Saturday, August 21, 2010

Frank Mann - An Ethically Challenged Bigot

Editorial Commentary

Unscrupulous attorneys have long been the tantalizing subject of fictional stories about lawyers who would do anything they think they can get away with, to get ahead and generate fees for themselves at any cost, including a proverbial pound of flesh. When real life exposes one of these sorts of cretins, the insidiousness of their evil takes on both personal and socially repugnant dimensions. Such miscreants also expose incompetent if not corrupt governmental institutions around them. One such example is Frank E. Mann III, whose unethical background has already been the subject of an article on this site. That the Texas State Bar Association allows him to continue practicing law, implies that the Bar Association in Texas is either as incompetent or as corrupt an institution, and one that has failed to fulfill its duty to the people of Texas it is supposed to serve, as Frank Mann appears to be.

Cristan Williams
The inspiration for this missive about Mr. Frank Mann, is a telephone call he made to Cristan Williams, the beautiful, articulate, and highly representative, executive director of the Houston Transgender Center. Cristan Williams has been the force behind the support page setup for Nikki Araguz. She has also been creating online videos containing her commentary about the ongoing proceedings, and she has appeared on television to discuss the issue of marriage legality for transsexual and intersex people. Since Texas law allows any party to a telephone conversation to record it, Cristan Williams recorded their conversation when Frank Mann telephoned her. She has also published the recording, with commentary, in a video on Frank Mann's ostensible purpose for telephoning Ms. Williams was to extend an Olive Branch (his own words). Such a telephone call surely implies that he has become aware that newspapers, television media, and the blogosphere, have all been exposing the negative truth about who he is, about his ongoing unethical activities, and the rest of his apparently incorrigible behavior. Based on the contents of his telephone call with Cristan Williams, Mr. Mann has the naive notion that smooth and friendly sounding talk might overcome the reprehensible nature of his actions and his associations. Frank Mann's actions have made it clear that he is a bigot, that he has neither ethics nor conscience, that he is part of the lawsuit against Nikki Araguz primarily in the interest of his own personal greed, and that he has the grandiose notion that his cruel and malicious lawsuit against Nikki Araguz will be the case of his career.

Frank E. Mann III
A brief review of Frank Mann's history might help provide some context for making judgments about his character. Frank Mann has twice been investigated by and sanctioned by the Texas State Bar Association. In both cases his license to practice law was suspended, once for a period of years, and further extended by periods of probation once the Bar Association allowed him to practice again. Nikki Araguz made the unfortunate and fateful mistake in 2002 of hiring Mr. Mann to represent her in a Chapter 7 bankruptcy. During his representation of Nikki Araguz, she disclosed confidential information to him about her medical past and apparently even gave him a copy of her first birth certificate, all under attorney/client privilege. Heather Delgado, the ex-wife of Nikki's second husband Thomas, happened upon Frank Mann when she needed an attorney to represent her in a child custody dispute against Nikki and Thomas Araguz. It was both illegal and unethical for Frank Mann to represent Heather Delgado, or anyone else as an adversary to Nikki Araguz in a legal matter, but Frank Mann did so anyway. This is called a direct conflict of interest. In most states, Frank Mann would have been disbarred for doing so, but apparently not in Texas. Frank Mann used his knowledge of confidential information about Nikki Araguz to take advantage of and humiliate Nikki and Thomas Araguz during that dispute and depositions they gave during it. While Frank Mann was representing Heather Delgado against Nikki and Thomas Araguz in the child custody dispute, Nikki Araguz decided to run for mayor of Wharton, Texas. Frank Mann then sent a broadcast email to a large group of his friends and colleagues that contains information which violates the attorney/client privilege he owes Nikki Araguz. Mr. Mann's bigoted email poked fun at Nikki Araguz, exposed her medical past, and disclosed the possibility that she may not have been eligible to run for office because of a previous criminal conviction. Once again, in just about any state other than Texas, Frank Mann would have been disbarred for a stunt like that.

Long after Nikki Araguz should have known that Frank Mann had no business being involved in a lawsuit against her, the attorneys representing her filed a complaint with the Texas State Bar Association about Mr. Mann's behavior. At first the Texas State Bar Association dismissed the complaint. Only after Frank Mann, Nikki Araguz, Heeather Delgado, Simona Longoria, et al, became national news, did the Texas State Bar Assocation decide to take a closer look at the complaint against him. Frank Mann is currently under investigation by the Texas State Bar Association with regard to the numerous ethical violations listed above. However, Frank Mann continues to represent a party adverse to Nikki Araguz, in clear violation of ethical rules. In fact, the telephone call Frank Mann made to Cristan Wiliams is right at the edge of another ethical violation. An attorney is not allowed to engage in ex-parte (without the adverse attorney present) communication with an adverse party to a case. Although Cristan Williams isn't the actual adverse party, there are clear implications that Frank Mann intended to communicate his propaganda indirectly to Nikki Araguz through Cristan Williams. If not a direct ethical violation, Frank Mann's telephone call to Cristan Williams certainly seems to violate the spirit of the ethical rules he swore to uphold upon becoming an attorney.

With the foregoing review of Frank Mann's behavior as context, the contents of Frank Mann's conversation with Cristan Williams demonstrates just how much of an unprincipled hypocrite he is. There isn't any way to separate Mr. Mann's representation of someone in a case that disrespects the memory of the father of the boys he represents, from the implications such representation has about Frank Mann's own lack of character. Every time Frank Mann files a motion that mischaracterizes the marriage between Thomas Araguz and Nikki Araguz as same-sex, he isn't just taking an easy pot shot at Nikki Araguz, his actions dishonor Thomas Araguz and his sons as well. There isn't any way for Frank Mann to separate his greed from his involvement in the case either, since he and the other attorneys had an ethical duty to point out to Heather Delgado and Simona Longoria, that Thomas Araguz's boys would end up with about the same amount of money with or without the lawsuit, and by refraining to litigate such a matter, they would protect the memory of the boy's father and socially shield the boys from the bigoted Texas culture that surrounds them.

There isn't any way Mr. Mann can claim he is not a bigot when the core of his case requires him to argue before a court of law that somehow intersex and transsexual people should not be afforded constitutional equal protection and due process in their right to marry someone of the opposite genital sex, even if they may have some theoretical genetic similarity of sex chromosomes with their marrying partner. Such an imposition of law defies practicality and pragmatic common sense. It is a notion so preposterous that Texas has only now begun to understand that in so doing, it has actually legalized the very thing it purported to outlaw with the Littleton v. Prange ruling. What Littleton has legalized in Texas, is hundreds of transsexual and intersex people who have married partners of the same genital sex because the law there is based on the theoretical and presumed sex chromosomes of the marrying couple, without ever even testing them for verification. The resulting bureaucratic confusion at county offices which provide marriage licenses in Texas that has followed from such blind bigotry, threatens to deny the rights of intersex and transsexual people not just in Texas, but potentially throughout the United States. By serving as a plaintiff's attorney in a rapacious lawsuit whose purpose is to confirm such bigotry, Frank Mann demonstrates to the world by his actions, no matter what words he may use to provide an excuse for them, that he is a bigot. Mr. Mann's ego may be bolstered now by his involvement with such a case, but in a more enlightened future reading of the history he may be creating, he will be properly labeled as one of the bigots who made such institutionalized bigotry possible.

If Frank Mann were actually an honest, conscientious, or ethical person, he and the other attorneys representing Heather Delgado and Simona Longoria in the supposed interest of Trevor and Tyler Araguz, would never have filed such a lawsuit to begin with. It seems equally important to remember that without Frank Mann's violation of attorney/client privilege, Heather Delgado et al, may never have discovered the information about Nikki Araguz's medical history that fanned the flames of the child custody case and instigated the present probate case.  Frank Mann is one of three attorneys who knew full well that when it comes to most probate lawsuits, the only people who generally win are the attorneys. While their unscrupulous gains are purely financial, they will leave scorched earth behind them, and a broken family in their wakes. While Frank Mann got fake friendly on the telephone with Cristan Williams, explaining that Thomas Araguz's sons Trevor and Tyler would be attending private school in the hope that may help protect them from playground bullying, such efforts are naive recompense, a vain effort to bandage the gaping emotional wounds those two boys will likely battle for many years to come. In the same conversation, Frank Mann also noted that his potential involvement with Cristan Williams might last for years, without any acknowledgement of the benefits to the children that a settlement now might provide: for them, for Nikki Araguz, and potentially for thousands of intersex and transsexual people who could be directly impacted by a negative appeals court ruling in such a case. Shame on all three attorneys: Frank Mann, Edward Burwell, and Chad Ellis; for such blatant hypocrisy and greed. The pound of flesh they hope to excise from Nikki Araguz does not come without a drop of blood, but with copious quantities of it; from Thomas Araguz, from his sons Trevor and Tyler, from Nikki Araguz his chosen wife, and potentially from thousands of intersex and transsexual people everywhere, no matter how their chromosomes may be configured.

Thursday, August 19, 2010

Nikki Araguz - A Biographical Assessment

While most of the mainstream media seems almost blindly focused, with near tunnel vision, on their excoriation of Nikki Araguz, on occasion, brief glimpses of the woman behind the news stories has slipped through the din of their diatribe. When assembling a portrait of any person, the traditional attributes people gather about another person usually include: professional interests, hobbies and avocations, socioeconomic background, education, beliefs and values, all deduced from a person's relationships, work, recreation, and residence, as a person structures their life. Without an opportunity to interview Nikki Araguz directly, it has been possible to ensemble the following cursory assay of Nikki Araguz and her life, based on sifting through the media disinformation, in search of aspects of her life that appear credible and which provide a better reasonably balanced purview of the woman she is. Hopefully, some future opportunity will lend itself to a more in depth and personal portrait, based on information directly from the subject.

Nikki left, with her father, mother, sister and brother.
Nikki was born in June of 1975 to her mother Sheri, when Sheri and her husband were in Carmel, California, while he was stationed there during military service. Sheri and her husband were originally from Texas, so Sheri returned to Texas after her husband was ordered to a post in Germany, shortly after Nikki was born. A year later, Sheri's husband returned home to Bryan, TX, but was hit and killed by a semi-truck a month later, long before Nikki had any opportunity to get to know her biological father. A few years later, Sheri married Chuck Bockelman, Nikki's stepfather, to whom Sheri remains married today. Since the recent probate lawsuit was filed against Nikki, her entire family has made positive and supportive public statements about her, including her mother Sheri, her stepfather Chuck, her older brother Gary, and her younger sister Vanessa. Sheri's mother is active on the page setup to support Nikki, where she has stated she would attend the hearings about Nikki's case if she were healthy enough to be able. The photo above, apparently taken some years ago, provides clear evidence of her family's support of her, with her stepfather Chuck hugging her, while all five of them were gathered for a family snapshot.

Nikki at 19 in video documentary
Meanwhile, as Nikki grew up, her teenage years were apparently a time of experimentation and exuberance for her. She doesn't appear to have had the benefits of affluence that often expose people to resources that provide information on topics that might not otherwise be readily available. As a result, Nikki apparently had a hard time getting detailed information about the congenital intersex condition she was born with, or doing much about it during her early life, despite her mother's attempts to get the attention of physicians about it. She seems to have struggled while trying to find her social place because of it, and more than once succumbed to manipulation by people whose primary purpose was to take advantage of her natural need for attention and positive social feedback. At one point when she was in her late teens, she attended a college or junior college near her in Texas, but none of the news reports have included much information about majors, graduation, or degrees she may have earned. Only one news report states that she has some form of degree in marketing. In a video documentary made of her when she was in college, she appears happy as well as reflective, but a little flighty, as one would expect of any young woman her age. She was in fact quite beautiful at nineteen or twenty, and an obviously sexually attractive young woman, apparently without medical or hormonal intervention. The college video documentary provides demonstrable evidence of her intersex condition, although it also demonstrates her lack of medical understanding about it at the time. What many uninitiated people clearly don't understand, is that by the time Nikki had reached the age of eighteen, her body had developed to become a normal looking female one from all outward appearances, along with her contradictory but unseen underdeveloped genitalia. The genetic condition she has prevents her body from responding to any testosterone her body may produce, which caused her body to respond only to the estrogen that is naturally in everyone's system.

From all appearances, much of Nikki's twenties after college were occupied with low level jobs such as working in retail. In her early twenties, Nikki worked at a shoe store in a local Texas shopping mall. That is where she met her first husband Emilio Mata, who she married when she was about twenty-four or twenty-five. Without socioeconomic privilege to provide financial and intellectual stability, news reports imply that neither Nikki nor Emilio had very good judgment during that period of her life. Both she and Emilio Mata racked up minor convictions for petty criminal acts such as driving while drunk, minor drug possession, and petty theft, all the sorts of youthful indiscretions that people with financial privilege often manage to avoid getting on their permanent records, even if they have committed them. By 2002, she and Emilio Mata were also in financial trouble and decided to file Chapter 7 bankruptcy. If only they could have known the terrible fate that would befall them for unknowingly choosing an unscrupulous attorney named Frank E. Mann III, whose violation of her attorney/client privilege eight years later would be one of the falling dominoes that have knocked Nikki Araguz into the middle of an arduous legal ordeal. The financial and social instability surrounding Nikki and Emilio seems to have eventually become too much for their relationship to survive, and they divorced in 2007, about the same time Nikki met Thomas Araguz. Emilio Mata eventually worked his way up in the technology business and now works for a digital chip foundry in Houston.

Nikki and Thomas Araguz wedding
At about the same time Nikki divorced Emilio Mata, she began attending Grace Community Fellowship church in Needville, TX, another deep Houston suburb. One Sunday she was approached by Thomas Araguz, who she had seen at church and said hello to previously, but during their first significant encounter, he asked her to have brunch with him after the service. Their Mexican restaurant brunch turned into a classic, love at first sight, three hour, marathon event. Within weeks they had decided to move in together. Nikki seems to have gained significant emotional support from Thomas Araguz after the two of them met at their church, and immediately struck up a soulful and collaborative relationship. Early during their relationship, Nikki apparently disclosed her medical condition to Thomas Araguz as well. In addition, there are indications that Nikki had been saving money during that time to get corrective genital surgery. Thomas seems to have also attended medical meetings with Nikki to get information about the corrective surgery she needed. One day in June, 2008, Thomas took Nikki on a private, afternoon, Gulf of Mexico boat cruise, where he proposed marriage to her. A year after they had met, the two of them somehow managed to put together a wedding, with excellent photos that document the ceremony, to which she wore a beautiful white strapless gown. Two months later, Nikki had also finished making payments for the $20,000 genital reconstruction surgery she needed, with a well known and respected surgeon in Trinidad, Colorado, Marci Bowers, MD. It's a surgery that must be scheduled and paid for in cash, many months in advance. Since Thomas had to stay home on call for firefighting duty, the two of them exchanged affectionate email messages and phone calls while she spent a week recuperating in the hospital, from the surgery she needed to have a vagina constructed. Thomas was a man patient enough to wait months before he could consummate his marriage.

During the past two years, since her wedding and her surgery, Nikki Araguz appears to have been focused primarily on building a home life with her husband Thomas Araguz. They were finally able to rent a little house, on a couple of acres, in the outskirts of Wharton, which is a small town that looks like it was cleaved from a section of the fictional town Mayberry, where the district courthouse marks the center of town, and the mostly single story business buildings that surround it for a few blocks in each direction don't appear to have changed much since the 1950s. While some of the houses around are tear-down/rebuild two story homes of a more recent vintage, most of the houses are tiny single story ramblers, many of them no bigger than apartments. They are set back on large lots among huge deciduous trees that shade the lawns and houses from the oppressive summer heat, along residential streets without sidewalks. Nikki spent the time when she wasn't working, taking care of her husband Tom's two young boys four days a week, helping the boys with their homework, helping the boys with their toy trucks, and making a home of the house they rented together.

Nikki's relationship with Thomas Araguz and his sons in such a quaint looking place as Wharton, appears to have stabilized and grounded her. Meanwhile, she had leveraged her knowledge of the magazine business, which she had developed while working for various local Texas magazines, including a GLBT magazine called Outsmart where she sold advertising, into a magazine business of her own. She was the creator and publisher of a local magazine called Wharton County Living, the sort of free circulation piece that is often found in shops around most communities these days, that generate their revenue entirely from selling advertising space rather than from subscription fees. When Thomas was out of work, it was Nikki who pitched in the money for the child support payments to Heather Delgado, Thomas's bitter ex-wife. Nikki has also described her marriage as one with a normal amount of emotional intensity and disagreement, the natural product of constant, daily, deep, emotional involvement with, and commitment to, another person. During her recreational time she apparently had a horse that she enjoyed riding and caring for, something also quite typical for small town exurban life in Texas. In an interview with the Houston PBS television station, she described herself in the following manner:
"I was a housewife and you know ran a magazine, and loved my husband and my children, and rode my horse. This was my life prior to my husband’s death, and um, with the lawsuit that was brought on, I was thrust into the media."
Her weekends appear to have been consumed primarily with going to church with her husband and their two boys. When she wasn't busy with the boys, she seemed to have spent her time helping her husband study for exams while he was trying to get through Wharton County Junior College, to earn an associate's degree in firefighting and emergency medical technology, all on a very modest income. In the meantime, Nikki ran for Mayor of Wharton, a town so small that her loss to the incumbent mayor was by a vote of 382 to 118.

Then sometime in the spring of 2010, Heather Delgado, Thomas's disgruntled ex-wife, became discontent with her level of access to the sons she shared with Thomas Araguz, so she filed a child custody lawsuit against them. Delgado somehow happened upon the unscrupulous attorney Frank Mann III, who seized at the opportunity to gain the advantage by outing Nikki's medical past to Delgado. Once he did that, Nikki and Thomas's lives suddenly became emotionally stressful beyond their limits, and apparently their judgment in some instances.

Thomas Araguz funeral procession
The day her husband died, Nikki had left Wharton, and was reportedly driving west toward California. Some speculate she was driving to California to see if she could get expedited service on obtaining a female California birth certificate. Meanwhile, Thomas was called out to fight a huge fire at an egg farm and processing plant. While Nikki drove west, Thomas and the other firefighters fought their way into a blaze so huge that as many as one hundred and fifty firefighters, from hundreds of miles around, were brought in to fight it. Thomas went missing somewhere inside the structure, with only minutes of air left in his oxygen tank. His charred body wasn't found until the next day, July 4, 2010. Nobody in Thomas's family even thought of calling Nikki to give her the terrible news. It was the wife of another firefighter who called Nikki on her cell phone, as she was driving west through New Mexico, who gave Nikki the news that would spark the flames of a different sort of blaze, one that continues to consume Nikki'e life. At first Nikki and her step sons were nearly sainted by the news reports, along with Thomas, the fallen hero. But the classic heaping of sympathy for the family of a fallen public servant, turned almost instantly into a public pummeling of Nikki, while Thomas and his memory faded instantly, once the attorneys for Heather Delgado and Simona Longoria filed their lawsuit and held a press conference, having already obtained the attention of the press because of the fire and Thomas's death. Newspapers and television stations all over Texas, and then all over the U.S., began to run stories that changed from near beatification to vilification of Nikki, mischaracterizing her as a liar, a fraud, a criminal, and a gold digger.

Meanwhile, somewhere in the midst of the heated child custody dispute that preceded her husband's death, their occupancy of the house they were renting together appears to have been lost, as a whirlwind of events culminated with Nikki being left without a husband, with the children she had taken care of for nearly three years stripped from her life and possibly forever, without a home, without a business and its income, and with a contentious lawsuit filed against her, based not on what she had done, but because some people would rather not allow her to have female legitimacy. While Nikki has been receiving intensive support from transsexual activists around Texas, the Houston Press wrote the following:
Nikki also told Fox News that, because she was actually born female, she never identified as transgender. And despite the fact that many in the Houston transgender community are offering Nikki financial and emotional support, and despite the fact that prominent transgender attorney Phyllis Randolph Frye believes the suit against Nikki threatens every transgender person's civil rights and has taken on Nikki's case pro bono, Nikki told Fox that she should not be "lumped in" with the transgender community.
Similarly, Nikki told Ernie Manouse of the Houston PBS station in an interview with him:
Nikki Araguz - I simply am a heterosexual woman. That’s how I define myself. I’m not a medical professional, but I know that I have been diagnosed with partial Androgen Insensitivity Syndrome, and that falls under a classification medically as a transgender syndrome.

Ernie Manouse - And folks have a problem getting past the idea, and they assume that when we talk in these that it is someone who was a male, born a male, grew up as a male, somehow felt they weren’t a male, so they had sexual reassignment surgery. That is a different condition than what you went through, correct?

Nikki Araguz - Completely, completely, I, in my growing up, even in my early years, my parents started to notice that I was not developing into a boy, umm, that I was developing into a girl, and sought medical professionals, umm, late 70s early 80s, nobody knew what was going on. And so umm, they just allowed me to continue to develop into the woman I am today.


Ernie Manouse - And again I want to clarify for our audience, when you say it was the birth defect we are not talking about a fully developed all male individual going and having a sexual reassignment surgery.

Nikki Araguz - That would not be at all an accurate description of what happened for me, umm, because I was an underdeveloped, umm, and not past the age of two or three years old did I develop anatomically, genitalia.
Nikki's public posture in this regard may turn out to be an all important component of her legal argument that her marriage to Thomas Araguz should be considered valid under Texas law. Her statements in the PBS interview were better organized than her statements in earlier television interviews, including the following one, in which she appeared quite flustered when a television news reporter tried to pressure into describing herself as male, to which she responded with the following statement:
"I do not and have not ever considered myself in that way (male), but I understand that some people are explaining it like that. And what I'd like to say is that essentially I had a disorder much like anyone else who was born with a birth defect of any kind - no arm, six toes, no vision, OK? There was an anatomical birth defect that was underdeveloped beyond the age of 2 years old." (assertion (male) added)
The same television news reporter attempted to address the false accusation that she had somehow deceived her husband, that her husband didn't become aware of her medical history until April 2010. Heather Delgado and Simona Longoria have included a fraud claim in their lawsuit against Nikki Araguz based on this accusation. Nikki made her case to the news reporter by disclosing that she didn't have genital reconstruction surgery until October 7, 2008, two months after her August 2008 marriage to Thomas, with the following response to the reporter:
"I had the operation two months after our marriage, and my husband was fully aware, and the birth defect that I had essentially was not a problem to my husband," she said. "He was proud to be my husband as much as I was proud to be his wife."
However, Nikki Araguz is going to need help from skilled attorneys and persuasive medical expert witnesses in order to make her case before the court. While she has been unlucky to have chosen to marry in Texas, she is luckily surrounded by a legal team ready and willing to do everything in their power to help her.

Nikki Araguz - two days after her husband's death.
Currently, Nikki Araguz presents the demeanor of the mature and maturing thirty-five year old woman she is, a woman whose thin youthful beauty has settled into a more filled out thirty-something attractive charm, and subdued calm. She expresses herself in video interviews with emotional presence at the same time she is capable of intellectually lucid clarity. Her attire demonstrates social awareness appropriate for her thirty something status, providing indications of social as well as intellectual sensitivity. She also has a beautiful voice; one that delivers her usually articulate ideas with a pleasant warmth. Just two days after her husband died, during a video interview she gave to a small local newspaper, she said of personal relationships:
"If there is anything that I can say to anybody, don't waste a minute of your life arguing. Don't walk out the door and not say I love you, because you never know when you'll never get to speak to them again.",
It was a statement she made with heartfelt emotion in her voice, as steady tears of genuine grief streamed down her face. The majority of her statements since this tragedy began, have been focused on similar forms of reflection, and requests for respect and dignity from the media and the public.

Although Nikki's small immediate family hasn't been physically present when she has appeared at the district courthouse in Wharton, TX, her family has expressed a desire to be there if they were physically able. Unfortunately, both Nikki's parents have severe chronic illnesses. In fact, Nikki has apparently made frequent excursions to help her mother, who has suffered from and been hospitalized with strokes and seizures, and apparently has diabetes, heart disease, and partial paralysis. Nikki's mother Sheri has been active and present on the support page setup for Nikki though, providing what support she can through that medium. As far as trying a case in the media is concerned, the presence of family seems to give the public an impression that someone has social legitimacy. With that in mind, the people from Nikki's immediate family whose presence might lend moral support to her during court appearances are her biological siblings Vanessa and Gary, whose public statements about Nikki have been entirely supportive and corroborative.

With help from the Houston transgender support center, Nikki Araguz has apparently been staying with friends and supporters, and spending nights in hotels, as far from Wharton, TX as is practical, since her husband's death and the onslaught of media frenzy that surrounds her. Other than a couple visits to the courthouse there, and visits to her husband's grave site, Nikki has stayed away from Wharton, TX. One possible conclusion that it seems reasonable to reach from such a portrait, is that Nikki Araguz is a woman whose life over the past few years has matured her in ways she probably never dreamed of before the day she met Thomas Araguz. One can only wonder how someone like herself, or like Christie Littleton and others before her, forge new life plans after such events, or how they structure their future personal relationships.

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)

News Conference with Attorney Darrell Steidley Monday August 16, 2010

What follows is a complete transcript of the news conference that attorney Darrell Steidley gave outside the Wharton County District Courthouse on Monday afternoon August 16, 2010, after the hearing inside. Mr. Steidley represents Nikki Araguz in her defense of the probate lawsuit filed against her by Heather Delgado, her late husband's ex-wife, and her late husband's mother, Simona Longoria. In it, Mr. Steidley provides answers to many questions that have not been clarified elsewhere.

Darrell Steidley: All parties are in agreement that anything we can do that facilitates benefits going to the children we want to do that. That’s always been our position. Nikki is all for that. We have never made any claim against any of those benefits. We never will. So, I think you just saw today, a less heated exchange about that, because that was the focus today.

There wasn’t any objection. Everything was mostly just housekeeping as far as form and substance and order. We got that handled. They appointed Thomas’s mother the administrator of the estate so that she can start to handle that business.

Reporter: Any idea how much the benefits are that are going to the children?

Darrell Steidley: Well I don’t know what the exact number is. I know that I’ve had a crash course from the benefits administrator on that. I think that when you add it up, it’s quite a sizable figure.

Reporter: Like six figures? Can you give is a potential range?

Darrell Steidley: I think that the range is somewhere in the neighborhood of $300,000 for the children, but it could be more than that. But I just think that is a tremendous thing that we have in place for our people who put themselves in harm’s way each and every day such as firefighters. We are just trying to get that facilitated. Again, like I said, we are trying to move that as fast as we can to get that to the children because none of that is in dispute.

Reporter: So as a result of today’s actions in court the children, the wheels are in motion to get the children their $300,000?

Darrell Steidley: Absolutely. The first step in any probate proceeding before you can start to administer any funds out of that would be to appoint the administrator and personal representative. However, most of the benefits will be of what they call a non-testamentary kind. They don’t have to pass through the estate. They are benefits. But what happens when litigation occurs is that, necessarily parties become a little timid about taking actions because they want to make sure that everything is handled appropriately. We are trying to alleviate any of that. There’s no roadblocks on our part. So, anything we can do to put them (insurance and benefits companies) at ease or make them feel like there is no liability on their part, that’s just not an issue for us.

Reporter: So, is Thomas’s mother going to be the administrator of the $300,000 going to the children, or is it strictly his personal belongings?

Darrell Steidley: No. She is just in charge of the estate as it is. We are not sure exactly what the amount of funds that are going to be in it. I mean Thomas and Nikki were not wealthy people so the estate as I understand it is not very large to begin with. So, we just want to make sure that whatever there was, the children can use it for support. They need it, so that they can have access to it as quickly as possible. So that is what that is about.

Reporter: So she is not going to be the administrator of the benefits going to the children?

Darrell Steidley: No, that’s going to be, that’s not a fine line. Like any legal question, your probably not going to get a straight answer. But, the way that those work on non-testamentary transfers, much like the way that Nikki’s funds were approved last week. Those were designated specifically for her, so they don’t have to go through the probate proceeding to be approved. Those are things by law that pass just directly to the people that receive those benefits. So the children, and the benefits that the children get, it’s my understanding that many of those benefit function in the same fashion, where you don’t have to go through the estate, but there are certain things have to be taken care of on a personal level, to make certain they get what they are due under Thomas’s estate. So that is the gist of that.

Reporter: So, why wasn’t Nikki here today?

Darrell Steidley: It was just unnecessary for her to appear. We discussed everything that was going to happen today. The last time was a temporary restraining order where she was ordered to appear by the court, which is quite normal. But today was more of housekeeping issue. The reason Mrs. Longoria was here was because she has certain obligations she must perform under the law such as making testimony that is required under the probate code so that she can she can become the administrator. So she has to put that on the record. That’s why she was here today.

Reporter: And what money was approved for Nikki? Was it the $60,000?

Darrell Steidley: Correct. It was a life insurance policy Thomas specifically named her the beneficiary of the funds in case something happened to him. The benefits themselves are designated all across the country is my understanding. It’s not a designated beneficiary where you name somebody. These are funds setup strictly for the spouse and the children. And of course we know we are having litigation about Nikki’s designation as the spouse. So that’s that issue. But there is no issue with the children so that is something we are trying to help with in any way that we can. Although obviously we are not acting on behalf of the children, but we are trying to help them in any way we can.

[ … name spellings given ]

Reporter: What is the next step?

Darrell Steidley: What is happening now is that we are going through the suit over the disposition of the marriage itself. That is in the discovery process, where each party gets to provide questions and requests for documents for evidence, and we will have some depositions, so you are probably looking at sixty to ninety days before there is a hearing.

Reporter: And your Motion to Dismiss, that was based on the new provision in the Texas Family code?

Darrell Steidley: Correct. And I filed that, and then that is just something I do, but afterward I started thinking whether that was something I wanted to pursue at that time, but I wanted to get that filed. The judge wants to see more evidence before he is inclined to take it up basically is what he was saying, so it was properly handled. Okay? You are welcome, thank you.

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)