Opinion
01-22-00874-CV
11-02-2023
Mark Maher Kreit v. Pauline Kreit El Khoury
Trial court: 310th District Court of Harris County Trial court case number: 2022-15859
ORDER
PETER KELLY JUDGE
This is an appeal from a temporary order signed on November 14, 2022, ordering appellant to pay spousal support, for appointment of a receiver, and for appointment of a forensic accountant. Texas Family Code Section 6.502 provides for a trial court to render a temporary order as necessary to preserve property and for the protection of parties including an order for spousal support, for appointment of a receiver. See Tex. Fam. Code § 6.502(a). A temporary order under this subchapter, except for one appointing a receiver, is not subject to interlocutory appeal. See Tex. Fam. Code § 6.507. Thus, the only portion of the trial court's order that appellant may appeal is the portion of the order appointing a receiver. See id.
Mediation
On January 11, 2023, this Court referred the parties to mediation. The order did not abate any appellate deadlines. The order states: "Accordingly, the Court orders that this appeal be referred to mediation unless any party to the appeal files an objection with the Clerk of this Court within ten days after receiving this order." Neither party filed an objection with this Court.
On February 23, 2023, appellant filed a motion for emergency hearing, motion to stay, and motion to enforce court order for mediation. Appellant's motion appears to indicate that appellee failed to engage in mediation as ordered by this Court. Appellee did not file a response to this motion.
On July 12, 2023, appellant filed a brief, which was not a brief concerning the issues on appeal, but a brief in support of his motion for emergency hearing, for a stay and to enforce the order for mediation. Because this was entitled "Appellant's Brief on Motion for Emergency Hearing, Motion to Stay and Motion to Enforce Court Order for Mediation," this is not an appellant's brief under Rule 38.1 and the Clerk of the Court is directed to redesignate this filing as "Supplement to Motion for Emergency Hearing, Motion to Stay, and Motion to Enforce Court Order for Mediation."
On July 12, 2023, appellant filed another brief entitled "Appellant's Brief on Motion for Emergency Hearing, Motion to Stay, and Motion to Enforce Court Order for Mediation," and, because appellant had already filed a brief, the Clerk of this Court designated this as an amended brief. This is not a brief concerning the merits of appellant's appeal, and thus, the Clerk of the Court is directed to redesignate this as "Second Supplement to Motion for Emergency Hearing, Motion to Stay, and Motion to Enforce Court Order for Mediation."
On July 13, 2023, appellant filed another document entitled, "Appellant's Brief on Motion for Emergency Hearing, Motion to Stay, and Motion to Enforce Court Order for Mediation," which was entered as a second amended brief. But like the previous "briefs," this is not a brief on the merits but concerns the motions filed by appellant. Therefore, the Clerk of the Court is directed to redesignate this document as "Third Supplement to Motion for Emergency Hearing, Motion to Stay, and Motion to Enforce Court Order for Mediation."
On August 1, 2023, this Court issued an order, mistakenly considering appellant's amended briefs filed on July 12 and July 13 as briefs on the merits, striking them, and ordering appellant to file a corrected brief in compliance with Rule 38.1. We withdraw that order.
Appellant, in an attempt to comply with this Court's August 1, 2023 order, filed another brief on September 5, 2023, entitled "Appellant's Brief on Motion for Emergency and Motion to Enforce Court Order for Mediation." The clerk's office filed this as another amended brief, but because it does not address the merits of the appeal, the Clerk of the Court is directed to redesignate this document as "Further Supplement to Motion for Emergency Hearing and Motion to Enforce Court Order for Mediation."
On October 5, 2023, appellant's counsel filed a brief, which does address the merits of the appeal, but it is entitled "Amended Brief." On October 5, 2023, appellee filed a document entitled "Appellee's Response to Motion for Emergency and Motion to Enforce Court Order for Mediation," this addressed appellant's appellate issues and not the motions to enforce and to stay. Thus, the Clerk of the Court is directed to designate this as "Appellee's Brief." On October 27, 2023, appellee filed a brief entitled "Appellee's Brief in Response to Motion for Emergency and Motion to Enforce Court Order for Mediation." This appears to be another brief, possibly in response to Appellant's brief filed on October 5, 2023. Because appellee had already filed a brief on October 5, 2023, appellee should file a motion for leave to file an amended brief within 15 days of the date of this order, if appellee prefers for the Court to consider the October 27, 2023 brief. See Tex. R. App. P. 38.7. Otherwise, this brief will be received and not filed.
Despite filing something entitled a response, appellee has not responded to appellant's arguments in the February 23, 2023 motions for emergency hearing, to stay, and to enforce the Court's order concerning mediation. Accordingly, the Court orders appellee to file a response to appellant's February 23, 2023 motion for emergency hearing, to stay, and to enforce the Court's order for mediation, explaining why appellee has failed to comply with this Court's order referring the parties to mediation and why this Court should not consider imposing sanctions for appellee's failure to comply with this Court's order. Appellee's response is due to be filed in this Court within 15 days of the date of this order.
Status of Counsel and Briefing
Appellant was initially represented by counsel Sonya Chandler Anderson, but Anderson has filed nothing in this appeal since February 23, 2023. Counsel Anderson has not withdrawn. On August 31, 2023, new counsel, James Nathan Overstreet, filed a motion for extension of time to file an amended appellant's brief. On September 5, 2023, appellant filed a pro se brief. On October 5, 2023, counsel Overstreet filed a brief for appellant.
If counsel Anderson no longer represents appellant, she must file a motion to withdraw. See Tex. R. App. P. 6.5(a). If counsel Overstreet intends to represent appellant in this appeal, he must file a motion to substitute immediately See Tex. R. App P. 6.5(d).
Once counsel Overstreet files a motion to substitute, in compliance with Rule 6.5, the brief filed by counsel Overstreet, which addresses the merits of the appeal, the Clerk of the Court will file this as "Appellant's Brief." The motion to substitute shall be filed within 10 days of the date of this order.
It is so ORDERED.