                                                                                            ACCEPTED
                                                                                        03-14-00117-CV
                                                                                                6270418
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                  7/29/2015 11:27:07 AM
                                                                                      JEFFREY D. KYLE
                                                                                                 CLERK
                                            NO. 03-14-00117-CV

                                                           FILED IN
                                                    3rd COURT OF APPEALS
                     IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
                 THIRD COURT OF APPEALS DISTRICT OF TEXAS
                                                    7/29/2015 11:27:07 AM
                                AT AUSTIN               JEFFREY D. KYLE
                                                             Clerk



                                 NASH JESUS GONZALES
                             AND GONZALES & GONZALES, P.C.,

                                                            APPELLANTS
                                                       v.

                                     MARISSA ANN GONZALES,

                                                            APPELLEES


                    From the 200th District Court , Travis County Texas
                       The Honorable Lora J. Livingston, Presiding
                           Trial Court No. D-1-FM-11-005140


                                APPELLANTS’ RESPONSE TO
                              APPELLEE’S MOTION TO DISMISS

TO THE HONORABLE COURT OF APPEALS:

         Pending before the Court is Appellee Marissa Gonzales’s Motion to Dismiss

this appeal. This motion has no merit and should simply be denied. That Appellant

Nash Gonzales has filed a modification proceeding seeking relief merely related to

a part of the relief sought in this appeal in no way moots the controversy presented

here.


Appellants' Response to Appellee's Motion to Dismiss                           Page 1
         Marissa contends that Nash’s mere filing of a motion to modify moots the

geographic restriction controversy at issue in this appeal. She is wrong for multiple

reasons.

         First, as a threshold matter, Marissa mischaracterizes the relief sought in this

appeal. Appellants have requested two forms of relief–(1) a retrial of the geographic

restriction imposed on the children’s residence and (2) a retrial of the property

division of the community estate, either after excluding the contingent fee interest of

the law practice’s former case inventory or to properly consider evidence related to

that interest (Appellants’ Brief, Prayer, page 34-35). Marissa’s motion, though, is

premised on ignoring the 2nd area of controversy entirely and misreading the 1st

request as seeking rendition of the geographic restriction issue. Her failure to

correctly acknowledge the relief sought in this appeal unequivocally demonstrates the

lack of merit of this motion.

         Secondly, the request for relief in Collin County is not contrary to the request

for relief in this appeal, much less “directly contrary” to that relief as asserted by

Marissa. Rather, the request in Collin County complements the request in this appeal.

Contrary to Marissa’s claim, the relief sought in this appeal is a retrial of the

geographic restriction issue (Appellants’ Brief, Prayer, page 34-35). Nash has not

argued (nor under the law could he argue, see TEX. FAM. CODE. ANN. § 105.002(c)(1)

(Westlaw 2015)) that this Court should render judgment on the geographic restriction

Appellants' Response to Appellee's Motion to Dismiss                                Page 2
on the children’s residence. He has asked that the Court set aside the judgment based

on the jury’s verdict and remand that issue for a new trial.

         In the Collin County modification action, he has asked that the geographic

restriction be modified based on material and substantial changes in the

circumstances of the parties since the judgment was rendered (Motion to Dismiss,

Exhibit A, page 3, ¶ 7). That is, he has asked that the geographic restriction issue be

reconsidered, essentially the same relief sought in this appeal. If Nash is successful

in this appeal, the result will be a retrial of the geographic restriction issue not a

ruling establishing the contours of that restriction, a retrial which would take place

in the Collin County suit (essentially eliminating the question of whether the change

in circumstances justifies consideration of the modification issue). Thus, at this time,

there is nothing contrary in the relief sought here and the relief sought in Collin

County, rather the relief sought is complementary.

         And, finally, merely requesting relief does not negate the efficacy of this

Court’s decision. That is, just because Nash has requested that the geographic

restriction be considered in a modification proceeding does not mean that the

restriction will be modified or even that the modification is appropriately requested.

The Collin County District Court could conclude that the changes in the parties

circumstances does not qualify as the material and substantial changes necessary to

invoke its modification jurisdiction. Alternatively, that court could reject the request

Appellants' Response to Appellee's Motion to Dismiss                               Page 3
to modify the restriction, leaving the restriction imposed under the jury’s verdict

undisturbed. There is much yet to be decided in both this appeal and in the Collin

County litigation.1 One does not yet have any effect on the other.

         Marissa’s alternative request that this appeal be stayed is similarly wholly

without merit. As shown above, this appeal involves more than the geographic

restriction issue, it also presents property issues not touched on by the modification

action. Thus, even if the Collin County litigation were to reach judgment before this

appeal, it would still leave much to be decided by this Court. Marissa asks that this

Court simply sit on a proceeding that is currently “at issue” in favor of a proceeding

that could never fully dispose of the matters pending here. That request should be

rejected.

         For these reasons, Appellants Nash Jesus Gonzales and Gonzales & Gonzales,

P.C. request that this Court deny, in its entirety, Appellee Marissa Ann Maggio’s

Motion to Dismiss.

                                                       Respectfully submitted,

                                                       /s/ Thomas B. Cowart
                                                       Thomas B. Cowart
                                                       Texas Bar No. 00787295


         1
           If the Collin County were to conclude that the circumstances justify the request for
modification and if that proceeding were to reach judgment before this Court issued an opinion and
if that decision resulted in a modification of the geographic restriction contained in the judgment
under appeal here, then Marissa may have a valid point. But that is too many if’s to divest this Court
of its properly invoked jurisdiction.
Appellants' Response to Appellee's Motion to Dismiss                                            Page 4
                                                       Wasoff & Cowart, PLLC
                                                       100 North Central Expressway, Suite 100
                                                       Richardson, Texas 75080
                                                       Phone: 214-692-9700
                                                       Fax: 214-550-2674
                                                       email: tom@tcowart.com

                                                       Attorneys for Appellants Nash Jesus Gonzales
                                                       and Gonzales & Gonzales, P.C.

                                     CERTIFICATE OF SERVICE

       This is to certify that on July 29, 2015, a true and correct copy of this
Appellants' Response to Appellee's Motion to Dismiss was served upon the following
via the efile system:

C. Wilson Shirley III
wilson@ssjmlaw.com
Jessica Marcoux Hall
jessica@ssjmlaw.com
4330 Gaines Ranch Loop, Suite 150
Austin, Texas 78735
512-347-1604
512-347-1676 Facsimile

Attorneys for Appellee Marissa Ann Gonzales


                                                                   /s/ Thomas B. Cowart
                                                                   Thomas B. Cowart




Appellants' Response to Appellee's Motion to Dismiss                                          Page 5
