Application — Brigetta D'Olivio, aka Alix Ander, aka Alix Brigetta, Applicant v. Hilary Thompson Hutson

Supreme Court, U.S.

FILED

JUN 13 2023

No: 222 /, l 7 4 £ OFFICE OF THE CLERK

In the Supreme Court of The Anited States

Brigetta D’Olivio aka Brigetta Alix Anderson, Alix Brigetta

Petitioner,

Vv.

Hilary Thompson Hutson

Respondent.

On Appeal From Supreme Court Of Texas, Austin, Texas, case no: 22-1155 and

Fifth District Court of Appeals, Dallas, Texas, case no: 05-20-00969-cv

APPLICATION TO STAY MANDATE PENDING

THE UNITED STATES SUPREME COURT DISPOSITION OF

PETITION FOR WRIT OF CERTIORARI

Brigetta D’Olivio

2916 Creekbend Dr

Plano, TX 75075

214-733-7204

bdt2916@gmail.com

Pro Se

e Thursday, June 8, 2023, Petitioner filed “Motion To Stay Issuance of Mandate Pending The

United States Supreme Court Disposition Of Petition For Writ of Certiorari” in the Fifth District

Court of Appeals, Dailas, TX.

e Monday, June 12, 2023, Fifth District Court Of Appeals Issued Order Denying Petitioner's Motion

To Stay Pending The United States Supreme Court Disposition Of Petition For Writ of Certiorari”.

e Monday, June 12, 2023, Fifth District Court of Appeals Issued Mandate. RECEIVED

JUN 15 2023

OFFICE OF THE C

SUPREME COURT US

No:

In the Supreme Court of The Anited States

Brigetta D’Olivio aka Brigetta Alix Anderson, Alix Brigetta

Petitioner,

v.

Hilary Thompson Hutson

Respondent.

APPLICATION TO STAY MANDATE PENDING

THE UNITED STATES SUPREME COURT DISPOSITION OF

PETITION FOR WRIT OF CERTIORARI

To The Honorable Supreme Court Of The United States:

COMES NOW, Petitioner, Brigetta D’Olivio, (“Petitioner”), files thé within

“Application To Stay Mandate Pending The United States Supreme Court

Disposition of Petition For Writ Of Certiorari” and would show the Court as

follows:

INTRODUCTION

Federal Rule of Appellate Procedure 41(d)(2)(A) authorizes a stay of the

mandate pending the filing of a petition for a writ of certiorari in the Supreme

Court; a stay requires a substantial question to be presented in the petition and

good cause for a stay. Upon notice to the Fifth District Court of Appeals that the

petition is filed, the stay continues until the Supreme Court’s final disposition of the

case. Fed. R. App. P. 41(d)(2)(B). Petitioner intends to file timely a petition for writ

of certiorari with the Supreme Court. Sup. Ct. R. 13(1). Accordingly, Petitioner

requests a 90-day stay of the mandate pending the filing her petition for a writ of

certiorari, with a continuance of the stay to follow official notification that the

petition has been filed. Fed. R. App. P. 41(d)(2)(A)-(B). This application

demonstrates the requisite substantial question and good cause, and a stay should

therefore be granted. The Fifth District Court of Appeals Court issued its decision

on July 18, 2022, and the Supreme Court of Texas denied Petitioner’s Motion For

Rehearing on June 2, 2023. On June 8, 2023, Petitioner filed a “Motion To Stay The

Issuance of The Mandate Pending The United State Supreme Court Disposition Of

Petition For Writ Of Certiorari” in the Fifth District Court of Appeals, Dallas,

Texas. On June 12, 2023, the Fifth District Court of Appeals Denied said motion

and issued the mandate, affirming the lower court’s final judgment.

BACKGROUND

A. The Trespass To Try Title Action In The 296‘ District Court in Collin County

Texas Arose From The Guardianship Proceeding In Collin County Statutory

Probate Court

After Petitioner’s late husband, Richard W. Thompson, Jr., (“Decedent”), died,

and nine days after Petitioner filed the “Last Will And Testament of Richard Wells

Thompson, Jr’, dated July 13, 2019, in the Collin County Probate Court, PB1-1381-

2019, “In The Estate Of Richard W. Thompson, Jr’, Deceased’, wherein Petitioner is

the sole devisee, which includes the subject property, [1 CR 233-241; 399-402];

[2 CR 361-364],1 Respondent, Hilary Hutson, (“Respondent”), filed a trespass to try

title action in the 296 District Court in Collin County, Texas, wherein she claimed

that she had superior title to the subject property vis a vie a Deed Without

Warranty, dated May 5, 2018. See [1 CR 16-23; 43-45]. The trespass to try title

action arose from the Guardianship Proceeding in the Collin County Probate Court,

GA1-0261-2018: “In the Guardianship of Richard W. Thompson, Jr., An Alleged

Incapacitated Person’, ? which Respondent initiated against Decedent, on December

13, 2018, after Decedent’s attorney sent two (2) written demands to Respondent to

reconvey the deed to Decedent’s home to Decedent’s name only. [1 CR 184-208]. 3

Decedent subsequently filed criminal complaints against Respondent with local

1 CR = clerk’s record, so that hypothetical “[1 CR 23]” would be clerk’s record, volume 1, page 23.

2 The Guardianship case is currently on appeal in the Fifth District Court of Appeals, (05-22-00768-

CV). The following cases also arose from and are related to the Guardianship Proceeding: 1. pending

Supreme Court of Texas case, no: 23-0125: “Brigetta D’Olivio And All Other Occupants’, and 2. two

additional cases pending in the Collin County Probate Court - PB1-1313-2019: “Jn Re Custodial

Accounts For The Benefit Of Timothy Thompson And Allan Thompson, Flaintiffs, v Hilary Hutson,

Individually and In Her Capacity As Former Custodian Of Custodial Accounts t/b/o Timothy C.

Thompson And Allan Thompson, Defendant’ and cause number, PB1-1493-2019: “Jn Re Custodial

Accounts For The Benefit Of Timothy Thompson And Allan Thompson’. All of the related case arose

from the Guardianship Proceeding.

In the related case, which is currently pending in the Supreme Court of Texas, (23-0125),

Petitioner has posted a supersedeas bond, with a total amount, paid, thus far, being $80,000.00.

3 On April 17, 2019, Decedent was medically determined not to lack any capacity.

3

and federal law enforcement, [1 CR 290-291; 389-390]; [8 CR 4-5; 64-68; 110], and

signed a Sworn Affidavit, wherein he stated, under oath, that he never signed, nor

initialed said Deed Without Warranty, dated May 5, 2018, and that said deed was

forged. [1 CR 298-300; 399-402]. J. Copeland of the Collin County Probate Court,

however, refused to allow Decedent the right to speak and to present evidence

regarding the forgery of said Deed Without Warranty and other legal instruments,

which Respondent had also forged. [1 CR 287-289; 292-296].

During this time, Decedent was not aware that Respondent was in possession of

two (2) additional Deeds Without Warranty, dated May 5, 2018, which also

pertained to the subject property and which Respondent filed in the abovereferenced pending Probate Proceeding five (5) months after she filed the trespass

to try title action in the 296‘ District Court. [2 CR 87-89; 110-111; 173-200].

B. Procedural Background Of Trespass To Try Title Action In The 296¢ District

Court of Collin County, Texas

After Petitioner filed her Original Answer, [1 CR 24] to Respondent’s Petition for

trespass to try title, [1 CR 16], Petitioner filed a “Motion To Abate” on the grounds

that, because the Collin County Statutory Probate Court has original and exclusive

jurisdiction of all matters relating to the pending probate proceeding, and because

the Probate Court does not have concurrent jurisdiction with the District Court, the

District Court lacked subject matter jurisdiction to adjudicate Respondent’s

4

trespass to try title. [1 CR 128-137; 232-241; 449-462]. A hearing date of December

12, 2019 was set for said motion. [1 CR 138-139].

Two days later, on November 20, 2019, Respondent filed a “Notice of

Consideration of Plaintiff's Motion for Traditional and No-Evidence Summary

Judgment on Submission”, [1 CR 6; 573] with a submission date of December 9,

2019, [1 CR 8], for her motion for traditional and no-evidence summary judgment,

dated November 18, 2019. [1 CR 26-122]. In said motion for summary judgment,

Respondent submitted, as evidence, one of said three (3) Deed Without Warranty,

dated May 5, 2018, [1 CR 43-45];[2 CR 87-89; 110-111], and uncertified pleadings,

which originated and were filed in the above-referenced Guardianship Proceeding.

[1 CR 26-27; 155-158; 408-413]. Respondent, however, never served Petitioner said

motion for summary judgment, dated November 18, 2019, and failed and refused to

provide proof of service for said motion for summary judgment after Petitioner

repeatedly informed Respondent and the Court, in writing that she had not

received said motion for summary judgment. [1 CR 135; 143-147; 155; 164; 504; 531-

532]; [2 CR 11-24; 96; 99; 117-118; 180-181; 142-147].

On December 2, 2019, Petitioner timely filed and served her First Amended

Answer And Affirmative Defenses and her Response to Respondent’s motion for

summary judgment, dated November 18, 2019. [1 CR 139-414]. Respondent never

filed a Reply to Petitioner’s Response, nor did she file an amended motion for

summary judgment after Petitioner filed her First Amended Answer and

Affirmative Defenses, [1 CR 139-413]. Because Respondent had filed said motion

for summary judgment only eight weeks after Respondent filed her original answer,

in her Response to Respondent’s motion for summary judgment, Petitioner included

a verified and uncontroverted Motion For Continuance, wherein she requested a

Continuance in order to be able to conduct discovery, [3 CR 8], and further

requested that the Court render a written ruling on said Motion For Continuance.

[1 CR 149-160]. The Court refused to hear and consider Petitioner’s Motion For

Continuance and subsequently granted summary judgment in favor of Respondent

without Petitioner having been able to conduct any discovery. In said Response,

Petitioner further requested that the Court rule on her pending Motion To Abate

before rendering any ruling on Respondent’s motion for summary judgment. [1 CR

148-149; 449-462].

On December 9, 2019, Petitioner filed an “Emergency Application For Injunctive

Relief’, on the same grounds as Petitioner’s Motion To Abate and also on the

grounds that Respondent had requested the Probate Court to cancel Petitioner’s

hearing date of December 11, 2019 for Petitioner’s Amended Motion To Transfer,

[ 3 CR 10-30], thereby forcing Petitioner to accept a hearing date of January 6, 2020

for her amended motion to transfer. [3 CR 4-60]. At the time Petitioner filed said

emergency application for injunctive relief, she requested a hearing date of

December 12, 2019, since the hearing for Petitioner's Motion To Abate was already

scheduled for said date. [1 CR 138-139]. The Court refused and set the hearing date

for December 23, 2019. At the behest of Respondent, the Court cancelled said

hearing date, [1 CR 8] and then changed the hearing date to January 14, 2020, only

to cancel the January 14, 2020 hearing date - again at the behest of Respondent,

wherein the Court set the hearing date for said emergency application to January

22, 2020. [1 CR 9]. The District Court, however, never held the hearing on January

22, 2020, never rescheduled it, and never rendered any ruling on Petitioner’s

emergency application for injunctive relief. [1CR 446-448; 451; 475; 478]; [2 CR 128-

129].

On December 12, 2019, the District Court denied Petitioner’s unopposed motion

to abate, but then refused to reduce said oral ruling to writing. [1 CR 8; 128-137].

On January 2, 2020, Petitioner filed a Motion To Set Aside the court’s denial of

Petitioner’s Motion To Abate. [3 CR 61-206]. The Court, however, refused to provide

a hearing date for Petitioner's Motion To Set Aside and also failed and refused to

hear and consider said motion. [1 CR 449-462]; [2 CR 127-128].

On June 12, 2020, Respondent sent Petitioner a “Notice of Consideration On

Submission of Plaintiffs Motion For Traditional And No-Evidence Summary

Judgment”, dated June 11, 2020, (“Notice, dated June 11, 2020”). [1 CR 533-534].

Because no pleading was included with said Notice, dated June 11, 2020; there was

no date of the pleading referenced in said Notice; and there was no application or

motion filed, nor order rendered, wherein the submission dated of December 9,

2019, which was filed on November 20, 2019 for Respondent’s motion for summary

judgment, dated November 18, 2019, was reset, Petitioner sent Respondent four (4)

written requests for clarification of said Notice, dated June 11, 2020, as well, as

correspondence to the Court regarding said Notice. [1 CR 514-518; 519; 521; 523-

525; 531; 538; 540-542]. Respondent, however, refused to respond to Petitioner’s

requests for clarification, except for stating in a letter, dated July 8, 2020, that

“there is indeed no further response to which I believe you are entitled’. {1 CR

523-525; 538; 540-542).

Throughout this time, Respondent concealed that on June 25, 2020, she had filed

a “Renewed Motion For Traditional And No-Evidence Summary Judgment”,

wherein she made new allegations against Respondent. [1 CR 415]; [2 CR 21-60].

Respondent, however, never served Petitioner said June 25, 2020 “renewed” motion

for Bunutart judgment and failed and refused to provide proof of service for said

June 25, 2020 “renewed” motion for summary judgment after Petitioner first

became aware of it on August 10, 2020, which was one day before the District Court

rendered its final judgment. [1 CR 500-501]; [2 CR 21-60].

C. The District Court Granted Summary Judgment In Favor Of Respondent

On August 11, 2020, the District Court granted summary judgment to

Respondent. In said final judgment, it stated, in part, “The Plaintiff filed Motion for

Traditional and No-Evidence Summary Judgment on November 18, 2019, renewing

that Motion on June 16, 2020”. [Appellant’s Amended Brief, App. Al. Not only is

there no “renewed” motion for traditional and no-evidence motion, dated June 16,

2020, filed for the record, [1 CR 10], but like Respondent’s motion for summary

judgment, dated November 18, 2020, Respondent never served Petitioner said

“renewed” motion, dated June 16, 2020. Six (6) weeks afer the District Court’s

Order, Respondent admitted, in writing, that she never filed a “renewed” motion for

summary judgment on June 16, 2020, that, instead, she filed a “renewed” motion on

July 16, 2020. [1 CR 566]; [2 CR 56]. Said July 16, 2020 “renewed” motion for

summary judgment, however, was also never filed for the record and nor did

Respondent ever serve Petitioner said “renewed” motion for summary judgment,

which Respondent stated that she filed on July 16, 2020. [1 CR 10]; [1 CR 21-60].

The only pleading Respondent filed on July 16, 2020 was a response to Petitioner's

"Amended Emergency Motion For Stay Pending Petition For Writ of Mandamus

And For Temporary Stay Pending Consideration Of Motion", dated July 14, 2020.

[2 CR 134; 138-140].

D. The 296‘ District Court Refused To Hear And Consider Petitioner’s Timely

Filed Post Trial Motion, (“329b(g) Motion”

On September 9, 2020, Petitioner timely filed a 329b(g) motion in the District

Court, wherein she also included newly discovered evidence, which showed that

Respondent had fabricated documents, and falsified other documents, which had

been previously filed in the Collin County Clerk’s office, and which she had

submitted in her motion for summary judgment, dated November 18, 2019. [1 CR

446-568]; [2 CR 4-424]. Although Petitioner made more than a dozen written

requests for a hearing date, the Court refused to provide a hearing date and refused

to hear and consider Petitioner's timely filed post-trial motion. [2 CR 138-139; 389;

408-411; 461-468].

E. The Fifth District Court Of Appeals Affirmed The 296 District Court’s Final

Judgment.

On July 18, 2022, Fifth District Court of Appeals issued its unpublished

Memorandum Opinion, (“Opinion”) and judgment, wherein it affirmed the trial

court’s order. In addition to relying on “facts” not in the record, and in contravention

to Rule 47.4 of the Texas Rules Of Appellate Procedure, in its Opinion, the Fifth

Court of Appeals made determinations and findings regarding the pleadings, which

emanated from the Guardianship Proceeding and which Respondent had submitted

10

as “evidence’ in her motion for summary judgment, dated November 18, 2019. [1 CR

26-27; 155-158; 408-413], prior to the appeal Briefs for the Guardianship case,

(appeal no: 05-22-00768-CV), having been filed. More than six (6) weeks prior to the

Fifth District Court of Appeals having issued its Opinion and judgment, Petitioner

had perfected the appeal for the Guardianship case. Petitioner’s Notice of Appeal,

however, was suppressed and not filed for the record until after the Fifth Court of

Appeals issued in Opinion and judgment in the trespass to try title case and related

case, which is pending before the Supreme Court of Texas. Prior to issuing their

Opinions in each of these cases, the Fifth Court of Appeals had actual knowledge

that the appeal for the Guardianship case had been perfected. 4

ARGUMENT

Federal Rule of Appellate Procedure 41(d)(2)(A) authorizes a stay of this

Court’s mandate pending the filing of a petition for a writ of certiorari in the

Supreme Court. This Court grants a stay of the issuance of a mandate pending

application for a writ of certiorari when “the certiorari petition would present a

substantial question and .. . there is good cause for a stay.” Fed. R. App. P.

41(d)(2)(A). A petitioner satisfies that standard if there is a “reasonable

4 See Petitioner's Emergency Motion To Abate, filed in the Fifth District Court Of Appeals on July

27, 2022; Motion For Reconsideration, filed August 1, 2022; Correspondence to Clerk of the Court for

the Fifth District Court of Appeals, Lisa Matz, dated August 20, 2022; Motion For Rehearing and

Motion En Banc Reconsideration.

11

probability” of the Supreme Court granting certiorari and reversing. See

Next Wave Personal Comme'ns FCC, No. 00-1402, 2001 U.S. App. LEXIS 19617,

at *4 (D.C. Cir. Aug. 23, 2001)(quoting Books v. City of Elkhart, 239 F.3d 826 (7th

Cir. 2001)). In other words, as the Supreme Court explained in applying a similar

standard, the petitioner “must demonstrate that the issues are debatable among

jurists of reason.” See Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983).

A stay of the mandate pending a petition for certiorari is warranted under

Federal Rule of Appellate Procedure 41(d)(2) because this case presents a

substantial question of federal law and the denial of a stay threatens irreparable

harm. When the Supreme Court considers similar applications to stay a mandate

pending disposition of a petition for certiorari, it considers those factors under a

three-part rubric: (1) “a reasonable probability that four members of the Court

would consider the underlying issue sufficiently meritorious for the grant of

certiorari”; (2) “a significant possibility of reversal of the lower court’s decision”;

and (3) “a likelihood that irreparable harm will result if that decision is not stayed.”

White v. Florida, 458 U.S. 1301, 1301 (1982) (Powell, J., in chambers) (citation

omitted).

The first two factors—represented in Rule 41 as the “substantial question”

requirement—are present here. Having a property interest, Petitioner is entitled to

12

Constitutional protections through the Fourteenth Amendments’ Due Process

Clause, which provides: “nor shall any State deprive any person of life, liberty or

property, without due process of law, nor shall any person be denied the equal

protection of the laws’. U.S. CONST. amend XIV. At every stage of this case,

Petitioner's Constitutional right to Procedural Due Process has been violated, which

in turn, violated Petitioner's First Amendment right. Petitioner has been denied the

right to Notice, the right to conduct discovery, the right to present evidence and

confront adversaries, the right to be heard at a meaningful time and in a

meaningful manner, and the right to an impartial tribunal. Petitioner was wholly

denied the “fundamental fairness”, which the Fourteenth Amendment guarantees,

and to which she was entitled. Where the lower court failed in its obligation to

pursue a course of legal proceedings according to applicable rules and principles,

Petitioner’s right to equal protection of the law was also violated. Violations of a

party’s right to the Constitutional protections, which are guaranteed by the

Fourteenth Amendment, and the subsequent arbitrary and capricious rulings,

which are not based upon the merits of the case, are compelling reasons for this

Court to stay the mandate and to grant a writ of certiorari since the rights of all

are dependent on the rights of each being defended and protected.

13

And the third factor—the balance of the equities—shows Rule 41 “good cause”

for a stay. Considering that Respondent has intimated on more than one occasion

that she intends to sell the subject property, once the property is sold, Petitioner

may never be able to recover the property even if the Supreme Court accepts this

case for review and ultimately reverses. Because the Fourteenth Amendment

requires due process before one may be deprived of their property, and because of

the risk of erroneous deprivation of Petitioner’s property interest; and the

irreversibility of the harm to Petitioner if the property is sold, there is good cause to

stay the mandate. Absent a stay, Petitioner will suffer irreparable harm. That is

particularly true where, as here, the State’s only post-deprivation process comes in

the form of an independent tort action. Seeking redress through a tort suit is apt to

be a lengthy and speculative process, which in a situation such as this one will

never make Petitioner entirely whole. See Logan v. Zimmerman Brush Co., 455

U.S. 422, 436-37. Respondent will suffer no offsetting irreparable injury from

continuing the status quo pending disposition of Petitioner’s petition for writ of

certiorari. This application demonstrates the requisite substantial question and

good cause, and a stay should therefore be granted.

I. The Grant Of Certiorari Is A Reasonable Probability

This case presents a “substantial question” within the meaning of Federal Rule

14

of Appellate Procedure 41(d)(2)(A). Violations of the Constitutionally protected

right to procedural due process and the subsequent violation of a party's First

Amendment right are compelling reasons for the Supreme Court to grant certiorari.

Although property interests are not created by the Constitution, where one, such as

Petitioner, has a property interest, one is entitled to the Constitutional protections

guaranteed by the Fourteenth Amendment. Where property interests are created

and their dimensions are defined by existing rules or understandings that stem

from an independent source such as state law—rules or understandings that secure

certain benefits and that support claims of entitlement to those benefits, the Due

Process Clause of the Fourteenth Amendment obligates States to pursue a course of

legal proceedings according to rules and principles that have been established in a

system of jurisprudence for the enforcement and protection of private rights. In

order to secure equal rights to all citizens, States are required to apply the

applicable law fairly and equally through legal process in like cases. Procedural

rules exist to subserve the presentation and resolution of cases on their merits. As

Rule 1 of the Texas Rules of Civil Procedure states, “[t]he proper objective of rules of

civil procedure is to obtain a just, fair, equitable and impartial adjudication of the

rights of litigants under established principles of substantive law”.

15

A. Did The Lower Court’s Ruling, Based On Inadequate Notice of Submission;

Failure To Allow Sufficient Response And Respondent’s Failure To Serve

Petitioner Contravene Petitioner’s Right To Due Process And Deprive

Petitioner Of A Fair And Impartial Adjudication?

Here the trial court granted Respondent’s motion for summary judgment,

wherein it stated, in part, “The Plaintiff filed Motion for Traditional and No-

Evidence Summary Judgment on November 18, 2019, renewing that Motion on

June 16, 2020”. See [Amended Brief, App. A].

Procedural due process requires that a party be given Notice. Rule 166 of the

Texas Rules of Civil Procedure governs motions for summary judgment. Because

summary judgment is a harsh remedy, the notice provisions of Rule 166a of the

TEX. R. CIV. P., are strictly construed. Rule 166a(c) of the TEX. R. CIV. P.,

provides, in part: “... Except on leave of court, with Notice to opposing counsel, the

motion and any supporting affidavits shall be filed and served at least twenty-one

days betore the time specitied for the hearing’. TX. R. CIV. P. 166a(c). Rule

21a(c) of the TEX. R. CIV. P., provides: “ Whenever a party has a right or Is

required to do some act within a prescribed period atter the service of a notice or

other paper upon him and the notice or paper is served upon him by mail, three

days shall be added to the prescribed period’. TEX. R. CIV. P. 21a(c).

1. Here, the record clearly established that Petitioner was not given adequate

notice. Respondent filed her “Notice of Consideration For Plaintiffs Motion For

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Traditional And No-Evidence Summary Judgment on Submission” on November

20, 2019, [1 CR 6; 573], wherein a submission date for said motion for summary

judgment, dated November 18, 2019, was set for December 9, 2019. [1 CR 8].

Petitioner, thus, failed to meet the minimum 21-day notice provision as prescribed

in Rule 166a(c) of the Texas Rules of Civil Procedure. Where Respondent’s Notice

was filed on November 20, 2019, the earliest date the submission date could be set

was December 11, 2019.

2. Respondent never served Petitioner said November 18, 2019 motion for

summary Judgment, and failed and refused to provide proof of service after

Petitioner repeatedly informed Respondent that she had not received said motion.

3. The “renewed” motion for summary judgment, dated June 16, 2020, which

the trial court specifically references in its final order, is not only not filed as part

of the record in the trial court, but Respondent also never served Petitioner said

“renewed” motion for summary judgment, dated June 16, 2020, and failed and

refused to provide proof of service for said “renewed” motion, dated June 16, 2020

after Respondent became aware of said motion, for the first time, on August 8, 2020.

4. The “renewed” motion for summary judgment, which Respondent claimed six

(6) weeks after the lower court rendered its final judgment, that she filed on July

16, 2020, is also not only not filed as part of the record in the trial court, but

17

Respondent also never served Petitioner said July 16, 2020 “renewed” motion for

summary judgment and nor has she ever provided any proof of service for said

“renewed” motion.

5. Although the lower court’s final judgment is not based upon Respondent’s

“renewed motion for summary judgment, which she filed on June 25, 2020, and

although Respondent has never claimed that the lower court’s final judgment was

based upon said June 25, 2020 “renewed” motion for summary judgment,

Respondent, nonetheless never served Petitioner said “renewed” motion, dated June

25, 2020, and failed and refused to provide proof of service for said motion after

Petitioner first became aware of said motion on August 10, 2020.

For more than a century the central meaning of procedural due process has been

clear: "Parties whose rights are to be affected are entitled to be heard: and in order

that they may enjoy that right they must first be notified." /uentes v. Shevin, 407

U.S. 67, 80, 92 S. Ct. 1983, 1994 (1972). See also Stone v. Federal Deposit

Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999) (explaining that new

information is a due process violation when there is a lack of “notice (and the

opportunity to respond”).

By rendering final judgment without adequate notice; without service of any of

the motions for summary judgment, which Respondent claimed to have filed,

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violated Petitioner’s procedural due process rights, prejudiced Petitioner’s case, and

is inconsistent with justice and is an exercise of arbitrary power condemned by the

Constitution.

B. Did The Lower Court Violate Petitioner’s Right To Due Process When It

Refused To Allow Petitioner To Conduct Any Discovery Under The Applicable

Rules Of Procedure?

As a pretrial procedure, discovery is part of procedural due process. In Texas,

discovery is governed by the Texas Rules of Civil Procedure, which says that

parties to a case are entitled to any information, documents and evidence that are

relevant, as long as they are not privileged.

The right to present evidence is an essential component of the adversarial

system of justice. Discovery improves the chance of the court being able to get at

the truth, where, as in this case, facts are contested and forgery is an issue,

including of the very document, (Deed Without Warranty, dated May 5, 2018), upon

which Respondent claimed she had title to the subject property. Discovery allows a

party access to material which could be presented to the court as evidence which

may bear on questions of fact which have the potential to influence the proper result

of the case. In Goldberg v Kelly, 397 U.S. 254, 269 (1970), the Court held that, “In

almost every setting where important decisions turn on questions of fact, due

process requires an opportunity to confront and cross-examine adverse witnesses.”

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See also ICC v Louisville & Nashville RR 227 U.S. 88, 93-94 (1913). Where the

“evidence consists of the testimony of individuals whose memory might be faulty or

who, in fact, might be perjurers or persons motivated by malice, vindictiveness,

intolerance, prejudice, or jealously,” the individual’s right to show that it 1s untrue

depends on the rights of confrontation mad cross-examination. See Greene v.

McElroy, 360 U.S. 474, 496-97 (1959). The Supreme Court has been zealous to

protect these rights from erosion, Although the discovery rules are meant to give

fairly broad access to information, in this instance, Petitioner was denied the right

to conduct any discovery.

Despite its obligation to comply with procedural requirements, the trial court

failed to follow any legal procedures as it relates to discovery; failed to set a

discovery plan, [1 CR 129], as required under Rule 190.1 of the TEX. R. CIV. P;

failed to remove Respondent’s trespass to try title case from the expedited actions

process, [1 CR 17], as required under Rule 169(c)(1)(B) of the TEX. R. CIV. P.,

failed to reopen discovery under Rule 192.2(c) of the TEX. R. CIV. P., after

Petitioner removed the case from the expedited actions process to Level 2 discovery

under Rule 190.3 of the TEX. R. CIV. P., [1 CR 408]; denied Petitioner the right to

conduct any discovery by refusing to hear, consider and rule on Petitioner’s

uncontroverted Motion For Continuance, and instead, granted Respondent’s motion

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summary judgment, which Respondent filed without complying with the requisite

disclosure requirements and which she filed on the date the discovery period began,

[1 CR 24]. TEX.R. CIV. P. 190.3(b)(1) and 194.

Refusing Petitioner the right to conduct discovery violated Petitioner’s

procedural due process rights, prejudiced Petitioner’s case, and is inconsistent with

justice and is an exercise of arbitrary power condemned by the Constitution.

C. Did the Lower Court’s Failure To Afford Petitioner A Meaningful Opportunity

To Be Heard At A Meaningful Time And In A Meaningful Manner, As

Mandated By The Constitution, Violate The Principles Of Fundamental

Fairness And Justice?

In Fuentes v. Shevin, 407 U.S. 67, 81 (1972), the Court described notice and

hearing as the “central meaning of procedural due process”. See also Martin H.

Redish & Lawrence C. Marshall, Adjudicatory Independence and the Values of

Procedural Due Process, 95 Yale L.J. 455, 475 (1986) (“The Supreme Court has

often stated that the core rights of due process are notice and hearing.”). Against

this interest of the State, we must balance the individual interest sought to be

protected by the Fourteenth Amendment. This is defined by our holding that "/t/he

fundamental requisite of due process of law is the opportunity to be

heard.” Grannis v. Ordean, 234 U. 8. 385, 284 U. 8. 394. See also Zoudermull v.

Cleveland Bd. of Educ., 721 F.2d 550, 563 (6th Cir.1983), affd, 470 U.S. 532, 105

S. Ct. 1487, 84 L. Ed. 2d 494 (1985). In Gagnon v. Scarpelli, 411 U. 8S. 778, 786

21

(1973), the Court held that the “minimum requirements of due process” include

an “opportunity to be heard in person and to present witnesses and documentary

evidence”.

Rule 329b(g) of the Texas Rules of Civil Procedure. provides, in part: “A

motion to modify, correct or reform a judgment (as distinguished from motion to

correct the record of a judgment under Rule 316), if filed, shall be filed and

determined within the time prescribed by this for a motion for a new trial...”. TEX.

R. CIV. P. 329b(g).

Where Petitioner timely filed a 329b(g) motion, the trial court was required to

determine said motion. Here, the trial court failed and refused to hear and consider

said motion. A State cannot provide a process like that in found in Rule 329b(g) of

the Texas Rules o Civil Procedure and then arbitrarily refuse to follow the

prescribed procedures. Rule 329b(g) was properly invoked through the filing of a

Petitioner’s 329b(g) motion, but the lower court refused to comply with Rule

329b(g) by failing to determine said motion. By refusing to hear and consider

Petitioner’s 329b(g) motion, Petitioner was deprived of her Constitutionally

protected right to be heard and to present evidence that could have been outcome

determinative.

The lower court’s failure and refusal to hear and consider Petitioner’s post-trial

22

motion did not start with said post-trial motion, but, instead the lower court’s

failure and refusal to hear and consider Petitioner's applications and motions

pending before it was consistent throughout the lower court proceedings and

resulted in a final judgment that was not based upon the merits. By refusing to

hear and consider Petitioner’s applications and motions pending before it, the lower

court not only violated Petitioner’s Constitutional right to Due Process — the right to

be heard, but it also violated Petitioner’s First Amendment right, as well.

Good Cause Exists To Stay Mandate

Finally, there is “good cause” to stay the mandate. Fed. R. App. P. 41(d)(2)(A).

Good cause is established based on the “equities in the case.” Knibb, Federal Court

of Appeals Manual §34:13, at 924 (6th ed. 2013). The equities here support

maintaining the status quo for the few months necessary for the Supreme Court to

decide Petitioner’s certiorari petition. Absent a stay of the mandate, Respondent no

doubt will execute upon the District Court’s grant of summary Judgment,

Considering that Petitioner is the sole devisee under the “Last Will And Testament

of Richard Wells Thompson, Jr.”, dated July 13, 2019, which includes subject

property, Petitioner is entitled to Constitutional protection. A short delay is

necessary to preserve the status quo pending U.S. Supreme Court’s disposition of

Petitioner’s petition for writ of certiorari.

23

CONCLUSION

There is a reasonable probability that the United States Supreme Court will

grant a petition for writ of certiorari in this case, and if it does, there is a significant

possibility of reversal. Respondent will suffer no discernible harm if a stay is issued.

Absent a stay, it is clear that Petitioner will suffer irreparable harm. Petitioner

respectfully requests that the Court grant Petitioner's application for a stay of the

mandate pending the filing of petition for writ of certiorari and the United States

Supreme Court’s disposition of Petitioner’s petition for a writ of certiorari.

Respectfully Submitted;

Brigetta D’Olivio, Petitioner Pro Se

2916 Creekbend Dr

Plano, TX 75075

214-733-7204

bdt2916@gmail.com

24

No:

In the Supreme Court of Anited States

Brigetta D’Olivio aka Brigetta Alix Anderson, Alix Brigetta

Petitioner,

Vv.

Hilary Thompson Hutson

Respondent.

SWORN AFFIDAVIT

BEFORE Mg, the undersigned, on this day personally appeared Brigetta D’Olivio. Known to

me to be the person whose signature is set forth herein. My name is Brigetta D’Olivio. I am over

18 years of age. I am a resident of Collin County, TX and am fully competent to make this

Affidavit and do solemnly swear that the facts stated in the foregoing “Application To Stay

Mandate Pending United States Supreme Court Disposition Of Petition For Writ Of Certiorari”’,

dated June 13, 2023, are within my personal knowledge and the same are true and correct.

SUBSCRIBED and SWORN to before me,

the undersigned, on this 13" day of June 2023,

Brigetta D’Olivio

2916 Creekbend Dr to certify which witness my hand and seal of office.

Plano, TX 75075 rn

214-733-7204 yr

bdt2916@gmail.com Ow)

NOTARY PUBLIC

In and for the State of Texas

Ry Palle, PAUL FISHER

ance ¢ Notary Public, State of Texas

a igs Comm. Expires 08-02-2025

GR ECS — Notary ID 133246067

(Tih)

No:

Iu the Supreme Court of Anited States

Brigetta D’Olivio aka Brigetta Alix Anderson, Alix Brigetta

Petitioner,

Vv.

Hilary Thompson Hutson

Respondent.

CERTIFICATE OF CONFERENCE

I, Brigetta D’Olivio, certify that I have conferred, or made a reasonable attempt to confer with

lead counsel for Respondent, Bruce D. Cohen, about the merits of, Petitioner’s “Application To

Stay Mandate Pending The United Stated States Supreme Court Disposition Of Petition For Writ

Of Certiorari”. On June 13, 2023, I spoke with Mr. Cohen at 1:59pm at 972-955-7661 regarding

the above-referenced application and Mr. Cohen opposes.

rigettd D’Olivio

2916 Creekbend Dr

Plano, TX 75075

214-733-7204

bdt2916@gmail.com

No:

In the Supreme Court of Gnited States

Brigetta D’Olivio aka Brigetta Alix Anderson, Alix Brigetta

Petitioner,

Vv

Hilary Thompson Hutson

Respondent.

CERTIFICATE OF COMPLIANCE

I hereby certify this “Application To Stay Mandate Pending The United Stated States Supreme

Court Disposition Of Petition For Writ Of Certiorari”, contains 5544 words. This is a computergenerated document created in Microsoft Word, using 12 point typeface for all text, except for

footnotes, which are in 10 point typeface. In making this Certificate Of Compliance, | am relying

on the word count provided by the software used to prepare the document.

Brigetta D’Olivio, Petitioner Pro Se

2916 Creekbend Dr

Plano, TX 75075

214-733-7204

bdt2916@gmail.com

No:

In the Supreme Court of Anited States

Brigetta D’Olivio aka Brigetta Alix Anderson, Alix Brigetta

Petitioner,

v.

Hilary Thompson Hutson

Respondent.

CERTIFICATE OF SERVICE

I, Brigetta D’Olivio, Petitioner, hereby certify that the following parties required to be served

have been served with a copy of “Application To Stay Mandate Pending United States Supreme

Court Disposition Of Petition For Writ Of Certiorari”, dated June 13, 2023 at the last known

address filed with the Court, via FedEx, (tracking no: 7724 3603 3734), this June 13, 2023.

Attached hereto is a copy of the FedEx receipt, dated June 13, 2023.

Pravati Capital LLC

Bruce D. Cohen

8117 Preston Rd., Suite 300

Dallas, TX 75225

rigetta’ Olivio, Petitioner Pro Se

2916 Creekbend Dr.,

Plano, TX 75075

214-733-7204

bdt2916(@gmail.com

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