Preview
Received and E-Filed for Record
9/12/2017 4:00 PM
Barbara Gladden Adamick
District Clerk
Montgomery County, Texas
NO. 16-05-05670
IN THE MATTER 0F § 1N THE DISTRICT COURT
THE MARRIAGE 0F §
§
THOMAS JEROME PISULA § 418TH JUDICIAL DISTRICT
AND §
HENNA MUKHTAR MALIK § MONTGOMERY COUNTY, TEXAS
HENNA MUKHTAR MALIK’S MOTION TO STRIKE
PETITIONER’S MOTION TO REOPOEN EVIDENCE
TO THE HONORABLE JUDGE OF SAID COURT:
This Response and Motion t0 Strike Petitioner’s Motion to Reopen Evidence filed by
Henna Mukhtar Malik (“Respondent”). In support thereof, Respondent would show as follows:
1. In conjunction with Thomas Jerome Pisula’s (“Petitioner”) filing of a motion for
reconsideration of the court’s valuation and award of a self-directed IRA in his
name, he has filed a motion t0 reopen evidence. The said motion asks the court t0
allow evidence of account statements dated November 30, 2016, December 31,
2016 and March 31, 2017. The statements purportedly bolster Petitioner‘s claim
that the court improperly valuated and awarded the self—directed IRA in question.
The trial of this cause began 0n February 13, 2017 and lasted for four non-
consecutive days.
After the court’s initial ruling, Petitioner filed pleadings which asked the court to
reconsider its decision regarding, inter alia, the valuation and award 0f a self-
directed IRA. See Petitioner’s Motion for Reconsideration dated May 27, 2017
and his First Amended Motion For Reconsideration dated July 14, 2017.
After consideration, on submission, 0f Petitioner’s pleadings, the court modified
parts 0f its ruling. See the August 1, 2017 court’s written rendition.
As such, the trial began over 60 days after the date of the earliest statement
Petitioner seeks t0 have admitted. And Petitioner had an almost four-month
window to attempt to have all the statements admitted even if you don’t include
his ability to introduce them at the time 0f trial as discussed below.
Between the date of trial and the time the court modified its initial rendition
Petitioner could have sought t0 have the account statements admitted but willfully
refused and/or neglected to do so.
By his own admission, the statements could have and should have been produced
timely. The statements’ production and admission into evidence was not beyond
Petitioner’s control. He simply did not provide them t0 his counsel.
8. It is too late in the day for Petitioner to attempt to do so now. The court should
Respondent’s Motion to Strike Motion T0 Reopen Evidence
Pisula v. Malik
Cause N0. 16-05-05670 Page I
not reward Petitioner’s lack of due diligence.
9. Accordingly, Respondent objects to the motion and asks the Court strike same.
10. Texas Rule of Civil Procedure 270 provides that a trial court may permit
additional evidence to be offered at any time when it clearly appears necessary to
the administration of justice. Rule 270 allows, but does not require, the court to
permit additional evidence. Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex.App.-
Corpus Christi 2001, no pet). In determining whether to grant a motion to reopen,
the trial court considers whether: (1) the moving partv showed dl_1ediligence in
obtaining the evidence. (2) the proffered evidencgi_s decisive. (3) reception of
s_uch evidence will cause undue delav, and (4) granting the motion will cause
an injustice.
S.W.2d 364,
Word
366-67
Qf Faith World
(Tex.App.-Da11as
Outreach
1984, n0
Ctr. Church
writ).
v.
(emphasis
0echsner,
added).
flThe
decision to reopen is within the trial court's sound discretion. Estrella v. Elboar,
965 S.W.2d 754, 759 (Tex.App.-Fort Worth 1998, no pet). A trial court does not
abuse its discretion by refusing t0 reopen a case after evidence is closed if the
party seeking t0 reopen has not shown diligence in attempting to produce the
evidence in a timely fashion. See id.
11. Here, the Court based its ruling 0n the testimony and evidence which was
adduced during four days of trial.
*** It is important to note that Petitioner
provided testimony to the court regarding the amounts he claimed Where in the
SDIRA account. So nothing in Petitioner’s motion indicates or suggests that the
Court did not hear evidence Which would compel it tore—characterize its findings
on property nor change its property division. Petitioner had every opportunity to
put on evidence of the claims before the trial court closed the evidentiary phase of
the trial.
12. Again, the motion does not allege that Petitioner has found new evidence nor that
he used due diligence in presenting his claims for the separate property
Characterization he now seeks. In fact, although couched in the best light,
Petitioner admits that the statements could have been offered at the time of trial
but for his acts and/or failures t0 act.
13. Simply put, Respondent does not allege any grounds which show his request to
re-open the evidence has any merit whatsoever.
14. Further, the issues in this motion are cumulative because oral testimony covering
the same evidence as the statements purportedly contain was provided t0 the court
at the time of trial- and Petitioner has filed a motion for new trial addressing the
same issue.
15. Respondent asks the court to award her reasonable and necessary attorney’s fees
for the defense 0f this motion.
Based on the foregoing, Respondent prays that the Court deny the relief requested by
Petitioner.
Respondent’s Motion t0 Strike Motion To Reopen Evidence
Pisula v. Malik
Cause N0. I 6-05-056 70 Page 2
Respectfully submitted,
VERNIER & ASSOCIATES, PLLC
2441 High Timbers, Suite 110
The Woodlands, Texas 77380
Telephone: (281) 364- 1187
Facsimile: (832) 585- 0955
RUTH LAVADA VERNIER
State Bar N0.: 00512692
ruth.vernier@vernierlaw.com
SEBASTIAN “SKIP” LANZ
State Bar No. 24007529
skip.1anz@vernier1aw.com
Email Service Only:
eservicevernier@vernierlaw.com
Attorneys for Henna Mukhtar Malik
Certificate 0f Service
Icertify that a true copy of the above was served on each attorney of record 0r p y in
accordance With the Texas Rules of Civil Procedure on September 12, 201 7.
flag)
Ruth Lavada Vernier
Attorney
\/ MW
for Henna Mukhtar Malik
Respondent’s Motion to Strike Motion To Reopen Evidence
Pisula v. Malik
Cause No. 16-05-05670 Page 3
Preview
Received and E-Filed for Record 9/12/2017 4:00 PM Barbara Gladden Adamick District Clerk Montgomery County, Texas NO. 16-05-05670 IN THE MATTER 0F § 1N THE DISTRICT COURT THE MARRIAGE 0F § § THOMAS JEROME PISULA § 418TH JUDICIAL DISTRICT AND § HENNA MUKHTAR MALIK § MONTGOMERY COUNTY, TEXAS HENNA MUKHTAR MALIK’S MOTION TO STRIKE PETITIONER’S MOTION TO REOPOEN EVIDENCE TO THE HONORABLE JUDGE OF SAID COURT: This Response and Motion t0 Strike Petitioner’s Motion to Reopen Evidence filed by Henna Mukhtar Malik (“Respondent”). In support thereof, Respondent would show as follows: 1. In conjunction with Thomas Jerome Pisula’s (“Petitioner”) filing of a motion for reconsideration of the court’s valuation and award of a self-directed IRA in his name, he has filed a motion t0 reopen evidence. The said motion asks the court t0 allow evidence of account statements dated November 30, 2016, December 31, 2016 and March 31, 2017. The statements purportedly bolster Petitioner‘s claim that the court improperly valuated and awarded the self—directed IRA in question. The trial of this cause began 0n February 13, 2017 and lasted for four non- consecutive days. After the court’s initial ruling, Petitioner filed pleadings which asked the court to reconsider its decision regarding, inter alia, the valuation and award 0f a self- directed IRA. See Petitioner’s Motion for Reconsideration dated May 27, 2017 and his First Amended Motion For Reconsideration dated July 14, 2017. After consideration, on submission, 0f Petitioner’s pleadings, the court modified parts 0f its ruling. See the August 1, 2017 court’s written rendition. As such, the trial began over 60 days after the date of the earliest statement Petitioner seeks t0 have admitted. And Petitioner had an almost four-month window to attempt to have all the statements admitted even if you don’t include his ability to introduce them at the time 0f trial as discussed below. Between the date of trial and the time the court modified its initial rendition Petitioner could have sought t0 have the account statements admitted but willfully refused and/or neglected to do so. By his own admission, the statements could have and should have been produced timely. The statements’ production and admission into evidence was not beyond Petitioner’s control. He simply did not provide them t0 his counsel. 8. It is too late in the day for Petitioner to attempt to do so now. The court should Respondent’s Motion to Strike Motion T0 Reopen Evidence Pisula v. Malik Cause N0. 16-05-05670 Page I not reward Petitioner’s lack of due diligence. 9. Accordingly, Respondent objects to the motion and asks the Court strike same. 10. Texas Rule of Civil Procedure 270 provides that a trial court may permit additional evidence to be offered at any time when it clearly appears necessary to the administration of justice. Rule 270 allows, but does not require, the court to permit additional evidence. Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex.App.- Corpus Christi 2001, no pet). In determining whether to grant a motion to reopen, the trial court considers whether: (1) the moving partv showed dl_1ediligence in obtaining the evidence. (2) the proffered evidencgi_s decisive. (3) reception of s_uch evidence will cause undue delav, and (4) granting the motion will cause an injustice. S.W.2d 364, Word 366-67 Qf Faith World (Tex.App.-Da11as Outreach 1984, n0 Ctr. Church writ). v. (emphasis 0echsner, added). flThe decision to reopen is within the trial court's sound discretion. Estrella v. Elboar, 965 S.W.2d 754, 759 (Tex.App.-Fort Worth 1998, no pet). A trial court does not abuse its discretion by refusing t0 reopen a case after evidence is closed if the party seeking t0 reopen has not shown diligence in attempting to produce the evidence in a timely fashion. See id. 11. Here, the Court based its ruling 0n the testimony and evidence which was adduced during four days of trial. *** It is important to note that Petitioner provided testimony to the court regarding the amounts he claimed Where in the SDIRA account. So nothing in Petitioner’s motion indicates or suggests that the Court did not hear evidence Which would compel it tore—characterize its findings on property nor change its property division. Petitioner had every opportunity to put on evidence of the claims before the trial court closed the evidentiary phase of the trial. 12. Again, the motion does not allege that Petitioner has found new evidence nor that he used due diligence in presenting his claims for the separate property Characterization he now seeks. In fact, although couched in the best light, Petitioner admits that the statements could have been offered at the time of trial but for his acts and/or failures t0 act. 13. Simply put, Respondent does not allege any grounds which show his request to re-open the evidence has any merit whatsoever. 14. Further, the issues in this motion are cumulative because oral testimony covering the same evidence as the statements purportedly contain was provided t0 the court at the time of trial- and Petitioner has filed a motion for new trial addressing the same issue. 15. Respondent asks the court to award her reasonable and necessary attorney’s fees for the defense 0f this motion. Based on the foregoing, Respondent prays that the Court deny the relief requested by Petitioner. Respondent’s Motion t0 Strike Motion To Reopen Evidence Pisula v. Malik Cause N0. I 6-05-056 70 Page 2 Respectfully submitted, VERNIER & ASSOCIATES, PLLC 2441 High Timbers, Suite 110 The Woodlands, Texas 77380 Telephone: (281) 364- 1187 Facsimile: (832) 585- 0955 RUTH LAVADA VERNIER State Bar N0.: 00512692 ruth.vernier@vernierlaw.com SEBASTIAN “SKIP” LANZ State Bar No. 24007529 skip.1anz@vernier1aw.com Email Service Only: eservicevernier@vernierlaw.com Attorneys for Henna Mukhtar Malik Certificate 0f Service Icertify that a true copy of the above was served on each attorney of record 0r p y in accordance With the Texas Rules of Civil Procedure on September 12, 201 7. flag) Ruth Lavada Vernier Attorney \/ MW for Henna Mukhtar Malik Respondent’s Motion to Strike Motion To Reopen Evidence Pisula v. Malik Cause No. 16-05-05670 Page 3