Sunday, August 15, 2010

What to expect Monday August 16, 2010

(Updated information on the results of Monday's hearing are available in the following new post)

On Monday August 16, 2010, the parties in the lawsuit Heather Delgado and Simona Longoria have filed against Nikki Araguz, will return to the district courthouse in Wharton, TX for a hearing on various motions both parties have filed. After considering motions on Monday, at some point, the judge hearing the lawsuit will also need to order the parties to make and file a plan for discovery, the evidence gathering process. It would appear that both parties have a lengthy evidence gathering process ahead of them. That process will likely include both parties requesting documents from the other, depositions of the parties and various witnesses, a possible medical examination of Nikki Araguz by one or more physician experts in the area of intersex conditions, including DNA testing, and other evidence gathering efforts. Once the parties have completed an adequate amount of evidence gathering it seems likely that both parties will file motions for Summary Judgment without trial, requesting that the court rule on various aspects of the lawsuit as a matter of law, given the legal arguments and evidence presented with the motions, and without trial. However, those motions are likely to be heard some months in the future.

As for Monday, the attorneys representing Nikki Araguz have filed a motion that requests the court remove Simona Longoria as a party to the lawsuit because she does not have legal standing to be a party. There is every likelihood that Nikki Araguz will get a favorable ruling from the judge on this motion. This is because legally, the actual parties at interest to the lawsuit as petition/plaintiff are Thomas Araguz's sons. However, because they are minors, only their guardian can serve as party instead for them in a lawsuit. Consequently Heather Delgado, the biological mother of Thomas Araguz's sons, is the only person in the present circumstance who can represent her sons, not their paternal grandmother.

Nikki Araguz with security help leaving the courthouse July 23, 2010
Meanwhile, Chad Ellis, the attorney representing Simona Longoria, has filed a motion to have the court appoint Simona Longoria the executor of Thomas Araguz's estate. It could be possible for a court to appoint her as such, but only if there isn't some other person who legally precedes her in priority as an heir. However, the court cannot make such a determination until the court makes a final ruling on whether or not Nikki Araguz is the primary legal heir to Thomas Araguz's estate. Given the contentious nature of the proceedings, the court has an opportunity to overrule both sides in the case and appoint a professional and disinterested non-party the temporary executor of his estate until the probate proceeding is completed, or even as the permanent executor of his financial estate if the court so deems. Sadly, as a firefighter, it seems like Thomas Araguz should have better prepared for the risky nature of his volunteer work, by having created a while as part of preparations that could have avoided the entire ordeal facing Nikki Araguz. If Thomas Araguz had prepared an astute will and trust, he could have given all of his property and finances to Nikki Araguz, regardless of marriage, and the court would not have been able to overrule his wishes. It seems like one of the best social consequences of this lawsuit, might be that it inspires many more people to get their estate documents in order right away, so that their heirs don't end up in the sort of battle that Nikki Araguz and her attorneys are waging. Probate disputes are actually very common though, and even under less contentious circumstances, they often damage or even destroy families.

The attorneys representing Nikki Araguz have also filed a Defense Motion to Dismiss the lawsuit against her, based on the argument that the petitioners/plaintiffs do not have subject matter jurisdiction. What this means, is that because they contend a September 1, 2009 change in Texas statutory marriage law made Nikki's marriage to Thomas Araguz legal, there isn't any issue for the court to consider, because Heather Delgado and Simona Longoria don't have any legal basis for their lawsuit as a consequence. Although it doesn't seem likely that the court will grant this defense motion, it was an important procedural step for Nikki's attorneys, because its legal arguments will likely become part of the foundation for their nearly certain appeal case. It seems important for them to raise the issue early, rather than wait for a Summary Judgment Motion, so that they do not give any appearance of accepting the petitioner/plaintiffs' premise for their lawsuit. What is most important to understand is that this defense motion establishes a foundation on which a legal battle likely to last for years will be waged.

The last motion filed, but among the motions filed by the attorneys representing Nikki Araguz that will likely have the most immediate impact, is their motion to have the court release Thomas Araguz's $60,000 in retirement benefits to Nikki. This will likely occur because Thomas Araguz specifically designated in writing that Nikki Araguz should be the beneficiary of those funds in case of his death. He checked the "other" box on the pension policy to be clear that it didn't matter to him whether or not Texas courts considered him legally married to Nikki Araguz. The attorneys representing Simona Longoria and Heather Delgado have told newspapers they do not intend to oppose the motion, which probably makes that issue a done deal. However, since Nikki Araguz's attorneys have likely entered into a contingency fee contract with her, they will probably take nearly half the proceeds, in all likelihood leaving Nikki Araguz with just $30,000 from that fund. The Wharton Journal Spectator reported on this as follows:
Monday, August 2, 2010

The third motion filed by Nikki Araguz’s attorney’s asks for the court to release the remaining $58,000 of the $60,000 she received as a benefit from the Texas Emergency Services Retirement System. Her attorneys said Araguz was a listed as the sole beneficiary by name as opposed to the payment being made to a surviving spouse.

In phone interviews, Ellis, Mann and Burwell all indicated they had no plans to oppose the motion.
However, that $30,000 could make a big difference for Nikki Araguz because one of the things not reported on by the newspapers is the nature of Nikki's present living situation. There seems be some question about whether or not she presently has any permanent residence in Wharton, TX, and she has spent the last month without income. Because of the lawsuit, Nikki Araguz shutdown her local magazine business in anticipation that the negative press about her would make it nearly impossible for her to sell enough advertising to make a profit from future issues, or even get adequate distribution among local businesses. Few news reports have reflected on these practical and emotional ways in which all these events have impacted Nikki's circumstances. Their primary focus seems to have been making Nikki Araguz the subject of a virtual public pillory.

(Updated information on the results of Monday's hearing is available in the following new post)


  1. To be clear, Thomas identified Nikki as his wife of the insurance document even though it also identifies her as "other."

    The funds were supposed to have been released weeks ago. Everyone - even Chad Ellis - has signed off on it except for Frank Mann. His office has been contacted repeatedly and Mann has said several times that he would sign off on it... but has yet to do so. The only conceivable reason I think he has for the stall is to further punish Nikki.

    It should be noted that a great portion of that 60K will go into her legal defense. I can also confirm that Nikki has been functionally homeless.

  2. "The attorneys representing Nikki Araguz have also filed a Defense Motion to Dismiss the lawsuit against her, based on the argument that the petitioners/plaintiffs do not have subject matter jurisdiction."

    I haven't seen the motion, so I on't know what language it includes. However, strictly speaking, it would be the court that would lack subject matter jurisdiction.

  3. Thanks for that point of order on the awkward wording of that sentence. Hopefully the average reader understands the meaning of it anyway, and can search with "subject matter jurisdiction" for additional information. Texas is also one of the idiosyncratic states that has its own system of rules, instead of the federal style rules used by 35 of 50 states, an unusual court structure, and case law that reads like that of few other U.S. states.

  4. Also, it is possible that Phyllis Frye, or others, have misspoken about the technical form of this defense motion. It seems like such a motion would more likely be described under whatever Texas court rule of civil procedure is the analog of the 12(b)(6) form of defense motion that a respondent would file in a jurisdiction that uses federal style court rules.

  5. "Texas is also one of the idiosyncratic states...."

    That's actually an insult to idiosyncracy. Texas is, well..., Texas.

    I'm still licensed to practice law there; about the only unquiestionably positive thing I can say about its court system is that its intermediate appellate court citation format - specifically, the listing of the city wherein the court id located - is wonderful. As for other formats and precedent...

    Anyone who can actually explain why the designation "writ ref'd" (refused) is used for decisions that are of higher precedential value than decisions with "writ ref'd, n.r.e." (no reversible error) should be forced to share whatever they're drinking and/or smoking.

  6. A little news has begun to trickle out about what transpired at today's court hearing in Wharton, TX. Apparently, the court appointed Simona Longoria executor of her son's financial estate. That ruling alone does not seem like a good sign for Nikki Araguz. Because Thomas Araguz died intestate (without a will), even if she wins her case eventually, under Texas inheritance law, apparently half of his estate would belong to his children. Consequently, the judge apparently began to release half of Thomas's estate immediately for the care of the children. Their biological mother, Heather Delgado, does not appear to be of much financial means, and was likely struggling without a child support check from her ex-husband. With Simona Longoria in charge of the finances, unless someone is auditing the accounts carefully, it would seem like all bets are off.

    Meanwhile, although the parties had supposedly stipulated to giving Nikki Araguz $60,000 in pension fund benefits, there was word over the weekend that the infamous attorney named Frank Mann III, was avoiding attorneys representing Nikki, who were trying to get him to sign off on the stipulation. Under court rules, if he was present in the hearing today and verbally stipulated on the record, that would suffice, although it would seem like most judges would also ask him to sign the document there in court. So far news about the final disposition of distribution of the $60,000 isn't yet available. More importantly, there hasn't been any word on the judge's ruling with regard to the contested motions filed by the attorneys representing Nikki Araguz, not that most people have expected her to prevail.

  7. Thus far, the news reports out of Wharton, TX have been somewhat nebulous about the results of most of the motions mentioned in the article above.

    One news article stated:

    "Of course we are looking to obtain any benefits that are available for the children," said Edward Burwell, Heather Delgado's Lawyer.

    But if the attorneys Burwell and Ellis had never filed their lawsuit, the children would have been receiving funds weeks ago. Much as been mentioned in news articles about a "money grab", but the astute conclusion to reach is that it was shyster attorneys looking for a who initiated this legal mess are in for the biggest money grab. The attorneys stand to gain the most from these proceedings, and they will likely get their money before anyone else.

    Chad Ellis and Edward Burwell also stated that they have begun their discovery process, which includes trying to obtain medical records and school records from Nikki Araguz before they depose her. They also stated they would like to go to trial quickly, unless they file for summary judgment, with a trial as early as October or November. However, that seems unlikely, since even the most basic discovery processes can take up to six months to complete along with trial preparations. However, a trial usually generates more fees for the attorneys than Summary Judgment and it usually provides a more detailed court record for an appeals court to consider. What readers should understand is that the $300,000 that would have gone to Nikki Araguz without the lawsuit, will be tied up for years, and if Nikki Araguz eventually wins her case at least $150,000 of those funds will have gone to attorney's fees, regardless of who finally gets the remaining $150,000 in the end. Anyone who have ever inherited any money knows how quickly $150,000 can disappear unless it sequestered in a retirement account or trust of some sort. The $300,000 that would have gone to the children without the lawsuit, is already likely cut to $150,000 by a contingency contract with the attorneys. Financially, the attorneys have created a situation that makes them financial winners, and both the parties the biggest losers once all the litigation is over, no matter how it turns out.