Note”.
      In his Point of Error 3, Chavez argues that an issue of material fact

exists regarding the amount of interest to be paid on the amount of debt.

See Aplt. Br. at 7, 10. The entirety of the argument made by Chavez in

support of this claim is the following:

             An issue of material fact exists on the interest rate
             charged under the note. According to Plaintiff’s
             affidavit, “Defendant agreed to pay 18% interest
             per year on all sums past due.” [Citing affidavit of
             Martinez.] This is the rate the Court’s order
             states Defendant is obligated to pay. The Note,
             however, clearly states that the annual interest
             rate on unpaid principle is a fixed rate of 40%.
             Therefore, there is an inconsistency between the
             rate of interest alleged by Plaintiff and the Note
             and Plaintiff failed to provide an explanation for
             this inconsistency. Accordingly the proper rate of
             interest owed on the debt is a genuine issue of
             material fact. See Aplt. Br. at 10.

      The trial court’s order awards Martinez $62,876.71 for pre-judgment

interest and 18% post-judgment interest (CR 21).

      When parties agree to interest, contract principles apply for

determining the rate of interest owed under the agreement. See Johnson &

Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex.

1998). In interpreting a contract, of course, the language of the agreement

is key. Moayedi v. Interstate 35/Chisam Road, L.P., 438 S.W.3d 1, 7 (Tex.

2014) (applying contract principles in construing a guarantee agreement).

Moreover, the interpretation of an unambiguous contract is a question of
                                      21
law. Id.

      There is no allegation by Chavez that the Note is ambiguous. See

World Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662, 680 (Tex. App.—

Fort Worth 1998, pet. denied) (stating that ambiguity is an affirmative

defense that must be raised by the pleadings).        And, the controlling

language of the Note states that “[i]nterest … shall not exceed the

maximum amount of nonusurious interest that may be contracted for” and

that “[i]nterest shall be computed on the basis of a year and three hundred

sixty (360) days, and accrued on the number of days funds are actually

outstanding” (CR 16).

      Because 18% interest per annum is the maximum amount of interest

that may be contracted for under Texas law, the statement in Martinez’s

affidavit that “Defendant agreed to pay 18% interest per year on all sums

past due” (CR 13) is accurate and the trial court’s award of 18% post-

judgment interest is proper. As for the 40% Chavez refers to in his succinct

argument, the Note states that there is a “[f]ixed rate of forty percent”

interest on the unpaid principal (CR 15), unless the Note is “given to an

attorney for collection or enforcement,” in which case “[i]nterest on the

debt will not exceed the maximum amount of nonusurious interest that

may be contracted for” (CR 16). This is what happened and therefore the

trial court entered judgment regarding interest exacting as agreed to by the

parties.

                                    22
       Because the language of the Note regarding interest is clear and can

be given a fixed meaning as a matter of law, the trial court was correct

awarding Martinez $62,876.71 for pre-judgment interest and 18% post-

judgment interest (CR 21). Chavez’s argument in Point of Error 3 that a

genuine issue of material fact exists regarding the amount of interest to be

paid on the amount of debt is simply not supported by the record or the

language of the Note and should therefore be overruled.

           iv. Whether the award of $33,333.33
               for attorney’s fees for work
               performed in the trial court is
               proper.
       In his Point of Error 4, Chavez argues that the trial court’s summary

judgment regarding attorney’s fees in the amount of $33,333.33 for the

trial work is improper. See Aplt. Br. at 7, 10-11. Chavez does not argue that

Martinez is not entitled to attorney’s fees; rather, Chavez argues that the

evidence in support of the $33,333.33 attorney’s fee award for work

performed in the trial court is “utterly deficient under Texas law,” citing as

authority for this argument El Apple I, Ltd v. Olivas, 370 S.W.3d 757, 761

(Tex. 2012) and the opinions holding that a contingent fee contract alone is

insufficient to support an attorney’s fees award. 1


   1   See, e.g., Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812,
818 (Tex. 1997) (“A party’s contingent fee agreement should be considered by the
factfinder, and is therefore admissible in evidence, but that agreement cannot
alone support an award of attorney’s fees under Texas Business and Commerce
Code section 17.50(d). In other words, the plaintiff cannot simply ask the jury to
award a percentage of the recovery as a fee because without evidence of the
                                       23
       Chavez does not challenge the portion of the trial court’s judgment

awarding appellate attorney’s fees, and therefore, the only issue for this

Court is the factual support offered by Martinez in support of the award of

$33,333.33 as a reasonable attorney’s fee for the trial court work

performed in pursuing the claim on the Note.

                                        ***

       Under Texas law, a court may award attorney’s fees only when

authorized by statute or by the parties’ contract. ½ Price Checks Cashed v.

United Automobile Ins. Co., 344 S.W.3d 378, 382 (Tex. 2011). Here, the

Note states that “[i]f this note … is given to an attorney … them Maker shall

pay … reasonable attorney’s fee … [which] shall be 10% of all amounts due

unless either pleads otherwise” (emphasis added) (CR 16). Martinez

pleaded in his original petition that he should be awarded “reasonable and

necessary attorney’s fees in the amount of at least $33,333.33” (CR 5).

Therefore, per the language of the Note and Martinez’s pleadings, Martinez


factors identified in Disciplinary Rule 1.04, the jury has no meaningful way to
determine if the fees were in fact reasonable and necessary.” “Second, because
the jury is not informed what the total amount of the judgment will be, the jury
can only speculate about whether a percentage of that unknown recovery will
represent a reasonable and necessary fee in that particular case. Rather than
leave this question to speculation, the jury must decide the question of attorney’s
fees specifically in light of the work performed in the very case for which the fee is
sought.”) (citations omitted); Mercier v. Southeastern Bell Yellow Pages, Inc.,
214 S.W.3d 770, 777 (Tex. App.—Corpus Christi 2007, no pet.) (discussing the
statement in Arthur Anderson that recovery of an attorney’s fee may not be based
solely on evidence of a contingent fee); San Antonio Credit Union v. O’Connor,
115 S.W.3d 82, 105-06 (Tex. App.—San Antonio 2003, pet. denied) (stating that a
contingent fee agreement alone is not a sufficient basis to determine an attorney’s
fee).

                                         24
was entitled to more than 10% of all amounts due under the Note as

attorney’s fee, but only if the evidence and law supports the trial court’s

conclusion that there is no question of material fact that $33,333.33 was a

reasonable attorney’s fee for the work performed in the trial court.

      Chapter 38 of the Civil Practice & Remedies Code provides that a

“person may recover reasonable attorney’s fees … if the claim is for … an

oral or written contract.”    TEX. CIV. PRAC. & REM. CODE § 38.001(8).

Because the Note in this case is a written contract, Chapter 38 applies.

      The trial court must award attorney’s fee under Chapter 38 if the

claimant (1) pleads and prevails on a claim for which attorney’s fees are

permitted under section 38.001, (2) is represented by an attorney, (3)

presents the claim to the opposing party or his agent, and (4) demonstrates

that the opposing party did not tender payment within thirty days after the

claim was presented. Id. at § 38.002; ½ Price Checks Cashed, 344 S.W.3d

at 383; Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009)

(“If attorney’s fees are proper under section 38.001(8), the trial court has

no discretion to deny them.”). Also under Chapter 38 the trial court may

take judicial notice of usual and customary attorney’s fees; in this regard,

section 38.004 provides:




                                     25
             The court may take judicial notice of the usual
             and customary attorney’s fees and of the contents
             of the case file without receiving further evidence
             in:
                 (1) a proceeding before the court; or
                 (2) a jury case in which the amount of
                     attorney’s fees is submitted to the court
                     by agreement.
TEX. CIV. PRAC. & REM. CODE § 38.004. Under this provision the trial court

may take judicial notice of the usual and customary attorney’s fees, and

those fees are presumed to be reasonable. This provision is unique among

the myriad of attorney’s fee statutes—it only exists in Chapter 38 and no

other attorney’s fee statute. See Hasty v. Inwood Buckhorn, 908 S.W.2d

494, 503 (Tex. App.—Dallas 1995, writ denied). Additionally, Chapter 38

(and therefore section 38.004) is to be construed liberally to promote its

underlying purpose. ½ Price Checks Cashed, 244 S.W.3d at 383.

                                       ***

       There has been some confusion as to what standard of review should

be applied in the review of an award of attorney’s fees. 2 Moreover, it is not


   2    See, e.g., Bocquet v. Herring, 972 S.W.2d 19, 22 (Tex. 1998) (Baker, J.,
dissenting joined by Enoch, J.) (“I agree with the Court that the question is what
is the appellate standard of review of an attorney’s fee award in a Declaratory
Judgment Act case tried by the court. However, that is about all that I can agree
on with the Court in this case. As best I can glean from the Court’s opinion is that
in a Declaratory Judgment Act case whether to award an attorneys’ fees to either
side is reviewed under an abuse of discretion standard; whether the fee, if
awarded, is reasonable and necessary is reviewed under a legal and factual
sufficiency standard; and whether the fee is equitable and just is reviewed under
an abuse of discretion standard. The Court’s decision makes for a schizophrenic
review of attorney’s fees in Declaratory Judgment Act cases. Accordingly, I
dissent.”).
                                        26
wholly clear from Chavez’s brief exactly how he is challenging the award of

attorney’s fees; however because (1) Chavez states that trial court’s award

of $33,333.33 is “utterly deficient under Texas law,” (2) he relies on El

Apple, and (3) he relies on opinions stating that a contingent fee contract

alone is insufficient to support recovery of attorney’s fees, it is reasonable

to assume that he is challenging the reasonableness of the attorney’s fee

amount awarded.       In reviewing the reasonableness of an award of

attorney’s fees, the reviewing court should consider:

      1.   the time and labor required, the novelty and difficulty of the
           questions involved, and the skill required to perform the legal
           service properly;
      2.   the likelihood that the acceptance of the particular employment
           will preclude other employment by the lawyer;
      3.   the fee customarily charged in the locality for similar legal
           services;
      4.   the amount involved and the results obtained;
      5.   the time limitations imposed by the client or the circumstances;
      6.   the nature and length of the professional relationship with the
           client;
      7.   the experience, reputation, and ability of the lawyer or lawyers
           performing the services; and
      8.   whether the fee is fixed or contingent on results obtained or
           uncertainty of collection before the legal services have been
           rendered.

El Apple, 370 S.W.3d at 761; Arthur Andersen, 945 S.W.2d at 818 (quoting

TEX. R. DISCIPLINARY P. 1.04, reprinted in TEX. GOV’T CODE, tit. 2, subtit. G

app. A-1). These factors are simply guidelines, not elements of proof, and

therefore not all of the factors need to be considered or supported by


                                     27
evidence. Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 567

(Tex. App. Austin 2004, no pet.); Burnside Air Conditioning v. T.S. Young,

113 S.W.3d 889, 897-98 (Tex. App.—Dallas 2003, no pet.).         The trial

court’s decision about the reasonableness of the attorney’s fee award—

which is a fact question—is reviewed for an abuse of discretion. El Apple,

370 S.W.3d at 761; Healthronics, Inc. v. Lisa Laser USA, Inc., 382 S.W.3d

567, 577 (Tex. App.—Austin 2012, no pet.). Because in this case the fact

question of reasonableness of the attorney’s fee was determined by

summary judgment, the standard of review is also within the context of

whether Martinez proved that there is no genuine issue of material fact as

to whether the amount of $33,333.33 was a reasonable attorney’s fee for

the trial court work performed. See TEX. R. CIV. P. 166a(c); Little, 148

S.W.3d at 381. In other words, the trial court did not err in granting the

summary judgment regarding the attorney’s fee award of $33,333.33 if the

summary judgment evidence and the judicial notice provision contained in

section 38.004 of Chapter 38 show that the award was a reasonable fee.

And, of course, this Court reviews the trial court’s summary judgment de

novo. Enterprise Leasing, 156 S.W.3d at 549.

                                   ***

      Before a trier of fact (including a trial court on motion for summary

judgment) may award any attorney’s fee, the party requesting the fee must

meet its burden of proof by offering competent evidence of what amount

                                    28
would be reasonable. Great American Reserve Ins. Co. v. Britton, 406

S.W.2d 901, 907 (Tex. 1966). This evidence must come in the form of

expert testimony because the question of what is a reasonable attorney’s

fee is a specialized area of knowledge. TEX. R. EVID. 702; Cleveland v.

Taylor, 397 S.W.3d 683, 701 (Tex. App.—Houston [1st Dist.] 2012, pet.

denied); Woollett v. Matyastik, 23 S.W.3d 48, 52 (Tex. App.—Austin 2000,

pet. denied). The expert must state a specific sum of money—not just a

percentage of the recovery—that is a reasonable fee. Authur Anderson, 945

S.W.2d at 819; O and B Farms, Inc. v. Black, 300 S.W.3d 418, 423 (Tex.

App.—Houston [14th Dist.] 2009, pet. denied); Castle Tex. Prod. Ltd. P’ship

v. Long Trusts, 134 S.W.3d 267, 278-79 (Tex. App.—Tyler 2003, pet.

denied); San Antonio Credit, 115 S.W.3d at 106.

       The specific sum—that is, the amount the expert believes is

reasonable—may be proven thought the lodestar method or through the

contingency fee method. 3 (Other methods of proving reasonable

   3    See El Apple, 370 S.W.3d at 760 (“Under the lodestar method, the
determination of what constitutes a reasonable attorney’s fee involves two steps.
First, the court must determine the reasonable hours spent by counsel in the case
and a reasonable hourly rate for such work. The court then multiplies the
number of such hours by the applicable rate, the product of which is the base fee
or lodestar. The court may then adjust the base lodestar up or down (apply a
multiplier), if relevant factors indicate an adjustment is necessary to reach a
reasonable fee in the case.”) (citations omitted); and id. at 766 (Hecht, J.,
concurring, joined by Wainwright, J., and Willett, J.) (“[Another] surer
indicator[] of a reasonable fee [other than the lodestar method] is what
contingent fee might be reasonable had this been, say, a products liability case. A
50% contingent fee, taking into account the difficulty of the case and the reality
that many cases are lost, would have been $51,500. Instead, the trial court
awarded Olivas’s attorneys 450% of her recovery [under the lodestar method].”).

                                        29
attorney’s fees, not relevant to this appeal, exist. 4) If the amount of the fee

is proven through the lodestar method, the expert testimony must establish

(1) that he or she is qualified to testify regarding the attorney’s fee being

sought, (2) what hourly rate for the attorney’s fee would be reasonable for

representation regarding the matter at issue, (3) that the particular amount

of time spent working on the case is reasonable, and (4) that the Authur

Anderson factors are satisfied. El Apple, 370 S.W.3d at 760.

       If the amount of the fee is proven through the contingency fee

method, the expert witness must establish (1) that he or she is qualified to

testify regarding the attorney’s fee being sought, (2) that a particular

percentage fee recovery for handling the matter at issue would be

reasonable, (3) that a specific sum based on the percentage would be

reasonable for the case at issue, and (4) that the Authur Anderson factors

are satisfied. See Long v. Griffin, 442 S.W.3d 253, 256 (Tex. 2014) (per

curiam) (“In sum, under the lodestar method, no legally sufficient evidence

supports the amount of attorney’s fees the trial court awarded because no

evidence indicates the time expended on the specific tasks for which

attorney’s fees may be recovered.”); El Apple, 370 S.W.3d at 766; see also

Smith, 296 S.W.3d at 547-48.




   4   See, e.g, AMX Enterprises v. Master Realty, Corp., 283 S.W.3d 506, 519
(Tex. App.—Fort Worth 2009, no pet.) (adopting the market value method to
calculate in-house counsel’s attorney’s fees).
                                      30
       The specificity-of-billing requirement articulated in El Apple that

applies to the lodestar method of proving a reasonable attorney’s fee

amount does not apply to the contingency fee method. 5 Moreover, in a

Chapter 38 proceeding, whether the lodestar method or the contingency

fee method is used to prove what amount would be a reasonable fee, the

reviewing court must also factor in section 38.004 which specifically allows

the trial court to “take judicial notice of the usual and customary attorney’s

fees and of the contents of the case file without receiving further evidence

in [] a proceeding before this court.” TEX. CIV. PRAC. & REM. CODE §

38.003—.004. 6


   5    Compare City of Laredo v. Montano, 414 S.W.3d 731, 736-37 (Tex. 2014)
(“The fee-shifting statute in this case, however, does not require that attorney’s
fees be determined under a lodestar method, as in El Apple. The property owner
nevertheless chose to prove up attorney’s fees using this method and so our
observations in El Apple have similar application here. And, as was the ‘proof’ in
El Apple, Gonzalez’s testimony here is simply devoid of substance.”) and El
Apple, 370 S.W.3d at 760 & 766, with Long, 442 S.W.3d at 256 (“Even if
supporting evidence is not required for the contingency fee method of proof (as it
is for the lodestar method), the contingency fee method cannot support the trial
court’s fee award here because the final judgment awarded no monetary relief
except for attorney’s fees.”).
   6   See also McMahon v. Zimmerman, 433 S.W.3d 680, 693 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (“Further, courts are free to look at the entire
record, the evidence presented on reasonableness, the amount in controversy, the
common knowledge of the participants as lawyers and judges, and the relative
success of the parties to determine a reasonable fee.”); Protect Envtl. Servs. v.
Norco Corp., 403 S.W.3d 532, 543 (Tex. App.—El Paso 2013, pet. denied) (“Trial
judges can draw on their common knowledge and experience as lawyers and as
judges in considering the testimony, the record, and the amount in controversy in
determining attorney’s fees.”); Aquila Sw. Pipeline, Inc. v. Harmony
Exploration, Inc., 48 S.W.3d 225, 241 (Tex. App.—San Antonio 2001, pet.
denied) (“To determine whether an attorney’s fee award is excessive, the
reviewing court may draw upon the common knowledge of the justice[s] of the
court and their experiences as lawyers and judges.”); O’Farrill Avila v. Gonzalez,
                                        31
       Here, Martinez’s attorney testified that the specific sum of

$33,333.33 was a “reasonable and necessary attorney’s fee for the

prosecution of this action through a Judgment on this Motion for

Summary Judgment” (CR 12). As Chavez points out in his motion for new

trial (CR 28) and in his brief (Aplt. Br. at 11), this figure is obviously based

on a one-third percentage of the $100,000.00 principal amount owed on

the Note. Thus, it is clear that the contingency fee method is the basis of

the attorney’s fee award, meaning the specificity-of-billing requirement

articulated in El Apple does not apply—that requirement applies only to

attorney’s fees being proven by the lodestar method. Long, 442 S.W.3d at

256; Montano, 414 S.W.3d at 736-37; El Apple, 370 S.W.3d at 760 & 766.

Additionally, the trial court was entitled to “take judicial notice of the usual

and customary attorney’s fees and of the contents of the case file without

receiving further evidence” because this is a Chapter 38 proceeding. TEX.

CIV. PRAC. & REM. CODE § 38.004. The trial court having relied on section

38.004, this Court should not reverse. Moreover, this Court should also

consider the entire record and apply its common knowledge and

experience in conducting its de novo review of the reasonableness of a

$33,333.33 attorney’s fee through final summary judgment for this type of

case. McMahon, 433 S.W.3d at 693; Protect Envtl. Servs., 403 S.W.3d at


974 S.W.2d 237, 248-49 (Tex. App.—San Antonio 1998, pet. denied) (discussing a
situation in which the judge properly used personal experience and knowledge of
attorneys to determine whether the fees were excessive).

                                      32
543; Aquila Sw. Pipeline, 48 S.W.3d at 241; O’Farrill Avila, 974 S.W.2d at

248-49.

      In short, the trial court was correct in entering final summary

judgment that $33,333.33 was a reasonable attorney’s fee for the trial work

performed by Martinez’s counsel, and Point of Error 4 should be overruled.


                             PRAYER
      Accordingly, appellee, Juan Francisco Martinez, prays that this

Court affirm the judgment of the trial court.

                                      Respectfully submitted,


                                      /s/Timothy A. Hootman_____
                                      Timothy A. Hootman
                                      SBN 09965450
                                      2402 Pease St
                                      Houston, TX 77003
                                      713.247.9548
                                      713.583.9523 (fax)
                                      E-mail: thootman2000@yahoo.com
                                      Bill Malone, Jr.
                                      SBN 12877500
                                      8650 Spicewood Springs, No 145-598
                                      Austin, TX 78759
                                      ATTORNEYS FOR APPELLEE,        JUAN
                                      FRANCISCO MARTINEZ




                                     33
       CERTIFICATE OF WORD COUNT
       I hereby certify that, in accordance with Rule 9.4 of the Texas Rules

of Appellate Procedure, that the number of words contained in this

document are 7,913 according to the computer program used to prepare

this document.

Dated: January 11, 2015.
                                       /s/Timothy A. Hootman_____
                                       Timothy A. Hootman

           CERTIFICATE OF SERVICE
       I hereby certify that, in accordance with Rule 9.5 of the Texas Rules

of Appellate Procedure, I have served the forgoing document upon the

following attorneys by personal mail, by commercial delivery service, or by

fax:

             Jose G. Chavez, pro se
             11520 Sweet Basil CT
             Austin, TX 78726

Dated: January 11, 2015.

                                       /s/Timothy A. Hootman_____
                                       Timothy A. Hootman




                                      34
