                                                                                 ACCEPTED
                                                                             04-15-00637-CV
                                                                 FOURTH COURT OF APPEALS
                                                                      SAN ANTONIO, TEXAS
                                                                      10/12/2015 12:00:00 AM
                                                                              KEITH HOTTLE
                                                                                      CLERK

                         04-15-00637-CV

                                                FILED IN
                                         4th COURT OF APPEALS
                                          SAN ANTONIO, TEXAS
              IN THE COURT OF APPEALS    10/10/2015 4:51:15 PM
          FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE
              OF TEXAS AT SAN ANTONIO             Clerk




      ANNA T. MUENZ,
                         Petitioner,


            On Petition for Writ of Mandamus from
          Probate Court No. One, Bexar County, Texas
               Honorable Kelly Cross, presiding
             Trial Court Cause No. 2013-PC-2901


                   PETITIONER’S BRIEF



                                       Respectfully submitted,

                                       Philip M. Ross
ORAL ARGUMENT REQUESTED                State Bar No. 017304200
                                       1006 Holbrook Road
                                       San Antonio, Texas 78218
                                       Phone: 210/326-2100
                                       Email: ross_law@hotmail.com

                              By:      /s/ Philip M. Ross
                                       Philip M. Ross
                                       Attorney for Appellant
                                       Anna T. Muenz
                 IDENTITY OF PARTIES AND COUNSEL

Party:                      Counsel:

Anna T. Muenz               Philip M. Ross
                            State Bar No. 17304200
Petitioner                  1006 Holbrook Road
                            San Antonio, Texas 78218
                            Phone: 210/326-2100
                            Email: ross_law@hotmail.com

Cynthia Henkle              David M. Pyke
                            State Bar No. 16419700
Guardian                    E-mail: dpyke@dallasprobatelaw.com
                            Amanda Bullington Stidger
                            State Bar No. 24069031
                            E-mail: astidger@dallasprobatelaw.com
                            12655 N. Central Expressway
                            North Central Plaza I, Suite 700
                            Dallas, TX 75243
                            Ph: 214.866.0133
                            Fax: 214.866.0433

Mike Warren
State Bar No. 20885700
206 E. Locust St.
San Antonio, TX 78212
Ph: 214-696-6453
Fax: 214-666-3949
Email: mike@mikewarrenlaw.com
Guardian ad litem




                                 ii
             TABLE OF CONTENTS

                                                                    Page

IDENTITY OF PARTIES AND COUNSEL ..………………………… ii

TABLE OF CONTENTS ………………………………………………                                  iii

INDEX OF AUTHORITIES …………………………………………..                               vi

STATEMENT OF THE CASE ……………………………… ……….                               1

STATEMENT OF JURISDICTION …………………………………..                             4

STATEMENT REGARDING THE RECORD….………………………                              4

ISSUES PRESENTED ………………………………………………….. 4

   1   Whether the trial court abused its discretion when it
       signed the Order to Transfer Guardianship to Denton
       County, dated July 17, 2015, in error because there was
       no evidence regarding
       (a) Anna's domicile,
       (b) a finding that good cause to deny the application
             was not shown, and
       (c) that it is in Anna's best interest to transfer the
             guardianship.
   2   Whether Anna's offer of proof at the hearing and
       subsequently in support of her motion for reconsideration
       shows that:

       (a)  Anna's domicile is in Bexar County, Texas,
       (b)  that good cause to deny the application has been
            shown, and
       (c) that it is not in Anna's best interest to transfer the
            guardianship.
   3   Whether the application to transfer guardianship to
       Denton County, Texas was untimely.


                                iii
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND ..                                                               5

STANDARD OF REVIEW ….....................................................………. 23

SUMMARY OF ARGUMENT ……………………………………….                                                                          23

ARGUMENT AND AUTHORITY ……………...…………………….. 24

ISSUE NO. 1      Whether the trial court abused its discretion
          when it signed the Order to Transfer Guardianship to
          Denton County, dated July 17, 2015, in error because
          there was no evidence regarding
     (a) Anna's domicile,
     (b) a finding that good cause to deny the application
          was not shown, and
     (c) that it is in Anna's best interest to transfer the
          guardianship.

             ..............................................................................................   25

ISSUE NO. 2      Whether Anna's offer of proof at the hearing
          and subsequently in support of her motion for
          reconsideration shows that:
     (a) Anna's domicile is in Bexar County, Texas,
     (b) that good cause to deny the application has been shown,
          and
     (c) that it is not in Anna's best interest to transfer the
          guardianship.

             .............................................................................................    26

ISSUE NO. 3     Whether the application to transfer
          guardianship to Denton County, Texas was
          untimely.

             ............................................................................................ 31

CONCLUSION and PRAYER……………………….……………...... 32

                                                    iv
CERTIFICATION ………………………………………………..… 33

CERTIFICATE OF COMPLIANCE ..…………………….…....….   33

CERTIFICATE OF SERVICE …………………………….…...….      33




                        v
                                     INDEX OF AUTHORITIES

       CASES                                                                   PAGE(S)


Banda v. Garcia
955 S.W.2d 270 (Tex. 1997) ….....................................................   26

Halverson v. Livengood
4 S.W.2d 588
(Tex. Civ. App.—Texarkana 1928, no writ) …....................... 27

In re Cerberus Capital Mgmt., L.P.
164 S.W.3d 379 (Tex. 2005) (orig. proceeding) …................. 24

In The Estate of Adrian Neuman
No. 09-13-00570-CV
(Court of Appeals of Texas, Ninth District,
Beaumont May 14, 2015) …................................................... 32

In re Estate of Steed
152 S.W.3d 797
(Tex. App.—Texarkana 2004, pet. Denied) ….......................                    27

In re Graham
251 S.W.3d 844
(Tex. App.—Austin 2008, orig. proceeding) …............ 25,28, 29, 30

In re Mo. Pac. R.R. Co.
998 S.W.2d 212 (Tex. 1999) …........................................ 25, 29, 30

In re Prudential Ins. Co. of America
148 S.W.3d 124, 138
(Tex. 2004) (orig. proceeding) ….........................................           23

In re Team Rocket, L.P.
256 S.W.3d 257
(Tex. 2008) (orig. proceeding) ….........................................           24


                                              vi
         CASES                                                                             PAGE(S)

In the Estate of Consuella Perkins Ulbrich, deceased
04-12-00514-CV
(Tex. Civ. App. - San Antonio, January 15, 2014) ….........                                 26, 30, 31

Jarvis v. Feild
327 S.W.3d 918
(Tex. App.-Corpus Christi-Edinburg 2010, no pet.) …............. 32

Maddox v. Surber
677 S.W.2d 226, 228
(Tex. App.—Houston [1st Dist.] 1984, no writ) ….....................                            27, 28

Slay v. Dubose
144 S.W.2d 594
(Tex. Civ. App.—Fort Worth 1940, writ ref'd) ............................... 27

McGrede v. Coursey
131 S.W.3d 189, 196
(Tex. App.-San Antonio 2004, no pet.) …................................ 32

Snyder v. Pitts
241 S.W.2d 136
(Tex. 1951) …................................................................................    28

Texas v. Florida
306 U.S. 398, 424 (1939) …...................................................             27, 28, 30

Walker v. Packer
827 S.W.2d 833, 839-40
(Tex. 1992) (orig. proceeding) …..................................................               30


STATE STATUTES AND RULES                                                                   PAGE(S)

Texas Estates Code § 1023.001 …................................................... 23, 24

Tex.R.Civ.P. 86(1) ….................................................................. 23, 31, 32

                                                    vii
                      IN THE COURT OF APPEALS FOR
                     THE FOURTH DISTRICT OF TEXAS
                         SITTING AT SAN ANTONIO

ANNA T. MUENZ,
         Petitioner,


                    On Petition for Writ of Mandamus from
                  Probate Court No. One, Bexar County, Texas
                       Honorable Kelly Cross, presiding
                     Trial Court Cause No. 2013-PC-2901

                            PETITIONER'S BRIEF



TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:

     NOW COMES, Anna T. Muenz (“Anna”), by and through the undersigned

attorney at law, and files this petition for writ of mandamus regarding the Order

Transferring Guardianship to Denton County, Texas, dated July 17, 2015, and

would show the Court as follows:

                            STATEMENT OF CASE

      On or about October 14, 2013, Cynthia Henckel (“Guardian”) was

appointed guardian of Anna's the person and estate. Within a few months, the

                                       1
Guardian relocated Anna to Autumn Leaves of Carrollton, 1800 King Arthur

Blvd., Carrollton, Denton County, Texas, where she has been housed in a locked

memory care unit for the past 16 months.

      On or about February 2, 2015, the trial court signed an Order authorizing

the sale of Anna's house in San Antonio, Bexar County, Texas. On February 12,

2015, Anna sent a letter to the trial court complaining about the facts and

circumstances of her guardianship and requesting an investigation. On February

19, 2015, the trial court appointed attorney Michael Warren as guardian ad litem

for Anna pursuant to the Texas Estates Code §1054.

      On or about April 16, 2015, Anna retained the undersigned counsel

pursuant to the Texas Estates Code §1202.103(a) and filed an Application for an

Order pursuant to the Texas Estates Code §1202.051 to restore her capacity to

manage her own personal and financial affairs. The Guardian's first responsive

pleading was filed on April 28, 2015, which was a Motion Requesting Philip M.

Ross to Show Authority to Act. A few weeks later, on May 21, 2015, the Guardian

filed an application to transfer the guardianship of the person and estate of Anna

Muenz from Bexar County, Texas to Denton County, Texas. Anna submits that

the Guardian's application to transfer the guardianship was untimely, not in Anna's

best interests, but intended to frustrate Anna's efforts to restore her capacity.
                                           2
      On July 17, 2015, the Court heard argument of counsel regarding the

application to transfer the guardianship, but the hearing was limited to thirty

minutes, and no time was allotted for introduction of evidence on contested issues.

Contested issues include the location of Anna's domicile, which is a mandatory

venue issue; whether good cause to deny the application was shown; and whether

it is in Anna's best interests to transfer the guardianship.

      Anna submits that the Court's findings contained in the Order to Transfer

Guardianship to Denton County, dated July 17, 2015, including reference to

Anna's current residence, a finding that good cause to deny the application was not

shown, and that it is in Anna's best interest to transfer the guardianship were not

supported by any evidence because none was admitted. The Guardian did not

offer any evidence to support the Court's findings. Anna participated in the

hearing by telephone, but she was not allowed to appear in person or testify

regarding her place of residence, good cause to deny the application, and why

denying the application is in her best interests. Anna's attorney made an offer of

proof that Anna's choice of county of residence is Bexar County, that there is good

cause to deny the transfer, and that it is in Anna's best interest for the Court to

retain jurisdiction.

      Therefore, Anna respectfully submits that the Court abused its discretion in
                                           3
granting the Order to Transfer Guardianship to Denton County, dated July 17,

2015. The transfer of Guardianship has not yet been confirmed by the Probate

Court in Denton County, which set a confirmation hearing for October 30, 2015.

                       STATEMENT OF JURISDICTION

      Appellant files this petition for writ of mandamus pursuant to Article V,

Section 6 of the Texas Constitution and TEX. CIV. PRAC. & REM. CODE ANN.

§ 15.0642. TEX. R. APP. P. 52.3(e) requires the initial filing with the court of

appeals. Appellant submits that she has complied with all conditions precedent to

invoking the jurisdiction of the Fourth Court of Appeals.

                  STATEMENT REGARDING THE RECORD

      The Clerk’s Record consisting of one volume has been requested. The

Reporter's Record consisting of one volume including transcript of one hearing

has been filed.

                                ISSUES PRESENTED

1     Whether the trial court abused its discretion when it signed the Order to

Transfer Guardianship to Denton County, dated July 17, 2015, in error because

there was no evidence regarding

      (a)    Anna's domicile,

      (b)    a finding that good cause to deny the application was not shown, and
                                         4
      (c)    that it is in Anna's best interest to transfer the guardianship.

2     Whether Anna's offer of proof at the hearing and subsequently in support of

her motion for reconsideration shows that:

      (a)    Anna's domicile is in Bexar County, Texas,

      (b)    that good cause to deny the application has been shown, and

      (c)    that it is not in Anna's best interest to transfer the guardianship.

3     Whether the application to transfer guardianship to Denton County, Texas

was untimely.

       STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

1     On or about October 14, 2013, Cynthia Henckel (“Guardian”) was

appointed guardian of Anna's the person and estate.

2     The Guardian then proceeded to remove Anna from her long-time home and

relocated her into a nursing home in San Antonio, Bexar County, Texas.

3     Within a couple of months, the Guardian removed Anna from the nursing

home in San Antonio, Bexar County, Texas and relocated her to Autumn Leaves

of Carrollton, 1800 King Arthur Blvd., Carrollton, Denton County, Texas, where

she has been housed in a locked memory care unit for the past 16 months.

4     Anna has alleged that the Guardian placed arbitrary and unreasonable

restrictions or denial of Anna's contact with life-long friends and relatives, except
                                           5
her Guardian and grand-daughter. On February 12, 2015, Anna sent a hand

written letter to the trial court complaining about the facts and circumstances of

her guardianship and requesting an investigation. On February 19, 2015, the trial

court appointed attorney Michael Warren as guardian ad litem for Anna pursuant

to the Texas Estates Code §1054.

5     On or about April 6, 2015, Anna Muenz retained the undersigned counsel

pursuant to the Texas Estates Code §1202.103(a) to file an Application for an

Order pursuant to the Texas Estates Code §1202.051 to restore her capacity to

manage her own personal and financial affairs.

6     On April 16, 2015, Anna Muenz filed an Application for an Order pursuant

to the Texas Estates Code §1202.051 to restore her capacity to manage her own

personal and financial affairs.

7     Anna alleged that she has the capacity to manage her personal and financial

affairs including basic activities of daily living; consent to medical, dental,

psychological and psychiatric treatment; to manage and/or have input into her

financial affairs; consent to financial matters such as bill paying and tax

preparation; execute a durable power of attorney; execute a medical power of

attorney; vote in elections; consent to marriage; consent to legal representation;

participate in legal proceedings; decide with whom she wants to associate; decide
                                        6
with whom she does not want to associate; execute a will; choose her place of

residence; and live in a private home with assistance.

8     Anna submits that the Texas Estates Code §1022.005 confers exclusive

jurisdiction to the trial court over her application to restore her capacity pursuant

to the Texas Estates Code §1202.051 as well as the motion to remove the

Guardian pursuant to the Texas Estates Code §1202.051 or §1202.052.

9     Anna alleged that the Guardian removed her from Bexar County, Texas,

where she had lived for the past sixty years, to Denton County, Texas, where she

had no friends or family except her Guardian and grand-daughter, more than

fourteen months ago, while she still owned her residence in Bexar County

10    Upon information and belief, the Guardian relocated Anna from the

jurisdiction of Bexar County Probate Court No. One without Court approval and

waited more than a year until after the trial court appointed a guardian ad litem and

Anna hired a Bexar County attorney and filed her application to restore her

capacity before applying to transfer the guardianship. Anna submits that the

application to transfer the guardianship was untimely.

11    In February 2015, the Guardian sold Anna's San Antonio residence, where

she had lived for many years in a neighborhood that was close to longtime friends.

The Guardian also sold Anna's personal property, which had great sentimental
                                         7
value, without Anna's knowlede or consent.

12    Anna also alleged that after the Guardian removed her from Bexar County,

Texas to Denton County, Texas, the Guardian failed or refused to tell her friends

and relatives where she was living, denied her requests to have contact by

telephone or in-person with friends and relatives, took away her address book, and

deprived her of access to a telephone.

13    Anna presently resides at Autumn Leaves of Carrollton, 1800 King Arthur

Blvd., Carrollton, Denton County, Texas, where she has been housed in a locked

memory care unit for the past sixteen months. However, the trial court ordered the

Guardian to relocate Anna to a less restrictive residence on July 16, 2015.

14    Anna alleged that the Guardian arbitrarily and unreasonably deprived her

requests for an adequate selection of clothing, a television, her address book,

stamped envelopes and stationery, and a telephone.

15    It took many months for Anna's other relatives and friends to locate her after

the Guardian removed her from Bexar County, Texas and cut off all

communication with Anna.

16    In February 2015, Anna and her relatives and friends contacted the Court

and requested an investigation pursuant to the Texas Estates Code §1202.051-054.

17    Anna's friends and relatives also contacted Texas Ombudsman Karlotta
                                         8
Hannibal, who intervened to restore Anna's right to have unrestricted access to a

telephone, which was provided to her by a friend.

18      On February 20, 2015, the Court appointed attorney Mike Warren as

guardian ad litem pursuant to the Texas Estates Code §1054 to investigate Anna's

current circumstances and condition and to obtain a current certificate of medical

examination and file a report with the Court concerning Anna's circumstances and

condition with recommendations for any further action by the Court.

19      A hearing on Anna's application to restore her capacity was set for May 22,

2015.

20      On April 28, 2015, the Guardian filed a Motion Requesting Philip M. Ross

to Show Authority to Act. The motion to show authority was set for hearing on

May 21, 2015.

21      On April 30, 2015, the guardian ad litem filed a report in which he stated

that Anna was in stable condition, but that a current medical exam was needed

under the circumstances. Anna was examined by Dr. Charles Mathis, M.D. on

May 8, 2015.

22      Anna submits that she has a right to retain an attorney for a proceeding

involving the complete restoration of her capacity or modification of her

guardianship pursuant to the Texas Estates Code, Section 1202.103(a), and she
                                         9
retained the undersigned attorney pursuant to a written contract for legal services.

23    Anna submits that her Guardian's objection to the undersigned counsel's

authority to act is groundless and frivolous and brought for an improper purpose

including harassment, because her right to be represented by an attorney of her

own choice is clearly established pursuant to the Texas Estates Code, Section

1202.103(a), which should not be questioned, infringed or denied.

24     On May 21, 2015, the Court held a status conference. The undersigned

attorney requested an opportunity for Anna to appear by telephone, since her

guardian did not bring her to court. The Court took the matter under advisement

and requested the Guardian's attorney to report whether Anna's treating physician

felt she was able to attend court for a hearing on the guardian's motion requesting

the undersigned attorney to show authority to act as her attorney. The Court

requested Anna's counsel to submit a brief on the issue of testimony by telephone.

25    On May 21, 2015, about three months after the trial court appointed a

guardian ad litem for Anna, and about three weeks after filing her initial pleading

in response to Anna's application to restore her capacity, the Guardian filed an

application to transfer the guardianship of the person and estate of Anna Muenz

from Bexar County, Texas to Denton County, Texas. Anna submits that the

Guardian's application to transfer the guardianship was untimely and not in Anna's
                                         10
best interests, but to frustrate Anna's efforts to restore her capacity.

26    The hearing on the merits, which had been scheduled for May 22, 2015 was

postponed, pending a ruling on the question whether Anna has a right to retain an

attorney of her choice pursuant to the Texas Estates Code, Section 1202.103(a).

27    On July 16, 2015, the Court entered an Order that the Guardian shall move

Anna to an assisted living residential setting that is less restrictive than Autumn

Leaves Memory Care Facility, where Anna presently resides, within thirty days.

The Order did not specify that Anna had to be relocated in Denton County.

28    Anna respectfully submits that it is in her best interests to be allowed to

relocate to the least restrictive private residence, which is the fully furnished two

bedroom, one bath suite #202 at the Dwelling Suites located at 2530 Harry

Wurzbach San Antonio, Bexar County, Texas, that she has leased with assistance

of her niece, who plans to live with her in San Antonio, Bexar County, Texas.

29    On July 17, 2015, the Court heard argument of counsel regarding the

application to transfer the guardianship, but the hearing was limited to thirty

minutes, and no time was allotted for introduction of evidence on contested issues.

Contested issues include the location of Anna's domicile, which is a mandatory

venue issue; whether good cause to deny the application was shown; and whether

it was in Anna's best interests to transfer the guardianship.
                                           11
30    There were about ten persons in the courtroom, who are interested in Anna's

well being and who were prepared to testify regarding facts related to Anna's best

interests and why transferring the guardianship to Denton County, Texas would

not be in Anna's best interest. However, the trial court denied Anna's attorney's

request to call witnesses to testify under oath and to admit any evidence. The trial

court only allowed Anna's attorney to make an offer of proof. (A true and correct

copy of the transcript of the hearing on July 27, 2015 is included in the Appendix

and incorporated herein for all purposes).

31    Anna participated in the hearing by telephone, but she was not allowed to

testify regarding her domicile, good cause to deny the application, and why

denying the application is in her best interests. Anna submits that she would have

testified that her home and domicile is in Bexar County, Texas. Anna further

submits that the trial court abused her discretion, when she declined to hear or

admit any proffered evidence on the issue of Anna's domicile and ordered the

guardianship transferred to Denton County, Texas without considering any

evidence or referring to any guiding principles.

32    At the time of the hearing on the application to transfer the guardianship,

there were several motions pending including Anna's application to restore her

capacity, motion to remove the Guardian, and motion to appear in person. Also
                                        12
pending was the Guardian's motion to show authority. Therefore, Anna

respectfully submits that the Court should not have ordered the transfer of

guardianship from Bexar County, Texas, which is the county, where the

proceeding commenced, without considering evidence that she considers Bexar

County to be her domicile. Anna submits that she would have offered testimony

that her home is in San Antonio, Bexar County, Texas. Anna also desired an

opportunity to offer her medical evidence into the record, as proof that it is in her

best interest to be allowed to return to her community and live in a private home

with assistance in Bexar County instead of being forced to remain in Denton

County, where she has been separated from her friends, whom she has known and

loved for decades.

33    Anna supplemented her attorney's offer of proof, filed a motion to

reconsider the order transferring guardianship to Denton County, and attached

affidavits from her nieces Paula Jeffries and Diana Yakowitz and friends Duncan

White, Arthur Ephross, Jerry Blackburn, Lyndia Blackburn and Suzette Garrison,

which are contained in the Appendix and incorporated herein for all purposes.

Also contained in the Appendix is a true and correct copy of Anna's letter to the

Court requesting an investigation on February 2, 2015.

34    On August 4, 2015, Anna secured a lease of a fully furnished two bedroom
                                         13
one bath suite #202 at the Dwelling Suites located at 2530 Harry Wurzbach San

Antonio, Texas, 78209. The suite includes all furniture, furnishings, linens, pots,

pans, dishes, cookware, and all utilities, which include phone, cable and Internet.

Her lease will begin on August 10, 2015. (A true and correct copy of the Affidavit

of Diana Yakowitz with a copies of the lease agreement from Jessica Magder,

Dwelling Suites Coordinator, 2530 Harry Wurzbach San Antonio, Texas, 78209,

phone: (210) 804-0200, confirming Anna's lease of a residence at are contained in

the Appendix and incorporated herein for all purposes).

35    Anna submits that she is ready, willing and able to participate fully in the

proceeding to restore her capacity. She has requested full access to the Court

including in-person participation in status conferences, hearings and trial, which

her doctors have approved. True and correct copies of letters from Anna's

physician Hina Rizvi and the report of Charles Mathis, M.D., the psychiatrist, who

examined her, are contained in the Appendix and incorporated herein for all

purposes.

36    Anna also submits that she has witnesses, whose testimony she desires to

present at trial, but which may not be possible or practical to be present in person,

especially if the trial is held in Denton County.

37    Anna requested the Court to order that she be afforded the means and
                                          14
opportunity to travel to San Antonio and to remain in Bexar County, Texas for the

duration of this proceeding to remove the Guardian and restore her capacity. Anna

alleged that she is able to travel and relocate to San Antonio with assistance.

38    Anna further submits that it is in her best interest to move out of the

memory care facility in Denton County, Texas, where her guardian placed her in

isolation from her extended family and long-time friends more than a year ago.

However, the trial court's order dated July 16, 2015 that the Guardian shall move

Anna to an assisted living residential setting that is less restrictive than Autumn

Leaves Memory Care Facility, failed to enforce Anna's newly enacted rights

pursuant to the Texas Estates Code, Section 1151.351(b). Furthermore, the Order

transferring guardianship served only to delay decisions on Anna's efforts to move

to a least restrictive residence back in San Antonio, Bexar County, Texas, to

remove the Guardian, and to restore her capacity.

39    Anna submits that it will be more convenient and less expensive for her to

return home to Bexar County, Texas, during the pendency of the proceedings to

restore her capacity, than for her to continue to live in Denton County, Texas.

Anna submits that her fully furnished residence at Dwelling Suites Coordinator,

2530 Harry Wurzbach San Antonio, Texas, is closer to the courthouse, her

attorney, and most of her witnesses.
                                         15
40     Anna submits that she should also be allowed to return to San Antonio,

Bexar County, Texas because Probate Court No. One, Bexar County, Texas had

exclusive jurisdiction and venue over her guardianship for the past two years.

Anna alleges and would prove that her guardian's actions moving her to Denton

County and placing her in a locked facility without contact with her extended

family and established relationships with long-time friends was against her best

interest.

41     Similarly, prolonging the process of removing the Guardian and restoring

Anna's capacity by transferring the guardianship to Denton County, Texas was

against Anna's best interest.   Transferring the guardianship also prolongs the

Guardian's ability to deprive Anna of her newly enacted rights pursuant to the

Texas Estates Code, Section 1151.351(b).

42     On June 3, 2015, Dr. Mathis completed his psychiatric report including a

Certificate of Medical Examination and Psychiatric Evaluation. On June 25, 2015,

the guardian ad litem filed a supplemental report regarding Dr. Mathis' report and

recommendations.

43     Anna submits that Dr. Mathis' report supports her claim that she has the

capacity to manage her personal and financial affairs including basic activities of

daily living; consent to medical, dental, psychological and psychiatric treatment;
                                        16
to manage and/or have input into her financial affairs; consent to financial matters

such as bill paying and tax preparation; execute a durable power of attorney;

execute a medical power of attorney; vote in elections; consent to marriage;

consent to legal representation; participate in legal proceedings; decide with whom

she wants to associate; decide with whom she does not want to associate; execute

a will; choose her place of residence; and live in a private home with assistance.

44    Upon information and belief, the Guardian knew about Dr. Mathis'

psychiatric evaluation for more than a month. The Guardian also knew about the

guardian ad litem's supplemental report for about three weeks. Yet, the Guardian

took no action to relocate Anna to a suitable residence prior to being ordered by

the trial court on July 16, 2015. Instead, the Guardian has attempted to obstruct

and delay Anna's application to restore her capacity, to participate in this

proceeding, and to exercise her rights pursuant to the Texas Estates Code, Section

1151.351(b).

45    Anna submits that she has requested the Court to order that she be allowed

to be examined by Martha Leatherman, M. D., who is Anna's choice as an expert

witness in this proceeding. Although, Dr. Leatherman has expressed a willingness

to travel to Denton County to examine Anna, it would be less expensive for her to

examine Anna at her office in San Antonio.
                                         17
46    Anna submits that her daughter's actions and omissions as guardian have

undermined their relationship and caused an irreconcilable conflict of personalities

to the extent that Anna feels betrayed by her own daughter. Anna alleged that her

Guardian and son-in-law have put their best interests ahead of hers. Anna alleged

that her Guardian has breached her fiduciary duties, neglected Anna's care, and

denied Anna's rights pursuant to the Texas Estates Code, Section 1151.351(b),

such that the Guardian should be removed and the guardianship should be

terminated.

47    Anna further submits that it is in her best interest to accept assistance from

her nieces, Diana Yakowitz and Paula Jeffries, who have spent more time and

attention attending to her needs than her Guardian, since they discovered her

whereabouts about eight months ago.

48    Anna alleges and would prove that her nieces are ready, willing and able to

assist her with whatever care she may need in order to live in a private residence in

San Antonio, Bexar County, Texas. Anna also submits that it is in best interest to

live in San Antonio, where she lived happily for about sixty years and was

involved in the community until her Guardian relocated her to Denton County,

Texas, where she had no long-time friends or family except her daughter and

grand-daughter, about sixteen months ago.
                                         18
49    Anna alleges and would prove that Anna's Guardian has violated Anna's

rights pursuant to the Texas Estates Code, Section 1151.351 BILL OF RIGHTS

FOR WARD, which was signed into law and went into immediate effect on or

about June 16, 2015.

50    In particular, Anna alleges and would prove that since June 16, 2015 her

Guardian has violated Anna's rights pursuant to the Texas Estates Code, Section

1151.351(b) as follows:

      (2) to have a guardianship that encourages the development or maintenance

of maximum self-reliance and independence in the ward with the eventual goal, if

possible, of self-sufficiency;

      (3) to be treated with respect, consideration, and recognition of the ward's

dignity and individuality;

      (4) to reside and receive support services in the most integrated setting,

including home-based or other community-based settings, as required by Title II

of the Americans with Disabilities Act (42 U.S.C. Section 12131 et seq.);

      (5) to consideration of the ward's current and previously stated personal

preferences, desires, medical and psychiatric treatment preferences, religious

beliefs, living arrangements, and other preferences and opinions;

      (6) to financial self-determination for all public benefits after essential
                                        19
living expenses and health needs are met and to have access to a monthly personal

allowance;

      (7) to receive timely and appropriate health care and medical treatment that

does not violate the ward's rights granted by the constitution and laws of this state

and the United States;

      (8) to exercise full control of all aspects of life not specifically granted by

the court to the guardian;

      (9) to control the ward's personal environment based on the ward's

preferences;

       (10) to complain or raise concerns regarding the guardian or guardianship

to the court, including living arrangements, retaliation by the guardian, conflicts of

interest between the guardian and service providers, or a violation of any rights

under this section;

      (11) to receive notice in the ward's native language, or preferred mode of

communication, and in a manner accessible to the ward, of a court proceeding to

continue, modify, or terminate the guardianship and the opportunity to appear

before the court to express the ward's preferences and concerns regarding whether

the guardianship should be continued, modified, or terminated;

      ...
                                         20
      (13) to participate in social, religious, and recreational activities, training,

employment, education, habilitation, and rehabilitation of the ward's choice in the

most integrated setting;

      (14) to self-determination in the substantial maintenance, disposition, and

management of real and personal property after essential living expenses and

health needs are met, including the right to receive notice and object about the

substantial maintenance, disposition, or management of clothing, furniture,

vehicles, and other personal effects;

      (15) to personal privacy and confidentiality in personal matters, subject to

state and federal law; and/or

      (16) to unimpeded, private, and uncensored communication and visitation

with persons of the ward's choice, except that if the guardian determines that

certain communication or visitation causes substantial harm to the ward:

51    Therefore, Anna respectfully submits that it was not in her best interest to

transfer the guardianship to Denton County, Texas, which has delayed court action

on her motion to remove the Guardian and application to restore her capacity.

Such unreasonable and unnecessary delay has also caused Anna to remain in a

locked memory care facility or assisted living facility far from her longtime friends

and relatives against her will, under the custody and control of her Guardian under
                                         21
facts and circumstances of this matter.

52    Anna respectfully submits that transferring the guardianship and

unnecessarily and unreasonably delaying court action on her motion to remove the

Guardian and application to restore her capacity would cause her to continue to

suffer mental and emotional pain and suffering including fear of physical harm

and injury by dangerous, inadequately supervised residents at the facility, loss of

sleep, crying, emotional upset, loss of independence, loss of freedom of choice,

denial of comforts of living in a home of her own choice, denial of love and

affection by longtime friends and relatives.

53    Anna also respectfully submits that transferring the guardianship and

unnecessarily and unreasonably delaying court action on her motion to remove the

Guardian and application to restore her capacity has caused her to continue to

suffer irreparable harm and injury due to denial of her enumerated rights pursuant

to the Texas Estates Code, Section 1151.351, for which monetary damages could

not provide adequate compensation for her injuries.

54     The transfer of Guardianship has not yet been confirmed by the Probate

Court in Denton County, which set a confirmation hearing for October 30, 2015.

55    Therefore, Appellants respectfully submit that the Court should reverse the

Order Transferring Guardianship to Denton County and remand the case for
                                          22
further proceedings.

                         SUMMARY OF ARGUMENT

      Anna submits that the trial court abused its discretion when it signed the

Order to Transfer Guardianship to Denton County, dated July 17, 2015, because

there was no evidence regarding her domicile or whether is was in her best interest

to transfer the guardianship. Venue is mandatory in the county in which the

principal estate of the proposed ward is located pursuant to the Texas Estates Code

§ 1023.001.     Anna's attorney made an offer of proof at the hearing and

subsequently in support of her motion for reconsideration showwing that Anna's

domicile is in Bexar County, Texas; there was good cause to deny the application;

and it is not in Anna's best interest to transfer the guardianship. Finally, Anna

submits that the application to transfer guardianship to Denton County, Texas was

untimely because the objection to venue was waived by the Guardian's failure to

file a written motion prior to or concurrently with any other plea, pleading or

motion except a special appearance motion provided for in Rule 120a."

Tex.R.Civ.P. 86(1).

                           STANDARD OF REVIEW

      Mandamus is an extraordinary remedy, not issued as a matter of right, but at

the discretion of the court. In re Prudential Ins. Co. of America, 148 S.W.3d 124,
                                        23
138 (Tex. 2004) (orig. proceeding). To be entitled to the extraordinary relief of a

writ of mandamus, a relator must show that the trial court clearly abused its

discretion and left him no adequate remedy by appeal. In re Team Rocket, L.P.,

256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). A trial court abuses its

discretion if it reaches a decision that is so arbitrary and unreasonable as to

constitute a clear and prejudicial error of law, or if it clearly fails to correctly

analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379,

382 (Tex. 2005) (orig. proceeding).

                        ARGUMENT AND AUTHORITY

      Venue is mandatory in the county in which the principal estate of the

proposed ward is located pursuant to the Texas Estates Code § 1023.001. The

Estates Code provides as follows: § 1023.001 Venue for Appointment of Guardian

(a) Except as otherwise authorized by this section, a proceeding for the

appointment of a guardian for the person or estate, or both, of an incapacitated

person shall be brought in the county in which the proposed ward resides or is

located on the date the application is filed or in the county in which the principal

estate of the proposed ward is located.

      In mandatory venue mandamus actions, a court of appeals looks only to

whether the trial court clearly abused its discretion in ruling on the motion. In re
                                          24
Graham,       251 S.W.3d 844, 847 (Tex. App.—Austin 2008, orig. proceeding)

(citing In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 215 (Tex. 1999)). Because it is

presumed that there is no adequate remedy for failure to enforce a mandatory

venue statute, the relator is not required to show a lack of adequate remedy on

appeal. Id.

       In the present case, the Bexar County probate court was asked to consider

the Guardian's motion to transfer venue. The motion to transfer the guardianship

was filed more than a year after the Guardian relocated Anna from Bexar County

to Denton County, Texas; about three months after the trial court appointed a

guardian ad litem to make a report; and about a month after Anna filed an

application to restore her capacity.

      ISSUE NO. 1           Whether the trial court abused its discretion when it

signed the Order to Transfer Guardianship to Denton County, dated July 17, 2015,

in error because there was no evidence regarding

      (a)      Anna's domicile,

      (b)      a finding that good cause to deny the application was not shown, and

      (c)      that it is in Anna's best interest to transfer the guardianship.

      The Guardian sought a transfer on the basis that it was necessary and in the

best interest of the Person and Estate of the Ward that the guardianship
                                            25
proceedings be transferred to Denton County, Texas because Ward permanently

moved to Denton County, Texas and resided at: Autumn Leaves of Carrollton,

1800 King Arthur Blvd., Carrollton, Denton County, Texas 75010 and no longer

owned property in Bexar County.           However, no evidence was offered or

introduced into the record as proof of these allegations at the hearing on July 17,

2015, and the Court denied Anna's proffered witness testimony and other

evidence, and ruled without consideration of any evidence or reference to guiding

principles.

      A lack of sworn testimony or other evidence in the record to support the

findings of the trial court may result in reversal. In the Estate of Consuella Perkins

Ulbrich, Deceased, No. 04-12-00514-CV, page 17 (Tex.App. - Fourth Court of

Appeals, San Antonio, January 15, 2014), (note 3. Although the attorneys and the

probate court discussed the case at the February 3, 2012, hearing, such discussions

are not evidence in this case. See generally Banda v. Garcia, 955 S.W.2d 270

(Tex. 1997).

      ISSUE NO. 2          Whether Anna's offer of proof at the hearing and

subsequently in support of her motion for reconsideration shows that:

      (a)      Anna's domicile is in Bexar County, Texas,

      (b)      that good cause to deny the application has been shown, and
                                         26
      (c)   that it is not in Anna's best interest to transfer the guardianship.

      Anna's attorney made an offer of proof at the hearing on the application to

transfer guardianship to Denton County that Anna's domicile is in Bexar County,

Texas, that good cause to deny the application was shown, and that it was not in

Anna's best interest to transfer the guardianship. Subsequently, Anna filed a

motion for reconsideration and attached affidavits and other evidence, which are

included in the Appendix and incorporated herein for all purposes.

     For the purpose of determining venue in probate proceedings, "domicile" and

"fixed place of residence" are synonymous. Maddox v. Surber, 677 S.W.2d 226,

228 (Tex. App.—Houston [1st Dist.] 1984, no writ) (citing Slay v. Dubose, 144

S.W.2d 594, 596 (Tex. Civ. App.—Fort Worth 1940, writ ref'd); Halverson v.

Livengood, 4 S.W.2d 588(Tex. Civ. App.—Texarkana 1928, no writ). A person

may establish only one domicile, but may have several residences. In re Estate of

Steed, 152 S.W.3d 797, 803 (Tex. App.—Texarkana 2004, pet. denied).

      The legal significance of a domicile as a fixed place of residence, as

opposed to one of several residences, is "to signify a permanent residence, as

distinguished from one that is only temporary." Id. The essential elements of

domicile are residence in fact, coupled with the purpose to make the place of

residence one's permanent home. Texas v. Florida, 306 U.S. 398, 424 (1939);
                                         27
Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136, 139 (1951); Maddox, 677 S.W.2d

at 228. The period of time that the decedent resided in the county is irrelevant so

long as the act and the intention to acquire a domicile coexist. Maddox, 677

S.W.2d at 228-29. The controlling factor in establishing residence in fact is "'the

actual fact as to the place of residence and decedent's real attitude and intention

with respect to it as disclosed by his entire course of conduct.'" In re Graham, 251

S.W.3d 844, 850 (Tex. App.—Austin 2008, orig. proceeding) (quoting Texas v.

Florida, 306 U.S. at 425).

      Anna contends that the proffered evidence shows that her domicile is in

Bexar County, Texas, notwithstanding the fact that she presently resides in Denton

County, Texas. Furthermore, Anna's residence at Autumn Leaves Memory Care

facility is temporary because the trial court ordered her to be relocated to a less

restrictive assisted living facility within thirty days of July 16, 2015. The trial

court's order did not restrict Anna's new residence to be located in Denton County

although such implication may be construed from the court's order transferring the

guardianship the next day.

      Anna points to such evidence regarding her domicile as the fact that she

lived in Bexar County for sixty years in succession before she was relocated

involuntarily to Denton County; most of her long-time friends live in Bexar
                                        28
County; she and her niece have secured a lease on a fully furnished, two bedroom

apartment in Bexar County; and she intends to return to Bexar County as soon as

she is allowed so she can live happily among her friends and the community she

knows best for the rest of her life.

      Anna submits that her proffered evidence of her lease of a fully furnished

two bedroom apartment at Dwelling Suites, 2530 Harry Wurzbach San Antonio,

Texas, 78209 demonstrates a clear, express statement of her intent to maintain her

domicile or residence in Bexar County, Texas. Thus, Anna offered conclusive

evidence establishing her domicile, good cause to deny the application, and that it

was not in her best interest to transfer the guardianship.

      Anna also submits that she has presented persuasive argument or authority

supporting her contention that the Bexar County probate court failed to correctly

analyze or apply the law. In particular, the trial court refused to consider evidence

at the hearing on July 17, 2015 regarding Anna's domicile, good cause to deny the

application, and her interest in keeping the guardianship in Bexar County. Anna

submits that the trial court failed to consider the controlling factor in establishing

residence in fact, which is "'the actual fact as to the place of residence and

decedent's real attitude and intention with respect to it as disclosed by his entire

course of conduct.'" In re Graham, 251 S.W.3d 844, 850 (Tex. App.—Austin
                                          29
2008, orig. proceeding) (quoting Texas v. Florida, 306 U.S. at 425). For these

reasons, Anna submits that the Bexar County probate court abused its discretion

by granting the Guardian's motion to transfer the guardianship to Denton County.

      Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding),

established the two-prong test that courts apply to petitions for writ of mandamus.

Under this standard, the trial court must have abused its discretion, and as a result,

the relator must have been left without an adequate remedy on appeal. Id., at 839.

“A trial court has no ‘discretion’ in determining what the law is or applying the

law to the facts.” Id. (“[A] clear failure by the trial court to analyze or apply the

law correctly will constitute an abuse of discretion . . . .”).

      In mandatory venue mandamus actions, a court of appeals looks only to

whether the trial court clearly abused its discretion in ruling on the motion. In re

Graham,       251 S.W.3d 844, 847 (Tex. App.—Austin 2008, orig. proceeding)

(citing In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 215 (Tex. 1999)). Because it is

presumed that there is no adequate remedy for failure to enforce a mandatory

venue statute, the relator is not required to show a lack of adequate remedy on

appeal. Id.

      Furthermore, a trial court abuses its discretion when the court misapplies the

relevant law. Id. Anna submits that the trial court not only failed or refused to
                                           30
consider any evidence regarding her domicile, but it also failed to consider any

evidence regarding the other two criteria for granting the application to transfer

guardianship, namely: a finding that good cause to deny the application was not

shown, and that it was in Anna's best interest to transfer the guardianship.

Without any evidence in the record, the Court of appeals may determine that the

trial court abused its discretion. In the Estate of Consuella Perkins Ulbrich,

Deceased, No. 04-12-00514-CV, page 17 (Tex.App. - Fourth Court of Appeals,

San Antonio, January 15, 2014).

      ISSUE NO. 3         Whether the application to transfer guardianship to

Denton County, Texas was untimely.

      Anna also submits that the Guardian's motion to transfer venue was

untimely. Rule 86(1) of the Texas Rules of Civil Procedure states that "[a]n

objection to improper venue is waived if not made by written motion filed prior to

or concurrently with any other plea, pleading or motion except a special

appearance motion provided for in Rule 120a." Tex.R.Civ.P. 86(1). The record

shows that the Guardian did not file her motion to transfer venue concurrently or

before she filed her first plea, pleading or motion in response to Anna's application

to restore her capacity or the Court's notice of setting of a status conference.

      Because the Guardian's motion to transfer venue was untimely, she waived
                                         31
her claim that Anna's domicile changed from Bexar County to Denton County

shortly after the guardianship was established more than a year earlier. In The

Estate of Adrian Neuman, No. 09-13-00570-CV, (Court of Appeals of Texas,

Ninth District, Beaumont May 14, 2015) citing Jarvis v. Feild, 327 S.W.3d 918,

925 (Tex. App.-Corpus Christi-Edinburg 2010, no pet.) (holding that pro se

litigant in probate proceeding waived her venue claim by failing to comply with

the requirements of Rule 86(1)), and McGrede v. Coursey, 131 S.W.3d 189, 196

(Tex. App.-San Antonio 2004, no pet.) (concluding that appellant's venue

complaint was waived in a guardianship proceeding governed by the Texas

Probate Code because the appellant failed to comply with the requirements of Rule

86(1)).

                          CONCLUSION AND PRAYER

      WHEREFORE, Appellant requests the Court to reverse the trial court's

Order transferring guardianship to Denton County and remand the case to Probate

Court No. One, Bexar County, Texas.       Appellant also requests the Court to grant

her all additional relief to which she may be justly entitled.




                                          32
                                       Respectfully submitted,

                                       /s/ Philip M. Ross
                                       Philip M. Ross
                                       State Bar No. 17304200
                                       1006 Holbrook Road
                                       San Antonio, Texas 78218
                                       Phone: 210/326-2100
                                       Email: ross_law@hotmail.com
                                       ATTORNEY FOR APPELLANT
                                       ANNA T. MUENZ

                                CERTIFICATION

     I hereby certify that every factual statement in the petition is supported by
competent evidence included in the appendix or record.

                                       /s/ Philip M. Ross
                                       Philip M. Ross

                       CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief is in compliance with Texas Rule of Appellate
Procedure Rule 9. It contains 7,051 words, 32 pages, 14 point typeface.

                                       /s/ Philip M. Ross
                                       Philip M. Ross

                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing document has
been e-filed and served on October 11, 2015 by email pursuant to agreement to
David Pyke and Mike Warren.

                                       /s/ Philip M. Ross
                                       Philip M. Ross

                                         33
