                  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.

542 Williamsburg Place

San Antonio, Texas 78201

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

San Antonio, Texas 78201

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,
