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No. 01-14-01004-CV

Kevin Leroy Campbell, § IN THE FIRST

Appellant, §

§

v. § COURT OF APPEALS

§

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,

ACCEPTED

01-14-1004-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

10/5/2015 4:50:21 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 10/5/2015 4:50:21 PM CHRISTOPHER A. PRINE Clerk
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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
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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
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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.
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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).
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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
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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,
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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
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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
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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
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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
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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 efile 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

Attorney for Appellant

Texas Bar No. 05557300

226 N. Mattson

West Columbia, Texas 77486

Telephone: 979.345.2953

Facsimile: 979.345.5461

vld57atal@yahoo.com

Catherine N. Wylie

Guardian Of the Person and Estate of

Lonnie Phillips, Jr., An Incapacitated

Person

The Wylie Law Firm

2211 Norfolk Street, Suite #440

Houston, Texas 77098

Telephone: 713.275.8230

Facsimile: 713.275.8239

Email: cwylie@wylielawfirm.com