                                                                                          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


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                               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

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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.


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          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


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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




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      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
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