ACCEPTED 14-15-00223-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 3/16/2015 6:45:48 PM CHRISTOPHER PRINE CLERK
NO. 14-1S-00223-CV
FILED IN 14th COURT OF APPEALS IN THE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 3/16/2015 6:45:48 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk
IN RE KATHERINE MILLIKEN
~ELATORS
PETITION FOR WRIT OF MANDAMUS
On Petition For A Writ Of Mandamus From Cause No. 2011-68872 From The 215th Judicial District Court of Harris Co~nty, Texas (The Honorable Judge Elaine Palmer)
Katherine Milliken P.O. Box 131454 Houston, Texas 77219 Telephone: (713) 775-6874
PROSE IDENTITY OF PARTIES AND COUNSEL
Relators: Katherine Milliken
Respondent: Honorable Judge Elaine Palmer sitting for 21Sth District Court Harris County, Texas.
Real Parties in Interest: Michael Turoff
Counsel for Relator Katherine Milliken:
Katherine Milliken P.O. Box 1314S4 Houston, Texas 77219 Phone: 713-775-6874
Pro Se
-2- TABLE OF CONTENTS
STATEMENT OF THE CASE......................................................•.....•..........•..................•........•....... 5
STATEMENT OF JURISDICTION 6
ISSUES PRESENTED 7
STATEMENT OF FACTS 8
SUMMARY OF ARGUMENT 9
ARGUMENT 10
I. MANDAMUS RELIEF IS PROPER 10
II. THE TRIAL COURT DEPRIVED RELATORS OF THEIR RIGHTS UNDER THE OPEN COURT
PROVISIONS AND THE UNITED STATES CONSTITUTION.
III. PRAyER 11
-3- TABLE OF AUTHORITIES
STATE CASES
-4- STATEMENT OF THE CASE
The original proceeding seeks to remedy serious denials of due process and substantive violations of the United States and Texas Constitutions that have denied the Relator equal protection under the law.
On May 2, 2014, Plaintiff Katherine Milliken deposited $25,921.68 in the Court's Registry pending appeal. (See Exhibit 1) On May 2, 2014, Katherine Milliken filed for and was granted a Temporary Restraining Order against Michael Turoff and his attorney Michael West. Turoff and West had attempted to illegally sell a commercial property owned by Katherine Milliken. The Court ruled that Michael Turoff and his attorney Michael West were to cease all illegal activities, granted Katherine Milliken's Motion for a TRO and scheduled the Injunction hearing for May 16, 2014 in the 270th Judicial Court of Harris County, Texas. On May 16, 2014, the hearing was held and the Court granted the Injunction. The Injunction stated that Michael West and Michael Turoff were prohibited from attempting to remove the funds deposited by Katherine Milliken in the Court Registry until such time that the entire appellate process has been exhausted. The entire appellate process includes the Supreme Court of the United States. (See Exhibit Z)
In violation of the Injunction Order Michael Turoff filed a Motion to withdraw the funds and/or have the funds released from the Registry of the Court. Turoff set a hearing for February 27, 2015. On February 27, 2015 Katherine Milliken presented the court her Notice of Appeal to the Supreme Court of the United States and provided the Court supporting documentation regarding the Injunction that was granted on May 16, 2014. The Judge passed the hearing and reset the hearing for 8:30 a.m. March 13, 2015. On March 13, 2015 Katherine Milliken appeared for the hearing at 8:30 a.m. The opposing counsel and Judge appeared for the hearing almost 1 hour late. The Judge and opposing counsel Michael West did not offer an apology or explanation for their late arrival.
Katherine Milliken presented evidence that she had filed Notice of Appeal to the Supreme Court of the United States and showed the Court the packet Milliken had received from the U.S. Supreme Court. Milliken showed the Court that her deadline for filing her Writ of Certiorari is April 29, 2015. In addition, Milliken stated that if the Court granted the Order releasing
-5- and illegally granted the Order to release Milliken's Milliken's funds from the court registry that the Order would be a violation of the Injunction that was granted on May 16, 2014. The Court ignored Milliken's evidence and testimony andwrongfully funds to Michael West and Michael Turoff. (See Exhibit 3)
In addition, Katherine Milliken had filed a Motion for Contempt of Court. The Court ignored Milliken's Motion and told Milliken that if she wanted to stop Michael Turoff and Michael West from removing her funds from the registry of the court that Milliken would have to hurry up and file the Writ of Certiorari. The Court committed error when in violation of the Injunction the Court ruled to release the funds. The Injunction Order specifically states: "Ordered that the Harris County District Clerk shall retain the said $2S,921.68 in the Court's Registry until further Order of this Court." This Court is the 270th Judicial Court not the 21Sth Judicial Court.
STATEMENT OF JURISDICTION
This Court has jurisdiction to grant this petition for writ of mandamus under Section 22.22(b) of the Texas Government Code.
-6- ISSUES PRESENTED
1. Whether Respondent violated Texas and United States Constitutional rights by entering an order without holding a full adversary hearing and making individualized findings of fact.
2. Whether Respondent erred as a matter of law by ignoring the Injunction granted Milliken on May 16, 2014 that prohibited Turoff from attempting to withdraw the funds from the Court's Registry until the appellate process was exhausted.
3. Whether Respondent erred as a matter of law by signing the Order to release the funds when Milliken has filed her Notice of Appeal to the Supreme Court of the United States and has until April 29, to file her Writ of Certiorari.
4. Whether Respondent erred in denying Milliken equal protection under the Constitution when there is no precedence for Michael West attorney for Turoff to testify before the Court that Katherine Milliken has no right to appeal to the Supreme Court of the United States.
-7- STATEMENT OF FACTS
On May 16, 2014 Katherine Milliken was granted an Injunction that prohibited Michael Turoff and/or Michael West from attempting to withdraw the funds deposited by Milliken from the Court's Registry. The case no. 14-13-00710 CV is presently on appeal to the Supreme Court of the United States. Katherine Milliken filed her Notice of Appeal in a timely manner and she has until April 29, 2015 to file the Writ of Certiorari.
The Court ignored the Injunction and ruled in error granting Michael Turoff and Michael West the ability to withdraw the funds immediately. Michael Turoff and Michael West should have been found in contempt of Court for filing the Motion To Withdraw The Funds in violation of the Court Ordered Injunction that specifically speaks to the fact that the funds will not be released until the appellate process has been exhausted.
-8 SUMMARY OF ARGUMENT
Ostensibly, the hearing's purpose was to determine if the case is on appeal and within the
appellate dates and guidelines. The appellate process will not be exhausted until April 29, 2015 if
Katherine Milliken does not file the Writ of Certiorari in a timely manner. If the Writ of Certiorari
is filed prior to April 29/ 2015 the appellate process will continue until such time that the
Supreme Court of the United States makes a ruling.
-9- ARGUMENT
I. MANDAMUS RELIEF IS PROPER
Mandamus is proper to correct an error of law of a clear abuse of discretion where an
appellate remedy is unavailable or inadequate. In re Prudential. 148.S.W. 3d124. 136 (Tex.
2004).
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ACCEPTED 14-15-00223-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 3/16/2015 6:45:48 PM CHRISTOPHER PRINE CLERK
NO. 14-1S-00223-CV
FILED IN 14th COURT OF APPEALS IN THE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 3/16/2015 6:45:48 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk
IN RE KATHERINE MILLIKEN
~ELATORS
PETITION FOR WRIT OF MANDAMUS
On Petition For A Writ Of Mandamus From Cause No. 2011-68872 From The 215th Judicial District Court of Harris Co~nty, Texas (The Honorable Judge Elaine Palmer)
Katherine Milliken P.O. Box 131454 Houston, Texas 77219 Telephone: (713) 775-6874
PROSE IDENTITY OF PARTIES AND COUNSEL
Relators: Katherine Milliken
Respondent: Honorable Judge Elaine Palmer sitting for 21Sth District Court Harris County, Texas.
Real Parties in Interest: Michael Turoff
Counsel for Relator Katherine Milliken:
Katherine Milliken P.O. Box 1314S4 Houston, Texas 77219 Phone: 713-775-6874
Pro Se
-2- TABLE OF CONTENTS
STATEMENT OF THE CASE......................................................•.....•..........•..................•........•....... 5
STATEMENT OF JURISDICTION 6
ISSUES PRESENTED 7
STATEMENT OF FACTS 8
SUMMARY OF ARGUMENT 9
ARGUMENT 10
I. MANDAMUS RELIEF IS PROPER 10
II. THE TRIAL COURT DEPRIVED RELATORS OF THEIR RIGHTS UNDER THE OPEN COURT
PROVISIONS AND THE UNITED STATES CONSTITUTION.
III. PRAyER 11
-3- TABLE OF AUTHORITIES
STATE CASES
-4- STATEMENT OF THE CASE
The original proceeding seeks to remedy serious denials of due process and substantive violations of the United States and Texas Constitutions that have denied the Relator equal protection under the law.
On May 2, 2014, Plaintiff Katherine Milliken deposited $25,921.68 in the Court's Registry pending appeal. (See Exhibit 1) On May 2, 2014, Katherine Milliken filed for and was granted a Temporary Restraining Order against Michael Turoff and his attorney Michael West. Turoff and West had attempted to illegally sell a commercial property owned by Katherine Milliken. The Court ruled that Michael Turoff and his attorney Michael West were to cease all illegal activities, granted Katherine Milliken's Motion for a TRO and scheduled the Injunction hearing for May 16, 2014 in the 270th Judicial Court of Harris County, Texas. On May 16, 2014, the hearing was held and the Court granted the Injunction. The Injunction stated that Michael West and Michael Turoff were prohibited from attempting to remove the funds deposited by Katherine Milliken in the Court Registry until such time that the entire appellate process has been exhausted. The entire appellate process includes the Supreme Court of the United States. (See Exhibit Z)
In violation of the Injunction Order Michael Turoff filed a Motion to withdraw the funds and/or have the funds released from the Registry of the Court. Turoff set a hearing for February 27, 2015. On February 27, 2015 Katherine Milliken presented the court her Notice of Appeal to the Supreme Court of the United States and provided the Court supporting documentation regarding the Injunction that was granted on May 16, 2014. The Judge passed the hearing and reset the hearing for 8:30 a.m. March 13, 2015. On March 13, 2015 Katherine Milliken appeared for the hearing at 8:30 a.m. The opposing counsel and Judge appeared for the hearing almost 1 hour late. The Judge and opposing counsel Michael West did not offer an apology or explanation for their late arrival.
Katherine Milliken presented evidence that she had filed Notice of Appeal to the Supreme Court of the United States and showed the Court the packet Milliken had received from the U.S. Supreme Court. Milliken showed the Court that her deadline for filing her Writ of Certiorari is April 29, 2015. In addition, Milliken stated that if the Court granted the Order releasing
-5- and illegally granted the Order to release Milliken's Milliken's funds from the court registry that the Order would be a violation of the Injunction that was granted on May 16, 2014. The Court ignored Milliken's evidence and testimony andwrongfully funds to Michael West and Michael Turoff. (See Exhibit 3)
In addition, Katherine Milliken had filed a Motion for Contempt of Court. The Court ignored Milliken's Motion and told Milliken that if she wanted to stop Michael Turoff and Michael West from removing her funds from the registry of the court that Milliken would have to hurry up and file the Writ of Certiorari. The Court committed error when in violation of the Injunction the Court ruled to release the funds. The Injunction Order specifically states: "Ordered that the Harris County District Clerk shall retain the said $2S,921.68 in the Court's Registry until further Order of this Court." This Court is the 270th Judicial Court not the 21Sth Judicial Court.
STATEMENT OF JURISDICTION
This Court has jurisdiction to grant this petition for writ of mandamus under Section 22.22(b) of the Texas Government Code.
-6- ISSUES PRESENTED
1. Whether Respondent violated Texas and United States Constitutional rights by entering an order without holding a full adversary hearing and making individualized findings of fact.
2. Whether Respondent erred as a matter of law by ignoring the Injunction granted Milliken on May 16, 2014 that prohibited Turoff from attempting to withdraw the funds from the Court's Registry until the appellate process was exhausted.
3. Whether Respondent erred as a matter of law by signing the Order to release the funds when Milliken has filed her Notice of Appeal to the Supreme Court of the United States and has until April 29, to file her Writ of Certiorari.
4. Whether Respondent erred in denying Milliken equal protection under the Constitution when there is no precedence for Michael West attorney for Turoff to testify before the Court that Katherine Milliken has no right to appeal to the Supreme Court of the United States.
-7- STATEMENT OF FACTS
On May 16, 2014 Katherine Milliken was granted an Injunction that prohibited Michael Turoff and/or Michael West from attempting to withdraw the funds deposited by Milliken from the Court's Registry. The case no. 14-13-00710 CV is presently on appeal to the Supreme Court of the United States. Katherine Milliken filed her Notice of Appeal in a timely manner and she has until April 29, 2015 to file the Writ of Certiorari.
The Court ignored the Injunction and ruled in error granting Michael Turoff and Michael West the ability to withdraw the funds immediately. Michael Turoff and Michael West should have been found in contempt of Court for filing the Motion To Withdraw The Funds in violation of the Court Ordered Injunction that specifically speaks to the fact that the funds will not be released until the appellate process has been exhausted.
-8 SUMMARY OF ARGUMENT
Ostensibly, the hearing's purpose was to determine if the case is on appeal and within the
appellate dates and guidelines. The appellate process will not be exhausted until April 29, 2015 if
Katherine Milliken does not file the Writ of Certiorari in a timely manner. If the Writ of Certiorari
is filed prior to April 29/ 2015 the appellate process will continue until such time that the
Supreme Court of the United States makes a ruling.
-9- ARGUMENT
I. MANDAMUS RELIEF IS PROPER
Mandamus is proper to correct an error of law of a clear abuse of discretion where an
appellate remedy is unavailable or inadequate. In re Prudential. 148.S.W. 3d124. 136 (Tex.
2004). The Texas Supreme Court has made it clear in recent years that the remedy should be
more freely available, particularly where an important legal issue is involved. Id.
II. THE TRIAL COURT DEPRIVED RELATOR OF HER RIGHTS UNDER CONSTITUTIONAL LAW
Realtor is guaranteed equal protection under the State and United States Constitution.
A. The Hearing of March 13, 2015 Denied Relator Due process.
The Court denied the Relator due process when it prevented her from meaningful participation in the
hearing.
-10- PRAYER
Relator prays that the Court grant this Petition and order Respondent to vacate the
Order that grants the release of the funds from the Court Registry. In addition, Relator prays
that the Court uphold the Injunction that was granted Katherine Milliken on May 16, 2014 and
award all other relief as the Court deems just and proper.
Respectfully submitted,
~~::Zl-P.O. Box 131454 Houston, Texas 77219 Phone: 71~-775-6874
-11- VERIFICATION
Before me, came Katherine Milliken, who being a person known to me stated that she
has read the foregoing petition and the facts stated within that are not verified by the record
are true and correct to the best of her knowledge, and the exhibits filed separately in an
appendix to this petition are true and correct copies of the original documents.
SWORN TO BEFORE ME ON THIS 13th day of March, 2015
-
-12- CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on counsel Michael
West via United States Certified Mail, Return Receipt Requested.
~lIiken_.../
13 APPENDIX
1. Receipt of Deposited Funds
2. Order Granting Injunction
3. Order For Withdrawal of Funds From The Court Registry
-14- -,- .,_, ,.. .:5 '", <;: 0 ~ ~ ~ 1.J ~ ~ <: ~"'" ('-._) , \",. ~
~LO '- ' I -r !, ~ 11' "'"]. \,.J ~.,._ V I 0 0 .D $J "" I, _J -"\ c::S ~ '>- ::::> Ij .0 r ,""\ c.) 0 'd .2 RECORDER'S MEMORANDUM This mstrurnenns of poor quaIlly allhe lime of Imaging
CAUSE NO. 2014-24796
KATHERINE MILLIKEN § § VS. § § MICHAEL WEST, et a1. § 270TH JUDICIAL DISTRI
ORDER ON SUPERSEDEOUS BOND PENDING APPEAL
BE IT REMEMBERED that on May 16, 2014, Plaintiff, Katherine Milliken's request for Temporary Injunction was considered by the Court. Based upon agreement of the parties present,
the Court
ORDERS, ADJUDGES and II,... f'FLES that the $25,921.68, currently in the Court's
Registry, which was deposited by Katherine Milliken on or about May 2, 2014, and which is reflected in the Harris County District Clerk's Official Receipt No. 13804, shall remain in the
Court's Registry, until further Order of this Court. p\~ ;,,\o.}\..... ~ 't;~ r: ,I Dot ~ ceo r: J' 'f' I' I~'" of {>n:>C(!'SS The said $25,921.68 shall sar'\'8 QS a sup~sedous bond, pending the appeal'bfthe Judgment
rendered on or about May 13, 2013 in favor of Michael Turoff in Cause No. 2011-68872, pending
in the 2151h Judicial District Court, and which is currently on appeal in the Fourteenth Court of Appeals. Therefore, neither Michael Turoff nor his agent/attorney shall make any further attempts to collect on the said Judgment rend ered in his favor under Cause No. 2011-68872, pending in the
215'h Judicial District Court, until further Order of this Court It is further
ORDERED that the Harris County District Clerk shall retain the said $25,921.68 in the
Court s Registry until further Order o f this Court, I
Signed this May j_(P_, 2014. 212120159:41:17 AM Chris Daniel - District Clerk Harris County Envelope No: 3978031 By:SPENCER,JEANETTA CAUSE NO. 2011-,68872 Filed: 212120159:41 :17 AM
MICIlAEL TUROFF § § IN THEDISTI,UCT(;OUilT OF ~isFX VS. § 2lSTH JUDICIAL DISTRICT § KATHEIDNE J\'llLLIKEN § HARRIS COUNTY, TEXAS
. 'It is hereby ORDERED, . ORDE~ ADJUDGED and DECREED that Chri~el. ~ * District-Clerk of Harris County, Texas pay over and deliver to Michael 'Iuroff, thoe~cipal sum of Twenty Five Thousand. Nine Hundred Twenty-One and 68/100 ($25,921.~lus anyaccrued interest thereon held in theRegistry of'this Court for his account ~~ Final Judgment rendered in this case, and any Orders of this Court issuedthereund~r~ thatthe District Clerk shall be relieved and held harmless from any and all liability ar~ in connection. with such account upon taking Applicant's Receipt therefore. Qrflij; 111- AA~f'""" V Signed on this /3 I day of Pebmary. 20~ _-::#"'''--...
HO. O~LR Et,AIN:E PALMER. PRESij)ING runGE: _.
RECORDER'S MEMORANDUM ThlS instrument is of poor quality at the time of Imaging