Miriam Blank v. Jack Nuszen ( 2015 )


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  •                                  COURT OF APPEALS FOR THE
    FIRST DISTRICT OF TEXAS AT HOUSTON
    ORDER
    Appellate case name:      Miriam Blank v. Jack Nuszen
    Appellate case number:    01-13-01061-CV
    Trial court case number: 2008-51454
    Trial court:              246th District Court of Harris County
    Appellant, Miriam Blank, has filed an “Amended Emergency Motion for Stay Pending
    Appeal and Plea to Jurisdiction.” In her motion, appellant asserts that, although her appeal is
    pending in the above-referenced case, appellee, Jack Nuszen, has filed a new petition to modify
    the parent-child relationship and obtained a temporary restraining (“TRO”) order against her, and
    the trial court has issued a default judgment against her. Appellant requests that this Court “stay
    the trial pending the appeal” and “remove the ordered TRO.” We deny her motion.
    Based on appellant’s notice that the trial court has “granted Appellee’s Motion for
    Default Judgment” in his new suit for modification, however, it appears that this Court no longer
    has jurisdiction over this appeal. See Bilyeu v. Bilyeu, 
    86 S.W.3d 278
    , 280 (Tex. App.—Austin
    2002, no pet.) (noting suit to modify constitutes new cause of action and results in new final
    order); see also TEX. FAM. CODE ANN. § 156.004 (Vernon 2014). The existence of an actual
    controversy is essential to the exercise of appellate jurisdiction. See, e.g., Valley Baptist Med.
    Ctr. v. Gonzales, 
    33 S.W.3d 821
    , 822 (Tex. 2000). Appellate courts are prohibited from
    deciding moot controversies. Nat’l Collegiate Athletic Ass’n v. Jones, 
    1 S.W.3d 83
    , 86 (Tex.
    1999). The same is true if a court’s judgment cannot have any practical legal effect upon a then-
    existing controversy. In re A.T.M., No. 12-07-00243-CV, 
    2009 WL 1492832
    , at *4–5 (Tex.
    App.—Tyler, pet. denied) (mem. op.).
    Accordingly, unless the parties to this appeal demonstrate, within 10 days of the date of
    this order, that there remains a live controversy between them as to the merits of this appeal, the
    appeal may be dismissed. See TEX. R. APP. P. 42.3(a).
    It is so ORDERED.
    Judge’s signature: /s/ Terry Jennings
     Acting individually      Acting for the Court
    Date: May 5, 2015
    

Document Info

Docket Number: 01-13-01061-CV

Filed Date: 5/5/2015

Precedential Status: Precedential

Modified Date: 10/16/2015