ACCEPTED 01-14-00694-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 5/5/2015 11:26:38 AM CHRISTOPHER PRINE CLERK
No-01-14-00694-CV FILED IN 1st COURT OF APPEALS IN THE FIRST DISTRICT COURT OF TEXAS HOUSTON, TEXAS 5/5/2015 11:26:38 AM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk
DIOGU KALU DIOGU II, LL.M.
APPELLANT Vs
YAOWAPA RATTANA APRN APPELLEE
APPEAL FROM THE 387TH JUDICIAL DISTRICT COURT FORT BEND COUNTY, TEXAS
REPLY BRIEF FOR APPELLANTS
DIOGU KALU DIOGU II, LL.M. DIOGU DIOGU LAW FIRM P. O. BOX 994 FULSHEAR, TEXAS 77441 Diogu.diogu.law.firm@gmail.com Phone (713) 791 3225 Fax (832) 408 7611
ORAL ARGUMENT REQUESTED
1 IDENTITY OF PARTIES AND COUNSEL APPELLANT/COUNTER-DEFENDANT
DIOGU KALU DIOGU II
COUNSEL FOR APPELLANTS
Diogu Kalu Diogu II Diogu Diogu Law Firm P. O. Box 994 Fulshear, Texas 77441 Phone (713) 791-3225 Fax. (832) 408-7611
APPELLEE/COUNTER PLAINTIFF
Ms. Yaowapa Ratana-Aporn
COUNSEL FOR APPELLEE
Mario Martinez Law Offices of Mario A Martinez PLLC 23123 Cinco Ranch Blvd #208 Katy TX 77494
RECORD REFERENCES
1. The Clerk’s Record will be referred to as “CR:[Page(s)]”. There is a 1st Supplemental Clerk’s Record which will be cited as “SCR [Page(s)]”. There is also 2nd. Supplemental Clerk’s Record which will be cited as “2SCR [Page(s)]”. There is also an Appendix of the Motion for New Trial which will be cited as “TAB. A [Page(s)]”.
2. The Reporter’s Record was not requested nor used in this brief because it was not necessary and not relevant to this Appeal
2 TABLE OF CONTENTS
Page INTRODUCTION .....................................................................................................7 ARGUMENT …………………………………………………………………..…...9 1. THE APPELLANT’S BRIEF HAS AN “ARGUMENT” SECTION THAT CONTAIN A CLEAR AND CONCISE ARGUMENT FOR THE CONTENTIONS MADE, WITH APPROPRIATE CITATIONS TO AUTHORITIES AND TO THE RECORD. TEX. R. APP. P. 38.1(H), THE APPELLEE INABILITY TO COMPREHEND CLEAR AND CONCISE BASIC LOGICAL REASONING CONTAINED IN THE APPELLANT BRIEF IS IRRELEVANT….…………………………..…….9 2. APPELLEE’S DECISION TO PRESENT ONLY PARTIAL AND CHERRY PICKED1 REPORTER’S RECORD THAT SUPPORTS HIS POSITION RAISES THE PRESUMPTION TO SUPPORT THE APPELLANT’S CONTENTION THAT HE DID NOT ORDER THE REPORTER’S RECORD BECAUSE IT WAS “NOT NECESSARY AND NOT RELEVANT” TO THIS APPEAL. (APPELLANT’S BRIEF, P. 2 AND DEFEATS THE PRESUMPTION TO AFFIRM THE TRIAL COURT’S JUDGMENT.……………………….…………………….…11 3. IT IS UNCONTROVERTED THAT THE APPELLANT WAS NOT SENT NOR DID HE RECEIVE THE NOTICE OF TRIAL SETTING NOR WAS THERE AN ANNOUNCEMENT IN OPEN COURT BY THE TRIAL JUDGE IN THE PRESENCE OF THE APPELLANT OF A TRIAL SETTING NOT LESS NON-JURY TRIAL…………….....13 4. APPELLANT WAS ENTITLED TO A JURY TRIAL…………..…….....14 i. APPELLANT COMPLIED WITH RULE 216 OF THE TEXAS RULES OF CIVIL PROCEDURE………..….....14 ii. DIOGU PRESERVED HIS ERROR IN HIS MOTION FOR NEW TRIAL. …………………………..………….....15 iii. DIOGU’S NON SUITS DID NOT EXTINGUISHED HIS FIRST JURY DEMAND AND FEES PAID…….…….....16
1 Devious deception in displaying data: Cherry picking - Choosing to make selective choices among competing evidence, so as to emphasize those results that support a given position, while ignoring or dismissing any findings that do not support it, is a practice known as “cherry picking” and is a hallmark of poor science or pseudo-science. See Richard Somerville, American climate scientist, 2011. See also, When only select evidence is presented in order to persuade the audience to accept a position, and evidence that would go against the position is withheld…See URL, http://www.logicallyfallacious.com/index.php/logical-fallacies/66-cherry-picking. 3 iv. DIOGU MADE A JURY DEMAND AND JURY FEE WHEN HE FILED HIS CASE ON OR ABOUT MARCH 08TH, 2013 AND THE APRIL 2ND 2014 PAYMENT BY AN OFFICE STAFF WAS CUMULATIVE AND MADE INADVERTENTLY……………………………….…….....17
5. THE TRIAL COURT ERR WHEN SHE CONTINUED TRIAL AFTER SHE WAS SERVED WITH THE APPELLANT MOTION FOR RECONSIDERATION ON APPELLANT’S MOTION TO RECUSE OR DISQUALIFY ……………………………………......…..17
6. THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION OVER THE PROPERTY DESCRIBED AS LOT TWENTY THREE (23) IN BLOCK ONE (1) OF CINCO RANCH GREENWAY VILLAGE, SECTION NINE (9), A SUBDIVISION IN FORT BEND COUNTY, TEXAS ACCORDING TO THE MAP OR PLAT THEREOF RECORDED UNDER SLIDE NO (S) 1550/B, 1551/A AND 1551/B OF THE PLAT RECORD OF FORT BEND COUNTY, TEXAS. TAB A.18-19 2SCR.21-22 AT THE TIME OF THE TRIAL…………………………...……………………….……...…..18 CONCLUSION AND PRAYER ............................................................................ 22 CERTIFICATE OF SERVICE ............................................................................... 22
4 INDEX OF AUTHORITIES TEXAS CASES Abdelnour v. Mid Nat’l Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App.—Houston [1st Dist.] 2006, no pet.)…………………………………………………………………….....12 Bennett v. Cochran, 96 S.W.3d 227, 228 (Tex. 2002)……...… …………..…………10, 11, 14 Benavente v. Granger (Tex.App.- Houston [1st Dist.] Oct. 23, 2009)……………………...…...13 Cecil v. Smith, 804 .S.2d. 509, 910-11, (Tex. 1991)……………………………… …...17 Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). ……………………..………………..13 Carson v. Gomez, 841 S.W.2d 491, 493 (Tex.App.-Houston [1st Dist.] 1992, no writ)…......9 Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987); …………...……..………………14, 15 Grande Valley Gas Co., 987 S.W.2d 167, 178-79 (Tex.App.-Corpus Christi 1999, no pet.); ..…....9 Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996); ……..……………....………………..13 Graham-Rutledge & Co., Inc. v. Nadia Corp., 281 S.W.3d 683, 691 (Tex. App.-Dallas 2009, no pet.) .........…………..14 LBL Oil Co. v. Int'l Power Servs, 777 S.W.2d 390, 390-91 (Tex. 1989). …………..……..………………..15 Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (per curiam) .…………….…………..15 In re M.P.B., 257 S.W.3d 804, 811 (Tex. App.―Dallas, 2008, no pet.). ..…………….16 In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999) …...………………...………………..16 San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ..11 Villafani v. Trejo, 251 S.W.3d 466, 468 (Tex. 2008). 18,20, 32….………..………………..17 FEDERAL CASES
5 Association of Data Processing Service Organizations Incorporated v. Camp, 397 U.S. 150, 151 (1970). ……………………….……………..….……20 Barber v. United Airlines, Inc., 17 Fed.Appx. 433, 437 (7th Cir. 2001) ……………………..……...……14 City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). ………………………….……………….……22 DaimlerChrysler Corporation v. Cuno, 547 U.S. 332, 340-41 (2006) ……….……………………………....……20 Davis v. Federal Election Commission, 554 U.S. 724, 734 (2008). ……………………...…….…………….……21 Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004) …………………………………………………..……20 FW/PBS Incorporated v. Dallas, 493 U.S. 215, 231 (1990). …………………………………....…….……21 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); …………………………...………….……20 Monsanto Company v. Geerston Seed Farms, 130 S. Ct. 2743, 2754 (2010) …………………...………………….……22 Summers v. Earth Island Institute, 555 U.S. 488, 492-93 (2009) …………………………….………………20 United States v. Windsor, 133 S. Ct. 2675, 2687 (2013) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). …………………….…………………………...……20
RULES Tex. R. Civ. P. 21a; …..………..……………………………..……………...…14 Tex. R. Civ. P. 216; …..…….….…..…………….…………………………..…16 Tex. R. App. P. 33.1. …..…….….…..……………………………………….…16 Tex. R. Civ. P. 324 (b). …..…….….…..……………………...……………...…16 Tex. R. Civ. P. 324(b)(2)g)…….………………….…..……………………...…16
6 INTRODUCTION Respondent is, of course, entitled to provide additional facts supported by
the record, which he believes were omitted by the Appellant’s Statement of
Facts and Procedural History. However, the right to offer additional facts does
not grant the right to convert a statement of facts into argument. If a party says,
“Dr. Smith testified at page X of the transcript that A and B were true,” that is an
objective statement of fact. If the party says, “At page X of the transcript, Dr.
Smith’s testimony proved A and B were true,” argument has been introduced.
The latter statement is argumentative because it offers a legal conclusion or an
opinion about the value to be given to the evidence. That is not the function of
counsel on appeal, nor the proper function of a statement of facts.
DECEPTION AND FRAUD ON THE APPELLATE COURT:
Further, the Appellee went to a great length to discuss the “evil” of the
Appellant’s motion to recuse the trial Judge. Appellee Brief (“App. Br.”) p. 16-
17 but failed to mention that the Appellant’s motion to recuse titled Motion for
reconsideration. CR.158-166 which was served on the trial Judge in the same
manner that the Appellant served her with his first Motion to recuse and/or
disqualify. Compare the certificate of Service of CR.141-147 and CR.158-166.
The Trial Judge chose to act on the former but ignored the latter. The
Appellee omission to bring this to the attention of this Court was intended to 7 mislead and deceive the Appellate Court because it was intended to lead this
Court not to do justice but to a conclusion that fits Appellee’s narrative. App. Br.
P.28-32. His narrative being that the trial Court chose not to act because she was
not made aware of the second and appellant motion to recuse. FALSE
A mere looking at the certificate of service of both records will show that
the trial Judge was made aware of both motion in similar manner but chose to
ignore the later an option not available to her under the Rule. Grande Valley Gas
Co., 987 S.W.2d 167, 178-79 (Tex.App.-Corpus Christi 1999, no pet.); Carson v.
Gomez, 841 S.W.2d 491, 493 (Tex.App.-Houston [1st Dist.] 1992, no writ).
Further, the Appellee again attempted to mislead this Court when it stated
by implication that Diogu filed a partial Reporter’s record. App. Br. 23-29. The
Appellee Brief is very misleading, because the Appellant did not provide partial
reporter’s record in fact the Appellant indicated that the reporter’s record was
unnecessary. Appellant brief p.2. The deception was meant to lead this Court to
the false concussion that “In the absence of a complete Reporter’s Record, an
appellate court must presume that omitted portions of the record are relevant and
support the trial court’s judgment. Bennett v. Cochran, 96 S.W.3d 227, 228 (Tex.
2002)”.
The Appellee’s brief on this subject is self-defeating, because is he who
relies on a partial reporter’s record App. Br. P.39-43. The unintended 8 consequence should be that this Court must presume that the omitted portions of
the record by the Appellee are relevant and support Diogu’s statement that the
Reporter’s record is unnecessary to prosecute this appeal. Bennett v. Cochran, 96
S.W.3d 227, 228 (Tex. 2002)”.
PERSONAL OBSERVATION: Reading the deceptive and self-defeating Appellee’s Brief reminds me of a
famous statement attributed to the Esteem Harvard Law School professor Alan
Dershowitz. In that statement the Harvard Law School professor Alan
Dershowitz shares with his students a strategy for successfully defending cases.
He stated that if the facts are on your side, Dershowitz says, pound the facts into
the table. If the law is on your side, pound the law into the table. If neither the
facts nor the law are on your side, pound the table. The Appellee brief contain a
lot of table pounding.
ARGUMENT 1. THE APPELLANT’S BRIEF HAS AN “ARGUMENT” SECTION THAT CONTAIN A CLEAR AND CONCISE ARGUMENT FOR THE CONTENTIONS MADE, WITH APPROPRIATE CITATIONS TO AUTHORITIES AND TO THE RECORD. TEX. R. APP. P. 38.1(H), THE APPELLEE INABILITY TO COMPREHEND CLEAR AND CONCISE BASIC LOGICAL REASONING CONTAINED IN THE APPELLANT BRIEF IS IRRELEVANT.
An appellant’s brief must have an “Argument” section that “must contain
a clear and concise argument for the contentions made, with appropriate citations 9 to authorities and to the record.” TEX. R. APP. P. 38.1(h). We are “to construe the
Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal
is not lost by imposing requirements not absolutely necessary to effect the
purpose of a rule.” Republic Underwriters Ins. Co. v. Mex-Tex. Inc., 150 S.W.3d
423, 427 (Tex. 2004) (quoting Verburgt v. Dorner, 959 S.W.2d 615, 616–17
(Tex. 1997)). A brief is sufficient and does not waive an issue if it “contains all
points of error relied upon, argument and authorities under each point of error,
and all facts relied upon for the appeal with references to the pages in the record
where those facts can be found.” City of Arlington v. State Farm Lloyds, 145
S.W.3d 165, 167 (Tex. 2004) (quoting Weaver v. Sw. Nat’l Bank, 813 S.W.2d
481, 482 (Tex. 1991)). However, a brief that does not contain citations to
appropriate authorities and to the record for a given issue waives that issue.
Abdelnour v. Mid Nat’l Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App.—
Houston [1st Dist.] 2006, no pet.); see also San Saba Energy, L.P. v. Crawford,
171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (stating
that despite liberal interpretation of Rules of Appellate Procedure, “parties
asserting error on appeal still must put forth some specific argument and analysis
showing that the record and the law supports [sic] their contentions”). Id.
10 Here the Appellant’s brief contains all points of error relied upon,
argument and authorities under each point of error, and all facts relied upon for
the appeal with references to the pages in the record where those facts can be
found. See Appellant’s Brief generally.
2. APPELLEE’S DECISION TO PRESENT ONLY PARTIAL AND CHERRY PICKED2 REPORTER’S RECORD THAT SUPPORTS HIS POSITION RAISES THE PRESUMPTION TO SUPPORT THE APPELLANT’S CONTENTION THAT HE DID NOT ORDER THE REPORTER’S RECORD BECAUSE IT WAS “NOT NECESSARY AND NOT RELEVANT” TO THIS APPEAL. (APPELLANT’S BRIEF, P. 2) AND NOT RELEVANT TO THE PRESUMPTION TO AFFIRM THE TRIAL COURT’S JUDGMENT. Diogu states that he did not order the Reporter’s Record because it was
“not necessary and not relevant” to this appeal. (Appellant’s brief, p. 2).
Appellee disagreed, claiming falsely instead, “the omitted Reporter’s Record is
highly relevant because it raises a presumption in favor of the trial court’s
judgment. He stated that the trial court made a record for each of the hearings
Diogu complains of on appeal (i.e., plea to jurisdiction and motion for new trial)
and of the non-jury trial. CR 181-186; APP 2. See Appellee Brief App. Br. P.28-
32, (“APP. BR.”) Mind you that Diogu did not present a partial reporter’s record
2 Devious deception in displaying data: Cherry picking - Choosing to make selective choices among competing evidence, so as to emphasize those results that support a given position, while ignoring or dismissing any findings that do not support it, is a practice known as “cherry picking” and is a hallmark of poor science or pseudo-science. See Richard Somerville, American climate scientist, 2011. See also, When only select evidence is presented in order to persuade the audience to accept a position, and evidence that would go against the position is withheld…See URL, http://www.logicallyfallacious.com/index.php/logical-fallacies/66-cherry-picking. 11 at all and relied on conclusive evidence on the Clerk’s Record, was not
challenging the sufficiency of the evidence as to a jury’s verdict or judge’s
finding that was not based on conclusive evidence available on the case of
Clerk’s Record, or otherwise need to refer in my brief to testimony or argument
that was made in the trial court. See Appellant’s Brief generally. See also an
unpublished record of this Court in Benavente v. Granger (Tex.App.- Houston
[1st Dist.] Oct. 23, 2009) (Radack) (rear-end automobile collision, negligence
not established, take-nothing judgment affirmed, appeal on partial reporter's
record)
Further, The Appellee’s brief on this subject is self-defeating, because is
he who relies on a partial reporter’s record App. Br. App. Br. P.28-32, if – as the
Appellee suggests – in the absence of a complete reporter’s record, an appellate
court must presume that omitted portions of the record are relevant and support
the trial court’s judgment. It is self-defeating because it was the appellee not the
Appellant that relied on a partial reporter’s report to his advantage. Where a
party presents only a partial reporter’s record, Texas courts are required to, and
will, presume that the omitted portions of the record support’s Diogu statement
that he did not order the Reporter’s Record because it was “not necessary and not
relevant” to this appeal. (Appellant’s brief, p. 2).See App. Br. 39-43. See also,
12 Bennett v. Cochran, 96 S.W.3d 227, 228 (Tex. 2002); Feldman v. Marks, 960
S.W.2d 613, 614 (Tex. 1996); Christiansen v. Prezelski, 782 S.W.2d 842, 843
(Tex. 1990). See also, Barber v. United Airlines, Inc., 17 Fed.Appx. 433, 437
(7th Cir. 2001) (affirming exclusion of “cherry-picking” expert witness who
failed to explain why he ignored certain data while accepting others)
This Court should presume that the Reporter’s record is not necessary and
not relevant” to this appeal and do not support the trial court’s judgment or the
affirmance of that judgment
3. IT IS UNCONTROVERTED THAT THE APPELLANT WAS NOT SENT NOR DID HE RECEIVE THE NOTICE OF TRIAL SETTING NOR WAS THERE AN ANNOUNCEMENT IN OPEN COURT BY THE TRIAL JUDGE IN THE PRESENCE OF THE APPELLANT OF A TRIAL SETTING NOT LESS NON-JURY TRIAL
The Texas Rules of Civil Procedure require notice of the trial setting to be
sent by personal service, courier receipted delivery, certified or registered mail,
fax, or by any other manner as the trial court in its discretion may direct. Tex. R.
Civ. P. 21a. Under Rule 21a, if notice of the hearing is properly addressed and
mailed, postage prepaid, a presumption arises that the notice was properly
received by the addressee. Tex. R. Civ. P. 21a; Cliff v. Huggins, 724 S.W.2d
778, 780 (Tex. 1987); Graham-Rutledge & Co., Inc. v. Nadia Corp., 281 S.W.3d
683, 691 (Tex. App.-Dallas 2009, no pet.). Once a defendant has made an
13 appearance in a cause, he is entitled to notice of the trial setting as a matter of
Fourteenth Amendment due process. LBL Oil Co. v. Int'l Power Servs, 777
S.W.2d 390, 390-91 (Tex. 1989).
Despite, his reliance on a partial reporter’s record, App. Br. 39-43, there is
no evidence on the record that controverts the fact that the appellant was not
served with nor did he receive any notice of trial setting nor was there an
announcement in open court by the trial judge in the presence of the appellant of
a trial setting not less non-jury trial. See Cliff v. Huggins, 724 S.W.2d 778, 779
(Tex. 1987) (uncontroverted evidence from defendant and his attorney that they
did not receive notice of trial setting). See also, Lopez v. Lopez, 757 S.W.2d 721,
723 (Tex. 1988) (per curiam) (applied Peralta to case where there was no notice
of hearing). A party who has made an appearance in a cause is entitled to notice
of a trial setting as a matter of due process under the Fourteenth Amendment of
the Federal Constitution. LBL Oil Company v. International Power Services,
Inc., 777 S.W.2d 390, 390-91 (Tex.1989); Lopez v. Lopez, supra..
4. APPELLANT WAS ENTITLED TO A JURY TRIAL
I. APPELLANT COMPLIED WITH RULE 216 OF THE TEXAS RULES OF CIVIL PROCEDURE
14 While a right to a jury trial is constitutionally protected, the right to a jury
trial in a civil case is not self-executing. To invoke that right, a party must
comply with Rule 216 of the Texas Rules of Civil Procedure by filing a written
demand for a jury and paying the appropriate fee a reasonable time before the
date set for trial of the cause on the non-jury docket, but not less than thirty (30)
days in advance. Tex. R. Civ. P. 216; See also, In re M.P.B., 257 S.W.3d 804,
811 (Tex. App.―Dallas, 2008, no pet.).
It is uncontroverted that the Appellant invoked that right, a party and
complied with Rule 216 of the Texas Rules of Civil Procedure. App. Br. P.34-35.
II. DIOGU PRESERVED HIS ERROR IN HIS MOTION FOR NEW TRIAL.
Judicial economy requires that a trial court have the opportunity to correct
an error before an appeal proceeds. See also, In re C.O.S., 988 S.W.2d 760, 765
(Tex. 1999). "As a prerequisite to presenting a complaint for appellate review,
the record must show that: (1) the complaint was made to the trial court by a
timely request, objection, or motion. See also, Cecil v. Smith, 804 .S.2d. 509,
910-11, (Tex. 1991), Tex. R. App. P. 33.1. Tex. R. Civ. P. 324 (b). Moreover, in
her motion for new trial, Benavente argued that “the evidence presented at trial
conclusively proved that defendant acted negligently, therefore, the jury's
findings were against the great weight and preponderance of the evidence.” Thus,
15 Benavente's factual sufficiency challenge is preserved. See Tex. R. Civ. P.
324(b)(2) See Appellant motion for New Trial Appellant Brief at 46. 2SCR04-35
III. DIOGU’S NON SUITS DID NOT EXTINGUISHED HIS FIRST JURY DEMAND AND FEES PAID
It is well established the the right to jury trial is an individual right that
attaches on the person as long as the person is exposed to any form penalty under
that cause number until the case is finally disposed. It is also well established
that a jury trial of a lawsuit or criminal prosecution in which the case is presented
to a jury and the factual questions and the final judgment are determined by a
jury. It also established that pleadings filed by a non-movant prior to the non-
suit survive the effect of the motion as such the nonsuit does not extinguish the
case or controversy filed against the movant as such the case is not final as to the
movant. See Villafani v. Trejo, 251 S.W.3d 466, 468 (Tex. 2008).
It is also established that the case was not final when Diogu’s affirmative
claims were extinguished by his two non-suit against two defendants because it
did not dispose the claims filed against him nor the entire lawsuit. Id
Since Diogu was still subject to a trial under this cause number until the
case becomes final his right to a jury trial survived the partial resolution of the
case as to two defendants.
16 Furthermore, it is interesting that the Appellee’s does not cite any case law
that supports his contention that the right of a jury trial is extinguished when the
nonsuit does not dispose of the entire cause.
IV. DIOGU MADE A JURY DEMAND AND JURY FEE WHEN HE FILED HIS CASE ON OR ABOUT MARCH 08TH, 2013 AND THE APRIL 2ND 2014 PAYMENT BY AN OFFICE STAFF WAS CUMULATIVE AND MADE INADVERTENTLY
It is well established and uncontroverted that Diogu filed his original
petition for divorce including a jury demand on or about March 08th, 2013. It is
also uncontroverted that Diogu paid $323.00 for the filing with $275.00 and
$48.00 being other fees presumably including a jury fees of $32.00 and other
fees on the same day. The Court should take judicial notice of the 387th Fort
Bend County Judicial District record. See URL: http://tylerpaw.co.fort-
bend.tx.us/CaseDetail.aspx?CaseID=1264163 which also part of the record on Appeal. As shown
above, since the Appellant made a timely jury demand and paid the required jury
fees, and nothing in the record shows that he waived his right to jury trial he is
entitled to jury trial as a matter of right.
5. THE TRIAL COURT ERR WHEN SHE CONTINUED TRIAL AFTER SHE WAS SERVED WITH THE APPELLANT MOTION FOR RECONSIDERATION ON APPELLANT’S MOTION TO RECUSE OR DISQUALIFY
17 It is Uncontroverted that the trial Court was served with both motions to
recuse as required by law but she chose to do nothing with the later. She refused
to recuse herself in the first one and forwarded the case to the recusal Court but
did nothing when she was served in the same manner with second recusal
motion. Compare the certificate of Service of CR.141-147 and CR.158-166.
The Appellee does no dispute the fact that the Trial Judge did nothing an option
not available to her when she was served with second motion to recuse and/or
motion for reconsideration. App. Br. 26-33. Because the trial court did nothing as
required by law this Court shod declare the Judgment void.
6. THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION OVER THE PROPERTY DESCRIBED AS LOT TWENTY THREE (23) IN BLOCK ONE (1) OF CINCO RANCH GREENWAY VILLAGE, SECTION NINE (9), A SUBDIVISION IN FORT BEND COUNTY, TEXAS ACCORDING TO THE MAP OR PLAT THEREOF RECORDED UNDER SLIDE NO (S) 1550/B, 1551/A AND 1551/B OF THE PLAT RECORD OF FORT BEND COUNTY, TEXAS. TAB A.18-19 2SCR.21-22 AT THE TIME OF THE TRIAL
The trial Court lacked subject matter jurisdiction on all issue relating to
and arising from the property above including the Lis Pendens which was moot
at the time the Appellee filed suit and because the Appellee lacked standing to
raise any issue relating to the property belonging to Atty. Chang Lee described as
Lot Twenty Three (23) in Block One (1) of Cinco Ranch Greenway Village, Section
Nine (9), A Subdivision in Fort Bend County, Texas According to the Map or Plat
18 Thereof Recorded Under Slide No (s) 1550/B, 1551/A and 1551/B of the Plat
Record of Fort Bend County, Texas. TAB A.18-19 2SCR.21-22at the time of the
trial in this case.
The law of standing has its roots in Article III’s case and controversy
requirement See Summers v. Earth Island Institute, 555 U.S. 488, 492-93 (2009);
DaimlerChrysler Corporation v. Cuno, 547 U.S. 332, 340-41 (2006). The U.S.
Supreme Court has established a three-part test for standing. The “irreducible
constitutional minimum of standing” requires the plaintiff to establish:
First ... an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent,” not “conjectural” or “hypothetical.” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Summers, 555 U.S. at 493.
While the standing test is easily stated, it can be difficult to apply. The
Supreme Court has observed that “[g]eneralizations about standing to sue are
largely worthless as such. See Association of Data Processing Service
Organizations Incorporated v. Camp, 397 U.S. 150, 151 (1970). The U.S.
Supreme Court also imposes “prudential” limitations on standing to ensure
sufficient "concrete adverseness." United States v. Windsor, 133 S. Ct. 2675,
2687 (2013) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). See, e.g., Elk 19 Grove Unified School District v. Newdow, 542 U.S. 1 (2004) (relying on
principles of prudential standing to deny standing to student’s father who sought
to challenge requirement that his daughter recite Pledge of Allegiance, when
father’s right to act on his daughter’s behalf was founded on disputed issues of
state family law).
These include limitations on the right of a litigant to raise another person’s
legal rights, a rule barring adjudication of generalized grievances more
appropriately addressed legislatively, and the requirement that a plaintiff’s
complaint must fall within the zone of interests protected by the statute at issue. 3
The Supreme Court has made it clear that the burden of establishing
standing rests on the plaintiff. DaimlerChrysler, 547 U.S. at 342, n.3; FW/PBS
Incorporated v. Dallas, 493 U.S. 215, 231 (1990). At each stage of the
litigation—from the initial pleading stage, through summary judgment, and
trial—the plaintiff must carry that burden See Defenders of Wildlife, 504 U.S. at
561. Standing must exist on the date the complaint is filed and throughout the
3 The Supreme Court examined the distinction between Article III and prudential limitations on standing in the unusual context presented in Windsor, the recent case that invalidated the Defense of Marriage Act. There, the Supreme Court held that the United States had standing to appeal a trial court’s decision to require it to pay a tax refund although it refused to defend the statute on which it had denied and continued to deny the request for refund. The Court further held that the importance of the issues, the prospect of time-consuming and costly litigation over DOMA were the appeal dismissed, and the presentation by a Congressional group that intervened to support the constitutionality of DOMA counseled against dismissing the appeal on prudential grounds. Windsor, 133 S. Ct. at 2684–89.
20 litigation. Davis v. Federal Election Commission, 554 U.S. 724, 734 (2008).
Moreover, standing cannot be conferred by agreement and can be challenged at
any time in the litigation, including on appeal, by the defendants or, in some
circumstances, by the court sua sponte. Finally, plaintiffs must demonstrate
standing for each claim and each request for relief.. Monsanto Company v.
Geerston Seed Farms, 130 S. Ct. 2743, 2754 (2010) (plaintiffs must demonstrate
standing to pursue each form of relief sought); Davis, 554 U.S. at 734; City of
Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). Further, there is no
“supplemental” standing: standing to assert one claim does not create standing to
assert claims arising from the same nucleus of operative facts. Daimler Chrysler,
547 U.S. at 353.
Clearly in this case, the property at issue belonged to Attorney Chang Lee,
who was not a party to this lawsuit. It is only Attorney Lee that can bring a
damage claim on his property. According to the US Supreme Court the Appellee
is barred from raising Attorney Chang Lee’s legal rights as she did in the lower
Court.
Accordingly, the Appellee lacked standing bring the alleged wrongful Lis
Pendens action on the property belonging to Attorney Chang Lee. Further, the
Appellee had no standing on the day of the trial to raise any issue relating to
damages on the property which she had no right to raise. 21 Further, the entire counterclaim should fail because it all it arose from the
same nucleus of operative facts – allegation of wrongful Lis Pendens to which
the Appellee had not standing. Daimler Chrysler, 547 U.S. at 353.
CONCLUSION AND PRAYER
For the reasons set forth herein, Appellant prays this case be reversed and
remanded for a new trial; or in the alternative, reversed and remanded for a
dismissal with Prejudice and for such other relief as he may show himself
deserving at law or in equity.
Respectfully submitted,
By: _/S/Diogu Kalu Diogu ii_ Diogu Kalu Diogu II, LL.M. State Bar No. 24000340 P. O. Box 994, Fulshear, Texas 77441 Telephone (713) 791 3225 Telecopier (832) 408 7611
CERTIFICATE OF SERVICE
I, Diogu Kalu Diogu II, LL.M, attorney for the Appellant, do hereby
certify that a true and correct copy of the above and foregoing Brief of the
Appellant has been delivered to the following parties:
Deposited in first class U.S. mail addressed to:
Mario Martinez Law Offices of Mario A Martinez PLLC, 23123 Cinco Ranch Blvd #208, 22 Katy TX 77494
May 05th, 2015
By: _/S/Diogu Kalu Diogu ii_ Diogu Kalu Diogu II, LL.M. State Bar No. 24000340 P. O. Box 994, Fulshear, Texas 77441 Telephone (713) 791 3225 Telecopier (832) 408 7611