Opinion
No. 05-18-00868-CV
03-04-2019
Brigetta D'Olivio Defendant-Appellant v. Greg Fox and Laura Fox, Plaintiffs-Appellees
On Appeal from the 191st Judicial District Court Dallas County, Texas
Tr. Ct. No. DC-16-05606
APPELLANT'S 3rd AMENDED MOTION TO EXTEND TIME TO FILE APPELLANT'S AMENDED BRIEF
TO THE FIFTH COURT OF APPEALS:
The undersigned, Brigetta D'Olivio, Appellant, files this Third Amended Motion To Extend Time To File Appellant's Amended Brief and would show the Court as follows: 1. Appellant has not been served "Appellees' Objection To Motion For Extension of Time", dated Feb. 27, 2019, nor has she been served "Appellees' Amended Objection To Motion For Extension of Time", dated March 1, 2019. 2. In both of his Certificates of Service for each of said the above-referenced objections, Appellees'attorney, David M. Kleiman, (Kleiman) states, in part, "I hereby certify that a true and correct copy of this document has been served upon Appellant Brigetta D'Olivio via the Court's eFiling service at beautifulhomesbybrigetta@gmail .com , on this ...". 3. Said statement in each of said certificates of service by Kleiman is false. 4. Appellant has never registered, nor has she ever given anyone, nor any entity, the permission to register her as an e-filer on any EFSP, including Texasonline.gov. Appellant does not have an e-File account with any EFSP. 5. Appellant has never waived her right to be served. Simply filing said above-referenced "Appellees Objection to Motion For Extension of Time", dated Feb. 27, 2019 and "Appellees' Amended Objection to Motion For Extension of Time", dated March 1, 2019 does not constitute service. 6. Where Appellant has never registered as an e-filer and where there is no account of Appellant with any EFSP, there can be no such service to Appellant via "e-File". Nor has Appellant has been served Appellees' above referenced filings via email, certified, first class or regular mail.
INTRODUCTION
7. That pursuant to Rule 34.2 of the Texas Rules of Appellate Procedure, there is no written stipulation filed with the trial court (191st District Court) wherein only certain records would be filed with the Court of Appeals in the event of an appeal for the underlying cause number, (DC-16-05606). 8. That, on the contrary, in Appellant's Request For Clerk's Record, dated and filed July 30, 2018, it specifically states, in part, "... All additional items required to be included in the Clerk's record according to Rule 34 .5 of the Texas Rules of Appellate Procedure". 9. There are thirty-eight (38) records that have been previously requested to be sent up to the Court of Appeals, which have not yet been sent up. 10. There are at least six (6) records that had been previously filed with the Court Clerk for the 191st District Court, which are now missing and/or removed from the Court Portal without a Court Order. 11. There are errors and alterations in the Reporter's Record and the Clerk's Record for which Appellant has requested corrections and of which Appellant has requested relative information. Appellant has made numerous and various requests for corrections, clarifications and inquiries, without any substantive response. 12. There are missing invoices, improper invoices and invoices not sent to Appellant as it relates to the above-referenced thirty-eight (38) records, which correspond to five (5) supplemental clerk's records requests, dating as far back as December 31, 2018. 13. One (1) of said five (5) supplemental clerk's records requests was filed under an unrelated cause number. This is despite the fact that said supplemental clerk's records request specifically identified the correct cause number (DC-16-05606). Another supplement request was not filed on the portal despite having been filed, and despite having a file stamp. That said supplemental request was filed only after Appellant asked why it wasn't filed. 14. Although Appellant has communicated directly with District Court Clerk, Felicia Pitre, regarding the above-referenced issues so that Appellant can pay, and so that the supplemental clerk's records can be sent up to the Court of Appeals, Ms. Pitre has been unresponsive to Appellant's requests for clarifications, corrections and invoices that relate to each outstanding supplemental clerk records requests. 15. Since Ms. Pitre failed to cooperate with Appellant's requests for clarification, corrections and correct invoices, Appellant filed correspondence with the Court Clerk of the 191st District Court on February 25, 2019. Since filing said correspondence, references to Appellant's supplemental requests for clerk's records on the court portal have changed. 16. Appellant's Amended Brief is due on March 7, 2019. 17. For all of the above-referenced facts, which are addressed in detail below, Appellant is requesting an extension to file her Amended Brief so that the complete and correct requested records relevant to the underlying appeal have been sent up to the Court of Appeals, and so that Appellant will have the opportunity to review and cite said records prior to filing her Amended Brief. 18. That Appellant files this within motion not for purposes of delay, but in the interest of justice. 19. This is Appellant Pro Se's 2nd request for extension to file her Amended Brief. Appellant is requesting an extension to file her Amended Brief on March 28, 2019, provided said pleadings/records have been sent to the Court of Appeals. Appellant's extension contemplates avoidance of substantial and irreparable prejudice and damage to Appellant.
APPELLANT'S REQUEST FOR CLERK'S RECORD
JULY 30 , 2018
20. On July 30, 2018, Appellant's then attorney Timothy Hootman, (Hootman), filed a "Request For Clerk's Record" with District Clerk, wherein fifteen (15) records were requested, (Exhibit 1, Request For Clerk's Record, dated July 30, 2018). 21. According to the docket sheet for cause no: DC-16-05606, dated Feb. 22, 2019, there is a notation that on August 1, 2018, the records for said July 30, 2018 clerk's records request were being prepared, (Exhibit 2, Docket Sheet, dated Feb. 22, 2019, p. 11). 22. On August 25, 2018, Index for Volume 1 of 1, dated August 1, 2018 was filed with the Court of Appeals. In said Index, Felcia Pitre lists the records requested by Hootman on July 30, 2018. In said listing, there is a pleading entitled, "Plaintiffs' Proposed Findings of Fact and Conclusions of Law", which was not part of Appellant's Request For Clerk's Record, dated July 30, 2018, (See Exhibit 1, Request For Clerk's Record, dated July 30, 2018). 23. On August 8, 2018, a "Clerk's Record Payment Notice" (invoice) of $907.00 was filed for said July 30, 2018 request. Next to the notation on the Docket Sheet for said date, it states, "Clerk's Record Payment Notice". It further stated, "Emailed Atty $907.00", (Exhibit 2, Docket Sheet, dated Feb. 22, 2019, p. 11). 24. Approximately five (5) weeks later, on September 11, 2018, The Court of Appeals (COA) sent a letter to Hootman asking Hootman to verify payment of said Invoice for said July 30, 2018 Clerk's Record Request. In his response to the COA, Hootman stated that he had sent a check in the amount of $907.00 for said invoice to the Dallas County District Clerk's office on September 10, 2018. 25. On September 14, 2018, Hootman emailed Appellant, wherein he stated, "The district clerk accidentally sent the $907.00 bill for the clerk's record to the wrong attorney...", (Exhibit 3, Letter, dated September 11, 2018 and Email, dated September 14, 2018). 26. Prior to said email, dated September 14, 2018, Appellant had not been made aware that the bill for said clerk's record request, dated July 30, 2018, was not received by Hootman or that it was "accidentally" sent to the wrong attorney. 27. After receiving said email from Hootman, Appellant deposited an additional $3,145.00 into Hootman's bank account, which she confirmed via text message to Hootman. 28. In said text message, she informed Hootman that $907.00 of said $3,145.00 was to be used to pay said invoice, (Exhibit 4, Invoice, dated August 8, 201, Text Message of deposit and copy Deposit Slip for $3,145.00). 29. At the time that Appellant paid said invoice of $907.00 for said July 30, 2018 "Request For Clerk's Record", she had not yet become aware that said unsigned pleading, entitled, "Plaintiffs' Proposed Findings of Fact and Conclusions of Law", was included in the cost of said invoice. 30. Said pleading, however was not part of Appellant's "Request For Clerk's Record", dated July 30, 2018, (Exhibit 1, Request For Clerk's Record, dated July 30, 2018).
On the same date, August 25, 2018, Appellees' Supplemental Request For Clerk's Record, dated August 24, 2018, was also filed at the Court of Appeals. There is no indication on the record that Appellees filed any request for Clerk's Record prior to August 24, 2018.
Appellant had become aware that said pleading, "Plaintiff's Proposed Findings of Facts and Conclusions of Law" only after the Clerk for the Court of Appeals provided her with a CD of the pleadings sent up to the Court of Appeals.
APPELLANT'S REQUEST FOR SUPPLEMENTAL CLERK'S RECORD
DECEMBER 31 , 2018
31. On December 30, 2018, Appellant sent an email to Hootman, wherein she stated, in part, "Attached is a list of documents/records that absolutely must be sent up to the Appellate Court...Also I still have not received a copy of the remaining files that went up to the Appellate Court that you stated you had received...", (Exhibit 5, Email, dated December 30, 2018 @6:10pm with List of Documents ). 32. The list attached to said email included thirty-four pleadings, records etc, which were in addition to numerous other pleadings/ records that Appellant had previously requested Hootman to have sent to the Court of Appeals. 33. At 12:00am on December 31, 2018, Hootman filed "Appellant's Request For Supplemental Clerk's Record", wherein he listed twenty-seven (27) pleadings, records, etc requested, (Exhibit 6, "Appellant's Request for Supplemental Clerk's Records"). 34. On the Feb, 22, 2019 Court Portal, for the date for Dec. 31, 2018, under the comment section, it refers to Appellant's Request For Supplemental Clerk's Record as "Supplemental Clerk's Record Request", (Exhibit 7, Court Portal, dated February 20, 2019). 35. On the same court portal, (Feb. 20, 2019) for the date, Jan. 4, 2019, under the comment section it states, "Preparing Supplemental Record 05018-00868", (Exhibit 7, Court Portal, dated February 20, 2019). 36. After Appellant had filed said correspondence to Felicia Pitre with the Court Clerk in the 191st District Court on February 25, 2019, after having not received responses to her inquiries and requests for invoice clarification and corrections, the references to said Dec. 31, 2018 "Appellant's Request For Supplemental Clerk's Record" (within exhibit 6), changed on the court portal. 37. On the February 28, 2019 and the March 1, 2019 court portal under the comment section for the date, Dec. 31, 2018, it refers to Appellant's Request For Supplemental Clerk's Record as "#2 Supplemental Clerk's Record Request", (Exhibit 8, Court Portal, dated February 28, 2019, p. 28 and Exhibit 9, Court Portal, dated March 1, 2019). 38. Said Dec. 31, 2018 was Appellant's first Request For Supplemental Clerk's Record, while Hootman was still her attorney. Note that on the Docket Sheet, dated February 22, 2019, there is no number attached to Appellant's Request For Supplemental Clerk's Record, (See Exhibit 2, Docket Sheet, dated February 22, 2019, p. 13). 39. On the same court portal, (Feb. 28, 2019) for the date, Jan. 4, 2019, under the comment section it does not reference a numbered supplemental request for Appellant's Dec. 31, 2018 request for supplemental clerk's record. Instead, it states, "Preparing Supplemental Record 05018-00868", which is the same as Docket Sheet, dated February 22, 2019, and the court portal, dated March 1, 2019, (Exhibit 9, Court Portal, dated March, 1, 2019, p. 28; See also Exhibit 8, Court Portal, dated February 28, 2019, p. 28 and Exhibit 2, Docket Sheet, dated Feb. 22, 2019, p. 13). 40. For the date January 17, 2019, on said court portal (Feb. 28, 2019), under the heading, "Clerk's Record Payment Invoice", it states, "#2 Supplemental Clerk's Record", (Exhibit 8, Court Portal, dated February 28, 2019, p. 28). 41. On the court portal, dated February 20, 2019, for the same date, January 17, 2019, under the heading "Clerk's Record Payment Invoice", it does not refer to any record requests, (Exhibit 7, Court Portal, dated February 20, 2019). 42. On the Docket Sheet, dated February 22, 2019, for the date January 17, 2019, it states, "Clerk's Record Payment Invoice 2019; Party: Defendant D'Olivio, Brigetta". There is no reference to a "#2 Supplemental Clerk's Record" as there is on the Feb 28, 2019 and March 1, 2019 court portals for the same date, (Exhibit 2, Docket Sheet, dated Feb. 22, 2019; Exhibit 8, Court Portal, dated Feb. 28, 2019 and Exhibit 9, Court Portal, dated March 1, 2019). 43. After having received a copy of "Appellant's Request For Supplemental Clerk's Record" that Hootman had filed on Dec. 31, 2018, it became apparent to Appellant that Hootman had made errors in the dates of the records he had requested. This is despite the fact that the list Appellant had sent to him on Dec. 30, 2018 had the correct filing dates for each of the pleadings/documents to be requested, (See Exhibit 5, Email, dated December 30, 2018 @6:10pm with List of Documents , p. 4; and Exhibit 6, "Appellant Request For Supplemental Clerk's Record", dated December 31, 2018). 44. On January 10, 2019, Appellant sent Hootman an email wherein she requested that he correct the incorrect dates he attributed to the pleadings/records that he had requested in said supplemental request of Dec. 31, 2018. She requested that he make the corrections no later Jan. 11, 2019, (Exhibit 10, Email, dated Jan. 10, 2019). Hootman did not inform Appellant that he did not make such corrections. 45. On Jan. 15, 2019, the Court of Appeals filed an Order officially discharging Hootman. From said date, Appellant has been pro se.
Said list of pleadings/records was reduced to writing and attached to said email to Hootman since he had failed to request said pleadings/records upon Appellant's previous multiple requests (verbal and in emails) to do so.
After having filed Appellant's Supplemental Request For Clerk's Record on Dec. 31, 2018 at 12:00am, Hootman filed his Motion To Withdraw as Attorney on Appellant's other appeal, 05-18-01126-CV (Hermus case) on Jan. 2, 2019.
Attorney Timothy Hootman continued to be Appellant's attorney until he was discharged by the Court of Appeals on January 15, 2019. He had filed a Motion To Withdraw from this underlying appeal on January 7, 2019.
APPELLANT'S REQUEST FOR SUPPLEMENTAL CLERK'S RECORD
JANUARY 16 , 2019
46. Since there was nothing on the record to indicate that Hootman had filed the corrected supplemental records request, Appellant Pro Se filed "Appellant's Request For Supplemental Clerk's Record on January 16, 2019". Said request would be the 2nd supplemental records request. Said request included the two (2) documents that Appellant had requested Hootman to correct in said email, dated Jan. 10, 2019, but which he failed to do, (Exhibit 11, "Appellant's Request For Supplemental Clerk's Record", filed Jan. 16, 2019). 47. On the Docket Sheet, dated February 22, 2019, for the date Jan. 16, 2019, under the heading "Supplemental Clerk Records Request", it states, "Party: Defendant D'Olivio, Brigetta", (Exhibit 2, dated February 22, 2019, p. 13). 48. On the Court Portal, dated February 20, 2019, for the dated January 16, 2019, under the heading, "Supplemental Clerk Records Request", it states, "Supplemental Clerk's Record Request", without any reference to which number request it is, (Exhibit 7, Court Portal, dated February 20, 2019). 49. On the court portals, dated February 28, 2019 and March 1, 2019, for the date, January 16, 2019, under the heading, "Supplemental Clerk Records Request", it states, "#3 Supplemental Clerk's Record Request", (Exhibit 8 and 9, Court Portal, dated February 28, 2019, and March 1, 2019). 50. Nowhere in the Docketsheet, dated Feb. 22, 2019, nor in the court portals dated, Feb. 20, 2019; Feb. 28, 2019 and March 1, 2019, does it state that Appellant's Jan. 16, 2019 supplemental records request is being prepared. 51. On the Docket Sheet, dated February 22, 2019 and on the court portals, dated February 20, 2019, February 28, 2019 and March 1, 2019, for the date, January 16, 2019, which was the same date that Appellant filed said January 16, 2019 Request For Supplemental Clerk's Record, they all state, "Note from the Clerks: Bill Pro Se for this Supplement. Verified atty T. Hootman withdrew from appeal case. Order signed in the 5th Court of Appeals, 1/15/19", (Refer to Exhibit 2, Docket Sheet, dated February, 22, 2019, p. 13). 52. On the same Docket Sheet for the following day, Jan. 17, 2019, it states, "Clerk''s Record Payment Notice" Party: Defendant D'Olivio", (Exhibit 2, Docket Sheet, dated February 22, 2019). 53. On the court portal, dated February 20, 2019, for the same date, January 17, 2019, under the heading, "Clerk's Record Payment Invoice", there is no reference to any supplemental clerk's record request, (Exhibit 7, Court Portal, dated February 20, 2019). 54. On the court portals, dated February 28, 2019 and March 1, 2019, for the same date, January 17, 2019, under the heading, "Clerk's Record Payment Invoice", they both state, "#2 Supplemental Clerk's Record". This is despite the fact that Appellant's January 16, 2019 Request For Supplemental Records is the same date as the January 16, 2019 reference to "... Bill Pro Se for this Supplement. Verified atty T. Hootman withdrew from appeal case. Order signed in the 5th Court of Appeals, 1/15/19 ...", and is, in fact, the first supplemental clerk's record request that Appellant filed as "Pro Se" after Hootman was discharged on January 15, 2019, (Exhibits 8 and 9, Court Portals, dated February 28, 2019 and March 1, 2019). 55. Moreover, where the court portals, dated Feb. 28, 2019 and March 1, 2019, suddenly refer to Appellant's December 31, 2018 Request For Supplemental Clerk's Record as "#2", then said reference to "#2 Supplemental Clerk's Record" for the date January 17, 2019, is eighteen (18) days after said Dec. 31, 2018 supplemental clerk's record request was filed, and thirteen (13) days after, the January 4, 2019 notation in the Docket Sheet, dated Feb. 22, 2019 and in the court portals, dated Feb. 20, 2019, Feb. 28, 2019 and March 1, 2019, state "preparing supplemental record", (See Exhibit 6, Appellant's Supplemental Request For Clerk's Record", dated December 31, 2018).
APPELLANT'S REQUEST FOR SUPPLEMENTAL CLERK'S RECORD
FEBRUARY 12 , 2019
56. On Feb. 12, 2019, Appellant filed "Appellant's Request For Supplemental Clerk's Record". Like the January 16, 2019, supplemental clerk's record request, Appellant's February 12, 2019, request for supplemental clerk's record also contained only two (2) documents, (Exhibit 12, "Appellant's Request For Supplemental Clerk's Record"). 57. On the Docket Sheet, dated February 22, 2019, for the date February 12, 2019, it states, "Supplemental Clerk's Record Request, Party: Defendant D'Olivio, Brigetta", (Exhibit 2, Docket Sheet, dated February 22, 2019, p. 13). 58. On the court portal, dated February 20, 2019, for the date, February 12, 2019, under the heading, "Supplemental Clerk's Record Request", it states, "Supplemental Clerk Record's Request", (Exhibit 7, Court Portal, dated February 20, 2019). 59. On the court portal, dated February 28, 2019 and March 1, 2019, for the date, February 12, 2019, under the heading, "Supplemental Clerk's Record Request", it states, "#4 Supplemental Clerk's Record Request", (Exhibits 8 and 9, Court Portals, dated February 28, 2019 and March 1, 2019, p. 29 and p. 28 respectively). 60. On the court portals, dated February 20, 2019, February 28, 2019 and March 1, 2019, for the date February 18, 2019, they all state, "Preparing Supplemental Clerk's Record #2 05-18-00868", (Exhibits 7, 8, 9, Court Portals, dated Feb. 20, 2019; Feb, 28, 2019 and March 1, 2019) . 61. Where Appellant's December 31, 2018 Request For Supplemental Clerk's Record is noted on all the court portal dates herein as being prepared on January 4, 2019, and where said Dec. 31, 2018 supplemental request for clerk's record is not marked as "#2" on the court portal, dated February 20, 2019, and nor on the Docket Sheet, dated, February 22, 2019, but is marked as "#2" on the court portals for Feb. 28, 2019 and March 1, 2019, then where, under the heading, "Supplemental Clerk's Record Request", for the date, February 18, 2019, it states, "preparing supplemental clerk's record #2", is not only conflicting, but it is forty-eight (48) days after said Dec. 31, 2018 supplemental clerk's record request was filed, (See Exhibit 7, Court Portal, dated February 20, 2019 and Court Portal, dated February 28, 2019, p. 29). 62. On the Court Portal, dated February 20, 2019, for the date February 18, 2019, under the heading, "Clerk's record Payment Invoice", there is no reference to any supplemental requests for clerk's record, (Exhibit 7, Court Portal, dated February 20, 2019). 63. On the court portals, for the dates February 28, 2019 and March 1, 2019, under the heading "Clerk's record Payment Invoice", they both state, "#3 supplemental clerk's record", (Exhibits 8 and 9, Court Portals, dated February 28, 2019 and March 1, 2019, p. 29) 64. On the court portal, dated February 20, 2019 for the date February 19, 2019, it states, "Supplemental Clerk's Record Request", yet Appellant did not file a supplemental clerk's records request on February 19, 2019, (Exhibit 7, Court Portal, dated February 20, 2019). 65. On the court portals for the dates, February 28, 2019 and March 1, 2019, for the date February 19, 2019, there are no references to any supplemental, whatsoever, (Exhibit 8 and 9, Court Portals, dated February 28, 2019 and March 1, 2019, p. 30). 66. On February 19, 2019, Appellant paid said invoice, dated Feb. 18, 2019 for her Feb. 12, 2019 supplemental request, (Exhibit 13, Invoice, dated Feb. 18, 2019 and Receipt for payment, dated, Feb. 19, 2019) . 67. Said February 18, 2019 invoice was not sent to Appellant. She had noticed it on the Court Portal, and since her February 12, 2019 Request For Supplemental Clerk's Record, was the second supplemental request for clerk's record that Appellant had filed as Pro Se, she believed said invoice was related to said 2nd supplemental request of February 12, 2019. At this time, Appellant was not aware that the December 31, 2018 Request For Supplemental Clerk's Record had not yet been sent up to the Court of Appeals.
APPELLANT'S FEBRUARY 12, 2019 REQUEST FOR SUPPLEMENTAL
CLERK'S RECORD FILED UNDER INCORRECT CAUSE NUMBER
68. On the same date, Feb. 12, 2019, that Appellant filed her Request For Supplemental Clerk's Record, she also filed correspondence with the Court since she had not yet received an invoice from the Court Clerk for her Jan. 16, 2019 supplemental records request , and since it was notated on the docket that the clerks were to "Bill Pro Se", (Exhibit 14, Correspondence, dated Feb. 12, 2019). 69. After having checked the court portal for cause number DC-16-05606 on the evening of Feb. 12, 2019, it became apparent to Appellant that the two (2) documents she had filed with the Court Clerk for the 191st District Court earlier in the day on Feb. 12, 2019 (Appellant's Request For Supplemental Clerk's Record and Correspondence to the Court) were not filed under said cause number (DC-16-05606), despite the fact that said documents specifically referenced said cause number (DC-16-05606). 70. Instead they were improperly filed under cause number, (DC-18-18015), which is also with the 191st District Court. Said cause number (DC-18-18015) is a new lawsuit filed by Appellees on Nov. 30, 2018 against Appellant and her daughters. Said new lawsuit is also frivolous. Appellant's Feb. 12, 2019 "Request For Supplemental Clerk's Record" and said Correspondence to the Court, dated February 12, 2019 are not related to DC-18-18015. 69. As a result of the improper filing of the Appellant's Supplemental Clerk's Record and Correspondence to the Court, on the following day, Feb. 13, 2019, Appellant filed a letter with the 191st District Court for cause number (DC-16-05606) regarding said improper filing, (Exhibit 15, Correspondence to the Court, dated Feb. 13, 2019 @3:33pm and Court Portal for cause number DC-18-18015, dated Feb. 25, 2019). 70. On the same date, Appellant sent a letter to the Court of Appeals, wherein she addressed, among other issues, the improper filing of said above-referenced documents, (Exhibit 15, Correspondence to the Court of Appeals, dated Feb. 13, 2019).
INVOICE DATED FEBRUARY 13 , 2019
71. On the same date, Feb. 13, 2019, at 3:30am, Appellant sent an email to District Court Clerk, Felicia Pitre, wherein she stated, "I have an invoice dated February 13, 2019 for the amount of $1,018.00. What is this amount for? What Appellant Request and/or Supplemental Request For Clerk's Record is this for? Please provide the file stamp date and time this request was made and by whom. I will be in to pay this receipt on February 13, 2019" . 72. Since Appellant had not heard from Ms. Pitre, she sent another email to her on the same date, Feb. 13, 2019 at 1:25pm, wherein she stated, in part, "I am waiting for a response regarding the following: 1. Invoice, dated February 13, 2019...The Invoice question I posed to you, must be answered. I am waiting to make a payment should a payment be due". 73. On the same date, at 5:11pm, Ms. Pitre responded via email to Appellant's email, wherein she stated, "Listed is a summary of actions regarding monies owed for the Clerk's Record". In said email, Ms. Pitre included a list of "summary of actions" which included the Jan. 17, 2019. For said date, Jan. 17, 2019, it states, "Invoiced attorney $1018.00". 74. That in said summary of actions, there is no notation for any invoice dated Feb. 13, 2019. Moreover, for the date of January 16, 2019 on the docket sheet, dated February 22, 2019 and the court portals herein, dated February 20, 2019, February 28, 2019 and March 1, 2019, the clerk's notes specifically reference that Hootman had been discharged on Jan. 15, 2019 and it further stated therefore, to "Bill Pro Se", (Exhibit 16, Invoice, dated Feb. 13, 2019 and Emails, dated Feb. 13, 2019). 75. That nowhere on any of the court portals nor on the docket sheet is there any reference for any invoice with a date of February 13, 2019, (Exhibit 2, Docket Sheet, dated February 22, 2019; and Exhibit 7, 8, 9, Court Portals, dated February 20, 2019, February 28, 2019 and March 1, 2019). 76. On Feb. 14, 2019 Appellant sent another email to Ms. Pitre, wherein she stated, "Is the invoice, dated Feb. 13, 2019 the same as the listing stating, "1/17/2019 Invoice attorney $1018.00". If so, why was an attorney who was discharged sent any information regarding my case since, according to the information on the portal listed as 1/16/2019 states, in part, "Bill Pro Se"? What else, if anything, has been sent to discharged attorney Hootman since COA Order, dated 1/15/2019...", (Exhibit 17, Email, dated Feb. 14, 2019) . 77. District Court Clerk, Felicia Pitre, has since failed to respond to Appellant's requests regarding said Invoice, dated Feb. 13, 2019. 78. On Feb. 21, 2019, Appellant sent two (2) emails to District Court Clerk, Felicia Pitre. In the first email, Appellant states, in part, wherein she stated in part, "Initially on February 13, 2019, I emailed you regarding... also an Invoice, dated February 13, 2019. Your response did not answer my questions regarding the February 13, 2019 Invoice. Instead you sent me a "summary of actions" regarding monies owed for the Clerk's record. I responded to your email response with additional questions regarding the February 13, 2019 Invoice which is not listed in your summary of actions. I have not received an email or certified letter, or otherwise from you responding to my questions regarding my response email with additional questions posed for the purpose of clarification..." 79. In the 2nd email to Ms. Pitre on the same date, Appellant states, in part, "Please confirm exactly what Invoices have been paid for by discharged attorney Hootman in reference to Cause No . DC-16-05606 . I have paid Mr. Hootman over $20,000.00 which also included the cost of preparation of Clerk's records. Please forward any and all receipts of payment and to which request each payment was associated with. Please also include which documents (records) were actually included in the cost associated with each Invoice, and which documents (records) were, in fact, prepared and sent to the Court of Appeals", (Exhibit 18, Email, dated Feb. 21, 2019). 80. Ms.Pitre has failed to respond to these emails, as well. 81. On Feb. 23, 2019, Appellant sent another email to Ms. Pitre, wherein she stated, in part, "Your immediate response to the questions regarding an alleged "outstanding balance" allegedly owed by Appellant D'Olivio, as indicated via email and correspondence filed with the Court of Appeals and 191st District Court, and brought to your attention on multiple occasions and was also brought to the attention of District Clerk, Angela Conejo on Feb. 19,2019 is required...", (Exhibit 19, Email, dated Feb. 23, 2019). 82. Ms. Pitre has failed to respond to this email, as well. 83. The only invoices Appellant has received up to the date of said Feb. 23, 2019 email was the Feb. 13, 2019 Invoice, for which Ms. Pitre has failed to clarify and which is not listed docket sheet, nor on the "summary of action" list she had sent to Appellant on Feb. 13, 2019. The other Invoice, dated Feb. 18, 2019, Appellant has paid. 84. On Feb. 25, 2019, @12:15pm, Appellant filed a correspondence to Ms. Pitre. Said correspondence was in reference to obtaining clarification to said Feb. 13, 2019 Invoice, Appellant's outstanding requests for copies of invoices Appellant has never received for an alleged "outstanding balance" of $1,423.00. In said correspondence, Appellant states, in part, "...Should Appellant D'Olivio have any "outstanding balance", she is prepared to pay what is owed, if any...", (Exhibit 20, Correspondence to Ms. Pitre, filed Feb. 25, 2019). 85. Prior to having filed said correspondence and on the same date, Feb. 25, 2019, Appellant met with Angela Conejo, wherein she inquired as to why she hadn't received any email from Ms. Conjeo nor Deputy District Clerk "Shiela" after she had met with them on Feb. 19, 2019 regarding the same issues that Appellant had been discussing with Ms. Pitre. 86. During the meeting on Feb. 19, 2019, Ms. Conejo confirmed that the Clerks had made a mistake in not sending Appellant any invoice and that Shiela would email Appellant on the same day (Feb. 19, 2019) clarifying these issues. 87. Ms. Conejo initially claimed that an email was sent to Appellant. When Appellant informed Ms. Conejo that, in fact, no email was sent to her, and that it has been almost two (2) weeks since Appellant first contacted Ms. Pitre regarding clarifications and corrections, Ms. Conejo called another clerk by the name of "Denise". 88. Ms. Denise stated to Appellant that she and Shiela Bradley were working on Appellant's request for clarification and correction, but that Ms. Bradley was out for the day. 89. When Appellant informed Ms. Conejo that she had correspondence addressed to District Court Clerk, Felicia Pitre, and that said correspondence was related to the same issues, and request for invoices, Appellant was informed that any correspondence directed to Ms. Pitre would have to be filed with the 191st Court Clerk office.
INVOICE DATED FEBRUARY 25 , 2019
90. Despite claiming that Ms. Bradley and Denise were "working" on the clarifications and corrections to be emailed to Appellant, at 12:49pm, Document Lead Clerk, Gay Lane, sent a "test" email to Appellant. There would be no reason to send a "test" email to Appellant since Ms. Pitra, Ms. Conejo and the District Court have Appellant's email address. . 91. The fact that Ms. Lane sent a "test" email to Appellant's email address further proves, however, that not one single invoice from said December 31, 2018, January 16, 2019 and February 12, 2019 Supplemental Requests For Clerk's Records were sent to Appellant. This is further despite the fact that on January 16, 2019, all of the court portals herein, (Feb. 20, 2019; Feb. 28, 2019 and March 1, 2019) stated to "Bill Pro Se", commencing January 16, 2019, (Exhibit 21, Email, dated February 25, 2019). 92. Immediately following her "test" email to Appellant, at 12:52pm on the same date, February 25, 2019, Ms. Lane emailed Appellant sent another email to Appellant. Attached to said email was an Invoice, dated Feb. 25, 2019 in the amount of $1018.00, (Exhibit 22, Email with attached Invoice, both Feb. 25, 2019). 93. On the Court Portals , dated February 28, 2019 and March 1, 2019, for the date, February 25, 2019, under the heading, "Clerk's Record Payment Invoice", it states, "Duplicate Invoice For Supp #2 CR Sent To Pro Se", (Exhibits 8 and 9, Court Portals, dated February 28, 2019 and March 1, 2019, p. 30). 94. That said February 25, 2019 Invoice, which Ms. Lane emailed to Appellant on February 25, 2019 is a copy of the February 13, 2019 Invoice that was never listed, nor referenced anywhere on the Court Portals. The only difference is, said February 25, 2019 Invoice had the "#2" on it, yet any reference to #2 did not occur until February 28, 2019 - three days later. 95. Moreover, Appellant paid what was the 2nd Invoice on February 19, 2019. Said Invoice, which was $32.00 was for Appellant's February 12, 2019 Request For Supplemental Clerk's Record, (See Exhibit 12, Request For Supplemental Clerk's Record, dated February 12, 2019). 96. If the District Court Clerks are now claiming that the February 25, 2019 Invoice was for the December 31, 2018 Request For Supplemental Clerk's Record, since said Dec. 31, 2018 supplemental request was marked as "#2" after Appellant filed her correspondence to Ms. Pitre on February 25, 2018, then said Invoice was sent to Appellant fifty-five (55) days after said supplemental request was filed on December 31, 2018, (Exhibit 7, Court Portal, dated February 20, 2019 and Exhibit 8, Court Portal, dated February 28, 2019). 97. Absent from Ms. Lane's email, dated February 25, 2019, however, is any clarification on the Feb. 13, 2019 Invoice and the alleged "outstanding balance" of $1,423.00. Further absent from said email are any answers to the other outstanding questions as to what records were actually sent up to the Court of Appeals; what did the invoice, which was sent to Hootman on January 17, 2019 pertain to and whether, or not, he has paid said invoice. 98. Although Appellant filed said Feb. 25, 2019 correspondence to District Court Clerk, Felicia Pitre @ 12:15pm and said email, dated Feb. 25, 2019, with said attached invoice, was sent at 12:52pm, as of the evening of Feb. 25, 2019, the only document listed on the court portal for Feb. 25, 2019 was said invoice. Appellant's correspondence, dated and filed February 25, 2019 were not list despite being filed before said email and invoice, dated February 25, 2019, (Exhibit 23, court portal print-out, dated Feb. 25, 2019). 100. On February 28, 2019, Appellant sent a certified letter to Ms.Lane in reference to said February 25, 2019 Invoice and in regards to the multiple attempts by Appellant to have the District Clerks, including Felicia Pitre, clarify and correct the records and invoice(s). The certified number for said letter was: 70181830000038975712, (Exhibit 32, Letter, dated February 28, 2019).
APPELLANT'S REQUESTS FOR SUPPLEMENTAL CLERK'S RECORD
FEBRUARY 26 , 2019 and FEBRUARY 27, 2019
101. On February 26, 2019, Appellant filed a Supplemental Request For Clerk's Record. Said request contained seven (7) records, (Exhibit 24, Appellant's Supplemental Request For Clerk's Record, dated February 26, 2019). 102. At 10:57am, on February 27, 2019, Appellant filed a Supplemental Request For Clerk's Record, (Exhibit 25, Appellant's Supplemental Request For Clerk's Record, dated February 27, 2019 @10:57am). 103. At the time that Appellant filed said Feb. 27, 2019 supplemental request for clerk's record, Appellant noticed that the Supplemental Request For Clerk's Record that she had filed, the day before, February 26, 2019, was not listed on the Court Portal under cause number DC-16-05606. 104. When Appellant asked Ms. Canejo where said February 26, 2019 supplemental request was, Ms. Canejo stated that she did not know where it was. 105. Since Appellant's February 26, 2019 supplemental request for clerk's record was not listed on the Court Portal, despite the fact that it was filed and a had file stamp, Appellant took a picture of the Court Portal at 11:04am, which was seven (7) minutes after she filed her February 27, 2019 supplemental request for clerk's record. She did so in order to preserve the fact that said Feb. 26, 2019 supplemental request for clerk's record was not listed on the Court Portal. In said picture, there is the date February 25, 2019, then nothing for February 26, 2019, followed by February 27, 2019, which stated, "02/27/2019, Supplemental Clerk's Record", (Exhibit 26, Picture of Court Portal, dated February 27, 2019). 106. On the same date, February 27, 2019 @ 2:47pm, Appellant sent an email to Ms. Canejo, wherein she requested that her February 26, 2019 Supplemental Request For Clerk's Record be found and properly filed, (Exhibit 27, Email, dated February 27, 2019).
THIRTY-EIGHT (38) REQUESTED CLERK'S RECORDS
NOT SENT UP TO COURT OF APPEALS
107. There are thirty-eight (38) clerk records that have not been sent up to the Court of Appeals, despite having been requested as far back as December 31, 2018. 108. The following thirty-nine (39) pleadings, records etc, which have been previously requested have not yet been sent up to the Court of Appeals:
1. Defendant's Post Trial Brief, filed Nov. 29, 2017
2. Defendant's Motion To Exclude Expert Testimony And Report, filed Nov. 20, 2017.
3. Defendant's Amended Special Exception To Plaintiff's Petition, filed Nov. 20, 2017
4. Order Denying Defendant's Motion To Compel Arbitration, filed on or about Dec. 22, 2017.
5. Order Denying Defendant's Amended Special Exceptions, filed on or about Dec. 22, 2017
6. Defendant's Combined Motion To Strike Plaintiffs' Answer To Counterclaims as Untiimely and To Strike Plaintiffs' Motion To Strike Defendant's Amended Answer and Counterclaims, filed Nov. 20, 2017
7. Defendant's Motion To Compel Arbitration, filed Nov. 20, 2017
8. Defendant's Motion To Compel, Sanctions, Continuance, filed Nov. 9, 2017
9. Reporter's Certification of Deposition of Brigetta D'Olivio, filed Oct. 24, 2017
10.Plaintiffs' Response To Motion To Compel, filed Nov. 14, 2017
11.Plaintiffs' Designation of Expert Witness, filed July 28, 2017
12. Plaintiff's Designation of Expert Witness filed, Feb. 10, 2017
13. DWOP Notice, (hearing was scheduled for Aug. 11, 2016)
14. Non-Jury Pre-Trial Order, dated August 10, 2016
15. Deposition Transcript, August 11, 2017
16. Defendant's Amended Motion For Continuance, filed August 18, 2017
17. Defendant's Answer To Motion to Withdraw, filed August 11, 2017
18. Defendant's Correspondence to the Court, dated Aug. 24, 2017, filed Aug. 25, 2017
19. Defendant's Demand For Jury Trial, filed Nov. 13, 2017
20. Defendant's Amended Motion To Set Aside, filed September 7, 2017
21. Defendant's Motion To Quash, filed September 7, 2017
22. Attorney Clark's Mojion To Withdraw, filed August 18, 2017
23. Defendant's Motion For Continuance, filed August 16, 2017 @4:48pm
24. Order Granting Clark's Motion To Withdraw, dated August 21, 2017
25. Order Denying Defendant's Motion To Quash, dated September 22, 2017
26. Docket Sheet, dated Sept. 22, 2017 an filed Sept. 29, 2017
27. Defendant's Amended Response to Plaintiff's Motion For Sanctions, filed Oct. 4, 2017
28. Plaintiff's Motion For Sanctions, (filed on or about Sept. 29, 2017)
29. Defendant's Correspondence to the Court, filed Oct. 4, 2017
30. Defendant's Correspondence to the Court, filed Sept. 26, 2017
31. Defendant's Correspondence to the Court, filed Nov. 13, 2017
32. Atty Kleiman's Correspondence to the Court, filed Dec. 4, 2017
33. Atty Kleiman's Correspondence to the Court, filed Dec. 15, 2017
34. Atty Clark's Response to Defendant's Amended Motion To Set Aside and Motion To Quash, filed (on or about Nov. 16, 2017)
35. Notice of Past Due, filed on or about June 6, 2018
36. Atty Gjesvold's Motion To Withdraw, filed April 19, 2018
37. Order Granting Gjesvold's Motion To Withdraw, dated April 25, 2018
38. Atty Kleiman's Correspondence to Court, filed May 25, 2018
AT LEAST SIX (6) RECORDS PREVIOUSLY FILED WITH THE
COURT CLERKS FOR 191ST DISTRICT COURT ARE MISSING
109. There are pleadings that had been previously filed with Court Clerks in the 191st District Court for cause number DC-16-05606, and requested from, the District Clerks that are now missing from the Court portal; to wit:
A. Defendant's Answer to Motion To Withdraw, filed August 21, 2017
B. Defendant's Motion To Exclude Expert Testimony And Report, filed November 20, 2017
C. Notice of Past Due, filed on or about June 6, 2018,
D. DWOP Notice, which, according to the Court Portal, was mailed to all parties. A hearing for said DWOP was originally scheduled for August 11,
2016, but was then cancelled without any records indicating why it was canceled.
E. Order Denying Defendant's Amended Special Exceptions, filed on or about Dec. 22, 2017, (Exhibit 28, Text Msg, dated Dec. 22, 2017 from atty Gjesvold confirming that said Order was signed and filed).
F. Order Denying Defendant's Motion To Compel Arbitration, filed on or about Dec. 22, 2017, (Exhibit 28, Text Msg, dated Dec. 22, 2017 from atty Gjesvold confirming that said Order was signed and filed).
COURT REPORTER'S RECORD ALTERED AND INCOMPLETE
109. There are documents filed as evidence during the trial on Nov. 21 -22, 2017 that are missing and documents that have been fabricated since the trial that are included in Volume 10 of Reporter's Record. 110. Two certified letters regarding the hearing transcripts, the trial transcript and the original log, etc, were mailed to Court Reporter Firm, Wright Reporters LLC, (c/o Melba Wright), on February 13, 2019, (Certified Number: 70181830000038971851), (Exhibit 29, Letter, dated Feb. 13, 2019, Certified Mailing, dated Feb. 13, 2019). 111. Since Melba Wright has failed to respond to said certified letter, dated February 13, 2019, a second certified letter was sent to her on February 28, 2019. The certified number for said February 28, 2019 letter is: 70181830000038975705, (Exhibit 30, Letter, dated Feb. 28, 2019). 112. To date, there has not been any response from Wright Reporters LLC regarding the requests contained in said letter. 113. Appellant has paid the Wright Reporters LLC, c/o Melba Wright, in full, $3,737.00 for the Reporter's Record, (Exhibit 31, Receipt for Reporter's Record, dated August 20, 2019). 114. At the time that Appellant paid Melba Wright in full for said Reporter's record, Appellant was not aware that, in said total cost of $3,737.00, that there were two (2) transcripts, which Appellant has never ordered/requested. Those transcripts were for the hearing dates of April 25, 2018 and August 17, 2018.
FURTHER ERRORS IN MASTER INDEX OF REPORTER'S RECORD
115. In the Master Index for the Reporter's Record, there are multiple errors:
A. Vol. 5 of Reporter's Record For the Hearing Date Nov. 16, 2017, it states that said hearing was in reference to:
Motion For Jury Trial;
Motion For Sanctions
Motion For Reconsideration.
The Hearing on November 16 , 2017 was actually for :
Defendant's Motion To Compel, Sanctions and Continuance
Defendant's Amended Motion To Set Aside
Plaintiff's Motion To Deny Defendant's Demand For Jury trial
Date and Location of November 16 , 2017 Hearing
The transcript for Nov. 16, 2017 hearing lists the 192nd District Court and lists the date as Nov. 17, 2017 as the hearing date. Said hearing actually took place in the 191st District Court on Nov. 16 , 2017 . A letter was sent to Melba Wright asking for said transcript to be corrected. It was only partially corrected, (See also Exhibit 34, Letter, dated Feb. 13, 2019, Certified Mailing, dated Feb. 13, 2019
B. Vol. 3 of Reporter's Record For Hearing date of August 23, 2017, it states that hearing was in reference to:
Motion For Continuance116. That for all of the foregoing reasons, which are supported by documented evidence, and of which are of no fault of Appellant, Appellant requests that she be granted an extension of time to file her Amended Brief from March 7, 2019 to March 28, 2019 or until such time that all of the requested supplemental clerk's records be sent up to the Court of Appeals; all of the missing records, which are also part of the requested records, be located and sent up to the Court of Appeals; and all of the outstanding requests to the District Clerk and Melba Wright be fulfilled. That Appellant makes this request for an extension of time in good faith.
The Hearing date on August 23 , 2017 was actually for
Defendant's Amended Motion For Continuance
Atty Clark's Motion To Withdraw
WHEREFORE, Appellant prays that this Court grant, in its entirety, Appellant's 3rd Amended Motion To Extend Time To File Appellant's Amended Brief and for whatever further relief this Court deems just. Respectfully Submitted; /s/_________
Brigetta D'Olivio
Appellant Pro Se
3800 Pebblecreek Ct., # 120
Piano, TX 75023
214-733-7204 On Appeal from the 191st Judicial District Court Dallas County, Texas
Tr. Ct. No. DC-16-05606
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. I am the Appellant in the above-referenced case (No. 05-18-00868-CV). The facts stated in the foregoing "Appellant's 3rd Amended Motion To Extend Time To File Appellant's Amended Brief", and the facts set forth therein are within my personal knowledge and the same are true and correct. /s/_________
Brigetta D'Olivio
3800 Pebblecreek Ct. #120
Piano, TX 75023
214-733-7204 SUBSCRIBED and SWORN to before me, the undersigned, on this 4th day of March 2019, to certify which witness my hand and seal of office. /s/_________
NOTARY PUBLIC
In and for the State of Texas
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