                                                                                          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

                                     APPELLANT’S RESPONSE TO THE COURT’S ORDER, 1
                    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:

                                        APPELLANT’S RESPONSE TO THE COURT’S ORDER, 2
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




                                       APPELLANT’S RESPONSE TO THE COURT’S ORDER, 3
                               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


                                     APPELLANT’S RESPONSE TO THE COURT’S ORDER, 4
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


                                      APPELLANT’S RESPONSE TO THE COURT’S ORDER, 5
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.


                                       APPELLANT’S RESPONSE TO THE COURT’S ORDER, 6
      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 &
                                     APPELLANT’S RESPONSE TO THE COURT’S ORDER, 7
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).

      Appellant believes that the outcome of this appeal will still greatly impact

the parties’ rights, thus restoring this Court’s continuing jurisdiction over the

appeal. Appellee’s second SAPCR filing occurred several months after the filing

of this appeal. Appellee’s suit sought to modify the existing orders of Judge York

rendered prior which bestowed Appellee with many of the contended parental

rights. This appeal remains live and justiciable because not only was there an

injury that Appellant raised at the time of filing this appeal, but there is a

continuing injury that this appeal could redress, and any relief granted by this

Court would have practical legal effect if awarded. Id. at 900.

      Further, even if this Court decides that Appellant’s claims are moot, they

nonetheless fall within an exception to the mootness doctrine for cases that are

“capable of repetition, yet evading review.” Williams v. Lara, 52 S.W.3d 171, 184

(Tex. 2001). This exception requires a plaintiff to “prove that: (1) the challenged

action was too short in duration to be litigated fully before the action ceased or

expired; and (2) a reasonable expectation exists that the same complaining party


                                      APPELLANT’S RESPONSE TO THE COURT’S ORDER, 8
will be subjected to the same action again.” Id. Here, Appellee’s actions are

capable of repetition. Appellant complains of the trial court’s ruling from

November 2013, which divests her of many of her parental rights and imposes an

absurd child support amount on her. This type of injury is capable of repetition in

that Appellee has the trial court at his disposal to continue modifying Appellant’s

parental rights until she virtually will have no rights, which Appellee has already

done time and time again. If the Court of Appeals does not intervene and decide

Appellant’s appeal, then the injuries that Appellant and her children suffer from

Appellee continually asking the trial court to modify existing orders will

undoubtedly continue to repeat, especially if Appellant is forced to appeal each and

every modification that Appellee files.

                             IV.   RELIEF REQUESTED

      Appellant, Miriam Blank, respectfully asks the Court to acknowledge that it

has jurisdiction over her appeal and for the Court to decide the appeal in a timely

manner.

      Miriam Blank prays that the Court grant this appeal.

Dated: May 12, 2015

                                          Respectfully submitted,

                                          /s/ Christina Wanies-Guirgis
                                          Christina Wanies-Guirgis
                                          Texas Bar Number 24084772
                                          9555 W. Sam Houston Parkway S., Ste 130
                                     APPELLANT’S RESPONSE TO THE COURT’S ORDER, 9
                                    Houston, Texas 77099
                                    Tel: (832) 582-8331
                                    Fax: (832) 379-7490
                                    WaniesGuirgisLaw@gmail.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 May 12, 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 1,738 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




                                    APPELLANT’S RESPONSE TO THE COURT’S ORDER, 10
