Guardianship News:

Texas: Houston federal judge allows state judge to be sued in guardianship negligence case

US (Federal) Southern District Chief Justice Lee H. Rosenthal US (Federal) Southern District Chief Justice Lee H. Rosenthal
By David Yates | May 16, 2018, 1:34pm
HOUSTON – Southern District Chief Justice Lee H. Rosenthal recently issued a landmark ruling allowing a wrongful death lawsuit against a Houston probate judge to proceed in an adult guardianship claim.

Sherry Johnston sued Harris County Probate Judge Christine Butts in 2016, alleging that her elderly mother Willie Jo Mills suffered broken bones and a rapid, preventable decline, which contributed to malnutrition and death when Mills was a ward of the State of Texas under guardianship.

A ward is typically a senior citizen experiencing cognitive decline or a younger adult with physical or developmental disabilities.

“Construing the allegations in the light most favorable to Johnston, she has alleged a plausible claim against Judge Butts’s bond under § 1201.003,” Judge Rosenthanl states in her May 15, 2018 Decision.

Issued by Texas Bonding Company and Harris County, Judge Butt’s public official bond is valued at $500,000, according to court records.

Judge Rosenthal’s ruling comes at a time when the adult guardianship system in Texas is under fire, according to a press release.

Bexar County Probate Judge Kelly Cross was admonished this month by the State Commission on Judicial Conduct for labeling a proposed ward in another case “Mr. Maggot” and “Maggot Man” while the Spectrum Institute’s Legal Director Tom Coleman has requested records from Texas Supreme Court Chief Justice Nathan Hecht to determine whether a self evaluation of the state’s guardianship system is underway. On April 18, the Texas Judicial Council’s David Slayton announced to Congress in Washington, D.C. that nearly half of adult guardianship cases in the state are out of compliance with reporting requirements.

“Johnston does not allege that Judge Butts failed to conduct the annual examination,” wrote Judge Rosenthal in her May 15, 2018 Memorandum and Opinion. “But she does allege that Judge Butts ignored requests for emergency relief, including a request made two days before Mills died. The context and timing of these requests are enough to state a claim that Judge Butts did not exercise reasonable diligence to determine whether Dexel and Lott were performing their duties as Mills’s guardian. The claim is limited to the amount of Judge Butts’s bond.”

According to court records, successor guardian Ginger Lott settled with Johnston in April 2018.

Judge Rosenthal dismissed claims against Harris County and guardian ad litem Clarinda Comstock however claims against Judge Butts and David Dexel will continue with a status conference on May 29, 2018 at 10:30a.m.

Section 1201.003 of the Texas Estates Code (TEC) specifically states that a judge is liable on a 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.

“It creates a limited waiver of judicial immunity, allowing recovery for losses directly tied to the judge’s duties under the subchapter,” wrote Rosenthal in her decision.

Johnston sued David Dexel for breaches of his fiduciary duty based on allegations that he improperly billed and received attorney’s fees at $300 per hour in many instances instead of billing at a Guardian’s rate of $100 per hour.

According to Judge Rosenthal’s order, claims against Dexel include discontinuing physical therapy for Johnston’s mother, which Johnston alleges made her mother’s muscle problems worse.

“The allegations as to Dexel’s conduct as Mills’ guardian and the allegations as to his conduct in the probate-court proceedings support one claim for breach of fiduciary duty,” Judge Rosenthal’s order states.

To read this report on the Southeast Texas Record’s website, please click here.

1 Comment on Texas: Houston federal judge allows state judge to be sued in guardianship negligence case

  1. Adequacy Assurance Group // May 19, 2018 at 4:43 pm // Reply

    AN OPEN LETTER TO LAW ENFORCEMENT

    Dear Honorable Law Enforcement Officers,

    I would like to bring your attention to the “Juryless Process Abuse Epidemic”, that is currently plaguing our country, and unlawfully stripping away assets from some of our most vulnerable citizens/seniors…a situation that we have become aware of—and seen the evidence. Too often “juryless” courts are being used as a tool to racketeer/steal assets from American hard working citizens & families, and intentionally wrongly award them to probate networks including “attorneys“, “guardians”, “fiduciaries”, etc., via cooperating “probate/juryless judges”, acting in contravention to law. These racketeering uses of our court facilities, “federally and state defined felonies” (of the corruption, obstruction, grand theft/embezzlement, jury, witness, & evidence tampering, etc. varieties), are immensely adding-to/creating the civil unrest, chaos, crime & debt rates on the streets….which in turn is endangering, harming, and KILLING POLICE OFFICERS and the general citizenry alike, this very day. Just recently, Attorney General Jeff Sessions reported a 61% increase in police officers killed this very year…NOW IS THE TIME TO PROSECUTE!

    I am of the great hope that you, from your position and dedication to support and defend the Constitution of the United States, and your personal stake herein, will take the necessary steps to ensure that these abuses are stopped and due process is in fact being provided and protected, including minimally:

    1.Identify courts operating without juries in your area & jurisdiction, detailing those sitting without a jury in the courtroom, as well as those without sufficient jury review and oversight of “proposed findings” and litigant objections, etc.

    2.Ensure that in your department, as well as on a state/federal level, that there is an adequate task force apprised and charged with identifying and prosecuting any/all illegal exploitation of juryless court facilities/functions, which would include the wrongful removals of proper grand/trial jury function and the facilitation/enabling of organized crime/wrongdoing, “court”/”attorney”/”bar” exploitation of litigants, assets, etc.; and personally ensuring that those findings are presented to the district grand jury for process, minimally

    It has long been proven that Juryless Governance is a breeding ground for organized crime, racketeering, and crime in general—preventing the same being one of the main reason for the establishment of this country. As these are urgent matters that expand and exaggerate unnecessarily the crime and debt rates on our streets this very day, they are well within your authority and best interest to investigate and bring to justice. I look forward to your efforts in stopping these CRIMES & UNCONSTITUTIONAL activities, RESTORING PROPER GRAND/TRIAL JURY FUNCTION. As always, my staff and I are available to assist you in any way possible. Please stay safe as you protect our communities, and may God Bless you and the United States of America.

    Sincerely,

    THE HARD WORKING AMERICAN PEOPLE

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