ACCEPTED
01-14-00694-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/31/2015 10:45:02 AM
CHRISTOPHER PRINE
CLERK
No-01-14-00694-CV
IN THE FIRST DISTRICT COURT OF TEXAS
FILED IN
HOUSTON, TEXAS 1st COURT OF APPEALS
HOUSTON, TEXAS
7/31/2015 10:45:02 AM
CHRISTOPHER A. PRINE
DIOGU KALU DIOGU II, LL.M. Clerk
APPELLANT
Vs
YAOWAPA RATTANA APRN
APPELLEE
APPEAL FROM THE 387TH JUDICIAL
DISTRICT COURT FORT BEND COUNTY, TEXAS
MOTION FOR REHEARING AND EN BANC RECONSIDERATION
DIOGU KALU DIOGU II, LL.M.
DIOGU DIOGU LAW FIRM
P. O. BOX 994
FULSHEAR, TEXAS 77441
Diogu.diogu.law.firm@gmail.com
Phone (713) 791 3225
Fax (832) 408 7611
ORAL ARGUMENT REQUESTED
1
IDENTITY OF PARTIES AND COUNSEL
APPELLANT/COUNTER-DEFENDANT
DIOGU KALU DIOGU II
COUNSEL FOR APPELLANTS
Diogu Kalu Diogu II
Diogu Diogu Law Firm
P. O. Box 994
Fulshear, Texas 77441
Phone (713) 791-3225
Fax. (832) 408-7611
APPELLEE/COUNTER PLAINTIFF
Ms. Yaowapa Ratana-Aporn
COUNSEL FOR APPELLEE
Mario Martinez
Law Offices of Mario A Martinez PLLC
23123 Cinco Ranch Blvd #208
Katy TX 77494
2
I. SOLE ISSUE PRESENTED
The Panel’s Analysis of the Mootness Doctrine Ignores the Fact and
Misstates the Law
II. INTRODUCTION:
The Appellant files his Motion for Rehearing and En Banc Reconsideration
because the Panel issued not just a mere adverse opinion but a flawed one when
in affirming the lower Court’s Judgment it held that the “voluntary lifting of notice
of Lis Pendens does not render those claims for monetary damages moot”. This
disturbing holding is beguiling in its superficiality and simplicity. It so flawed that
even the Panel’s reliance on James v. Calkins, 446 S.W.3d 135, 144 (Tex. App.—
Houston [1st Dist.] 2014, pet. filed) (plaintiff’s voluntary nonsuit did not moot
defendant’s claims for costs, fees, and sanctions) was misplaced.
III. PUBLIC INTEREST REQUIRES A REHEARING AND EN BANC RECONSIDERATION:
The Appellant asserts that the Panel of this court(s) has committed grave
errors of judgment that are of such importance to the public interest of this state,
it should compel correction. In this case the Panel affirmed the Judgment of the
lower court by holding that the voluntary lifting of notice of Lis Pendens does not
render those claims for monetary damages moot even though by law there was
no Lis Pendens filed by the Appellant in the Fort Bend County Deed Record when
3
the Appellee filed her claims for monetary damages. This very remarkable
because if it holds, these three judge panel of the First Court of Appeal of the
States would single handedly amended not just the Constitution of the State of
Texas but that of the United States of America, the interpretation of the relevant
constitutions by the Supreme Court of both the States of Texas and United States
of America as it relates to the construction and/or interpretation of the case and
controversy as it relates to the mootness doctrine.
IV. THE PANEL FAILED TO ADHERE TO PRECEDENTS
This is disturbing because the panel patently rejected both the Constitution
of the State Texas and Texas Supreme Court’s interpretation of the that
Constitution because the Texas Supreme Court has repeatedly held that a court
cannot decide a case that becomes moot before and during the pendency of the
litigation. Heckman v. Williamson Cnty., 369 S.W.3d 137, 162 (Tex. 2012). No
justiciable controversy exists if the issues/dispute that spurred the lawsuit are no
longer "live" or if the parties lack a legally cognizable interest in the
outcome. Heckman, 369 S.W.3d at 162. The Texas Constitution of Texas as it
relates to Cases or controversy is identical and/or analogous to the US
Constitution which permits Court to decide legal questions only in the context of
actual "Cases" or "Controversies." U. S. Const., Art. III, §2. An "`actual controversy
4
must be extant at all stages of review, not merely at the time the complaint is
filed.'" Preiser v. Newkirk, 422 U. S. 395, 401 (1975) (quoting Steffel v. Thompson,
415 U. S. 452, 459, n. 10 (1974)).
On the other hand this holding may have been as a result of the confusing
nature of the timeline in this case or the manner to which1 it was briefed by the
Appellant as such the court’s opinion is understandable. Also, the holding could
be perfectly logical if the Appellee had filed their lawsuit seeking damages and
declaratory judgment before the Appellant voluntarily lifted his Lis Pendens but
that was not the case. As a result there was no actual "Cases" or "Controversies."
Because at the time Appellee sought monetary damages the case was moot since
there was no Lis Pendens in the Fort Bend County Real Property Record when the
Appellee filed it damage claims etc. with Court
RELEVANT STATEMENT OF THE FACTS
Appellant filed an Original and Amended petition for Annulment from his
wife. CR.17-34.
Also, contained in the injunctions was an allegation that the Defendants’
were planning to secrete her property from the United States and or conceal
1
Appellant briefed the case in the mist of excruciating lower back pain that affected his concentration. See
Appellant’s motion to abate this appeal which part of the record in this case that was uncharacteristically denied
by Chief Judge Radack who interestingly was one of the three judge panel
5
from the Petitioner, therein and appellant herein the property (real2 and
Personal) CR.31-33, 44-45. When real property became an issue in the litigation.
Id. To maintain the status quo the Appellant filed a Lis Pendens on a premises
described as Lot Twenty Three (23) in Block One (1) of Cinco Ranch Greenway
Village, Section Nine (9), A Subdivision in Fort Bend County, Texas According to
the Map or Plat Thereof Recorded Under Slide No (s) 1550/B, 1551/A and 1551/B
of the Plat Record of Fort Bend County, Texas. Id. and once the TRO and the
Injunction related issues were resolved and or abandoned on or about April 09th,
2013, the appellant cancelled and expunged the Lis Pendens. TAB A., 17-19
2SCR.20-22
However, on the or about April 22nd, 2013 after the Lis. Pendens have been
cancelled and expunged, the Appellee filed a Counterclaim and Declaratory solely
based on the allegations contained in on the Appellant’s Original and subsequent
amended Petition for Annulment and the filing of the Lis Pendens. CR.126-33.
On or about April 15th, 2013 and October 30th, 2013 the Appellant
nonsuited his wife and the Appellee respectively. CR.122-125 and CR.134-136.
Nonetheless, the Appellee maintained her Counterclaims even though she no
2
At that her only real property was a premises described as Lot Twenty Three (23) in Block One (1) of Cinco
Ranch Greenway Village, Section Nine (9), A Subdivision in Fort Bend County, Texas According to the Map or Plat
Thereof Recorded Under Slide No (s) 1550/B, 1551/A and 1551/B of the Plat Record of Fort Bend County, Texas.
6
longer owned the premises described as Lot Twenty Three (23) in Block One (1) of
Cinco Ranch Greenway Village, Section Nine (9), A Subdivision in Fort Bend
County, Texas According to the Map or Plat Thereof Recorded Under Slide No (s)
1550/B, 1551/A and 1551/B of the Plat Record of Fort Bend County, Texas. TAB A.
17-19, 2SCR. 20-22. Further, nonetheless, the district court granted default
judgment.
The fact is that on or about April 09th, 2013, the appellant expunged the Lis
Pendens at issue in this case. TAB A., 17-19 2SCR.20-22. Following that on or
about April 22nd, 2013 after the Lis Pendens have been cancelled and expunged,
the Appellee filed a Counterclaim and Declaratory solely based on the allegations
contained in on the Appellant’s Original and subsequent amended Petition for
Annulment and the filing of the Lis Pendens. CR.126-33.
SUMMARY OF THE ARGUMENT
In holding that the voluntary lifting of notice of Lis Pendens does not render
those claims for monetary damages moot, the Panel made three (3) errors.
7
First it ignored the Appellee’s live pleading filed nine (9) days after the Lis
Pendens was expunged3/removed/lifted from the Fort Bend County Real Estate
Record. Further, content of the Appellee’s request for declaratory judgment
requested Court Order to remove the Lis Pendens from the property records
which showed that the Appellee believed that the Appellant’s Notice of Lis
Pendens was still pending in the Fort Bend County Real Deeds Record when she
sought her monetary damages. Therefore this case should have been dismissed
based on judicial admission. This can occur in one of two ways for example: (1)
pleading an affirmative relief which is not recognized under Texas law, or (2) or
pleading a relief that does not exist at all. In this case Appellee pleaded
affirmative relief that did not exist – monetary damages and declaratory
judgment in that the relief they sought was null due a nonexistent Lis Pendens in
the property records of Fort Bend County. In either situation, a movant may
support its motion for summary judgment on the non-movant’s pleadings
alone. Helena Lab. Corp. v. Snyder, 886 S.W.2d 767 (Tex. 1994). See also, Galvan
v. Public Utilities Bd., 778 S.W.2d 580 (Tex. App. — Corpus Christi 1989)
3
verb (Formal) erase, remove, destroy, abolish, cancel, get rid of, wipe out, eradicate, excise, delete,
extinguish, strike out, obliterate, annihilate, efface, exterminate, annul, raze, blot out, extirpate, The Free
Dictionary /Thesaurus by Farlex. URL: http://www.thefreedictionary.com/expunge
8
(defendant’s pleadings stating it was “an agency of the City of Brownsville, Texas”
held sufficient proof to support plaintiff’s summary judgment on the issue of
agency).
Second, the Court disregarded the rule of construction governing the
mootness doctrine which state - Neither the Texas Constitution nor the Texas
Legislature has vested the Court with the authority to render advisory opinions.
See Tex. Const. art. II, _ I; see also Camarena v. Tex. Employment Comm'n, 754
S.W.2d 149, 151 (Tex. 1988). The mootness doctrine limits courts to deciding
cases in which an actual controversy exists between the parties. See, Fed. Deposit
Ins. Corp. v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994).
Third the Court erred in the application of the nonsuit rule Tex. R. Civ. P.
162 to resolve this case. Nonsuit Rule states that a plaintiff has an absolute right
to take a nonsuit so long as the defendant has not made a claim for affirmative
relief. Tex. R. Civ. P. 162; BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 838,
840–41 (Tex. 1990). Clearly nonsuit analysis is not applicable in this case because
filing and lifting a Lis Pendens all occurred at the county Recording Office before
the Appellee filed her damage in Court as such before the Court had jurisdiction
over the subject matter, while filing and nonsuting a case occurs in the Court as
such the Court would have acquired Jurisdiction before the case is nonsuited.
9
Also, if the Appellant filed and lifted the Lis Pendens, after the
Appellee/defendant has filed a lawsuit seeking an affirmative relief the case will
not be moot. But that was not what happened here.
ARGUMENT:
THE PANEL’S ANALYSIS OF THE MOOTNESS
DOCTRINE IGNORES THE FACT AND MISSTATES THE LAW
The Panel’s approach to the mootness doctrine is flawed in three (3)
aspects.
A. JUDICIAL ADMISSION MADE BY THE APPELLEE IN HER LIVE PLEADING
COMPELS THE COURT TO REHEAR, REVERSE AND REMAND THE CASE TO THE
LOWER COURT FOR DISMISSAL AS MOOT
FIRST the panel ignored a powerful evidence – Appellee’s own live pleading
--”seeking an order to remove the Lis Pendens from the property records” when
there was no Lis Pendens in the Property record of Fort Bend County as such she
sought nonexistent affirmative relief.
The Appellee’s clear, deliberate, and/or unequivocal statement contained
in her live pleading constitutes a judicial admission that she filed her pleading
believing that the Appellant had not lifted and/or expunged his Lis Pendens at the
time she sought monetary damages. The fact that the Appellee made this judicial
admission closes the door on the argument that the Appellee was seeking
monetary damages against the Appellant for filing and/or lifting the Lis Pendens
before she filed her counterclaims as the panel in this case analyzed.
10
It is well established that a judicial admission may be made in live pleadings
and judicial admission may also be made in a response to a motion or counter-
claim. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000)
(a judicial admission may be made in live pleadings); Holy Cross Church of God in
Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (a judicial admission may also be
made in a response to a motion or counter-motion). The judicial admission,
however, must be clear and unequivocal. See Holy Cross Church of God in Christ,
44 S.W.3d at 568, which was the case here. A judicially admitted fact is
established as a matter of law, and the admitting party may not dispute it or
introduce evidence contrary to it. Bowen v. Robinson, 227 S.W.3 86, 92 (Tex.
App.—Houston [1st Dist.] 2006, pet. denied). This rule is based on the public
policy that it would be absurd and manifestly unjust to permit a party to recover
after he has sworn himself out of court by a clear and unequivocal statement. Id.
It is clear as a matter of law that Appellee sought an affirmative relief that
was not available to her because it did not exist at the time she requested it. See
also, Helena Lab. Corp. v. Snyder, 886 S.W.2d 767 (Tex. 1994).
As such the Panel should rehear this case and reverse the lower court’s
judgment in its entirety because the Appellees case was solely based on a
pending Lis Pendens
11
B. WHEN THE MOOTNESS DOCTRINE DISPOSES OF THE DISPUTE THAT SPURRED
THE LAWSUIT, BEFORE THE CASE GOES TO COURT, THERE IS NO CASE OR
CONTROVERSY AND THE CASE MUST BE DISMSSIED AS MOOT AND DAMAGE
CLAIMS WILL NOT BREATH LIVE TO IT
SECOND, the Panel’s approach to mootness in this case was flawed because
it disregarded the rules governing the mootness doctrine. It must be remembered
that the time of bringing the complaint or intervening circumstances as it relates
to the dispute that spurred the lawsuit plays a criterial role in the mootness
doctrine. As a result of mootness the movant can be deprived of a "personal stake
in the outcome of the lawsuit," at any point during litigation and when that
happens the action can no longer proceed and must be dismissed as moot. Lewis
v. Continental Bank Corp., 494 U.S. 472, 477-478, 110 S.Ct. 1249, 108 L.Ed.2d 400
(1990)
APPLICABLE TEXAS AND FEDERAL LAWS ON THE MOOTNESS DOCTRINE
ARE IDENTICAL AND ANOLOGOUS BUT US SUPREME COURT CASES ARE
MORE INSTRUCTIVE FOR THIS ANALYSIS
It is well established that neither the Texas Constitution nor the Texas
Legislature has vested this Court with the authority to render advisory opinions.
See Tex. Const. art. II, _ I; Camarena v. Tex. Employment Comm'n, 754 S.W.2d
149, 151 (Tex. 1988). See also, Heckman v. Williamson Cnty., 369 S.W.3d 137,
162 (Tex. 2012). No justiciable controversy exists if the issues/dispute that
12
spurred the lawsuit are no longer "live" or if the parties lack a legally cognizable
interest in the outcome. Heckman, 369 S.W.3d at 162.
The mootness doctrine limits courts to deciding cases in which an actual
controversy exists.” F.D.I.C. v. Nueces County, 886 S.W.2d 766, 767 (Tex.1994)
(citing Camarena v. Tex. Employment Comm'n, 754 S.W.2d 149, 151 (Tex.1988)).
A controversy “must exist between the parties at every stage of the legal
proceedings, including the appeal.” Williams v. Lara, 52 S.W.3d 171, 184
(Tex.2001). The Texas Supreme Court has “recognized two exceptions to the
mootness doctrine: (1) the ‘capable of repetition’ exception and (2) the
‘collateral consequences' exception.” Nueces County, 886 S.W.2d at 767.
The Tex. Const. art. II, _ I and U. S. Const., Art. III, §2 are essentially
identical or analogous so the U. S. Supreme Court case laws interpreting U. S.
Const., Art. III, §2) are instructive in this case. The US Supreme Court review in
Alvarez V. Smith, 558 U.S. 87, 93, 130 S.CT. 576, 175 L.ED.2D 447 (2009)) and
Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 569 U.S., 185 L. Ed. 2d 636
(2013) are eerily identical and analogues and are applicable to the Diogu case.
1. ALVAREZ V. SMITH, 558 U.S. 87, 93, 130 S.CT. 576, 175 L.ED.2D 447
(2009))
In Alvarez v. Smith, 558 U.S. 87, 93, 130 S.Ct. 576, 175 L.Ed.2d 447 (2009)),
the US Supreme granted certiorari in this case to determine whether Illinois law
13
provides a sufficiently speedy opportunity for an individual, whose car or cash
police have seized without a warrant, to contest the lawfulness of the seizure.
Citing U. S. Const., Amdt. 14, §1; United States v. Von Neumann, 474 U. S. 242
(1986); United States v. $8,850, 461 U. S. 555 (1983). At the time of oral
argument, however, The Supreme Court learned that the underlying property
disputes have all ended. The State has returned all the cars that it seized, and the
individual property owners have either forfeited any relevant cash or have
accepted as final the State's return of some of it. The Supreme Court
consequently found the case moot, and the Court therefore vacated the
judgment of the Court of Appeals and remand the case to that court with
instructions to dismiss. Citing, United States v. Munsingwear, Inc., 340 U. S. 36, 39
(1950).
In Alvarez, the defendants moved to dismiss the complaint on the ground
that Seventh Circuit precedent made clear that "the Constitution does not
require any procedure prior to the actual forfeiture proceeding." Citing Jones v.
Takaki, 38 F. 3d 321, 324 (1994) (citing Von Neumann, supra, at 249). On
February 22, 2007, the District Court granted the motion to dismiss. It also denied
the plaintiffs' motion for class certification. The plaintiffs appealed.
On May 2, 2008, the Seventh Circuit decided the appeal in the plaintiffs'
14
favor. Smith v. Chicago, 524 F. 3d 834. It reconsidered and departed from its
earlier precedent. Id., at 836-839. It held that "the procedures set out in" the
Illinois statute "show insufficient concern for the due process right of the
plaintiffs." Id., at 838. And it added that, "given the length of time which can
result between the seizure of property and the opportunity for an owner to
contest the seizure under" Illinois law, "some sort of mechanism to test the
validity of the retention of the property is required." Ibid. The Court of Appeals
reversed the judgment of the District Court and remanded the case for further
proceedings. Id., at 839. Its mandate issued about seven weeks thereafter.
On February 23, 2009, we granted certiorari to review the Seventh Circuit's
"due process" determination. The Court of Appeals then recalled its mandate.
The parties filed briefs in this Court. We then recognized that the case might be
moot, and we asked the parties to address the question of mootness at the
forthcoming oral argument.
At oral argument counsel for both sides confirmed that there was no longer
any dispute about ownership or possession of the relevant property. See Tr. of
Oral Arg. 5 (State's Attorney); id., at 56-57 (plaintiffs). The State had returned the
cars to plaintiffs Smith, Perez, and Brunston. See id., at 5. Two of the plaintiffs
had "defaulted," apparently conceding that the State could keep the cash. Ibid.
15
And the final plaintiff and the State's Attorney agreed that the plaintiff could
keep some, but not all, of the cash at issue. Id., at 5, 56-57. As counsel for the
State's Attorney told the Court, "[T]hose cases are over." Id., at 5
The Alvarez Court reason that the Constitution permits this Court to decide
legal questions only in the context of actual "Cases" or "Controversies." U. S.
Const., Art. III, §2. An "`actual controversy must be extant at all stages of review,
not merely at the time the complaint is filed.'" Citing, Preiser v. Newkirk, 422 U.
S. 395, 401 (1975) (quoting Steffel v. Thompson, 415 U. S. 452, 459, n. 10
(1974)). In unanimous decision the Alvarez court held that there is no longer any
actual controversy between the parties about ownership or possession of the
underlying property.
The State's Attorney argues that there is a continuing controversy over
damages. The Supreme Court conceded that the plaintiffs filed a motion in the
District Court seeking damages. But the plaintiffs filed their motion after the
Seventh Circuit issued its opinion. And, after the Supreme Court granted
certiorari, the Court of Appeals recalled its mandate, taking the case away from
the District Court before the District Court could respond to the motion. Thus,
we have before us a complaint that seeks only declaratory and injunctive relief,
not damage. Alvarez v. Smith, 558 U.S. 87, 93, 130 S.Ct. 576, 175 L.Ed.2d 447
16
(2009))
The Court Held that no matter how vehemently the parties continue to
dispute the lawfulness of the conduct that precipitated the lawsuit, the case is
moot if the dispute "is no longer embedded in any actual controversy about the
plaintiffs' particular legal rights." Alvarez, supra, at 93, 130 S.Ct. 576.
Simply put, Ms. Aporn could not invoke the trial Court’s jurisdiction,
because the dispute (Lis Pendens) that spurred the lawsuit was moot before she
could file her affirmative relief in the Court.
THEREFORE, THE PANEL ERRED IN HOLDING THAT VOLUNTARY LIFTING
OF NOTICE OF LIS PENDENS BEFORE MS. APRON COULD EVEN INVOKE THE
TRIAL COURT’S JURISDICTION DOES NOT RENDER THOSE CLAIMS FOR
MONETARY DAMAGES MOOT
2. GENESIS HEALTHCARE CORP. V. SYMCZYK, 133 S. CT. 1523, 569 U.S.,
185 L. ED. 2D 636 (2013)
In Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 569 U.S., 185 L. Ed.
2d 636 (2013) the US Supreme Court reviewed the Fair Labor Standards Act of
1938 (FLSA), 29 U.S.C. § 201 et seq., which provides that an employee may bring
an action to recover damages for specified violations of the Act on behalf of
himself and other "similarly situated" employees. The Court granted certiorari to
resolve whether such a case is justiciable when the lone plaintiff's individual claim
17
becomes moot. 567 U.S. ___, 133 S.Ct. 26, 183 L.Ed.2d 674 (2012). And held that
it is not justiciable. In reaching the question on which the Court granted
certiorari, the Court concluded that respondent has no personal interest in
representing putative, unnamed claimants, nor any other continuing interest that
would preserve her suit from mootness. And Held that the suit was, therefore,
appropriately dismissed for lack of subject-matter jurisdiction. The judgment of
the Court of Appeals for the Third Circuit is reversed.
The FLSA establishes federal minimum-wage, maximum-hour, and
overtime guarantees that cannot be modified by contract. Section 16(b) of the
FLSA, 52 Stat. 1060, as amended, 29 U.S.C. § 216(b), gives employees the right to
bring a private cause of action on their own behalf and on behalf of "other
employees similarly situated" for specified violations of the FLSA. A suit brought
on behalf of other employees is known as a "collective action." See Hoffmann-La
Roche Inc. v. Sperling, 493 U.S. 165, 169-170, 110 S.Ct. 482, 107 L.Ed.2d 480
(1989).
In 2009, respondent, who was formerly employed by petitioners as a
registered nurse at Pennypack Center in Philadelphia, Pennsylvania, filed a
complaint on behalf of herself and "all other persons similarly situated." App.
115-116. Respondent alleged that petitioners violated the FLSA by automatically
18
deducting 30 minutes of time worked per shift for meal breaks for certain
employees, even when the employees performed compensable work during
those breaks. Respondent, who remained the sole plaintiff throughout these
proceedings, sought statutory damages for the alleged violations.
When petitioners answered the complaint, they simultaneously served
upon respondent an offer of judgment under Federal Rule of Civil Procedure 68.
The offer included $7,500 for alleged unpaid wages, in addition to "such
reasonable attorneys' fees, costs, and expenses ... as the Court may determine."
Id., at 77. Petitioners stipulated that if respondent did not accept the offer within
10 days after service, the offer would be deemed withdrawn.
After respondent failed to respond in the allotted time period, petitioners
filed a motion to dismiss for lack of subject-matter jurisdiction. Petitioners argued
that because they offered respondent complete relief on her individual damages
claim, she no longer possessed a personal stake in the outcome of the suit,
rendering the action moot. Respondent objected, arguing that petitioners were
inappropriately attempting to "pick off" the named plaintiff before the collective-
action process could unfold. Id., at 91.
The District Court found that it was undisputed that no other individuals
had joined respondent's suit and that the Rule 68 offer of judgment fully satisfied
19
her individual claim. It concluded that petitioners' Rule 68 offer of judgment
mooted respondent's suit, which it dismissed for lack of subject-matter
jurisdiction.
The Court of Appeals reversed. 656 F.3d 189 (C.A.3 2011). The court agreed
that no other potential plaintiff had opted into the suit, that petitioners' offer
fully satisfied respondent's individual claim, and that, under its precedents,
whether or not such an offer is accepted, it generally moots a plaintiff's claim. Id.,
at 195. But the court nevertheless held that respondent's collective action was
not moot. It explained that calculated attempts by some defendants to "pick off"
named plaintiffs with strategic Rule 68 offers before certification could short
circuit the process, and, thereby, frustrate the goals of collective actions. Id., at
196-198. The court determined that the case must be remanded in order to allow
respondent to seek "conditional certification"[1] in the District Court. If
respondent were successful, the District Court was to relate the certification
motion back to the date on which respondent filed her complaint. Ibid
Article III, § 2, of the Constitution limits the jurisdiction of federal courts to
"Cases" and "Controversies," which restricts the authority of federal courts to
resolving "`the legal rights of litigants in actual controversies,'" Valley Forge
Christian College v. Americans United for Separation of Church and State, Inc., 454
20
U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (quoting Liverpool, New York &
Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352,
28 L.Ed. 899 (1885)). In order to invoke federal-court jurisdiction, a plaintiff must
demonstrate that he possesses a legally cognizable interest, or "`personal stake,'"
in the outcome of the action. See Camreta v. Greene, 563 U.S. ___, ___, 131 S.Ct.
2020, 2028, 179 L.Ed.2d 1118 (2011) (quoting Summers v. Earth Island Institute,
555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009)). The This requirement
ensures that the Federal Judiciary confines itself to its constitutionally limited role
of adjudicating actual and concrete disputes, the resolutions of which have direct
consequences on the parties involved.
A corollary to this case-or-controversy requirement is that "`an actual
controversy must be extant at all stages of review, not merely at the time the
complaint is filed.'" Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117
S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401,
95 S.Ct. 2330, 45 L.Ed.2d 272 (1975)). If an intervening circumstance deprives the
plaintiff of a "personal stake in the outcome of the lawsuit," at any point during
litigation, the action can no longer proceed and must be dismissed as moot. Lewis
v. Continental Bank Corp., 494 U.S. 472, 477-478, 110 S.Ct. 1249, 108 L.Ed.2d 400
(1990) (internal quotation marks omitted).
21
In the proceedings below, both courts concluded that petitioners' Rule 68
offer afforded respondent complete relief on — and thus mooted — her FLSA
claim. See 656 F.3d, at 201; No. 09-5782, 2010 WL 2038676, *4 (E.D.Pa., May 19,
2010). Respondent now contends that these rulings were erroneous, because
petitioners' Rule 68 offer lapsed without entry of judgment. Brief for Respondent
12-16. The United States, as amicus curiae, similarly urges the Court to hold that
petitioners' unaccepted offer did not moot her FLSA claim and to affirm the Court
of Appeals on this basis. Brief for United States 10-15.
While the Courts of Appeals disagree whether an unaccepted offer that
fully satisfies a plaintiff's claim is sufficient to render the claim moot,[3] we do not
reach this question, or resolve the split, because the issue is not properly before
us. The Third Circuit clearly held in this case that respondent's individual claim
was moot. 656 F.3d, at 201. Acceptance of respondent's argument to the
contrary now would alter the Court of Appeals' judgment, which is impermissible
in the absence of a cross-petition from respondent. See Northwest Airlines, Inc. v.
County of Kent, 510 U.S. 355, 364, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994); Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 119, n. 14, 105 S.Ct. 613, 83 L.Ed.2d
523 (1985). Moreover, even if the cross-petition rule did not apply, respondent's
waiver of the issue would still prevent us from reaching it. In the District Court,
22
respondent conceded that "[a]n offer of complete relief will generally moot the
[plaintiff's] claim, as at that point the plaintiff retains no personal interest in the
outcome of the litigation." App. 93; 2010 WL 2038676, at *4. Respondent made a
similar concession in her brief to the Court of Appeals, see App. 193, and failed to
raise the argument in her brief in opposition to the petition for certiorari. We,
therefore, assume, without deciding, that petitioners' Rule 68 offer mooted
respondent's individual claim. See Baldwin v. Reese, 541 U.S. 27, 34, 124 S.Ct.
1347, 158 L.Ed.2d 64 (2004).
We turn, then, to the question whether respondent's action remained
justiciable based on the collective-action allegations in her complaint. A
straightforward application of well-settled mootness principles compels our
answer. In the absence of any claimant's opting in, respondent's suit became
moot when her individual claim became moot, because she lacked any personal
interest in representing others in this action. While the FLSA authorizes an
aggrieved employee to bring an action on behalf of himself and "other employees
similarly situated," 29 U.S.C. § 216(b), the mere presence of collective-action
allegations in the complaint cannot save the suit from mootness once the
individual claim is satisfied.
In order to avoid this outcome, respondent relies almost entirely upon
23
cases that arose in the context of Federal Rule of Civil Procedure 23 class actions,
particularly United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct.
1202, 63 L.Ed.2d 479 (1980); Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326,
100 S.Ct. 1166, 63 L.Ed.2d 427 (1980); and Sosna v. Iowa, 419 U.S. 393, 95 S.Ct.
553, 42 L.Ed.2d 532 (1975). But these cases are inapposite, both because Rule 23
actions are fundamentally different from collective actions under the FLSA, see
Hoffmann-La Roche Inc., 493 U.S., at 177-178, 110 S.Ct. 482 (SCALIA, J.,
dissenting), and because these cases are, by their own terms, inapplicable to
these facts. It follows that this action was appropriately dismissed as moot.
Respondent contends that she has a sufficient personal stake in this case
based on a statutorily created collective-action interest in representing other
similarly situated employees under § 216(b). Brief for Respondent 47-48. In
support of her argument, respondent cites our decision in Geraghty, which in
turn has its roots in Sosna. Neither case supports her position.
In Sosna, the Court held that a class action is not rendered moot when the
named plaintiff's individual claim becomes moot after the class has been duly
certified. 419 U.S., at 399, 95 S.Ct. 553. The Court reasoned that when a district
court certifies a class, "the class of unnamed persons described in the
certification acquire[s] a legal status separate from the interest asserted by [the
24
named plaintiff]," with the result that a live controversy may continue to exist,
even after the claim of the named plaintiff becomes moot. Id., at 399-402, 95
S.Ct. 553. Geraghty narrowly extended this principle to denials of class
certification motions. The Court held that where an action would have acquired
the independent legal status described in Sosna but for the district court's
erroneous denial of class certification, a corrected ruling on appeal "relates back"
to the time of the erroneous denial of the certification motion. 445 U.S., at 404,
and n. 11, 100 S.Ct. 1202.
Geraghty is inapposite, because the Court explicitly limited its holding to
cases in which the named plaintiff's claim remains live at the time the district
court denies class certification. See id., at 407, n. 11, 100 S.Ct. 1202. Here,
respondent had not yet moved for "conditional certification" when her claim
became moot, nor had the District Court anticipatorily ruled on any such request.
Her claim instead became moot prior to these events, foreclosing any recourse to
Geraghty. There is simply no certification decision to which respondent's claim
could have related back.
More fundamentally, essential to our decisions in Sosna and Geraghty was
the fact that a putative class acquires an independent legal status once it is
certified under Rule 23. Under the FLSA, by contrast, "conditional certification"
25
does not produce a class with an independent legal status, or join additional
parties to the action. The sole consequence of conditional certification is the
sending of court-approved written notice to employees, see Hoffmann-La Roche
Inc., supra, at 171-172, 110 S.Ct. 482, who in turn become parties to a collective
action only by filing written consent with the court, § 216(b). So even if
respondent were to secure a conditional certification ruling on remand, nothing
in that ruling would preserve her suit from mootness.
In this Case, the Supreme Court held essentially that her FLSA claim which
is identical to the TEX. CIV. PRAC. & REM. CODE § 12.002 could not save the case
from becoming moot as such the panel erred by holding that the Aporn case was
not moot.;
C. THE PANEL’S NONSUIT ANALYSIS AS IN UNITED STATES PAROLE
COMM'N V. GERAGHTY, 445 U.S. 388, 100 S.CT. 1202, 63 L.ED.2D 479 (1980) IS
FLAWED BECAUSE THE ANALYSIS AND THE CASE RELIED ON ARE INAPPOSITE
Third the Court erred in the application of the nonsuit rule Tex. R. Civ. P.
162. Nonsuit Rule states that a plaintiff has an absolute right to take a nonsuit so
long as the defendant has not made a claim for affirmative relief. Tex. R. Civ. P.
162; BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 838, 840–41 (Tex. 1990)
In order to avoid this the above outcome, the Panel relies almost entirely
upon a case that arose in the context based on the Texas Citizen's Participation
26
Act (TCPA) which provides that court "shall" award to moving party costs,
attorney's fees, and other expenses as justice may require, and sanctions
sufficient to deter the bringing of similar legal actions). Particularly interesting in
both the nonsuit rule and TCPA both involved bringing a legal action first and then
latter voluntarily dismissing them. Another interesting caveat is that with the
nonsuit rule, one can bring a legal action and voluntarily dismiss it without
consequence if at the time he dismissed the defendant had made a affirmative
claim of relief. As a point of interest, all the activities the Court relied on occurred
in the Courts – Judicial branch. But the Diogu’s conduct of filing and lifting the Lis
Pended occurred in the executive branch.
The panel’s reliance in James v. Calkins, 446 S.W.3d 135, 144 (Tex. App.—
Houston [1st Dist.] 2014, pet. filed) (plaintiff’s voluntary nonsuit did not moot
defendant’s claims for costs, fees, and sanctions) was inapposite TCPA claim
remains live at the time at the time it was nonsuited. As in Geraghty was
inapposite, because the Court explicitly limited its holding to cases in which the
named plaintiff's claim remains live at the time the district court denies class
certification. See id., at 407, n. 11, 100 S.Ct. 1202
27
In Diogu v. Aporn, the Court Jurisdiction could not be invoked in the first
place and as such the controversy was not even live when Diogu lifted his Lis
Pendens at the Fort Bend County Recording Office.
Lis Pendens provides a mechanism for putting the public on notice of
certain categories of litigation involving real property." Prappas v. Meyerland
Cmty. Improvement Ass'n, 795 S.W.2d 794, 795 (Tex. App.-Houston [14th Dist.]
1990, writ denied); see also In re Miller, 433 S.W.3d 82, 84 (Tex. App.-Houston
[1st Dist.] 2014, orig. proceeding) ("A Lis Pendens is a notice of litigation, placed in
the real property records, asserting an interest in the property, and notifying third
parties that ownership of the property is disputed.")
Once a Lis Pendens has been filed, the statute provides two routes for
removal of the Lis Pendens from the County Real Property Record: (a) expunction,
pursuant to section 12.0071 of the Property Code; and, (b) cancellation, pursuant
to section 12.008 of the Property Code As a result, "courts have given a broad
reading to § 12.008, so as to grant an effective remedy." See Prappas v.
Meyerland Cmty. Improvement Ass’n, 795 S.W.2d 794, 798 (Tex. App.–Houston
[14th Dist.] 1990, writ denied). Once any of those two provision once exercised it
operates as no Lis Pendens was filed ab initio.
CONCLUSION AND PRAYER
28
As shown above, Aporn’s counterclaims included: (1) claim for wrongful
filing of a notice of Lis Pendens on Aporn’s homestead property, see TEX. CIV.
PRAC. & REM. CODE § 12.002, seeking statutory damages in the form of actual
damages, court costs, attorneys’ fees and exemplary damages, (2) claim for
intentional infliction of emotional distress, caused by Diogu’s “intentional and/or
reckless conduct including . . . knowingly making and publishing false accusations
that Ms. Aporn engaged in criminal activity . . . and falsely filed official public
documents without legal basis or justification encumbering Ms. Aporn’s
homestead property,” (3) request for declaratory judgment that filing of notice of
Lis Pendens was improper, and an order to remove the Lis Pendens from the
property records, and (3) request for sanctions and attorneys’ fees pursuant to
section 10.002 of the Texas Civil Practice and Remedies Code and Rule 13 of the
Texas Rules of Civil Procedure should be dismissed as moot.
For the reasons set forth herein, Appellant prays this case be reheard,
considered En Banc reversed and remanded for a new trial; or in the alternative,
reversed and remanded for a dismissal with Prejudice and for such other relief as
he may show himself deserving at law or in equity.
Respectfully submitted,
By: _/S/Diogu Kalu Diogu ii_
29
Diogu Kalu Diogu II, LL.M.
State Bar No. 24000340
P. O. Box 994, Fulshear, Texas 77441
Telephone (713) 791 3225
Telecopier (832) 408 7611
CERTIFICATE OF SERVICE
I, Diogu Kalu Diogu II, LL.M, attorney for the Appellant, do hereby certify
that a true and correct copy of the above and foregoing motion for rehearing has
been delivered to the following parties:
Deposited in first class U.S. mail addressed to:
Mario Martinez
Law Offices of Mario A Martinez PLLC,
23123 Cinco Ranch Blvd #208,
Katy TX 77494
July 30th, 2015
By: _/S/Diogu Kalu Diogu ii_
Diogu Kalu Diogu II, LL.M.
State Bar No. 24000340
P. O. Box 994, Fulshear, Texas 77441
Telephone (713) 791 3225
Telecopier (832) 408 7611
30