in the Guardianship of Lonnie Phillips, Jr., an Incapacitated Person
01-14-01004-CV
| Tex. App. | Oct 7, 2015Background
- Appellant Kevin Campbell (through counsel Veronica L. Davis) moves to strike a Motion to Dismiss filed by M. Brandon Maggiore and to expedite determination that the Galveston County Probate Court lacked jurisdiction in the guardianship of Lonnie Phillips, Jr.
- Maggiore served as a guardian ad litem/temporary investigator under a limited appointment; appellant contends Maggiore exceeded that limited authority and lacks standing to file dismissal motions or otherwise act as appellee.
- Appellant challenges the validity of the probate court's temporary and permanent guardianship orders, arguing service and notice requirements under the Texas Estates Code were not met and therefore the court never obtained personal jurisdiction over the proposed ward.
- Appellant asserts his motion for rehearing and notice of appeal were timely filed (initially rejected by clerk for formatting, later accepted), so the appeal is not untimely.
- Appellant argues many of Maggiore’s later filings and actions are beyond the scope of his appointment and continuing; he asks this court to declare the probate orders void, dismiss the guardianship, bar Maggiore from further filings, and protect the ward’s property from sale.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority/standing to move to dismiss | Maggiore is only a guardian ad litem with limited investigatory powers and was not appointed guardian; he lacks authority to prosecute or be appellee | Maggiore asserts the filings are proper and timely and that his appointment permits participation (per court orders) | No appellate ruling in record; appellant seeks to strike Maggiore’s motion and bar him from further pleadings |
| Jurisdiction/service on proposed ward | Probated guardianship orders are void because the Estates Code required personal service on a proposed ward 12 or older; no such service was given | Court/Movant (Maggiore) contends orders are valid and final | No final appellate ruling in record; appellant asks court to declare orders void for lack of jurisdiction |
| Timeliness/finality of appeals and rehearing | Appellant filed motion for rehearing on Nov 3, 2014 (initially rejected for formatting but later accepted Nov 6); thus appeal was timely and issues 1–5 and 8 are timely | Maggiore contends certain issues were not timely raised and therefore appellate jurisdiction is lacking | No appellate ruling in record; appellant maintains appeal is timely and will re-file if needed |
| Scope of guardian ad litem appointment and continuing acts | Maggiore’s acts after discharge and beyond his limited appointment exceed authority; ongoing filings are new violations and cannot create finality | Maggiore argues his December appointment and subsequent activity allow him to litigate and defend the guardianship | No appellate ruling in record; appellant seeks prohibition on Maggiore’s filings and to tax fees against him |
Key Cases Cited
- Ortiz v. Gutierrez, 792 S.W.2d 118 (Tex. App.—San Antonio 1989, writ dism'd) (strict statutory compliance for probate jurisdiction)
- Erickson v. [unknown caption as cited], 208 S.W.3d 740 (Tex. App.) (court may not appoint permanent guardian until statutorily required notice period expires)
- PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 (Tex. 2012) (judgment rendered without jurisdiction is void)
- De Ayala v. Mackie, 193 S.W.3d 575 (Tex. 2006) (unique finality rules in probate; discrete orders can be final for appeal)
- Threatt v. Johnson, 156 S.W. 1137 (Tex. Civ. App.) (statutory compliance is jurisdictional in guardianship appointments)