Petition for Writ of Certiorari — Brigetta D'Olivio, aka Brigetta Alix Anderson, aka Alix Brigetta, Petitioner v. Hilary Thompson Hutson

Supreme Court briefAug 30, 2023

Ask Donna

What actually matters in this document.

Text

No: .

in tfje Supreme Court of Wfte ®ntteb States

FILED

AUG 3 0 2023

OFFICE OF THE CLERK

SUPREME COURT

Brigetta D’Olivio aka Brigetta Alix Anderson, Alix Brigetta

Applicant,

Hilary Thompson Hutson

Respondent.

On Petition For Writ of Certiorari to the

Fifth District Court of Appeals, Dallas, TX

Case No: 05-20-00969-CV

PETITION FOR WRIT OF CERTIORARI

Brigetta D’Olivio

2916 Creekbend Dr

Plano, TX 75075

214-733-7204

bdt2916@gmail.com

Petitioner Pro Se

RECEIVED

SEP -5 2023

iupREMEFct?URTLMqK

QUESTIONS PRESENTED

1. Did the lower court violate Petitioner’s right to due process and equal

protection of the law under the Fourteenth Amendment to the U.S. Constitution:

a. By hearing and deciding the case when it lacked subject matter jurisdiction

under §§1022.00l(a); 1022.002(c)&(d); 1022.005(a)&(b); and 32.005(a) of the Texas

Estates Code; and Art. V, §8 of the Texas Constitution!

b. By issuing Forcible Detainer when it lacked jurisdiction under §27.031(a)(2)

of the Texas Government Code! §24.004 of the Texas Property Code! and Rule 510.3

of the Texas Rules of Civil Procedure!

c. By granting summary judgment to Respondent when Petitioner was deprived

of adequate Notice and when Respondent failed and refused to serve Petitioner any

motion for summary judgment as required under Rules 166a(c); 166a(i) of the Texas

Rules of Civil Procedure!

d. By denying Petitioner the right to conduct any discovery prior to rendering its

final judgment and by rendering its final judgment prior to Respondent having

complied with the disclosure requirements under Rule 194.1 of the Texas Rules of

Civil Procedure.

e. By refusing to provide hearing dates and to hear and consider Petitioner’s

pleadings, which were properly before the Court.

2. Where the lower court so far departed from in its obligation to pursue a

course of legal proceedings according to applicable rules and principles for like

cases, and where the Fifth District Court of Appeals sanctioned such a departure by

the lower court, the Fifth District Court of Appeals’ Opinion is so clearly wrong as to

call for an exercise of this Court’s supervising power.

PARTIES TO THE PROCEEDING

The parties to the proceeding are as follows:

Petitioner is Brigetta D’Olivio. She was the Defendant in the 296th District Court

of Collin County, Texas and the Appellant in the Fifth District Court of Appeals,

Dallas, Texas.

Respondent is Hilary T. Hutson. She was the Plaintiff in the 296th District

Court of Collin County, Texas and the Appellee in the Fifth District Court of

Appeals, Dallas, Texas.

RELATED PROCEEDINGS

This case and the related cases arose from the Guardianship Proceeding listed

below.

1. “Hilary Thompson Hutson v Brigetta D’Olivio And All Other Occupants”

(002-02704-2020), Judgment entered on January 4, 2021. (US Sup. Ct. No: 23A99

pending).

2. “In the Guardianship ofRichard W. Thompson, Jr., An Alleged

Incapacitated Person”, No; GAl-0261-2018, Judgment entered May 5, 2022.

Pending in the Fifth District Court of Appeals, Dallas, TX, (05-22-00768-CV).

3. “In The Estate OfRichard W. Thompson, Jr”, Deceased’, PBl-1381'2019,

(Collin County Statutory Probate Court, Collin County, Texas), pending.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDINGS

RELATED PROCEEDINGS

INDEX OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS

STATEMENT OF THE CASE

II.

III.

IV.

The lower court case arose from the Guardianship Proceeding in the

Collin County Statutory Probate Court..................................................

A. The Guardianship Proceeding did not settle and close

until May 5, 2022 ............................. ...........................................

The lower court case is a matter related to the pending Probate

Proceeding in the Collin County Statutory Probate Court.........

The lower court failed and refused to hear and consider

Petitioner’s applications and motions...............................

Respondent never served Petitioner the “Motion For Traditional

And No-Evidence Summary Judgment”, dated November 18, 2019

Respondent concealed and never served Petitioner the “Renewed Motion

For Traditional And No-Evidence Summary Judgment”,

dated June 25, 2020

VI.

The lower court’s final judgment

VII.

The lower court denied Petitioner the right to conduct any

discovery prior to rendering its final judgment...................

VIII. The Fifth District Court Of Appeals affirmed

the lower court’s final judgment.................... .

REASONS FOR GRANTING CERTIORARI

CONCLUSION

SWORN AFFIDAVIT

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

APPENDIX TABLE OF CONTENTS

APPENDIX

A. Fifth District Court of Appeals’ Memorandum Opinion and judgement,

entered July 18, 2022

B. Fifth District Court of Appeals Order denying Motion For Rehearing, entered

September 13, 2022

C. Fifth District Court of Appeals’ Order denying Motion For Reconsideration,

entered November 22, 2022

D. 296th District Court Final Judgment, entered August 11, 2020

E. Supreme Court of Texas Order denying Petition For Review, entered March

24, 2023

F. Supreme Court of Texas Order denying Motion For Rehearing, entered June

2, 2023

G. Amended Notice of Appeal for Guardianship Case, (05-22-00768-CV)

H. Supreme Court of Texas Order denying Motions To Transfer, dated

November 21, 2022; entered January 26, 2023

I. Notice of Consideration of Plaintiffs Motion For Traditional And

No-Evidence Summary Judgment On Submission, filed November 20, 2019;

and Petitioner’s request for clerk’s record, filed November 30, 2020

J. Agreement For Legal Services, dated July 16, 2019

K. Relevant Rules And Statutes

INDEX OF AUTHORITIES

Celestine vDep’t ofFamily & Protective Servs.,

321 S.W. 222, 230, (Tex. App - Houston [1st Dist] 2010, no pet)

In re CC & M Garza Ranches, Ltd Partnership,

409 S.W. 3d 106, 109 (Tex. App. - Houston [1st Dist] 2013, no pet)

Fuentes v. Shevin,

407 U.S. 67, 80, 92 S. Ct. 1983, 1994 (1972)

21,22,23

24,29

Gagnon v. Scarpelli,

411 U. S. 778, 786 (1973)

Goldberg v Kelly,

397 U.S. 254, 269 (1970)

Grannis v. Ordean,

234 U. S. 385, 234 U. S. 394

Greene v. McElroy,

360 U.S. 474, 496-97 (1959)

ICC vLouisville & Nashville RR

227 U.S. 88, 93-94 (1913).............

In re Guardianship ofSoberanes,

No. 04-02-00119-CV, 2002 Tex. App. WL 31863704

(San Antonio, December 24, 2002, no pet, h)............

King vDeutsche Bank Natl Trust Co.,

472 S.W. 3d 848 (Tex. App. 2015)........

Loudermill v. Cleveland Bd. ofEduc.,

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

S. Ct. 1487, 84 L. Ed. 2d 494 (1985)...................................

Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp.

549 U.S. 422, 431, 127 S. Ct. 1184, 1191 (2007)).....

Stone v. Federal Deposit Insurance Corporation,

179 F.3d 1368, 1377 (Fed. Cir. 1999)...................

Thompson v. Whitman,

(1873) 18 Wall 457, 21 1 ED 897

Other Authorities:

Martin H. Redish & Lawrence C. Marshall, Adjudicatory Independence

and the Values of Procedural Due Process, 95 Yale L.J. 455, 475 (1986)

CONSTITUTIONAL PROVISIONS AND STATUTES

Constitutional Provisions:

US Const. Amend XIV, §1.2

20, 30, 31

US Const. Amend 1.............

.20, 30, 31

TX Const. Art. 5, §8............

..5, 18, 23

Texas Government Code

§27.031(a)(2)........................

Texas Estates Code

§101.001(a)(1)...................

§32.005(a)........................

...... 3, 5, 8, 20, 22

§32.007 ............................

................... 20, 21

§1022.001(a)....................

3, 5, 18, 19, 20, 21

§1022.002(c).....................

..... 5, 8, 19, 20, 21

§ 1022.002(d)....................

...... 5, 8, 19, 20, 21

§1022.005(a)....................

..3, 5, 8, 19, 21, 22

§1022.005(b)....................

..3, 5, 8, 19,21, 22

§1022.006 .........................

......................19, 20

Texas Property Code

§24.004 .................................

vii

CONSTITUTIONAL PROVISIONS AND STATUTES CONTINUED

Texas Rules of Appellate Procedure

34.6......................................................

47.4

16, 17

Texas Rules of Civil Procedure

166a(c)........................................

.....24, 25

169

28, 29, 30

190.1 ...

190.2(c)

.15, 28, 29

190.3 ...

15, 28, 29

190.4

......15, 28

194

......29, 30

329b(g).........................................

...... 30, 31

510.3.............................................

Texas Code of Judicial Conduct

Canon 3(A)................................. .

5, 30, 31

Canon 3(B)(1)..............................

5, 30, 31

Canon 3(B)(8)..............................

5, 30, 31

viii

OPINIONS BELOW

The Fifth District Court of Appeals, Dallas, TX is the highest state court to

review the merits and its Memorandum Opinion, which is not published, is

reproduced at [Appendix A]. The 296th District Court of Collin County TX is

reproduced at [Appendix D] and is not published.

JURISDICTION

The Fifth District Court of Appeals issued its Memorandum Opinion and

judgement on July 18, 2022 and is reproduced at [Appendix A]. The Fifth District

Court of Appeals denied Petitioner’s timely filed motion for rehearing on September

13, 2022, and is reproduced at [Appendix B], and on November 22, 2022, the Fifth

District Court of Appeals denied Petitioner’s Motion For Reconsideration and is

reproduced at [Appendix C].

The Supreme Court of Texas declined to hear the merits of the case and denied

Petitioner’s timely filed Petition For Review on March 24, 2023, and is reproduced

at [Appendix E], On June 2, 2023, the Supreme Court of Texas denied Petitioner’s

timely filed Motion For Rehearing, and is reproduced at [Appendix F].

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

TEXAS CONSTITUTION

Article 1, §19 - Deprivation of Life, Liberty, Property, Etc By Due Course Of Law

“No citizen of this State shall be deprived of life, liberty, property, privileges or

immunities, or in any manner disfranchised, except by the due course of the law of

the land”.

Article 5, §8 - Jurisdiction Of District Courts

“District Court jurisdiction consists of exclusive, appellate, and original jurisdiction

of all actions, proceedings, and remedies, except in cases where exclusive, appellate,

or original jurisdiction may be conferred by this Constitution or other law on some

other court, tribunal, or administrative body. District Court judges shall have the

power to issue writs necessary to enforce their jurisdiction...”

TEXAS GOVERNMENT CODE

Section 27.031(a)(2) In addition to the jurisdiction and powers provided by the

constitution and other law, the justice court has original jurisdiction of...(2) cases of

forcible entry and detainer...”.

Section 25.0451(b) - Collin County has one statutory probate court, the Probate

Court No. 1 of Collin County

TEXAS ESTATES CODE

Section 1022.002 Original Jurisdiction For Guardianship Proceedings

court has original jurisdiction of guardianship proceedings.

(d) From the filing of the application for the appointment of a guardian of the estate

or person, or both, until the guardianship is settled and closed under this chapter,

the administration of the estate of a minor or other incapacitated person is one

proceeding for purposes of jurisdiction and is a proceeding in rem.

Section 1022.005 - Exclusive Jurisdiction Of Guardianship Proceeding In Comity

With Statutory Probate Court

(a) In a county in which there is a statutory probate court, the statutory probate

court has exclusive jurisdiction of all guardianship proceedings, regardless of

whether contested or uncontested.

(b) A cause of action related to a guardianship proceeding of which the statutory

probate court has exclusive jurisdiction as provided by Subsection (a) must be

brought in the statutory probate court unless the jurisdiction of the statutory

probate court is concurrent with the jurisdiction of a district court as provided by

Section 1022.006 or with the jurisdiction of any other court...”. [Appendix K, at

Section 32.001 — General Jurisdiction

(a) All probate proceedings must be filed and heard in a court exercising original

probate jurisdiction. The court exercising original probate jurisdiction also has

jurisdiction of all matters related to the probate proceeding as specified in Section

31.002 for that type of court.

Section 32.005 - Exclusive Jurisdiction of Probate Proceeding in County With

Statutory Probate

(a) In a county in which there is a statutory probate court, the statutory probate

court has exclusive jurisdiction of all probate proceedings, regardless of whether

contested or uncontested. A cause of action related to the probate proceeding must

be brought in a statutory probate court unless the jurisdiction of the statutory

probate court is concurrent with the jurisdiction of a district court as provided by

Section 32.007 or with the jurisdiction of any other court...”, [Appendix K]

TEXAS RULES OF CIVIL PROCEDURE

Rule 166a(c) - “The motion for summary judgment shall state the specific grounds

therefor. 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 before

the time specified for hearing...”. [Appendix K].

Rule 190.1 - Discovery Control Plan [Appendix K],

“Every case must be governed by a discovery control plan as provided in this Rule.

A plaintiff must allege in the first numbered paragraph of the original petition

whether discovery is intended to be conducted under Level 1, 2, or 3 of this Rule”.

Rule 169(a) & (b) - Expedited Actions [Appendix K].

Rule 169(c)(1)(A) & (B) - Removal From Expedited Process [Appendix K],

Rule 169(2) - Pleading Removes Suit From Expedited Process [Appendix K].

Rule 169(3) - If a suit is removed from the expedited actions process, the court

must reopen discovery under Rule 190.2(c). [Appendix K],

Rule 190.2(c) - Reopening Discovery [Appendix K],

Rule 190.3(a)(b) - Discovery Control Plan - By Rule (Level 2)

Rule 190.3 (l) Discovery period. All discovery must be conducted during the

discovery period, which begins when the initial disclosures are due and continues

untiL

xii

(A) 30 days before the date set for trial, in cases under the Family Code; or

(B) in other cases, the earlier of

6) 30 days before the date set for trial, or

(ii) nine months after the initial disclosures are due...” . [Appendix K],

Rule 194.1(a) - Duty To Disclose; Production [Appendix K],

Rule 194.2(a) - Initial Disclosures [Appendix K].

Rule 329b(g) - “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 rule for a motion for new

trial...” [Appendix K, at

TEXAS CODE OF JUDICIAL CONDUCT

Canon 3(B)(1) “A judge shall hear and decide matters assigned to the judge except

those in which disqualification is required or recusal is appropriate.

Canon 3(B)(8) — “A judge shall accord to every person who has a legal interest in a

proceeding, or that person's lawyer, the right to be heard according to law...”

xiii

STATEMENT OF THE CASE

The Lower Court Case Arose From The Guardianship Proceeding

In The Collin County Statutory Probate Court

The nature of the lower court case is a trespass to try title case, wherein

Respondent claimed that she had title to the subject property, (2916 Creekbend Dr.,

Plano, TX), via a Deed Without Warranty, dated May 5, 2018. [l CR 16-23; 43-45].

The lower court case arose from the Guardianship Proceeding in the Collin County

Statutory Probate Court, “In the Guardianship ofRichard W. Thompson, Jr., An

Alleged Incapacitated Person”, wherein Respondent first filed said Deed Without

Warranty. 1 [Appendix H]. Respondent initiated the Guardianship Proceeding on

December 13, 2018, less than a week after the attorney for Petitioner’s late '

husband, Richard W. Thompson Jr., (“Decedent”) sent two written demands to

Respondent to reconvey the deed to Decedent’s home to Decedent’s name only.

[1 CR 43-45! 193-197; 290-291].

Decedent subsequently filed criminal complaints against Respondent with local

1 Although Respondent alleged that Decedent was an “incapacitated person” in her

application for temporary and permanent guardianship, Decedent was medically

determined not to lack any capacity.

and federal law enforcement regarding the forgery of said Deed Without Warranty,

dated May 5, 2018, [l CR 199-199; 287-291; 292-300; 396; 399-402]; [3 CR 4-5; 6468; 110], and signed a Sworn Affidavit on February 7, 2019 wherein he stated.

under oath, that he never signed, nor initialed said Deed Without Warranty, and

that said Deed Without Warranty was forged, [l CR 298-300].

Throughout the Guardianship Proceeding, Decedent was not aware that

Respondent was in possession of two additional Deeds Without Warranty; each of

which also pertained to the subject property and each of which also contained the

same notary date of May 5, 2018 and the identical forged “signature” of Decedent as

the Deed Without Warranty for which Decedent signed said Sworn Affidavit, [l CR

298-300]; [2 CR 87-89; 110-111; 173-200]. One of said two additional Deeds Without

Warranty was also dated May 5, 2020, which was ten months after Decedent had

died. [2 CR 110-111].

Although, at that time, Decedent and Petitioner were unaware that Respondent

was in possession of said two additional Deeds Without Warranty, [2 CR 87-89; 110lll], in post-trial pleadings, Respondent admitted that Decedent’s Sworn Affidavit,

dated February 7, 2019, [l CR 298-300], was “evidence offorgerf of said Deeds

Without Warranty, [l CR 43-45]. In said post-trial pleadings, Respondent stated, in

part, "Her [Petitioner] only evidence offorgery of a document recorded with the

Collin County Clerk, and properly notarized by a Texas notary, appears to be

. documents that the Decedent executed... Including an affidavit ofFebruary 7,

2019'. [1 CR 565],

A. The Guardianship Proceeding Did Not Settle And Close Until May 5, 2022

At the time Respondent filed the trespass to try title case in the District Court on

August 28, 2019, [l CR 16-23], and at the time the lower court rendered its final

judgment on August 11, 2020, [Appendix D], the Guardianship Proceeding was not

settled and closed, and did not settle and close until May 5, 2022, [Appendix G]. 2

Tex. Est. Code §1022.005(a) &(b).

II.

The Lower Court Case Is A Matter Related To The Probate

Proceeding Pending In The Collin County Statutory Probate Court

Two days after Decedent died and six (6) weeks before Respondent filed the

trespass to try title case in the District Court, Respondent acknowledged, in

writing, that the subject property, (2916 Creekbend Dr., Plano, TX), was part of

Decedent’s Estate, and was, thus, a matter over which the Collin County Statutory

Probate Court had exclusive jurisdiction under §32.005(a) of the Texas Estates

2 Petitioner was never notified of, nor served said Order, dated May 5, 2022 and did not

become aware of said order until May 31, 2022. See [Appendix G].

Code. Respondent made said acknowledgment when she signed her third

Agreement For Legal Services, (“Agreement”), with the law firm, which represented

her in the Guardianship Proceeding. On p. 1, par. 1 of said Agreement, it states, in

part:

“Hilary Hutson ("Client”) hereby employs Leu & Peirce, PLLC (“Attorney”) to

provide legal services in connection with the probate of the Estate ofRichard W.

Thompson, Jr, the Custodial Accounts, the real property located at 2916 Creekbend

Drive, Plano, Texas 75075, and all other related matters”. [Appendix J].

On August 19, 2019, Petitioner filed the “Last Will And Testament OfRichard

Wells Thompson, Jr.”, dated July 13, 2019, (“Will”), in the Collin County Statutory

Probate Court. Under said Will, Petitioner is the sole distributee, legatee and

devisee, which includes the subject property, [l CR 232-241! 399-402]; [2 CR 361364]. Tex. Est. Code §101.001(a)(1). Nine days later, on August 28, 2019,

Respondent filed the trespass to try title case in the District Court, which she based

upon said Deed Without Warranty, [l CR 16-23! 43-45! 298-300], and wherein she

expressly relied upon pleadings, which originated, and were filed in the

Guardianship Proceeding.

On January 2, 2020 and January 3, 2020, Respondent filed two of said three

Deeds Without Warranty, in the pending Probate Proceeding in the Collin County

Statutory Probate Court, [l CR 43-45]; [2 CR 87-89].

Where the Collin County Statutory Probate Court refused to allow Decedent to

speak and to be heard during the Guardianship Proceeding, [l CR 287-289; 292300], throughout the three and half years that the lower court case and the related

case (U.S. Sup. Ct. No: 23A99), wound its way through the lower courts, the Collin

County Statutory Probate Court has refused to hear and consider Petitioner’s

multiple motions and applications, which are properly before the Court.

III.

The Lower Court Failed And Refused To Hear And Consider Petitioner’s

Applications And Motions, Which Were Properly Before The Court

Because the lower court case arose from the Guardianship Proceeding, and

because the lower court case was also a matter related to the pending Probate

Proceeding, Petitioner filed motions in the lower court on the grounds that the lower

court lacked the subject matter jurisdiction to adjudicate Respondent’s trespass to

try title case under §1022.002(c) & (d); §1022.005(a)& (b); and §32.005(a) of the

Texas Estates Code and Art. 5, §8 of the Tex. Const. Except for Petitioner’s Motion

To Abate, which Petitioner filed on November 18, 2019, and in contravention of

Canon 3(B)(1) and 3(B)(2) of the Texas Code of Judicial Conduct, the lower court

failed and refused to hear and consider Petitioner’s motions and emergency

applications prior to rendering its final judgment, and also failed and refused to

hear and consider Petitioner’s timely-filed post-trial motions. At the time Petitioner

filed said Motion To Abate, there were no scheduling orders issued, nor pending,

including as it related to discovery! there had not been any procedurally substantive

actions taken by either party or the court, and nor had there been any rulings or

orders by the lower court on any substantive matters, [l CR 123-127! 232-241! 446462], On the same date that Petitioner filed said Motion To Abate in the lower

court, she had also filed a Motion To Transfer in the pending Probate Proceeding

wherein she sought to transfer and consolidate the trespass to try title action with

the Probate Proceeding pending in the Collin County Statutory Probate Court. A

hearing date for Petitioner’s Motion To Transfer in the Probate Court was set for

December 11, 2019, [3 CR 10-30], while a hearing date for Petitioner’s Motion To

Abate in the lower court was set for December 12, 2019. [l CR 138*139]. Two days

prior to the December 11, 2019 hearing date for Petitioner’s motion to transfer,

however, the Probate Court cancelled said hearing at the request of Respondent,

thereby causing Petitioner to accept a hearing date of January 6, 2020 for said

motion to transfer. [3 CR 4-60]. Petitioner subsequently filed an “Emergency

Application For Injunctive Relief’, in the lower court on December 9, 2019 based on

the same grounds as Petitioner’s Motion To Abate and also on the fact that the

hearing date for Petitioner’s motion to transfer had been changed from December

11, 2019 to January 6, 2020. 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, [l CR

138-139]. The lower court refused and set the hearing date for December 23, 2019.

At the behest of Respondent, the lower court cancelled said December 23, 2019

hearing date, [l CR 8] and then changed the hearing date for Petitioner’s

emergency application to January 14, 2020, only to cancel the January 14, 2020

hearing date - again at the behest ofRespondent, wherein the lower court then set

the hearing date for said emergency application to January 22, 2020 - forty-four

days after Petitioner filed said emergency application for injunctive relief, [l CR 9].

The lower court, however, never held the hearing for said emergency application on

January 22, 2020, never rescheduled it, and never rendered any ruling on said

emergency application. [lCR 446-448; 451; 475; 478]; [2 CR 128-129].

In the interim, and prior to the Probate Court having heard Petitioner’s Motion

To Transfer, the lower court denied Petitioner’s unopposed motion to abate

during the hearing for said motion on December 12, 2019, but then refused to

reduce said oral ruling to writing, [l CR 8; 128-137; 148-149; 160; 449-462].

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]. Despite Petitioner’s repeated requests

for a hearing date for said motion to set aside, the lower court refused to provide a

hearing date and failed and refused to hear and consider said motion, [l CR 449462]; [2 CR 127-128],

On September 9, 2020, Petitioner timely filed a post-trial motion, wherein she

reiterated the lower court’s lack of subject matter jurisdiction to hear and decide the

case under §1022.002(c) & (d); §1022.005(a)& (Jo)’, and §32.005(a) of the Texas

Estates Code, and wherein she requested that the court vacate its final judgment on

the grounds that it lacked the authority to render any ruling. In said post trial

motion, Petitioner also included newly discovered evidence, which showed that

documents, which Respondent had submitted as “evidence” in her motion for

summary judgment, dated November 18, 2019, were also fabricated, [2 CR 200-215]

while other documents, which had been previously filed in the Collin County Clerk’s

office, and which Respondent also submitted as “evidence” in her motion for

summary judgment, were falsified, [l CR 446-568]; and [2 CR 4-424].

Although Petitioner made more than a dozen written requests for a hearing date,

and in contravention of Rule 329b(g) of the Texas Rules of Civil Procedure, the

lower court refused to provide a hearing date and refused to hear and consider

Petitioner’s post-trial motion. [2 CR 138-139; 389; 408-411; 461-468]; [Appendix K],

Petitioner further filed motions to correct and amend the reporter’s record in the

lower court on the grounds that the reporter’s record did not comport to the Uniform

Format Manual For Reporters Record; exhibits, which were presented during the

only hearing on December 12, 2019, were not attributed to the correct party;

statements made during hearing were altered; the master index was incorrect and

other transcripts, which were part of the reporter’s record did not pertain to

the lower court case and contained conflicting dates and incorrect cause numbers,

etc. Although Petitioner repeatedly requested a hearing date for her motions to

correct and amend reporter’s record, and in contravention of Rule 34.6(2) (3) of the

Texas Rules of Appellate Procedure, 3 the lower court failed and refused to hold a

hearing on the reporter’s record.

3 Rule 34.6 of the Texas Rules of Appellate Procedure provides: “(2) Correction of

Inaccuracies by Trial Court. If the parties cannot agree on whether or how to correct the

reporter's record so that the text accurately discloses what occurred in the trial court and

the exhibits are accurate, the trial court must - after notice and hearing - settle the dispute.

If the court finds any inaccuracy, it must order the court reporter to conform the reporter's

record (including text and any exhibits) to what occurred in the trial court, and to file

certified corrections in the appellate court. (3) Correction After Filing in Appellate Court. If

the dispute arises after the reporter's record has been Fled in the appellate court, that court

may submit the dispute to the trial court for resolution. The trial court must then proceed

as under subparagraph (e)(2)”.

IV.

Respondent Never Served Petitioner The “Motion For Traditional And

No-Evidence Summary Judgment”, dated November 18, 2019

Two days after Petitioner filed her motion to abate, [l CR 123-137], Respondent

filed a “Notice of Consideration ofPlaintiffs Motion For Traditional and

No-Evidence Summary Judgment on Submissiorf. [Appendix I]; [l CR 6; 8; 573].

In said Notice, dated November 20, 2019, a submission date of December 9, 2019

was set for Respondent’s “Motion For Traditional and No-Evidence Summary

Judgment”, which Respondent claimed to have filed on November 18, 2019.

[1 CR 26-122; 128-137],

Respondent, however, never served Petitioner said motion for summary

judgment, dated November 18, 2019, and despite the fact that Petitioner repeatedly

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

motion for summary judgment, Respondent failed and refused to provide proof of

service for said motion for summary judgment, [l CR 129-131! 135! 143-147! 155!

164! 504! 531-532]! [2 CR 11-24! 96! 99! 117-118! 130-131! 142-147],

In said motion for summary judgment, dated November 18, 2019, Respondent

submitted, as evidence, said Deed Without Warranty, which she had filed in the

Guardianship Proceeding, [l CR 43-45! 298-300], as well as, numerous other

uncertified pleadings, which originated in and were filed in the Guardianship

Proceeding, [l CR 26-27; 155-158; 408-413],

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. [l CR 139-414], Respondent,

however, never filed an amended motion for summary judgment and nor did she

file any Reply to Petitioner’s Response.

Respondent Concealed And Never Served Petitioner The “Renewed

Motion For Traditional And No-Evidence Summary Judgment”, dated

June 25, 2020

On June 16, 2020, Petitioner received a “Notice of Consideration On

Submission of Plaintiffs Motion For Traditional And No-Evidence Summary

Judgment”, dated June 11, 2020, wherein a submission date of July 16, 2020 was

set for a pleading, which was not included with said Notice and wherein the date of

said pleading was not stated, [l CR 533-534]. Upon receiving said Notice, dated

June 11, 2020, Petitioner sent multiple correspondence to Respondent and the court

requesting clarification of said Notice and the undated motion for summary

judgment, which was referenced in said Notice, but which was not included with

said Notice, [l CR 514-518; 519; 521; 523-525; 531; 538; 540-542],

Except for one letter, dated July 8, 2020, wherein Respondent’s attorney, Bruce

Cohen, stated to Petitioner, “there is indeed no further response to which I believe

you are entitled’. [l CR 523-525! 538! 540-542], Respondent refused to respond to

Petitioner’s written requests for clarification regarding, said June 11, 2020 Notice.

At the time Respondent’s attorney sent said letter to Petitioner on July 8, 2020,

Respondent concealed that on June 25, 2020, she had filed a “Renewed Motion For

Traditional And No-Evidence Summary Judgment”. [2 CR 21-60]. Like

Respondent’s motion for summary judgment, dated November 18, 2019, Respondent

never served Petitioner said June 25, 2020 “renewed” motion for summary

judgment. Respondent further failed and refused to provide proof of service for said

June 25, 2020 motion after Petitioner become aware, for the first time, of said June

25, 2020 “renewed” motion for summary judgment on August 10, 2020, which was

one day before the lower court rendered its final judgment. [2 CR 21-60]. Although

said June 25, 2020 motion for summary judgment included the word “renewed”,

said motion was not a “renewed” motion, but rather a new motion for summary

judgment, wherein Respondent made new allegations against Petitioner that she

had not made in her motion for summary judgment, dated November 18, 2019.

[1 CR 26-122! 415! 500-501].

VI.

The Lower Court’s Final Judgment

On August 11, 2020, the lower court rendered its final judgment, wherein it

granted summary judgment for Respondent based upon a June 16, 2020 “Renewed

Motion For Traditional And No-Evidence Summary Judgment’, which was never

inscribed into .the record and never served, [l CR 10; 491-492]; [Appendix D]. On

September 18, 2020, which was six weeks after the lower court issued its final

judgment and during the time in which Petitioner’s post-trial motion was pending,

[l CR 446-568]; [2 CR 4-424], Respondent admitted that she never filed a “Renewed

Motion For Traditional And No-Evidence Summary Judgment’ on June 16, 2020,

and instead claimed that she filed a “Renewed Motion For Traditional And NoEvidence Summary Judgment’ on July 16, 2020. [l CR 566]. Like said June 16,

2020 renewed motion for summary judgment, however, not only did Respondent

not serve Petitioner any July 16, 2020 renewed motion for summary judgment,

but there is,also no July 16, 2020 “Renewed Motion For Traditional And

No-Evidence Summary Judgment’ filed for the record, [l CR 6-12]. In its final

judgement, the motion for traditional and no-evidence summary judgment, which

the lower court claimed was “renewed” on June 16, 2020 was Respondent’s motion

for traditional and no-evidence summary judgment, which Respondent claimed to

have filed on November 18, 2019. [l CR 26-122]. Where the submission date of

December 9, 2019 for Respondent’s November 18, 2019 motion for summary

judgment, however, had already passed, [Appendix I], there were also no motions,

applications, nor orders filed, nor served, to renew said November 18, 2019 motion

for summary judgment, nor to reset said December 9, 2019 submission date.

[Appendix I]; [l CR 6; 8; 26-122; 139-414; 573],

In its final judgment, the lower court also relied upon, and made determinations

of uncertified pleadings, which originated and were filed in the Guardianship

Proceeding, and which Respondent had relied upon and submitted as “evidence” in

her November 18, 2019 motion for summary judgment, [l CR 26-27; 155-158; 408413]; [Appendix D].

In its final judgment, and in contravention of §27.031(a)(2) of the Texas

Government Code; §24.004 of the Texas Property Code; Art. 5, §8 of the Texas

Constitution; and Rule 510.3 of the Texas Rules of Civil Procedure, the lower court

further Ordered Forcible Detainer. [Appendix D].

VII.

The Lower Court Denied Petitioner The Right To Conduct Any Discovery

Prior To Rendering It Final Judgment

In her Response to Respondent’s November 18, 2019 motion for summary

judgment, which Respondent filed on the date the discovery period began, [l CR 26],

Petitioner included a verified Motion For Continuance, wherein she requested a

Continuance in order to be able to conduct discovery and further requested that the

lower court render a written ruling on said Motion For Continuance prior to

rendering any ruling on Respondent’s motion for summary judgment, [l CR 149-

160]. The lower court refused to hear and consider Petitioner’s uncontroverted

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

judgment, without Petitioner being able to conduct any discovery and without

Respondent having complied with the requisite disclosure requirements of Texas

Rules Of Civil Procedure 190.3(b)(1); 192.2(a); 194. [Appendix K]; [l CR 148-149;

449-462],

VIII. The Fifth District Court of Appeals Affirmed The Lower Court’s Final

Judgment

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

Opinion, (“Opinion”) and judgment, wherein it affirmed the trial court’s order. Said

Opinion is not published. [Appendix A]. Prior to issuing is Opinion, the Fifth

District Court of Appeals denied Petitioner’s motions to order the trial court to hold

a hearing on the reporter’s record. 4

4 The following pleadings were filed in the Fifth District Court of Appeals in relation to

Petitioner’s requests to have the reporter’s record corrected and amended: “Appellant’s

Emergency Motion To Order Trial Court To Conduct Hearing And Motion For Permission

To File Supplemental Brief’, filed September 9, 2021; “Appellant’s Emergency Motion To

Compel Court Reporter, Jan Dugger, To Comply With Order To File Corrected Reporter’s

Record And Motion To Extend Time To File Appellant’s Amended Brief’, filed August 3,

2021; Court Reporter’s Correspondence To The 5th Court of Appeals, filed August 5, 2021;

More than six (6) weeks prior to the Fifth District Court of Appeals having

. issued its Opinion, Petitioner had perfected the appeal for the Guardianship case,

“In The Guardianship OfRichard W. Thompson, Jr., An Alleged incapacitated

Person”, (5th Court of Appeals Case No: 05-22-00768-CV). On June 6, 2022,

Petitioner filed the Notice of Appeal in the Collin County Statutory Probate Court.

Said Notice of Appeal was inscribed into the record in the Probate Court on June 9,

2022, but was suppressed and not inscribed into the record with the Fifth District

Court of Appeals until August 4, 2022, which was after the Fifth Court of Appeals

issued its Opinion and judgment in this case and the related case, (U.S. Sup. Ct. No:

23A99). [Appendix G]. Prior to the appeal Briefs for the Guardianship case having

been filed and the issues being settled, and thus, in contravention of Rule 47.4 of

the Texas Rules of Appellate Procedure, in its Opinion, the Fifth District Court of

Appeals further made determinations and finding on pleadings and documents,

which originated and were filed in the Guardianship Proceeding and which

“Appellant’s Reply To Court Reporter’s Response”, filed August 9, 2021; “Appellant’s Motion

To Compel And Emergency Motion To Extend Time To File Amended Brief’, filed April 19,

2021, p. 3, Tab A, “Amended Motion To Correct And Amended Reporter’s Record”; and

“Appellant Challenges Reporter’s Record”, filed April 8, 2021.

Respondent had submitted as “evidence’ in her motion for summary judgment,

dated November 18, 2019, [l CR 26-27; 155-158; 408-413], and to which the lower

court expressly referenced in its final judgment. In further contravention of Rule

47.4 of the Texas Rules of Appellate Procedure, in its Opinion, the Fifth District

Court of Appeals also made determinations and findings of issues, pleadings and

“facts”, which are pending in Probate Proceeding in the Collin County Statutory

Probate Court, “In Estate OfRichard W. Thompson, Jr., Deceased’, and which are

also, thus, not settled.

REASONS FOR GRANTING CERTIORARI

Respondent’s trespass to try title case in lower court never should have reached

the issues because the lower court lacked subject matter jurisdiction. It's clear that

the jurisdictional issues were clearly and positively presented to the lower court. It

is also clear that, not only did Respondent intentionally disregard jurisdiction by

filing the case in the District Court as opposed to the Collin County Statutory

Probate Court, [Appendix J], but that the lower court blatantly and defiantly

disregarded its lack of subject matter jurisdiction and rendered judgment for which

it had no authority to render. Due process 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, something the lower court

here did not do. A court’s departure from recognized and established requirements

of law, which has the effect of depriving one of his or her constitutional rights, is

excess of jursidiction. In Thompson v. Whitman (1873) 18 Wall 457, 211 ED 897, the

US Supreme Court held that want of jurisdiction may be shown either as to the

subject matter or the person, or, in proceedings in rem, as to the thing.

Article 5, §8 of the Texas Constitution provides:

“District Court jurisdiction consists of exclusive, appellate, and original

jurisdiction of all actions, proceedings, and remedies, except in cases where

exclusive, appellate, or original jurisdiction may be conferred by this Constitution or

other law on some other court, tribunal, or administrative body. District Court

judges shall have the power to issue writs necessary to enforce their jurisdiction...”.

Here the Texas Estates Code has original and exclusive jurisdiction of all matters

related to a guardianship and probate case. Section 1022.001(a) of the TEX. ESTATES

CODE provides:

“ (a) All guardianship proceedings must be filed and heard in a court exercising original

probate jurisdiction. The court exercising original probate jurisdiction also has

jurisdiction of all matters related to the guardianship proceeding as specified in

Section 1021.001 for that type of court”. TEX. EST. CODE §1022.00l(a).

Section 1022.002(c) & (d) of the Texas Estates Code provides^

“(c) In a county in which there is a statutory probate court, the statutory probate

court has original jurisdiction of guardianship proceedings, (d) From the filing of

the application for the appointment of a guardian of the estate or person, or both,

until the guardianship is settled and closed under this chapter, the administration

of the estate of a minor or other incapacitated person is one proceeding for purposes

of jurisdiction and is a proceeding in rem”. TEX. EST. CODE § 1022.002(c) & (d).

Section 1022.005 of the Texas Estates Code provides^

“(a) In a county in which there is a statutory probate court, the statutory probate

court has exclusive jurisdiction of all guardianship proceedings, regardless of

whether contested or uncontested.

(b) A cause of action related to a guardianship proceeding of which the

statutory probate court has exclusive jurisdiction as provided by Subsection (a)

must be brought in the statutory probate court unless the jurisdiction of the

statutory probate court is concurrent with the jurisdiction of a district court as

provided by Section 1022.006 or with the jurisdiction of any other court. TEX.

EST. CODE §1022.005(a) & (b), and TEX. GOV’T CODE §25.045l(b). [Appendix K],

Section 1022.006 of the Texas Estates Code provides:

“A statutory probate court has concurrent jurisdiction with the district court in:

(l) a personal injury, survival, or wrongful death action by or against a person

in the person's capacity as a guardian; and with the guardian is not an interested

person in the guardianship. TEX. EST. CODE §1022.006. See also TEX. EST.

CODE §32.005(a); §32.007. [Appendix K],

In its final judgment, the lower court made specific reference to, and relied upon,

pleadings and documents which Respondent submitted in the trespass to try title

case, but which originated, and were filed in the Guardianship Proceeding.

[Appendix D]. Because said trespass to try title case arose from, and was a matter

related to the Guardianship Proceeding, and because the Guardianship Proceeding

was not settled and closed at the time Respondent brought said case, and where the

Collin County Statutory Probate Court did not have concurrent jurisdiction with the

District Court under section 1022.006 of the TEX. EST CODE, the District Court

lacked the subject matter jurisdiction to adjudicate said trespass to try title action,

thereby, resulting in a final judgment, which is not only void as a matter of law, but

which erroneously deprived Petitioner of her property interest, thereby violating

Petitioner’s constitutional right to due process and equal protection of the law under

the Fourteenth Amendment to the US Constitution. See also TEX. EST. CODE

§§1022.00l(a); 1022.002(c) & (d) and 1022.005(a) & (b).

When Respondent filed her application for guardianship, she submitted herself

to the Collin County Statutory Probate Court's jurisdiction, which has exclusive

jurisdiction over all claims, including the matter of the subject property and title

thereto. In In re Guardianship ofSoberanes, the Court of Appeals held that

"jurisdiction attached when the application [for guardianship] is filed", No. 04-0200119-CV, 2002 Tex. App. WL 31863704 (San Antonio, December 24, 2002, no pet.

h.). The Court further stated, “this is especially true under the circumstances

presented here, where the temporary Guardian submitted herself and the Ward to

the court’s jurisdiction...”. See also In re CC & M Garza Ranches, Ltd Partnership,

409 S.W. 3d 106, 109 (Tex. App. — Houston [1st Dist] 2013, no pet.), wherein the

Court held that the Texas Estates Code pertaining to guardianship proceedings

confers exclusive jurisdiction on Statutory Probate Courts over actions related to

guardianship proceedings.

In its final judgment, the lower court also makes specific reference to ‘The

Last Will And Testament Of Richard Wells Thompson Jr’, dated July 13, 2019,

[l CR 232-241! 399-402]; wherein Petitioner is the sole devisee of the subject

property. Because the Collin County Statutory Probate Court does not have

concurrent jurisdiction with the District Court under §32.007 of the TEX. EST.

CODE, and because, as said Will, dated July 13, 2019, shows, the subject property

is a matter related to the pending Probate Proceeding, and where the probate court

has exclusive jurisdiction of all matters relating to the pending probate proceeding

as prescribed by §32.005(a) of the TEX. EST. CODE, [Appendix K], the District

Court continued to lack subject matter jurisdiction to adjudicate the trespass to try

title action.

In King vDeutsche Bank Nati Trust Co., 472 S.W. 3d 848 (Tex. App. 2015), the

First Court of Appeals held that the “language in §1022.005 of the Texas Estates

Code vested the statutory probate court with exclusive jurisdiction over claims that

the statute defined as matters related to a guardianship proceeding”. In its holding,

the Court concluded that “by giving the statutory probate court exclusive

jurisdiction over all claims related to a guardianship proceeding, the Legislature

necessarily deprived all other courts of the power to adjudicate those claims”, and

that the provision of the Estates Code [§1022.005] at issue in In re CC & M Garza

Ranches, Ltd Partnership, was virtually identical to the provision at issue in King,

[§32.005(a)], Following the rationale in In re CC & M Garza Ranches, Ltd

Partnership, the Court held that section 32.005(a) of the Estates Code likewise

confers the statutory probate court with exclusive jurisdiction over the case and

that because the statutory probate court has exclusive jurisdiction over the parties’

claims, the trial court lacked subject-matter jurisdiction over the case. In citing In

re CC & M Garza Ranches, Ltd Partnership..., the Court in King stated that only

the statutory probate court had the power to decide such claims, and an order or

judgment issued by another court pertaining to those claims would be void. The

judgment from the District Court was vacated and rendered judgment dismissing

the case for want of subject-matter jurisdiction. See also Celestine v Dep’t ofFamily

& Protective Servs., 321 S.W. 222, 230, (Tex. App - Houston [1st Dist] 2010, no

pet)([W]hen one court has ...exclusive jurisdiction over a matter, any order or

judgment issued by another court pertaining to the same matter is void”). As this

Court has held, “ Without jurisdiction the court cannot proceed at all in any cause!

it may not assume jurisdiction for the purpose of deciding the merits of the case”.

Sinochem Inti Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct.

1184, 1191 (2007)).

The lower court also exceeded its jurisdiction when it Ordered Forcible Detainer

in its final judgment. [Appendix D]. Section 27.031(a)(2) of the Texas Government

Code! section 24.004 of the Texas Property Code and Rule 510.3 of the Texas Rules

of Civil Procedure all provide that the justice court has original jurisdiction of all

eviction cases. By Ordering Forcible Detainer in its final judgment, the lower court

not only violated said statutes, but it also violated Article 5, §8 of the Texas

Constitution provides that “District Court jurisdiction consists of exclusive,

appellate, and original jurisdiction of all actions, proceedings, and remedies, except

in cases where exclusive, appellate, or original jurisdiction may be conferred by this

Constitution or other law on some other court, tribunal, or administrative body...”.

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." Fuentes 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”).

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

wherein it stated, in part, “The PlaintiffHied Motion for Traditional and NoEvidence Summary Judgment on November 18, 2019, renewing that Motion on

June 16, 2020”. [Appendix D]. Because the lower court decided Respondent’s

trespass to try title case by a motion for summary judgment, the trial court was

required to comply with the rules governing motions for summary judgment.

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 before the

time specified 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 after 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).

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

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

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

20, 2019,[Appendix I], [l CR 6! 8; 573], wherein a submission date for said motion

for summary judgment, dated November 18, 2019, was set for December 9, 2019.

Where Rule 166a(c) of the Texas Rules of Civil Procedure required Respondent to

provide a minimum 21 day notice. Where Respondent’s Notice was filed on

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

December 11, 2019. Notice, however, is not strictly limited to the Notice of

Submission, but also required Respondent to serve Petitioner the motion for

summary judgment. Here, 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.

The June 16, 2020 “renewed” motion for summary judgment, upon which the

lower court based its final judgment, was not only not filed as part of the record in

the trial court, but six (6) weeks after the lower court issued its final judgment,

Respondent also admitted that she never filed a “renewed” motion for summary

judgment on June 16, 2020. Where Respondent then claimed to have filed a

“renewed” motion for summary judgment, on July 16, 2020, not only did Respondent

never serve Petitioner said July 16, 2020 “renewed” motion for summary judgment,

but the record also shows that a “renewed” motion for summary judgment was

never filed on July 16, 2020.

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.” See also

ICC vLouisville & Nashville RR 227 U.S. 88, 93-94 (1913). Where the “evidence

consists of the testimony ofindividuals 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 is untrue depends on

the rights of confrontation and cross-examination. See Greene v. McElroy, 360 U.S.

474, 496-97 (1959). 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 facts are contested. 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.

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.

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. Despite its obligation to comply with

procedural requirements, the lower court failed to follow any legal procedures as it

relates to discovery.

Rule 190.1 of the Texas Rules of Civil Procedure provides, in part: “Every case

must be governed by a discovery control plan as provided in this Rule. A plaintiff

must allege in the first numbered paragraph of the original petition whether

discovery is intended to be conducted under Level 1,2, or 3 of this Rule..” TEX. R.

CIV. P. 190.1.

Rule 169 of the Texas Rules of Civil Procedure provides, in part: “(a) The

expedited actions process in this rule applies to a suit in which all claimants, other

than counter-claimants, affirmatively plead that they seek only monetary relief

aggregating $250,000 or less, excluding interest, statutory or punitive damages and

penalties, and attorney's fees and costs... (c) Removal from Process, (l) A court must

remove a suit from the expedited actionsprocess-(A) on motion and a showing of

good cause by any party! or (B) if any claimant, other than a counter-claimant, files

a pleading or an amended or supplemental pleading that seeks any relief other than

the monetary relief allowed by (a)... (3) If a suit is removed from the expedited

actions process, the court must reopen discovery under Rule 190.2(c). TEX. R. CIV.

P„ 169.

Rule 190.2(c) of the Texas Rules of Civil Procedure provides: “Ifa suit is removed

from the expedited actions process in Rule 169 or, in a divorce, the filing of a

pleading renders this subdivision no longer applicable, the discovery period reopens,

and discovery must be completed within the limitations in Rules 190.3 or 190.4,

which ever is applicable. Any person previously deposed may be redeposed. On a

motion of any party, the court should continue the trial date ifnecessary to permit

completion of discover}!. TEX. R. CIV. P. 190.2(c).

Rule 190.3 of the Teas Rules of Civil Procedure provides, in part: “ Unless a suit

is governed by a discovery control plan under Rules 190.2 or 190.4, discovery must

, be conducted in accordance with this subdivision. (b)Limitations. Discovery is

subject to the limitations provided elsewhere in these rules and to the following

additional limitations: (l)Discovery period. All discovery must be conducted during

the discovery period, which begins when the initial disclosures are due and

continues untih'(A) 30 days before the date set for trial, in cases under the Family

Code', or (B) in other cases, the earlier of(i) 30 days before the date set for trial,

or (ii) nine months after the initial disclosures are due”. TEX. R. CIV.P. 190.3

Prior to issuing its final judgment, the lower court failed to set a discovery plan,

[l CR 123-124; 129], as required under Rules 190.1 and 190.3 of the Texas Rules of

Civil Procedure! [Appendix K]; failed to remove Respondent’s trespass to try

title case from the expedited actions process, [l CR 17], as required under Rule

169(c)(1)(B) of the Texas Rules of Civil Procedure, [Appendix K]; and failed to

reopen discovery under Rule 190.2(c) of the Texas Rules of Civil Procedure after

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

under Rule 190.3 of the Texas Rules of Civil Procedure, [l CR 408].

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 oflaw is the opportunity to be heard." Grannis

v. Ordean, 234 U. S. 385, 234 U. S. 394. See also Loudermill 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. S. 778, 786 (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”.

Canon 3 of the Texas Code of Judicial Conduct provides, in part:

Canon 3(A) - “... The judicial duties ofa judge take precedence over all the judge's

other activities. Judicial duties include all the duties of the judge's office prescribed

bylaw. In the performance of these duties, the following standards apply'Canon 3(B)(1) “A judge shall hear and decide matters assigned to the judge

except those in which disqualification is required or recusal is appropriate.

Canon 3(B)(8) — “A judge shall accord to every person who has a legal interest in

a proceeding, or that person's lawyer, the right to be heard according to laW.

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), iffiled, 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 of 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, and Petitioner’s multiple other applications and

motions before the court, not only did said failure and refusal violate Rule 329b(g) of

the Texas Rules of Civil Procedure, it also violated the judicial requirements under

Canon 3(A); 3(B)(1) and 3(B)(8) of the Texas Code of Judicial Conduct. Petitioner

was denied the opportunity and her right to be heard by being denied the right to

confront and cross examine Respondent to test the truthfulness, accuracy or

completeness of any testimony she would have given on the issues, facts and

evidence, and to probe and expose Respondent’s infirmities on the issue, facts and

evidence. Petitioner was deprived of her Constitutionally protected right to be heard

Having a property interest, Petitioner is entitled to Constitutional protections t

through the Fourteenth Amendments’ Due Process Clause, which provides^ “nor

shall any State deprive any person oflife, liberty or property, without due process of

law, nor shall any person be denied the equal protection of the lawd'. 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, confront adversaries, the right to

be heard at a meaningful time and meaningful manner, and the right to an

impartial tribunal. Petitioner was 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 due process, and the subsequent

arbitrary and capricious rulings, which are not based upon the merits of the case,

are compelling reasons for this Court grant a writ of certiorari since the rights of all

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

denial of procedural due process not only leads to an unfair trial and arbitrary and

capricious decisions that are not based upon the merits of the case, but it also

adversely affects societal order by undermining public confidence in the fairness

and impartiality of the legal system. An ordered society, one that fosters fairness

and justice, requires procedural compliance and equal application of the law. The

importance of assuring procedural compliance and equal application of the law

cannot be over-emphasized. The lack or absence of procedural compliance not only

violates the most fundamental constitutional right of a party to have a fair and

impartial proceeding, but it also nurtures corruption and decay of the longcherished traditions of American jurisprudence, and indeed, the Constitutional

protections afforded all citizens. Where the lower court so far departed from the

accepted and usual course of judicial proceedings, and where the Fifth District

Court of Appeals sanctioned such a departure by the lower court, the Fifth District

Court of Appeals’ Opinion is so clearly wrong as to call for an exercise of this Court’s

supervising power.

CONCLUSION

Petitioner, Brigetta D’Olivio, respectfully requests that this Court grant her

petition for writ of certiorari.

Respectfully Submitted!

JSrujetta

K^)fivic

Dated: August 28, 2023

No:. '' ^

In the Supreme Court of United States

Brigetta D’Olivio aka BrigettaAlix Anderson, Alix Brigetta

Petitioner,

Hilary Thompson Hutson

Respondent.

SWORN AFFIDAVIT

BEFORE ME, 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 “PETITION FOR WRIT OF CERTIORARI”, dated August 28

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

(

^rigetta D’Olivio2916 Creekbend Dr

Plano, TX 75075

214-733-7204

bdt2916@gmail.com

) SUBSCRIBED and SWORN to before me,

the undersigned, on this 28th day of August 2023,

to certify which witness my hand and seal of office.

NOTARY PUBLIC

In and for the State of Texas

PAUL FISHER

Notary Public, State of Texas

Comm. Expires 08-02-2025

Notary ID 133246067

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.