Miriam Blank v. Jack Nuszen
Opinion
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
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 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
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
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
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.
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 &
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).
Free access — add to your briefcase to read the full text and ask questions with AI
Miriam Blank v. Jack Nuszen (Miriam Blank v. Jack Nuszen) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.