in Re Anna T. Muenz
This text of in Re Anna T. Muenz (in Re Anna T. Muenz) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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
On Petition for Writ of Mandamus from Probate Court No.
Free access — add to your briefcase to read the full text and ask questions with AI
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
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
(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:
(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
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.
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.
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