Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 10/19/2015 2:43:55 AM KEITH E. HOTTLE Clerk
*1 ACCEPTED 04-15-00597-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 10/19/2015 2:43:55 AM
KEITH HOTTLE CLERK 04-15-00597-CV IN THE FOURTH COURT OF APPEALS BEXAR COUNTY, TEXAS JULIA ANN HERNANDEZ
Appellant v. JAQUELINE GOEDE Appellee On Appeal from the County Court at Law No. 10 of Bexar County, Texas Cause No. 2015CV00194
The Honorable David J. Rodriquez, Judge Presiding APPELLANT RESPONSE TO COURT ORDER Chris Carmona Texas Bar No. 24072022 P.O. Box 7137 Houston, Texas 77248 Tel. (832)444-4293 Fax (832)460-2724
COUNSEL FOR APPELLANT NO ORAL ARGUMENT REQUESTED
TO THE HONORABLE FOURTH COURT OF APPEALS:
*2
Julia Ann Hernandez files this Response in support of her timeliness of Motion for New Trial and Notice of Appeal. Julia Ann Hernandez timely filed a Motion for New Trial on September 25, 2015. As shown on the attached exhibits [ Exhibits A-E ], the Bexar county clerk incorrectly rejected the original filing for nonqualified reasons under Tex. R. Civ P. 21(f)(8) on June 26, 2015. Julia Ann Hernandez immediately refiled with the requested change by the clerk on June 26, 2015. The clerk’s record should reflect that there was a rejected filing on June 25, 2015 and the timeline for the appeal should be counted as of the time the rejected filing was submitted. It would have been impractical and impossible to re-file on June 25, 2015, when the County clerk did not reject the original filing until June 26, 2015. Because the original filing was on June 25, 2015, this Court should consider the Motion for New Trial filed by Julia Ann Hernandez timely filed for all purposes related to the appeal. Because the Motion for new trial was timely filed, the Notice of Appeal filed by Julia Ann Hernandez on September 9, 2015 is within the allowable time to file an appeal under Tex. R. Civ. P 329b and Tex. R. App. P. 26.1.
CONCLUSION
*3 Julia Ann Hernandez timely filed her Motion for New Trial extending the time allowable to file the Notice of Appeal, and therefore this appeal should be able to proceed.
PRAYER
Julia Ann Hernandez respectfully prays that the Court (1) deem her Motion for New Trial timely, (2) deem her Notice of Appeal timely, (3) grant any available extensions necessary to perfect the her appeal and (3) grant all other appropriate relief to Appellant.
Respectfully submitted, By: /s/Chris Carmona Chris Carmona Attorney at Law
SBN: 24072022
Law Office of Chris Carmona PO Box 7137 Houston, TX 77248 832-444-4293 ph 832-460-2724 fax Email: chris@carmonalawoffice.com
*4 CERTIFICATE OF SERVICE I CERTIFY THAT THE FOREGOING RESPONSE TO COURT ORDER WAS ELECTRONICALLY FILED WITH THE CLERK OF THE COURT USING THE ELECTRONIC CASE FILING SYSTEM OF THE COURT. I ALSO CERTIFY THAT A TRUE AND CORRECT COPY OF THE FOREGOING WAS SERVED BY
FILED IN ELECTRONIC MAIL ON APPELLEE’S COUNSEL OF RECORD. 4th COURT OF APPEALS SAN ANTONIO, TEXAS 10/19/2015 2:43:55 AM KEITH E. HOTTLE
/s/Chris Carmona Clerk CHRISTOPHER CARMONA SERVED ON: CLARISSA RODRIGUEZ Denton, Navarro, Rocha, Bernal, Hyde & Zech, P.C. 2517 N. Main San Antonio, TX 78217 210/227-3243 210/225-4481 (f) clarissa.rodriguez@rampage-sa.com
*5 Chris Carmona From: No-Reply@eFileTexas.gov Sent: Thursday, June 25, 2015 2:29 PM To: Chris Carmona Subject: eFileTexas.gov - Filing Submitted - 5825528
Filing Submitted Envelope Number: 5825528 The filing below has been submitted to the clerks office for review. Please allow up to 24 business hours for clerk office processing.
Filing Details Court Bexar County Date/Time Submitted: 6/25/2015 2:28:10 PM Filing Type: Motion for New Trial Activity Requested: EFileAndServe Filed By: Chris Carmona Fee Details This envelope is pending review and fees may change. Case Fee Information $1.88 Payment Service Fees $1.88 Motion for New Trial $65.00 Court Fees $65.00 Total: $66.88 (The envelope still has pending filings and the fees are subject to change) Document Details Lead File: Motion for New Trial.pdf Lead File Page Count: 2
https://efile.txcourts.gov/ViewDocuments.aspx?FID=e165039f-42b7- File Copy 47e4-9da0-3df7ee06cd5d This link is active for 35 days. *6 Contact your service provider with any questions Need Help? Help Visit: https://efiletexas.gov/contacts.htm Email: support@eFileTexas.gov
FILED IN
4th COURT OF APPEALS SAN ANTONIO, TEXAS 10/19/2015 2:43:55 AM
KEITH E. HOTTLE
Please do not reply to this email. It was generated automatically by eFileTexas.gov Clerk *7 Chris Carmona From: No-Reply@eFileTexas.gov Sent: Thursday, June 25, 2015 2:29 PM To: Chris Carmona Subject: eFileTexas.gov – Notification of Service - 5825528
FILED IN
4th COURT OF APPEALS SAN ANTONIO, TEXAS
Notification of Service
10/19/2015 2:43:55 AM
Envelope Number: 5825528
KEITH E. HOTTLE
Clerk
This is a notification of service for the filing listed. Please click the link below to retrieve the submitted document.
Filing Details Case Number 2015CV00194 Case Style Date/Time Submitted 6/25/2015 2:28:10 PM Filing Type Motion for New Trial Filed By Chris Carmona
Other Service Contacts not associated with a party on the case: Clarissa Rodriguez (clarissa.rodriguez@rampage-sa.com)
Service Contacts Chris Carmona (chris@carmonalawoffice.com) Christy Burke (christy.burke@rampage-sa.com)
Document Details https://efile.txcourts.gov/ViewServiceDocuments.aspx?ADMIN=0&SID=42af9960- File Stamped ddc1-41b7-adeb-1258558a07d0&RID=df634eac-d3ff-4da0-85a2-07e50e8313a7 Copy This link is active for 7 days. Please do not reply to this email. It was generated automatically by eFileTexas.gov
NO. 2015CV00194
*8 JULIA ANN HERNANDEZ § IN THE COUNTY COURT Plaintiff, §
§
V.
§ AT LAW NO. 10 § JAQUELINE R. GOEDE § Defendant. § OF BEXAR COUNTY, TEXAS
Motion for New Trial This Motion for New Trial is brought by JULIA ANN HERNANDEZ , Movant, who shows in support: 1. On May 26, 2015 a judgment was signed by this Court in this case. 2. A new trial should be granted to Movant because the evidence is legally and
factually insufficient to support this Court’s judgment. Specifically, the evidence is legally and factually insufficient to support this Court’s judgment based on the following:
a. This Court erred in its interpretation of Chapter 27 of the Texas Civil Practices Remedies Code. More specifically, this Court failed to follow the code and the burden of proof that Defendant had in establishing a viable defense. More over, this Curt erred in switching the burden of proof back to Plaintiff to prove its claim by clear and convincing evidence without first having Defendant establish their case as required in Chapter 27.
b. Additionally, this Court erred in grating Attorney’s Fees to Defendant where no fees had been borne or incurred. The law is well settled that attorneys fees can only be granted when the costs were actually incurred or the party becomes liable for the legal fees. There was no proof in the record that showed or proved that the Defendant incurred or became liable for attorneys fees and as such, this Court erred by granting attorneys fees to Defendant.
The above errors amounted to such a denial of Movant’s rights as was reasonably calculated to cause and probably did cause rendition of an improper judgment in the case. Tex. R. App. P. 44.1(a)(1).
3. The granting of a new trial would not injure Defendant, but would injure Movant. 4. Justice will not be properly served unless a new trial is granted. JULIA ANN HERNANDEZ , prays that the Court set aside the judgment signed on May
26, 2015 and grant a new trial.
LAW OFFICE OF CHRIS CARMONA
*9 PO Box 7137 Houston, Texas 77248 Tel: 832-444-4293 Fax: 832-460-2724 By: /s/ Chris Carmona
CHRIS CARMONA FILED IN 4th COURT OF APPEALS State Bar No. 24072022
SAN ANTONIO, TEXAS
Attorney for Plaintiffs 10/19/2015 2:43:55 AM KEITH E. HOTTLE Clerk
Notice of Hearing The above motion is set for hearing on ___________________ at ______ __. .M. in County Court of Law Number 10 of Bexar County. SIGNED on ____________________ 2015.
__________________________ Judge or Clerk
Certificate of Service I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on June 25, 2015. /s/ Chris Carmona
CHRIS CARMONA
Attorney for Movant
*10 Chris Carmona From: Chris Carmona Sent: Thursday, June 25, 2015 3:12 PM To: Clarissa Rodriguez Subject: Hernandez v Goede Attachments: Motion for New Trial.pdf
FILED IN
Please find attached Ms. Hernandez' Motion for New Trial filed today. 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
Regards, 10/19/2015 2:43:55 AM KEITH E. HOTTLE
Chris Carmona Clerk Attorney at Law Law Office of Chris Carmona ph. 832-444-4293 fax 832-460-2724 chris@carmonalawoffice.com THIS ELECTRONIC MAIL TRANSMISSION AND ANY ATTACHMENTS HERETO CONTAIN INFORMATION FROM LAW OFFICE OF CHRIS CARMONA, WHICH IS CONFIDENTIAL AND PRIVILEGED. THE INFORMATION IS INTENDED FOR THE SOLE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, YOUR USE, DISSEMINATION, FORWARDING, PRINTING OR COPYING OF THIS INFORMATION IS PROHIBITED, AND WE COUNT ON YOUR UNDERSTANDING AND COOPERATION IN THIS. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE OR RETURN E-MAIL AND DELETE THIS E-MAIL. THANK YOU VERY KINDLY. *11 Chris Carmona From: No-Reply@eFileTexas.gov Sent: Friday, June 26, 2015 8:58 AM To: Chris Carmona Subject: eFileTexas.gov – Filing Returned - 5825528
Filing Returned Envelope Number: 5825528 The filing below which has been previously served to you has been returned for further action from the filer.
Return Reason(s) from Clerk's Office Return Reason(s) Incorrect Formatting - TRCP 21 (f)(8) Please contact the Setting Clerks for hearing dates at 335-3179 and Return Comment
resubmit filing. Thank You! Linda Filing Details Court Bexar County Case Number 2015CV00194 Case Style Date/Time Submitted 6/25/2015 2:28:10 PM Activity Requested Motion for New Trial Filed By Chris Carmona Service Contacts $$$allcontacts Please do not reply to this email. It was generated automatically by eFileTexas.gov