East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

Hi Jeff, Let's set the record straight. Don't be to quick to attach wings to the father. He is not a saint. He abandoned his infant son for four years, was in contempt of court twice, and finally placed on five years probation for non-payment of child support.
The mother was sole-managing conservator of Luke his whole life. Luke grew up in his mothers home with his sister and brother.

I agree that the good people of Tyler should NOT have to pay that ad litem. The mother didn't make the mess, the ad litem did. He never investigated the father, or the mother, never filed an answer to the fathers application for TG, never filed a report of the atty/guardian ad litem, went to court in April 2005 and represented a client he never met, never spoke to, and never even confirmed a doctors report.
He persistantly and willfully failed to observe the local rules and procedures, and set out on a mission from the beginning to destroy the mother's reputation and relationship with her son.

The father stated in his application that the estate was worth $30,000.00, had the first judge subtract $10,000.00 because the truck the father owned was wrecked, told the court in February 2006 the estate only consisted of a lawn mower, a blower, and a utility trailer. Then in December 2006 when the father filed his amended application to convert the TG to PG the estate was again worth $20,000.00, and it disappeared again in May 2007 at the final hearing. Because he lied to the court about the value of the estate, the father ought to pay the ad litem from the estate that does not exist.

Contrary to the courts orders, this father never filed an inventory and list of claims, never filed an annual report on the condition of the ward, or an annual accounting. The TG expired by order of court on May 3, 2005, expired again on June 14th, 2005, and expired again in September 2006. The ad litem insisted there was a valid TG in place at all times and the TG did not have to file anything. I ask you: If the TG has no responsibilities to the court why on earth would a TG want to become a PG? I might add that the fathers attorney resigned in lieu of disbarrment, the second judge was recused, and the nursing home was cited in January 2008 for five federal violations and eight state violations.

Regarding the temporary injunction, the ad litem didn't get that right either. The mother agreed to the temporary injunction but she did not waive the issuance of a bond on that injunction. She did NOT agree to the amended temporary injunction and there was NO bond for that either. This was brought to the appellate courts attention in the motion for rehearing still pending in that court.

As to the sanctions? Let's put the blame where it belongs. The ad litem ordered those records from the father in May 2005. The father never complied with that order either. The mother's attorney ordered the records in November 2005 and it took the hospital five months to comply. The mother only picked up her copy of those records on April 18, 2006, and left orders for the 'original sealed copy' to be sent to her then attorney. The retreival company owner had the sealed copy in her possession from April 18 to April 21, 2006 when they were delivered to the mothers attorney. The mothers attorney had possession of the sealed copy from April 21 until May 5, 2006. The mothers attorney had a moral, legal, and ethical duty to protect his client and provide that ad litem with a copy. The record retrieval company's owner couldn't have been "really afraid" and couldn't have let the mother "walk out the door" because the owner ran out to the mothers car and hand delivered the mother's copy. The ad litem's white truck was parked in that owners driveway. The owner never met the mother and could not have known what kind of vehicle the mother drove. Go figure.
Keep one thought in mind. There was never a Discovery Control Plan or a Discovery Scheduling Order filed in this case. The ad litem never requested discovery from the mother nor was there an order for her to produce discovery. And the ad litem asked for the wrong records in his motion to compel, this was brought to the ad litems attention and the courts attention but was ignored.

There are still two more appeals pending in this case so before you pass judgment on the mother, wait for all the facts to present themselves. Luke is the victim here and his rights have been violated. The mothers liberty interest in her son have also been violated. No guardian should have the right to tell a mother she cannot brush her sons teeth, put lotion on his legs, change his diaper, or confer with the doctors on his case.

This case is extremely important to the state. Think of all the Traumatic Brain Injured sons and daughters returning from the Iraq war. A lot of those young men and women come from broken homes. The Texas Legislature passed HB 417 stating that both parents are to be named co-guardians if they had joint-managing conservatorship. In this case the mother was sole managing conservator. She has prior rights as well as parental rights to her son. And read HB 585. The terms of possession and access to the ward should be preserved.

Jeff,
As Luke's mother, I am so dissappointed in you. You have written a blog about something you know nothing about. I called your office and your legal secretary listened to Luke's story and told it to you. Twenty minutes later she returned my call and apologized profusely. You were sorry, you didn't know the details. I ask you to take my case, you felt it would be a month of work before you could catch up. You still continue to keep this blog on the internet. If you really want to be fair here's the "other" side of the story". It's filed with the court of Appeals.
Just how honest are you? Or are you part of the opinionated "good old boy" buddy system, in Tyler, Texas? Let's see.

NO. 12-06-00222-CV

IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS

IN THE MATTER OF THE GUARDIANSHIP OF
LUKE FORREST HUMPHREY

MOTION FOR EN BANC REHEARING

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW Appellants Susan McLendon, JoAnn Bowshot, and Patricia Pondoff, In Propria Persona, Sui Juris, as parties to this appeal and files this Motion For En Banc Rehearing, pursuant to Tex.R.App.P. 49.7, regarding portions of the Memorandum Opinion issued by this Court on June 18, 2008.

I.
PARTIES:
Appellants:
Susan McLendon, mother of the Ward.
JoAnn Bowshot, maternal aunt and interested party.
Patricia Pondoff, maternal aunt and interested party.
Appellees:
Landy Humphrey, father of the Ward.
J. Scott Killough, Attorney Ad Litem for the Ward.

II.
Jurisdiction: The Twelfth Court of Appeals has jurisdiction of this Appeal pursuant to Texas Rules of Civil Procedure Rule 311.

III.
Procedural rules exist to subserve the presentation and resolution of cases on their merits. As Rule 1 of the Texas Rules of Civil Procedure states, “[t]he proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.” The rules are written to achieve this purpose and must be construed accordingly.

The multiple procedural errors in this case, even if considered harmless if taken separately, warrant reversal of the Trial Courts orders. This Honorable Court must determine that the errors committed by the trial court were reasonably calculated to cause and probably did cause the rendition of an improper judgment. TEX.R.APP.P.44.1(a).
There are legal issues at stake here.

IV.
Discovery Sanctions:
This Court stated in its June 18, 2008 opinion regarding the Discovery Sanctions:
“Appellate courts have the authority to modify incorrect judgments when we have the necessary information to do so. Tex. R. App. P. 43.2(b); Mullins v. Mullins, 202 S.W.3d 869, 878 (Tex. App. -Dallas 2006, pet. denied).”
This Court has the “necessary information” on the Face
of the Record. (I CR 26 Answer of Atty/GAL filed May 4, 2005). The ad litem ordered the records from Landy Humphrey, and Mr. Humphrey ignored the order. A year later, the ad litem wants the same records from me. Why didn’t he file a motion to compel against Mr. Humphrey? Was it because he was also representing Mr. Humphrey like it says in the Baylor Specialty Hospital records, “Mr. Killough is here representing the father”. I believe the only one Killough represented was Baylor Specialty Hospital for a large chunk of money. Why do you think he fought for two years to disqualify me, and spent three years and $94,000.00 of his time? It certainly had nothing to do with caring about his ward. He saw Luke twice in three years. Where is the justice and fairness in that? Killough had a duty to review all medical records in the beginning and he didn’t do his job. He was to look out for Luke seeing he had proper medical care just as if it were his own son. There’s a principle involved here.
Killough never requested the records from me and there was never an order for me to produce the records, (see: Tex.R.Civ.P. 215.2, and when Killough filed his motion to compel, he asked for the Baylor Medical Records. Baylor Medical records were never subpoenaed. My attorney, Howard Britain never subpoenaed Luke's ICU records, he said we need BSH records because Killough said that he had evidence in those records that I was improper with my son. How would killough know this unless he already had the records or he was working with the hospital to keep me from getting guardianship because they thought that I would sue them. Why would I sue them? Did they do something wrong? I fired Luke's doctor for good reason and he began writing lies in the medical records. The interesting part is, Luke's records had been changed. Every page was stamped that Dr. Lembke was Luke's doctor. He never became Luke's doctor until April 29, 2005, four days before BSH released Luke to HealthSouth Rehab in Tyler, with NO ONE signing Luke out of the hospital. I was the legally the only one who could sign Luke out of BSH. BSH's attorney Kevin Croy says in the medical records that Landy's TG has expired, who can sign Luke out of the hospital? Why did Killough want my sealed copy so badly? Did he want to switch it with records that were unchanged? Since I had copies that were damaging to the hospital, is that why they wanted me out of the case so badly that they were at every hearing, afterwards meeting with each Judge along with the attorney's at the bench? Britain had me come to his office twice a week to go through 756 pages of medical records and every page that my name was mentioned I was to put a sticky note to the side of it. I never knew that these were even my copies that I could have taken home to do this work, until my sister came down and requested for me to have my copies. I didn't know they were mine and that Britain had copies of the sealed records. We then took my copies to my home and began going through them page by page, that's when Britain filed a police report that my sister took his Monte Blanc ink pen. He had handed it to us to sign papers saying we were taking my copies, then handed both of us all these medical records. She inadvertently stuck the pen in her pocket. She didn't even know what a Monte Blanc pen was. The police called us the next day and described what the pen looked like. We returned it and made a copy of the pen and Britains signature to take to the police department. They had a very big laugh over that. We couldn't believe it. As we read these medical records I was sick over the torture they were putting Luke through. Judge Getz is telling me I knew what records he meant. I NEVER kept Killough from ANY records Britain subpoenaed and my husband PAID for three times over. My husband paid for Baylor Specialty records THREE times. He sent a check to Howard Britain designating the seven hundred and fifty dollars ($750.00) just FOR Baylor Specialty records. Then Britain spent the money on something else and we had to send Pam Miller at Records and Review another seven hundred fifty six dollars and ninety eight cents.($756.98). Then the judge ordered us to send another three hundred and sixty nine dollars and we did that. Still no one was happy. I am so sick of these stupid games. Does anyone remember this is about a Traumatic Brain Injured 22 year old son of a mother who knows he needs to be in rehab, but no one cares. They don't even bother to listen. They just want to Institutionalize him and walk away. Would you like copies of the cancelled checks? Oh, I apologize, I forgot exhibits are not taken in Smith County Courts, to prove your innocence, only if you're in the “buddy system”. Like Evan Moore from the Houston Chronicle wrote in his articles, Win at all costs' is Smith County's rule. “She stands by the entrance to the Smith County Courthouse: Themis, Greek goddess of justice, displaying her sword and scales in reassuring familiarity. At first glance, that is,..closer inspection reveals omission: Smith county's goddess has no blindfold. Whether by mistake or by design, her sculptor left her with an unflinching stare for all who pass. The stare is fodder for a rueful joke among defense attorney's. In Smith County, they say justice is far from blind.” Where planted evidence and perjured testimony along with withheld discovery is a pattern fostered by nepotism and a “good old boy” system that still exists in Tyler, Texas. The apathy of the Judges makes me want to throw up. Killough and Britain profess to be Christians. They go to church on Sunday, and lie in court on Monday. All three of you Appellate judges are Christians and I expect MORE from you than I do non believers. God said, “to whom much is given, much is required”. Luke's life is in jeopardy, this was to be an accelerated appeal. This TRO should have been ruled on two years ago. You have been asked to put yourselves on the forefront of correcting the misconduct of your peers. It is a heavy responsibility.
As we said in the last two motions, The ‘sealed copy’ of the Baylor Specialty Records were delivered to attorney, Howard Britain, on April 21, 2006. They were in Britain’s possession from April 21st, until May 5, 2006. That’s fourteen (14) days. A white pick-up truck just like Killoughs was sitting in the gravel parking lot of Pam Millers office the day I came to pick up the records. It was a big old house and as I pulled in the parking lot she came out to meet me. She had never met me, how did she know who I was? She handed me a copy of Baylor Specialty records and at that time I informed her to discuss with Howard how he wanted Killough to get his records. I have never even seen the inside of her office/house. Britain and Killough talked daily from two months after he took my case. So why weren't the records given to Killough, or were they? We paid Britain in the area of $15,000.00 to do nothing, except talk with Killough and Bandy on the phone constantly at the cost of $225.00 an hour, yet he couldn't recall anything they discussed. Britain knew Killough was filing a Motion to Compel and never even told me. Then he wants to withdraw. I felt he never did anything to help Luke or me, so I let him, not knowing how hard it would be to get another attorney. I should say impossible. I am a 53 year old mother with no attorney. The judge orders me to hire one. After calling Dallas, Austin, Houston, Marshall, everyone in every area I called refused to get involved with a contested guardianship that had already gone through three attorney's. With the first one never even withdrawing. Killough stated in court, as long as your attorney has never withdrawn from your case, he is still your attorney of record. Ebb Mobley is still my legal attorney according to Killough. He has never to this day withdrawn from my case. [May 26, 2006 P 65 L 14-23] The interesting part is Judge Getz, Bandy, Killough and Britain all knew this. I did not. Killough said in court he was restrained from talking to me as long as I had an attorney representing me and I have had one this whole time. My sisters and I read and reread the transcript trying to figure out what he was talking about. Then in the May 26,2006 transcript when Bandy is questioning Ken Rainey, he asks him if Howard Britain was a good attorney. Then asks him if Darryl Bennett was a good attorney. He then says, “and Ebb Mobley”... immediately Judge Getz interrupts with “Be careful now”. Bandy changes the subject. We pondered that for the longest time, finally we found a rule, or code, that an attorney must withdraw from your case before another can represent you. THEY all knew Ebb Mobley was still my attorney of record, yet there I am. I am clueless concerning the law. When reading the transcripts you can clearly see that. The only thing I know about the law is how Perry Mason and Matlock act in court. Well it's a far cry from reality that's for sure.
My sisters say I must keep this official for you to even read this. I feel you've read this same thing three times over. How much simpler must we make it? I know that you can't read between the lines or have the time to compare medical records with transcripts, and affidavits. However, I ask you again to look at the certification that Pam Miller filed on April 21, 2006 just eleven minutes before Killough filed his Motion to Compel. According to that paper, it was notarized on April 18, 2006 and states in part:
“The original deposition transcript, together with copies of all exhibits, were provided to the attorney or party who asked the first question appearing in the transcript for safekeeping....”.
Are we really supposed to believe that it took the United States Post office three days to deliver the sealed copy to Mr. Britain? Did Pam Miller file a false certification? She testified that she only gave me my copy and that the sealed copy was sent to Britain, yet on the cover a check mark is placed beside Killough's name. To allow these attorneys to play their legal games to the detriment of a client or Ward is inconceivable. Why aren’t they held accountable for their actions? How can this Court turn a blind eye to the facts before it?
When Pam Miller suggested that I was “unstable”, I objected to that and Judge Getz sustained my objection. Pam Miller was not qualified as an expert to attest to my stability. Let's talk about her for a moment, this woman had received papers from my attorney in November of 2005, yet it is April 2006 and still she does not have the records. I called Britain concerning this, he calls Pam, and we are now on three way conversation. Within one week I had contacted Baylor, arranged for the records to be sent to Pam Miller, paid for them and picked them up. Just who is the unstable one?
The opinion of this Court is now on the internet in the Public Library of Law (PLoL) and again on Jeff Rambin’s new Tyler Appellate Blog. They sure pick up on the “unstable” part of your opinion. He represents me as an uneducated, jobless debt to society and an unlawful person leaving my burden for society to bear. I called him, since he was so opinionated and not afraid to announce his opinion to all the world I thought he'd make a great attorney for me. I called and talked to his legal secretary at length concerning my case and asked to make an appointment with this bold, forthright man. After he heard my case, he apologized profusely and ran like a scared rabbit. That blog was off the internet the next day. He wasn't about to get involved with this contested case. I wonder why? I even called Gene Spence in Wyoming, he represented the guy from Ruby Ridge. He was the sweetest lawyer I have talked to yet, even wrote me a letter, refusing that is, but nicely. The record will show that I was never allowed to testify. Killough has succeeded in what he originally set out to do: destroying my reputation to the courts and my relationship with my son. This is not what ad litem’s are supposed to do.

V.
CONSTITUTIONALLY PROTECTED RIGHT:
Temporary Restraining Orders and Temporary Injunctions are not designed to take away a liberty interest or to deprive an individual of Constitutionally protected rights. A mother should have a right to clear her name and reputation by appeal and this right should not disappear because the TRO was of such a short duration or the Temporary Injunction expired or was dissolved before the appellate process was completed.
The only BOND filed was for the Temporary Restraining Order. It is a violation of Tex.R.Civ.P. 684 for a Temporary Injunction to NOT have a bond. I may have agreed to the Temporary Injunction but I NEVER agreed to waive a bond. Common sense would tell you that a judge cannot continue a bond that is specifically for a temporary restraining order and attach it to the temporary injunction.
And every bonding company will agree that they are only liable for what is written in the bond. On August 4, 2006, when the court was trying to amend their “clerical error” of not setting a date certain was also the perfect time to make the ad litem file a new bond for the injunction.
“No bond”, is a serious error on the courts part, and this appellate court should declare that injunction void on its face. So why haven't you?
When I said I had no problem with the Temporary Injunction I honestly and truly believed it was to stop me from taking my son’s plastic AFO’s off and putting lotion on his feet, brushing his teeth, stop asking doctors and nurses about the condition of my son, and to strictly follow all of my ex-husbands ‘Guidelines’. When I realized it was going to prevent me from ever seeing my son again I objected and retracted that agreement and Judge Getz sustained my objection. It was an abuse of discretion for Judge Getz to grant more relief than KILLOUGH was entitled to. An injunction is a remedy, not punishment for past “alleged” acts. That injunction forbid visitation rather than forbidding purported conduct. And it was a violation of my Constitutional right to my son. It also violated Luke’s right to see his mother. Putting all 'rights' aside it's vindictive to take away a child from his mother. It is cruel and unusual punishment for both. A total lack of compassion or feeling on any persons part to do such a thing. Why even prisoners are allowed visitors, even 'unlawful' and 'unstable' ones.
Before I signed that TI, Judge Getz assured me I was only waiving service. He believed that, too, because he re-enforced that belief in the August 4, 2006 hearing to ‘Amend’ the TI. KILLOUGH stood right in front of me holding an ink pen out to me and placing papers in front of me. I said if I signed TRO papers he would be committing subornation of perjury because the affidavits contained lies and his office typed up those affidavits (which he later attested to in the March 12, 2007 hearing)I was signing waiver of service papers. He asked the judge if he wanted signed copies too and he slid the TI papers in front of me and I signed thinking it was waiver of service papers. I thought when I retracted my statement that I had gotten out of signing the TI, I was so afraid to tell the judge no I was not signing any papers, because the judge kept telling me he was going to find me in contempt of court and fine me and send me to jail, my husband passed me a note and said just be quiet and do what they tell you.
I wanted Judge Getz to hear my Motion for Visitation that day (June 9, 2006) and he refused. It had been filed since May 4, 2006. On August 4, 2006 I wanted him to hear my Motion for Visitation and again he refused and instead signed the Amended Temporary Injunction which I refused to sign. If the June 9, 2006 TI was void then my signature should also be void.
For eleven months (May 26,2006 through June 2007) I was forbidden to see my son. My son and daughter were forbidden to see their brother, and the entire maternal side of Luke’s family was denied visitation because of that TI. During that time my son contracted Herpe’s Simplex NOS. How does an incapacitated young man who can’t walk or talk contract a sexually transmitted disease? Where was his father?
KILLOUGH picked up Luke’s recent medical records in April 2007 (see his Application for Ad Litem Fees May 25, 2007). As Luke’s Attorney Ad Litem, KILLOUGH knew or should have known about the Herpe’s and deliberately withheld that information from Judge Rogers and it was material to this case. Why didn’t KILLOUGH file a report with Health and Human Services? Who is looking out for the ‘best interests’ of my son?
My sister and I filed a complaint with DADS regarding the Herpe’s and DADS investigated the complaint January 2008. Glen Rose Medical Center Nursing Home was cited for five Federal violations and eight State violations including being cited for not reporting this to Health and Human Services and not investigating the matter when Luke was first diagnosed. The Nursing Home tried to pass it off as ‘fever blisters’. You don’t get ‘fever blisters’ all over your mouth, nose, and up the side of your face to your ear and you certainly don’t need Zovirax on your genitals when they change his diapers, and he has been on 800mg. of Acyclovir every day since March 2007.
The Nursing Home was also cited for not doing background investigations on any of their employees.
I did not know that calling DADS was considered “unlawful actions”? Two weeks after DADS investigation, when I arrived for my four hour visitation with my son, I was met at the door by Bridget Knapp the care-coordinator. She handed me a box with all of the things I had given to my son including CD’s, books, and a quilted wall hanging and told that they didn’t like it when I file complaints with DADS. Their investigations caused disruptions at the nursing home and I was no longer allowed to visit my son. The sheriff’s office would no longer allow their deputies to accompany me because “this is a civil matter” and they didn’t want their deputies subpoenaed into court.

How sad that Luke is isolated from the whole maternal side of his family. Kira Bowshot is Luke’s cousin. She never did anything, yet she is included in Judge Rogers final order of May 7, 2007. My brother, who is a minister, is also included in that order. None of Luke’s maternal aunts, uncles, cousins, brother or sister, are allowed to see Luke unless we take an officer with us. The ‘guardian’, Landy Humphrey, has fired five officers and has refused to approve of any other officer I choose. He told me if I came down with an officer, Glen Rose Nursing Home and he would file disorderly conduct charges against me.
VI.
Violating Oath of Office: Appellants Brief Page 20. When Judge Floyd T. Getz stated in open court that “we’re not going by the Constitution in this court today” he violated his Oath of Office. Article VI(3) of the Constitution of the United States of America makes it plain that “....all
executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” That judge has no business sitting on any bench in this country, let alone this state. He still owes our family an apology and why doesn't this court sanction him for that comment?
VII.
Perjury and Subornation of Perjury: By ignoring the perjury and the Subornation of perjury committed by the ad litem, and David Dennis and Marilyn Ledbetter in their affidavits attached to the TRO, this court effectively condoned their lies. They get off ‘scott’ free to do it all over again.
VIII.
Jurisdictional issues: Issues one and two in our brief refer to the original jurisdiction of the court and all this court needed to rule on that is the original application for temporary guardianship. (I CR 8). It did not comply with Probate Code 875©) and without a proper pleading and response from the ad litem, the court was deprived of juris. The pleading is what sets the court in motion and gives it jurisdiction. This court was right when it said standing is a necessary component of subject matter jurisdiction, which is essential to the authority of the court to decide a dispute. (Cook v. Exxon Corp., 145 S.W.3d 776, 780(Tex.App.-Texarkana 2004, no pet.). When the ad litem went to court on April 26, 2005 to represent a client he never met, never spoke to, never even confirmed a doctors report, never filed an answer or response to the application, then he did not join the issues and was not properly before the court, it did not have personal jurisdiction of Luke and the ad litem did not have standing. Therefore, Luke was deprived of his due process rights and this Honorable Court has a duty and responsibility to rule on that issue de novo, ex mero motu.
This appeal was submitted September 26, 2007 and this court withheld it’s opinion for another nine months. The passage of time will not make that temporary guardianship any more void than it was three years ago. And the trial court could not “convert” a void guardianship into a valid permanent guardianship. Again, the Mootness Doctrine must be applied to this case. The collateral consequences that have accrued and continue, are devastating to Luke, his mother, and the whole maternal side of the family.
IX.
Standing of Appellants Bowshot and Pondoff: Appellants Bowshot and Pondoff were personally served by the Bailiff in CCL#3 after court. When the Temporary Restraining Order states “This order shall be binding on ...those persons .....who receive actual notice of this ORDER by personal service or otherwise.” it’s a pretty good indication that Bowshot and Pondoff were included in that order. We were injuriously affected and it definitely affected our right to visit our nephew. We joined this suit as ‘parties vitally interested in the welfare of the Ward” and Killough meant for us to be included or he would have just mailed a copy to us by regular mail instead of CMRRR and having us “personally served” by the bailiff.

X.
Prayer:
For all of the above stated reasons, we are asking this court to review its decision and reverse, modify, or render a decision accordingly.