holding Parties. In its order, the trial court also found that it did not that a judgment is not void merely because the court erred have jurisdiction over Riggins's Post–Mandate Motions. In in adjudicating the merits
How later courts described this case
- holding Parties. In its order, the trial court also found that it did not that a judgment is not void merely because the court erred have jurisdiction over Riggins's Post–Mandate Motions. In in adjudicating the merits
- holding that no abuse of discretion was shown where appellant did not comply with Rule 251
- Hecht, on the State Court of Claims exclusive jurisdiction to hear J., concurring
- “only through S.W.2d 863, 866 (Tex.App.-Houston [14th Dist.] 1995, orig. compliance with Section 633 of the Texas Probate proceeding). A trial court's jurisdiction is a question of law an Code is the trial court's jurisdiction invoked”
Written by the judges who cited it.
The opinion
N0. 01-14-01004-CV
IN THE FILED IN
1st COURT OF APPEALS
FIRST COURT OF APPEAL HOUSTON, TEXAS
AT HOUSTON 10/22/2015 4:44:20 PM
CHRISTOPHER A. PRINE
___________________________ Clerk
Kevin CAMPBELL,
Apellant
v.
Catherine N. WYLIE and M. Brandon MAGGIORE
Appelees
___________________________
On appeal from the Galveston County Statutory Probate Court
Galveston County, Texas
Trial Court Case Number PR-74571
APELLEES INDEX
Respectfully submitted,
M. Brandon Maggiore
State Bar No.: 24078901
Maggiore Law Firm, PLLC
2442 S. Downing Street, Suite 100
Denver, CO 80210
Telephone: (713) 239.3347
Facsimile: (713) 581.1894
brandon@maggiorelawfirm.com
GUARDIAN AD LITEM FOR
LONNIE PHILLIPS, JR., AN
INCAPACITATED PERSON
Trial court orders
01/30/2014 - Application for Temp. Guardian Pending Contest ...................... Tab 1
01/30/2014 - Order Appointing Temp. Guardian Pending Contest .................. Tab 2
03/13/2014 - Standards for Court Approval of Appointee Fee Petitions .......... Tab 3
03/28/2014 - Motion and/or Notice to Withdraw Guardianship and Close
Estate .............................................................................................................. Tab 4
12/20/2014 - Order Authorizing Appointee Fees .............................................. Tab 5
12/31/2014 - Order Appointing Guardian Ad Litem......................................... Tab 6
08/05/2015 - Application for as is Sale of Real Property.................................. Tab 7
08/28/2015 - Order Authorizing Sale of Real Property .................................... Tab 8
09/08/2015 - Motion for Instructions (regarding a Do Not Resuscitate Order) Tab 9
09/21/2015 - Amended Application for as is Sale of Real Property ............... Tab 10
10/07/2015 - Order on Amended Application for As is Sale of Real PropertyTab 11
Statutes
Tex. Est. Code Ann. § 1054.001 (West 2014) ............................................... Tab 12
Tex. Est. Code Ann. § 1051.055 (West 2014) ................................................ Tab 13
Tex. Est. Code Ann. § 1051.104 (West 2014) ................................................ Tab 14
Tex. Est. Code Ann. § 1051.104(a) (West 2014) ............................................ Tab 15
Tex. Est. Code Ann. § 1051.104(c) (West 2014). ........................................... Tab 16
Tex. Est. Code Ann. § 1051.106 (West 2014) ................................................ Tab 17
Tex. Est. Code Ann. § 1051.153 (West 2014) ................................................ Tab 18
Tex. Est. Code Ann. § 1054.055 (West 2014) ................................................ Tab 19
Tex. Est. Code Ann. § 1054.201 (West 2014) ................................................ Tab 20
Tex. Est. Code Ann. § 1104.101 (West 2014) ................................................ Tab 21
Tex. Est. Code Ann. § 1104.102 (West 2014) ................................................ Tab 22
Tex. Est. Code Ann. § 1104.354. (West 2014) ............................................... Tab 23
Tex. Est. Code Ann. § 1105.251. (West 2014) ............................................... Tab 24
Tex. Est. Code Ann. § 1152.001 (West 2014) ................................................ Tab 25
Tex. Est. Code Ann. § 1158.051 (West 2014) ................................................ Tab 26
Tex. Est. Code Ann. § 1158.255 (West 2015) ................................................ Tab 27
Tex. Est. Code Ann. § 1251.007 (West 2014) ................................................ Tab 28
Tex. Est. Code Ann. § 1251.051 (West 2014) ................................................ Tab 29
Tex. Est. Code Ann. § 1251.052 (West 2014) ................................................ Tab 30
Cases
Bridgman v. Moore, 183 S.W. 2d 705 (Tex. 1944) ........................................ Tab 31
Camarena v. Tex. Employment Comm'n, 754 S.W.2d 149 (Tex.1988) ......... Tab 32
Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928 (Tex.App.—
Houston [14th Dist. 2008, no pet.)............................................................... Tab 33
Casteel-Diebolt v Diebolt, 912 S.W.2d 302 (Tex. App—Houston [14th
Dist.] 1995, no writ) ..................................................................................... Tab 34
City of Arlington v. State Farm Lloyds, 145 S.W.3d 165 (Tex. 2004) ........... Tab 35
City of San Antonio v. Longoria, 04–04–00063–CV, 2004 WL 2098074
(Tex.App.-San Antonio Sept. 22, 2004, no pet.) (mem. op.) ....................... Tan 36
Daniel v. Falcon Interest Realty, Corp., 190 S.W.3d 177 (Tex.App.—
Houston [1st Dist.] 2005, no pet.) ............................................................... Tab 37
Ex parte R.D.N., 918 So.2d 100 (Alabama 2005) ........................................... Tab 38
Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997) ............................... Tab 39
Hamilton County v. Cooper, No. 05–07–00307–CV, 2007 WL 2774166,
(Tex.App.-Dallas Sept.25, 2007, no pet.) .................................................... Tab 40
Heard v. Houston Post. Co., 684 S.W.2d 210 (Tex.App.—Houston [14th
Dist.] 1984, writ refused n.r.e.) .................................................................... Tab 41
In re G.S., No. 14–14–00477–CV, 2014 WL 4699480 (Tex. App.—Houston
[14th Dist.] 2014, no pet.) (mem. op.) ......................................................... Tab 42
In re H.B.N.S., Nos. 14-05-004100-CV, 14-06-00102-CV, 2007 WL
2034913 (Tx.App—Houston [14th Dist. July 17, 2007, review denied)
(mem. op.) .................................................................................................... Tab 43
In re Leon, No. 14-13-01134-CV 2014 WL 953491 (Tex.App.—Houston
[14th Dist.] March 11, 2014, no pet.) (original proceeding)........................ Tab 44
In re Smith, No. 05–09–00913–CV, 2010 WL 4324434 (Tex. App—Dallas
Nov. 3, 2010, orig. proceeding, no pet.) (mem. op.).................................... Tab 45
In the Matter of J.B.K., 931 S.W.2d 581 (Tex.App.—El Paso 1996, no pet.) Tab 46
Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87 (Tex. 1973) ..................... Tab 47
Manon v. Solis, 142 S.W.3d 390 (Tex.App—Houston [14th Dist. 2004,
review denied) .............................................................................................. Tab 48
Parkway Hosp. Inc., v. Lee, 946 S.W.2d 580 (Tex.App.—Houston [14th
Dist.] 1997) (reversed on other grounds) ..................................................... Tab 49
Pearland Capital Group, LP v. Horizon United Group International et al, No.
01-11-00324-CV 2011 WL 4611533 (Tex.App.—Houston [1st Dist.]
September 30, 2011, no pet.) (mem. op.)..................................................... Tab 50
Poland et al v. Grigoer et al, 249 S.W.3d 607 (Tex.—App. Houston [1st.
Dist.] 2008) .................................................................................................. Tab 51
Riggins v. Hill et al, 461 S.W.3d 577 (Tex.App.—Houston [14th Dist.]
2014, pet. denied). ........................................................................................ Tab 52
Robinson v. Alief I.S.D., 298 S.W.3d 321 (Tex.App.–Houston [14th Dist.]
2009, pet. denied) ......................................................................................... Tab 53
Scurlock Permian Corp. v. Brazos County et al, 869 S.W.2d 478
(Tex.App.—Houston [1st Dist.] 1993, writ denied) .................................... Tab 54
Simon v. York Crane & Rigging, Co., Inc., 739 S.W.2d 793 (Tex. 1987) ..... Tab 55
Sw. Constr. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859
(Tex.App.—Texarkana 2005, pet. denied) .................................................. Tab 56
Texas Dept. of Transp. v. Able et al, 35 S.W.3d 608 (Tex. 2000) .................. Tab 57
Thompson v. Ricardo, 269 S.W.3d 100 (Tex.App.–Houston [14th Dist.]
2008, no pet.) ............................................................................................... Tab 58
Till v. Thomas, 10 S.W.3d 730 (Tex.App.-Houston [1st Dist.] 1999, no pet.) Tab 59
Trimble v. Texas Department of Protective and Regulatory Services, 981
S.W.2d 211 (Tex.App—Houston [14th Dist.] 1998, no pet.) ...................... Tab 60
Warth v. Seldin, 422 U.S. 490 (1975) ............................................................. Tab 61
Weaver v. Sw. Nat’l Bank, 813 S.W.2d 481 (Tex. 1991). .............................. Tab 62
Whatley v. Walker, 302 S.W.3d 314 (Tex.—App.Houston [14th Dist.] 2009
pet. denied) ................................................................................................... Tab 63
Zipp v. Wuemling, 218 S.W.3d 71 (Tex. 2007, per curiam) .......................... Tab 64
Other Authorities
Op. Tex. Att’y Gen. No. H-410 (1974) ........................................................... Tab 65
CAUSE NUMBER PR-74571
IN THE GUARDIANSHIP OF § IN THE PROBATE COURT
§
LONNIE PHILLIPS, JR., § GALVESTON
§
AN INCAPACITATED PERSON § GALVESTON COUNTY, TEXAS
APPLICATION FOR APPOINTMENT OF
TEMPORARY GUARDIAN OF THE PERSON AND ESTATE
PENDING CONTEST
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, M. Brandon Maggiore, Guardian Ad Litem, ("Applicant"), and makes
and files this Application for Appointment of Temporary Guardian of the Person and Estate of
Lonnie Phillips, Jr., an Adult, ("Proposed Ward") Pending Contest pursuant to Sec. 1251.051,
Tex. Est. Code. Applicant is not related to the Proposed Ward. Applicant's address is 1001 Texas
Avenue, Suite 1400, Houston, Harris County, Texas. Applicant would respectfully show the
Court the following:
I.
The Proposed Ward is a male who is 87 years old, having been born on July 25, 1926.
The Proposed Ward currently resides at 2800 East League City Parkway, #720, Texas City,
Galveston County, Texas.
II.
There is an imminent danger that the Proposed Ward's physical well-being may be
Phillips, Lonnie -Application for Temporary Guardian Pending Contest Page 1 o£6
Page 10
impaired and Proposed Ward's estate may be wasted because Proposed Ward is unable to make
reasonable, informed decisions concerning his health or his estate and litigation involving the
Proposed Ward has been instituted without a Guardian being appointed to represent his legal and
interests.
III.
A necessity exists for the appointment of a Temporary Guardian of the Person and Estate
of Proposed Ward pending the contest of the Application for Appointment of a Permanent
Guardian. Applicant requests that the Court appoint a Temporary Guardian of the Person, if it is
needed, and a Temporary Guardian of the Estate of Proposed Ward, which Estate is valued at
approximately $60,000.00, including any compensation, pension, insurance, or allowance to
which the Proposed Ward may be entitled.
IV.
Applicant states to the Court that the dangers to the Person and Estate of the Proposed
Ward which require immediate action include the immediate danger posed to the Proposed
Ward's legal and pecuniary interests, which legal and financial matter's may place him in danger
of loosing his current residence. The facts necessitating the guardianship are set out in further
detail in Section VIII below.
II
Phillips, Lonnie -Application for Temporary Guardian Pending Contest Page 2 o£6
Page 11
v.
Applicant states that Lance Ervin Phillips, whose address is 2813 Moore Avenue, Bay
City, Texas, holds a general power of attorney signed by the Proposed Ward, which Power of
Attorney is attached as "Exhibit A."
VI.
Applicant requests that the powers granted Lance Ervin Phillips under the power of
attorney be terminated on the qualification of the temporary guardian.
VII.
Applicant requests that if the Court appoints a Temporary Guardian, it grant him or her
the powers and authority to represent the Proposed Ward's interests in any pending litigation; to
initiate additional litigation if necessary to recovery the Proposed Ward's assets or to protect his
assets, property, or well being; to review and any and all documents from his prior attorney for
the last five years and for any time period for estate or incapacity planning documents; the right
to retain litigation counsel if necessary to adequately act on any of the foregoing requested
powers; the right to collect all the Ward's assets and property, both real and personal, wherever
situated and by whomsoever held, including to become the payee for any pension, retirement,
Social Security, or other income, retirement, or public benefit; to order any workmen or repair
work being done to the Proposed Ward's residence either cease or continue; and to make monthly
expenditures on the Ward's behalf from the Ward's Estate not to exceed an amount set by the
Court.
II
Phillips, Lonnie -Application for Temporary Guardian Pending Contest Page 3 o£6
Page 12
VIII.
Applicant states to the Court that the facts and reasons which support the requested
powers are The Proposed Ward's estate is in imminent danger of irreparable damage due to his
lack of proper representation in the pending lawsuit against Paul Davis Restoration, 405th
Judicial District Court, Galveston County Cause Number 14-CV-0027. In this cause, here is a
discrepancy whether the Petitioners are acting pro se or are represented by Ms. Davis: The
pleading states it was filed by two children of the Proposed Ward, Ava Phillips and Kevin
Campbell, in an individual capacity and as next friend of the Proposed Ward. This Petition was
drafted by Ms. Veronica Davis, signed for the Petitioners "with permission," but the Petition
itself lists the Petitioner's as "pro se." The District clerk, however, lists Ms. Veronica Davis as
lead Counsel and Ms. Davis signed the request for service of citation. This litigation was filed
after the guardianship proceeding was initiated in this court.
Moreover, The Proposed Ward's assets are being spent by family members and Ms.
Veronica Davis for repairs and materials, ostensibly for the repair of his home which was
damaged by fire without a proper person to oversee that the expediters actually benefit the
Proposed Ward and/or his Estate and that such expenditures are in the best interest of the
Proposed Ward.
IX.
Applicant prays that a hearing on this Application be set; that the Court appoint a proper
person Temporary Guardian of the Person and Estate of Lonnie Phillips, Jr., an Incapacitated
Adult; that the Court Order appointing Temporary Guardian be effective upon the guardian
taking the Oath and giving a bond as required by law; that upon the Temporary Guardian's
Phillips, Lonnie -Application for Temporary Guardian Pending Contest Page 4 o£6
Page 13
qualification, the Clerk of this Court shall so note such qualification on any certified copy of said
Order; that the Court appoint an Attorney Ad Litem to represent the Ward's Person and Estate, if
not already appointed; and that the Court enter any other Orders it deems necessary.
Respectfully submitted,
MAGGIORE LAW FIRM PLLC
1001 TexasAvenue, Suite 1400
Houston, TX 77002
M. Brandon Maggiore
Guardian Ad Litem, Applicant
State Bar No.: 2408901
E-mail: brandon@maggiorelawfirm.com
FlLED
2114 JAN 30 PH 2: 51t
. COUNTY CLERK
GALVESTON COUNTY. TEXAS
Phillips, Lonnie -Application for Temporary Guardian Pending Contest Page 5 o£6
Page 14
STATE OF TEXAS §
§
COUNTY OF HARRIS §
BEFORE ME, the undersigned authority, on this day personally appeared M. Brandon
Maggiore, Guardian Ad Litem, Applicant in the foregoing Application for Appointment of
Temporary Guardian of the Person and Estate of Lonnie Phillips, Jr., an Adult, Pending Contest
known to me to be the person whose name is subscribed to the above and foregoing Application
and stated under oath that such Application contains a correct and complete statement of the facts
and matters to which it relates and all the contents thereof are true, complete and correct to the
best of Applicant's knowledge.
Applicant
SWORN AND SUBSCRIBED TO BEFORE ME on this theQ:}_ day of Jif!U&v'"'J
2014.
KARISSA BETH MENDENHALL Notary Public, State ofTexas
: '; Notary Public, State of Texas
.. Mv Commission Expires
.,,,w;,....- December 11, 2016
F\LED
2814 JAN 30 PH 2: Sit
GALVESTON COUHlY· TEXAS
Phillips, Lonnie -Application for Temporary Guardian Pending Contest Page 6 o£6
Page 15
UEXHIBIT A"
FILED
2814 JAN 30 PH 2: Sit
COUNTY CLERK
GALVESTON COUNTY. TEXAS
Page 16
. ------- ··------
,----._
.. . 1110011m111111111 2812841328..
3 PGS
077430
POWER OF ATI'ORNEY- GENERAL
Lt,,..., Pk.t{: rt (the "Gnntoi') haeby glllll18 to
l E&Vrl\1 (the"Agent")ageneralpowerof
attorney. As the Grantor's attomey in fact, the Ageot sball have full power and
authority to undertake any and an acts which may be lawtblly uodertaken on
behalf of the grantor including but not limited to the riaht to buy, sell, lease,
mortgage, assign, rent or otherwise dispose of any teal or personal property
belonging to the Grantor; to execute, accept, undertake 8Dd perform comracts in
the name of the Grantor; to deposit, endorse, or witbdraw funds to or from any
bank depository of the Grantor; to initiate, defend or settle legal actions on behalf
of the Grantor; and to retain any accountant, attorney or other advisor deemed by
the Agent to be necessary to protect the interests ofthe Grantor in relation to such
powers.
By accepting this grant, the Agent agrees to act in a fiduciary capacity
coasisteat with the reasoDable best iDteJests of the Grantor. This power of
attorney may be revoked by the Grantor at any time; however, any penon cleating
with the Ageot as attorney in rely on this appointment until receipt of
actual notice of termination.
-.
A CERTIFIED COPY
0 Janet Hlckl. County Clerk
_Matagorda County. Texas
Page _l_ of :J,...
··
03500177011001
Year: 2007 No: 077430 Type: PA
!
Page 17
,r
' l,.
FILED
.
ZDDl SEP 21 PH 3: 17
COUNTY CLERK
HATAGOROA COWF v. TEXAS SEP 2t.·D7
•
' ; · ...
COUNTY ClER!<. MltiQoldl County,,._
0 ==='Q;£0 A CERTIFIED COPV
Page
<
PH 2: 5lt
COUNTY CLERK
GALVESTON COUNTY. TEXAS
L
Page 18
CAUSE NUMBER PR-74,571
IN THE GUARDIANSHIP OF § IN THE PROBATE COURT
§
LONNIE PHILLIPS, JR. § OF
§
AN INCAPACITATED PERSON § GALVESTON COUNTY, TEXAS
CERTIFICATE OF SERVICE
I, Matthew Brandon Maggiore, certify that the foregoing instrument was served on each
attorney of record or party in accordance with the Texas Rules of Civil Procedure on January 30,
2014 as follows:
Matthew Brandon
Guardian Ad Litem
Veronica L. Davis
Attorney for Applicant
Texas Bar No. 05557300
226 N. Mattson
West Columbia, Texas 77486
Telephone: (979) 345-2953
Facsimile: (979) 345-5461
FILED
2014 JAN 30 PH 2: 54
COUNTY CLERK
GALVESTON COUNTY. TEXAS
Page 19
CAUSE NUMBER PR-74571
IN THE GUARDIANSHIP OF § IN THE PROBATE COURT
§
LONNIE PHILLIPS, JR., § GALVESTON
§
AN INCAPACITATED PERSON § GALVESTON COUNTY, TEXAS
ORDER APPOINTING TEMPORARY GUARDIAN
PENDING CONTEST
On this day came on to be considered the Application of M. Brandon Maggiore,
Guardian Ad Litem, for the Appointment of a Temporary Guardian Pending Contest of
the Person and Estate of Lonnie Phillips, Jr., An Incapacitated Person, whose presence
was determined to be not necessary by the Court. The Court, after having been advised
that a contest to the appointment of a Guardian has been filed, and after having
considered said Application for the Appointment of a Temporary Guardian Pending
Contest and the evidence submitted, finds there is clear and convincing evidence that
an imminent danger exists making it necessary for the Court to appoint a Temporary
Guardian, pending contest, pursuant to Section 1251.051 of the Texas Estates Code; that
_·_ _ _ _ _ _ _ _ is eligible to act as such Temporary
Guardian pending contest; that said appointment is in the best interest of the Proposed
Ward; that Lonnie Phillips, Jr., is An Incapacitated Person and his Person and Estate
PHILLIPS, LONNIE -ORDER APPOINTING GUARDIAN PENDING CONTEST PAGE 1 OF 4
Page 25
require immediate care; that this Court has jurisdiction over the subject matter and over
the parties herein.
NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY USE
REASONABLE EFFORTS TO ENFORCE THE RIGHT OF A GUARDIAN OF THE
PERSON OF A WARD TO HAVE PHYSICAL POSSESSION OF THE WARD OR TO
ESTABLISH THE WARD'S LEGAL DOMICILE AS SPECIFIED IN THIS ORDER. A
PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT ORDER AND THE
OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY AGAINST
ANY CIVIL OR OTHER CLAIM REGARDING THE OFFICER'S GOOD FAITH ACTS
PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING THE
TERMS OF THIS ORDER THAT RELATE TO THE ABOVE-MENTIONED RIGHTS OF
THE COURT-APPOINTED GUARDIAN OF THE PERSON OF THE WARD. ANY
PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER THAT IS
INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY BE
PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A
FINE OF AS MUCH AS $10,000.
IT IS THEREFORE ORDERED, that Ouli-t.uttt rJ ·
whose address is d;-11 f\JJr(i:llc Sf-. tf/0, r fX '] whose
telephone number is -1/J is appointed Temporary Guardian of the
Person and Estate of Lonnie Phillips, Jr., An Incapacitated Person, pending the trial on
PHILLIPS, LONNIE -ORDER APPOINTING GUARDIAN PENDING CONTEST PAGE 2 OF 4
Page 26
the contest of appointment of a Guardian.
IT IS FURTHER ORDERED, that the Clerk shall attach a certificate to this Order
showing compliance upon the Guardian taking her Oath and giving a bond in the sum
of$ , which is the proper sum hereby Ordered fixed in accordance with
the requirements of law.
IT IS FURTHER ORDERED, by the Court that the Temporary Guardianship
shall be enforced for a period of sixty (60) days from the date of original Application for
Appointment of a Temporary Guardian Pending Contest, in accordance with Section
1251.151 of the Texas Estates Code, or at the conclusion of a trial on the contest, in
accordance with Section 1251.051 of the Texas Estates Code, whichever is later.
IT IS FURTHER ORDERED, that the Temporary Guardian of the Person and
Estate of Lonnie Phillips, Jr., An Incapacitated Person, shall have the powers and
authority to represent the Proposed Ward's interests in any pending litigation; to initiate
additional litigation if necessary to recovery the Proposed Ward's assets or to protect his
assets, property, or well being; to obtain any and all documents from his prior attorney
for the last five years and for any time period for estate or incapacity planning
documents; the right to retain litigation counsel if necessary to exercise any of the
foregoing powers.
IT IS FURTHER ORDERED, that the Temporary Guardian of the Person and
Estate of Lonnie Phillips, Jr., An Incapacitated Person, shall have the right to collect all
PHILLIPS, LONNIE -ORDER APPOINTING GUARDIAN PENDING CONTEST PAGE 3 OF 4
Page 27
the Ward's assets and property, both real and personal, wherever situated and by
whomsoever held, including to become the payee for any pension, retirement, Social
Security, or other income, retirement, or public benefit.
IT IS FURTHER ORDERED, that the Temporary Guardian of the Person and
Estate of Lonnie Phillips, Jr., An Incapacitated Person, shall have the right to order any
workmen or repairs being done on the Ward's property or on the Ward's behalf either
cease or continue work.
IT IS FURTHER the Temporar Guardian of the Person and
/'
Estate of Lonnie Phill" s, Jr., An Incapacitate erson, is permitted to make monthly
/ /
/
/
// /'
expenditure on the Ward's be f from the Ward's Est9-te not toJ exceed
IT IS FURTHER ORDERED, that the Temporary Guardian shall not change the
Ward's residence without first obtaining Court approval except to mitigate an
immediate danger to the Ward's health, safety, or well being.
IT IS FURTHER ORDERED, that the powers granted under the Power of
Attorney held by Lance Ervin Phillips be Mt"\lL- tk- Ctv.-rt.
SIGNED this ?Jo'!h day , 2014.
14 JaN 30 Pi1 3: 43
M. Brandon Maggiore
Guardian Ad Litem _
'' ' , L I
. i
-· · .
PHILLIPS, LONNIE -ORDER APPOINTING GUARDIAN PENDING CONTEST PAGE 4 OF 4
Page 28
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
CAUSE NUMBER PR-74571
IN THE GUARDIANSHIP OF § IN THE PROBATE COURT
§
LONNIE PHILLIPS, JR., § GALVESTON
§
AN INCAPACITATED PERSON § GALVESTON COUNTY, TEXAS
ORDER AUTHORIZING APPOINTEE FEES
On this the day of /}ulflhtr 2014, the Application to Pay Attorney's Fees
filed by Matthew Brandon Maggiore, Guardian Ad Litem, was considered by this Court
and the Court finds that such attorney's fees and expenses are reasonable and just; that
such fees were necessarily incurred in representing LONNIE PHILLIPS, JR. in this
cause; that the said fees and expenses should be paid; and that such Application should
be granted.
IT IS THEREFORE ORDERED that Matthew Brandon Maggiore, the Maggiore
Law Firm, P.L.L.C., shall be paid legal fees in the amount of$ 5, 34&; · ou and expenses
in the amount of $ 13.0 for a total amount of $ 5 5"1 for the services and
expenses of Matthew Brandon Maggiore, Guardian Ad Litem, for the time period of
October 30th, 2013 through his discharge on October 3, 2014 by:
b the Guardian of the Estate of LONNIE PHILLIPS, JR.
_ _ _ Galveston County Treasurer out of county funds.
SIGNED this bfl'i+- day of . 2014.
IV\ C...
JUDGE P SIDING
Approved as to form:
i 14 DEC I 0 AH 9: It 3
M. Brandon Maggiore
re
CCUNTY C! r"J'I(
. .;,__.
GAlVESTON COUNf'tr:::x.\S
PHILLIPS_LONNIE _ORDER TO PAY APPOINTEE FEES TO MLF
Page 129
CAUSE NUMBER PR-74571
IN THE GUARDIANSHIP OF § IN THE PROBATE COURT OF
§
LONNIE PHILLIPS, JR., §
§
AN INCAPACITATED PERSON § GALVESTON COUNTY, TEXAS
ORDER APPOINTING GUARDIAN AD LITEM
On this date, the court became aware of the necessity for the court to appoint a Guardian
Ad Litem to represent the best interest ofLONNIE PHILLIPS, JR..
It is therefore ORDERED that,
Matthew Brandon Maggiore
Maggiore Law Firm, PLLC
1001 Texas Avenue, Suite 1400
Houston, TX 77002
713-239-3347- Telephone
713-581-1894- Facsimile
maggiore.law@gmail.com
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 determined
that one is needed, to prepare the guardians application and related matters for appointment of a
Guardian of the Person of LONNIE PHILLIPS, JR..
IT IS ORDERED that Matthew Brandon Maggiore, Guardian ad Litem, is to be given
access to and shall review all of the Proposed Wards financial, medical psychological and
intellectual testing records.
IT IS FURTHER ORDERED that Matthew Brandon Maggiore, the Guardian ad Litem is
hereby authorized to discuss the Proposed Wards medical or psychological condition with any
appropriate medical or health care personnel. This access is authorized by this Order, the
Probate Code, and 45 CFR 164.512 (e) (1) (i), the Health Insurance Portability and
Accountability Act (HIP AA), which authorizes covered entities to disclose protected health
information in the course of any judicial or administrative proceeding when responding to an
order of the Court.
Page 18
Filed
3128/2014 1:00:33 PM
Dwight D. Sullivan
County Clerk
Galveston County, Texas
NO. PRn Lf s-1 (
IN THE MA'ITER OF THE § IN THE PROBATE COURT
GUARDIANSHIP OF § ATLAWNUMBER
LONNIE PHD.IJPS, JR. § GALvESTONCOUNTY,TEXAS
MOTION AND/OR NOTICE OF WITHDRAWAL OF APPUCATION FOR
GUARQJANSBIP OF LONNIE PBUJ.JP, J&
AND APPUCATION TO CLOSE ESTATE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, KEVIN CAMPBELL aad AVA PIIILLIPS, and withdraw the
application for guardianship of Lonnie Phillips, Jr. And would the court as follows:
L
A guardianship is no longer necessary. The parties initially thought that a guardianship
was necessary to resolve the issues pertaining to allocation of insurance and/or personal funds
for the benefit of restoration of the home of Lonnie Phillips and how work should proceed on the
home of lonnie Phillips, Jr. The children of the proposed ward bad a difference of opinion on
how things should proceed.
Same is no longer at issue because the initial applicant has abandoned his desire to
proceed as general contractor for the repair of the home which is a part of the proposed ward's
estate. Moreover, work has proceeded on the house and all funds which were previously on
hand for repair, remodel, and rebuild have either been spent or contracts are pending for. Upon
completion of the remodel, no funds will remain.
D.
The parties did not request nor ever intended for a court to appoint a temporary guardian.
-I-
Page 31
No basis existed for such an appointment. That action was requested by the guardian ad litem,
after having assured the caretaker Ava Phillips that the parties would set a cowt date. Phillips
finds the action to be contradictory to the intent of the parties and contrary to the statement A,
attached and incorporated by reference, the same as if fully copied and set fot:th herein.
m.
Applicant believes that the appointment of a guardian ad litem and attorney ad litem and
temporary guardian would serve to delay the rebuilding, repair and restoration of the home and
would divert funds from the repair process to pay the fees of ad litems, thereby making the home
of Lonnie Phillips uninhabitable and would render the ward unable to return to his home.
Moreover, having to seek approval of the ad litem to complete the work already begun would
only delay said return. Funds currently on hand are insufficient to complete the restoration of
the homestead of the ward. Therefore paying of ad litem fees to administer the estate would
render completion of the home impossible. Attached as Exhibits A & B, are the positions of the
application and caretaker for the ward, in connection therewith- same being attached and
incorporated by reference, the same as if fully copied and set forth herein.
The applicant and caretaker bad previously bad concerns regarding whether to proceed
with the guardianship and did not pay the additional fees, due to the concerns of moving forward
with same.
IV.
Applicant further believes that this guardianship was delayed for an inordinate amount of
time when Davis attempted to work out a hearing date with the former ad litem. Instead of
setting a date, he in tum sought the appointment of another ad litem. Now there appears to be
-2-
Page 32
three- Maggiore, Drexlier, and Wylie. The Estate of Lonnie Phillips, Jr. does not warrant same.
The affidavits and/or statements of the applicant and caretaker for Lonnie Phillips,, Jr are
attached manifesting their position regarding the withdrawal of this application.
IV.
No property exists, but the homestead of the ward. A suit is currently pending for monies
owed in connection. with the fire which damaged the aforementioned home. Upon receipt of
said funds, all such funds will be placed into home repair, as the funds currently on hand are
insufficient to complete the restoration of same.
v.
Because the family is fUlly capable of handling any remaining matters as it pertains to
the rebuilding issues and costs in connection therewith, without court intervention, the
application for appointment of a guardian is hereby withdrawn. Moreover, any issues regarding
improper handling of the estate and control over repairs have been resolved and all issues
pertaining thereto are now moot.
WHEREFORE PREMISES CONSIDERED, the applicant hereby withdraws its
request for an application for the guardianship of lonnie Phillips, Jr. and requests that this
Honorable Court close this estate.
Respectfully submitted,
Attorney at Law
226 N. Mattson
West Columbia, Texas 77486
(979) 345-2953
-3-
Page 33
CERTIFICATE OF SERVICE
I hereby certify tbat a true and correct copy of the above and foregoing Motion/Notice
will be sent to Brandon Maggiore at 1001 Texas Avenue, Suite1400, Houston, Texas 77002 by
certified mail or facsimile transmission (713) 581-1894; Dana Drexler 1010 Lamar, Suite 1450,
Houston, Texas 77002 (713) 658-9408 (dvpdrexler@aol.cm and Catherine Wylie; 2211
Norfolrk, Suite 440, Houston, Texas 77098 (713) 275-8239 or email; on the 'lf/f day of March,
2014.
lsi Veronica L Davis
Veronica L Davis
Page 34
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing Motion/Notice
will be sent to Brandon Maggiore at 1001 Texas Avenue, Suite1400, Houston, Texas 77002 by
certified mail or facsimile transmission (713) 581-1894; Dana Drexler 1010 Lamar, Suite 1450,
Houston, Texas 77002 (713) 658-9408 (dypdrexler@aol.cm and Catherine Wylie; 2211
Norfolrk, Suite 440, Houston, Texas 77098 (713) 275-8239 or email; on the 27"- day of March,
2014.
lsi Veronica L. Davis
Veronica L Davis
Page 35
AMENDED CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing Motion to
Withdraw will be sent to the following by certified mail, fax transmission, email, or efile
notification on the 2gtta day ofMarch, 2014:
Brandon Maggiore
1001 Texas Avenue, Suite 1400
Houston, Texas 77002
(713) 581-1894 (fax)
Dana Dre.xJer
1010 Lamar, Suite 1450
Houston, Texas 71002
(713) 658-9408 (fax)
dypdrexler@aol.com
Catherine Wylie
2211 Norfolk, Suite 1400
Houston, Texas 77098
(713) 275-8239 (Fax)
Is/ Veronica L. Dayis
Veronica L. Davis
Page 36
EXHIBIT A
Page 37
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Page 42
Filed
8/5/2015 2:06:02 PM
Dwight D. Sullivan
County Clerk
Galveston County, Texas
CAUSE NO. PR-0074,571
IN THE GUARDIANSIDP OF § IN THE PROBATE COURT
§
LONNIE PHILLIPS, JR., § OF
§
AN INCAPACITATED PERSON § GALVESTON COUNTY, TEXAS
APPLICATION FOR "AS IS" SALE OF REAL PROPERTY
UNDER SECTION 1158.451 OF THE ESTATES CODE
TO THE HONORABLE JUDGE OF SAID COURT:
Catherine N. Wylie, Guardian of the Person and Estate of LONNIE PHILLIPS, JR., an
Incapacitated Person (the "Guardian" or the "Applicant") herein, furnishes the following information to the
Court:
1. The Inventory, Appraisement and List of Clain1s of this Estate was filed on October 28,
2014, and approved by this Court on October 31, 2014.
2. A full legal description of the real properties sought to be sold and a description of the
Estate's ownership interest in such property is as follows:
a) Address: 405 N. Fulton
Texas City, Texas 77591
Legal: Abstract 2, Page 3, Lots 138 & 139
Ollie Bell Subdivision
3. It is necessary and advisable to sell the Estate' s interest in the aforementioned property for
the following reasons:
(a) The real property is currently vacant due to a fire which enabled the house to be
inhabitable;
(b) Family engaged a contractor to repair the home depositing approximately $33,000 of
insurance funds with that contractor. Contractor performed no work, took the funds and
has filed bankruptcy. The real property has been partially renovated but is not livable
and the real property is subject to deterioration and vandalism as it is. The Guardian
has filed claim in the bankruptcy court but it is unlikely that any proceeds will be
returned;
(c) There is approximately $60,000 (which includes funds for reimbursement of personal
belongings) at Hartford Insurance;
(d) Calvary Construction Co., has estimated the remaining repairs at a cost of $80,000 -
$100,000;
(e) The proceeds are needed to pay expenses of the Ward while in an assisted living
facility. He is currently on Medicaid and all expenses for clothes, etc. has been paid
for personally by the Guardian;
Application & Order for Sale of Real Property Under§ 1158.451 of the Estates Code
In the Guardianship of Lonnie Phillips, Jr.., an Incapacitated Person
Page I of3
Page 53
(f) Cost to complete renovation is more than the value of the real prope1ty;
(g) It is in the best interest of the Estate to sell the real property "As Is"; and
(h) Left vacant the real property poses a liability to the Estate.
3. It is the best interest of the Estate for the said property to be sold at a private sale for cash in
as-is condition as the property is liable to perish, waste or deteriorate in value if left vacant
and pose a liability to the Estate.
Applicant requests that citation be issued to all persons interested in the Estate, as required by law,
and that, upon consideration or hearing on this Application, the Court enter an Order authorizing Guardian
to sell the Estate's interest in the aforementioned property at a private sale "AS IS" and for cash, and such
other orders as the Court may deem proper.
Respectfully submitted,
BY (}_j);fJJP/fUIZJfl .
Catherine N. Wylie, Guardian o he Person and Estate of
Lonnie Phillips, Jr., an Incapacitated Person
Catherine N. Wylie 0
State Bar No. 24033479
The Wylie Law Finn
2211 Norfolk Street, Suite #440
Houston, Texas 77098
Telephone: 713-275-8230
Facsimile: 713-275-8239
Email: cwylie@wylielawfirm.com
Application & Order for Sale of Real Propetty Under § 11 58.45 1 of the Estates Code
In the Guardianship of Lonnie Phillips, Jr.. , an Incapacitated Person
Page2of3
Page 54
VERIFIED EXHIBIT SHOWING CONDITION OF THE ESTATE
STATE OF TEXAS §
§
COUNTY OF GALVESTON §
BEFORE ME, the undersigned authority, on this day personally appeared
CATHERINE N. WYLIE, Guardian of the Person and Estate, and after being duly sworn,
stated that:
"I. CATHERINE N. WYLIE is the duly appointed and qualified Guardian of
the Person and Estate of LONNIE PHILLIPS, JR., an Incapacitated Person, and in support
of the Application for Sale of Real Property, submits this exhibit to the Cowt to show fully
and in detail the condition of the Estate:
"A. Charges and Claims - the following are all of the charges and
claims against the Estate that have been approved or established by suit or have been
rejected and may yet be established: None
"B. Property Remaining on Hand - The following is a full and
complete list of all property owned by the Estate still remaining on hand and liable
for the payment of the above charges and claims:
A. Address: 405 N. Fulton
Texas C ity, Texas 7759 1
Legal Desc: Abstract 2, Page 3, Lots 138 & 139
Oll ie Bell Subdivision
Galveston County, Texas
100%
Interest: Per GCAD 20 15 (Fully Repaired)
Va lue: $83,2 10.00
TOTAL REAL PROPERTY BEING ADMINISTERED ... .. .$83,210.00
[Left Blank Intentionally]
Exhi bit A to Application for Sale of Real Property
In the Estate of Lonnie Phillips, Jr., Incapacitated Person
Page I of 3
Page 55
CASH ON HAND. The cash remammg on hand 1s deposited m the
following account:
1) Institution: Frost Bank
Account Type: Checking
Account No. 8417
Value: as ofJu1y 21, 2015
TOTAL CASH ACCOUNT ........ ...... ... ...... $15.00
PERSONAL PROPERTY. There is no personal property.
"C. List of Claims Owed to Estate - The following claims are due or
owing to the Estate: None
"II. The sale sought in the foregoing Application For Sale of Real Property is
necessary and advisable for the following reasons:
(a) The real property is currently vacant;
(b) The real property is subject to deterioration and vandalism while vacant and
without usc;
(c) The proceeds are needed to pay expenses of the ward while in an assisted living
facility;
(d) The real property was damaged in a fire and is partially renovated, The Hartford
Insurance Company is holding a check in the amount of $60,000.00 for the
remaining repairs;
(e) Calvary Construction Co., has estimated the remaining repairs at a cost of
$80,000-$ 100,000.00;
(f) Cost to complete renovation is more that the value of the real property;
(g) It is in the best interest of the Estate to sell the real property; and
(h) Left vacant the real property poses a liability to the Estate.
"1, CATHERINE N. WYLIE, Guardian of the Person and Estate of LONNIE
PHILLIPS, JR., an Incapacitated Person, do solemnly swear that the foregoing Verified
Exhibit is a full and complete description of the condition of the property of this Estate."
Respectfully,
(!atltiJiJAfd c1) , tiP
Catherine N. Wylie:'&ardian of the Persona
and Estate of LONNIE PHILLIPS, JR., an
Incapacitated Person
Exhibit A to Application for Sale of Real Property
In the Estate of Lonnie Phi llips, Jr., Incapacitated Person
Pa ge 2 of 3
Page 56
STATE OF TEXAS §
§
COUNTY OF GALVESTON §
BEFORE ME, the undersigned authority, on this day personally appeared
CATHERINE N. WYLIE, the duly appointed, qualified, and acting Guardian of the
Person and Estate of LONNIE PHILLIPS, JR., an Incapacitated Person, and having been
duly sworn, states that the foregoing Application for Sale of Real Property is true and
correct in every respect.
SUBSCRIBED SWORN TO ME BY CATHERINE N.
WYLIE, on this the - -+-- - day of , 15, to certify which
witness my hand and seal of
Exhibit A to Application for Sale o f Real Propet1y
In the Estate of Lonnie Phillips, Jr., Incapacitated Person
Page 3 o f 3
Page 57
CAUSE NO. PR-0074,571
IN THE GUARDIANSHIP OF § IN THE PROBATE COURT
§
LONNIE PHILLIPS, JR., § OF
§
AN INCAPACITATED PERSON § GALVESTON COUNTY, TEXAS
ORDER AUTHORIZING "AS IS" SALE OF REAL PROPERTY
On this day the Court considered the Application For "AS IS" Sale of Real Property Under Section
/158.451 of the Estates Code (the "Applicant") tiled by the Guardian of the Person and Estate of LONNIE
PHILLIPS, JR., an Incapacitated Person, was considered by the Court and after consideration of the
evidence in support of the Application, the Court finds that citation has been issued and served as required
by law; and after hearing the evidence in support of the Application, the Court finds that no additional bond
shall be required at this time and that the real property sought to be sold in the Application should be sold at
private sale, in as-is condition and without further delay because it is liable to perish, waste, deteriorate
and/or cause liability to the Estate.
IT IS THEREFORE ORDERED AND DECREED that Catherine N. Wylie, Guardian of the
Person and Estate of LONNIE PHILLIPS, JR., an Incapacitated Person, shall sell the following described
property, in as-is condition, promptly at a private sale for cash.
(a) Address: 405 N. Fulton
Texas City, Texas 77591
Legal: Abstract 2, Page 3, Lots 138 & 139
Ollie Bell Subdivision
SIGNED this the day of l 2015. _ .
baiJJV$/'---'
JUDGE PRESID
APPROVED AS TO FORM:
(JailttJtt 'ifi Y1. {/
F\LED
2015 28 t6
Application & Order for Sale of Real Prope11y Under§ 1158.451 of the Estates Code
In the Guardianship of Lonnie Phillips, Jr.., an Incapacitated Person
Page 3 of3
Page 58
Filed
9/8/2015 2:54:03 PM
Dwight D. Sullivan
County Clerk
Galveston County, Texas
CAUSE NO. PR-0074571
IN THE GUARDIANSHIP OF § IN THE PROBATE COURT
§
LONNIE PHILLIPS, JR., § OF
§
AN INCAPACITATED PERSON § GALVESTON COUNTY, TEXAS
MOTION FOR INSTRUCTION
TO THE HONORABLE JUDGE OF SAID COURT:
This Motion for Instruction is brought by Catherine N. Wylie, Guardian of the
Person and Estate of Lonnie Phillips, Jr., an Incapacitated Person, (the "Movant") who
requests the Court to grant an audience for clarification of instruction relating to a request
made by Dr. Folasade Ojo, MD, CMD for the Guardian to execute a "Do Not
Resuscitate" for Lonnie Phillips, Jr., (the "Ward").
1. Whereas Catherine N. Wylie was appointed by the Honorable Kimberly
Sullivan on October 3, 2014 to serve as the Guardian of the Person and Estate
for the Ward;
2. Ward was placed in Gulf Health Care Center in Texas City by his family prior
to the guardianship.
3. Movant has been requested a couple of times to execute a "Do Not
Resuscitate", (the "DNR") form on behalf of the Ward;
4. Dr. Ojo has formalized the request for the Guardian to execute the DNR and
the original letter dated August 14, 2015 is attached hereto and made a part
hereof as Exhibit A; and
5. Movant seeks instructions from this Court or authority from the Court to
address the request from Dr. Ojo regarding the DNR.
THEREFORE, Movant prays that the Court enter an order setting a hearing
whereupon such questions may be clarified or the DNR authorized for the Movant.
Page 59
Respectfully submitted,
Catherine N. Wylie
State Bar No.: 24033479
The Wylie Law Firm
2211 Norfolk Street, Suite #440
Houston, Texas 77098
Telephone: 713-275-8230
Facsimile: 713-275-8239
Email: cwylie@wylielawfirm.com
Guardian of the Person and Estate for
Lonnie Phillips, Jr., an Incapacitated Person
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Motion for Instruction has been
served upon the following parties by electronic filing on this 8th day of September 2015.
Ms. Veronica L. Davis Email: vld57aral@yahoo.com
Attorney at Law
226 N. Mattson
West Columbia, Texas 77486
Mr. Matthew Brandon Maggiore Email: brandon@maggiorelawfirm. com
Maggiore Law Firm, PLLC
1001 Texas Avenue, Suite # 1400
Houston, Texas 77002
Guardian Ad Litem
Catherine N. Wyh
Page 60
Exhibit A
Page 61
¢ ¢ ¢ ¢ ¢
Care Center 1720 North Logan Street
rEXA$ CITY
Texas City, Texas 77590
409.943.4914
Fax 409.943.5255
August 14, 2015
To Catherine Wylie:
RE: Lonnie Phillips
DOB: 05/03/1942
Mr. Lonnie Phillips DOB 07/25/15 has been under my care since 09/15/2015 when he was admitted to
Gulf Health Care Center, Texas City.
He has moderate severe Dementia of Alzheimer's and now has difficulty swallowing. His Dementia is
irreversible and prognosis at t his point is poor. His is also not a good candid at e for gastrostomy tube
feeding. It would be beneficial for Mr. Phillips to be under palliative care with no aggressive treatment if
he stops breathing or his heart stops. He should at this point, based on his moderately severe dementia
be a DNR.
If you have any questions or concerns feel free to contact me at the address or telephone number
above.
Yours si ncerely,
Folasade Ojo, MD, CMD
0 0 0 0 0 0 0 0 0 0 0 0 ¢ 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
Page 62
Filed
9/21/2015 3:54:46 PM
Dwight D. Sullivan
County Clerk
Galveston County, Texas
CAUSE NO. PR-0074,571
IN THE GUARDIANSHIP OF § INTHEPROBATECOURT
§
LONNIE PHILLIPS, JR., § OF
§
AN INCAPACITATED PERSON § GALVESTON COUNTY,TEXAS
AMENDED APPLICATION FOR "AS IS" SALE OF REAL PROPERTY
UNDER SECTION 1158.451 OF THE ESTATES CODE
TO THE HONORABLE JUDGE OF SAID COURT:
Catherine N. Wylie, Guardian of the Person and Estate of LONNIE PHILLIPS, JR., an
Incapacitated Person (the "Guardian" or the "Applicant") herein, furnishes the following information to the
Court:
1. The Inventory, Appraisement and List of Claims of this Estate was filed on October 28,
2014, and approved by this Court on October 31, 2014.
2. A full legal description of the real properties sought to be sold and a description of the
Estate's ownership interest in such property is as follows:
a) Address: 405 N. Fulton
Texas City, Texas 77591
Legal: Abstract 2, Page 3, Lots 138 & 139
Ollie Bell Subdivision
3. It is necessary and advisable to sell the Estate's interest in the aforementioned property for
the following reasons:
(a) The real property is currently vacant due to a fire which enabled the house to be
inhabitable;
(b) Family engaged a contractor to repair the home depositing approximately $33,000 of
insurance funds with that contractor. Contractor performed no work, took the funds and
has filed bankruptcy. The real property has been partially renovated but is not livable
and the real property is subject to deterioration and vandalism as it is. The Guardian
has filed claim in the bankruptcy court but it is unlikely that any proceeds will be
returned;
(c) There is approximately $60,000 (which includes funds for reimbursement of personal
belongings) at Hartford Insurance;
(d) Calvary Construction Co., has estimated the remaining repairs at a cost of $80,000 -
$100,000;
(e) The proceeds are needed to pay expenses of the Ward while in an assisted living
facility. He is currently on Medicaid and all expenses for clothes, etc. has been paid
for personally by the Guardian;
Amended Application & Order for Sale of Real Property Under§ 11 58.451 of the Estates Code
In the Guardianship of Lonnie Phillips, Jr.., an Incapacitated Person
Page I of3
Page 81
(f) Cost to complete renovation is more than the value of the real property;
(g) It is in the best interest of the Estate to sell the real property "As Is"; and
(h) Left vacant the real property poses a liabi lity to the Estate.
3. It is the best interest of the Estate for the said property to be sold at a private sale for cash in
as-is condition as the property is liable to perish, waste or deteriorate in value if left vacant
and pose a liability to the Estate.
Applicant requests that citation be issued to all persons interested in the Estate, as required by law,
and that, upon consideration or hearing on this Application, the Court enter an Order authorizing Guardian
to sell the Estate's interest in the aforementioned property at a private sale "AS IS" and for cash, and such
other orders as the Court may deem proper.
Respectfully submitted,
Catherine N. Wylie, Gua tan of the Person and Estate of
Lonnie Phillips, Jr., an Incapacitated Person
State Bar No. 24033479
The Wylie Law Firm
2211 Norfolk Street, Suite #440
Houston, Texas 77098
Telephone: 713-275-8230
Facsimile: 713-275-8239
Email: cwylie@wylielawfirm.com
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Amended Application for "As Is" Sale of Real
Property has been served upon the following parties by electronic filing on this 21st day of September 2015.
Ms. Veronica L. Davis Email : vld5 7aral@yahoo.com
Attorney at Law
226 N. Mattson
West Columbia, Texas 77486
Mr. Matthew Brandon Maggiore Email: Brandon@maggiorelawfirm .com
Maggiore Law Firm, PLLC
1001 Texas Avenue, Suite 1400
Houston, Texas 77002
Amended Appl ication & Order for Sale of Real Property Under§ 1158.451 of the Estates Code
In the Guardianship of Lonnie Phillips, Jr .. , an Incapacitated Person
Page 2 of3
Page 82
VERIFIED EXHIBIT SHOWING CONDITION OF THE ESTATE
STATE OF TEXAS §
§
COUNTY OF GALVESTON §
BEFORE ME, the undersigned authority, on this day personally appeared
CATHERINE N. WYLIE, Guardian of the Person and Estate, and after being duly sworn,
stated that:
"1. CATHERINE N. WYLIE is the duly appointed and qualified Guardian of
the Person and Estate of LONNIE PHILLIPS, JR., an Incapacitated Person, and in support
of the Application for Sale of Real Property, submits this exhibit to the Court to show fully
and in detail the condition of the Estate:
"A. Charges and Claims - the following are all of the charges and
claims against the Estate that have been approved or established by suit or have been
rejected and may yet be established: None
"B. Property Remaining on Hand - The following is a full and
complete list of all property owned by the Estate still remaining on hand and liable
for the payment of the above charges and claims:
A. Address: 405 N. Fulton
Texas City, Texas 77591
Legal Desc: Abstract 2, Page 3, Lots 13 8 & 139
Ollie Bell Subdivision
Galveston County, Texas
100%
Interest: Per GCAD 20 15 (Fully Repaired)
Value: $83,210.00
TOTAL REAL PROPERTY BEING ADMINISTERED ...... $83,210.00
[Left Blank Intentionally]
Exhibit A to Application for Sale of Real Property
In the Estate of Lonnie Phill ips, Jr., Incapacitated Person
Page I of3
Page 83
CASH ON HAND. The cash rernammg on hand Is deposited m the
following account:
1) Institution: Frost Bank
Account Type: Checking
Account No. 8417
Value: as of August 21, 2015
TOTAL CASH ACCOUNT ...........................$52.69
PERSONAL PROPERTY. There is no personal property.
"C. List of Claims Owed to Estate - The following claims are due or
owing to the Estate: None
"II. The sale sought in the foregoing Application For Sale of Real Property is
necessary and advisable for the following reasons:
(a) The real property is currently vacant;
(b) The real property is subject to deterioration and vandalism while vacant and
without use;
(c) The proceeds are needed to pay expenses of the ward while in an assisted living
facility;
(d) The real property was damaged in a fire and is partially renovated, The Hartford
Insurance Company is holding a check in the amount of $60,000.00 for the
remammg repairs;
(e) Calvary Construction Co., has estimated the remaining repairs at a cost of
$80,000-$1 00,000.00;
(f) Cost to complete renovation is more that the value of the real property;
(g) It is in the best interest of the Estate to sell the real property; and
(h) Left vacant the real property poses a liability to the Estate.
"I, CATHERINE N. WYLIE, Guardian of the Person and Estate of LONNIE
PHILLIPS, JR., an Incapacitated Person, do solemnly swear that the foregoing Verified
Exhibit is a full and complete description of the condition ofthe property ofthis Estate."
Respectfully,
t!.athutrt.J'fi.
Catherine N. Wylie, G .· dian of the Persona
and Estate of LONNIE PHILLIPS, JR., an
Incapacitated Person
Exhibit A to Application for Sale of Real Property
In the Estate of Lonnie Phillips, Jr., Incapacitated Person
Page 2 of 3
Page 84
STATE OF TEXAS §
§
COUNTY OF GALVESTON §
BEFORE ME, the undersigned authority, on this day personally appeared
CATHERINE N. WYLIE, the duly appointed, qualified, and acting Guardian of the
Person and Estate of LONNIE PHILLIPS, JR., an Incapacitated Person, and having been
duly sworn, states that the foregoing Application for Sale of Real Property is true and
correct in every respect.
SUBSCRIBED AND SWORN TO BEFORE ME BY CATHERINE N.
WYLIE, on this the :) r day of , 015, to certify which
witness my hand and seal of office.
Exhibit A to Application for Sale of Real Property
In the Estate of Lonnie Phillips, Jr., Incapacitated Person
Page 3 of 3
Page 85
CAUSE NO. PR-0074,571
IN THE GUARDIANSHIP OF § IN THE PROBATE COURT
§
LONNIE PHILLIPS, JR., § OF
§
AN INCAPACITATED PERSON § GALVESTON COUNTY, TEXAS
ORDER ON AMENDED APPLICATION AUTHORIZING "AS IS" SALE OF REAL PROPERTY
On this day the Court considered the Application For "AS IS" Sale of Real Property Under Section
1158.45lofthe Estates Code (the "Applicant") filed by the Guardian of the Person and Estate of LONNIE
PHILLIPS, JR., an Incapacitated Person, was considered by the Court and after consideration of the
evidence in suppmt of the Application, the Comt finds that citation has been issued and served as required
by law; and after hearing the evidence in suppmt of the Application, the Court finds that no additional bond
shall be required at this time and that the real property sought to be sold in the Application should be sold at
private sale, in as-is condition and without further delay because it is liable to perish, waste, deteriorate
and/or cause liability to the Estate.
IT IS THEREFORE ORDERED AND DECREED that Catherine N. Wylie, Guardian of the
Person and Estate of LONNIE PffiLLIPS, JR., an Incapacitated Person, shall sell the following described
property, in as-is condition, promptly at a private sale for cash.
(a) Address: 405 N. Fulton
Texas City, Texas 77591
Legal: Abstract 2, Page 3, Lots 138 & 139
Ollie Bell Subdivision
SIGNED this the day of t{)dhr ,2015.
JUD EPRE lNG
APPROVED AS TO FORM:
Catherine N. Wylie ...
State Bar No.: 24033479
The Wylie Law Firm
2211 Norfolk Street, Suite #440
Houston, Texas 77098
Telephone: 713-275-8230
Facsimile: 713-275-8239
Email: cwylie@wylielawfirm.com FILFD
2U15 OCT -7 PM 2: 32
Amended Application & Order for Sale of Real Property Under §1158.451 of the Estates Code
In the Guardianship of Lonnie Phillips, Jr.., an Incapacitated Person
Page 3 of3
Page 24
CAUSE NUMBER PR-74571
IN THE GUARDIANSHIP OF § IN THE PROBATE COURT
§
LONNIE PHILLIPS, JR., § GALVESTON
§
AN INCAPACITATED PERSON § GALVESTON COUNTY, TEXAS
ORDER AUTHORIZING APPOINTEE FEES
On this the day of /}ulflhtr 2014, the Application to Pay Attorney's Fees
filed by Matthew Brandon Maggiore, Guardian Ad Litem, was considered by this Court
and the Court finds that such attorney's fees and expenses are reasonable and just; that
such fees were necessarily incurred in representing LONNIE PHILLIPS, JR. in this
cause; that the said fees and expenses should be paid; and that such Application should
be granted.
IT IS THEREFORE ORDERED that Matthew Brandon Maggiore, the Maggiore
Law Firm, P.L.L.C., shall be paid legal fees in the amount of$ 5, 34&; · ou and expenses
in the amount of $ 13.0 for a total amount of $ 5 5"1 for the services and
expenses of Matthew Brandon Maggiore, Guardian Ad Litem, for the time period of
October 30th, 2013 through his discharge on October 3, 2014 by:
b the Guardian of the Estate of LONNIE PHILLIPS, JR.
_ _ _ Galveston County Treasurer out of county funds.
SIGNED this bfl'i+- day of . 2014.
IV\ C...
JUDGE P SIDING
Approved as to form:
i 14 DEC I 0 AH 9: It 3
M. Brandon Maggiore
re
CCUNTY C! r"J'I(
. .;,__.
GAlVESTON COUNf'tr:::x.\S
PHILLIPS_LONNIE _ORDER TO PAY APPOINTEE FEES TO MLF
Page 129
CAUSE NUMBER PR-74571
IN THE GUARDIANSHIP OF § IN THE PROBATE COURT OF
§
LONNIE PHILLIPS, JR., §
§
AN INCAPACITATED PERSON § GALVESTON COUNTY, TEXAS
ORDER APPOINTING GUARDIAN AD LITEM
On this date, the court became aware of the necessity for the court to appoint a Guardian
Ad Litem to represent the best interest ofLONNIE PHILLIPS, JR..
It is therefore ORDERED that,
Matthew Brandon Maggiore
Maggiore Law Firm, PLLC
1001 Texas Avenue, Suite 1400
Houston, TX 77002
713-239-3347- Telephone
713-581-1894- Facsimile
maggiore.law@gmail.com
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 determined
that one is needed, to prepare the guardians application and related matters for appointment of a
Guardian of the Person of LONNIE PHILLIPS, JR..
IT IS ORDERED that Matthew Brandon Maggiore, Guardian ad Litem, is to be given
access to and shall review all of the Proposed Wards financial, medical psychological and
intellectual testing records.
IT IS FURTHER ORDERED that Matthew Brandon Maggiore, the Guardian ad Litem is
hereby authorized to discuss the Proposed Wards medical or psychological condition with any
appropriate medical or health care personnel. This access is authorized by this Order, the
Probate Code, and 45 CFR 164.512 (e) (1) (i), the Health Insurance Portability and
Accountability Act (HIP AA), which authorizes covered entities to disclose protected health
information in the course of any judicial or administrative proceeding when responding to an
order of the Court.
Page 18
IT IS FURTHER ORDERED that filing fees and costs will be waived until an estate is
detennined, if any.
SIGNED December o2 .q '2014.
JUDGE PRES lNG
Page 19
§ 1051.055. Service on Party's Attorney of Record, TX EST § 1051.055
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle C. Procedural Matters
Chapter 1051. Notices and Process in Guardianship Proceedings in General
Subchapter B. Methods of Serving Citation or Notice; Persons to be Served
V.T.C.A., Estates Code § 1051.055
Formerly cited as TX PROBATE § 634
§ 1051.055. Service on Party's Attorney of Record
Effective: January 1, 2014
Currentness
(a) If a party is represented by an attorney of record in a guardianship proceeding, a citation or notice required to be served on
the party shall be served instead on that attorney.
(b) A notice served on an attorney under this section may be served by:
(1) delivery to the attorney in person;
(2) registered or certified mail, return receipt requested; or
(3) any other form of mail that requires proof of delivery.
(c) A notice or citation may be served on an attorney under this section by:
(1) another party to the proceeding;
(2) the attorney of record for another party to the proceeding;
(3) an appropriate sheriff or constable; or
(4) another person competent to testify.
(d) Each of the following is prima facie evidence of the fact that service has been made under this section:
(1) the written statement of an attorney of record showing service;
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1051.055. Service on Party's Attorney of Record, TX EST § 1051.055
(2) the return of the officer showing service; and
(3) the affidavit of a person showing service.
(e) Except as provided by Section 1051.105, an attorney ad litem may not waive personal service of citation.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
V. T. C. A., Estates Code § 1051.055, TX EST § 1051.055
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 1051.104. Notice by Applicant for Guardianship, TX EST § 1051.104
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle C. Procedural Matters
Chapter 1051. Notices and Process in Guardianship Proceedings in General
Subchapter C. Notice and Citation Required for Application for Guardianship
V.T.C.A., Estates Code § 1051.104
Formerly cited as TX PROBATE § 633(d), (d-1), (f)
§ 1051.104. Notice by Applicant for Guardianship
Effective: September 1, 2015
Currentness
(a) The person filing an application for guardianship shall 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 the following persons, if their whereabouts are known or can be reasonably
ascertained:
(1) each adult child of the proposed ward;
(2) each adult sibling of the proposed ward;
(3) the administrator of a nursing home facility or similar facility in which the proposed ward resides;
(4) the operator of a residential facility in which the proposed ward resides;
(5) a person whom the applicant knows to hold a power of attorney signed by the proposed ward;
(6) a person designated to serve as guardian of the proposed ward by a written declaration under Subchapter E, Chapter 1104,
if the applicant knows of the existence of the declaration;
(7) a person designated to serve as guardian of the proposed ward in the probated will of the last surviving parent of the
proposed ward;
(8) a person designated to serve as guardian of the proposed ward by a written declaration of the proposed ward's last surviving
parent, if the declarant is deceased and the applicant knows of the existence of the declaration; and
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1051.104. Notice by Applicant for Guardianship, TX EST § 1051.104
(9) each adult named in the application as an “other living relative” of the proposed ward within the third degree by
consanguinity, as required by Section 1101.001(b)(11) or (13), if the proposed ward's spouse and each of the proposed ward's
parents, adult siblings, and adult children are deceased or there is no spouse, parent, adult sibling, or adult child.
(b) The applicant shall file with the court:
(1) a copy of any notice required by Subsection (a) and the proofs of delivery of the notice; and
(2) an affidavit sworn to by the applicant or the applicant's attorney stating:
(A) that the notice was mailed as required by Subsection (a); and
(B) the name of each person to whom the notice was mailed, if the person's name is not shown on the proof of delivery.
(c) Failure of the applicant to comply with Subsections (a)(2)-(9) does not affect the validity of a guardianship created under
this title.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014. Amended by Acts 2013, 83rd Leg., ch. 161
(S.B. 1093), § 6.019, eff. Jan. 1, 2014; Acts 2015, 84th Leg., ch. 1031 (H.B. 1438), § 3, eff. Sept. 1, 2015.
Editors' Notes
REVISOR'S NOTE
2014 Main Volume
Section 633(d)(6), Texas Probate Code, refers to a written declaration under Section 679, Texas Probate Code.
Section 679, along with Section 679A, Texas Probate Code, is revised in this code in Subchapter E, Chapter 1104.
The revised law refers to Subchapter E, Chapter 1104, in its entirety because the entire subchapter deals with a
written declaration to designate a guardian before the need arises.
V. T. C. A., Estates Code § 1051.104, TX EST § 1051.104
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 1051.106. Action by Court on Application for Guardianship, TX EST § 1051.106
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle C. Procedural Matters
Chapter 1051. Notices and Process in Guardianship Proceedings in General
Subchapter C. Notice and Citation Required for Application for Guardianship
V.T.C.A., Estates Code § 1051.106
Formerly cited as TX PROBATE § 633(f)
§ 1051.106. Action by Court on Application for Guardianship
Effective: January 1, 2014
Currentness
The court may not act on an application for the creation of a guardianship until the applicant has complied with Section
1051.104(b) and not earlier than the Monday following the expiration of the 10-day period beginning on the date service of
notice and citation has been made as provided by Sections 1051.102, 1051.103, and 1051.104(a)(1).
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
Notes of Decisions (4)
V. T. C. A., Estates Code § 1051.106, TX EST § 1051.106
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1051.153. Proof of Service, TX EST § 1051.153
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle C. Procedural Matters
Chapter 1051. Notices and Process in Guardianship Proceedings in General
Subchapter D. Return and Proof of Service of Citation or Notice
V.T.C.A., Estates Code § 1051.153
Formerly cited as TX PROBATE § 632(i)
§ 1051.153. Proof of Service
Effective: January 1, 2014
Currentness
(a) Proof of service in each case requiring citation or notice must be filed before a hearing.
(b) Proof of service consists of:
(1) if the service is made by a sheriff or constable, the return of service;
(2) if the service is made by a private person, the person's affidavit;
(3) if the service is made by mail:
(A) the certificate of the county clerk making the service, or the affidavit of the guardian or other person making the service
that states that the citation or notice was mailed and the date of the mailing; and
(B) the return receipt attached to the certificate, if the mailing was by registered or certified mail and a receipt has been
returned; and
(4) if the service is made by publication, an affidavit that:
(A) is made by the publisher of the newspaper in which the citation or notice was published or an employee of the publisher;
(B) contains or to which is attached a copy of the published citation or notice; and
(C) states the date of publication printed on the newspaper in which the citation or notice was published.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1051.153. Proof of Service, TX EST § 1051.153
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
Editors' Notes
REVISOR'S NOTE
2014 Main Volume
(1) Section 632(i), Texas Probate Code, refers to service of notice or citation “by publication, posting, mailing,
or otherwise.” The methods of service specified in the quoted language include all methods authorized by the
Texas Probate Code in guardianship matters. Because the specified methods of service do not exclude any method
authorized under the code and therefore do not limit the applicability of the provision, the revised law omits the
quoted language as unnecessary.
(2) Section 632(i), Texas Probate Code, refers to proof of the “time” of mailing of service of citation or notice. The
revised law substitutes “date” for “time” for the reason stated in the revisor's note to Section 1051.052.
V. T. C. A., Estates Code § 1051.153, TX EST § 1051.153
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 1054.001. Appointment of Attorney ad Litem in Proceeding..., TX EST § 1054.001
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle C. Procedural Matters
Chapter 1054. Court Officers and Court-Appointed Persons
Subchapter A. Attorneys AD Litem and Interpreters
V.T.C.A., Estates Code § 1054.001
Formerly cited as TX PROBATE § 646(a)
§ 1054.001. Appointment of Attorney ad Litem in Proceeding for Appointment of Guardian
Effective: January 1, 2014
Currentness
In a proceeding under this title for the appointment of a guardian, the court shall appoint an attorney ad litem to represent the
proposed ward's interests.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
Notes of Decisions (4)
V. T. C. A., Estates Code § 1054.001, TX EST § 1054.001
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1054.055. Compensation and Expenses, TX EST § 1054.055
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle C. Procedural Matters
Chapter 1054. Court Officers and Court-Appointed Persons
Subchapter B. Guardians AD Litem
V.T.C.A., Estates Code § 1054.055
Formerly cited as TX PROBATE § 645(b), (d)
§ 1054.055. Compensation and Expenses
Effective: January 1, 2014
Currentness
(a) A guardian ad litem is entitled to reasonable compensation for services provided in the amount set by the court, to be taxed
as costs in the proceeding.
(b) The fees and expenses of a guardian ad litem appointed under Section 1104.354(1) are costs of the litigation proceeding
that made the appointment necessary.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
V. T. C. A., Estates Code § 1054.055, TX EST § 1054.055
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1054.201. Certification Required, V.T.C.A., Estates Code § 1054.201
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle C. Procedural Matters
Chapter 1054. Court Officers and Court-Appointed Persons
Subchapter E. Qualifications to Serve as Court-Appointed Attorney
V.T.C.A., Estates Code § 1054.201
Formerly cited as TX PROBATE §§ 646(b), 647A(a), (b)
§ 1054.201. Certification Required
Effective: January 1, 2014
Currentness
(a) A court-appointed attorney in a guardianship proceeding, including an attorney ad litem, must be certified by the State Bar of
Texas, or a person or other entity designated by the state bar, as having successfully completed a course of study in guardianship
law and procedure sponsored by the state bar or the state bar's designee.
(b) The State Bar of Texas shall require three hours of credit for certification under this subchapter.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
HISTORICAL AND STATUTORY NOTES
2014 Main Volume
Prior Laws:
Acts 1977, 65th Leg., p. 1380, ch. 551, § 1.
V.A.T.S. Probate Code, § 113A.
Acts 1993, 73rd Leg., ch. 957, § 1.
Acts 1995, 74th Leg., ch. 1039, §§ 22, 74.
Acts 1999, 76th Leg., ch. 716, §§ 1, 2.
V.A.T.S. Probate Code, §§ 646(b), 647A(a), (b).
CROSS REFERENCES
Appointment of attorneys ad litem, see V.T.C.A., Estates Code § 53.104.
Proceeding to appoint receiver, see V.T.C.A., Civil Practice & Remedies Code § 64.102.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1054.201. Certification Required, V.T.C.A., Estates Code § 1054.201
LIBRARY REFERENCES
2014 Main Volume
Guardian and Ward 13(1).
Mental Health 133.
Westlaw Topic Nos. 196, 257A.
C.J.S. Guardian and Ward §§ 13, 28.
C.J.S. Mental Health §§ 161 to 162.
RESEARCH REFERENCES
2014 Main Volume
Encyclopedias
TX Jur. 3d Guardianship and Conservatorship § 103, Appointment of Attorney Ad Litem--Term.
NOTES OF DECISIONS
Construction and application 1
1 Construction and application
Proceeding concerning motion of guardian to resign as guardian was “guardianship proceeding,” within meaning of statute
requiring certification of any court-appointed attorney ad litem, with result that appointment of non-certified attorney ad litem
in proceeding violated statute, regardless of argument of attorney that proceeding was not one in which guardianship was
established in first instance; attorney was appointed to determine whether guardian should have been allowed to resign, and
appointment required investigation into whether ward's interests would be protected. In re Guardianship of Marburger (App.
13 Dist. 2010) 329 S.W.3d 923. Guardian And Ward 23
A professional hired by the attorney ad litem to assist her in performing her duties in representing the ward of a guardianship
proceeding is not required to be certified by the State bar as having successfully completed a course in guardianship law; rather,
it is the attorney ad litem appointed by the court who is required to be certified. In re Guardianship of Glasser (App. 4 Dist.
2009) 297 S.W.3d 369, rehearing overruled. Attorney and Client 9
V. T. C. A., Estates Code § 1054.201, TX EST § 1054.201
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 1054.201. Certification Required, TX EST § 1054.201
KeyCite Yellow Flag - Negative Treatment
Proposed Legislation
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle C. Procedural Matters
Chapter 1054. Court Officers and Court-Appointed Persons
Subchapter E. Qualifications to Serve as Court-Appointed Attorney
V.T.C.A., Estates Code § 1054.201
Formerly cited as TX PROBATE §§ 646(b), 647A(a), (b)
§ 1054.201. Certification Required
Effective: September 1, 2015
Currentness
(a) An attorney for an applicant for guardianship and a court-appointed attorney in a guardianship proceeding, including an
attorney ad litem, must be certified by the State Bar of Texas, or a person or other entity designated by the state bar, as having
successfully completed a course of study in guardianship law and procedure sponsored by the state bar or the state bar's designee.
(b) The State Bar of Texas shall require four hours of credit for certification under this subchapter, including one hour on
alternatives to guardianship and supports and services available to proposed wards.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014. Amended by Acts 2015, 84th Leg., ch. 214
(H.B. 39), § 6, eff. Sept. 1, 2015.
Notes of Decisions (2)
V. T. C. A., Estates Code § 1054.201, TX EST § 1054.201
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1104.101. Appointment According to Circumstances and Best..., TX EST § 1104.101
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle D. Creation of Guardianship
Chapter 1104. Selection of and Eligibility to Serve as Guardian
Subchapter C. Selection of Guardian for Incapacitated Person Other than Minor
V.T.C.A., Estates Code § 1104.101
Formerly cited as TX PROBATE § 677(a)
§ 1104.101. Appointment According to Circumstances and Best Interests
Effective: January 1, 2014
Currentness
The court shall appoint a guardian for an incapacitated person other than a minor according to the circumstances and considering
the incapacitated person's best interests.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
Editors' Notes
REVISOR'S NOTE
2014 Main Volume
Section 677(a), Texas Probate Code, refers to a court appointment of a guardian for a “person other than a minor.”
The revised law substitutes “incapacitated person” for the reference to “person” because under Sections 684 and
693, Texas Probate Code, the relevant parts of which are revised as Sections 1101.101, 1101.151, and 1101.152
of this code, a court may appoint a guardian for a person only if the court finds that the person is an incapacitated
person.
V. T. C. A., Estates Code § 1104.101, TX EST § 1104.101
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1104.102. Appointment Preferences, TX EST § 1104.102
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle D. Creation of Guardianship
Chapter 1104. Selection of and Eligibility to Serve as Guardian
Subchapter C. Selection of Guardian for Incapacitated Person Other than Minor
V.T.C.A., Estates Code § 1104.102
Formerly cited as TX PROBATE § 677(a)
§ 1104.102. Appointment Preferences
Effective: January 1, 2014
Currentness
If the court finds that two or more eligible persons are equally entitled to be appointed guardian of an incapacitated person:
(1) the incapacitated person's spouse is entitled to the guardianship in preference to any other person, if the spouse is one
of the eligible persons;
(2) the eligible person nearest of kin to the incapacitated person is entitled to the guardianship, if the incapacitated person's
spouse is not one of the eligible persons; or
(3) the court shall appoint the eligible person who is best qualified to serve as guardian if:
(A) the persons entitled to serve under Subdivisions (1) and (2) refuse to serve;
(B) two or more persons entitled to serve under Subdivision (2) are related in the same degree of kinship to the incapacitated
person; or
(C) neither the incapacitated person's spouse nor any person related to the incapacitated person is an eligible person.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
Notes of Decisions (4)
V. T. C. A., Estates Code § 1104.102, TX EST § 1104.102
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1104.354. Conflict of Interest, TX EST § 1104.354
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle D. Creation of Guardianship
Chapter 1104. Selection of and Eligibility to Serve as Guardian
Subchapter H. Grounds for Disqualification
V.T.C.A., Estates Code § 1104.354
Formerly cited as TX PROBATE § 681
§ 1104.354. Conflict of Interest
Effective: January 1, 2014
Currentness
A person may not be appointed guardian if the person:
(1) is a party or is a person whose parent is a party to a lawsuit concerning or affecting the welfare of the proposed ward,
unless the court:
(A) determines that the lawsuit claim of the person who has applied to be appointed guardian is not in conflict with the
lawsuit claim of the proposed ward; or
(B) appoints a guardian ad litem to represent the interests of the proposed ward throughout the litigation of the ward's
lawsuit claim;
(2) is indebted to the proposed ward, unless the person pays the debt before appointment; or
(3) asserts a claim adverse to the proposed ward or the proposed ward's property.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
Editors' Notes
REVISOR'S NOTE
2014 Main Volume
Section 681, Texas Probate Code, refers to “real or personal” property. The revised law omits the reference to “real
or personal” as unnecessary because Section 311.005(4), Government Code (Code Construction Act), applicable
to the revised law, defines “property” to mean real and personal property.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1104.354. Conflict of Interest, TX EST § 1104.354
Notes of Decisions (2)
V. T. C. A., Estates Code § 1104.354, TX EST § 1104.354
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 1105.251. Grounds for Requiring New Bond, TX EST § 1105.251
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle D. Creation of Guardianship
Chapter 1105. Qualification of Guardians
Subchapter F. New Bonds
V.T.C.A., Estates Code § 1105.251
Formerly cited as TX PROBATE §§ 711, 712
§ 1105.251. Grounds for Requiring New Bond
Effective: January 1, 2014
Currentness
(a) A guardian may be required to give a new bond if:
(1) a surety on a bond dies, removes beyond the limits of this state, or becomes insolvent;
(2) in the court's opinion:
(A) the sureties on a bond are insufficient; or
(B) a bond is defective;
(3) the amount of a bond is insufficient;
(4) a surety on a bond petitions the court to be discharged from future liability on the bond; or
(5) a bond and the record of the bond have been lost or destroyed.
(b) A person interested in the guardianship may have the guardian cited to appear and show cause why the guardian should not
be required to give a new bond by filing a written application with the county clerk of the county in which the guardianship
proceeding is pending. The application must allege that:
(1) the bond is insufficient or defective; or
(2) the bond and the record of the bond have been lost or destroyed.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1105.251. Grounds for Requiring New Bond, TX EST § 1105.251
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
Notes of Decisions (2)
V. T. C. A., Estates Code § 1105.251, TX EST § 1105.251
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 1152.001. Guardian to Serve Pending Appeal of Appointment, TX EST § 1152.001
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle E. Administration of Guardianship
Chapter 1152. Guardianship Pending Appeal of Appointment
V.T.C.A., Estates Code § 1152.001
Formerly cited as TX PROBATE § 655
§ 1152.001. Guardian to Serve Pending Appeal of Appointment
Effective: January 1, 2014
Currentness
Pending an appeal from an order or judgment appointing a guardian, the appointee shall continue to:
(1) act as guardian; and
(2) prosecute a pending suit in favor of the guardianship.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
V. T. C. A., Estates Code § 1152.001, TX EST § 1152.001
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1158.051. Sale of Certain Personal Property Required, TX EST § 1158.051
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle E. Administration of Guardianship
Chapter 1158. Sale or Partition of Ward's Property
Subchapter B. Certain Estate Property Required to be Sold
V.T.C.A., Estates Code § 1158.051
Formerly cited as TX PROBATE § 812
§ 1158.051. Sale of Certain Personal Property Required
Effective: January 1, 2014
Currentness
(a) After approval of the inventory, appraisement, and list of claims, the guardian of the estate of a ward promptly shall apply for
a court order to sell, at public auction or privately, for cash or on credit for a term not to exceed six months, all estate property
that is liable to perish, waste, or deteriorate in value, or that will be an expense or disadvantage to the estate if kept.
(b) The following may not be included in a sale under Subsection (a):
(1) property exempt from forced sale;
(2) property that is the subject of a specific legacy; and
(3) personal property necessary to carry on a farm, ranch, factory, or other business that is thought best to operate.
(c) In determining whether to order the sale of an asset under Subsection (a), the court shall consider:
(1) the guardian's duty to take care of and manage the estate in the manner a person of ordinary prudence, discretion, and
intelligence would manage the person's own affairs; and
(2) whether the asset constitutes an asset that a trustee is authorized to invest under Subchapter F, Chapter 113, Property
Code, 1 or Chapter 117, Property Code.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
Editors' Notes
REVISOR'S NOTE
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1158.051. Sale of Certain Personal Property Required, TX EST § 1158.051
2014 Main Volume
Section 812(a), Texas Probate Code, refers to the approval of the “inventory and appraisement” of an estate. The
inventory and appraisement is filed with a list of claims for the estate, as provided by Section 730, Texas Probate
Code, revised as Section 1154.052 of this code, and approved with that list, as provided by Section 733, Texas
Probate Code, revised as Section 1154.054 of this code. The revised law substitutes “inventory, appraisement, and
list of claims” for “inventory and appraisement” for the reasons stated in the revisor's note to Section 1154.101
of this code.
Footnotes
1 V.T.C.A., Property Code § 113.171 et seq.
V. T. C. A., Estates Code § 1158.051, TX EST § 1158.051
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 1158.255. Hearing on Application and Any Opposition, TX EST § 1158.255
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle E. Administration of Guardianship
Chapter 1158. Sale or Partition of Ward's Property
Subchapter F. Sale of Real Property: Application and Order for Sale
V.T.C.A., Estates Code § 1158.255
Formerly cited as TX PROBATE § 824A
§ 1158.255. Hearing on Application and Any Opposition
Effective: January 1, 2014
Currentness
(a) The clerk of the court in which an application for an order of sale is filed shall immediately call to the judge's attention any
opposition to the sale that is filed during the period prescribed in the citation issued under Section 1158. 253. The court shall
hold a hearing on the application if an opposition to the sale is filed during the period prescribed in the citation.
(b) A hearing on an application for an order of sale is not required under this section if no opposition to the application is filed
during the period prescribed in the citation. The court may determine that a hearing on the application is necessary even if no
opposition is filed during that period.
(c) If the court orders a hearing under Subsection (a) or (b), the court shall designate in writing a date and time for the hearing
on the application and any opposition, together with the evidence pertaining to the application and any opposition. The clerk
shall issue a notice of the date and time of the hearing to the applicant and to each person who files an opposition to the sale,
if applicable.
(d) The judge, by entries on the docket, may continue a hearing held under this section from time to time until the judge is
satisfied concerning the application.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
V. T. C. A., Estates Code § 1158.255, TX EST § 1158.255
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1251.007. Motion for Dismissal of Application, TX EST § 1251.007
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle G. Special Types of Guardianships
Chapter 1251. Temporary Guardianships
Subchapter A. Appointment of Temporary Guardian Generally
V.T.C.A., Estates Code § 1251.007
Formerly cited as TX PROBATE § 875(f)(5)
§ 1251.007. Motion for Dismissal of Application
Effective: January 1, 2014
Currentness
(a) Subject to Subsection (b), the proposed ward or the proposed ward's attorney may appear and move for the dismissal of
the application for temporary guardianship.
(b) At least one day before making a motion under Subsection (a), the proposed ward or the proposed ward's attorney shall
provide notice to the party who filed the application for temporary guardianship.
(c) If a motion is made for dismissal of the application for temporary guardianship, the court shall hear and determine the motion
as expeditiously as justice requires.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
V. T. C. A., Estates Code § 1251.007, TX EST § 1251.007
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1251.051. Authority to Appoint Temporary Guardian or Grant..., TX EST § 1251.051
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle G. Special Types of Guardianships
Chapter 1251. Temporary Guardianships
Subchapter B. Temporary Guardianship Pending Challenge or Contest of Certain Guardianship
Applications
V.T.C.A., Estates Code § 1251.051
Formerly cited as TX PROBATE § 875(k)
§ 1251.051. Authority to Appoint Temporary Guardian or Grant Restraining Order
Effective: January 1, 2014
Currentness
The court, on the court's own motion or on the motion of any interested party, may appoint a temporary guardian or grant a
temporary restraining order under Rule 680, Texas Rules of Civil Procedure, or both, without issuing additional citation if:
(1) an application for a temporary guardianship, for the conversion of a temporary guardianship to a permanent guardianship,
or for a permanent guardianship is challenged or contested; and
(2) the court finds that the appointment or the issuance of the order is necessary to protect the proposed ward or the proposed
ward's estate.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014.
V. T. C. A., Estates Code § 1251.051, TX EST § 1251.051
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1251.052. Qualification and Duration of Certain Temporary..., TX EST § 1251.052
KeyCite Yellow Flag - Negative Treatment
Proposed Legislation
Vernon's Texas Statutes and Codes Annotated
Estates Code (Refs & Annos)
Title 3. Guardianship and Related Procedures
Subtitle G. Special Types of Guardianships
Chapter 1251. Temporary Guardianships
Subchapter B. Temporary Guardianship Pending Challenge or Contest of Certain Guardianship
Applications
V.T.C.A., Estates Code § 1251.052
Formerly cited as TX PROBATE § 875(l)
§ 1251.052. Qualification and Duration of Certain Temporary Guardianships
Effective: September 1, 2015
Currentness
(a) A temporary guardian appointed under Section 1251.051 must qualify in the same form and manner required of a guardian
under this title.
(b) The term of a temporary guardian appointed under Section 1251.051 expires on the earliest of the following:
(1) the conclusion of the hearing challenging or contesting the application;
(2) the date a permanent guardian appointed by the court for the proposed ward qualifies to serve as the ward's guardian; or
(3) the nine-month anniversary of the date the temporary guardian qualifies, unless the term is extended by court order issued
after a motion to extend the term is filed and a hearing on the motion is held.
Credits
Added by Acts 2011, 82nd Leg., ch. 823 (H.B. 2759), § 1.02, eff. Jan. 1, 2014. Amended by Acts 2015, 84th Leg., ch. 1031
(H.B. 1438), § 23, eff. Sept. 1, 2015.
Editors' Notes
REVISOR'S NOTE
2014 Main Volume
Section 875(l), Texas Probate Code, requires a temporary guardian to qualify in the same form and manner as a
guardian under “this code,” meaning the Texas Probate Code. The revised law substitutes a reference to “this title”
for the reference to “this code” because the provisions of the Texas Probate Code that relate to qualification of
guardians are revised in Title 3 of this code, and this chapter is included in that title.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1251.052. Qualification and Duration of Certain Temporary..., TX EST § 1251.052
Notes of Decisions (3)
V. T. C. A., Estates Code § 1251.052, TX EST § 1251.052
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Bridgman v. Moore, 143 Tex. 250 (1944)
183 S.W.2d 705
insufficient and could not be treated as a bill of
review. Rules of Civil Procedure, rule 330.
KeyCite Yellow Flag - Negative Treatment
Not Followed as Dicta Mowbray v. Avery, Tex.App.-Corpus Christi, 2 Cases that cite this headnote
April 11, 2002
143 Tex. 250 [3] Judgment
Supreme Court of Texas. Time for Application
Judgment
BRIDGMAN
Collateral nature of proceeding in general
v.
Where no motion for a new trial was filed before
MOORE.
expiration of 30 days from date of judgment,
No. A-185. | Nov. 22, 1944. a motion made after such 30-day period to set
| Rehearing Denied Dec. 20, 1944. aside judgment and for judgment non obstante
veredicto was a collateral attack upon judgment
Error to Court of Civil Appeals of Ninth Supreme Judicial and court was unauthorized to set it aside unless
District. it was void. Rules of Civil Procedure, rule 330.
Suit by Mrs. F. W. Bridgman against W. T. Moore for 3 Cases that cite this headnote
recovery of rent and damages, wherein the defendant filed a
cross-action alleging ownership of an undivided interest in [4] Judgment
the land and seeking a partition thereof. A judgment of the Invalidity of judgment in general
Court of Civil Appeals, 180 S.W.2d 211, dismissed plaintiff's
The court has not only the power but the duty to
appeal from an adverse judgment, and plaintiff brings error.
vacate the inadvertent entry of a void judgment at
any time, either during the term or after the term,
Judgment of Court of Civil Appeals affirmed.
with or without a motion therefor.
10 Cases that cite this headnote
West Headnotes (9)
[5] Judgment
Dismissal of action, nonsuit, or direction of
[1] Judgment
verdict
Time for Application
Judgment
Where no motion for a new trial was filed
Authority to enter
before expiration of 30 days from the date of the
judgment, such judgment became final and, if not Upon the entry of a general or directed verdict,
void, could be set aside only by a bill of review. the law determines what the judgment shall be,
Rules of Civil Procedure, rule 330. and the clerk may enter the judgment without
further direction from the court. Vernon's
8 Cases that cite this headnote Ann.Civ.St. art. 1899.
2 Cases that cite this headnote
[2] Judgment
Actions and Other Proceedings to Review
Judgment [6] Judgment
Proceedings for entry
A motion to set aside judgment theretofore
rendered on account of numerous errors alleged In the case of a special verdict, it is necessary for
to have occurred in the course of the trial and court to announce the judgment thereon before
for judgment notwithstanding the verdict was clerk is authorized to enter judgment. Vernon's
Ann.Civ.St. art. 1899.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Bridgman v. Moore, 143 Tex. 250 (1944)
183 S.W.2d 705
Cases that cite this headnote Opinion
FOLLEY, Commissioner.
[7] Judgment
Grounds for review This suit was filed by the petitioner, Mrs. F. W. Bridgman,
Judgment against her brother, who is the respondent, W. T. Moore,
Defects in entry, form, and contents of seeking recovery for rents from, and damages to, certain lands
judgment in Jefferson county, which she alleged she owned and had
leased to respondent. The respondent filed a cross action
The signing and approving of judgment on
alleging that he was the owner of a 1/8 undivided interest in
special verdict at judge's private residence
the land and sought partition thereof and recovery for certain
without knowledge or presence of plaintiff or
improvements he had added to the property. Trial was had
her counsel was irregular and, upon direct
in the district court of Jefferson county beginning on June
attack by bill of review, would have warranted
16, 1942. Fact issues were submitted **706 to a jury and
equitable relief, but such irregularity did not
the jury's verdict was returned and filed June 20, 1942. On
render judgment void so as to warrant setting it
July 3, 1942, judgment was rendered on the jury's verdict
aside on collateral attack. Vernon's Ann.Civ.St.
and entered into the court's minutes. The court found that
art. 1899.
petitioner owned 7/8, and respondent *252 1/8, of the land,
14 Cases that cite this headnote and the decree awarded respondent a 1/8 interest, ordered
the land partitioned, and, in keeping with the jury's verdict,
allowed respondent a recovery against petitioner for $673.75,
[8] Courts
and denied petitoner any recovery for the rents and damages
Place for holding sessions
she sought.
Under constitutional and statutory provisions
requiring that district judge shall hold court only No motion for new trial was filed within thirty days from the
at the “county seat” of county, the quoted term rendition and entry of the judgment. The term of the district
means the place where the courthouse is situated. court ended on Sunday, July 5, 1942. Such district court
Vernon's Ann.Civ.St. arts. 1602, 1919; Vernon's is governed by Rule 330, Texas Rules of Civil Procedure,
Ann.St.Const. art. 5, § 7. which provides that judgments shall become final after the
expiration of thirty days after the date of judgment or after
10 Cases that cite this headnote a motion for a new trial is overruled, and that after the
expiration of such time the judgment cannot be set aside
[9] Judgment except by bill of review for sufficient cause.
Place of rendition
On August 6, 1942, as shown by supplemental transcript,
Generally, judgment should be pronounced only petitioner filed a motion to set aside the judgment of July 3,
in open court at the time and place appointed 1942, and asked the court to render judgment in her behalf on
therefor. her motion for judgment non obstante veredicto, theretofore
filed by her on June 25, 1942. On August 13, 1942, she filed
1 Cases that cite this headnote
an amended motion seeking the same relief. On the latter date
the court made and entered the following order:
‘On the 13th day of August, 1942, came on to be heard the
motion of Mrs. F. W. Bridgeman, et al, plaintiffs in the above
Attorneys and Law Firms consolidated cause, to set aside the Judgment entered in the
minutes in this cause on the 3rd day of July, 1942, and issue
*251 **705 David E. O'Fiel and C. W. Wiedemann, both
being joined thereon, and the court having considered the
of Beaumont, for petitioner.
motion together with the evidence adduced thereon is of the
John H. Land, of Beaumont, for respondent. opinion that the said motion is well taken, and that same
should be granted.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Bridgman v. Moore, 143 Tex. 250 (1944)
183 S.W.2d 705
‘It is therefore ordered, adjudged and decreed that the for new trial. Halbrook v. Quinn, Tex.Civ.App., 286 S.W.
judgment entered by this court in this consolidated cause on 954; Buchanan v. Bilger, 64 Tex. 589; Roberts v. McCamant,
the 3rd day of July, 1942, be and the same is hereby set aside.’ 70 Tex. 743, 8 S.W. 543; **707 Bowers v. Chaney, 21
Tex. 363; Wright v. Shipman, Tex.Civ.App., 279 S.W. 296.
However, the court has not only the power but the duty to
On September 18, 1942, the court approved a second vacate the inadvertent entry of a void judgment at any time,
judgment which was on that date entered in the minutes. The either during the term or after the term, with or without a
second judgment is identical with that of July 3, 1942. The motion therefor. Nevitt v. Wilson, 116 Tex. 29, 285 S.W.
petitioner attempted to appeal from the second judgment to 1079, 48 A.L.R. 355; Wichita Falls, R. & Ft. W. R. Co. v.
the Court of Civil Appeals at Beaumont. That court dismissed Combs, 115 Tex. 405, 283 S.W. 135. The question therefore
the appeal holding that the entry of the second judgment did arises as to whether the judgment is void and thus subject to
not vacate the first, and, in the absence of a bill of review, that the collateral attack.
the first judgment had become final since no motion was filed
within thirty days from its date to set it aside. 180 S.W.2d 211.
*254 The only indication in the record of anything irregular
*253 On the original submission the Court of Civil Appeals as to the first judgment is contained in the allegations of
refused to order the district clerk to file a supplemental petitioner in her amended motion for a new trial filed August
transcript containing an alleged bill of review against the first 13, 1942. She alleged that on the first day of July, 1942,
judgment. One of the points upon which we granted the writ after the return of the verdict but before the entry of the
of error was the alleged refusal of the Court of Civil Appeals judgment, respondent caused to be forwarded to petitioner
to direct the filing of the supplemental transcript. However, and her attorney a draft of the judgment, and a motion to enter
the record reveals that prior to the overruling of the motion the same, with a statement that it was the judgment respondent
for rehearing in such court the supplemental transcript was was going to request the court to enter; that the trial judge was
filed and was presumably considered at the time the motion busy trying another case during the week of June 29, 1942,
for rehearing was overruled. The only question remaining for at which time he became ill and was obliged to discontinue
our determination is whether the trial court's order of August the trial and remain at his home; that respondent, through
13, 1942, was effectual to set aside the judgment of July 3, his counsel, caused a draft of the judgment to be signed by
1942. the trial judge at his private residence, without a hearing,
[1] [2] [3] [4] Since no motion for a new trial was filedand not at the courthouse or in the courtroom, and without
by petitioner before the expiration of thirty days from the notification to petitioner or her counsel; that such judgment
date of the judgment of July 3, 1942, under Rule 330(l), the was entered and that neither petitioner nor her counsel were
same became final, and, if not void, could be set aside only advised of its entry; and that petitioner and her counsel had
by a bill of review. The petitioner contends that the motion no opportunity to be present in court and contest the granting
upon which the court acted in purporting to set aside the first of such judgment and thus had been deprived of a substantial
judgment is sufficient to be treated as a bill of review. We right. In her petition for writ of error petitioner asserts that the
are not in accord with this contention. In such motion she above facts constituted equitable grounds for setting aside the
merely seeks to set aside the former judgment on account judgment, which she alleges is void. Presumably the alleged
of numerous errors alleged to have occurred in the course vice in the judgment is that it was signed by the judge at his
of the trial, and also asks that judgment be rendered for her private residence. Petitioner contends that such fact vitiates
notwithstanding the verdict. It is not an original proceeding the decree because it was not rendered in open court.
filed as an independent action against respondent alleging a
meritorious cause of action. It is therefore insufficient as a bill The order purporting to set aside the judgment recites that
of review. Humphrey v. Harrell, Tex.Com.App., 29 S.W.2d evidence was introduced on the hearing of the motion. Such
963; Hermann Hospital Estate v. Nachant, Tex.Com.App., testimony does not accompany the record. However, for the
55 S.W.2d 505; Ridley v. McCallum, 139 Tex. 540, 163 purpose of this opinion, we shall presume that the above
S.W.2d 833; Hartel v. Dishman, 135 Tex. 600, 145 S.W.2d allegations were established by the evidence. In the light of
865, and Nachant v. Monteith, 117 Tex. 214, 299 S.W. 888. such assumption we must determine if the facts so assumed
Consequently, the attack made upon the former judgment render the judgment void so as to subject it to this collateral
is collateral, and unless the judgment is void the court was attack.
unauthorized to set it aside in the hearing upon the motion
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
Bridgman v. Moore, 143 Tex. 250 (1944)
183 S.W.2d 705
[5] [6] Under the provisions of Art. 1899, Vernon's filing of which memorandum should be
Ann.Civ.Stat., district clerks are
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