Preview
Filed
9/10/2021 9:55 AM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Jeanette Sanchez
NOTICE: THIS DOCUMENT
CONTAINS SENSITIVE DATA
NO. 20-DCV-279555
IN THE MATTER OF IN THE DISTRICT COURT
THE MARRIAGE OF
DIANA MILLER 387™ JUDICIAL DISTRICT
AND
STEVEN J. PRUSANK FORT BEND COUNTY, TEXAS
FIRST AMENDED MOTIONS TO WITHDRAW FUNDS FROM THE COURT’S REGISTRY
AND FOR SANCTIONS
Comes now, Steven J. Prusank, Respondent in the above captioned suit, and represents to the Court
that on 30 December 2020, Diana Miller signed and filed a frivolous suit for divorce in order to harass
Steven J. Prusank and cause him to incur unnecessary attorney’s fees to defend against her groundless claim
of acommon law marriage. As part of her campaign of harassment, Miller used this Court’s standing order
to interfere with the sale of Prusank’s separate property home and demand that the proceeds from the sale
of the house be deposited into the Court’s registry. Miller later nonsuited — thereby admitting that there
never was a marriage in the first place — but continues to prevent Prusank from accessing his separate funds
by opposing his motion to withdraw funds. Prusank now asks the court to (1) release the funds from the
Court’s registry and (2) sanction Miller by awarding the attorney’s fees incurred to defend this frivolous
and groundless lawsuit.
FIRST AMENDED MOTION TO WITHDRAW FUNDS FROM THE COURT’S REGISTRY
Steven Prusank has asked the Court to release his separate funds, which are currently held in the
Court’s registry. Diana Miller has admitted that “[t]here is no issue with release of funds.” In her response
to Prusank’s original motion to withdraw funds, Miller stated: “The current Motion to Withdraw Funds and
for Sanctions is simply a frivolous motion to withdraw funds that isn’t even necessary as the case was
dismissed. .. . (emphasis added)”! Then, again, on 4 August 2021, Miller’s counsel represented to the court
coordinator: “There is no objection to the withdrawal of funds.” Yet, at the hearing on 9 August 2021,
Miller’s counsel objected to the withdrawal and demanded this hearing. Prusank now shows the Court that
there is still no issue because, as she acknowledged, Miller abandoned any claim she might have had to the
1 Resp. to “Mot to Withdraw Funds and Mot for Sanctions,” Index #22.
2 Email from Michelle LeBlanc, Petitioner’s attomey, to Janie Gaeta, Court Coordinator (Aug. 4, 2021), attached hereto as Exhibit 19.
ITMOTMO Miller & Prusank Cause No. 20-DCV-279555
1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court
Page | of 10 Fort Bend County, Texas
funds by filing a non-suit, and even if she hadn’t, the funds are Prusank’s separate property and should be
released immediately.
1. Miller abandoned her claim to any interest in the funds on deposit when she filed her Notice
of Nonsuit on 7 June 2021, and thus, the funds should be released immediately.
Diana Miller abandoned any claim she might have had to the funds on deposit when she filed and
the court signed her Notice of Nonsuit because the nonsuit extinguished her case and all controversy
immediately upon filing. Texas Rule of Civil Procedure 162 allows a plaintiff to take a non-suit at any time
before introducing all evidence.? The right to nonsuit is unqualified and absolute as to the petitioner’s
claims.’ Claims to withdraw funds and for sanctions are not claims for affirmative relief,> but are expressly
allowed by Texas Rule of Civil Procedure 162 following a non-suit.° Rule 162 expressly states that a
nonsuit “shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative
relief or excuse the payment of all costs taxed by the clerk,” and a dismissal “shall have no effect on any
oT
motion for sanctions, attorney’s fees, or other costs, pending at the time of dismissal.
Moreover, the non-suit extinguishes the case and all controversies immediately upon the mere filing
of the notice.’ Because the non-suit’s filing “moots the case” by extinguishing all of Petitioner’s claims
and controversies, the Court’s power to hear Petitioner’s arguments is ended, subject only to Respondent’s
surviving claims for relief.? The Supreme Court of Texas, therefore, recognizes that Rule 162 allows the
Court to hold hearings on matters that are “collateral to the merits of the underlying case,” and “[a]lthough
the Rule permits motions for costs, attorney’s fees, and sanctions to remain viable in the trial court, it does
not forestall the nonsuit’s effect of rendering the merits of the case moot. (emphasis added) 3910
By filing a Notice of Nonsuit, Miller abandoned her claim of a common law marriage, immediately
extinguishing any real or perceived right she might have had to the funds received from the sale of Prusank’s
separate real property. Because Miller’s claim of a marriage is moot, Miller has no claim to the funds and
her objection to their withdrawal is nothing more than further harassment and fee inflation. For these
3 Tex. R. Civ. P. 162; ; Univ. of Tex. Med. Branch at Galveston y. Estate of Blackmon, 195 8.W.3d 98, 100 (Tex. 2006) (per curiam), attached
hereto as Prusank exhibit |
Morath v. Lewis, 601 S.W.3d 785, 787 (Tex. 2020) (quoting BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840 (Tex. 1990)), attached
hereto as Prusank Exhibit 2 & 3.
See Estate of Blackmon, 195 S.W.3d at 100 (defining affirmative reliefas an independent cause of action on which compensation or relief
could be recovered, even after petitioner’s claims are abandoned or not established); Millard, 800 S.W.2d at 841 (same).
Estate of Blackmon, 195 8.W.3d at 100 (quoting Tex. R. Civ. P. 162)
Id, (quoting Tex. R. Civ. P. 162)
Morath, 601 S.W.3d at 788 (quoting Estate of Blackmon, 195 S.W.3d at 100).
Id. (quoting Klein v. Hernandez, 315 8.W.3d 1, 3 (Tex. 2010) (holding that after non-suit in the trial court, "there was no live controversy
for the court of appeals to decide"), attached hereto as Prusank Exhibit 4.
w Estate of Blackmon, 195 8.W.3d at 101
ITMOTMO Miller & Prusank Cause No. 20-DCV-279555
1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court
Page
2 of 10 Fort Bend County, Texas
reasons, Prusank asks the Court to immediately authorize and direct the Honorable Beverley McGrew
Walker, the District Clerk of Fort Bend County, Texas, to pay over and deliver those funds to Prusank.
Even disregarding the nonsuit, the funds on deposit with the Court can be directly traced
from the sale of Prusank’s separate real property in which Miller has no interest, and thus,
the funds should be released immediately.
Even if Diana Miller had not abandoned her claims by filing a non-suit, Miller has no claim to
Steven J. Prusank’s separate property, including funds derived from the sale of real property purchased
before the date on which a common law marriage could possibly have begun. Prusank purchased the real
property located at on 18 March 2015, while he was a single man
living in Massachusetts, a non-common law marriage, non-community property state. The real property is,
therefore, Prusank’s separate property as a matter of law.
Even if Miller could show that she and Prusank entered into a common law marriage, that marriage
could not have started before the couple moved to Texas on 6 April 2015; thus, the house is separate
property as a matter of law, and the funds resulting from its sale remain separate property. Because a Texas
divorce Court lacks jurisdiction to adjudicate separate property, the Court must allow Prusank to withdraw
these funds immediately from the Court’s registry.
The Texas Constitution and the Texas family Code both define separate property to include real
property owned before marriage.
SEPARATE AND COMMUNITY PROPERTY OF SPOUSES. All
property, both real and personal, of a spouse owned or claimed before
marriage, and that acquired afterward by gift, devise or descent, shall be
the separate property of that spouse; and laws shall be passed more clearly
defining the rights of the spouses, in relation to separate and community
property a
SEPARATE PROPERTY. A spouse's separate property consists of:
(1) the property owned or claimed by the spouse before marriage;
(2) the property acquired by the spouse during marriage by gift,
devise, or descent; and
(3) the recovery for personal injuries sustained by the spouse during
marriage, except any recovery for loss of earning capacity during
marriage.!
" Tex. Const. art. XVI, § 15
2 Tex. Fam. C. § 3.001
ITMOTMO Miller & Prusank Cause No. 20-DCV-279555
1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court
Page 3 of 10 Fort Bend County, Texas
Property is characterized as either community or separate at the inception of the property’s title.'®
“Inception of title occurs when a party first has a claim to the property by virtue of which title is finally
vested.”'* The property’s character is, therefore, determined at the time it is acquired. '*
Prusank purchased the real property located ee on 18
March 2015.!° At the time that he purchased the property, Prusank resided at 17 Oak Street, Charlestown,
MA 02129.'7 Massachusetts does not recognize common law marriage. Massachusetts does not have
community property. The One to Four Family Residential Contract (Resale) lists only Prusank as the
buyer.'® The Deed of Trust states that the purchaser is a single man.'? Prusank filed his Texas homestead
exemption as a single adult.2” Fort Bend County Appraisal District’s property details shows Prusank’s
ownership as 100%.7!
Not one document has been produced that supports Miller’s claim to any interest in this separate
property, yet when Prusank listed the real property for sale in January 2021, despite knowing that the
property was Prusank’s separate property, Miller demanded that the sale be stopped.” On 2 January 2021,
Miller emailed Prusank, acknowledging Prusank’s plan to sell his house.”? On 24 February 2021, however,
Miller’s counsel demanded that the sale be stopped due to the Court’s standing order,”* which prevents a
party from selling even their separate property. After a prolonged negotiation during which Miller
alternated between agreeing and not, an agreed order was finally submitted to the Court and signed on 12
March 2021,75 allowing the sale to proceed. On 26 March 2021, the sale closed, and on or about 29 March
2021, funds in the amount of two hundred twenty-four thousand, three hundred, one dollars and forty-seven
cents ($224,301.47) were deposited into the court’s registry.”°
Since this case’s inception, Prusank has provided clear and convincing evidence that the real
property was purchased before the date on which Miller alleges a common law marriage began, and that no
marriage agreement was ever entered. The funds on deposit with the Court have been Prusank’s separate
a Smith v. Smith, 22 $.W.3d 140, 145 (Tex.App.—Houston [14 Dist.] 2000, no pet.), attached hereto as Prusank Exhibit 5.
“4 Id.
5 Id.
6 Settlement Statement (HUD-1), attached hereto as Prusank Exhibit 6.
” Td.
8 One to Four Family Residential Contract (Resale), attached hereto as Prusank Exhibit 7.
» Deed of Trust, attached hereto as Prusank Exhibit 8.
20 Texas Homestead Exemption, attached hereto as Prusank Exhibit 9.
a Ft. Bend CAD Property Search, attached hereto as Prusank Exhibit 10.
2 Emails relating to the sale of Prusank’s separate real property and Miller’s vacillation on agreement to deposit funds into the court’s,
registry, attached hereto as Prusank Exhibit 11
2 Id.
4 Id.
25 Order Granting Unopposed Motion to Sell Real Property and Deposit Funds Into the Court's Registry, Index #10.
26 Proof
of Delivery of Funds to Court, attached hereto as Prusank Exhibit 12.
ITMOTMO Miller & Prusank Cause No. 20-DCV-279555
1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court
Page
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property since the house’s title vested in Prusank. Prusank, therefore, asks the court to order the release of
the deposited funds from the court’s registry and to order Diana Miller to pay the attorney’s fees and costs,
including the fees related to withdrawing funds from the court’s registry, as a sanction pursuant to Texas
Rule of Civil Procedure 13 and Texas Ci il Practice and Remedies Code, Chapter 10 for purposefully and
without grounds denying Prusank his separate property.
Steven J. Prusank asks this Court to order the Honorable Beverley McGrew Walker, the District
Clerk of Fort Bend County, Texas, to release the funds previously deposited in this case, plus any and all
accrued interest currently held in the Registry of this Court, to Prusank by mailing a check payable to Steven
J. Prusank, to his attorney of record, deborah lawson, at deborah lawson, Attorney at Law, p.l.L.c., P.O. Box
940082, Houston, TX 77094-7082.
FIRST AMENDED MOTION FOR SANCTIONS
Diana Miller should be sanctioned for filing a petition that was frivolous, groundless, and brought
in bad faith and to harass because Miller knew that she was not married to Prusank when she filed both the
petition and the notice of non-suit. On or about 30 December 2020, Diana Miller, through counsel, signed
and filed a Petition for Divorce, alleging that she and Steven J. Prusank were “common law married on or
about 2015.””7_ Atthe time that the petition was signed, Miller knew that she and Prusank were not married,
as detailed more fully in Prusank’s Motion for Summary Judgment,”* yet Miller “signed” the pleading in
violation of Texas Rule of Civil Procedure 13, certifying that the pleading was not “groundless and brought
in bad faith or groundless and brought for the purpose of harassment.””? Miller’s pleading was also brought
solely to harass Prusank and to cause unnecessary delay and needless increase to his litigation costs, which
it has done, in violation of Texas Civil Practice and Remedies Code, Chapter 10.°°
At any time during the suit, a plaintiff has an absolute right to file a nonsuit, and the dismissal is
effective as soon as the motion is filed, extinguishing the petitioner’s case and controversies immediately
upon the notice’s filing“! By “moot[ing] the case,” the Court’s power to hear Petitioner’s arguments is
ended, subject only to Respondent’s pending claims for relief.** Specifically, the nonsuit has “no effect on
any motion for sanctions . pending at the time of the dismissal. 9933 This Court, therefore, retains
a Pet. at 2, para. 6.
28 Prusank’s Motion for Summary Judgment, Index #16.
2» Tex. R. Ci P.13.
30 Tex. Civ. Prac. & Rem. Code, Ch. 10.
a Morath, 601 S.W.3d at 788 (quoting Estate of Blackmon, 195 $.W.3d at 100).
2 Id. (quoting Klein, 315 S.W.3d at 3 (holding that after non-suit in the trial court, "there was no live controversy for the court of appeals to
decide").
3 Miller v. Armogida, 877 S.W.2d 361, 364 (Tex.App.—Houston [1 Dist. 1994 (quoting Tex. R. Civ. P. 162), attached hereto as Prusank
Exhibit 13.
ITMOTMO Miller & Prusank Cause No. 20-DCV-279555
1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court
Page 5 of 10 Fort Bend County, Texas
jurisdiction to grant the sanctions for filing a frivolous and/or groundless lawsuit that were originally
requested in Prusank’s Motion for Summary Judgment, and reiterated herein.
Miller would have this Court believe that the documents attached to her response, which are
untimely and inadmissible hearsay, absolve her of any frivolity or groundlessness; however, they do nothing
to dispel the fact that — at the time of filing the suit, as well as now — Miller had no evidence that she was
anything more than engaged to Prusank, as detailed more fully in Prusank’s summary judgment motion.**
Miller has no evidence to support her claim of a common law marriage. In response to discovery
requests, Miller produced not a single document or affidavit, and the only people identified as having
relevant knowledge were Miller and Prusank themselves.*> Based on that lack of evidence, on 1 June 2021,
Prusank filed a Motion for Summary Judgment asking the court to dismiss the suit and award sanctions in
the form of attorney’s fees.** In response, on 7 June 2021, Miller filed a Notice of Nonsui 37 By nonsuiting
the case, Miller, for all intents and purposes, admitted that there was never a marriage to begin with, and
therefore, her suit has always been groundless, as one cannot simply walk away from an informal marriage
without a divorce, just because the divorce proceedings become too expensive. At that time, Miller had
caused Prusank to incur attorney’s fees totaling $20,843.75 defending a frivolous and groundless lawsuit.
Now, Prusank’s fees total $25,922.92.38
Now, after abandoning all of her claims, rather than responding to Prusank’s summary judgment
motion, Miller attempts to reopen discovery in the underlying cause by attaching to her response a letter
from Prusank’s employer” and six affidavits from family and friends,’ none of whom were identified in
response to the required initial disclosures and all of which are dated after the non-suit, to show that her
original petition was not frivolous when filed. Because none of these documents or witnesses were
produced or named in response to discovery, they are untimely, and therefore, inadmissible pursuant to
Texas Rule of Civil Procedure 193.6, and out of an abundance of caution, Prusank objects to their late
admission now.
u See generally Prusank’s Motion for Summary Judgment, Index #16.
3s See Miller’s responses to Rule 194 Requests for Disclosure, Responses to Request for Production, and Rule 197 Written Interrogatories,
attached hereto as Prusank Exhibit 14,
36 See generally Prusank’s Motion for Summary Judgment, Index #16.
a Notice of Nonsuit, Index #18
38 Affidavit supporting Attorney's Fees, attached hereto as Prusank Exhibit 20.
” Letter from Sri S. Sandoval, Benefits Specialist, Trident Seafoods Corp. to Whom It May Concern (June 20, 2021), attached to Miller’s
Response to “Motion to Withdraw Funds and Motion for Sanctions” as Exhibit 1, Index #22
0 Affidavits attached to Miller’s Response to “Motion to Withdraw Funds and Motion for Sanctions” as Exhibit 3, Index #22.
ITMOTMO Miller & Prusank Cause No. 20-DCV-279555
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Specifically, Prusank objects to this new direct evidence as untimely because it was not produced
in response to discovery or even before the non-suit was filed.“’ On 11 March 2021, each party propounded
discovery on the other. In response, Prusank produced 207 pages of documents disproving the existence
of an informal marriage, showing that Prusank consistently holds himself out as single.*? Miller produced
no documents, responding with only a few unsupported, self-serving statements.** Even accepting all of
Miller’s statements as true, there is insufficient evidence to support an agreement to be married, if not to
disprove all three elements.“
In addition to being hearsay, the letter from Trident’s Benefits Specialist, which Miller had created
specifically for her response to this motion and dated after her claims were abandoned, is insufficient to
support an agreement to be married because it merely confirms that Trident’s records show that Diana
Miller “was covered through spouse Steven Pruaank under Trident Seafoods’ . . . insurance from 12/1/2016
through July 31, 2020. .5 Miller has failed to produce a document signed by Prusank actually holding
himself out as her spouse.
But even if there was a document signed by Prusank, which there isn’t, a signature on a third-party
document is not, alone, prima facie evidence of holding out sufficient to prove an agreement, it merely goes
to the weight of the evidence to be considered.** In Jn re Sneed, the Eastland appellate court stated: “Even
though the joint tax returns were filed under penalty of perjury, they alone are not prima facie evidence of
holding out; rather, they merely go to the weight of the evidence to be considered.”*” The San Antonio
appellate court reached the same conclusion, stating: “[R]epresentations made to governmental entities do
not estop a party from later claiming in an unrelated suit the existence or non-existence of an informal
marriage and those representations go to the weight of the evidence.”** Citing these opinions in Pedone,
the Amarillo appellate court found that numerous documents related to a land purchase described the parties
“a single person,” directly contradicted the joint tax returns; thus, the evidence before the court was
“anything but conclusive.”*° Similarly, here, a letter stating that an employer’s records call someone a
4 See generally, Miller’s responses to discovery, which do not include these documents, attached hereto as Prusank Exhibit 14.
2 See e.g. the documents attached to Prusank’s Motion for Summary Judgement as exhibits E-P, Index #16.
a See Miller’s responses to Rule 194 Requests for Disclosure, Responses to Request for Production, and Rule 197 Written Interrogatories,
attached hereto as Prusank Exhibit 14.
“4 See generally Prusank’s Motion for Summary Judgment, Index #16.
4s Letter from Sri S. Sandoval, Benefits Specialist, Trident Seafoods Corp. to Whom It May Concern (June 20, 2021), attached to Miller’s
Response to “Motion to Withdraw Funds and Motion for Sanctions” as Exhibit 1, Index #22.
6 Pedone y. Harvey, No. 01-17-00394- 'V, at *11 (Tex.App.-Amarillo Aug. 2, 2018), attached hereto as Prusank Exhibit 15; Jn re Sneed, No.
11-16-00051-CV, at *1 (Tex. App.—Eastland April 12, 2018, pet. filed May 29, 2018) (mem. op.), attached hereto as Prusank Exhibit 16.
a In re Sneed, No. \1-16-00051-CV, at *1
8 Leyendecker v. Uribe, No. 04-17-00163-CV, at*9-10 (Tex. App.—San Antonio Jan. 17, 2018, pet. denied) (mem. op.). attached hereto as
Prusank Exhibit 17.
° Pedone, No. 01-17-00394-C sl
0 Id.
ITMOTMO Miller & Prusank Cause No. 20-DCV-279555
1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court
Page
7 of 10 Fort Bend County, Texas
spouse do not prove that the employee held himself out as married, but rather go solely to the weight of the
evidence before the court. And, here, this post-non-suit letter is outweighed by the totality of the evidence
before the Court.
Even the untimely affidavits, most of which provide only anecdotal assumptions, are outweighed
by the totality of Prusank’s documentary evidence. Where, as here, there is no direct evidence of an
agreement to be married, to prevail on a claim based on circumstantial evidence, Miller must prove by
particularly convincing evidence that the couple cohabitated and held themselves out as a married couple,
which Miller cannot do because a scintilla of circumstantial evidence cannot overcome copious direct
evidence. In Assoun v. Gustafson, opponents’ affidavits, supported by documentary evidence, stated that
the couple did not have an agreement to be married; there was no formal wedding in any county; there was
no premarital agreement; a previous hearing transcript characterized the relationship using the term
“boyfriend;” automobile insurance declared opponent’s marital status as “divorced;” a homestead and
marital status affidavit related to a house sale declared opponent to be “Divorced Single;” income taxes
were filed as “head of household;” and an apartment application left “your spouse” blank, but noted
“boyfriend” for the emergency contact.*! To attempt to create a fact issue, proponent argued that the couple
lived together; opponent wears a ring on her ring finger; children refer to her as “stepmom;” and there are
occasional registrations as husband and wife in foreign hotels.** The Dallas appellate court found that
proponent’s circumstantial evidence of a marriage failed to create a fact issue in light of opponents direct
evidence that the “parties never agreed to be married and informed government agencies that each was
single.”*? Because there was no meeting of the minds, the court found that there could be no contract, and
hence no marriage.** The appellate court expressly approved the lower court’s summary judgment
dismissal on the evidence provided because the case presented an instance where “circumstantial evidence
cannot overcome the direct evidence, which unequivocally negates the possibility of finding an agreement
to be married.”°> Just like in Assoun, the circumstantial evidence that Miller offers months after filing a
non-suit fails to overcome the direct evidence that there was no marriage, a fact that Miller knew when she
filed suit almost a year ago.
Even after filing the non-suit and abandoning her claims, Miller continues to oppose Prusank’s
motion to withdraw his separate funds, as detailed more fully in the motion to withdraw funds, causing
Prusank to incur additional, unnecessary, attorney’s fees. Miller alleges that she abandoned her divorce
st Assoun v. Gustafson, 493 S.W.3d 156, 16-62 (Tex. App.—Dallas 2016, pet. filed), attached hereto as Prusank Exhibit 18.
2 Id. at 163.
ss Td.
4 Id.
55 Id.
ITMOTMO Miller & Prusank Cause No. 20-DCV-279555
1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court
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petition because of the cost, yet continues to fight Prusank’s attempts to withdraw his separate property
funds from the court’s registry, resulting in additional fees and costs to both parties and belying her
underlying argument.
As detailed in Prusank’s summary judgment motion, the parties were never married, and Miller
continues to simply harass Prusank, forcing him to incur unnecessary fees and costs, such as the drafting of
this motion and the motion to withdraw separate funds from the court’s registry, and attendance at multiple
hearings on both motions. Prusank, therefore, asks this Court to award him sanctions in the form of his
attorney’s fees for defending this suit for divorce brought by a woman that he never married.
ATTORNEY’S FEES
Tt was necessary for Steve Prusank to secure the services of deborah lawson, a licensed attorney, to
prepare and defend this frivolous suit, which Diana Miller brought solely to harass, and then, failed to
prosecute and eventually nonsuited, yet continues to oppose at every opportunity. Judgment for attorney’s
fees, expenses, and costs should be granted against Miller and in favor of Prusank for the use and benefit
of Prusank’ attorney; or, in the alternative, Prusank requests that reasonable attorney’s fees, expenses, and
costs be taxed as costs and be ordered paid directly to Prusank’ attorney, who may enforce the order in the
attorney’s own name. Prusank also requests pre and post-judgment interest as allowed by law.
PRAYER
Steven J. Prusank prays that this Honorable Court authorize and direct the Honorable Beverley
McGrew Walker, the District Clerk of Fort Bend County, Texas, to pay over and deliver to Steven J.
Prusank the total sums of money that are now on deposit in this case, plus any and all accrued interest
currently held in the Registry of this Court, to Prusank by mailing a check payable to Steven J. Prusank, to
his attorney of record, deborah lawson, at deborah lawson, Attorney at Law, p.l.l.c., P.O. Box 940082,
Houston, TX 77094-7082.
Steven J. Prusank prays for an award of his attorney’s fees and costs, totaling $20,843.75, related
to defending against this frivolous and groundless lawsuit and the fight to withdraw his separate funds from
the court’s registry; and the fees and costs associated with withdrawing his separate funds from the court’s
registry; as well as pre and post-judgment interest; as a sanction against Diana Miller, pursuant to Texas
Rule of Civil Procedure 13 and Texas Civil Practice and Remedies Code, Chapter 10, for filing a frivolous
and groundless lawsuit solely to harass Prusank and cause him to incur unnecessary litigation costs.
ITMOTMO Miller & Prusank Cause No. 20-DCV-279555
1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court
Page
9 of 10 Fort Bend County, Texas
Steven J. Prusank prays for such other and further relief to which Steven J. Prusank may show just
entitlement.
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing document was served on each attorney of record or party
in accordance with the Texas eFiling Rules and Texas Rules of Civil Procedure through
https://efile.txcourts.gov.
DATED: 7 September 2021
Respectfully submitted,
deborah |: ry: , Sip at Law Llc.
by:
deboi
ce
State Bar No. 24041306 « Fi eral ILD. No. 37140
deborah lawson, Attorney at Law, p.l.l.c.
P.O. Box 940082, Houston, Texas 77094-7082
(713) 478-2618 * deborah@lawsonlegal.net
Attorney for Respondent, Steve Prusank
ITMOTMO Miller & Prusank Cause No. 20-DCV-279555
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University of Texas v. Estate of Blackmon, 195 S.W.3d 98 (Tex. 2006)
Prusank Exhibit 1
195 S.W.3d 98 diagnose and treat her mother's illness.
THE UNIVERSITY OF TEXAS Shultz alleged a waiver of sovereign immunity
MEDICAL BRANCH AT GALVESTON, under the Tort Claims Act's exception for
Petitioner, personal injury or death caused by a
v. condition or use of tangible personal
THE ESTATE OF DARLA BLACKMON, property. See TEX. CIV. PRAC. & REM.
by its Beneficiary Sheila SHULTZ, and CODE § 101.021(2). UTMB filed a plea to the
Sheila Shultz, Individually, jurisdiction, which the trial court denied, and
Respondents. then brought an interlocutory appeal. See id.
No. 05-0594. § 51.014(a)(8).
Supreme Court of Texas.
June 9, 2006. The court of appeals initially reversed the
trial court's order and rendered judgment for
Page 99 UTMB, but then withdrew its judgment upon
granting Shultz's motion for rehearing. Three
Greg Abbott, Attorney General of Texas, weeks later, Shultz filed a nonsuit and moved
Barry Ross McBee, Edward D. Burbach, to dismiss the appeal for want of jurisdiction.
Rafael Edward Cruz, Ryan D. Clinton, Office The court of appeals denied Shultz's motion,
of the Attorney General, Nichelle A. Cobb, and eventually issued a new opinion denying
Tort Litigation Division, Austin, for UTMB's plea to the jurisdiction. 169 S.W.3d
712. Responding to UTMB's appeal in this
Page 100 Court, Shultz contends that there is no longer
a case or controversy, and that her nonsuit
The University of Texas Medical Branch at deprived the court of appeals of jurisdiction
Galveston. over UTMB's appeal. We agree.
Stephen A. Khoury, Kelsoe Anderson
Khoury & Clark, Dallas, for The Estate of
Darla Blackmom and Sheila Shultz.
PER CURIAM.
entered
in the minutes." TEX. R. CIV. P. 162.
While the petitioner's interlocutory
Rule 162 applies in this case because Shultz
appeal from its plea to the jurisdiction was
filed the nonsuit while this matter was
pending in the court of appeals, the
pending on interlocutory appeal from
respondent filed a nonsuit. We conclude that
UTMB's pretrial plea to the jurisdiction.
the nonsuit deprived the court of appeals of
jurisdiction, and we vacate its order and
dismiss this interlocutory appeal for want of extinguishes a case or controversy from "the
jurisdiction. moment the motion is filed” or an oral motion
is made in open court; the only requirement
Darla Blackmon died of pneumonia while is "the mere filing of the motion with the clerk
of
court."
the Shadowbrook Apts. v. Abu-
incarcerated at a Texas Department of
Ahmad, 783 S.W.2d 210, 211 (Tex.1990); see
Criminal Justice substance abuse facility
also Greenberg v. Brookshire, 640 S.W.2d
operated by the University of Texas Medical
Branch at Galveston (UTMB). Blackmon's 870, 872 (Tex.1982). While’the
date of which
daughter, Sheila Shultz, brought suit for
wrongful death and survival damages, suit is the "starting point for determining
claiming that UTMB negligently failed to when a trial court's plenary power expires," a
nonsuit is effective when it is filed. In re
-1-
University of Texas v. Estate of Blackmon, 195 S.W.3d 98 (Tex. 2006)
Bennett, 960 S.W.2d 35, 38 (Tex.1997); TEX. rendered a judgment on the merits. See
R. CIV, P. 329b. The trial court generally has Hyundai Motor Co. v. Alvarado, 892 S.W.2d
853, 854 (Tex.1995) (holding that a nonsuit
its order doing so is ministerial.In re results in a dismissal with prejudice as to
Bennett, 960 S.W.2d at 38; Shadowbrook, claims already adjudicated on partial
783 S.W.2d at 211. summary judgment). In this case, however,
the court of appeals withdrew its judgment
Of course, the trial court need not for UTMB before the nonsuit was filed. As a
immediately
dismiss the suit when notice of result, the nonsuit vitiated only the trial
nonsuit is filed. Rule 162 states that the court's interlocutory order denying UTMB's
plea to the jurisdiction. That ruling favored
Shultz and, consequently, its nullification did
not prejudice UTMB.
The court of appeals lacked jurisdiction
to issue an order and opinion on rehearing.
a TEX. Accordingly, without hearing oral argument,
we grant the petition for review, vacate the
court of appeals’ order, and dismiss the
Page 101 appeal for want of jurisdiction. TEX. R. APP.
P. 59.1, 60.2(e).
CIV. P. 162. affirmative
A claim for relief must
allege a cause of action, independent of the
plaintiff's claim, on which the claimant could
recover
compensation or relief, even if the
plaintiff abandons or is unable to establish his
cause
of action. BHP Petroleum Co., Inc. v.
Millard, 800 S.W.2d 838, 841 (Tex.1990).
UTMB has not raised a claim for affirmative
relief, but it did request costs in its plea to the
jurisdiction. Rule 162 permits the trial court
to hold hearings and enter orders affecting
costs, attorney's fees, and sanctions, even
after notice of nonsuit is filed, while the court
retains plenary power. In re Bennett, 960
S.W.2d at 38. Thus, the trial court has
discretion to defer signing an order of
dismissal so that it can "allow a reasonable
amount of time" for holding hearings on these
matters which are "collateral to the merits of
the underlying case." Id. at 38-39. Although
fees, and sanctions to remain viable in the
trial court, it does not forestall the nonsuit's
effect of rendering the merits of the case
moot.
Finally, UTMB argues that a plaintiff
cannot nonsuit a claim once a court has
-2-
Morath v. Lewis, 601 S.W.3d 785 (Tex. 2020)
Prusank Exhibit 2
601 S.W.3d 785 I. Background
Mike MORATH, in His Official Capacity A group of parents of Texas public school
as Commissioner of the Texas students sued Mike Morath in his official
Education Agency, Petitioner, capacity as the Commissioner of the Texas
v. Education Agency. The suit alleges TEA
Virginia Diane LEWIS, Individually administered the 2015-2016 standardized
and as Next Friend To C.J.L., et al., STAAR exams in violation of the governing
Respondents statutes. Morath filed a _ plea to the
jurisdiction, arguing that the plaintiffs’ ultra
NO. 18-0555 vires claims could not proceed for several
reasons, including that the plaintiffs lack
Supreme Court of Texas. standing and that TEA did not violate the law
in administering the test. The trial court
OPINION DELIVERED: April 17, 2020 denied the plea to the jurisdiction. Morath
appealed, and the court of appeals affirmed,
Jason R. LaFond, Brantley David Starr,
holding that the plaintiffs adequately pleaded
Esteban M. Soto, Henry Carl Myers, W. ultra vires claims under City of El Paso v.
Kenneth Paxton Jr., Attorney General of
Heinrich and related decisions. Morath v.
Texas, Office of the Attorney General, Andrew
Lewis , No. 03-16-00603-CV, 2018 WL
J. Lutostanski, Office of the Texas Attorney
1527875, at *3-4 (Tex. App.—Austin, Mar. 29,
General, Administrative Law Division, Jeffrey
2018, pet. granted) (mem. op.).
C. Mateer, Texas Attorney General's Office,
First Asst. Attorney General, Angela V. Morath petitioned for review. His PFR alleges
Colmenero, Assistant Attorney General, that the plaintiffs lack standing, that the court
General Litigation Division, Kyle D. Hawkins, of appeals misconstrued the relevant statutes,
Office of the Attorney General, Solicitor and that the court of appeals’ opinion
General, Kristofer S. Monson, Office of the improperly expands the availability of ultra
Solicitor General, James Edward Davis, The vires relief by requiring TEA to spend funds
University of Texas at Austin, Scott Keller, not appropriated by the Legislature. This
Baker Botts LLP, Austin, for Petitioner. Court requested a response to the petition.
After receiving that response and a reply, the
Jonathan L. Chaltain, Kyle Mullins Jones, R.
Court requested merits briefs. After Morath
Scott Placek, Arnold & Placek, P.C., Round
filed his merits brief, Respondents decided to
Rock, for Respondents.
cease pursuing their claims. They filed in this
Preview
Filed 9/10/2021 9:55 AM Beverley McGrew Walker District Clerk Fort Bend County, Texas Jeanette Sanchez NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA NO. 20-DCV-279555 IN THE MATTER OF IN THE DISTRICT COURT THE MARRIAGE OF DIANA MILLER 387™ JUDICIAL DISTRICT AND STEVEN J. PRUSANK FORT BEND COUNTY, TEXAS FIRST AMENDED MOTIONS TO WITHDRAW FUNDS FROM THE COURT’S REGISTRY AND FOR SANCTIONS Comes now, Steven J. Prusank, Respondent in the above captioned suit, and represents to the Court that on 30 December 2020, Diana Miller signed and filed a frivolous suit for divorce in order to harass Steven J. Prusank and cause him to incur unnecessary attorney’s fees to defend against her groundless claim of acommon law marriage. As part of her campaign of harassment, Miller used this Court’s standing order to interfere with the sale of Prusank’s separate property home and demand that the proceeds from the sale of the house be deposited into the Court’s registry. Miller later nonsuited — thereby admitting that there never was a marriage in the first place — but continues to prevent Prusank from accessing his separate funds by opposing his motion to withdraw funds. Prusank now asks the court to (1) release the funds from the Court’s registry and (2) sanction Miller by awarding the attorney’s fees incurred to defend this frivolous and groundless lawsuit. FIRST AMENDED MOTION TO WITHDRAW FUNDS FROM THE COURT’S REGISTRY Steven Prusank has asked the Court to release his separate funds, which are currently held in the Court’s registry. Diana Miller has admitted that “[t]here is no issue with release of funds.” In her response to Prusank’s original motion to withdraw funds, Miller stated: “The current Motion to Withdraw Funds and for Sanctions is simply a frivolous motion to withdraw funds that isn’t even necessary as the case was dismissed. .. . (emphasis added)”! Then, again, on 4 August 2021, Miller’s counsel represented to the court coordinator: “There is no objection to the withdrawal of funds.” Yet, at the hearing on 9 August 2021, Miller’s counsel objected to the withdrawal and demanded this hearing. Prusank now shows the Court that there is still no issue because, as she acknowledged, Miller abandoned any claim she might have had to the 1 Resp. to “Mot to Withdraw Funds and Mot for Sanctions,” Index #22. 2 Email from Michelle LeBlanc, Petitioner’s attomey, to Janie Gaeta, Court Coordinator (Aug. 4, 2021), attached hereto as Exhibit 19. ITMOTMO Miller & Prusank Cause No. 20-DCV-279555 1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court Page | of 10 Fort Bend County, Texas funds by filing a non-suit, and even if she hadn’t, the funds are Prusank’s separate property and should be released immediately. 1. Miller abandoned her claim to any interest in the funds on deposit when she filed her Notice of Nonsuit on 7 June 2021, and thus, the funds should be released immediately. Diana Miller abandoned any claim she might have had to the funds on deposit when she filed and the court signed her Notice of Nonsuit because the nonsuit extinguished her case and all controversy immediately upon filing. Texas Rule of Civil Procedure 162 allows a plaintiff to take a non-suit at any time before introducing all evidence.? The right to nonsuit is unqualified and absolute as to the petitioner’s claims.’ Claims to withdraw funds and for sanctions are not claims for affirmative relief,> but are expressly allowed by Texas Rule of Civil Procedure 162 following a non-suit.° Rule 162 expressly states that a nonsuit “shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk,” and a dismissal “shall have no effect on any oT motion for sanctions, attorney’s fees, or other costs, pending at the time of dismissal. Moreover, the non-suit extinguishes the case and all controversies immediately upon the mere filing of the notice.’ Because the non-suit’s filing “moots the case” by extinguishing all of Petitioner’s claims and controversies, the Court’s power to hear Petitioner’s arguments is ended, subject only to Respondent’s surviving claims for relief.? The Supreme Court of Texas, therefore, recognizes that Rule 162 allows the Court to hold hearings on matters that are “collateral to the merits of the underlying case,” and “[a]lthough the Rule permits motions for costs, attorney’s fees, and sanctions to remain viable in the trial court, it does not forestall the nonsuit’s effect of rendering the merits of the case moot. (emphasis added) 3910 By filing a Notice of Nonsuit, Miller abandoned her claim of a common law marriage, immediately extinguishing any real or perceived right she might have had to the funds received from the sale of Prusank’s separate real property. Because Miller’s claim of a marriage is moot, Miller has no claim to the funds and her objection to their withdrawal is nothing more than further harassment and fee inflation. For these 3 Tex. R. Civ. P. 162; ; Univ. of Tex. Med. Branch at Galveston y. Estate of Blackmon, 195 8.W.3d 98, 100 (Tex. 2006) (per curiam), attached hereto as Prusank exhibit | Morath v. Lewis, 601 S.W.3d 785, 787 (Tex. 2020) (quoting BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840 (Tex. 1990)), attached hereto as Prusank Exhibit 2 & 3. See Estate of Blackmon, 195 S.W.3d at 100 (defining affirmative reliefas an independent cause of action on which compensation or relief could be recovered, even after petitioner’s claims are abandoned or not established); Millard, 800 S.W.2d at 841 (same). Estate of Blackmon, 195 8.W.3d at 100 (quoting Tex. R. Civ. P. 162) Id, (quoting Tex. R. Civ. P. 162) Morath, 601 S.W.3d at 788 (quoting Estate of Blackmon, 195 S.W.3d at 100). Id. (quoting Klein v. Hernandez, 315 8.W.3d 1, 3 (Tex. 2010) (holding that after non-suit in the trial court, "there was no live controversy for the court of appeals to decide"), attached hereto as Prusank Exhibit 4. w Estate of Blackmon, 195 8.W.3d at 101 ITMOTMO Miller & Prusank Cause No. 20-DCV-279555 1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court Page 2 of 10 Fort Bend County, Texas reasons, Prusank asks the Court to immediately authorize and direct the Honorable Beverley McGrew Walker, the District Clerk of Fort Bend County, Texas, to pay over and deliver those funds to Prusank. Even disregarding the nonsuit, the funds on deposit with the Court can be directly traced from the sale of Prusank’s separate real property in which Miller has no interest, and thus, the funds should be released immediately. Even if Diana Miller had not abandoned her claims by filing a non-suit, Miller has no claim to Steven J. Prusank’s separate property, including funds derived from the sale of real property purchased before the date on which a common law marriage could possibly have begun. Prusank purchased the real property located at on 18 March 2015, while he was a single man living in Massachusetts, a non-common law marriage, non-community property state. The real property is, therefore, Prusank’s separate property as a matter of law. Even if Miller could show that she and Prusank entered into a common law marriage, that marriage could not have started before the couple moved to Texas on 6 April 2015; thus, the house is separate property as a matter of law, and the funds resulting from its sale remain separate property. Because a Texas divorce Court lacks jurisdiction to adjudicate separate property, the Court must allow Prusank to withdraw these funds immediately from the Court’s registry. The Texas Constitution and the Texas family Code both define separate property to include real property owned before marriage. SEPARATE AND COMMUNITY PROPERTY OF SPOUSES. All property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate and community property a SEPARATE PROPERTY. A spouse's separate property consists of: (1) the property owned or claimed by the spouse before marriage; (2) the property acquired by the spouse during marriage by gift, devise, or descent; and (3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.! " Tex. Const. art. XVI, § 15 2 Tex. Fam. C. § 3.001 ITMOTMO Miller & Prusank Cause No. 20-DCV-279555 1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court Page 3 of 10 Fort Bend County, Texas Property is characterized as either community or separate at the inception of the property’s title.'® “Inception of title occurs when a party first has a claim to the property by virtue of which title is finally vested.”'* The property’s character is, therefore, determined at the time it is acquired. '* Prusank purchased the real property located ee on 18 March 2015.!° At the time that he purchased the property, Prusank resided at 17 Oak Street, Charlestown, MA 02129.'7 Massachusetts does not recognize common law marriage. Massachusetts does not have community property. The One to Four Family Residential Contract (Resale) lists only Prusank as the buyer.'® The Deed of Trust states that the purchaser is a single man.'? Prusank filed his Texas homestead exemption as a single adult.2” Fort Bend County Appraisal District’s property details shows Prusank’s ownership as 100%.7! Not one document has been produced that supports Miller’s claim to any interest in this separate property, yet when Prusank listed the real property for sale in January 2021, despite knowing that the property was Prusank’s separate property, Miller demanded that the sale be stopped.” On 2 January 2021, Miller emailed Prusank, acknowledging Prusank’s plan to sell his house.”? On 24 February 2021, however, Miller’s counsel demanded that the sale be stopped due to the Court’s standing order,”* which prevents a party from selling even their separate property. After a prolonged negotiation during which Miller alternated between agreeing and not, an agreed order was finally submitted to the Court and signed on 12 March 2021,75 allowing the sale to proceed. On 26 March 2021, the sale closed, and on or about 29 March 2021, funds in the amount of two hundred twenty-four thousand, three hundred, one dollars and forty-seven cents ($224,301.47) were deposited into the court’s registry.”° Since this case’s inception, Prusank has provided clear and convincing evidence that the real property was purchased before the date on which Miller alleges a common law marriage began, and that no marriage agreement was ever entered. The funds on deposit with the Court have been Prusank’s separate a Smith v. Smith, 22 $.W.3d 140, 145 (Tex.App.—Houston [14 Dist.] 2000, no pet.), attached hereto as Prusank Exhibit 5. “4 Id. 5 Id. 6 Settlement Statement (HUD-1), attached hereto as Prusank Exhibit 6. ” Td. 8 One to Four Family Residential Contract (Resale), attached hereto as Prusank Exhibit 7. » Deed of Trust, attached hereto as Prusank Exhibit 8. 20 Texas Homestead Exemption, attached hereto as Prusank Exhibit 9. a Ft. Bend CAD Property Search, attached hereto as Prusank Exhibit 10. 2 Emails relating to the sale of Prusank’s separate real property and Miller’s vacillation on agreement to deposit funds into the court’s, registry, attached hereto as Prusank Exhibit 11 2 Id. 4 Id. 25 Order Granting Unopposed Motion to Sell Real Property and Deposit Funds Into the Court's Registry, Index #10. 26 Proof of Delivery of Funds to Court, attached hereto as Prusank Exhibit 12. ITMOTMO Miller & Prusank Cause No. 20-DCV-279555 1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court Page 4 of 10 Fort Bend County, Texas property since the house’s title vested in Prusank. Prusank, therefore, asks the court to order the release of the deposited funds from the court’s registry and to order Diana Miller to pay the attorney’s fees and costs, including the fees related to withdrawing funds from the court’s registry, as a sanction pursuant to Texas Rule of Civil Procedure 13 and Texas Ci il Practice and Remedies Code, Chapter 10 for purposefully and without grounds denying Prusank his separate property. Steven J. Prusank asks this Court to order the Honorable Beverley McGrew Walker, the District Clerk of Fort Bend County, Texas, to release the funds previously deposited in this case, plus any and all accrued interest currently held in the Registry of this Court, to Prusank by mailing a check payable to Steven J. Prusank, to his attorney of record, deborah lawson, at deborah lawson, Attorney at Law, p.l.L.c., P.O. Box 940082, Houston, TX 77094-7082. FIRST AMENDED MOTION FOR SANCTIONS Diana Miller should be sanctioned for filing a petition that was frivolous, groundless, and brought in bad faith and to harass because Miller knew that she was not married to Prusank when she filed both the petition and the notice of non-suit. On or about 30 December 2020, Diana Miller, through counsel, signed and filed a Petition for Divorce, alleging that she and Steven J. Prusank were “common law married on or about 2015.””7_ Atthe time that the petition was signed, Miller knew that she and Prusank were not married, as detailed more fully in Prusank’s Motion for Summary Judgment,”* yet Miller “signed” the pleading in violation of Texas Rule of Civil Procedure 13, certifying that the pleading was not “groundless and brought in bad faith or groundless and brought for the purpose of harassment.””? Miller’s pleading was also brought solely to harass Prusank and to cause unnecessary delay and needless increase to his litigation costs, which it has done, in violation of Texas Civil Practice and Remedies Code, Chapter 10.°° At any time during the suit, a plaintiff has an absolute right to file a nonsuit, and the dismissal is effective as soon as the motion is filed, extinguishing the petitioner’s case and controversies immediately upon the notice’s filing“! By “moot[ing] the case,” the Court’s power to hear Petitioner’s arguments is ended, subject only to Respondent’s pending claims for relief.** Specifically, the nonsuit has “no effect on any motion for sanctions . pending at the time of the dismissal. 9933 This Court, therefore, retains a Pet. at 2, para. 6. 28 Prusank’s Motion for Summary Judgment, Index #16. 2» Tex. R. Ci P.13. 30 Tex. Civ. Prac. & Rem. Code, Ch. 10. a Morath, 601 S.W.3d at 788 (quoting Estate of Blackmon, 195 $.W.3d at 100). 2 Id. (quoting Klein, 315 S.W.3d at 3 (holding that after non-suit in the trial court, "there was no live controversy for the court of appeals to decide"). 3 Miller v. Armogida, 877 S.W.2d 361, 364 (Tex.App.—Houston [1 Dist. 1994 (quoting Tex. R. Civ. P. 162), attached hereto as Prusank Exhibit 13. ITMOTMO Miller & Prusank Cause No. 20-DCV-279555 1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court Page 5 of 10 Fort Bend County, Texas jurisdiction to grant the sanctions for filing a frivolous and/or groundless lawsuit that were originally requested in Prusank’s Motion for Summary Judgment, and reiterated herein. Miller would have this Court believe that the documents attached to her response, which are untimely and inadmissible hearsay, absolve her of any frivolity or groundlessness; however, they do nothing to dispel the fact that — at the time of filing the suit, as well as now — Miller had no evidence that she was anything more than engaged to Prusank, as detailed more fully in Prusank’s summary judgment motion.** Miller has no evidence to support her claim of a common law marriage. In response to discovery requests, Miller produced not a single document or affidavit, and the only people identified as having relevant knowledge were Miller and Prusank themselves.*> Based on that lack of evidence, on 1 June 2021, Prusank filed a Motion for Summary Judgment asking the court to dismiss the suit and award sanctions in the form of attorney’s fees.** In response, on 7 June 2021, Miller filed a Notice of Nonsui 37 By nonsuiting the case, Miller, for all intents and purposes, admitted that there was never a marriage to begin with, and therefore, her suit has always been groundless, as one cannot simply walk away from an informal marriage without a divorce, just because the divorce proceedings become too expensive. At that time, Miller had caused Prusank to incur attorney’s fees totaling $20,843.75 defending a frivolous and groundless lawsuit. Now, Prusank’s fees total $25,922.92.38 Now, after abandoning all of her claims, rather than responding to Prusank’s summary judgment motion, Miller attempts to reopen discovery in the underlying cause by attaching to her response a letter from Prusank’s employer” and six affidavits from family and friends,’ none of whom were identified in response to the required initial disclosures and all of which are dated after the non-suit, to show that her original petition was not frivolous when filed. Because none of these documents or witnesses were produced or named in response to discovery, they are untimely, and therefore, inadmissible pursuant to Texas Rule of Civil Procedure 193.6, and out of an abundance of caution, Prusank objects to their late admission now. u See generally Prusank’s Motion for Summary Judgment, Index #16. 3s See Miller’s responses to Rule 194 Requests for Disclosure, Responses to Request for Production, and Rule 197 Written Interrogatories, attached hereto as Prusank Exhibit 14, 36 See generally Prusank’s Motion for Summary Judgment, Index #16. a Notice of Nonsuit, Index #18 38 Affidavit supporting Attorney's Fees, attached hereto as Prusank Exhibit 20. ” Letter from Sri S. Sandoval, Benefits Specialist, Trident Seafoods Corp. to Whom It May Concern (June 20, 2021), attached to Miller’s Response to “Motion to Withdraw Funds and Motion for Sanctions” as Exhibit 1, Index #22 0 Affidavits attached to Miller’s Response to “Motion to Withdraw Funds and Motion for Sanctions” as Exhibit 3, Index #22. ITMOTMO Miller & Prusank Cause No. 20-DCV-279555 1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court Page 6 of 10 Fort Bend County, Texas Specifically, Prusank objects to this new direct evidence as untimely because it was not produced in response to discovery or even before the non-suit was filed.“’ On 11 March 2021, each party propounded discovery on the other. In response, Prusank produced 207 pages of documents disproving the existence of an informal marriage, showing that Prusank consistently holds himself out as single.*? Miller produced no documents, responding with only a few unsupported, self-serving statements.** Even accepting all of Miller’s statements as true, there is insufficient evidence to support an agreement to be married, if not to disprove all three elements.“ In addition to being hearsay, the letter from Trident’s Benefits Specialist, which Miller had created specifically for her response to this motion and dated after her claims were abandoned, is insufficient to support an agreement to be married because it merely confirms that Trident’s records show that Diana Miller “was covered through spouse Steven Pruaank under Trident Seafoods’ . . . insurance from 12/1/2016 through July 31, 2020. .5 Miller has failed to produce a document signed by Prusank actually holding himself out as her spouse. But even if there was a document signed by Prusank, which there isn’t, a signature on a third-party document is not, alone, prima facie evidence of holding out sufficient to prove an agreement, it merely goes to the weight of the evidence to be considered.** In Jn re Sneed, the Eastland appellate court stated: “Even though the joint tax returns were filed under penalty of perjury, they alone are not prima facie evidence of holding out; rather, they merely go to the weight of the evidence to be considered.”*” The San Antonio appellate court reached the same conclusion, stating: “[R]epresentations made to governmental entities do not estop a party from later claiming in an unrelated suit the existence or non-existence of an informal marriage and those representations go to the weight of the evidence.”** Citing these opinions in Pedone, the Amarillo appellate court found that numerous documents related to a land purchase described the parties “a single person,” directly contradicted the joint tax returns; thus, the evidence before the court was “anything but conclusive.”*° Similarly, here, a letter stating that an employer’s records call someone a 4 See generally, Miller’s responses to discovery, which do not include these documents, attached hereto as Prusank Exhibit 14. 2 See e.g. the documents attached to Prusank’s Motion for Summary Judgement as exhibits E-P, Index #16. a See Miller’s responses to Rule 194 Requests for Disclosure, Responses to Request for Production, and Rule 197 Written Interrogatories, attached hereto as Prusank Exhibit 14. “4 See generally Prusank’s Motion for Summary Judgment, Index #16. 4s Letter from Sri S. Sandoval, Benefits Specialist, Trident Seafoods Corp. to Whom It May Concern (June 20, 2021), attached to Miller’s Response to “Motion to Withdraw Funds and Motion for Sanctions” as Exhibit 1, Index #22. 6 Pedone y. Harvey, No. 01-17-00394- 'V, at *11 (Tex.App.-Amarillo Aug. 2, 2018), attached hereto as Prusank Exhibit 15; Jn re Sneed, No. 11-16-00051-CV, at *1 (Tex. App.—Eastland April 12, 2018, pet. filed May 29, 2018) (mem. op.), attached hereto as Prusank Exhibit 16. a In re Sneed, No. \1-16-00051-CV, at *1 8 Leyendecker v. Uribe, No. 04-17-00163-CV, at*9-10 (Tex. App.—San Antonio Jan. 17, 2018, pet. denied) (mem. op.). attached hereto as Prusank Exhibit 17. ° Pedone, No. 01-17-00394-C sl 0 Id. ITMOTMO Miller & Prusank Cause No. 20-DCV-279555 1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court Page 7 of 10 Fort Bend County, Texas spouse do not prove that the employee held himself out as married, but rather go solely to the weight of the evidence before the court. And, here, this post-non-suit letter is outweighed by the totality of the evidence before the Court. Even the untimely affidavits, most of which provide only anecdotal assumptions, are outweighed by the totality of Prusank’s documentary evidence. Where, as here, there is no direct evidence of an agreement to be married, to prevail on a claim based on circumstantial evidence, Miller must prove by particularly convincing evidence that the couple cohabitated and held themselves out as a married couple, which Miller cannot do because a scintilla of circumstantial evidence cannot overcome copious direct evidence. In Assoun v. Gustafson, opponents’ affidavits, supported by documentary evidence, stated that the couple did not have an agreement to be married; there was no formal wedding in any county; there was no premarital agreement; a previous hearing transcript characterized the relationship using the term “boyfriend;” automobile insurance declared opponent’s marital status as “divorced;” a homestead and marital status affidavit related to a house sale declared opponent to be “Divorced Single;” income taxes were filed as “head of household;” and an apartment application left “your spouse” blank, but noted “boyfriend” for the emergency contact.*! To attempt to create a fact issue, proponent argued that the couple lived together; opponent wears a ring on her ring finger; children refer to her as “stepmom;” and there are occasional registrations as husband and wife in foreign hotels.** The Dallas appellate court found that proponent’s circumstantial evidence of a marriage failed to create a fact issue in light of opponents direct evidence that the “parties never agreed to be married and informed government agencies that each was single.”*? Because there was no meeting of the minds, the court found that there could be no contract, and hence no marriage.** The appellate court expressly approved the lower court’s summary judgment dismissal on the evidence provided because the case presented an instance where “circumstantial evidence cannot overcome the direct evidence, which unequivocally negates the possibility of finding an agreement to be married.”°> Just like in Assoun, the circumstantial evidence that Miller offers months after filing a non-suit fails to overcome the direct evidence that there was no marriage, a fact that Miller knew when she filed suit almost a year ago. Even after filing the non-suit and abandoning her claims, Miller continues to oppose Prusank’s motion to withdraw his separate funds, as detailed more fully in the motion to withdraw funds, causing Prusank to incur additional, unnecessary, attorney’s fees. Miller alleges that she abandoned her divorce st Assoun v. Gustafson, 493 S.W.3d 156, 16-62 (Tex. App.—Dallas 2016, pet. filed), attached hereto as Prusank Exhibit 18. 2 Id. at 163. ss Td. 4 Id. 55 Id. ITMOTMO Miller & Prusank Cause No. 20-DCV-279555 1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court Page 8 of 10 Fort Bend County, Texas petition because of the cost, yet continues to fight Prusank’s attempts to withdraw his separate property funds from the court’s registry, resulting in additional fees and costs to both parties and belying her underlying argument. As detailed in Prusank’s summary judgment motion, the parties were never married, and Miller continues to simply harass Prusank, forcing him to incur unnecessary fees and costs, such as the drafting of this motion and the motion to withdraw separate funds from the court’s registry, and attendance at multiple hearings on both motions. Prusank, therefore, asks this Court to award him sanctions in the form of his attorney’s fees for defending this suit for divorce brought by a woman that he never married. ATTORNEY’S FEES Tt was necessary for Steve Prusank to secure the services of deborah lawson, a licensed attorney, to prepare and defend this frivolous suit, which Diana Miller brought solely to harass, and then, failed to prosecute and eventually nonsuited, yet continues to oppose at every opportunity. Judgment for attorney’s fees, expenses, and costs should be granted against Miller and in favor of Prusank for the use and benefit of Prusank’ attorney; or, in the alternative, Prusank requests that reasonable attorney’s fees, expenses, and costs be taxed as costs and be ordered paid directly to Prusank’ attorney, who may enforce the order in the attorney’s own name. Prusank also requests pre and post-judgment interest as allowed by law. PRAYER Steven J. Prusank prays that this Honorable Court authorize and direct the Honorable Beverley McGrew Walker, the District Clerk of Fort Bend County, Texas, to pay over and deliver to Steven J. Prusank the total sums of money that are now on deposit in this case, plus any and all accrued interest currently held in the Registry of this Court, to Prusank by mailing a check payable to Steven J. Prusank, to his attorney of record, deborah lawson, at deborah lawson, Attorney at Law, p.l.l.c., P.O. Box 940082, Houston, TX 77094-7082. Steven J. Prusank prays for an award of his attorney’s fees and costs, totaling $20,843.75, related to defending against this frivolous and groundless lawsuit and the fight to withdraw his separate funds from the court’s registry; and the fees and costs associated with withdrawing his separate funds from the court’s registry; as well as pre and post-judgment interest; as a sanction against Diana Miller, pursuant to Texas Rule of Civil Procedure 13 and Texas Civil Practice and Remedies Code, Chapter 10, for filing a frivolous and groundless lawsuit solely to harass Prusank and cause him to incur unnecessary litigation costs. ITMOTMO Miller & Prusank Cause No. 20-DCV-279555 1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court Page 9 of 10 Fort Bend County, Texas Steven J. Prusank prays for such other and further relief to which Steven J. Prusank may show just entitlement. CERTIFICATE OF SERVICE I certify that a true copy of the foregoing document was served on each attorney of record or party in accordance with the Texas eFiling Rules and Texas Rules of Civil Procedure through https://efile.txcourts.gov. DATED: 7 September 2021 Respectfully submitted, deborah |: ry: , Sip at Law Llc. by: deboi ce State Bar No. 24041306 « Fi eral ILD. No. 37140 deborah lawson, Attorney at Law, p.l.l.c. P.O. Box 940082, Houston, Texas 77094-7082 (713) 478-2618 * deborah@lawsonlegal.net Attorney for Respondent, Steve Prusank ITMOTMO Miller & Prusank Cause No. 20-DCV-279555 1* Amended Motion to Withdraw Funds & for Sanctions 387" Judicial District Court Page 10 of 10 Fort Bend County, Texas University of Texas v. Estate of Blackmon, 195 S.W.3d 98 (Tex. 2006) Prusank Exhibit 1 195 S.W.3d 98 diagnose and treat her mother's illness. THE UNIVERSITY OF TEXAS Shultz alleged a waiver of sovereign immunity MEDICAL BRANCH AT GALVESTON, under the Tort Claims Act's exception for Petitioner, personal injury or death caused by a v. condition or use of tangible personal THE ESTATE OF DARLA BLACKMON, property. See TEX. CIV. PRAC. & REM. by its Beneficiary Sheila SHULTZ, and CODE § 101.021(2). UTMB filed a plea to the Sheila Shultz, Individually, jurisdiction, which the trial court denied, and Respondents. then brought an interlocutory appeal. See id. No. 05-0594. § 51.014(a)(8). Supreme Court of Texas. June 9, 2006. The court of appeals initially reversed the trial court's order and rendered judgment for Page 99 UTMB, but then withdrew its judgment upon granting Shultz's motion for rehearing. Three Greg Abbott, Attorney General of Texas, weeks later, Shultz filed a nonsuit and moved Barry Ross McBee, Edward D. Burbach, to dismiss the appeal for want of jurisdiction. Rafael Edward Cruz, Ryan D. Clinton, Office The court of appeals denied Shultz's motion, of the Attorney General, Nichelle A. Cobb, and eventually issued a new opinion denying Tort Litigation Division, Austin, for UTMB's plea to the jurisdiction. 169 S.W.3d 712. Responding to UTMB's appeal in this Page 100 Court, Shultz contends that there is no longer a case or controversy, and that her nonsuit The University of Texas Medical Branch at deprived the court of appeals of jurisdiction Galveston. over UTMB's appeal. We agree. Stephen A. Khoury, Kelsoe Anderson Khoury & Clark, Dallas, for The Estate of Darla Blackmom and Sheila Shultz. PER CURIAM. entered in the minutes." TEX. R. CIV. P. 162. While the petitioner's interlocutory Rule 162 applies in this case because Shultz appeal from its plea to the jurisdiction was filed the nonsuit while this matter was pending in the court of appeals, the pending on interlocutory appeal from respondent filed a nonsuit. We conclude that UTMB's pretrial plea to the jurisdiction. the nonsuit deprived the court of appeals of jurisdiction, and we vacate its order and dismiss this interlocutory appeal for want of extinguishes a case or controversy from "the jurisdiction. moment the motion is filed” or an oral motion is made in open court; the only requirement Darla Blackmon died of pneumonia while is "the mere filing of the motion with the clerk of court." the Shadowbrook Apts. v. Abu- incarcerated at a Texas Department of Ahmad, 783 S.W.2d 210, 211 (Tex.1990); see Criminal Justice substance abuse facility also Greenberg v. Brookshire, 640 S.W.2d operated by the University of Texas Medical Branch at Galveston (UTMB). Blackmon's 870, 872 (Tex.1982). While’the date of which daughter, Sheila Shultz, brought suit for wrongful death and survival damages, suit is the "starting point for determining claiming that UTMB negligently failed to when a trial court's plenary power expires," a nonsuit is effective when it is filed. In re -1- University of Texas v. Estate of Blackmon, 195 S.W.3d 98 (Tex. 2006) Bennett, 960 S.W.2d 35, 38 (Tex.1997); TEX. rendered a judgment on the merits. See R. CIV, P. 329b. The trial court generally has Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854 (Tex.1995) (holding that a nonsuit its order doing so is ministerial.In re results in a dismissal with prejudice as to Bennett, 960 S.W.2d at 38; Shadowbrook, claims already adjudicated on partial 783 S.W.2d at 211. summary judgment). In this case, however, the court of appeals withdrew its judgment Of course, the trial court need not for UTMB before the nonsuit was filed. As a immediately dismiss the suit when notice of result, the nonsuit vitiated only the trial nonsuit is filed. Rule 162 states that the court's interlocutory order denying UTMB's plea to the jurisdiction. That ruling favored Shultz and, consequently, its nullification did not prejudice UTMB. The court of appeals lacked jurisdiction to issue an order and opinion on rehearing. a TEX. Accordingly, without hearing oral argument, we grant the petition for review, vacate the court of appeals’ order, and dismiss the Page 101 appeal for want of jurisdiction. TEX. R. APP. P. 59.1, 60.2(e). CIV. P. 162. affirmative A claim for relief must allege a cause of action, independent of the plaintiff's claim, on which the claimant could recover compensation or relief, even if the plaintiff abandons or is unable to establish his cause of action. BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 841 (Tex.1990). UTMB has not raised a claim for affirmative relief, but it did request costs in its plea to the jurisdiction. Rule 162 permits the trial court to hold hearings and enter orders affecting costs, attorney's fees, and sanctions, even after notice of nonsuit is filed, while the court retains plenary power. In re Bennett, 960 S.W.2d at 38. Thus, the trial court has discretion to defer signing an order of dismissal so that it can "allow a reasonable amount of time" for holding hearings on these matters which are "collateral to the merits of the underlying case." Id. at 38-39. Although fees, and sanctions to remain viable in the trial court, it does not forestall the nonsuit's effect of rendering the merits of the case moot. Finally, UTMB argues that a plaintiff cannot nonsuit a claim once a court has -2- Morath v. Lewis, 601 S.W.3d 785 (Tex. 2020) Prusank Exhibit 2 601 S.W.3d 785 I. Background Mike MORATH, in His Official Capacity A group of parents of Texas public school as Commissioner of the Texas students sued Mike Morath in his official Education Agency, Petitioner, capacity as the Commissioner of the Texas v. Education Agency. The suit alleges TEA Virginia Diane LEWIS, Individually administered the 2015-2016 standardized and as Next Friend To C.J.L., et al., STAAR exams in violation of the governing Respondents statutes. Morath filed a _ plea to the jurisdiction, arguing that the plaintiffs’ ultra NO. 18-0555 vires claims could not proceed for several reasons, including that the plaintiffs lack Supreme Court of Texas. standing and that TEA did not violate the law in administering the test. The trial court OPINION DELIVERED: April 17, 2020 denied the plea to the jurisdiction. Morath appealed, and the court of appeals affirmed, Jason R. LaFond, Brantley David Starr, holding that the plaintiffs adequately pleaded Esteban M. Soto, Henry Carl Myers, W. ultra vires claims under City of El Paso v. Kenneth Paxton Jr., Attorney General of Heinrich and related decisions. Morath v. Texas, Office of the Attorney General, Andrew Lewis , No. 03-16-00603-CV, 2018 WL J. Lutostanski, Office of the Texas Attorney 1527875, at *3-4 (Tex. App.—Austin, Mar. 29, General, Administrative Law Division, Jeffrey 2018, pet. granted) (mem. op.). C. Mateer, Texas Attorney General's Office, First Asst. Attorney General, Angela V. Morath petitioned for review. His PFR alleges Colmenero, Assistant Attorney General, that the plaintiffs lack standing, that the court General Litigation Division, Kyle D. Hawkins, of appeals misconstrued the relevant statutes, Office of the Attorney General, Solicitor and that the court of appeals’ opinion General, Kristofer S. Monson, Office of the improperly expands the availability of ultra Solicitor General, James Edward Davis, The vires relief by requiring TEA to spend funds University of Texas at Austin, Scott Keller, not appropriated by the Legislature. This Baker Botts LLP, Austin, for Petitioner. Court requested a response to the petition. After receiving that response and a reply, the Jonathan L. Chaltain, Kyle Mullins Jones, R. Court requested merits briefs. After Morath Scott Placek, Arnold & Placek, P.C., Round filed his merits brief, Respondents decided to Rock, for Respondents. cease pursuing their claims. They filed in this