Miriam Blank v. Jack Nuszen ( 2015 )

ACCEPTED
01-13-01061-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/12/2015 1:36:55 PM
CHRISTOPHER PRINE
CLERK
Cause No. 01-13-01061-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS 5/12/2015 1:36:55 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
__________________________________ Clerk
JACK NUSZEN,
Plaintiff-Appellee,
v.
MIRIAM BLANK,
Defendant-Appellant.
__________________________________________________________________
On Appeal from the 246th Judicial District Court of
Harris County, Texas
Cause No. 2008-51454
__________________________________________
APPELLANT’S RESPONSE TO THE COURT’S ORDER
__________________________________________
WANIES-GUIRGIS, PLLC
Christina Wanies-Guirgis
Texas Bar No. 24084772
9555 W. Sam Houston Pkwy S., Suite130
Houston, Texas 77099
Telephone (832) 582-8331
Facsimile (832) 379-7490
WaniesGuirgisLaw@gmail.com
ATTORNEY FOR APPELLANT, MIRIAM BLANK
APPELLANT’S RESPONSE TO THE COURT’S ORDER, 1
IDENTITIES OF THE PARTIES AND COUNSEL
Appellant certifies that the following is a complete list of parties, attorneys,
and any other person who has any interest in the outcome of this lawsuit:
Appellant:
Miriam Blank
c/o Mrs. Christina Wanies-Guirgis
9555 W. Sam Houston Pkwy S., Ste. 130
Houston, Texas 77099
Appellate Counsel:
Christina Wanies-Guirgis
9555 W. Sam Houston Pkwy S., Ste. 130
Houston, Texas 77099
Telephone: (832) 582-8331
Facsimile: (832) 582-8331
Appellee:
Jack Nuszen
c/o Ricardo Ramos
440 Louisiana, Ste. 1450
Houston, Texas 77002
Telephone: (713) 227-7383
Facsimile: (713) 227-0104
Attorney for Appellee on Appeal:
Ricardo Ramos
440 Louisiana, Ste. 1450
Houston, Texas 77002
Telephone: (713) 227-7383
Facsimile: (713) 227-0104
Attorney for Appellee at Trial Level:
APPELLANT’S RESPONSE TO THE COURT’S ORDER, 2
Golda Jacob
440 Louisiana, Ste. 1450
Houston, Texas 77002
Telephone: (713) 227-7383
Facsimile: (713) 227-0104
Honorable Charley Prine
Trial Court Judge
Judge Presiding, 246th Judicial District
201 Caroline
Houston, Texas 77002
Telephone: (713) 274-4500
APPELLANT’S RESPONSE TO THE COURT’S ORDER, 3
I. INTRODUCTION
Appellant’s response is based on an order, dated May 5, 2015, issued by the
Honorable Judge Terry Jennings. The Court’s order stated that “…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.” Appellant respectfully shows the Court that a live
controversy does exist.
II. FACTS
On November 20, 2013, the 246th District Court rendered a judgment in the
Appellee’s Suit to Modify Parent-Child Relationship, appointing Appellee as the
Sole Managing Conservator, and divesting Appellant of many of her parental
rights. Appellant diligently and timely perfected her appeal and filed her appellate
brief on July 18, 2014. On or about January 2015, Appellee filed another Petition
to Modify the Parent-Child Relationship with the 246th Judicial Court (the same
court that issued the orders that the Appellant complains of in this appeal), taking
advantage of the fact that the Court of Appeals had not yet made a ruling on the
appeal and thus knowing that the honorable Court could potentially lose
APPELLANT’S RESPONSE TO THE COURT’S ORDER, 4
jurisdiction over the matter. To this date, the Court of Appeals has not rendered a
ruling in this appeal and Appellant and her children are in danger of the
repercussions of the Court losing jurisdiction.
III. ARGUMENT
A. The Filing of Appellant’s Appeal Divested the District Court of
Jurisdiction to Modify the Prior Child Custody and Child
Support Orders in this Appeal.
Filing a notice of appeal generally divests the district court of jurisdiction
over those aspects of the case involved in the appeal. Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 57 (1982). Only one court at a time has
jurisdiction over a subject, and therefore a district court may not amend a decision
that is under review in the court of appeals. Coastal Corp. v. Texas Eastern Corp.,
869 F.2d 817, 821 (1989).
Once jurisdiction attaches, the appellate power is plenary. By statute, the
court of appeals is vested with the power to “affirm, modify, vacate, set aside or
reverse any judgment, decree, or order of a court lawfully brought before it for
review, and may remand the cause, direct the entry of such appropriate judgment,
decree, or order, or require such further proceedings to be had as may be just under
the circumstances.” 28 U.S.C. § 2106; See, e.g., United States v. White, 855 F.2d
201 (5th Cir. 1988) (exercise of supervisory power over all district courts in the
circuit). The primary grant of jurisdiction to the courts of appeals confers power to
APPELLANT’S RESPONSE TO THE COURT’S ORDER, 5
review “all final decisions of the district courts,” and thus the power to review a
judgment or order depends on the characteristic of “finality.” 28 U.S.C. § 1291.
Congress has amended the general rule-making statute to provide that the
Supreme Court “may define when a ruling of a district court is final for purposes of
appeal” under § 1291, however no such finality rules have yet been promulgated
and therefore, appellate jurisdiction remains a function of court opinions
interpreting and applying the statute. 28 U.S.C. § 2072(c). The Fifth Circuit once
encapsulated the concept of finality: “an order, otherwise nonappealable,
determining substantial rights of the parties which will be irreparably lost if review
is delayed until final judgment may be appealed immediately under § 1291.”
United States v. Wood, F.2d 772, 778 (5th Cir.), cert. denied, 369 U.S. 850 (1961).
The general rule that a district court cannot take any further action in the
case once an appeal is filed has several exceptions: (1) an appeal from an
interlocutory decision; (2) a motion for stay pending appeal; or (3) a motion to
proceed on appeal in forma pauperis. A district court may again act in a case
returned to it after the court of appeals issues it mandate; actions taken before then
are a nullity. In this present case, the district court was not permitted to allow the
Appellee to continue with his second modification of the final orders rendered in
the parties’ divorce. The district court lost its jurisdiction to entertain the case once
the Appellant filed notice of her appeal in December 2013.
APPELLANT’S RESPONSE TO THE COURT’S ORDER, 6
B. A Live Controversy Exists Between the Parties As to the Merits of
This Appeal.
The existence of a live controversy is essential to the exercise of appellate of
jurisdiction. See, e.g., Valley Baptist Med. Centr. V. Gonzalez. 33 S.W.3d 821, 822
(Tex. 2000). A controversy must exist between the parties at every stage
of the legal proceeding, including the appeal. Bd. of Adjustment of City of San
Antonio v. Wende, 92 S.W.3d 424, 427 (Tex. 2002); McClure v. JPMorgan Chase
Bank, 147 S.W.3d 648, 651 (Tex. App.—Fort Worth 2004, pet. denied). An issue
may become moot when a party seeks a ruling on some matter that,
when rendered, would not have any practical legal effect on a then-existing
controversy. See In re H&R Block Fin. Advisors, Inc., 262 S.W.3d 896, 900 (Tex.
App.—Houston [14th Dist.] 2008, orig. proceeding); City of Farmers Branch v.
Ramos, 235 S.W.3d 462, 469 (Tex. App.—Dallas 2007, no pet.).
"The general rule is that a case becomes moot, and thus unreviewable, when
it appears that a party seeks to obtain relief on some alleged controversy when in
reality none exists." Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 822
(Tex. App.—Fort Worth 2007, no pet.) (citing Williams v. Lara, 52
S.W.3d 171, 184 (Tex. 2001)). "A case is not rendered
moot simply because some of the issues become moot. . . ." In re Kellogg Brown &
APPELLANT’S RESPONSE TO THE COURT’S ORDER, 7
Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding). An issue may
become moot when a party seeks a ruling on some matter which, when rendered,
would not have any practical legal effect on a then-existing controversy. See In re
H&R Block Fin. Advisors, Inc., 262 S.W.3d 896, 900 (Tex. App.—Houston [14th
Dist.] 2008, orig. proceeding).
Appellant believes that the outcome of this appeal will still greatly impact
the parties’ rights, thus restoring this Court’s continuing jurisdiction over the
appeal. Appellee’s second SAPCR filing occurred several months after the filing
of this appeal. Appellee’s suit sought to modify the existing orders of Judge York
rendered prior which bestowed Appellee with many of the contended parental
rights. This appeal remains live and justiciable because not only was there an
injury that Appellant raised at the time of filing this appeal, but there is a
continuing injury that this appeal could redress, and any relief granted by this
Court would have practical legal effect if awarded. Id. at 900.
Further, even if this Court decides that Appellant’s claims are moot, they
nonetheless fall within an exception to the mootness doctrine for cases that are
“capable of repetition, yet evading review.” Williams v. Lara, 52 S.W.3d 171, 184
(Tex. 2001). This exception requires a plaintiff to “prove that: (1) the challenged
action was too short in duration to be litigated fully before the action ceased or
expired; and (2) a reasonable expectation exists that the same complaining party
APPELLANT’S RESPONSE TO THE COURT’S ORDER, 8
will be subjected to the same action again.” Id. Here, Appellee’s actions are
capable of repetition. Appellant complains of the trial court’s ruling from
November 2013, which divests her of many of her parental rights and imposes an
absurd child support amount on her. This type of injury is capable of repetition in
that Appellee has the trial court at his disposal to continue modifying Appellant’s
parental rights until she virtually will have no rights, which Appellee has already
done time and time again. If the Court of Appeals does not intervene and decide
Appellant’s appeal, then the injuries that Appellant and her children suffer from
Appellee continually asking the trial court to modify existing orders will
undoubtedly continue to repeat, especially if Appellant is forced to appeal each and
every modification that Appellee files.
IV. RELIEF REQUESTED
Appellant, Miriam Blank, respectfully asks the Court to acknowledge that it
has jurisdiction over her appeal and for the Court to decide the appeal in a timely
manner.
Miriam Blank prays that the Court grant this appeal.
Dated: May 12, 2015
Respectfully submitted,
/s/ Christina Wanies-Guirgis
Christina Wanies-Guirgis
Texas Bar Number 24084772
9555 W. Sam Houston Parkway S., Ste 130
APPELLANT’S RESPONSE TO THE COURT’S ORDER, 9
Houston, Texas 77099
Tel: (832) 582-8331
Fax: (832) 379-7490
WaniesGuirgisLaw@gmail.com
Attorney for Plaintiff-Appellant
Miriam Blank
CERTIFICATE OF SERVICE
I certify a true copy of the above was served on each attorney of record or
party in accordance with the Texas Rules of Civil Procedure on May 12, 2015.
/s/ Christina Wanies-Guirgis
Christina Wanies-Guirgis
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rules of Appellate Procedure 9.4, I hereby certify that this
Appellant’s Reply Brief contains 1,738 words. This is a computer-generated
document created in Microsoft Word, using 14-point typeface for all text, except
for footnotes which are in 12-point typeface. In making this certificate of
compliance, I am relying on the word count provided by the software used to
prepare the document.
/s/ Christina Wanies-Guirgis
Christina Wanies-Guirgis
Attorney for Plaintiff-
Appellant, Miriam Blank
APPELLANT’S RESPONSE TO THE COURT’S ORDER, 10