# Petition for Writ of Certiorari — McKinley v. Northern Telecom

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1157

## Text

Supreme Court, U.S
oe tae

9 9'7 4 DEC - 8 1999,

No. 99-___
} OFFICE OF THE CLERK

In The
Supreme Court of the United States

JACQUELINE MCKINLEY,

Petitioner,

NORTHERN TELECOM,
Respondent.

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit

*

PETITION FOR A WRIT OF CERTIORARI

¢

JOHN W. REEDER

Counsel of Record
for Petitioner

555 Republic Drive

Suite 200

Plano, Texas 75074

972/516-4270

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

What is the minimum due process standard for a
Federal Appellate Court when considering a motion to
either grant a motion to extend the time to file an appel-
lant’s brief or to reinstate an appeal that has been dis-
missed for failing to timely file a brief?

PARTIES TO THE PROCEEDINGS

Petitioner Jacqueline McKinley is the plaintiff in this
case. The defendant in the case, respondent here, is
Northern Telecom.

Petitioner Jacqueline McKinley, pursuant to Rule 29.6
of the Rules of this Court, states that she is an individual
and accordingly has no corporate affiliations.

tty eebe Ren a Lane eee nT

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TABLE OF CONTENTS

Page

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PARTIES TO THE PROCEEDINGS................. ii
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PRs APES INVOLVED oo. ov cei ck ec ccnscens 2
iit cee arth BOT LE ESES OAPG EEE RD WM ETF Baie 3
A. FAGTUAL BACKGROUND... 2. 6. ceide cece 3
B. DISTRICT COURT PROCEEDINGS........... 3
C. COURT OF APPEALS’ RULINGS............ 4
REASON FOR GRANTING THE PETITION ........ 5

DURING THE LAST FIFTEEN YEARS, THE
FEDERAL APPELLATE CIRCUIT COURTS
HAVE INCREASINGLY DISMISSED APPEALS
FOR PROCEDURAL PITFALLS SUCH AS FAIL-
ING TO FILE A TIMELY BRIEF. THIS COURT
HAS NEVER RULED ON WHAT STANDARD
SHOULD BE USED BY AN APPELLATE
COURT IN CONSIDERING WHETHER TO
GRANT AN EXTENSION OF TIME TO FILE A
BRIEF OR WHETHER IT SHOULD REINSTATE
AN APPEAL DISMISSED FOR FAILURE TO
TIMELY FILE A BRIEF

I ok Vs 6 owas Ganv will dismiss®

2 Review standard as reported in cases within last 20 years.
Since Courts seem to becoming more stringent over time, the
date of the reported case is also listed in the table.

3 D.C. Cir. Rule 28(f)(1).

4 Barber v. American Security Bank, 841 F.2d 1159, 1162 (D.C.
Cir. 1988).

5 1st Cir. Rule 45.

© Reyes-Garcia v. Rodriquez & Del Valle, Inc., 82 F.3d 11, 15
(1st Cir. 1996) (Considering a brief that violated a whole series
of requirements imposed by applicable procedural rules, the
court stated: “No one is perfect, and occasional oversights —
fribbling infringements of the rules that neither create
unfairness to one’s adversary nor impair the court's ability to

8
2nd Circuit
Default to good 1985, 1991 -
cause” Good cause
and compelling
circumstances®
3rd Circuit
Good Cause? 1989, 1991 - q
Extraordinary
circumstances after
opportunity to cure??
4th Circuit
Extraordinary 1967 — leniency!
Circumstances!!

comprehend and scrutinize a party’s submissions — ordinarily
will not warrant Draconian consequences. But major infractions
or patterns of repeated inattention warrant severe decrees.”).

7 Local rules of the Second Circuit do not set a standard,
therefore, Federal Rule of Appellant Procedure 31(a)’s “good
cause” standard is presumed. See 2nd Cir. Rules 27(f) and 38.

8 United States v. Raimondi, 760 F.2d 460, 462 (2nd Cir. 1985);
United States v. Delia, 925 F.2d 574, 575 (2nd Cir. 1991).

9 3rd Cir. Rule 107.2.

10 Horner Equipment International, Inc. v. Seascape Pool '
Center, Inc., 884 F.2d 89, 93 (3rd Cir. 1989) (Dismissals disfavored
and opportunity to cure required); Matute v. Procast Navigation
L.T.D., 928 F.2d 627, 631 (3rd Cir. 1991), cert. denied, 502 U.S. 919,
112 S.Ct. 329, 116 L.Ed.2d 270 (1991), overruled on other grounds, |
Neeley v. Club Med Management Services, Inc., 63 F.3d 166 (3rd Cir.
1995) (Compelling circumstances of medical emergencies in
family excuses late filed brief after three extensions).

11 4th Cir. Rule 31(c); 4th Cir. Rule 45 requires 15 day notice
from clerk of failure to comply with rules before dismissal.

12 See United States v. Hayes, 378 F.2d 566, 568 (4th Cir. 1967)
(In criminal case, court appointed counsel relieved of
representation duties after missing several briefing deadlines
even with clerk intervention.).

5th Circuit

6th Circuit

7th Circuit

Good cause defined
as other litigation,
complexity of issues
and extreme
hardship!5

Default to good
cause, extraordinary
circumstances if
expedited appeal!4

Default to good
cause but provides
for show cause order
before dismissal.
Good cause
examples of other
litigation, complex
issues, or extreme
hardship!5

No published
opinions discussing
standards after the
1978 Marcadia v.
Rascoe opinion cited
previously. The facts
of this case seem

to suggest an
unpublished higher
standard.

No reported cases

1995 — Leniency, then
show cause!®

13 5th Cir. Rules 26.2, 27.1.1, and 31.4.1.
14 6th Cir. Rule 10(k) and I.O.P. 15.8.
15 7th Cir. Rules 26 and 31(c).

16 See United States v. Sosa, 55 F.3d 278, 279 (7th Cir. 1995)
(Document filed was not a brief, appellant ordered to show
cause within 14 days why appeal should not be dismissed.).

8th Circuit

9th Circuit

10th Circuit

10

Default to good
cause, 15 day notice
to cure!”

Good cause for short
extension, diligence
and substantial need
for larger extensions,
second extensions
require extraordinary
and compelling
reasons?

Show timeliness not
possible with
diligence and
priority defined as
other litigation,
complexity of issues
or extreme
hardship?!

17 8th Cir. Rule 3c.

18 See Modern Leasing, Inc. of lowa v. Falcon Manufacturing of
California, Inc., 888 F.2d 59, 61 (8th Cir. 1988).

19 Oth Cir. Rule 32.2.2.

20 Escobar-Ramos v. Immigration and Naturalization Services,
927 F.2d 482, 485 (9th Cir. 1991).

21 10th Cir. Rules 27.4 and 31.4.

22 Mullen v. Household Bank — Federal Savings Bank, 867 F.2d
586, 588 (10th Cir. 1989).

1988 — Leniency, then
show cause, if no
harm - not grounds
for dismissal*®

1991 — Extraordinary
Circumstances but
prefer attorney
sanction to
dismissal?°

1989 — No dismissal
for procedural
briefing errors?

11

11th Circuit
extraordinary No reported cases
circumstances
but clerk can
grant moderate
extensions?

Fed. Circuit
good cause; if filed 1989 - leniency
after deadline — before dismissal?
extraordinary
circumstances?4

This Court has never addressed the issue of what
constitutes good cause and what due process consider-
ations must be analyzed before an appeal can be dis-
missed for failure to timely file an appellant’s brief.

In an effort to trim their dockets, courts in principal
and practice, are increasingly willing to dismiss cases on
procedural grounds. Petitioner asserts that to comply
with procedural due process, the Court should avoid
punishing a litigant for counsel’s mistakes when at all
possible and therefore follow the lead of the Third, Sev-
enth, Eighth and Ninth Circuits and show leniency in
granting initial extensions, increase the standard from
“good cause” to “extraordinary circumstances” after the
initial extensions, and disfavor dismissal — doing so only

23 11th Cir. Rule 26.01, I.0.P. 1 and Rule 31.04, I.O.P. 2.
24 Fed. Cir. Rules 26 and 31(d).

25 See Julien v. Zeringue, 864 F.2d 1572, 1574-75 (Fed. Cir.
1989) (Case involved multiple extensions before initially being
dismissed.).

12

after providing a chance to cure and a showing of harm
to the opposing counsel, or in cases of demonstrated
patterns of extreme disregard for the rules of the court.

In Petitioner’s case, there was no pattern of extreme
disregard for the Procedural Rules of the Fifth Circuit and
Petitioner’s prior counsel was never provided a reason-
able opportunity to file a well planned and presented
brief. Petitioner’s prior attorney failed to receive the trial
court’s record from which to prepare his brief. Many
factors contributed to this failure to receive the record.
The Appellate Clerk disregarded the notice of appeal
documents which contained Petitioner’s attorney’s
address and did not send the record because no notice of
appearance form was filed. The record is unclear as to
why there was no notice of appearance form filed but it is
apparent that the clerk did not timely inform Petitioner’s
prior attorney of the deficiency and the Federal Rules of
Appellate Procedure do not address such a form. Fifth
Circuit Rule 46.3 requires that such a notice be entered
“at the time the case is docketed or upon notice by the
clerk.”

Furthermore, Petitioner’s prior attorney was never
provided notice of his deficiency and provided an oppor-
tunity to cure. Fifth Circuit Rule 42.3.1 provides that
when a criminal appellant fails to file a brief, 15 day
notice is provided before the clerk shall dismiss any case
for failure to prosecute. No similar warning requirement |
is provided to civil appellants.

This case should be remanded, the Court record
returned to Petitioner’s counsel and such counsel be

13

provided a reasonable time to file the brief after receiving
the court’s record.

CONCLUSION

The petition for a writ of certiorari should be
granted.

Respectfully submitted,

JOHN W. REEDER
Attorney at Law

555 Republic Drive
Suite 200

Plano, Texas 75074
972/516-4270

Fax: 972/423-1509
Texas Bar No. 16695450

Il.

INDEX TO APPENDIX

Page

8/04/99 ORDER granting Appellee’s Motion to

EMMOIG. 0 ono 55 SFE EG RCEH i ce eceeictevece App.

9/09/99 ORDER denying Appellant’s Motion

SOR TOE TINN niis singis cn vas cacivieavascasens App.

Appellant’s Motion for Rehearing (with

GUUACTIOG GHENT). oo 56 ois. ok.e'c cae ccedenene App.

Exhibit A: 4/27/99 Order Reinstating

FR Eee CT CE TEL Tee Tere App.
Exhibit B: 4/27/99 Clerk’s Memorandum. . App.

Exhibit C: 6/26/99 Correspondence w/
Appearance form and Motion for Leave to File

Deeb: O0t of HNO. isi 5s Skee k 88 App.

Exhibit D: Notice of non-delivery from
2 SP rep erry ree parry eee ee ee ee App.

17

tigen a

App. 1

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-10170

JACQUELINE MCKINLEY
Plaintiff - Appellant
v.
NORTHERN TELECOM
Defendant — Appellee

Appeal from the United States District Court for the
Northern District of Texas, Dallas

(Filed Aug. 4, 1999)

Before HIGGINBOTHAM, DAVIS, and EMILIO M.
GARZA, Circuit Judges.

BY THE COURT:

IT IS ORDERED that appellee’s motion to dismiss
appeal is GRANTED.

IT IS FURTHER ORDERED that appellant’s motion
for leave to file brief out of time is DENIED AS MOOT.

IT IS FURTHER ORDERED that appellant’s motion
for an extension of time to file appellant’s brief is
DENIED AS MOOT.

App. 2

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-10170

JACQUELINE MCKINLEY
Plaintiff - Appellant
v.
NORTHERN TELECOM
Defendant - Appellee

Appeal from the United States District Court for the
Northern District of Texas, Dallas

(Filed Sep. 9, 1999)

Before HIGGINBOTHAM, DAVIS and EMILIO M.
GARZA, Circuit Judges.

BY THE COURT:

The appellant’s motion for rehearing of Court’s order
of August 4, 1999 denying as moot appellant’s motion to
file brief out of time, denying as moot appellant’s motion
to extend time to file appellant's brief, granting appellee’s
motion to dismiss appeal, is DENIED.

App. 3

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-1070

JACQUELINE MCKINLEY
Plaintiff-Appellant

NORTHERN TELECOM

§
§
§
§
§
Defendant-Appellee §

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

APPELLANT’S MOTION FOR REHEARING

TO THE HONORABLE FIFTH CIRCUIT COURT OF
APPEALS:

COMES NOW the Appellant, Jacqueline McKinley,
and files this Motion For Rehearing and would respect-
fully show the court the following:

I.

This cause was dismissed by an order signed on
March 18, 1999 and granted a reinstatement by the
Court’s order signed on April 27, 1999. (See Exhibit A).
Along with the April 27th order, was a memorandum
from the Court which stated that the district court clerk

App. 4

was requested to send the record and/or exhibits to said
Court as soon as possible. (See Exhibit B). Around this
time, Appellant’s counsel Donald W. Hill was elected to
the office of City Council. With said election came the !
need to withdraw from the firm located at 1999 Bryan,
Suite 3470, Dallas, Texas, 75201, and physically move to
another location at 400 South Zang Blvd., Suite 600,
Dallas, Texas 75208.

Il.

The firm associate on the case, Tracey Wallace, was
still positioned at the 1999 Bryan Street location and was
handling the logistics for the receipt of the records. In
June, 1999, Ms. Wallace inquired about the whereabouts
of the records and was informed by the Court that an
appearance form for Appellant’s counsel had not been
received. On June 26, 1999, Appellant’s lead counsel of
record, Don Hill, filed a Motion for Leave to File Brief
Out of Time and the referenced Appearance Form with
the Court. (See Exhibit C).

On July 8, 1999, counsel for Appellee filed a
Response in Opposition to Appellant’s Motion to Extend
Time to File Brief Out of Time alleging that Appellant had
not received the record due to her counsel’s own making
because no Appearance Form was filed. However, coun-
sel has shown by the facts stated herein and attached
hereto Appellant’s Motion for Rehearing that the requi-
site Appearance Form was, in fact, filed with the Court.
(See Exhibit C).

ae mT ENT Ce een nm ee Ee TL

App. 5

IV.

On July 14, 1999, associate Tracey Wallace received a
notice from UPS stating their not being able to complete
delivery of a shipment from the Court of Appeals, Con-
trol #7522-P12-0231, due to an “Unknown Person.” (See
Exhibit D). On July 15, 1999, the associate followed up
with a telephone call to UPS and requested a return
delivery to the 1999 Bryan Street address, assuming that
the shipment pertained to the Appellant’s records. The
associate then phoned lead counsel Don Hill’s office to
advise of the inquiry. At this time, lead counsel Don
Hill’s office followed up with the inquiry. Counsel’s legal
assistant, Vickie Griffin called UPS on July 20, 1999 and
spoke with a representative by the name of Nancy. The
UPS representative stated that her system revealed a
phone call from Tracey Wallace on July 15, 1999 and a
request to ship the materials back to the 1999 Bryan Street
address. However, the system also showed that the pack-
age had inadvertently been shipped back to the Court of
Appeals. At this time the UPS representative stated that
she would request the Court of Appeals resend the mate-
rials to the 400 South Zang location because of the error.
However, the UPS representative called back to say that
the matter could not be corrected and that counsel’s office
would need to call the Court of Appeals and ask for
Jennifer at extension 118 because she would have to
verify the contents of the package before reshipment was
allowed. The legal assistant called Jennifer at the Court of
Appeals and did, in fact, verify the contents of the pack-
age, as well as inquired about the original shipment
logistics. At this time the legal assistant was told that the
records were initially shipped from the Court of Appeals

App. 6

on July 8, 1999 and received by UPS in Dallas on July 12,
1999. The records were then shipped back to the Court of
Appeals on July 19, 1999 and received on July 20, 1999.
Jennifer advised the legal assistant that she would have
the package mailed back to the 400 South Zang location
to Appellant’s lead counsel.

V.

Appellant counsel’s office at the Zang location
received the materials around August 3, 1999 and the
order dismissing the appeal was granted and signed on
August 4, 1999. (See Exhibit E).

VI.

Appellant had demonstrated good cause for the late
filing of her brief. Appellees will not be prejudiced by the
granting of this Motion for Rehearing. And further, this
Motion is not clearly presented for delay but that justice
may be served. The delays have not been due to any
neglect or intentional indifference. In fact, there has been
a consistent line of communications between Appellant
and the Court of Appeals. The Appellant’s cause was
dismissed on a summary judgment basis. Appellant
needs an opportunity to have her cause fully considered
by this Court.

App. 7

WHEREFORE, PREMISES CONSIDERED Piaintiff
respectfully prays that she be granted an Order granting
rehearing her cause of action.

Respectfully submitted,

/s/ Donald W. Hill
DONALD W. HILL
Texas Bar No. 09628400
400 South Zang, Suite 600
Dallas, Texas 75208
(214) 941-6814
(214) 941-1399 (Facsimile)
Counsel for Appellant

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the
foregoing has been served upon Appellees through their
counsel of record, Carol Darling, Jenkins & Gilchrist, 1445
Ross Avenue, Suite 3200, Dallas, Texas, 75202, on this the
16th day of August, 1999.

/s/ Donald W. Hill

DONALD W. HILL

App. 8

PLAINTIFF’S EXHIBIT A
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-10170

(Filed Apr. 27, 1999)
JACQUELINE MCKINLEY
Plaintiff-Appellant
v.
NORTHERN TELECOM
Defendant-Appellee

Appeal from the United States District Court for the
Northern District of Texas, Dallas

ORDER:

IT IS ORDERED that appellant’s motion to reinstate
the appeal is GRANTED.

/s/ Jerry E. Smith
JERRY E. SMITH
UNITED STATES
CIRCUIT JUDGE

App. 9

PLAINTIFF’S EXHIBIT B
United States Court of Appeals

FIFTH CIRCUIT
OFFICE OF THE CLERK

CHARLES R. FULBRUGE III TEL. 504-589-6514
CLERK 600 CAMP STREET
NEW ORLEANS, LA 70130

April 27, 1999
MEMORANDUM TO COUNSEL OR PARTIES LISTED
BELOW:

No. 99-10170 McKinley v. Northern Telecom
USDC No. 3:97-CV-2036-BC

The motion of appellant to reinstate the appeal referenced
above is granted. The district court clerk is requested to
send the record and or exhibits to this office as soon as
possible.

Sincerely,
CHARLES R. FULBRUGE III, Clerk

By: /s/ Debbie Kranz
Debbie Kranz, Deputy Clerk

Mr Donald Wayne Hill
Mr Robert Elwood Sheeden
Ms Nancy Hall Doherty, Clerk

MOT-2

App. 10

PLAINTIFF’S EXHIBIT C

Law Offices of
Donald W. Hill
Attorneys and Counselors at Law
Donald W. Hill 400 S. Zang Blvd.
Suite 600
Dallas, Texas 75200
TELE: (214) 941-6814
FAX: (214) 941-1399

Direct Dial:
June 26, 1999

Debbie Kranz, Deputy Clerk
United States Court of Appeals
Fifth Circuit

600 Camp Street

New Orleans, LA 70130

Re: No. 99-10170 — McKinley v. Northern Telecom; USDC
No. 3:97-CV-2036-BC

Dear Clerk:

Enclosed please find an original and three (3) copies of
Appellant’s Motion for Leave to File Brief Out of Time,
along with the Appearance Form, in the above referenced
appeal.

Counsel for Appellee is being notified of same by copy of
this letter. Thank you for all your assistance in this filing.

Sincerely,
/s/ Cassandra Mathis

Cassandra Mathis
Legal Secretary to Don Hill

App. 11

FORM FOR APPEARANCE OF COUNSEL

Only attorneys admitted to the Bar of this Court since October
1, 1981 may sign this form and practice before the Court. An
application for admission is incorporated. Two persons from
the same organization or firm may sign this form.

No. 99-10170
Jacqueline McKinley vs. Northern Telecom
aintiff) (Defendant)

The Clerk will enter my/our appearance as Counsel for
Plaintiff
(Please list names of all parties represented)

who IN THIS COURT is
[ ] Petitioner(s) [ ] Respondent(s) [ ] Amicus Curiae

[“] Appellant(s) [ ] Appellee(s) [ ] Intervenor

I certify that I am a member of the Bar of the Fifth Circuit
Court of Appeals, or application for admission is being
made below.

Donald W. Hill

(Signature) (Signature)
Donald W. Hill
(Type or Print Name) (Type of Print Name)
Partner
(Title, If Any) (Title, If Any)
Law Offices of Donald W. Hill
(Firm or Organization) (Firm or Organization)
Social Security No. 456-90-5366 Social Security No.
Date of Birth 11-3-51 Date of Birth
Sex:[ ]}M [ ] F Sex:[ ]}M [ ] F
Resident State /Bar Resident State/Bar

No. 09628400 No.

App. 12
|

Street Address 400 South Zang Suite 600 Suite

City & State Dallas, Texas Zip 75208 Phone (214) 941-6814 |
Fax (214) 941-1399 |

NOTE: When more than one attorney represents a sin-
gle party or group of parties, counsel should designate a
lead counsel to whom notification is to be sent, with the
understanding that if other counsel should be informed
he or she will perform that function. If lead counsel has not
signed above, lead counsel must complete his or her own
form for appearance of counsel. The person to be notified
in this case is:

Name of Lead Counsel (Type or Print) Donald W. Hill

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
APPLICATION AND OATH FOR ADMISSION
600 Camp Street, New Orleans, LA 70130

Name

(Last) (First) (Middle)
Firm or Agency
Street Address Suite
City & State Zip

Social Security No.

Phone (__) Resident State/Bar No.
Date of Birth Sex: [ ]M [ ] F

ADMISSION FEE: Admission fees may be paid by per-
sonal check, certified check or postal money order. Please
make payable to the Librarian, United States Court of

App. 13

Appeals. Basis for amount of fee may be found in 5TH Cir.
R. 46, which states:

“Only attorneys admitted to the Bar in this Court
may practice before the Court. Admission to the Bar
of this Court is governed by Fed. R. App. P. 46. Each
attorney shall pay to the Clerk an admission fee of
$50, which shall be transferred to the Library Fund.
An attorney who is appointed by the Court to repre-
sent an appellant in forma pauperis and an attorney
who appears on behalf of the United States must
have all other qualifications for admission, but shall
be admitted to practice in this Court without pay-
ment of an admission fee.”

FEE DATA: (Check One) { ] Cash [ ] Check
[ ] Court Apptd. { ] U.S. Counsel

CASE NUMBER (If Any):

App. 14

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-10170

JACQUELINE MCKINLEY
Plaintiff-Appellant

v.

NORTHERN TELECOM
Defendant-Appellee

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

MOTION FOR LEAVE TO FILE BRIEF OUT OF TIME

TO THE HONORABLE FIFTH CIRCUIT COURT OF
APPEALS:

COMES NOW the Appellant, Jacqueline McKinley,
and files this Motion for Leave to File Brief Out of Time,
and would show the court the following:

I.

In April 1999, this appeal was dismissed and subse-
quently reinstated. The record indicates that the appeal
_was initially dismissed because of the failure of Plaintiff’s
counsel to submit a request for transcript form. Based on

App. 15

the fact that this cause is an appeal of a summary judg-
ment, a transcript request was not necessary. A copy of
the notice from the District Court clerk transmitting the
record was sent to Plaintiff early in May, 1999. We have
been awaiting the records since that date. Plaintiff and
her counsel has complied with each aspect of her appeal.
The dismissal of Plaintiff's appeal will effectively pre-
clude the Plaintiff from having her appeal heard. The
merits have never been evaluated by an appellate court,
nor has the Plaintiff had her “day in court.” Plaintiff
should be allowed her appeal, particularly in light of the
fact that the Defendant has not been prejudiced.

WHEREFORE, PREMISES CONSIDERED, Appel-
lant hereby requests that her appeal be reinstated, that
the records be forwarded to Appellant’s counsel for the
completion of the brief, and that the time be set by the
Court for the filing of said brief.

Respectfully submitted,
LAW OFFICE OF DONALD W. HILL

/s/ Donald W. Hill
DONALD W. HILL
Texas Bar Card No. 09628400
400 South Zang
Suite 600 .
Dallas, Texas 75208
(214) 941-6846 (Telephone)
(214) 941-1399 (Facsimile)

ATTORNEY FOR
PLAINTIFF-APPELLANT

App. 16

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the
foregoing document was served upon counsel for Appel-
lee, Ms. Carol Darling, 1445 Ross Avenue, Suite 3200,
Dallas, Texas 75201, via certified mail on this 25th day of
June, 1999.

/s/ Donald W. Hill
DONALD W. HILL

App. 17

PLAINTIFF’S EXHIBIT D

UPS (date (metered
METRO DALLAS stamped) postage mark)
10155 MONROE DR DALLAS, TX

DALLAS TX 75229 JUN 13 1999

Dear Customer:

On 7/12/99, we received a package(s) for you from
Shipper Name Control # COD Account
US COURT OF APPEALS = 7522-P712-8231

We are unable to complete delivery because:
COMPANY OR PERSON UNKNOWN, NOT DELIVERED

Please telephone us at 1-800-877-1502
7:30 AM to 9:00 PM Monday through Friday
to provide delivery instructions.

If we do not hear from you by 7/19/99,
we must return the package(s) to the sender.

Thank you.

To:

WHITE, HILL, SIMS & WIGGINS
C/O MR. DONALD WAYNE HILL
ROOM 3470

1999 BRYAN ST.

DALLAS TX 75201

REC’D JUL 14 1999

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0531%3A1. Public record. Not legal advice.