in the Guardianship of Lonnie Phillips, Jr., an Incapacitated Person ( 2015 )

ACCEPTED
01-14-01004-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/7/2015 6:09:52 PM
CHRISTOPHER PRINE
CLERK
IN THE FIRST
COURT OF APPEALS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
HOUSTON DIVISION 10/7/2015 6:09:52 PM
CHRISTOPHER A. PRINE
Clerk
__________________________________________________________________
KEVIN CAMPBELL
Appellant
VS.
CATHERINE WILEY
Appellee
__________________________________________________________________
APPELLANT’S MOTION TO STRIKE MAGGIORE’S
MOTION TO DISMISS APPELLANT’S APPEAL &
MOTION TO EXPEDITE DETERMINATION THAT PROBATE COURT
LACKED JURISDICTION AND TO DISMISS THE TRIAL COURT CASE
__________________________________________________________________
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
IN THE FIRST
COURT OF APPEALS
HOUSTON DIVISION
KEVIN CAMPBELL
Appellant
VS. No. 01-14-01004-CV
CATHERINE WILEY
Appellee
APPELLANT’S MOTION TO STRIKE MAGGIORE’S MOTION TO
DISMISS FOR LACK OF JURISDICTION & MOTION TO
EXPEDITE DETERMINATION THAT PROBATE COURT
LACKED JURISDICTION AND TO DISMISS THE TRIAL COURT CASE
TO THE HONORABLE COURT:
Appellant, Kevin Campbell, hereby moves this court to strike the Motion to
Dismiss filed by M. Brandon Maggiore and in support thereof would show the
following:
I.
Maggiore is not the appellee in this cause, and has no authority to seek
dismissal as set out in Issue Six of Appellant’s appellate brief.
As set out in Appellant’s brief, Maggiore is not vested with authority to
pursue any matter relevant to this appeal. The Texas Estates Code vests authority
in the guardian only to respond to any matters which arise after appeal. The
guardian ad litem is given no such authority.
Pursuant to Texas Estates Code 1152.001 Guardian to Serve Pending
Appeal of Appointment:
Pending an appeal from an order or judgment appointing a guardian, the
appointee shall:
2) prosecute a pending suit in favor of the guardianship
Therefore, Maggiore lacks authority to prosecute this appeal or deem himself
to be the appellee, as he was not appointed guardian in this cause.
II.
Maggiore’s Motion exceeds the scope of his appointment as contained in
his appointment order, as well as outined by the Texas Estates Code.
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
testing records
3) to discuss medical or psychological condition
The guardianship appointment is technically the same as the one signed on
initiated on December 06, 2013.
Aany action taken subsequent to his discharge on or about October 03, 2014,
is beyond the scope of his appointment and thereby impermissible. Even though
reappointed on December 29, 2014, he is only given the limited powers outlined
above. There is no continuing duty to act given either by order or by statute. (See
Exhibit A, attached and incorporated by reference, the same as if fully copied and
set forth herein).
III.
Maggiore contends that the issues briefed by Appellant as 1-5 and 8 were not
timely, thereby depriving the court of jurisdiction. Issues 1-5 and 8 deal primariy
with the appointment of the guardian ad litem and the continuing acts of the said
guardian, up to and through her appointment as permanent guardian.
More specifically, Maggiore contends that the Motion for Rehearing was due
to be filed on November 03, 2014. Appellant filed same timely and therefore the
argument of Maggiore is without merit.
Appellant filed its Motion for Rehearing on November 03, 2014 at 11:18
p.m. (See Exhibit B, attached and incorporated by reference, the same as if fully
copied and set forth herein). It is noted on said filing (Envelope Number 3051331)
that the clerk rejected same due to Exhibit A being sent as an attachment, rather
than combining the pleading and appendix as one document. Whether a document
is an attachment or to be contained along with the original pleading is a practice that
varies from court to court, county to county, and among clerks within the same
county.
Upon notification, Appellant resubmitted said document again, with same
being accepted on November 06, 2014. (See Exhibit C, attached and incorporated
by reference, the same as if fully copied herein). Appellant’s note to the clerk refers
to the previous envelope number and requests that the clerk show the original filing
date.
Texas Rules of Civil Procedure 21a(b)(3) provides that:
(3) Electronic service is complete on transmission of the document to the
serving party's electronic filing service provider. The electronic filing
manager will send confirmation of service to the serving party.
Therefore, Appellant’s Motion for Rehearing was timely filed, making its
notice of appeal timely. Consequently, Maggiore’s argument is without merit
IV.
Appellant contends further that the court never obtained jurisdiction to
appoint the guardian or guardian ad litem as set out in its Brief. More specifically,
while the appellant had a guardianship application on file, awaiting a hearing,
Maggiore filed a counter-application on January 30, 2014, and had an ex pare
hearing with the court. The court entered an order of appointment of temporary
guardian on the same day. Appellant contends that said appointment was void and
that the probate court never obtained jurisdiction over Lonnie Phillips, Jr.
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 noticed nor served nor was the applicant/appellant served.
The ad litem appeared ex parte and obtained said temporary guardianship, though a
pending application was on file by the appellant.
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 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.
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 [
Emphasis added]
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 Kathryn as guardian.
[Emphasis added]
Therefore, Appellant contends that the court never acquired proper
jurisdiction over the proposed ward, Lonnie Phillips, and all other orders entered
thereafter, are in all things void. Jurisdiction is never waived.
V.
Maggiore further contends that there was finality of judgment after each
ruling by the court, thereby making the appeal untimely. Appellant contradicts
same on the basis that the guardianship proceeding has a number of decisions
which may be interlocutory or may become final, based upon the seeming finality
of judgment and what such ruling entails. Appellant contends that the temporary
and permanent guardianship issue only became final, after the court failed to grant a
rehearing on the issue of guardianship on November 19, 2014.
In In re Guardianship of Miller, 299 S.W.3d 179 (Tex.App.-Dallas 2009),
the court held as follows:
There are, however, some unique rules regarding judgment finality that may
apply to matters governed by the probate code. De Ayala v. Mackie, 193
S.W.3d 575, 578 (Tex.2006). These exceptions to the one-judgment rule are
necessary because of the need to " review controlling, intermediate decisions
before an error can harm later phases of the proceeding." Id. In such cases, "
multiple judgments final for purposes of appeal can be rendered on certain
discrete issues." Id. Both the substantial right test and the requirement
outlined in Crowson v. Wakeham, 897 S.W.2d 779 (Tex.1995), that the
order dispose of all issues in the " phase of the proceeding" for which it was
brought, may be used to determine whether an " ostensibly interlocutory
probate order has sufficient attributes of finality" to confer appellate
jurisdiction. See De Ayala, 193 S.W.3d at 578. However, there is no need to
resort to the unique probate rules used to determine whether a seemingly
interlocutory order is appealable if the order is otherwise final.
Appellant contends that Maggiore is incorrect as it relates to finality of
judgment in this cause.
VI.
Maggiore further errs in his contention that it is too late to file an appeal
regarding his appointment of December 29, 2015. Because said order provides
Maggiore with no authority, other than to do the necessary work to set up a
guardianship and one was already in place, it afforded Maggiore no authority to act
in any manner which he has acted since the date of his appointment. His acts
exceed the scope of his appointment order and are continuing acts and each new
pleading filed by him is a new violation of said order. Not only does Appellant
contend that the order should not have been put in place, but it contests Maggiore’s
authority to act as litigant, as it relates to said order.
Additionally, Appellant contends that the court nor counsel provided Davis
further notice of any pleadings after she filed her notice of appeal, with the
exception of the pleadings regarding recusal.
Therefore, Appellant does not believe that Issue 6 is not permissible. Since
said acts are ongoing, to cure the alleged defect, Appellant will file a second notice
of appeal.
VII.
Finally, the court lacked authority to issue an order to sell the property of the
ward. As heretofore stated, the court lacked jurisdiction at the outset and all orders
of the court are void ab initio. It is therefore imperative that this court issue a ruling
with respect to this Motion making such a finding before the property of the ward is
disposed of by the “guardian.”
Because the appellant contends that the orders of the court appointing a
temporary and permanent guardian were void at the outset and because the court
never acquired jurisdiction of the ward or the proceedings pertaining to the
guardianship, the Appellant seeks to strike the pleading of Maggiore and that this
Court order that the guardianship proceeding be dismissed, that this court declare all
orders for the Galveston County Probate court as it relates to the Guardianship of
Lonnie Phillips, Jr. as void.
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;
6) Prohibit the filing of any other pleadings in this cause by M. Brandon
Maggiore
7) Tax attorney’s fees and costs against Maggiore; and
8) 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
SBT # 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 7th day of October, 2015.
/s/ Veronica L. Davis