                                                                                               ACCEPTED
                                                                                            01-14-1004-CV
                                                                                FIRST COURT OF APPEALS
                                                                                        HOUSTON, TEXAS
                                                                                      10/5/2015 4:50:21 PM
                                                                                     CHRISTOPHER PRINE
                                                                                                    CLERK

                               No. 01-14-01004-CV

Kevin Leroy Campbell,                  §       IN            THE       FILED INFIRST
                                                                1st COURT OF APPEALS
Appellant,                             §                            HOUSTON, TEXAS
                                       §                        10/5/2015 4:50:21 PM
v.                                     §       COURT           OF
                                                                CHRISTOPHERAPPEALS
                                                                                A. PRINE
                                       §                                Clerk
M. Brandon Maggiore,                   §
Guardian Ad Litem,                     §
Appellee.                              §       HOUSTON, TEXAS

     APPELLEE’S FIRST AMENDED MOTION TO DISMISS FOR LACK OF
                          JURISDICTION

       Appellee asks this Honorable Court to dismiss points one through six and

points eight and nine of Appellant’s appeal for lack of jurisdiction. Appellee will

respectfully show this Honorable Court that Appellant, even by his own timeline in

his Amended Brief, failed to perfect his appeal of points one through five and

eight. Appellee will further show that Appellant has not filed a notice of appeal for

points six and nine. Appellee will thus show that this Honorable Court is without

jurisdiction, which requires the dismissal of the foregoing points of error of

Appellant’s appeal.

                                     I.
                                INTRODUCTION

     1. Appellant is Kevin Leroy Campbell; Appellee is M. Brandon Maggiore,



                                                                          Page 1 of 12
   Guardian Ad Litem. The other parties to the trial on the merits were

   Catherine N. Wylie, the Permanent Guardian of the Person and Estate of

   Lonnie Phillips, Jr. and the former Temporary Guardian Pending Contest;

   and Dana V. Drexler, the Attorney Ad Litem for Lonnie Phillips, Jr. in the

   Trial Court.

2. Appellant’s attorney represented Kevin Leroy Campbell, Ava Phillips, and

   Lance Phillips in the trial court by filing pleadings on their behalf. C.R. 1-6,

   10-15. Appellant’s attorney never filed a motion to withdraw from

   representation of Kevin Leroy Campbell, Ava Phillips, or Lance Phillips.

3. This appeal stems primarily from a final order Appointing a Permanent

   Guardian of the Person and Estate of Lonnie Phillips, Jr. signed by the

   Honorable Kimberly Sullivan, Galveston County, Texas Probate Court dated

   October 3, 2014 R. 71-74; Appellant’s Amended Brief P. 6, Paragraph 1.

   Thirty days from Friday, October 3, 2014 was Sunday, November 2, 2014.

   For deadline calculation purposes, this date was automatically extended to

   Monday, November 3, 2014. Appellant filed a Motion for Rehearing on

   Wednesday, November 5, 2014. R.76-97, 76; Appellant’s Amended Brief p.

   6, Paragraph 2. Appellant did not file his notice of appeal until December

                                                                       Page 2 of 12
   11, 2014. R. 30-31. Appellant’s Amended Brief p. 6, Paragraph 2; R. 130-

   131.



4. Appellant’s point of error number seven was timely filed even though any

   possible error was not preserved because the underlying fee application was

   not objected to. An objection was required by the Trial Court’s standing

   order on appointee fee applications. R. 2 - 8; Supp. R. [August 25, 2014]

   129.



5. Appellant did not file a notice of appeal for his point of error number six. In

   point of error number six, Appellant alleges that the Trial Court erred in

   reappointing the Guardian Ad Litem (who originally established the

   guardianship) upon Appellant’s filing his Notice of Appeal. Appellant’s

   Amended Brief P. ii, P. 34 – 37. The order reappointing the Guardian Ad

   Litem was signed on December 29, 2014. Appellant’s Amended Brief p. 34

   – 37, Appendices C, D.



6. Appellant did not file a notice of appeal for point of error number nine. In

                                                                       Page 3 of 12
  point of error number nine, Appellant alleges the Trial Court erred in issuing

  an order to sell real estate belonging to the Ward. Appellant’s Amended

  Brief p. 45 - 50. This order was signed on August 27, 2015. Appellant’s

  Amended Brief, Exhibit D. A notice of appeal has not been filed even

  though Appellant’s Attorney has been aware of this order since on or before

  September 11, 2015. Appellant’s Motion for Extension of Time To File

  Appellant’s Brief p. 3. On September 21, 2015, the Guardian filed an

  amended application for the sale of real property belonging to the Ward and

  served Appellant’s attorney with a copy of this motion. Appellees Amended

  Brief, Exhibit D. To date, an objection to this motion has not been filed in

  the Trial Court.

                               II.
                     ARGUMENT & AUTHORITIES


7. This Honorable Court has the authority and duty under Texas Rule of

  Appellate Procedure 42.3(a) to dismiss an appeal for lack of jurisdiction.

  This Court must dismiss Appellant’s appeal except for point of appeal

  number seven because Appellant filed the notice of appeal after the

  deadline or failed altogether to file a notice of appeal. See Eddins v.

                                                                     Page 4 of 12
   Borders, 71 S.W.3d 368, 371 (Tex. App.—Tyler 2001, pet. denied). It is

   now too late for Appellant to ask for an extension under Texas Rule of

   Appellate Procedure 26.3. See, e.g., Tex. R. App. P. 42.3(a); Verburgt v.

   Dorner, 959 S.W.2d 615, 617 (Tex. 1997).



8. An appellant has 30 days to perfect an appeal from a final judgment unless

   a post-trial motion is timely filed that operates to extend the time in which

   an appeal can be perfected. Tex. R. App. P. 26.1. A late-filed post-trial

   motion does not extend the time to file a notice of appeal or to perfect an

   appeal. See, generally, Tex. R. App. P. 26. When a post-judgment motion

   is filed late or otherwise does not operate to extend the time to perfect an

   appeal and a notice of appeal is filed more than 15 days after the deadline

   to perfect an appeal, the error cannot be corrected by amendment. Tex. R.

   App. P. 26.3, 42.3(a); see also, Lott v. Hidden Valley Airpark Ass’n, 49

   S.W.3d 604, 605 (Tex. App.—Fort Worth 2001, no pet.); Zarate v. Sun

   Oper. Ltd., 40 S.W.3d 617, 624 (Tex. App.—San Antonio 2001, pet.

   denied).




                                                                      Page 5 of 12
9. A late-filed notice of appeal deprives an appellate court of jurisdiction, and

   the Court is without power to hear the appeal. Butts v. Capitol City Nursing

   Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986); Anderson v. Casebolt, 493

   S.W.2d 509, 511 (Tex. 1973). Under these circumstances, a motion to

   dismiss for lack of jurisdiction is a proper motion, and the remedy of

   dismissal is required due to the appellate court’s lack of jurisdiction. See,

   e.g., Ross v. Guerra, 83 S.W.3d 899, 900 (Tex. App.—Texarkana 2002, no

   pet.); Remington Investments, Inc. v. Connell, 971 S.W.2d 140, 141 (Tex.

   App.—Waco 1998, no pet.); Florance v. State, 352 S.W.3d 867, 874–75

   (Tex. App.—Dallas 2011, no pet.). See also, Texas Emp. Ins. Ass’n v.

   Martin, 347 S.W.2d 916, 917 (Tex. 1961); C. Chambers Enters. v. 6250

   Westpark, LP, 97 S.W.3d 333, 334 (Tex. App.—Houston [14th Dist.] 2003,

   pet. denied).



10. In this appeal, the Trial Court issued a final order appointing a permanent

   guardian on October 3, 2014. R.76-97, 76; Appellant’s Amended Brief P. 6,

   Paragraph 2. For Appellant’s points of error one through five and point

   eight, Appellant was required to file his Motion for Rehearing within 30

                                                                      Page 6 of 12
   days of this date. This thirty-day deadline was automatically extended to

   Monday, November 3, 2014 (from Sunday, November 2, 2014). However,

   Appellant failed to file a Motion for Rehearing until November 5, 2014.

   R.76-97, 76; Appellant’s Amended Brief P. 6, Paragraph 2. This was two

   days after the deadline for Appellant to file this pleading, and the Trial Court

   had lost jurisdiction before the Motion for Rehearing was filed.



11. The untimely Motion for Rehearing did not extend the thirty-day window in

   which Appellant could perfect his appeal of points one through five and

   point eight. Tex. R. App. P. 26.1. This is true even if the Motion for

   Rehearing is construed as a Motion for a New Trial. Therefore, the Notice of

   Appeal should have been filed 30 days from the Trial Court’s final order

   issued October 3, 2014. Tex. R. App. P. 26.1. This date was Sunday,

   November 2, 2014 and was, therefore, automatically extended to Monday,

   November 3, 2014. However, Appellee did not file his notice of appeal until

   December 11, 2014. R. 30-31. Appellant’s Amended Brief P. 6, Paragraph 2;

   R. 130-131. This was 38 days after the deadline to perfect the appeal.

   Because this was more than 15 days after the deadline to perfect his appeal,

                                                                       Page 7 of 12
   Appellant cannot correct this error, and this Honorable Court is without

   jurisdiction and points one through five and point eight of Appellant’s

   appeal must be dismissed.



12. Appellant did not file a notice of appeal for point of error number six, the

   reappointment of the Guardian Ad Litem on appeal. This order was signed

   on December 29, 2015. Appellant’s Amended Brief P. 34 – 37, Appendices

   C, D. This date was over nine months ago. Therefore, it is too late for

   Appellant to perfect the appeal of this point of error. Tex. R. App. P. 26.1.

   Therefore, this Court is without jurisdiction, and Appellant’s point of error

   number six must be dismissed for lack of jurisdiction.



13. Appellant has not filed a notice of appeal for his point of error number nine.

   The order in point of error number nine was issued on August 27, 2015, over

   39 days ago. Appellant’s Amended Brief, Exhibit D. A notice of appeal has

   not been filed even though Appellant has been aware of this order since on

   or before September 11, 2015 (25 days ago). Appellant’s Motion for

   Extension of Time To File Appellant’s Brief, paragraph 3. Moreover, any

                                                                       Page 8 of 12
   alleged error is moot and not ripe for appeal because the Guardian filed an

   Amended Motion for the Sale of Real Property with notice to Appellant’s

   attorney on September 21, 2015. Appellant’s Amended Brief, Exhibit D. As

   of the filing of this motion, no one has filed an objection to this motion.

                                    III.
                                CONCLUSION

14. Appellant failed to timely file a post-judgment pleading that would

   haveextended his deadline to file a Notice of Appeal for points of error one

   through five and point eight. Because Appellant filed his Notice of Appeal

   more than 15 days after the deadline, this error cannot be corrected, and

   these points of appeal must be dismissed for lack of jurisdiction.



15. Appellant has not filed a notice of appeal for points of error six or nine,

   which failure deprives this Court of jurisdiction and requires dismissal of

   these points of error.



16. Furthermore, point of error number nine is both moot and not ripe because

   the Guardian has filed an amended motion for the sale of real property with



                                                                        Page 9 of 12
       service on Appellant’s Attorney. Neither an objection to or order on this

       amended pleading has been filed with the Trial Court Clerk.

                                      IV.
                                    PRAYER

For the foregoing reasons, Appellee asks the Court to grant this motion and dismiss

this appeal for lack of jurisdiction and for any other relief to which he may be

entitled.

                                      Respectfully submitted,
                                      /s/ M. Brandon Maggiore
                                      M. Brandon Maggiore
                                      State Bar No.: 24078901
                                      Maggiore Law Firm, PLLC
                                      PO Box 102517
                                      Denver, CO 80250
                                      Telephone: (713) 239.3347
                                      Facsimile: (713) 581.1894
                                      brandon@maggiorelawfirm.com

                                      GUARDIAN AD LITEM FOR LONNIE
                                      PHILLIPS, JR., AN INCAPACITATED
                                      PERSON




                                                                       Page 10 of 12
                      CERTIFICATE OF COMPLIANCE

  I certify that this document was produced on a computer using Microsoft Word
Version 14.5.4 and it contains 1,689 words, as determined by the computer
software's word-count function, excluding the sections of the document listed in
Texas Rule of Appellate Procedure 9.4(i)(1).

      /s/ M. Brandon Maggiore
      M. Brandon Maggiore
      State Bar No.: 24078901




                                                                    Page 11 of 12
                         CERTIFICATE OF SERVICE

I certify that on October 5, 2015, I am serving a copy of this document, Appellee’s
First Amended Motion to Dismiss for Lack of Jurisdiction, through the State’s e-
file and serve system at the same time as this motion is being filed with this
Honorable Court. My e-mail address is brandon@maggiorelawfirm.com.

      /s/ M. Brandon Maggiore
      M. Brandon Maggiore
      State Bar No.: 24078901

Veronica L. Davis                         Catherine N. Wylie
Attorney for Appellant                    Guardian Of the Person and Estate of
Texas Bar No. 05557300                    Lonnie Phillips, Jr., An Incapacitated
226 N. Mattson                            Person
West Columbia, Texas 77486                The Wylie Law Firm
Telephone: 979.345.2953                   2211 Norfolk Street, Suite #440
Facsimile: 979.345.5461                   Houston, Texas 77098
vld57atal@yahoo.com                       Telephone: 713.275.8230
                                          Facsimile: 713.275.8239
                                          Email: cwylie@wylielawfirm.com




                                                                       Page 12 of 12
