                                                                                  ACCEPTED
                                                                              01-14-01004-CV
                                                                   FIRST COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                         10/7/2015 6:09:52 PM
                                                                        CHRISTOPHER PRINE
                                                                                       CLERK

                          IN THE FIRST

                       COURT OF APPEALS                     FILED IN
                                                     1st COURT OF APPEALS
                                                         HOUSTON, TEXAS
                       HOUSTON DIVISION              10/7/2015 6:09:52 PM
                                                     CHRISTOPHER A. PRINE
                                                             Clerk
__________________________________________________________________

KEVIN CAMPBELL
        Appellant

VS.

CATHERINE WILEY
        Appellee

__________________________________________________________________
         APPELLANT’S MOTION TO STRIKE MAGGIORE’S
           MOTION TO DISMISS APPELLANT’S APPEAL &
MOTION TO EXPEDITE DETERMINATION THAT PROBATE COURT
 LACKED JURISDICTION AND TO DISMISS THE TRIAL COURT CASE
__________________________________________________________________
                              01-14-01004-CV
__________________________________________________________________
               In a case appealed from Cause No. PR-0075471
             From the Probate Court of Galveston County, Texas
                      Kimberly Sullivan, Presiding Judge
__________________________________________________________________

                                         Respectfully submitted,

                                         /s/ Veronica L. Davis

                                         Veronica L. Davis
                                         Plaintiff-Petitioner
                                         226 N. Mattson
                                         West Columbia, Texas77486
                                         (979) 345-2953
                                         vld57atal@yahoo.com
                                  IN THE FIRST

                              COURT OF APPEALS

                              HOUSTON DIVISION


KEVIN CAMPBELL
        Appellant

VS.                                                        No. 01-14-01004-CV

CATHERINE WILEY
        Appellee


    APPELLANT’S MOTION TO STRIKE MAGGIORE’S MOTION TO
    DISMISS FOR LACK OF JURISDICTION & MOTION TO
    EXPEDITE DETERMINATION THAT PROBATE COURT
 LACKED JURISDICTION AND TO DISMISS THE TRIAL COURT CASE


TO THE HONORABLE COURT:

      Appellant, Kevin Campbell, hereby moves this court to strike the Motion to

Dismiss filed by M. Brandon Maggiore and in support thereof would show the

following:

                                          I.

      Maggiore is not the appellee in this cause, and has no authority to seek

      dismissal as set out in Issue Six of Appellant’s appellate brief.

      As set out in Appellant’s brief, Maggiore is not vested with authority to
pursue any matter relevant to this appeal. The Texas Estates Code vests authority

in the guardian only to respond to any matters which arise after appeal. The

guardian ad litem is given no such authority.

       Pursuant to Texas Estates Code 1152.001 Guardian to Serve Pending

Appeal of Appointment:

      Pending an appeal from an order or judgment appointing a guardian, the

      appointee shall:

      2)     prosecute a pending suit in favor of the guardianship

      Therefore, Maggiore lacks authority to prosecute this appeal or deem himself

to be the appellee, as he was not appointed guardian in this cause.

                                            II.

      Maggiore’s Motion exceeds the scope of his appointment as contained in

      his appointment order, as well as outined by the Texas Estates Code.

The appointment specifically states that:

      1)     [ Maggiore] is hereby appointed pursuant to Section 645(a) of the
             Texas Probate Code, Guardian Ad Litem for Lonnie Phillips, Jr. to
             investigate the necessity of a guardianship, and if determine that one is
             needed to prepare the guardians application........

      2)     to assess and review financial, medical, psychological intellectual
             testing records

      3)     to discuss medical or psychological condition

      The guardianship appointment is technically the same as the one signed on
initiated on December 06, 2013.

       Aany action taken subsequent to his discharge on or about October 03, 2014,

is beyond the scope of his appointment and thereby impermissible. Even though

reappointed on December 29, 2014, he is only given the limited powers outlined

above. There is no continuing duty to act given either by order or by statute. (See

Exhibit A, attached and incorporated by reference, the same as if fully copied and

set forth herein).

                                         III.

       Maggiore contends that the issues briefed by Appellant as 1-5 and 8 were not

timely, thereby depriving the court of jurisdiction. Issues 1-5 and 8 deal primariy

with the appointment of the guardian ad litem and the continuing acts of the said

guardian, up to and through her appointment as permanent guardian.

       More specifically, Maggiore contends that the Motion for Rehearing was due

to be filed on November 03, 2014. Appellant filed same timely and therefore the

argument of Maggiore is without merit.

       Appellant filed its Motion for Rehearing on November 03, 2014 at 11:18

p.m. (See Exhibit B, attached and incorporated by reference, the same as if fully

copied and set forth herein). It is noted on said filing (Envelope Number 3051331)

that the clerk rejected same due to Exhibit A being sent as an attachment, rather

than combining the pleading and appendix as one document. Whether a document
is an attachment or to be contained along with the original pleading is a practice that

varies from court to court, county to county, and among clerks within the same

county.

        Upon notification, Appellant resubmitted said document again, with same

being accepted on November 06, 2014. (See Exhibit C, attached and incorporated

by reference, the same as if fully copied herein). Appellant’s note to the clerk refers

to the previous envelope number and requests that the clerk show the original filing

date.

        Texas Rules of Civil Procedure 21a(b)(3) provides that:

        (3) Electronic service is complete on transmission of the document to the

        serving party's electronic filing service provider. The electronic filing

        manager will send confirmation of service to the serving party.

        Therefore, Appellant’s Motion for Rehearing was timely filed, making its

notice of appeal timely. Consequently, Maggiore’s argument is without merit

                                            IV.

        Appellant contends further that the court never obtained jurisdiction to

appoint the guardian or guardian ad litem as set out in its Brief. More specifically,

while the appellant had a guardianship application on file, awaiting a hearing,

Maggiore filed a counter-application on January 30, 2014, and had an ex pare
hearing with the court. The court entered an order of appointment of temporary

guardian on the same day. Appellant contends that said appointment was void and

that the probate court never obtained jurisdiction over Lonnie Phillips, Jr.

      The Texas Estate Code § 1051.101 requires that:

      (a)    on the filing of an application for guardianship, notice shall be issued

             and served as provided by this subchapter

      The Texas Estate Code § 1051.103 requires that:

      The sheriff or other officer shall personally serve citation to appear and

answer an application for guardianship on :

      1)     a proposed ward who is 12 years of age or older. [Emphasis added]

      The ward was not noticed nor served nor was the applicant/appellant served.

The ad litem appeared ex parte and obtained said temporary guardianship, though a

pending application was on file by the appellant.

      Pursuant to Ortiz v. Gutierrez, 792 S.W.2d 118 (Tex.App.-San Antonio

1989, writ dism'd) and Threatt v. Johnson, 156 S.W. 1137 (Tex.Civ.App.-

Texarkana 1913, no writ), a court exercising probate jurisdiction does not have the

power to act without strict compliance with the probate statute. Ortiz at 119;

Threatt, at 1139. Threatt held that:

      compliance with the statute is a condition precedent to the valid exercise of
      that power [to appoint a guardian] and is jurisdictional." Ortiz, at 119 (citing
       Threatt, at 1139). In Erickson, the court held, pursuant to section 633(f), that
       the trial court could not appoint a permanent guardian until the expiration of
       ten days after service of citation and notice.

       In Gauci v. Gauci, 01-14-00788, Ct.App- Houston [14th] 2015, the court

held that:

       Before a court may enter judgment against a party, the court must have
       obtained jurisdiction over that party pursuant to applicable rules or statutes."
       Whatley v. Walker, 302 S.W.3d 314, 321 (Tex. App.-Houston [14th Dist.]
       2009, pet. denied). A judgment rendered by a trial court that lacks
       jurisdiction over the parties or subject matter is void. PNS Stores, Inc. v.
       Rivera, 379 S.W.3d 267, 272 (Tex. 2012); Erickson, 208 S.W.3d at 740; In
       re Guardianship of B.A.G., 794 S.W.2d 510, 511–12 (Tex. App.-Corpus
       Christi 1990, no writ). A judgment that is void is "entirely null within
       itself, not binding on either party, [and] . . . not susceptible of
       ratification or confirmation." See Brazzel v. Murray, 481 S.W.2d 801, 803
       (Tex. 1972) (quoting Murchison v. White, 54 Tex. 78 (1880)). "[A] judgment
       is void if the defects in service are so substantial that the defendant was not
       afforded due process." PNS Stores, 379 S.W.3d at 275.

       In satisfaction of these well-understood due process concerns, Chapter 1051,
       Subchapter C of the Estates Code imposes notice and citation requirements
       generally applicable to guardianship proceedings. "On the filing of an
       application for guardianship, notice shall be issued and served as provided by
       this subchapter." Tex. Est. Code § 1051.101(a). The Estates Code
       specifically provides that the "sheriff or other officer shall personally serve
       citation to appear and answer an application for guardianship on . . . a
       proposed ward who is 12 years of age or older." Id. § 1051.103(a). Failure
       to personally serve an application for guardianship on a proposed ward
       deprives the court of jurisdiction. See Erickson, 208 S.W.3d at 740 [
       Emphasis added]

       It is undisputed that M.G. was not personally served with citation of
       Kathryn's application for guardianship before the trial court entered its order
       appointing her as guardian. Accordingly, we conclude that the court lacked
       personal jurisdiction over M.G. at that time it appointed Kathryn as guardian.
      [Emphasis added]


      Therefore, Appellant contends that the court never acquired proper

jurisdiction over the proposed ward, Lonnie Phillips, and all other orders entered

thereafter, are in all things void. Jurisdiction is never waived.

                                           V.

      Maggiore further contends that there was finality of judgment after each

ruling by the court, thereby making the appeal untimely. Appellant contradicts

same on the basis that the guardianship proceeding has a number of decisions

which may be interlocutory or may become final, based upon the seeming finality

of judgment and what such ruling entails. Appellant contends that the temporary

and permanent guardianship issue only became final, after the court failed to grant a

rehearing on the issue of guardianship on November 19, 2014.

      In In re Guardianship of Miller, 299 S.W.3d 179 (Tex.App.-Dallas 2009),

the court held as follows:

      There are, however, some unique rules regarding judgment finality that may
      apply to matters governed by the probate code. De Ayala v. Mackie, 193
      S.W.3d 575, 578 (Tex.2006). These exceptions to the one-judgment rule are
      necessary because of the need to " review controlling, intermediate decisions
      before an error can harm later phases of the proceeding." Id. In such cases, "
      multiple judgments final for purposes of appeal can be rendered on certain
      discrete issues." Id. Both the substantial right test and the requirement
      outlined in Crowson v. Wakeham, 897 S.W.2d 779 (Tex.1995), that the
      order dispose of all issues in the " phase of the proceeding" for which it was
       brought, may be used to determine whether an " ostensibly interlocutory
       probate order has sufficient attributes of finality" to confer appellate
       jurisdiction. See De Ayala, 193 S.W.3d at 578. However, there is no need to
       resort to the unique probate rules used to determine whether a seemingly
       interlocutory order is appealable if the order is otherwise final.

       Appellant contends that Maggiore is incorrect as it relates to finality of

judgment in this cause.

                                              VI.

       Maggiore further errs in his contention that it is too late to file an appeal

regarding his appointment of December 29, 2015. Because said order provides

Maggiore with no authority, other than to do the necessary work to set up a

guardianship and one was already in place, it afforded Maggiore no authority to act

in any manner which he has acted since the date of his appointment. His acts

exceed the scope of his appointment order and are continuing acts and each new

pleading filed by him is a new violation of said order. Not only does Appellant

contend that the order should not have been put in place, but it contests Maggiore’s

authority to act as litigant, as it relates to said order.

       Additionally, Appellant contends that the court nor counsel provided Davis

further notice of any pleadings after she filed her notice of appeal, with the

exception of the pleadings regarding recusal.

       Therefore, Appellant does not believe that Issue 6 is not permissible. Since

said acts are ongoing, to cure the alleged defect, Appellant will file a second notice
of appeal.

                                           VII.

       Finally, the court lacked authority to issue an order to sell the property of the

ward. As heretofore stated, the court lacked jurisdiction at the outset and all orders

of the court are void ab initio. It is therefore imperative that this court issue a ruling

with respect to this Motion making such a finding before the property of the ward is

disposed of by the “guardian.”

       Because the appellant contends that the orders of the court appointing a

temporary and permanent guardian were void at the outset and because the court

never acquired jurisdiction of the ward or the proceedings pertaining to the

guardianship, the Appellant seeks to strike the pleading of Maggiore and that this

Court order that the guardianship proceeding be dismissed, that this court declare all

orders for the Galveston County Probate court as it relates to the Guardianship of

Lonnie Phillips, Jr. as void.

       WHEREFORE PREMISES CONSIDERED, the appellant prays that this

Honorable Court:

       1)     Expedite ruling in this cause due to the issues involving the sale of the

              home and the application for a do no resuscitate order;

       2)     Reverse the orders of the trial court granting a guardianship;
      3)     Order all rulings and orders issued by the trial court as void;

      4)     Deny any applications for costs and attorney’s fees;

      5)     Reverse any orders awarding fees against the ward’s estate;

      6)     Prohibit the filing of any other pleadings in this cause by M. Brandon

             Maggiore

      7)     Tax attorney’s fees and costs against Maggiore; and

      8)     Grant any other and further relief to which Appellant may be justly

             entitled.

                                               Respectfully submitted,

                                               /s/ Veronica L. Davis

                                               Veronica L. Davis
                                               Attorney for Appellant
                                               SBT # 05557300
                                               226 N. Mattson
                                               West Columbia, Texas 77486
                                               (979) 345-2953
                                               vld57atal@yahoo.com


                          CERTIFICATE OF SERVICE

      I hereby certify that this document has been served by efiling to opposing
counsel on this the 7th day of October, 2015.

                                               /s/ Veronica L. Davis
