Upcoming Motion Hearing - August 16, 2010

Amidst the horrifically inaccurate and lurid newspaper and television reporting, a few new facts about upcoming events in the lawsuit have arisen.

Nikki Araguz

Defense attorneys for Nikki Araguz (left) have filed a Motion to Dismiss, apparently on the grounds that the plaintiffs have made claims upon which relief cannot be granted, a legal term of art. This is a normal and expected aspect of civil lawsuit proceedings. Although it does not seem likely that the judge will grant the defense motion, it is the duty of the defense attorneys to do so, and such a motion is a part of documenting the foundations of the defense case, one which seems likely to be considered by an appeals court in the future. As expected, Darrell Steidley, one of the attorneys for Nikki Araguz, has also filed a motion to have Simona Longoria removed from the lawsuit on the basis that she does not have standing to make a claim. The term standing means having the ability and the right to be party to a given lawsuit. Heather Delgado does have standing because she is the mother of the Thomas Araguz's sons, who are the actual party at interest in the probate lawsuit, but who cannot represent themselves or be parties to the lawsuit directly because they are minors. The defense motion  by attorneys for Nikki Araguz to dismiss the case is set for an oral hearing before the district court in Wharton, TX on Monday August 16, 2010. It seems likely that the court will also hear the defense motion on modification of the temporary restraining order, and begin consideration of other customary procedural matters. Altogether it seems likely that the judge will be asked to consider all these issues, and it appears that both sides have already filed their written motions and supporting briefs.

Attorneys for the plaintiffs, Heather Delgado and Simona Longoria, have meanwhile reported their intention to file a motion for Summary Judgment by the court without a trial, within the next two weeks. However, given the nature of civil lawsuit procedure, they will likely need to wait at least until the defense has filed an official written answer to the plaintiffs' petition, and the plaintiffs' attorneys will need to wait until a reasonable amount of discovery has been completed, otherwise the attorneys for Nikki Araguz can defend against the summary judgment motion with the argument that they need more time to gather evidence that would support their defense claims. The written answer the defense will need to file after the court hears its Motion to Dismiss, is a necessary formality that usually consists primarily of paragraph by paragraph denials of the plaintiffs' petition/complaint. Among the evidence it seems likely the defense will want to gather are medical records and testimony regarding the surgery Nikki Araguz has received, and the intersex/hermaphroditic condition she was born with, called Androgen Insensitivity Syndrome.

Among additional factual information that has been disclosed are that Thomas Araguz had apparently made an affidavit prior to his death containing the facts of his knowledge of Nikki Araguz, including Nikki's medical history and the potentially contentious nature of their marriage. The affidavit was apparently filed as an exhibit with the Motion to Dismiss the defense filed with the court on August 4, 2010. This means that, combined with the email messages Nikki and Thomas Araguz exchanged in October 2008 when Nikki was in Trinidad, Colorado have genital reconstruction surgery with Marci Bowers, MD, they seem to have ample evidence to establish that Thomas Araguz knew that Nikki Araguz was born with Androgen Insensitivity Syndrome (AIS), and although Nikki likely has an XY sex chromosome pair, the AIS condition meant that she could never function or reproduce as a male human being.

Another very important matter regarding the lawsuit does seem to have been informally settled by the parties regarding the various sums of money left to Nikki Araguz by Thomas Araguz. The plaintiffs are now agreeing with Nikki Araguz that a $60,000 retirement policy on which Thomas Araguz explicitly named Nikki Araguz the beneficiary and checked the "other" box regarding type of relationship does belong to Nikki Araguz and should not be contested as part of the lawsuit. However, the judge will probably need to sign off on this stipulation between the parties, since the judge had already frozen those and other funds as part of the previously entered temporary restraining order that prevents either party from accessing or spending any of the money the lawsuit is litigating over.