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NO.04-14-00509-CV

FOURTH COURT OF APPEALS DISTRICT

CADENA-REEVES JUSTICE CENTER

300 Dolorosa, Suite 300

San Antonio, Texas 78205-3037

February 9, 2015

APPELLANTS BRIEF- AMENDED 3-14-f5

c=> —■

-:■-:

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.
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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL..............

INDEX OF AUTHORITIES .iv

STATEMENT OF THE CASE..... vii

ISSUES PRESENTED vii

STATEMENT REGARDING ORAL ARGUMENT. viii

STATEMENT OF FACTS

STATEMENT OF THE ARGUMENT...

STANDARD REVIEW

ARGUMENT.........

CONCLUSION AND PRAYER

CERTIFICATE OF SERVICE

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.
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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
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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
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INDEX OF AUTHORITIES

Texas #322.103 (1) (B) PROFESSIONAL MALPRACTICE

NEGLIGENCE. 322.01 (2), 322.05 <2 CH 290,.

CASES

Beauty Shops, Inc. 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 Jackson, 193 S. W. 584, 585 (Civ. .--Galveston

1927), reviewed on other ground. s.w. 2D 577, (Comm,

App 1928, judgement adopted and holding approved, see

322.05 (2) (a); see also Chg 20, Damages in tort).
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#. 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 Jackson, 193 S. W. 584, 585 (Civ.
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(continued from page 6)

App.-Galveston 1927), reviewed on other ground. s.w.

2D 577, (Comm, App 1928, judgement adopted and

holding approved, see 322.05 (2) (a); see also Chg 20,

Damages in tort).
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STATEMENT OF THE CASE

GLORIA 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
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ISSUES TO BE PRESENTED

1. This motion is presented within the time limits

prescribed by the Texas rules of Civil procedure for

Motion for 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 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.
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6. Plaintiff/Gloria 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 Ochoa files this Appeal Brief complaining of

defendant and how defendant caused great "Personal

Injury" to her.
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SUMMARY

Gloria Ochoa, plaintiff, moves the court to set aside

the Summary Judgment rendered against it on 6-19-14

and grant new Trial- Seeking justice in this Personal

Injury case.

This case did not go to trial thus there were no court

reporter records completed.
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STATEMENT OF FACTS.

HOW WAS 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 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.

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
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(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,
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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 hollow promise. Its decisions will have

far reaching negative consequence if allowed to stand.
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DEFENDANTS BREACH OF DUTY.

Defendant "OWED" plaintiff "Duty" to "Care", "To

Protect" its client by cleaning, disinfecting, sterilizing all

its equipment.

Emergency room doctors termed this 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 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.
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SUMMARY

WHAT DO WANT TO SEE COME OUT OF THIS NEW

TRIAL?

1. do not want this to happen to any other innocent

person walking in to this nail salon for simple

manicure AND getting 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. 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 LIVING NOW

AND FUTURE EARNINGS and payment of unpaid med

bills. had intended to work another 10 years before

starting social security. That option was taken from me.
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PRAYER FOR RELIEF.

Therefore, plaintiff, respectfully requests

Judgment/Reversal of summary iudgment against

plaintiff and grant 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
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CERTIFICATE OF SERVICE 192.3

I, the undersigned, Gloria E. Ochoa, certify that true

and correct copy of the foregoing document was served

to Defendants attorney by "Certified" mail, return

receipt requested.

f.

Gloria Ochoa

542 Williamsburg PL

San Antonio, Texas 78201

Phone:210-309-0744

Phone: 210-736-1408
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CERTIFICATION OF COMPLIANCE WITH BRIEF LENGTH AND

TYPE SIZE REQUIREMENTS.

BRIEF LENTH:

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)

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,