an outline of the civil lawsuit process

Apparently, most people have little or no knowledge of how the civil lawsuit process works, or even how long it is going to take for the first major phases of the Delgado v. Araguz probate/inheritance lawsuit to be completed. Unless, there is an out of court settlement between the parties, based on the Texas court rules of civil procedure, the trial court level of this lawsuit is likely to last as long as a year, unless one of the parties succeeds with a Motion for Summary Judgment by the court without trial.

Here is a list of the major steps in a civil lawsuit:

• Plaintiff files a summons and petition/complaint
• Plaintiff files an optional motion for temporary restraining order (TRO) with petition/complaint
• Show Cause Hearing for TRO - (TRO usually granted)
• Defendant has option to file motion to attack validity of petition/complaint
• Defendant files an answer to the petition/complaint
• Discovery begins - which is the evidence gathering process
• The judge holds a hearing and requires the parties to develop a discovery plan and schedule
• The parties exchange written questions called interrogatories
• The parties exchange written requests for production of documents and other evidence
• The parties subpoena evidence from people not a party to the lawsuit
• The parties take oral depositions of opposing parties, and non-party witnesses
• The plaintiff might file a motion for court order for medical examination of the defendant
• At any time, either party may file a motion for summary judgment by the court using existing evidence, without trial.
• Discovery Deadline arrives - about nine months in Texas
• The parties file various pre-trial motions.
  
  
  • a party may move to disallow presentation of certain evidence or witness(es)
  • either party may move to have a fact agreed upon (called stipulation)
• A trial date is set and the case proceeds to trial, either by a judge alone, or by a jury.
• Either party may appeal the verdict of judgment. However, appeals courts consider only matters of law, not the matters of fact, in a case.

The temporary restraining order (TRO) motion hearing that occurred on Friday July 23, 2010, and which began the height of the media frenzy over the case, is actually standard procedure. It would have been extremely unusual for the judge to do anything other than grant a TRO that places the funds at issue in the case into stasis until the court process has been completed. In this case the judge froze the finances at issue from access by either party. The word temporary is what is most important about a temporary restraining order, and such a decision may have nothing to do with the final outcome of a case, it just freezes funds and orders the parties to refrain from certain activities that might otherwise render the litigation pointless. At the end of the lawsuit, the judge will likely issue a permanent injunction against one of the parties, enjoining that party from access to the funds and assigning the funds in question to the prevailing party. However, the judge is likely to issue yet another temporary restraining order at the same time, that keeps the funds frozen during the pendency of whatever appeals court proceedings follow the trial court's ruling.

The current phase of the lawsuit is the Motion to Dismiss, filed by the attorneys defending Nikki Araguz, on the basis that the plaintiff does not have a claim on which relief can be granted as a matter of law. It doesn't seem likely that the judge is going to grant such a motion however. Instead, it seems like most courts would withhold judgment on the central issues in the case, and instead order the case forward into discovery, the evidence gathering phase, so that the parties can develop their evidence and present their cases to the court again once they are fully developed. The logic is that the parties should have an opportunity to develop and present a complete court record, so that an appeals court considering the matter has a full set of findings of facts and findings of law.

The attorneys defending Nikki Araguz have also filed a motion to exclude some of Thomas Araguz's finances from consideration within the lawsuit. That motion argues that life insurance policies and pension fund policies on which Thomas Araguz specifically designated Nikki Araguz as the beneficiary should not be at issue in the lawsuit, and should therefore be unfrozen and made available to Nikki Araguz immediately. The argument the attorneys for Nikki Araguz have apparently made includes the fact that Thomas Araguz checked the "other" box on those documents, implying that the issue of marriage should not apply to those funds. As of this writing, the judge has not yet ruled on this motion, but a hearing has been set for Monday August 16, 2010.

After a period of evidence gathering, either party can again present its case to the court for judgment as matter of law by the judge, without a trial or jury. That process is called summary judgment. It seems likely to expect that both sides will use that tactic at some point during the litigation. The discovery process is likely to continue until the beginning of 2011, unless the discovery process is interrupted by one or motions for summary judgment from either side of the case.

Even if this case were to go to trial, the court seems likely to hold a bench trial, to be judged as a matter of law by the judge, without the need to determine matters of fact using a jury.

Given the pugnacious demeanor of the parties in this case, it seems all but certain that the parties will take this case to an appeals court if they don't receive an outcome that satisfies them. An appeals court only considers "matters of law" for review and does not reconsider the facts on which its legal decisions should be made. Each stage of the appeals process can take a as long as a year or more to complete. Real life doesn't operate like fictional television courtroom drama. In fact, the media frenzy and public furor seem likely to have died down long before this case reaches its final conclusion.

Texas Court Rules of Civil Procedure - PDF file format

heather delgado's greed and vindictiveness

Nikki Araguz (left) and Thomas Araguz (right)

In her news conferences and public statements, plaintiff Heather Delgado's primary focus has been on making negative personal accusations against Nikki Araguz, accusing Nikki of being greedy for trying to hold onto the life insurance and pension benefits that Thomas Araguz made Nikki the recipient of, and the other assets she stands to inherit as his wife, and falsely characterizing Nikki as a liar and a fraud. However, given an objective and thorough analysis of the circumstances and available facts regarding this case, the reasonable conclusion is that Heather Delgado is actually the person who is being not only greedy and vindictive, but also foolhardy by bringing her lawsuit against Nikki Araguz. Heather Delgado's actions are foolhardy primarily because: regardless of the outcome, the legal battle she has instigated will result in the attorneys taking a significant amount of the money from the parties that would otherwise have been available to them for their benefit, and because she is the originator of a controversy that seems sure to spill over into emotional and financial harm to the children involved. The appropriate conclusion also seems to be that Heather Delgado is the liar, not Nikki Araguz. Heather Delgado's actions are doing little more than scorching the earth beneath her own bare feet.

It seems likely that both parties have hired their attorneys on a contingency basis, which means the attorneys will take their fee, if any, from a percentage of the parties' financial gain, plus their expenses. These days, attorneys in such cases usually get almost half when their fees and expenses are combined. If Heather Delgado would have left well enough alone, her biological children would probably have a $300,000 fund for their well being, and she would not have subjected them to the public abuse that will likely result from the current media fiasco. Even if Delgado wins everything, and the attorneys take nearly half, her children are likely to be left with $300,000 at most, and only after a fierce battle that will have vilified everyone, is likely to have destroyed personal relationships, and seems likely to have emotionally harmed the very children who best interests are supposedly everyone's primary concern. Consequently, Delgado's legal battle doesn't seem likely to increase the finances available for care for the children, and instead seems likely to reduce the amount of money Thomas's Araguz's children are likely to receive in the end.

In other words, if Heather Delgado truly had the best interests of her biological children in mind, she would have shown the common sense not to involve them in a media frenzy in Texas that seems sure to find its way into their social lives when they return to school in the fall, has made her entire family the object of nation wide discussion and speculation, and seems likely to follow them for years into the future. It seems certain that this sort of legal battle will leave a permanent emotional scar on Thomas Araguz's children; scars that could have easily been avoided.

In addition, while Heather Delgado has chosen to publicly castigate Nikki Araguz for errors in judgment in Nikki's past personal life that have nothing to do with her ability to inherit from her husband, Heather Delgado's shrewish public demeanor has been one of a bigoted, mean spirited, scorned ex-wife, out to dredge up trouble at any cost, and make life miserable for Nikki Araguz, the woman whose relationship with Thomas Araguz implies that he believed Nikki was better able to make him happy, and who apparently judged Heather Delgado's character unworthy enough that he divorced her in 2007.

One of the lessons that it seems anyone can learn from this legal battle, is that it is never too early to begin careful, clear, and explicit, estate planning. It seems apparent that Thomas Araguz died "intestate", meaning without a will, although news articles have not mentioned that fact. Because Thomas Araguz had only specifically designated some of his estate to Nikki Araguz by naming Nikki the beneficiary of his life insurance and pension plan, the rest of his estate is left to the court to decide who should inherit, based on Texas law, because he did not leave a will. If Thomas Araguz had anticipated the potential for his accidental death due to the inherently dangerous nature of his work as a volunteer fireman, he could have more specifically and explicitly designated the handling of his estate with the potentially legally contentious nature of his relationship with Nikki Araguz in mind. He could have created a will and trust that specifically provided for Nikki Araguz regardless of whether or not a court of law considered them legally married, and could have made Nikki Araguz the executor of his estate and the trustee of his living trust. He could have had an attorney draft the documents to specifically reflect his wishes for Nikki Araguz, had the documents clearly state that Nikki Araguz should be the heir to his estate regardless of whether or not he was legally married to her, and he could have included specific statements about his awareness that Nikki Araguz had undergone vaginoplasty surgery and has Androgen Insensitivity Syndrome, so that she could not be accused of fraud.

Nikki Araguz defense team files new motion(s)

Today, attorneys for Nikki Araguz in the Heather Delgado v. Nikki Araguz probate/inheritance case, have apparently filed one or more motions to dismiss the case, along with supporting declarations and exhibits. Their motion(s) contain multiple factual and legal grounds. The supporting declarations and exhibits also clarify some factual details with seemingly compelling evidence.

The defense motion cites a very minor change to the identification section of the Texas marriage statute that says a government document that indicates change of sex may be used as identification for a marriage license. They are referring to Section 2.005(b)(8) [proof of identity and age] which states:

FAMILY CODE
TITLE 1. THE MARRIAGE RELATIONSHIP
SUBTITLE A. MARRIAGE
CHAPTER 2. THE MARRIAGE RELATIONSHIP
SUBCHAPTER A. APPLICATION FOR MARRIAGE LICENSE
…
Sec. 2.005. PROOF OF IDENTITY AND AGE.
(a) The county clerk shall require proof of the identity and age of each applicant.
(b) The proof must be established by:
…
(8) an original or certified copy of a court order relating to the applicant’s name change or sex change;
…
Amended by:
…
Acts 2009, 81st Leg., R.S., Ch. 978, Sec. 2, eff. September 1, 2009.

Texas Family Law Code: Title 1, Subtitle A, Chapter 2, Subchapter A, Section 2.005, paragraph 8

Attorney Phyllis Frye (left) Nikki Araguz (center)

That 2009 statutory amendment is extremely obtuse and seems open to all sorts of varying interpretations. Of course both sides of the case have completely different interpretations about the meaning of that vague clause, which was added to Texas marriage law, apparently without any explanation regarding its purpose. The core argument presented by attorneys for Nikki Araguz is that this recent statutory change takes precedence over the 2000 lower appeals court decision in Littleton v. Prange, No. 99-1214 (Tex. 18 May 2000), that chromosomes define sex status immutably at birth. However, the Littleton v. Prange decision did not take into account the potential for mosaic sex chromosome conditions, or conditions like Androgen Insensitivity Syndrome (AIS) that make a person unable to develop male attributes because testosterone has little or no effect on people with the condition.

Of course attorneys for the plaintiffs, Heather Delgado et al, have argued the opposite about the statutory change. They argue the change in the statute provides for same sex marriages between a post-surgical-transsexual-female and an ostensibly genetic female. However, it seems like such an argument would defy the plaintiff's simultaneous claim that same-sex marriages are illegal in Texas. The logic presented by attorneys for Nikki Araguz is that her marriage is a heterosexual one, based on the fact that Nikki Araguz presently has a vagina and that Thomas Araguz had ostensibly always had a penis and an XY chromosomal pair, in contrary to Littleton v. Prange, and in accordance with the minor statutory change, Texas law should recognize the fundamentally heterosexual nature of such a marriage for all practical purposes. One fact that remains unknown, is the chromosomal makeup of Nikki Araguz's sex chromosomes, although Nikki's mother has made emphatic statements that Nikki Araguz was born with AIS, and video recordings of Nikki at about age nineteen or twenty provide ample evidence that testosterone had not had any influence on her body at that juncture in her life. What seems likely is that the attorneys for Heather Delgado will file a motion to require that Nikki Araguz undergo genetic testing and a medical examination to verify the status of her genitals and potentially her internal reproductive organs, if any, as well.

The second argument the defense makes in its motion, is that although the August 2008 marriage may not have been legal, the parties should be considered married under "common law marriage" in Texas after Nikki Araguz's vaginoplasty operation with Marci Bowers in October 2008 and after the subsequent statutory change cited above. The attorneys for Nikki Araguz have used September 2, 2009, as the date of their "legal and informal marriage", on the basis that the change in Texas statutory law took effect on September 1, 2009.

The defense also filed exhibits containing copies of email messages sent between Thomas Araguz and Nikki Araguz during October 2008 when Nikki was in Trinidad Colorado having her vaginoplasty surgery with Marci Bowers on October 7, 2008, but Thomas apparently had to stay in Texas because he was on call for fireman's duty. If they were smart enough to include the full transmission headers with the emails, it seems like such emails would serve as excellent evidence of what knowledge Thomas Araguz had at the time regarding the fact that Nikki Araguz has Androgen Insensitivity Syndrome (AIS), an intersex/hermaphroditic condition, and got surgery to create a vagina to align her genitals with her naturally occurring estrogen influenced hormonal condition. Thomas Araguz wrote in an email to Nikki:

What can i say to make you feel better? The only thing I known (sic) is 'I LOVE YOU.' Trevor and Tyler miss you dearly, they love you with all their little heats. (sic) Today has been a hell of day, would you agree? After taking (sic) to you, I called my mother and law (sic) to let her known (sic) the good news, about your opt. An (sic) you know she spead (sick) the good news all the world. HEY I TO GO I A HOUSE FIRE. ILU.

In response, Nikki Araguz replied:

My sweet husband, I LOVE YOU. It has been a day heck and also God answered prayers. I love you so much. We can now move on with the rest of our livrs (sic)...I just got this thing to work somehow and the pain lady came in and gave me morphine...si I am fading fast. You are my best friend, and Praise God fro (sic) you...this is wild that little thing is gone...I think I am supposed to see it for the first timr (sic) tomorrow....Imiss my boys too...Have a great day at school tomorrow...Love you sweet wife, Mrs. Nikki Araguz

On Monday August 2, Nikki Araguz has been reported as stating:

This is less about money than it is about the civil rights of my husband and I to legally be recognized as we recognized each other - as a heterosexual, male and female married couple. There is no question that my husband knew exactly what was going on. He was fully loving and accepting and compassionate to the medical condition that I was dealing with when we first met.

The defense team for Nikki Araguz either included in the same motion, or filed in a separate motion (newspapers weren't clear), a request to exclude from the lawsuit, all proceeds from insurance and pension funds, in which Thomas Araguz explicitly and specifically designated Nikki Araguz as the beneficiary. Apparently Thomas Araguz had the presence of mind to check the "other" box rather than the "spouse" box on those documents, which seems like it provides additional evidence of his awareness of the potential arguments over the legality of their marriage.

As for the August 2008 wedding ceremony, it seems like all sorts of people have wedding ceremonies without making them a legal matter recognized with a marriage license. Given today's motion(s), it seems like the defense team for Nikki Araguz understands that a marriage license from August 2008 wouldn't be valid under any legal theory in Texas, since Nikki didn't get to Trinidad for surgery with Marci Bowers until October 2008, and they have filed the email exchanges that document that Thomas was fully aware that was happening.

A couple of the news reports also implied that attorneys for Nikki Araguz have filed motions in both the child custody lawsuit and the probate/inheritance lawsuit, where Frank Mann represents Simona Longoria, or has other involvement with the cases, to have him removed. Evidence has surfaced the Frank Mann has committed "conflict of interest" and breached "attorney/client privilege", which are both serious violations of the code of ethics that attorneys are required by law to follow. One blog, known as "bad lawyer nyc", characterized Frank Mann as a "menace" who has no business practicing law.

In summary, it seems like the defense attorneys for Nikki Araguz are going to use the statutory change cited above as the basis for a fresh "first impression" legal battle over marriage legality for transsexual people in Texas. Today's motion also appears to serve as the Texas equivalent of the 12(b)(6) "failure to state a claim upon which relief can be granted" form of motion to dismiss that would have been filed pursuant to the federal style rules used in most other jurisdictions, and which always precedes filing an "answer" to a lawsuit.

Nikki Araguz - Criminal History

The press has made a big deal out of the fact that Nikki Araguz has a history of committing petty crimes, including some petty felonies. That sort of person history isn't generally relevant to a probate lawsuit and seems more like part of a concerted effort by the Texas press and media to cast Nikki Araguz as a greedy villain when a more reasonable assessment is that Heather Deldago, who is suing Nikki Araguz is actually the greedy and malicious party. However, if Nikki Araguz needs to testify within the lawsuit against her, Nikki's credibility and her veracity could be challenged on cross examination because her criminal record could be brought into evidence for that purpose under the Texas court rules of evidence.

It appears though, that Nikki Araguz's attorneys are taking steps to establish her case based on other evidentiary sources so that her own testimony doesn't need to be the foundation of the facts she presents regarding her case. In fact, it seems like most of her case should depend on medical evidence, and documentary evidence based on public records like her marriage license, statutory changes, testimony and an affidavit from her surgeon Marci Bowers, MD regarding her surgery and medical background, and so on.

For purposes of clarifying some questions about Nikki's criminal history, the Wharton County Journal Spectator seems to have researched and documented it relatively thoroughly. In their article, they described her criminal record as follows:

During the time Araguz was a candidate for office, she was serving the final months of a sentence of two years deferred adjudication after pleading guilty to a state felony charge of possession of a controlled substance, cocaine, in the amount of less than one gram, on June 7, 2007.

Records at the Wharton County District Clerk’s Office state the Wharton County Grand Jury returned a one-count indictment on that charge on March 4, 2008. In a document filed with the district clerk on June 12, 2008, Araguz pled guilty and was placed on two years deferred adjudication probation by District Court Judge Randy Clapp.

[...]

In addition to the Wharton County case, a Department of Public Safety criminal history summary for Justin Graham Purdue, reportedly Nikki Araguz’s original name; Nikki Purdue, Nikki Paige Purdue and Nikki Paige Purdue-Mata includes a conviction for state felony charge of theft of between $1,500 and $20,000 dating back to an offense that reportedly resulted in an arrest taking place on Oct. 12, 2000. A finding of guilty was reported on Dec. 7, 2000 with the defendant receiving a sentence of three years probation and a $500 fine.

The same DPS summary shows a prior conviction for a class B misdemeanor offense of theft between $20 and $500. The defendant was arrested on that charge on Oct. 28, 1994 on the theft charge with a final pleading of guilty on Oct. 16, 1995 and a sentence of one year probation.

A listing of offenses with the Harris County District Clerk’s Office shows a case involving an additional theft charge of $200-$750 was completed in December of 1992.

In addition to receiving deferred adjudication following the guilty plea in the controlled substance case, the DPS summary also includes two other substance abuse offenses. They are both B misdemeanor driving while intoxicated convictions. The first of those involves an arrest on Oct. 28, 1994 in Harris County with a final pleading of guilty and a sentence of one year probation on Oct. 16, 1995. The second involved an arrest made by the El Campo Police Department on Oct. 2, 2005 with a final pleading of guilty on Nov. 16, 2005 and a sentence of three days served.

Here is a summary list of her criminal convictions based on the contents of the newspaper article at the link below:

• 1992 - Misdemeanor Theft $200-$750 - Harris County, TX
• 1994 - DWI - one year probation
• 1995 - Misdemeanor Theft $20-$500 - one year probation
• 2000 - Felony Theft $1,500-$20,000 - three years probation
• 2005 - DWI - three days jail
• 2008 - Felony Cocaine Possession - Two year deferred adjudication

Wharton County Journal Spectator Article