Tuesday, August 17, 2010

Results from the August 16, 2010 Court Hearing

Wharton County District Courthouse
The news reports about what transpired at the Wharton County District Courthouse before Judge Randy Clapp on Monday in Wharton, TX, have been scant and nebulous. Apparently, the television reporters weren't interested enough to show up for, or sit through, the lengthy hearing, and have instead based their news accounts on second hand information developed from statements made primarily by the attorneys representing the plaintiffs, Heather Delgado and Simona Longoria. The news reporters also seem to lack much understanding about the nature and structure of civil litigation, leaving their reports confused and misleading. What follows here however, is an analysis of the consensus of information about what transpired during the hearing, and information about what should have transpired, but has yet to be reported by the news media. Without having been in the courtroom, it may be days before it is possible to sort through the posturing, to discover the truth about what actually transpired in the courtroom on Monday.

First of all, there is agreement among sources that Simona Longoria was appointed executor over at least part of her late son's financial estate. The more reliable sources have described this as a limited appointment by the judge that is restricted to Longoria having dominion over Thomas Araguz's personal finances such as bank accounts, his personal property, and his motor vehicle, apparently a truck he owned. It has been clarified that Simonia Longoria has not been appointed to administer the significant non-testamentary benefits owed her grandsons.

It also isn't clear what property Thomas and Nikki Araguz owned together that was co-mingled, such as furniture and household goods, about which there may be some ownership dispute that supersedes marriage law. None of the reporting has clarified how the vehicles owned by Nikki Araguz and Thomas Araguz were titled either. In other words it is not clear whether the truck Thomas owned had a title in his name only, or a joint title naming he and his wife Nikki together. Nor has any information been disclosed about the title of the vehicle that Nikki Araguz owns and is currently driving. All the indicators imply that Nikki Araguz has lost this aspect of the battle, and that she has probably been forced to re-build from scratch, to buy new furniture and household appliances, in addition to finding and renting a new residence for herself. Meanwhile Simona Longoria now has a legal and fiduciary duty to dispose of Thomas Araguz's estate in strict accordance with Texas inheritance law. If she doesn't demonstrate emotionally detached judgment, and adherence to the relevant statutes, she could find herself back before the having to answer some questions herself. Given her level of animosity and emotional involvement, her behavior, could be worth watching closely as event unfold.

There have also been some vague allusions to the fact that like most individuals, Thomas Araguz had debts when he died. However, the reports do seem clear that as executor, Simona Longoria has been charged with handling whatever debts Thomas Araguz had at the time of his death. In addition to the usual credit card debts, he likely had outstanding student loans from his recent studies at the Wharton County Community College. Surely, Longoria will be charged with selling the truck and using whatever proceeds are available after the sale to help pay those debts, including any outstanding child support for his sons. It also seems likely that arrangements can be made with the federal government to forgive a student loan after the death of the borrower. None of the reports have included any details about these matters, and apparently the attorneys Edward Burwell and Frank Mann, who represent Heather Delgado, were unwilling to discuss the financial specifics with reporters. It seems reasonable to speculate that Thomas Araguz was technically insolvent, as are most Americans, at the time of his death, unless some of the frozen portions of his estate are made available to pay his creditors.

Also during the Monday hearing, all the parties stipulated that distribution of any and all funds owed Thomas Araguz's two sons, that were theirs regardless of the outcome of the lawsuit, should be distributed to them immediately. However, none of the reports have been clear about who would represent Thomas's estate for this purpose, to oversee accounting of those funds and their distribution. Meanwhile, the various insurance companies and related institutions in possession of those proceeds, are reportedly reluctant to begin distribution of those funds to anyone, until the lawsuit has concluded and made clear determinations about the appropriate beneficiaries, and until the person or entity representing the estate for those purposes has been clarified. A significant portion of the funds destined for the children also seems earmarked to pay attorneys fees. It has been clarified that the largest portion of the funds for the children, about $300,000, do not pass through the estate, and therefore are not under the aegis of Simona Longoria. Those funds are called non-testamentary funds, as was clarified by Darrell Steidley in his cogent news conference after the court hearing.

Meanwhile, during the past week, the parties had apparently prepared a stipulation that $60,000 in pension benefits that Thomas Araguz specifically designated for Nikki Araguz should also be distributed to her immediately. Those are funds Nikki Araguz apparently needs immediately, to get resettled, and to help pay her day to day living expenses. Despite the lack of information about this very important topic in the mainstream media, the $60,000 is apparently on its way to Nikki, minus attorneys fees with all certainty.

Darrell Steidley (left) who represents Nikki Araguz had also filed a motion with the court, that asked the court to remove Frank E. Mann III as an attorney involved with the case. However, Darrell Steidley apparently withdrew that motion, but no explanation has yet been disclosed regarding his reason for doing so. Frank E. Mann III, had reportedly committed multiple ethics violations in connection with his representation of clients adversary to Nikki Araguz, and he is currently under investigation by the Texas State Bar Association for those viiolations, which were the basis for the motion.

More importantly, the Defense Motion to Dismiss was apparently not considered by the court on Monday, oral argument about it was not a part of Monday's court hearing, and the judge has not yet made a ruling on it. In addition, no information has been provided by any source about when the court will hold a hearing on that motion. That motion was primarily procedural though, and not likely to be granted by the judge in any event. It really won't matter if it isn't considered until later, for example at the same time the judge considers any future motions for Summary Judgment that the parties seem likely to file. Although the attorneys representing Heather Delgado have publicly postured that they will be filing a motion for Summary Judgment at the earliest possible date, it also seems likely that the attorneys representing Nikki Araguz will file a motion for Summary Judgment at least to have the fraud claim stripped from the case.

Mr. Steidley, had also filed a motion to have Simona Longoria removed from the lawsuit because she does not have legal standing to be a party. None of the news reports and sources had any specific information about the disposition of that motion. However, it is possible that by appointing Longoria executor, the judge created an interest on her part and thereby made that defense motion a moot issue.

Nikki Araguz (left) leaving the courthouse
Judge Randy Clapp did apparently make inquires among the attorneys about creating a discovery schedule. According to Cristan Williams of the Houston Transgender Center, the judge and the attorneys discussed a discovery schedule that would conclude some time around the first of the year. For reference, in many jurisdictions, that would be considered an extremely short duration for discovery. Meanwhile, outside the courthouse Edward Burwell and Frank Mann III were posturing about getting to a Summary Judgment Motion or trial before November. Those statements by the attorneys seem like posturing with little credibility, but which various newspapers have run with and reported. As part of the discovery process, both parties will likely need to issue subpoenas duces tecum, which are subpoenas for documents, rather a subpoena for testimony, in order to acquire whatever medical records are available about Nikki Araguz. However, in all likelihood, the most important medical records, ones from Nikki's childhood, are surely all long gone by now. Hopefully, her more recent physicians have documented her congenital intersex condition in their files about her, to help corroborate her claim of having been diagnosed with Androgen Insensitivity Syndrome. In addition, the well known and highly respected surgeon who performed genital reconstructive surgery on Nikki surely took before photographs of her genitals to document what was repaired. Unless Nikki Araguz has been back to Trinidad, Colorado for a checkup since her October 2008 surgery, it doesn't seem likely that her surgeon would have taken any result photos though. The parties, through their attorneys, are also likely to exchange written questions among each other, called interrogatories and requests for production of documents, to which the parties usually have thirty days to respond. Once the parties have assembled an adequate amount of evidence and organized it, they are then likely to depose each others party's, and depose any medical expert witnesses that the parties expect to testify on either party's behalf. Obviously this sort of process takes time, a process that could easy last beyond the new year.

While the news media is hungry for instant results and television drama style conclusions, it will likely be months before this litigation will reach any definitive outcomes. Even once it does, the losing party seems sure to appeal, which will start an additional process that is likely to last for years. Lastly, it seems like readers should remember that this entire fiasco could have been avoided if Thomas Araguz has prepared a carefully crafted will that explicitly stated his wishes and which clarified that his wishes were valid regardless of whether or not the government considered his marriage to Nikki Araguz legal. Once again, the moral of this story is that every intersex or transsexual person, and the people who care about them, need to have a well crafted will, and possibly a living trust, drafted and executed immediately in order to avoid re-living the fate of Nikki Araguz.

(UPDATE: At the link below is a transcript of the news conference attorney Darrell Steidley gave outside the courthouse Monday afternoon)


No comments:

Post a Comment