ACCEPTED 01-13-01061-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 4/17/2015 5:47:11 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 4/17/2015 5:47:11 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 EMERGENCY MOTION FOR STAY PENDING APPEAL AND PLEA TO JURISDICTION __________________________________________
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 ChristinaW@WaniesGuirgisPLLC.com
1 ATTORNEY FOR APPELLANT, MIRIAM BLANK 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: Golda Jacob
2 440 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
3 This motion is brought by Miriam Blank, Appellant, who shows in support:
I. INTRODUCTION
In connection with Appellant’s appeal currently pending in this Court,
Appellant moves this Court to stay the district court proceedings pending appeal.
The Supreme Court has recognized that the filing of an appeal automatically
divests the district court of jurisdiction over those aspects of the case involved in
the appeal. Coastal Corp. v. Texas Eastern Corp., 869 F.2d 817, 821 (1989).
If Appellant is forced to incur the expense of litigation before her appeal is
decided upon, the appeal will be moot. Appellant’s appeal (i) raises serious legal –
procedural and substantive due process – issues, (ii) Appellant will be irreparably
harmed without a stay of this proceeding pending an appeal, (iii) Appellee will not
be substantially harmed by the granting of a stay, and (iv) the public interest in
conserving judicial resources weigh in favor of granting the stay.
II. FACTUAL BACKGROUND
1. On July 18, 2014, Appellant filed with the Court of Appeals an appeal
from an order granted by the 246th Judicial District Court of Harris County, Texas.
4 2. On or about January 2015, Appellee, Jack Nuszen, filed a Petition to
Modify the Parent-Child Relationship with the 246th Judicial Court, and
successfully obtained a Temporary Restraining Order (TRO) against the Appellant
claiming emotional abuse without any details into these claims.
3. On or about March 12, 2015, a hearing before Judge Charley Prine
occurred, extending the TRO, although the Appellant was never served or given
proper notice. Appellant found out after the hearing had occurred. On the docket,
there is an alternative service dated March 7, 2015 for the hearing scheduled on
March 12, 20151, which is only five days before the ten day mandatory notice
requirement.
4. The Appellant was working out of town at this time and was never
informed or served. The ex-parte TRO was not supported or predicated by any
verified pleadings and/or supporting affidavits on file with the court. Without any
notice, the court issued a writ of attachment for the children based on a motion
filed by Appellee’s attorney asserting without elaboration that the children were
being illegally restrained by the Appellant. At the time of Judge Charley Prine’s
ruling, there was no evidence that all the children were being restrained illegally.
In fact, the Appellee had not exercised his visitation and/or custody of the older
children since 2010, when they were hospitalized for abuse by the Appellee.
1 See Exhibit A: Screenshot of the Harris County District Clerk Online Docket.
5 5. On or about March 31, 2015, Appellant’s oldest, adult child, who was
a subject of the order on appeal, filed with the United States Federal Court in and
for the Southern District of Texas, two petitions against Jack Nuszen, the Plaintiff-
Appellee in this pending appeal.
6. Appellant has mailed complaints, regarding the Appellee’s course of
action and the Trial Court’s misconduct towards the pending case, with the State
Commission on Judicial Misconduct, the Federal Bureau of Investigation, the
Harris County District Attorney’s Office, the Department of Justice, and several
other federal and state agencies. Furthermore, Appellant has filed a Motion for
Recusal of Judge Charley Prine on April 17, 2015.
7. Appellant seeks an immediate stay pending appeal of the above
mentioned cause.
III. ARGUMENT AND AUTHORITIES
A court should stay its judgment pending appeal where the moving party can
demonstrate that: (1) it is likely to succeed on the merits; (2) it would suffer
irreparable injury if the stay were not granted; (3) granting the stay would not
substantially harm the other parties; and (4) granting the stay would serve the
public interest Hilton v. Braunskill, 481 U.S. 770, 776 (1987). This test is flexible
and allows a movant to obtain a stay pending appeal by showing “a substantial
case on the merits when a serious legal question is involved” and that “balance of
6 the equities weighs heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d
555, 556 (5th Cir. 1981). The probability of success that must be demonstrated is
inversely proportional to the amount of irreparable injury plaintiff will suffer
absent the stay.
Although the Appellant respects this Court and its decision, the Appellant
nevertheless believes that the Court of Appeals is likely to disagree with the
judgment rendered by the District Court. Further, the harms imposed on Appellant
and her children, should the District Court be permitted to further hear the
modification case, are unduly irreparable because they will be forced to adhere to
the District Court’s biased rulings ordering unfavorable custody and child support
obligations, and will further be undone by a favorable ruling on appeal. In addition,
the appeal has been pending for nearly nine (9) months, thereby forcing Appellant
to expend time and money in fighting for custody of her children in the District
Court. Additionally, no harm will befall the Appellee if the District Court’s
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ACCEPTED 01-13-01061-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 4/17/2015 5:47:11 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 4/17/2015 5:47:11 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 EMERGENCY MOTION FOR STAY PENDING APPEAL AND PLEA TO JURISDICTION __________________________________________
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 ChristinaW@WaniesGuirgisPLLC.com
1 ATTORNEY FOR APPELLANT, MIRIAM BLANK 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: Golda Jacob
2 440 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
3 This motion is brought by Miriam Blank, Appellant, who shows in support:
I. INTRODUCTION
In connection with Appellant’s appeal currently pending in this Court,
Appellant moves this Court to stay the district court proceedings pending appeal.
The Supreme Court has recognized that the filing of an appeal automatically
divests the district court of jurisdiction over those aspects of the case involved in
the appeal. Coastal Corp. v. Texas Eastern Corp., 869 F.2d 817, 821 (1989).
If Appellant is forced to incur the expense of litigation before her appeal is
decided upon, the appeal will be moot. Appellant’s appeal (i) raises serious legal –
procedural and substantive due process – issues, (ii) Appellant will be irreparably
harmed without a stay of this proceeding pending an appeal, (iii) Appellee will not
be substantially harmed by the granting of a stay, and (iv) the public interest in
conserving judicial resources weigh in favor of granting the stay.
II. FACTUAL BACKGROUND
1. On July 18, 2014, Appellant filed with the Court of Appeals an appeal
from an order granted by the 246th Judicial District Court of Harris County, Texas.
4 2. On or about January 2015, Appellee, Jack Nuszen, filed a Petition to
Modify the Parent-Child Relationship with the 246th Judicial Court, and
successfully obtained a Temporary Restraining Order (TRO) against the Appellant
claiming emotional abuse without any details into these claims.
3. On or about March 12, 2015, a hearing before Judge Charley Prine
occurred, extending the TRO, although the Appellant was never served or given
proper notice. Appellant found out after the hearing had occurred. On the docket,
there is an alternative service dated March 7, 2015 for the hearing scheduled on
March 12, 20151, which is only five days before the ten day mandatory notice
requirement.
4. The Appellant was working out of town at this time and was never
informed or served. The ex-parte TRO was not supported or predicated by any
verified pleadings and/or supporting affidavits on file with the court. Without any
notice, the court issued a writ of attachment for the children based on a motion
filed by Appellee’s attorney asserting without elaboration that the children were
being illegally restrained by the Appellant. At the time of Judge Charley Prine’s
ruling, there was no evidence that all the children were being restrained illegally.
In fact, the Appellee had not exercised his visitation and/or custody of the older
children since 2010, when they were hospitalized for abuse by the Appellee.
1 See Exhibit A: Screenshot of the Harris County District Clerk Online Docket.
5 5. On or about March 31, 2015, Appellant’s oldest, adult child, who was
a subject of the order on appeal, filed with the United States Federal Court in and
for the Southern District of Texas, two petitions against Jack Nuszen, the Plaintiff-
Appellee in this pending appeal.
6. Appellant has mailed complaints, regarding the Appellee’s course of
action and the Trial Court’s misconduct towards the pending case, with the State
Commission on Judicial Misconduct, the Federal Bureau of Investigation, the
Harris County District Attorney’s Office, the Department of Justice, and several
other federal and state agencies. Furthermore, Appellant has filed a Motion for
Recusal of Judge Charley Prine on April 17, 2015.
7. Appellant seeks an immediate stay pending appeal of the above
mentioned cause.
III. ARGUMENT AND AUTHORITIES
A court should stay its judgment pending appeal where the moving party can
demonstrate that: (1) it is likely to succeed on the merits; (2) it would suffer
irreparable injury if the stay were not granted; (3) granting the stay would not
substantially harm the other parties; and (4) granting the stay would serve the
public interest Hilton v. Braunskill, 481 U.S. 770, 776 (1987). This test is flexible
and allows a movant to obtain a stay pending appeal by showing “a substantial
case on the merits when a serious legal question is involved” and that “balance of
6 the equities weighs heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d
555, 556 (5th Cir. 1981). The probability of success that must be demonstrated is
inversely proportional to the amount of irreparable injury plaintiff will suffer
absent the stay.
Although the Appellant respects this Court and its decision, the Appellant
nevertheless believes that the Court of Appeals is likely to disagree with the
judgment rendered by the District Court. Further, the harms imposed on Appellant
and her children, should the District Court be permitted to further hear the
modification case, are unduly irreparable because they will be forced to adhere to
the District Court’s biased rulings ordering unfavorable custody and child support
obligations, and will further be undone by a favorable ruling on appeal. In addition,
the appeal has been pending for nearly nine (9) months, thereby forcing Appellant
to expend time and money in fighting for custody of her children in the District
Court. Additionally, no harm will befall the Appellee if the District Court’s
judgment is stayed pending appeal. Finally, a public interest exists in this case,
should the District Court be permitted to continue with entertaining Appellee’s
modification, in that the judicial system will undertake litigating a case that might
be overturned by the outcome of this Court’s decision on the appeal.
IV. PLEA TO THE JURISDICTION
7 Subject matter jurisdiction requires that the party bringing the suit have
standing, that there be a live controversy between the parties, and that the case be
justiciable. State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). If the
district court lacks the power to effect a remedy that would resolve the dispute at
issue, the case does not present a justiciable issue. Di Portanova v. Monroe, 229
S.W.3d 324, 330 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). The absence
of subject-matter jurisdiction may be raised by a plea to the jurisdiction. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (footnotes omitted); see
also Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 156 (Tex.
2007) ("A party may contest a trial court's subject matter jurisdiction by filing a
plea to the jurisdiction."). Subject-matter jurisdiction cannot be waived, and can be
raised at any time. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140
S.W.3d 351, 358 (Tex. 2004).
V. RELIEF REQUESTED
Appellant, Miriam Blank, respectfully asks the Court to order the trial court
to stay the trial pending the appeal before the Court and to remove the ordered
TRO against Miriam Blank.
Miriam Blank prays that the Court grant this motion.
Respectfully submitted,
8 /s/ Christina Wanies-Guirgis Christina Wanies-Guirgis Texas Bar Number 24084772 9555 W. Sam Houston Parkway S., Ste 130 Houston, Texas 77099 Tel: (832) 582-8331 Fax: (832) 379-7490 ChristinaW@WaniesGuirgisPLLC.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 April 17, 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 1,467 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 9 10