Miriam Blank v. Jack Nuszen ( 2015 )


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  •                                                                                           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