UNITED STATES COURT OF APPEALS
JUDGE MICHAEL NEWMAN, Individually and in his Official Capacity as Judge, Probate Court # 2 of Harris County, Texas
ORIGINAL BRIEF OF PLAINTIFF-APPELLANT, SHEILA OWENS-COLLINS, ON APPEAL FROM THE JULY 8TH, 2021 FINAL JUDGEMENT AND THE JULY 7TH, 2021 ORDER OF ADOPTION IN THE U.S. DISTRICT COURT, SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION, CIVIL ACTION NO. 4: 20-CV-03623, THE HONORABLE [JUDGE’S FULL NAME] PRESIDING
A CIVIL PROCEEDING
15626 Gold Ring
Derwood, MD 20855
- STATEMENT REGARDING ORAL ARGUMENT
The district court clearly erred in dismissing Appellant Sheila Owens-Collins’ claims. Sheila has standing to bring these claims and the federal courts have jurisdiction over this matter. Sheila’s claims have merit on the face of the Amended Complaint. Oral argument is required and requested.
- JURISDICTIONAL STATEMENT
- District Court’s Jurisdiction
- The district court had subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331 which states that “the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
- Appellant brought this suit in accordance with 28 U.S.C. § 1332 which states in part that “the district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” The matter in controversy is the disbursement of $[AMOUNT PAID TO GUARDIANS] by Appellee to Temporary Guardians who did not perform their obligations as required.
- Appellant and Appellee are both residents of the State of Texas.
- Appellant is entitled to relief sustained as a result of depletion of her late mother’s estate occasioned by careless and negligent disbursement of salaries to Temporary Guardians who did not do their work.
- Court of Appeal’s Jurisdiction
- This Court has jurisdiction over this Appeal pursuant to 28 U.S.C. § 1291 which states in part as follows: “The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court.”
- Appellant brings this Appeal from the final judgment of the United States District Court, Southern District of Texas, Houston Division dated 8th July, 2021.
- Timeliness of Appeal
- The district court judgment was entered on July 8th, 2021. Appellant filed the Notice of Appeal on July 8th, 2021, which was therefore timely pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A).
- STATEMENT OF ISSUES
- Whether the District Court erred in dismissing Appellant’s Complaint whereas Appellee was negligent contrary to Texas Estates Code § 1201.003.
- Whether the District Court erred in dismissing Appellant’s Complaint with prejudice since Appellant has no standing in the probate case because her son is executor.
- Whether the District Court erred in dismissing Appellant’s allegations and exhibits as conclusory assertions and perceived wrongdoing.
- STATEMENT OF FACTS
- Appellant had a hearing before the Appellee on April 29, 2019. It was a case regarding the estate of Appellant’s mother, the late Hattie Owens. Appellant was contesting the award of fees to court-appointed officials who did not perform their obligations.
- Appellee refused to allow testimony on the specific lack of performance of job responsibility that was attached to the contest of the fee schedule.
- There were several temporary guardians appointed by the court. The Attorney ad litem, Hattie Shannon, did nothing to find a least restrictive path to avoid the guardianship altogether. She did nothing to advocate for Appellant’s mother, despite evidence of isolation and neglect. Hattie Shannon was absent for the entire tenure of her assignment. Due to Hattie Shannon’s incompetence, Appellant had to hire another attorney for her mother.
- Dana Drexler was appointed Temporary Guardian by Appellee. She rushed to have a 3rd Independent Medical Examination done while Appellant’s mother was recovering from an electrolyte disturbance. The physician who did the examination was rude and did a shoddy job. Appellant’s mother was incapacitated after the procedure. Dana lied to Appellant that she dispatched the physician to address the lack of follow-up of psychotherapy that Appellant had started for her mother before Dana was appointed Temporary Guardian. The attorney that Appellant had hired resigned afterwards.
- Attorney [FIRST NAME] Berlinger was appointed Appellant’s mother’s attorney. Acting on false information supplied by Dana, Berlinger started by accusing Appellant of disrupting her mother’s cardiology treatment.
- Appellant made an appointment for her mother. Dana insisted that Aisha, one of Appellant’s mother’s children, to accompany Appellant’s mother to the hospital. Appellant’s mother did not want Aisha at the hospital. She wanted Aisha out of her room. Aisha refused to get out and Appellant’s mother became upset. Appellant calmed her mother down. Dana lied to the tribunal about Appellant’s role in calming her mother.
- Appellant’s mother wished to have Appellant appointed as Guardian. However, there were allegations raised as to why Appellant should not be appointed as Guardian. Berlinger did nothing to investigate those allegations so as to fulfil Appellant’s mother’s wish of having Appellant awarded guardianship.
- Appellant bought a phone that was connected to her mother’s cochlear implant to enable them to communicate every day. Dana stole that phone from Appellant’s mother. She did not return it despite multiple requests to do so by Attorney [FIRST NAME] Culp, Attorney [FIRST NAME] Rodriguez and Appellant herself. She barred hospital visits to Appellant’s mother, causing her isolation.
- Dana allowed Appellant’s mother’s health insurance policy and her long-term care insurance to lapse. She neglected her medical care, caused delays in emergency medical treatment, took Appellant’s mother out of network and scheduled her for a colonoscopy that was contraindicated for her age and would have been detrimental to Appellant’s mother’s health.
- Dana caused Appellant’s mother to forfeit repair of her house by the Federal Emergency Management Agency who made 3 offers to repair it for free. She later admitted that Appellant’s mother had asked her when she was going back to her house, but that she was not going back to her house because she was going to put the houses up for sale and attach attorney fees.
- Dana caused Appellant’s mother to have a diagnosis of Alzheimer’s disease written in her chart. This fraudulent, deceitful and malpractice behavior influenced the treatment that Appellant’s mother received and the prognosis that was given to her by the treating physicians.
- Appellant pointed out all events in Paragraphs 13-21 to Appellee during the case. She has evidence to prove all that. Appellee ignored all evidence of dishonesty and malpractice submitted by Appellant and proceeded to award exorbitant fees to the court-appointed officials.
- On May 3, 2019, Appellee signed orders awarding $15,000.00 to Shannon [SECOND NAME] for (3 CR 102), $13,196.38 to [FIRST NAME] Berlinger, and $53,468 to Dana Drexler.
- On May 29, 2019, Appellee signed six more orders that awarded additional fees to [FIRST NAME] Sansom (3 CR 130 and 135), [FIRST NAME] Berlinger (3 CR 127) and [FIRST NAME] Tamborello (3 CR 135). The total sum awarded to court-appointed officials in the month of May 2019 was $93,410.38.
- LEGAL ARGUMENT
- The District Court Erred in Dismissing Appellant’s Complaint Whereas Appellee Was Negligent Contrary to Texas Estates Code § 1201.003
- Appellant incorporates Paragraphs 1-24 of this Appeal.
- Texas Estates Code § 1201.003 states as follows: “A judge is liable on the judge’s bond to those damaged if damage or loss results to a guardianship or ward because of the gross neglect of the judge to use reasonable diligence in the performance of the judge’s duty under this subchapter.”
- Judicial immunity is a common law principle designed to protect judges and other judicial officers from lawsuits arising during the performance of their duties. Texas Estates Code § 1201.003 is an express provision exempts a Texas judge from immunity if damage or loss results to a guardianship or ward because of the gross neglect of the judge to use reasonable diligence in the performance of the judge’s duty under the Texas Estates Code. In his capacity as judge, Appellee was bound by Texas Estates Code § 1201.003.
- The Texas Supreme Court in Greater Houston Transport Co. v. Phillips, 801 SW 2d 523 (1990) held that “the common law doctrine of negligence consists of three elements: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach.”
- In El Chico Corp. v. Poole, 732 SW 2d 306, 311 (1987) and Rosas v. Buddies Food Store, 518 SW 2d 534, 536 (1975), the Texas Supreme Court held that the threshold inquiry in a negligence case is duty. It was held that the plaintiff must establish both the existence and violation of a duty owed to the plaintiff by the defendant to establish liability in tort.
- In the present case, duty of care is established by Texas Estates Code § 1201.003. The provision places duty of care on a judge to use reasonable diligence in the performance of the judge’s duties under the Texas Estates Code. Appellant avers that in his capacity as judge, Appellee did not exercise reasonable diligence in the award of $93,410.38 to court-appointed officials who did not perform their obligations.
- Duty of care is also established by Section C(4) of Canon 3 of the Texas Code of Judicial Conduct which states that: “A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.”
- Appellee appointed Dana Drexler as Temporary Guardian for Appellant’s mother contrary to Appellant’s mother’s wishes that Appellant be awarded guardianship. In awarding fees to Dana and the other court-appointed officials, Appellee ought to have exercised reasonable diligence. In the circumstances, reasonable diligence entailed ensuring that the court-appointed officials performed their obligations and awarding them compensation only for work done.
- Appellee breached duty of care to use reasonable diligence in the performance of his duties under the Texas Estates Code by not ensuring that the court-appointed officials performed their obligations and awarding them exorbitant compensation for work poorly done.
- Dana Drexler did not perform her duties properly as Temporary Guardian. Instead, she lied multiple times about Appellant’s mother’s condition, stole Appellant’s mother’s phone, caused Appellant’s mother’s health insurance policy to lapse, caused Appellant’s mother to forfeit repair of her house by the Federal Emergency Management, and caused Appellant’s mother to have a wrong diagnosis of Alzheimer’s disease indicated on her chart, while indeed she did not have Alzheimer’s disease.
- [FIRST NAME] Berlinger acted on lies told by Dana and concluded that Appellant would never be awarded guardianship. He also summarily instructed Appellant’s counsel to dismiss her application because she would not be appointed guardian.
- Part of due diligence involves ensuring that the court-appointed officials performed their duties. Appellee failed to establish that the court-appointed officials had performed their duties.
- As part of the Appellee’s breach of duty of care to use reasonable diligence in the performance of his duties under the Texas Estates Code, he proceeded to award Dana Drexler exorbitant fees in the sum of $_____ despite all the things she did contrary to her duties. Appellee also awarded [FIRST NAME] Berlinger exorbitant fees in the sum of $_____ despite not performing his duties.
- As a result of Appellee’s breach of duty of care to use reasonable diligence in the performance of his duties under the Texas Estates Code, the estate of Hattie Owens was depleted by $_____ resulting from exorbitant fees awarded by Appellee to court-appointed officials who did not perform their duties accordingly. Appellee is therefore liable for negligence.
- The District Court Erred in Dismissing Appellant’s Complaint with Prejudice Since Appellant Has No Standing in the Probate Case Because Her Son is Executor
- The District Court Erred in Dismissing Appellant’s Allegations and Exhibits as Conclusory Assertions and Perceived Wrongdoing
- All the allegations made by Appellant throughout the case are true events that actually happened.
- Appellant has not stated any conclusory assertions or perceived wrongdoing, only facts. Appellant has evidence to prove all allegations made and intends to present all of it before this Court.
REASONS WHEREFORE, Appellant respectfully requests that this Honorable Court reverse the Final Judgment of the United States District Court for the Southern District of Texas dated July 8, 2021 and reinstate the claims against Appellee.
1526 Gold Ring
Derwood, MD 20855
I, Sheila Owens-Collins, being duly sworn depose and say that I am the Plaintiff-Appellant in the above entitled action, that I have read the foregoing Brief of Appeal and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.
(Sign in the presence of a Notary Public)
Sworn to and subscribed before me this _____ day of ____________________, 2021.
(Printed name of Notary Public)
My Commission Expires: ____________________
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was sent on the (Date) day of (Month) (Year) by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:
Rachel S. Fraser, Attorney at Law
Federal (Southern District) No. 2553428
1019 Congress Plaza, 15th Floor
Houston, TX 77002
(713) 274-5383 (telephone)
1526 Gold Ring
Derwood, MD 20855
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