ACCEPTED
01-14-01004-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/18/2015 11:49:04 PM
CHRISTOPHER PRINE
CLERK
IN THE FIRST
COURT OF APPEALS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
HOUSTON DIVISION
9/18/2015 11:49:04 PM
CHRISTOPHER A. PRINE
______________________________________________________________________
Clerk
KEVIN CAMPBELL
Appellant
VS.
CATHERINE WILEY
Appellee
__________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
01-14--01004-CV
__________________________________________________________________
In a case appealed from Cause No. PR-0075471
From the Probate Court of Galveston County, Texas
Kimberly Sullivan, Presiding Judge
__________________________________________________________________
Respectfully submitted,
/s/ Veronica L. Davis
Veronica L. Davis
Plaintiff-Petitioner
226 N. Mattson
West Columbia, Texas77486
(979) 345-2953
vld57atal@yahoo.com
TABLE OF CONTENTS
1. Table of Authorities i
2. Certificate of Interested Persons vi
3. Statement of the Case 1
4 Statement of Jurisdiction 1
5. Statement Regarding Oral Argument 1
6 Statement of Facts 1
7 Summary of Argument 8
8. Issues Presented for Review 8
1. Whether the court lacked jurisdiction to initiate guardianship 8
proceedings at the request of Maggiore
2. Whether the court lacked jurisdiction to change the
temporary guardianship to a permanent guardianship without
proper notice. 12
3. Whether the court could engage in ex parte proceedings with the
ad litem during the pendency of the proceedings, in making orders
premised on his application alone. 16
4. Whether Catherine Wylie had the right during the pendency 19
of the proceedings to make any demands of the Appellant
or its counsel for documents, as her temporary orders had expired.
5. Whether the court denied Appellant due process in failing
to hear its Application for Guardianship, its Opposition
to the Appointment of Wylie as Guardian and Appellant’s 22
Application to Withdraw the Application for Guardianship
6. Whether the court abused its discretion in reappointment 29
the guardian ad litem.
7. Whether the court erred in granting the fee petition of Maggiore 32
8. Whether the court erred in denying Appellant the right to
proceed with its guardian-ship application on the basis that
appellant had no live pleadings on file. 34
9. Whether, during the pendency of this appeal, the trial court
erred in granting the Guardian an Order to Sale the Ward’s
Estate for Money due the guardian 38
9. Conclusion 42
10. Prayer 43
10. Certificate of Service 44
11 Word Certification 44
TABLE OF AUTHORITIES
Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863)........................ 27
Brazzel v. Murray, 481 S.W.2d 801, 803 (Tex. 1972)......................... 11
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546,
105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) ................................... 19
Coleson v. Bethan, 931 S.W.2d 706 (Tex.App. —Fort Worth 1996)......... 29
El Apple I, Ltd. v. Olivas, 55 Tex. Sup. Ct. J. 954 (Tex. June 22, 2012)... 32
Ex parte Fleming, 532 S.W.2d 122, 123
(Tex.Civ.App.-Dallas 1975, no writ)......................................... 21
Ex Parte R.D.N., 918 So. 2d 100 (Ala 2005)........................................ 18
Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972).......................................... 27
Gauci v. Gauci, 01-14-00788, Ct.App- Houston[14th] 2015...................... 10
Gen. Motors Corp. v. Bloyed, 916 S.W.2d 949, 960 (Tex.1996) .............. 33
Goldberg v. Kelly, 397 U.S. 254, 269 (1970)................................................... 29
Greene v. McElroy, 360 U. S. 474, 360 U. S. 496-497 (1959).................... 29
ICC v. Louisville & N. R. Co., 227 U. S. 88, 227 U. S. 93-94 (1913)......... 29
In the Guardianship of Erickson, 208 S.W.3d 737, 740-43
(Tex.App.- Texarkana 2006).............................................................. 10.11
In re Guardianship of B.A.G., 794 S.W.2d 510, 511–12 (Tex. App.-
Corpus Christi 1990, no writ)..................................................... 11
In re Mask, 198 S.W.3d 231, 234 n. 3 (Tex.App.-San Antonio
2006, no pet. h.).................................................................................. 10
Matter of JBK, 931 S.W.2d 581 (Tex.App.-El Paso 1996).......................... 16
Murchison v. White, 54 Tex. 78 (1880)................................................ 11
Ortiz v. Gutierrez, 792 S.W.2d 118 (Tex.App.-San Antonio 1989,
writ dism'd) ...................................................................................... 9,10
Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86, 108 S.Ct.
896, 899 (1988).................................................................................. 11,24
PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 272 (Tex. 2012)....................... 11
Saldarriaga v. Saldarriaga, 121 S.W.3d 493 (Tex.App.—Austin 2003)......... 10
State v. C.J.F., 183 S.W.3d 841 (Tex.App.—Houston [1st Dist.] 2005)....... 35
Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.1979).............................. 21
Surgitek Bristol Meyers Suibb vs. Abel, 997 S.W.2d 598, 601 ................. 38
Threatt v. Johnson, 156 S.W. 1137 (Tex.Civ.App.-
Texarkana 1913, no writ).................................................................... 9,10
Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 930 (Tex. 1995).............. 11
Whatley v. Walker, 302 S.W.3d 314, 321 (Tex. App.-Houston
[14th Dist.] 2009, pet. denied). ........................................................ 11
Willner v. Committee on Character & Fitness, 373 U. S. 96,
373 U. S. 103-104 (1963).............................................................. 29
Wilkinson v. Owens, 72 S.W.2d 330 (Tex.Civ.App. 1932)........................ 10
Texas Disciplinary Rules of Professional Conduct 3.05 ........................ 17,18
Texas Estate Code §201.003................................................................... 39
Texas Estate Code §251.010. .................................................................. 18
Texas Estate Code § 1051.101 .................................................................. 9
Tex. Est. Code § 1051.101(a)...................................................................... 11
Tex. Est. Code § 1051.102......................................................................... 12
Texas Estate Code § 1051.103 .................................................................. 9
Tex. Est. Code § 1051.104............................................................... 13
Tex. Est. Code § 1051.104(a)(9)............................................................... 12
Texas Estates Code §1051.104(b)........................................................ 16
Texas Estates Code §1051.106 ............................................................. 15
Texas Estates Code §1002.026 ........................................................... 20
Texas Estates Code §1002.030 .......................................................... 20
Texas Estates Code 1101.151 ............................................................... 20
Texas Estate Code § 1158.051 .................................................... 39
Texas Estate Code § 1158.252-1158.256 ............................................. 39
Texas Estates Code §1202.001 ............................................................... 35
Texas Estates Code §1251.151................................................................ 21
Tex. Prob.Code Ann. § 633(f) (West Supp. 2010)................................... 10
TEX. PROB. CODE ANN. § 601(1) (Vernon Supp.1996) .................... 30
Texas Rules of Civil Procedure 44 ...................................................... 27
Texas Rules of Civil Procedure 47.................................................. 36
Texas Rules of Civil Procedure 48.................................................. 37
Texas Rules of Civil Procedure 71.................................................. 37
Texas Rules of Civil Procedure 301...................................................... 21
Texas Rules of Evidence 801 ............................................................... 26
Texas Senate Bill 1224 (2014)................................................................ 28
United States Constitution, Fourteenth Amendment ........................... 28,40
CERTIFICATE OF INTERESTED PERSONS
Kevin Campbell
4023 Medici Court
Missouri City, Texas 77549
Ava Phillips
544 Fulton
Texas City, Texas 77591
Lance Phillips
2813 Moore Avenue
Bay City, Texas 77414
Lonnie Phillips, Jr.
Gulf Health Care Center
1720 North Logan
Texas City, Texas 77590
Veronica L. Davis
226 N. Mattson
West Columbia, Texas 77486
vld57atal@yahoo.com
Catherine Wylie
2211 Norfolk, Suite 440
Houston, Texas 77098
cwylie@wylielawfirm.com
Matthew Maggiore
unknown
Colorado
STATEMENT OF THE CASE
The instant appeal stems from a guardianship proceeding. Appellant sought
a guardianship proceeding over the person and estate of his father, Lonnie Phillips,
Jr. The court appointed an attorney ad litem, without benefit of a hearing and
subsequently appointed a temporary guardian. Appellant’s guardianship application
was not heard nor considered, nor was his opposition to the appointments of the
guardians and attorneys ad litems in this cause.
Upon seeking to close the guardianship, the court denied his right thereto
without benefit of a hearing. It is from the series of rulings in this case that the
appellant appeals.
STATEMENT OF JURISDICTION
This court has jurisdiction pursuant to the Texas Government Code
§22.220 and 22.2021.
STATEMENT REGARDING ORAL ARGUMENT
The issues are not novel issues and have been adequately briefed. Therefore
appellant waives oral argument.
STATEMENT OF FACTS
On or about September 25, 2013, counsel for Appellant filed its Amended
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Application for Guardianship to appoint Lance Phillips and Ava Phillips as
guardians of the person and estate of Lonnie Phillips, Jr., their father due to his
having been diagnosed with dementia and due to inability to handles his affairs
(Clk.1-6)1. The children of the ward felt that same was necessary due to
disagreement regarding repairs which should be made to the home of the ward
where he resided with Ava Phillips, after a fire to the home on or about May 13,
2013, which resulted in major damage to the home. Lance Phillips had power of
attorney and was a building contractor. Ava Phillips indicated that her mother
desired someone else to perform the work. Because Ava had tendered
approximately $33,000.00 to Paul Davis Restoration Company for repairs and said
company had taken said downpayment without making any repairs, Lance Phillips
felt that she was incapable of making appropriate choices regarding building
contractors. The siblings agreed that a guardianship with be the best method to
ensure that the remaining insurance proceeds were used properly for the repair and
rebuilding of the home.
On October 30, 2013, the court appointed Matthew Brandon Maggiore as
attorney ad litem to interview the ward, review the guardianship application, etc.
1
Clk or ck shall for denote the county clerk or probate clerk’s record or transcript in this
cause. CR shall denote the court reporter’s record or transcript.
-2-
(Clk. (8-9). Due to various errors in addresses and the court’s instruction that Ava
and Lance Phillips could not be co-guardians, amendments followed appointing one
as of the children over the person and one over the estate. Subsequently, by the
agreement of the children of Lonnie Phillips, Jr., a Fourth Amended Application
was filed for the son, Kevin Campbell to be appointed as guardian of the person and
estate of Lonnie Phillips, Jr. on November 27, 2013. (Clk, pg. 10-15). Campbell
was proceeding with this action pro se, with Davis being “of counsel.”
Maggiore, the attorney ad litem indicated that Mr. Campbell could not
proceed with a pro se application and must be represented by counsel. A discussion
ensued about whether a conflict of interest situation would arise with Davis having
initially represented the other siblings in the application for guardianship. Maggiore
indicated that the ward was the issue, rather than the applicants, and that he would
approach the judge regarding that matter when counsel were attempting to secure a
date for the hearing on the application.
Maggiore, however, approached the court, contrary to the discussion and
agreement, and sought the appointment of a temporary guardian ad litem. His
status was changed from attorney ad litem to guardian ad litem (Clk 16-17) by an
order of the court dated December 06, 2013. Said order specifically found that “an
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attorney ad litem is no longer needed.” Maggiore then filed a “Counter Application
for Appointment of Permanent Guardian of the Person and Estate (Clk 18-24) on
January 30, 2014 and requested that the court to appoint “Friends for Life” as
guardian for the ward.2
On the same day, the court appointed a temporary guardian pending contest.
(Clk rec. 25-28). Said appointment was good for sixty days pursuant to said order.
The court, on February 12, 2014, appointed another attorney ad litem. (Clk pg. 29-
30).
On March 11, 2014, the applicant/ appellant asked his attorney to withdraw
the application for guardianship. (Clk. 38). Appellant’s counsel filed a Motion to
Withdraw the Application for Guardianship and to close the Estate (Clk 31-38) on
March 28, 2014, citing the following reasons: 1) all money on hand for repairs has
been spent ; 2) the siblings were no longer in disagreement regarding who should
make the repairs; 3) the appointment by the court of three ad litems and/or
guardians would require that monies be diverted from the repair of the homestead in
order to pay said persons; 4) the appointments of these persons were not necessary;
2
According to the website of Friends for Life, said entity provides guardianship services
in Texas counties and states “ We serve as guardian when the judge determines a person lacks
decisional capacity and there is no family member qualified and willing to serve.”
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5) the guardian ad litem had filed papers contrary to his discussions with Ava
Phillips.
Maggiore then amended his Counter-Application seeking to make Wylie the
guardian on or about March 31, 2014. (Clk 43-49).
A Motion to Show Cause was filed by Wylie on April 02, 2014 mandating
the production of records and expenditures to restore the home of the ward after
insurance proceeds were applied for the restoration of the ward’s home. Appellant
also filed an Opposition to Appointment of Catherine Wylie as temporary guardian
and guardian. A hearing was held on the pending motions on the show cause
matter on April 10, 2014.
A guardianship hearing was held on August 26, 2014. Appellant believes
that a hearing was held without all parties, as she had noticed the court of her
inability to attend said hearing. A new date was given of October 3, 2014, and a
hearing held. Counsel later learned that the court proceeded with a brief hearing on
August 26, 2014, even though counsel was advised that a hearing would be held on
October 3, 2014.
At that time Appellant reurged his Motions for Opposition to the
Appointment of Wylie, to Withdraw its Application for Guardianship or to be
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Appointed Guardian in the Alternative, and Application to Close the Estate.
Appellant filed a Supplement to its Motions.
The Court issued an order on October 3, 2014 (Clk Rec. 73-74) which
appointed Catherine Wylie as Guardian of the Person and Estate of Lonnie Phillips,
Jr. Said order further discharged the attorney ad litem and the guardian ad litem.
Appellant filed a Motion for Rehearing of said order on November 05, 2014
with same being set for hearing on November 24, 2014. (Clk 76-97). The court
denied said request without a hearing on November 19, 2014 (Clk 98) and without
tender of notice. Appellant then filed a Notice of Appeal on December 11, 2014.
(Clk 130-131). After appellant filed its Notice of Appeal, the court reappointed
Matthew Maggiore as guardian ad litem by order dated December 29, 2014. (Clk
___). Appellant then sought a Motion to Recuse the Honorable Kimberly Sullivan
in this cause. ( ). A hearing was held on this matter by the
Honorable Gladys Burwell on or about April 15, 2015.
Since the filing of said appeal, the guardian has since sought an order to sell
the Estate of Lonnie Phillips, Jr. in order to recoup her costs in this case and has
moved the court for instructions to put in place a “Do Not Resuscitate order.”
ISSUES FOR DETERMINATION
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1. Whether the court lacked jurisdiction to initiate guardianship proceedings at
the request of Maggiore
2. Whether the court lacked jurisdiction to change the temporary guardianship
to a permanent guardianship without proper notice.
3. Whether the court could engage in ex parte proceedings with the ad litem
during the pendency of the proceedings, in making orders premised on his
application alone.
4. Whether Catherine Wylie had the right during the pendency of the
proceedings to make any demands of the Appellant or its counsel for
documents, as her temporary orders had expired.
4. Whether the court had authority to deny the appellant a hearing regarding its
Opposition to the Appointment of the Temporary Guardian.
5. Whether the court denied Appellant due process in failing to hear its
Application for Guardianship, its Opposition to the Appointment of Wylie as
Guardian and Appellant’s Application to Withdraw the Application for
Guardianship
6. Whether the court abused its discretion in reappointment the guardian ad
litem.
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7. Whether the court erred in granting the fee petition of Maggiore
8. Whether the court erred in denying Appellant the right to proceed with its
guardian-ship application on the basis that appellant had no live pleadings on
file.
9. Whether, during the pendency of this appeal, the trial court erred in granting
the Guardian an Order to Sale the Ward’s Estate for Money due the
guardian.
SUMMARY OR ARGUMENT
Appellant contends that when the attorney ad litem filed its Counter-
Application for the appointment of a Guardian, said action was violative of the
Texas Estates Code, in that notice was not provided to the ward, nor his children or
his siblings. Therefore, the order was void and the court lacked jurisdiction.
Because the court never obtained jurisdiction in the first place, all orders flowing
therefrom are also void. Appellant further contends that he was never afforded the
opportunity to put on any evidence or allowed to refute any of the proceedings, nor
give testimony thereby offending due process. Consequently, the guardianship
should in all things be set aside and declared void.
ISSUE ONE
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Whether the court lacked jurisdiction to initiate guardianship
proceedings at the request of Maggiore.
On January 30, 2014, Maggiore approached the court with a pleading and
obtained an ex parte order to have a guardian appointed for the alleged ward,
Lonnie Phillips, Jr. ” entitled “Counter Application for Appointment of Permanent
Guardian of the Person and Estate (Clk 18-24), requesting that the court appoint
“Friends for Life” as guardian for the ward. On the same day, the court appointed
a temporary guardian pending contest. (Clk rec. 25-28).
The Texas Estate Code § 1051.101 requires that:
(a) on the filing of an application for guardianship, notice shall be issued
and served as provided by this subchapter.
The Texas Estate Code § 1051.103 requires that:
The sheriff or other officer shall personally serve citation to appear and
answer an application for guardianship on :
1) a proposed ward who is 12 years of age or older. [Emphasis added]
The ward was not notice nor served. The applicant/appellant was not served.
The ad litem appeared ex parte and obtained said temporary guardianship, though a
pending application was on file by the appellant.
-9-
Pursuant to Ortiz v. Gutierrez, 792 S.W.2d 118 (Tex.App.-San Antonio
1989, writ dism'd) and Threatt v. Johnson, 156 S.W. 1137 (Tex.Civ.App.-
Texarkana 1913, no writ), a court exercising probate jurisdiction does not have the
power to act without strict compliance with the probate statute. Ortiz at 119;
Threatt, at 1139. Threatt held that:
compliance with the statute is a condition precedent to the valid exercise of
that power [to appoint a guardian] and is jurisdictional." Ortiz, at 119 (citing
Threatt, at 1139). In Erickson, the court held, pursuant to section 633(f), that
the trial court could not appoint a permanent guardian until the expiration of
ten days after service of citation and notice.
In In the Guardianship of Erickson, 208 S.W.3d 737, 740-43; see also
Tex. Prob.Code Ann. § 633(f) (West Supp. 2010), the court noted that "[a]lmost
100 years ago, this Court stated of the guardianship jurisdictional requirements: ‘
compliance with the statute is a condition precedent to the valid exercise of the
power, and is jurisdictional.’ " Id. at 741 (quoting Threatt, at 1139). Therefore,
pursuant to the Ortiz, Threatt, and Erickson courts, compliance with the statute is
jurisdictional. Therefore, when Maggiore filed his application with the court and
obtained an order, the court lacked jurisdiction to appoint a temporary guardian,
because he had not served the ward at that time.
Erickson further states at 742-743:
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The few cases on point indicate that an interested person may not waive
guardianship proceeding jurisdictional requirements on behalf of an alleged
incapacitated person. See In re Mask, 198 S.W.3d 231, 234 n. 3
(Tex.App.-San Antonio 2006, no pet. h.) ("attempted waiver of service by an
incapacitated person would be ineffective" in guardianship proceedings);
Saldarriaga, 121 S.W.3d at 499-500; B.A.G., 794 S.W.2d 510; Ortiz v.
Gutierrez, 792 S.W.2d 118, 120 (Tex.App.-San Antonio 1989, writ dism'd
as moot) (waiver of notice "not applicable to proceedings in which the mental
or physical infirmity (incompetency) of an individual is alleged"); Wilkinson,
72 S.W.2d at 336-37
In Gauci v. Gauci, 01-14-00788, Ct.App- Houston [14th] 2015, the court
held that:
Before a court may enter judgment against a party, the court must have
obtained jurisdiction over that party pursuant to applicable rules or statutes."
Whatley v. Walker, 302 S.W.3d 314, 321 (Tex. App.-Houston [14th Dist.]
2009, pet. denied). A judgment rendered by a trial court that lacks
jurisdiction over the parties or subject matter is void. PNS Stores, Inc. v.
Rivera, 379 S.W.3d 267, 272 (Tex. 2012); Erickson, 208 S.W.3d at 740; In
re Guardianship of B.A.G., 794 S.W.2d 510, 511–12 (Tex. App.-Corpus
Christi 1990, no writ). A judgment that is void is "entirely null within
itself, not binding on either party, [and] . . . not susceptible of
ratification or confirmation." See Brazzel v. Murray, 481 S.W.2d 801, 803
(Tex. 1972) (quoting Murchison v. White, 54 Tex. 78 (1880)). "[A] judgment
is void if the defects in service are so substantial that the defendant was not
afforded due process." PNS Stores, 379 S.W.3d at 275. .... Due process
requires notice "at a meaningful time and in a meaningful manner" that
would enable a party to be bound by a court's judgment to have an
opportunity to be heard. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86,
108 S.Ct. 896, 899 (1988); accord Univ. of Tex. Med. Sch. v. Than, 901
S.W.2d 926, 930 (Tex. 1995). "[A] judgment entered without notice or
service is constitutionally infirm." Peralta, 485 U.S. at 84, 108 S.Ct. at 899;
see In re Guardianship of Jordan, 348 S.W.3d 401, 405 (Tex.
App.-Beaumont 2011, no pet.) ("The constitutional right to due process of
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law restricts the ability of a court to render a judgment binding a party
without proper notice."). In satisfaction of these well-understood due
process concerns, Chapter 1051, Subchapter C of the Estates Code imposes
notice and citation requirements generally applicable to guardianship
proceedings. "On the filing of an application for guardianship, notice shall be
issued and served as provided by this subchapter." Tex. Est. Code §
1051.101(a). The Estates Code specifically provides that the "sheriff or other
officer shall personally serve citation to appear and answer an application for
guardianship on . . . a proposed ward who is 12 years of age or older." Id. §
1051.103(a). Failure to personally serve an application for guardianship on a
proposed ward deprives the court of jurisdiction. See Erickson, 208 S.W.3d
at 740; accord Whatley, 302 S.W.3d at 321. Furthermore, the person filing an
application for guardianship is also required to "mail a copy of the
application and a notice containing the information required in the citation
issued under Section 1051.102 by registered or certified mail, return receipt
requested, or by any other form of mail that provides proof of delivery, to . . .
each of the proposed ward's parents . . . ." Tex. Est. Code § 1051.104(a)(9).
It is undisputed that M.G. was not personally served with citation of
Kathryn's application for guardianship before the trial court entered its order
appointing her as guardian. Accordingly, we conclude that the court lacked
personal jurisdiction over M.G. at that time it appointed appointed Kathryn as
guardian. [Emphasis added]
As heretofore stated, Maggiore filed his application on January 30, 2014 and
obtained an order appointing Catherine Wylie on the same date. The ward was
severed on February 03, 2014. Therefore, the court lacked personal jurisdiction
over the ward at the time it appointed Catherine Wylie as guardian. Therefore, the
guardianship, in its entirety is void.
Because the initiation of the guardianship procedure is void, every ruling
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which flows therefrom is likewise void. The court erred committed reversible error
in that it had no jurisdiction to grant the guardianship application of Maggiore.
ISSUE TWO
Whether the court lacked jurisdiction to change the temporary
guardianship to a permanent guardianship without proper notice.
As set forth in the previous issue, strict compliance with the notice
requirements are necessary for the court to obtain jurisdiction. Because the court
never obtained jurisdiction, at the outset, it lacked jurisdiction to change the
temporary guardianship to a permanent one.
Pursuant to Texas Estate Code §1051.104:
the person filing an application shall mail a copy of the application and notice
containing the information required in the citation issued under 1051.012 by
registered or certified mail., return receipt requested, or by any other form of
mail that provides proof of delivery, to the following persons, if there
whereabouts are known......
1) each adult child of the proposed ward;
2) each adult sibling of the proposed ward;
5) a person whom the applicant knows to hold a power of attorney signed
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by the proposed ward;
Maggiore contended that since the Appellant, upon amendment of its
application for guardianship, failed to send notice to the brothers of the ward, the
appellant’s application for guardianship could not be considered by the court.
Likewise that standard should so apply to the guardian ad litem as it relates to his
contest.
Maggiore filed a First Amended Counterapplication for Appointment of a
Permanent Guardian (Clk.Supp Rec. 34-57-01/12/15) failed to send notice to the
ward’s brother, Lorenzo Butler, by his own attestation. (Clk.Supp Rec. 35-36 01-
12-15 ). Moreover, he failed to send notice to a person known to hold a power of
attorney signed by the proposed ward, Lance Phillips. Maggiore’s affidavit
indicates that he served notice to Lance Phillips’ former counsel, however, doing so
was not notice to Lance Phillips, who was no longer represented by Davis.
Maggiore was at all times aware that Davis no longer represented Lance Phillips.
(CR Rec.
Moreover, the court had instructed the guardian to provide direct notice to
Lance Phillips regarding his power of attorney. Therefore, it was clear that notice
to Davis did not suffice as sufficient notice for Lance Phillips.
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Additionally, the document prepared by Maggiore fails to give the children of
the ward or the brothers of the ward notice of when to appear for any proceeding.
Specifically, the notice allegedly provided to Lance Phillips at (Clk Supp Rec.2
page 41/ page 476-01/12/15) is undated , yet provides that he must file his
opposition by May 26, 2014. It appears however, that said notice was received in
August, 2014---well after the time frame listed therein to oppose the application.
Likewise, the letter to Felix Phillips, brother of the ward is dated August 20,
2014 and indicates that he must file his opposition by May 26, 2014, a date that had
passed by the time he received his letter.(Clk Supp Rec.2 page 41/ page 484-
01/12/15). Consequently, in these instances, the notice was ineffective for the
persons outlined to file and opposition or to appear due to the errors contained
therein.
Additionally, the documents indicate that the notice was sent on or about
August 20, 2014 and to opposing counsel on August 21, 2014, with hearing
scheduled for August 26, 2014. Same is violative of Texas Estates Code
§1051.106 which requires ten days to the children and siblings of the ward before
the creation of a guardianship. The statute more specifically requires that:
The court may not act on application for the creation of a guardianship until
the applicant has complied with Section 1051.104(b) and not earlier than the
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Monday following the expiration of the 10-day period beginning on the date
of service of notice and citation has been made as provided Sections
1051.102, 1051.103 an 1051.104(a).
The Court held the appellant to a different notice standard than it did the
appellee. The Court committed reversible error, since said error resulted in the
failure to consider the application of Kevin Campbell as guardian of the Estate of
Lonnie Phillips, Jr. and considered only the retaining of Wylie as guardian pursuant
to a void order. Moreover, the court refused to discuss the issue of guardianship on
that date, but rather had a show cause hearing. Therefore, notice of reset and the
issuance of a new citation was imperative as it related to the permanent
guardianship status of Wylie.
Additionally, the citation indicates that any person wishing to contest same
may do so by April 14, 2014, within the ten day period prescribed by statute.
However, the hearing was held on April 10, 2014.
Moreover, at the time of the hearing regarding the appointment of the
guardian, Maggiore had not filed notice of compliance regarding service as rquired
by Texas Estates Code §1051.104(b)
As set forth supra in Issue One, appropriate notice is a jurisdictional
prerequisite to a guardianship proceeding. Therefore, the court erred as instituting
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and/or continuing the appointment of the guardian without proper notice to his
family members. The court erred further in holding the appellant to complying with
the notice requirements, while not requiring strict compliance by the guardian ad
litem or the guardian.
ISSUE THREE
Whether it is a violation of the due process rights of the appellant for
the guardian ad litem to engage in ex parte communications with the
court which resulted in relief against the appellant.
Appellant complains that Maggiore approached the court ex parte to obtain
an order for the appointment of a guardian ad litem, ignoring the fact that Appellant
had a guardianship application on file.
Maggiore, in spite of said application, filed a counterapplication and met
with the court ex parte regarding an application for a guardian, without notice to
appellant or his counsel.
The Court in the Matter of JBK, 931 S.W.2d 581 (Tex.App.-El Paso 1996)
stated:
Ex parte communications are "those that involve fewer than all of the parties
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who are legally entitled to be present during the discussion of any matter.
They are barred in order to ensure that every person who is legally interested
in a proceeding [is given the] full right to be heard according to law."
JEFFREY M. SHAMAN ET AL., JUDICIAL CONDUCT AND ETHICS §
6.01, at 145 (1990); see also In re Thoma, Id at 583
Maggiore violated the Texas Disciplinary Rules of Professional Conduct
3.05 when approaching the court for the appointment of a temporary or permanent
guardian without notice to the opposing side (appellant and applicant).
Pursuant to Rule 3.05 Maintaining Impartiality of Tribunal
A lawyer shall not:
(a) seek to influence a tribunal concerning a pending matter by means
prohibited by law or applicable rules of practice or procedure;
(b) except as otherwise permitted by law and not prohibited by applicable
rules of practice or procedure, communicate or cause another to communicate
ex parte with a tribunal for the purpose of influencing that entity or person
concerning a pending matter other than:
(1) in the course of official proceedings in the cause;
(2) in writing if he promptly delivers a copy of the writing to opposing
counsel or the adverse party if he is not represented by a lawyer;
(3) orally upon adequate notice to opposing counsel or to the adverse party if
he is not represented by a lawyer
Maggiore summarily violated the Texas Rules of Professional Conduct by
obtaining this order from the court ex parte. Moreover, he violated the Texas
Estates Code §1051.101 provides that on filing of the application for guardianship,
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notice shall be issued and served.
Nothing in his pleading (counterapplication- Clk Rec. 18-28) showed the
necessity for an ex parte communication nor the need for such an appointment,
without benefit of a hearing. His pleading nor application made a showing that the
ward was in imminent danger nor that the proposed ward’s physical health or
safety would be seriously impaired, or that the proposed ward’s estate would be
seriously damaged or dissipated unless immediate action was taken as required by
Texas Estate Code §251.010. Appellant contends that this ex parte
communication influenced and prejudiced the trial court against the appellant.
In Ex Parte R.D.N., 918 So. 2d 100 (Ala 2005), the Supreme Court of
Alabama looked at the propriety of ex parte communications between an ad litem
and the court. The court recognized the need for and appointment of ad litems.
However, the court also recognized the following:
The fundamental principle is that the decision of a court must be based on
evidence produced in open court lest the guarantee of due process be
infringed.” See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546,
105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (“The essential requirements of due
process · are notice and an opportunity to respond. The opportunity to
present reasons, either in person or in writing, why proposed action should
not be taken is a fundamental due process requirement.”).
That Court held:
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.........in these circumstances, the trial court's ex parte communications with
the guardian ad litem and its reliance upon her recommendation, given to the
court as part of an ex parte communication, violated the fundamental right of
the father to procedural due process under the Alabama and United States
Constitutions.
The court, by having said ex parte hearing offended the notion of due
process. The court erred in granting the ex parte guardianship and the issuance of
orders in connection therewith tendered by Maggiore, guardian ad litem.
ISSUE FOUR
Whether Catherine Wylie had the right during the pendency of
the proceedings to make any demands of the Appellant or its
counsel for documents prior to appointment of a guardian and
after as her temporary orders had expired.
Appellant’s counsel was hired by the family of Lonnie Phillips, Jr to recover
funds which from Paul Davis Restoration after it breached the contract for repair of
the home lived in by the ward and his daughter, Ava Phillips. Moreover, she was
given oversight responsibility in assisting in finding contractors and paying for the
home repairs, so that the same thing would not occur that had happened with Paul
Davis.
The ad litems, the court, and the guardian spent an inordinate amount of time
delving into matters which predate the setting up of a guardianship. Lance Phillips
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had durable power of attorney at that time and was fully authorized by his father to
do so. Actions which occur prior to the beginning of a guardianship fall outside of
the jurisdiction of the court, because the proposed ward is not yet a ward. See
Texas Estates Code §§1002.026 (proposed ward defined), 1002.030 (ward
defined), and 1101.151.
Texas Estates Code 1101.151 provides that:
If it is found that the proposed ward it totally without capacity to care for
himself..manage his or her property, ...... the court may appoint a guardian of
the proposed ward’s person and estate
Prior to said appointment, the court lacks jurisdiction over said matters.
Additionally, in the instant case, Catherine Wylie lacked authority after January 30,
2014.
Appellee, Catherine Wylie was appointed as temporary guardian on or about
January 30, 2014. The order indicates that the temporary guardianship was for the
period of sixty (60) days. (Clk 25-28; 27)
Pursuant to Texas Estates Code §1251.151:
Except as provided by Section 1251.052, a temporary guardianship may not
remain in effect for more than 60 days.
On January 30, 2014, Maggiore filed a Counterapplication for Guardianship.
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(Clk 18-24), seeking the appointment of Friends for Life be appointed Guardian in
the instant case. The order signed by the Court on the same date of January 30,
2014 appoints Catherine Wylie pending Contest. However, no application for relief
pending contest was before the court, but rather a counterpetition. The order
provides relief not requested and is therefore violative of the law.
A trial court's judgment must conform to the pleadings. See TEX.R. CIV. P.
301. " A court's jurisdiction to render judgment is invoked by pleadings, and
a judgment unsupported by pleadings is void." Ex parte Fleming, 532
S.W.2d 122, 123 (Tex.Civ.App.-Dallas 1975, no writ). Absent trial by
consent, judgment on an unpleaded action is void. See Stoner v. Thompson,
578 S.W.2d 679, 682 (Tex.1979).
No motion was indicating a contest was before the court at that juncture.
Therefore, the court lacked jurisdiction to issue an order pending contest. Said
order was in all things void. Pursuant to Texas Rules of Civil Procedure 301, the
court may not afford relief not pled.
As previously set out, the order appointing Catherine Wylie was void
abinitio, therefore, Wylie had no right nor authority to seek a show cause order.
ISSUE FIVE
Whether the court denied Appellant due process in failing to hear its
Application for Guardianship, its Opposition to the Appointment of
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Wylie as Guardian and Appellant’s Application to Withdraw the
Application for Guardianship.
It is undisputed that the ward, Lonnie Phillips, Jr. was incompetent to handle
his affairs as a result of Alzheimer’s. What the party’s dispute is whether his
mental health condition automatically demands that a guardianship be put in place.
At the time of the initial application for guardianship, the applicant/ appellant
felt that same was necessary to prevent the waste of insurance proceeds to repair the
home of the ward after a fire. Upon the spending of all funds available for repair to
the home, the necessity for those protections ceased.
It is undisputed that the initial investigation found the ward to be well taken
care of. However, after Maggiore’s questioned some expenditures of the daughter
and opposing counsel, he appeared to go on an all-out witch hunt to find problems
or create impediments to the caretakers, Ava Phillips and Kevin Campbell
remaining in that role. For example, he questioned small made prior to the
institution of the guardianship proceedings made by the ward’s daughter.
Additionally, though bank records showed that $60,000.00 was received
from Hartford Insurance for expenditures to repair the house, and $33,000.00 was
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paid to Paul Davis Restoration , leaving only $26,000.00, he continually questioned
those expenditures, in the face of receipts. He intimated that fraud and graft were at
hand and even suggested that though items were purchased, he could not be sure
they were purchased for the property of Lonnie Phillips, Jr. nor could he be sure
that they were not purchased and then refunded (See CR Vol ___, pg ___, lines
_________). These derogatory hypotheses were contrary to the evidence presented
in the Motion for Rehearing (See Clk Rec. ), as neither he nor the guardian put
on any documentary evidence to show the court the state of the property. He
appeared offended that his was not given a level of deference that he expected and
grew offended and querulous as a result, thereby needlessly exacerbating attorney’s
fees, costs, frustration, and the separation and disruption of a family. This attitude
was conveyed to the court and resulted in the court’s denial of due process and
failure to allow the appellant to put on any testimony.
Ex parte hearing
This matter has been dealt with in Issue 3 supra. It is reiterated here for the
due process implications of having a hearing on a matter for which appellant had an
existing application. The ex parte hearing between the court and Maggiore allowed
him to interject bias into the case prior to the applicant having given any testimony.
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As heretofore stated in Peralta at 84, a judgment entered without notice and service
is violative of the constitutional right to due process.
Show Cause Hearing
As heretofore stated, Wylie was appointed as temporary guardian by order
dated January 30, 2014. Her appointment expired after sixty days, as discussed in
Issue 2 supra. Should this Honorable Court find that same did not expire, it must
reach the conclusion that the temporary guardianship was void as a matter of law.
During the hearing, the temporary guardian questioned Ava Phillips
extensively regarding expenditures, housing, etc. Applicant/appellant was denied
the ability to put on any evidence or refute any statements . Moreover he was
denied the right to have his application heard by the court on the premise that the
matter was not on file and/or that counsel had not received notice. The court failed
to review and consider that efiling, coupled with eservice is effective upon filing the
motion with the court. Therefore, all parties, contrary to their assertions received
eservice notice of the pleadings. The Court, without argument presumed that notice
of Appellant’s motions were not received.
The Court disallowed testimony from Appellant citing the time and
lengthiness of the guardian’s lengthy examination during the show cause hearing.
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Further, the court chose to deal with the accounting issues only. (Pg 93- pg 94, line
8). Only a brief period was afforded appellant to interject that he did not receive nor
know of the sums of money which were obtained by his father.
Appellant was not allowed to proceed with his application for guardianship.
Same was of paramount importance as the ward and his daughter were due to be
displaced, given that the insurance company had given them little or no more time
to remain in the rented apartment. (Pg. 95, lines 7-16).
Guardianship Proceeding
The parties appeared for competing guardianship applications. The
appellant, the ward’s son was denied putting on any evidence regarding him being
appointed on the basis that 1) the file contained no evidence of service on the
ward’s brothers and 2) that he had withdrawn his guardianship application. For
further discussion on that issue, see Issue VI supra. In spite of the fallacy in that
argument raised by the court, the appellant was not allowed to contest or refute any
information submitted by the guardian appointed by the court.
First the guardian posited that the guardianship was necessary due to the
ward wandering around and being found by Emergency Medical Services. (RR pg.
Moreover, she indicated that she had read information in a report regarding the
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condition of the ward. ) Then she alleged that his condition had
deteriorated intimating that it was the fault of his daughter, even though he had
been in a nursing home for three weeks by the time the guardian visited him there.
Appellant’s counsel objected to all the information being hearsay. No
medical documents were tendered to support anything that she said. No records
from the nursing home were tendered to substantiate any statements made regarding
his health, condition or decline. Moreover, she discussed irrelevant information
from nursing home workers who were allegedly in his Sunday school class who
found his present circumstances disturbing.
The Texas Rules of Evidence 801 clearly prohibit such hearsay testimony.
The trial court erred in allowing same.
Appellant had the witness present who called EMS and knew the basis for
the call and where the ward was housed when the call was made and where he was
transported to. Additionally, the ward’s children went to the hospital immediately
after his transport and were able to refute the allegations of the guardian.
The court refused to allow all witnesses of the appellant to testify. Appellant
contends that same constitutes a denial of due process. Of the founding principals
of our judicial system, the Supreme Court stated in 1863 that "Parties whose rights
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are to be affected are entitled to be heard." Baldwin v. Hale, 68 U.S. (1 Wall.) 223,
233 (1863). Thus, the notice of hearing and the opportunity to be heard "must be
granted at a meaningful time and in a meaningful manner." Fuentes v. Shevin, 407
U.S. 67, 80-81 (1972).
The Court, in its haste, concluded that there was a need for guardianship
because the ward was incapacitated. Therefore, without discussion of other
alternatives and without hearing from the appellant/applicant, she summarily
decided that guardianship was the only option, because another suit was pending
and monies had to be handled.
If that were the case, no elderly person could remain in their homes and allow
their children to be caretakers. It also offends the notions set out in proposed Texas
Senate Bill 1224 which looks at alternatives to guardianship. Same provides in
pertinent part: :
SECTION 2. Chapter 1002, Estates Code, is amended by adding Sections
1002.0015 and 1002.031 to read as follows: Sec. 1002.0015. ALTERNATIVES
TO GUARDIANSHIP. "Alternatives to guardianship" includes the: (1) execution of a
medical power of attorney under Chapter 166, Health and Safety Code; (2) appointment
of an attorney in fact or agent under a durable power of attorney as provided by Subtitle
P, Title 2; (3) execution of a declaration for mental health treatment under Chapter 137,
Civil Practices and Remedies Code; (4) appointment of a representative payee to manage
public benefits; (5) establishment of a joint bank account; (6) creation of a management
trust under Chapter 1301; (7) creation of a special needs trust; (8) designation of a
guardian before the need arises under Subchapter E, Chapter 1104; and (9) establishment
of alternate forms of decision-making based on person-centered planning.
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However, the Texas Rules of Civil Procedure 44 currently provides another
legal remedy or alternative for persons who are non compos mentis. Rule 44 gives
a next friend the same rights as a guardian, which necessarily include the ability to
make any decision with respect to a lawsuit on behalf of the ward, including a
settlement decision. See Tex.R. Civ. P. 44. Therefore, the court erred in its
conclusion that a guardianship must necessarily be instituted since the Lonnie
Phillips, Jr.
The United States Constitution, Fourteenth Amendment guarantees due
process as follows:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state wherein
they reside. No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
In Goldberg v. Kelly, 397 U.S. 254, 269 (1970), the Court stated:.
In almost every setting where important decisions turn on questions of fact,
due process requires an opportunity to confront and cross-examine adverse
witnesses. E.g., ICC v. Louisville & N. R. Co., 227 U. S. 88, 227 U. S. 93-94
(1913); Willner v. Committee on Character & Fitness, 373 U. S. 96, 373 U.
S. 103-104 (1963). What we said in Greene v. McElroy, 360 U. S. 474, 360
U. S. 496-497 (1959), is particularly pertinent here:
-29-
"Certain principles have remained relatively immutable in our jurisprudence.
One of these is that, where governmental action seriously injures an
individual, and the reasonableness of the action depends on fact findings, the
evidence used to prove the Government's case must be disclosed to the
individual so that he has an opportunity to show that it is untrue. While this is
important in the case of documentary evidence, it is even more important
where the evidence consists of the testimony of individuals whose memory
might be faulty or who, in fact, might be perjurers or persons motivated by
malice, vindictiveness, intolerance, prejudice, or jealousy. We have
formalized these protections in the requirements of confrontation and cross-
examination. They have ancient roots.
The court’s failure to allow appellant to cross examine witnesses, put on
evidence and otherwise object to the proceedings heretofore listed constitutes a
denial of due process and reversible error.
ISSUE SIX.
Whether the court abused its discretion in reappointment the guardian
ad litem.
In Coleson v. Bethan, 931 S.W.2d 706 (Tex.App. —Fort Worth 1996), the
roles of guardians and attorney ad litems are spelled out.
The Probate Code allows for two different types of "ad litems" to be
appointed. In Chapter XIII of the Probate Code, "attorney ad litem" is defined
as "an attorney who is appointed by a court to represent and advocate on
behalf of a proposed ward, an incapacitated person, or an unborn person in a
guardianship proceeding." TEX. PROB. CODE ANN. § 601(1) (Vernon
Supp.1996) (emphasis added). Once a guardian has been appointed, there is
no longer a "proposed ward," but a "ward," implying that the relationship
-30-
should end once the "proposed ward" has become a "ward." Id. § 601(27),
(31); see also id. § 646(a) (attorney ad litem is to represent the interests of the
proposed ward); id. § 647(a) (attorney ad litem is to represent a proposed
ward and discuss with the proposed ward the law and facts of the case, the
proposed ward's legal options and the grounds on which guardianship is
sought). The Probate Code also allows for appointment of guardian ad
litems. The code defines a "guardian ad litem" as one who is to "represent the
best interests of an incapacitated person in a guardianship proceeding." TEX.
PROB. CODE ANN. § 601(11) (Vernon Supp.1996). Under section 645(a) a
guardian ad litem is "to represent the interests of an incapacitated person in a
guardianship proceeding," and under section 645(c), the guardian ad litem is
"an officer of the court." Id. § 645(a), (b).
Upon the expiration of the guardianship proceeding and with the
appointment of a guardian, the court appropriately discharged the guardian ad litem
and the attorney ad litem. However, upon the filing of the Notice of Appeal, this
court reinstated the guardian ad litem. Said appointment is in all things improper.
Said guardian has exceeded the scope of the duties outlined in the
appointment. The appointment specifically states that:
1) [ Maggiore] is hereby appointed pursuant to Section 645(a) of the
Texas Probate Code, Guardian Ad Litem for Lonnie Phillips, Jr. to
investigate the necessity of a guardianship, and if determine that one is
needed to prepare the guardians application........
2) to assess and review financial, medical, psychological intellectual
resting records
3) to discuss medical or psychological condition
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The guardianship appointment is technically the same as the one signed on
initiated on December 06, 2013.
Maggiore lacks authority to act under said appointment for the following
reasons:
1) the determination was already made that the need for a guardianship
existed;
2) Maggiore had already obtained the financial , medical , psycholgoical
records of the ward;
3) Said document gives him no authority to engage in further litigation.
Therefore, any action taken subsequent to his discharge on or about October
03, 2014, is beyond the scope of his appointment and thereby impermissible.
Further, it is impermissible as it exceeds the scope/time frame of the guardianship
proceeding which occurred in August, 2014. There is no continuing duty to act
given either by order or by statute. The Court therefore erred in accepting for
review any pleadings, motions, petitions, participation in hearing, etc. since the date
of his initial discharge. Therefore, the court erred in considering any motions,
pleadings, fee petitions, participation, etc. since his discharge on or about October
03, 2014.
ISSUE SEVEN
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Whether the court erred in granting the fee petition of Maggiore.
As heretofore stated, the guardianship proceeding initiated by Maggiore was
void abinitio because he failed to perfect service and notice prior to the initiation of
the counterapplication for guardianship and the obtaining of an order for same on
January 30, 2014.
On November 19, 2014, Maggiore submitted a bill for $5359.59 (See Clk
Supp Rec. Pg. . The fee schedule tendered by Maggiore does not comply with the
law in that it fails to provide the dates for which these services were performed. In
El Apple I, Ltd. v. Olivas, 55 Tex. Sup. Ct. J. 954 (Tex. June 22, 2012), the Texas
Supreme Court explained what constitutes legally sufficient evidence to calculate a
reasonable attorney’s fee award using the lodestar method, first calculating the
reasonable number of hours expended and the multiplying that numberby the hourly
rate.
The lodestar method, has been criticized, however, for providing a financial
incentive for counsel to expend excessive time in unjustified work and for creating
a disincentive to early settlement. Gen. Motors Corp. v. Bloyed, 916 S.W.2d 949,
960 (Tex.1996) (citing Court Awarded Attorney Fees, 108 F.R.D. 237, 246-49 (3d
Cir. Task Force 1985)). All matters which are excessive, redundant, or are
-33-
otherwise unnecessary should be struck from the fee petition and not paid.
Contestant contends that same has occurred in this case.
But for a disagreement among counsel, this matter would have been resolved
and the ward’s son appointed as guardian, which was the basis for the application.
All funds from the estate have been expended on the home repairs for the burnt
home of the Ward.
Maggiore has challenged the ward’s son as being a proper person to obtain
guardianship challenging his adoption or authority as a child of the ward. .
Maggiore has beset this case with one impediment after another, thereby increasing
litigation costs.
Appellant contends that Maggiore is not entitled to the fees outlined because:
1) he has failed to provide dates for his alleged services;
2) has increased the costs of litigation;
3) has engaged in matters not authorized pursuant to his order of
appointment.
4) the order appointing him was in all things void for the reasons outline
supra in Issue 1.
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5) Maggiore failed to determine whether methods other than guardianship
were appropriate in this cause and tender a report thereon.
The court never set a hearing for the fee application. Additionally, since his
initial fee application, Maggiore has submitted another fee petition for the
performance of duties which exceed the order of his guardianship appointment.
Appellant would show that same is not allowable.
Additionally, Maggiore has relocated to Colorado. Appellant contends that
he can not address the interests or concerns of the ward adequately when he is no
longer present.
Appellant contends that the court erred in granting the fee petition without a
hearing and that same should have been in all things denied for the reasons so stated
herein.
ISSUE EIGHT
Whether the court erred in denying Appellant the right to proceed with
its guardian-ship application on the basis that appellant had no live
pleadings on file.
The court erred in denying Appellant participation in the hearing stating that
Appellant had no live pleading. Texas Courts define the term “live pleading” to
denote a pleading which supercedes another pleading due to an amendment. State
-35-
v. C.J.F., 183 S.W.3d 841 (Tex.App.—Houston [1st Dist.] 2005).
The court seeks to invalidate the appellant’s right to contest the guardianship
proceeding by stating that the Appellant seeks to withdraw its application. The
court relies on a pleading Motion/Notice to Withdraw the Application for
Guardianship and Close the Estate filed by appellant on 03/28/14. (Clk31-42).
Clearly the pleading states that appellant seeks to have the guardianship closed as
the need for a guardianship no longer exists. Appellant complains that too many
attorneys have become involved in the suit, delays will occur in the repairing of the
house and all funds currently the subject of the guardianship estate of $26,000.00
were expended on repairs to the house, thereby making the original reason for
seeking a guardianship unnecessary and asks the court to close the estate as
provided for pursuant to Texas Estates Code §1202.001 which provides in
pertinent part:
b) A guardianship shall be settled and closed when the ward:
(4) no longer must have a guardian appointed to receive funds due the ward
from any governmental source.
(d) A request for an order under this section may be made by informal letter
to the court. A person who knowingly interferes with the transmission of the
request to the court may be adjudged guilty of contempt of court.
As heretofore specified by statute, the request needs no formality nor is the
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style of the motion important, as a request may be by letter. The essence of the
request is that the estate be closed. Said motion clearly reflects same.
In a pleading, which is entitled Supplement to Application for Guardianship
and Request to Close the Estate and Response to Ad Litem Maggiore’s First
Amended Application for Appointment of Permanent Guardian (Clk pg. 58),
Appellant renews its request to be appointed guardian in the event that the court
fails to close the estate. In the Opposition to Appointment of Wylie as guardian
filed on 04/04/14 (record to be supplemented. Not contained in record). Appellant
in the event the court would not close the estate and instead of Wylie being
appointed. (RR pg. ____)
A party may be plead in the alternative seeking one form of relief of another
as it relates to original petitions, counterclaims or cross-claims.
Pursuant to Rule 47 of the Texas Rules of Civil Procedure in pertinent part.
Relief in the alternative or of several different types may be demanded;
provided that on special exception the court shall require the pleader to
amend so as to specify the maximum amount claimed.
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No special exceptions were filed by the attorney ad litem, guardian ad litem
nor the guardian. Nor was any motion in limine filed.
Rule 48 of the Texas Rules of Civil Procedure provides in pertinent part:
A party may set forth two or more statements of a claim or defense
alternatively or hypothetically, either in one count or defense or in separate
counts or defenses. When two or more statements are made in the alternative
and one of them if made independently would be sufficient, the pleading is
not made insufficient by the insufficiency of one or more of the alternative
statements. A party may also state as many claims or defenses as he has
regardless of consistency and whether based upon legal or equitable grounds
or both.
The Court in Surgitek Bristol Meyers Suibb vs. Abel, 997 S.W.2d 598,
601 discussing Rule 71 of the Texas Rules of Civil Procedure held that a court
looks to the substance of the motion to determine the relief sought, not merely its
title. Appellant attempted to point same out to the court. (CCR Vol ____, pgs.
__________ and Vol _____pg ___________
Finally, the appellant did not withdraw its pleading. Pursuant to Rule 75 of
the Texas Rules of Civil Procedure, in order to withdraw a pleading, the pleading,
“the court may by order entered in the minutes allow a filed pleading to be
withdrawn” and costs for doing so must be paid by the party so withdrawing.
-38-
Appellant had no intention of withdrawing the pleading nor was an order sought to
that effect nor was one entered. Therefore, the court lacked the authority to
disregard Appellant’s pleadings. The court erred in determination or finding that
Appellant had no live pleadings on file.
ISSUE NINE
Whether, during the pendency of this appeal, the trial court erred in
granting the Guardian an Order to Sale the Ward’s Estate for Money
due the guardian
On or about August 26, 2015, the Guardian ad litem moved this court for an
order of sale. The Motion in support of the order indicated that the guardian sought
the sell of the ward’s home in order to compensate herself for clothes she had
bought the ward. The guardian can not provide any basis for divesting the plaintiffs
of an asset valued over $80,000.00 in order to award herself an amount alleged to
be slightly over $1000.00.
Same does not constitute a basis cognizable at law to warrant the sale of a
home which is valued at over $80,000.00
The ad litem has failed to substantiate that the amount of clothing purchased
is commensurate with the amount to be netted from the selling of the ward’s home.
Moreover, the ad litem shows no proof that she asked the family or anyone else for
-39-
the clothing of the ward or that she has attempted to obtain same from some other
asset of the ward’s which may be more readily sold.
The amount involved is an unmeritorious basis for the selling of said home.
The children of Edith Phillips maintain a one half interest in the property at
450 N. Fulton and said children may not be divested of their right or interest therein
by the guardian ad l litem selling same.
Pursuant to the Texas Estate Code §201.003:
If a person who dies intestate leaves a surviving spouse, the community estate
of the deceased spouse passes as provided by this section:
2) all of the surviving children and descendants of the deceased spouse
are also children or descendants of the surviving spouse.
c) If the deceased spouse is survived by a child or other descendant who
is not also a child or descendant of the surviving spouse, one-half of
the community estate is retained by the surviving spouse and the other
one-half passes to the deceased spouse’ s children or descendants.
Therefore, the guardian ad litem lacks the authority to divest the children of
Edith Phillips of their one half share in the property located at 405 North Fulton,
Texas City, Texas or any other property.
-40-
Pursuant to the Texas Estate Code, the estate of the ward may not be sold
because the guardian failed to comply with Texas Estate Code § 1158.252-
1158.256 and 1158.051
1) property exempt from forced sale;
2) property that is the subject of a specific legacy.
Therefore, the trial court exceeded its authority in signing an order granting
said sale.
Additionally, no notice was provided to the children of the ward who have a
justiciable interest in the home.
Moreover, appellant contends that selling the estate of the ward simply to
compensate the guardian places the ward and the guardian in a position of conflict
of interests, and said action is not sought in the best interests of the ward.
Therefore, it is incumbent on the court to set aside said order and remove the
guardian.
Same is clearly violative of the United States Constitution, Fourteenth
Amendment in that it deprives the children of Lonnie Phillips, Jr. procedural due
process in that they are being divested of a property right without notice and
without benefit of a hearing.
-41-
More importantly, the guardian currently seeks instruction from the court as
it relates to refusing to resuscitate the ward. No guardian who has a ward with
living children should be vested with power to determine life or death, nor should
be court be vested with such power. Deciding same, when the ward has living
children, without first consulting them is a flagrant disregard for the rights and
needs of the family and are further violative of his right to life as guaranteed by the
United States Constitution.
The court has erred in continuing to issue orders contrary to the rights of the
ward, when its orders are void due to lack of jurisdiction.
CONCLUSION
Appellant sought an application to become his father’s guardian. Said
guardianship was sought for a limited matter and for a limited period. Through the
actions of the court and the ad litems appointed in this cause, the ward is currently
being divested of his rights, his property, and his life.
Appellant contends that the court lacked jurisdiction to open a guardianship
proceeding at the outset because same was sought without meeting the jurisdictional
prerequisites regarding notice and service. The order granting the temporary
guardianship was signed without notice to the appellant who instituted guardianship
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proceedings, the children and other relatives of the ward, and without notice to
counsel. Therefore, the court lacked jurisdiction. The orders therefore entered
thereafter were void ab initio. Therefore, all orders flowing from a void order when
the court lacks jurisdiction are also void. Additionally, the orders should be set aside
because the initial order was obtained ex parte offending the Texas Rules of
Professional Conduct.
Additionally, the trial court offended the appellant’s due process rights in its
rulings in this cause and wholly refused to allow the appellant/ applicant to defend
this cause or put on any evidence contrary to that proffered by the guardian, the
guardian ad litem and the attorney ad litem.
WHEREFORE PREMISES CONSIDERED, the appellant prays that this
Honorable Court:
1) Expedite ruling in this cause due to the issues involving the sale of the
home and the application for a do no resuscitate order;
2) Reverse the orders of the trial court granting a guardianship;
3) Order all rulings and orders issued by the trial court as void;
4) Deny any applications for costs and attorney’s fees;
5) Reverse any orders awarding fees against the ward’s estate;
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6) Grant any other and further relief to which Appellant may be justly
entitled.
Respectfully submitted,
/s/ Veronica L. Davis
Veronica L. Davis
Attorney for Appellant
SBR # 05557300
226 N. Mattson
West Columbia, Texas 77486
(979) 345-2953
vld57atal@yahoo.com
CERTIFICATE OF SERVICE
I hereby certify that this document has been served by efiling to opposing
counsel on this the 18th day of September, 2015.
/s/ Veronica L. Davis
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief is less than the 50 pages allowed by the Texas
Rules of Appellate Procedure. The word count is 9278, excluding those allowed by
the aforementioned rule.
/s/ Veronica L. Davis
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