Docstoc

APPELLANT FREIDA SIMMONS MOTION TO ACCEPT APPELLANTS BRIEF AND

Document Sample
APPELLANT FREIDA SIMMONS MOTION TO ACCEPT APPELLANTS BRIEF AND Powered By Docstoc
					                                   CAUSE NO. 05-lO-01063-CV

                                               IN THE

                                   FIFTH JUDICIAL DISTRICT

                                       COURT OF APPEALS

                                            AT DALLAS


                                        FREIDA SIMMONS,
                                           APPELLANT

                                                  vs.


                       TONI HOLLINGER AND GEORGE HOLLINGER,
                                    APPELLEES


             APPELLANT FREIDA SIMMONS’ MOTION TO ACCEPT
              APPELLANT’S BRIEF AND SUPPLEMENTAL BRIEF



TO THE JUSTICES OF THE COURT OF APPEALS:

        COMES NOW, Appellant Freida Simmons and moves this Court to accept and file her

Brief and Supplemental Brief in this cause. In support thereof, Appellant shows as follows:

        1.     Pursuant to the Texas Rules of Appellate Procedure, an appellant must file her

brief in an accelerated appeal within 20 days after the later of the date the clerk’s record was

filed or the date the reporter’s record was filed. See TEx. R. APP. P. 38.6(a).

       2.      On October 20, 2010, Ms. Sharon Miller, a paralegal for Appellant’s counsel,

called the Clerk’s office of the Fifth Judicial District Court of Appeals to determine the status of

filing of both the reporter’s and supplemental reporter’s record in this cause. See Exhibit A,

Affidavit of Sharon Miller, attached hereto. She was informed that both records had been filed



APPELLANT FREWA SIMMoNs’ MOTiON TO                                                               Ii
ACCEPT BRIEF AND SuPPLEMENTAl. BRIEF
 on that day and that Appellant’s time to file her Brief therefore began running on that day. Id.

 Therefore, Appellant’s counsel calculated a deadline to file her Brief as being 20 days later on

 November 9, 2010. On that day, Appellant filed her Brief. When Appellant’s counsel noticed

 that the Appendix had inadvertently been left out of the brief, a Supplemental Brief was filed on

 November 10, 2010. This supplement was filed with a cover letter indicating that the çy

 difference in the two briefs was the addition of the Appendix.

          3.    On November 15, 2010, Appellant’s counsel received a notice from this Court

 indicating that her original Brief had not been filed because it was tendered to the Court late.

                                                                                              th
                                                                                              18
 Apparently, the reporter’s and supplemental reporter’s records were filed on October              and
 th
 19
      respectively, making Appellant’s Brief due on November 8, 2010, instead of November 9,

 2010.

         4.    In calculating the deadline to file her Brief, Appellant’s counsel relied on the

information provided to her by the Clerk’s office of this Court.       Thus, Appellant’s counsel

calculated the date her Brief was due as November 9, 2010 when informed that the records were

filed on October 20, 2010. See id. Apparently, the information provided to the paralegal at

counsel’s office was incorrect.

         5.    Therefore, Appellant now respectfully requests that this Court accept and file her

Brief and Supplemental Brief as timely filed in this matter. No injustice or surprise is done by

accepting and filing such, and the Brief was originally filed on a properly-calculated due date

based on the information obtained from the Clerk’s office.

         6.    This Motion is not sought solely for delay but so that justice may be served.




APPELLArT FRE IDA SrwioNs’ MOTION TO                                                     F’         2
ACCEPT BRIEF AND SuPPLEMENTAl. BRIEF
         WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court accept and

  file her Brief and Supplemental Brief in this matter and for such other and further relief to which

  she may be entitled.

                                                       Respectfully submitted,



                                                                            I    —I



                                                                    \q’*L
                                                      D. BOW’EN BERRY
                                                      State Bar No. 02233280
                                                      WENDY H. HERMES
                                                      State Bar No. 24007352
                                                      R. ASHLEY VEITENHETMER
                                                      State Bar No. 24053356

                                                      TIlE BERRY FIRM, P.LLC.
                                                      Adolphus Tower
                                                      1412 Main Street, Suite 2300
                                                      Dallas, Texas 75202
                                                      214.915.9800 telephone
                                                                     -




                                                      214.752.8250 fax
                                                                     -




                                                      ATTORNEYS FOR DEFENDANT
                                                      FREDIA SIMMONS

                                 CERTIFICATE OF SERVICE

        A true and correct copy of the foregoing has been forwarded to the following counsel of
            th
record this 15 day of November, 2010, as follows:

Certified Mail, Return Receipt Requested
Receipt No. 700627600002 8260 6541
Willie D. Powells, III, ChE, JD, MBA
Attorney at Law
One Arena Place
7322 S.W. Fwy., Ste. 2010
Houston, Texas 77074
                                                                /




                                  (ZA
                              D. Boven Berry/Wendy H. Hermes/R. Ashley Veitenheimer


APPELLANT FREIDA SIMMoNs’ MOTION TO
ACCEPT BRIEF AND SuPPLEMENTA.L BRIEF
                                                                                         P.\ (   j3
EXHIBIT A
                                   CAUSE NO. 05-1O-01063-CV

                                             IN THE

                                   FIFTH JUDICIAL DISTRICT

                                     COURT OF APPEALS

                                          AT DALLAS


                                      FREIDA SIMMONS,
                                         APPELLANT

                                                vs.


                        TONI HOLLINGER AND GEORGE HOLLINGER,
                                     APPELLEES


                             kFFIDAVIrOF SHAROMILLER

 STATE OF TEXAS                §
                               §
 COUNTY OF DALLAS              §
        1.      “My name is Sharon Miller. I am over the age of 18 years, I am of sound mind,

and I am capable of making this Affidavit. I have never been convicted of a felony or crime,

including a crime of moral turpitude. I have personal knowledge of the facts stated herein and

they are true and correct.

       2.      1 am a paralegal at The Berry Firm, P.L.L.C., which represents Appellant Freida

Simmons in this matter.

       3.      On October 20, 2010, I called the Clerk’s office of the Fifth Judicial District

Court of Appeals to determine the status of filing of the reporter’s record and supplemental

reporter’s record in this matter in order to calculate the due-date for Appellant’s Brief. I was



AFFIDAvIT OF SHAJwN MILLER                                                                t 1.   1
                                                                                              _______




 informed by the person in the Clerk’s office that both records had been filed on that day (October
 t))
 20
       and that, therefore, the deadline for Appellant to file her Brief began running on that dy
            th1)
            20
 (October          As a result of this information, Appellant’s brief was calculated as being due on

November 9, 2010 and was filed on that date.

        FURTHER, AFFIANT SAYETH NOT.




        SUBSCRIBED TO AND SWORN BEFORE ME a Notary Public on this                                       day
of                         ,2010.


                                                         1/                     (1

                                                      No&uc
                                                                \                    (u          -




                                                      State of Texas

My Commission Expires:


                                                                  MY COMMISSION EXPIRES   1
                                                   JLW        -        Jtmefi,2012
                                                                                      J




AFFIDAVIT OF SHARON MILLER

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:4
posted:5/7/2011
language:English
pages:6