Arnold & Itkin, L.L.P., Beck Redden LLP, Albritton Law Firm, Kurt Arnold, Cory Itkin, Jason Itkin, Russell Post, Fields Alexander, Jas Brar and Eric Albritton v. Maria Santos Lopez Dominguez, Individually and as Next Friend of Karen Marien Andrade Lopez ( 2015 )


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  •                                                                                                ACCEPTED
    01-15-00989-CV
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    12/10/2015 2:39:00 PM
    CHRISTOPHER PRINE
    CLERK
    No. 01-15-00989-CV
    ________________
    FILED IN
    In the First Court of Appeals,               1st COURT OF APPEALS
    HOUSTON, TEXAS
    Houston, Texas                        12/10/2015 2:39:00 PM
    ________________                  CHRISTOPHER A. PRINE
    Clerk
    ARNOLD & ITKIN, L.L.P., BECK REDDEN LLP, ALBRITTON LAW FIRM,
    KURT ARNOLD, CORY ITKIN, JASON ITKIN, RUSSELL POST, FIELDS
    ALEXANDER, JAS BRAR AND ERIC ALBRITTON,
    Petitioners,
    v.
    MARIA SANTOS LOPEZ DOMINGUEZ, INDIVIDUALLY AND AS NEXT
    FRIEND OF KAREN MARIEN ANDRADE LOPEZ, ET AL.,
    Respondents.
    ________________
    From the 11th Judicial District, Harris County, Texas; No. 2015-28543
    ________________
    REPLY IN SUPPORT OF PETITION FOR
    PERMISSION TO APPEAL INTERLOCUTORY
    ORDER AND RESPONSE TO MOTION TO
    DISMISS
    ________________
    Reagan W. Simpson             Jeremy L. Doyle                Billy Shepherd
    State Bar No. 18404700        State Bar No. 24012553         State Bar No. 18219700
    rsimpson@yettercoleman.com    jdoyle@reynoldsfrizzell.com    bshpeherd@spmlegal.com
    YETTER COLEMAN LLP            Reynolds Frizzell LLP          Shepherd Prewett Miller
    909 Fannin, Suite 3600        1100 Louisiana, Suite 3500     PLLC
    Houston, Texas 77010          Houston, Texas 77002           770 South Post Oak Lane
    Tel. 713-632-8000             Tel. 713-485-7200              Suite 420
    Fax 713-632-8002              Fax 713-488-7250               Houston, Texas 77056
    Counsel for Petitioners       Counsel for Petitioners        Tel. 713-955-4440
    Beck Redden LLP,              Arnold & Itkin, L.L.P.,        Fax +1 713-766-6542
    Russell Post, Fields          Kurt Arnold, Cory Itkin,       Counsel for Petitioners
    Alexander and Jas Brar        and Jason Itkin                Albritton Law Firm and
    Eric Albritton
    (Additional Counsel for Petitioners on Following Page)
    Additional Counsel for Petitioners
    James Schuelke                          Allison Standish Miller
    State Bar No. 24075037                  State Bar No. 24046440
    jschuelke@reynoldsfrizzell.com          amiller@spmlegal.com
    Reynolds Frizzell LLP                   Shepherd Prewett Miller PLLC
    1100 Louisiana, Suite 3500              770 South Post Oak Lane
    Houston, Texas 77002                    Suite 420
    Tel. 713-485-7200                       Houston, Texas 77056
    Fax 713-488-7250                        Tel. 713-955-4440
    Counsel for Petitioners Arnold & Itkin, Fax +1 713-766-6542
    L.L.P., Kurt Arnold, Cory Itkin and       Counsel for Petitioners Albritton
    Jason Itkin                               Law Firm and Eric Albritton
    Sam Houston                               John Black
    State Bar No. 10059550                    State Bar No. 24012292
    shouston@sschlaw.com                      jblack@dalyblack.com
    Scott, Clawater & Houston L.L.P.          Daly & Black, P.C.
    2777 Allen Parkway, 7th Floor             2211 Norfolk, Suite 800
    Houston, Texas 77019-2133                 Houston, Texas 77008
    Tel. 713-650-6600                         Tel. 888-492-2671
    Fax 713-766-6542                          Fax 713-655-1587
    Counsel for Petitioners Arnold & Itkin, Counsel for Petitioners Arnold & Itkin,
    L.L.P., Kurt Arnold, Cory Itkin and     L.L.P., Kurt Arnold, Cory Itkin and
    Jason Itkin                             Jason Itkin
    2
    TABLE OF CONTENTS
    INDEX OF AUTHORITIES.............................................................................................. 4
    INTRODUCTION ........................................................................................................... 6
    ARGUMENT ................................................................................................................ 7
    I.       THIS SUIT IS NOT RIPE FOR ADJUDICATION. ................................................... 7
    II.      THE APPEAL INVOLVES A CONTROLLING LEGAL ISSUE................................... 9
    A.        The trial court correctly identified ripeness as the controlling
    issue that it had decided. ...................................................................... 9
    B.        Ripeness is a controlling issue. .......................................................... 11
    III.     A SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION EXISTS................... 12
    IV.      IMMEDIATE APPEAL WILL EXPEDITE THE CONCLUSION OF THE LITIGATION.
    ...................................................................................................................... 13
    CONCLUSION AND PRAYER ...................................................................................... 15
    CERTIFICATE OF COMPLIANCE UNDER APPELLATE RULE 9.4 .................................. 18
    CERTIFICATE OF SERVICE ......................................................................................... 19
    3
    INDEX OF AUTHORITIES
    PAGE(S)
    CASES
    Alexander v. Turtur & Assocs.,
    
    146 S.W.3d 113
    (Tex. 2004) ........................................................................ 11
    City of El Paso v. Madero Dev. & Constr. Co.,
    
    803 S.W.2d 396
    (Tex. App.—El Paso 1991, writ denied) ............................13
    Fertitta Hospitality, LLC v. O’Balle,
    No. 01-14-00193-CV, 
    2014 WL 5780329
           (Tex. App. —Houston [1st Dist.] Nov. 6, 2014, no pet.) ....................... 11, 12
    Gulf Coast Asphalt Co. v. Lloyd,
    
    457 S.W.3d 539
    (Tex. App.—Houston [14th Dist.] 2015, no pet.) ..............12
    Gulley v. State Farm Lloyds,
    
    350 S.W.3d 204
    (Tex. App.—San Antonio 2011, no pet.) ..........................10
    King-A Corp. v. Wehling,
    No. 13-13-00100-CV, 
    2013 WL 1092209
         (Tex. App.—Corpus Christi Mar. 14, 2013, no pet.) ....................................11
    Mayhew v. Town of Sunnyvale,
    
    964 S.W.2d 922
    (Tex. 1998) .................................................................. 11, 13
    Patterson v. Planned Parenthood of Houston & Se. Texas, Inc.,
    
    971 S.W.2d 439
    (Tex. 1998) ........................................................ 8, 13, 14, 15
    Rothrock v. Akin, Gump, Hauer & Feld,
    No. 05-92-02332-CV, 
    1994 WL 183318
          (Tex. App.—Dallas May 11, 1994, no writ) ................................................ 14
    Stier v. Reading & Bates Corp.,
    
    992 S.W.2d 423
    (Tex. 1999) ...........................................................................8
    Vasquez v. Bridgestone/Firestone, Inc.,
    
    325 F.3d 665
    (5th Cir. 2003) ..........................................................................7
    Vestalia, Ltd. v. Taylor-Watson,
    No. 01-15-00332-CV, 
    2015 WL 3799505
          (Tex. App—Houston [1st Dist.] June 18, 2015, no pet.) ..............................10
    Waco Indep. Sch. Dist. v. Gibson,
    
    22 S.W.3d 849
    (Tex. 2000) ............................................................................8
    4
    Warren v. Weiner,
    01-15-00432-CV, 
    2015 WL 4627404
         (Tex. App.—Houston [1st Dist.] Aug. 4, 2015, no pet.) ........................ 10, 15
    STATUTES & RULES
    46 U.S.C. app. §688(b) ............................................................................................. 8
    Tex. Civ. Prac. & Rem. Code §51.014 ......................................................................9
    Tex. R. App. P. 28.3................................................................................................ 18
    Tex. R. Civ. P. 168 .....................................................................................................9
    OTHER AUTHORITY
    Renée Forinash McElhaney,
    Toward Permissive Appeal in Texas, 29 St. Mary’s L.J. 729 (1998)........... 12
    5
    INTRODUCTION
    Three U.S. federal judges have ordered the Clients to pursue their claims in
    Mexican courts, while allowing them to return to U.S. courts if they cannot
    maintain their claims in Mexico. The Clients have instead chosen to bring a
    malpractice claim against their attorneys, premised on speculation about how the
    foreign and federal courts would have ruled had they proceeded with their claims.
    The trial court in this case issued an interlocutory order denying defendants’
    pleas to the jurisdiction and for abatement on the ground that the claims in this case
    are ripe. That order threatens to erode the ripeness requirement, standing for the
    proposition that litigants can sue their lawyers when they are dissatisfied with the
    progress of their cases before any final resolution. The result will be the
    prosecution of a speculative malpractice claim that can lead only to a void advisory
    determination at great cost to the parties and the judicial system. Heightening the
    impropriety are issues of international comity.
    Ripeness is a threshold legal issue, protecting courts and parties from the
    burden of litigating a premature suit. An immediate appeal from the interlocutory
    order will materially advance the ultimate termination of this litigation. The
    Clients’ maneuvers to bypass the judicial process following an adverse forum
    ruling have important ramifications for ripeness, malpractice, federalism, and
    6
    comity jurisprudence. Therefore, the petition for permission to appeal should be
    granted.
    ARGUMENT
    I.    This Suit Is Not Ripe For Adjudication.
    The Clients’ response largely ignores the core ripeness issue. Straining to
    cast the issue presented as anything but a threshold legal question, the Clients
    avoid discussing the impropriety of bringing a malpractice claim following a forum
    non conveniens ruling in a case that has not been finally resolved.
    Three separate federal judges found that conditional dismissal in favor of a
    Mexican forum was warranted. (Pet. Tabs 3, 5, 6, 7). Because of the return
    jurisdiction clause in the second dismissal, the Clients can seek reinstatement in
    U.S. federal court should the Mexican courts refuse to exercise jurisdiction. (Pet.
    Tab 6 at 2, Tab 7 at 15). “A return jurisdiction clause remedies” concerns about
    forum availability “by permitting parties to return to the dismissing court should
    the   lawsuit   become    impossible    in     the   foreign   forum.”   Vasquez   v.
    Bridgestone/Firestone, Inc., 
    325 F.3d 665
    , 675 (5th Cir. 2003).
    The Clients nevertheless abandoned the underlying litigation midstream. If
    their malpractice suit continues, the state court will have to lay conjecture upon
    conjecture to reach an advisory opinion.
    7
    “At the time a lawsuit is filed, ripeness asks whether the facts have
    developed sufficiently so that an injury has occurred or is likely to occur, rather
    than being contingent or remote.” Patterson v. Planned Parenthood of Houston &
    Se. Texas, Inc., 
    971 S.W.2d 439
    , 442 (Tex. 1998). “By focusing on whether the
    plaintiff has a concrete injury, the ripeness doctrine allows courts to avoid
    premature adjudication, and serves the constitutional interests in prohibiting
    advisory opinions.” Waco Indep. Sch. Dist. v. Gibson, 
    22 S.W.3d 849
    , 852 (Tex.
    2000).
    The Clients have not, and may never, experience a legal injury. They
    complain that they have lost the opportunity to litigate in U.S. federal court. (Resp.
    at 18). But if their claims are barred in Mexico as they argue,1 they can return to
    U.S. federal court. Likewise, the Clients complain that the Lawyers’ conduct cost
    them their Jones Act claims, but the Jones Act claims were dismissed without
    prejudice. See Pet. Tab 4.2 Without any final rulings in the underlying suit, the
    1
    Among other allegations, the Clients contend at page 9 of their Third Amended Petition (Pet.
    Tab 2) that the defendants’ waiver of limitations in the underlying case is invalid in Mexico and
    that the plaintiffs’ choice of a U.S. forum precludes jurisdiction in Mexican courts.
    2
    The Jones Act precludes citizens of other countries injured in waters outside the United States
    from bringing a Jones Act claim unless there is absolutely “no remedy” afforded by the country
    where they reside or where the accident happened. 46 U.S.C. app. §688(b); see Stier v. Reading
    & Bates Corp., 
    992 S.W.2d 423
    , 431-32 (Tex. 1999) (detailing the history and purpose of this
    provision). While the Clients imply at pages 3-4 of their Response that the Jones Act standard is
    akin to the forum non conveniens standard of available remedy, they do not go as far as to argue
    that Mexico affords absolutely no remedy to its citizens when they are injured in Mexico by the
    negligence of others. And as to Texas state law claims mentioned at page 3 of the Response, the
    preemption of any such claims by the Jones Act is settled law. See 
    id. 8 Clients’
    malpractice claims are premature, and adjudicating them would contradict
    the ripeness doctrine and, on the facts of this case, offend notions of international
    comity and federalism.
    II.   The Appeal Involves A Controlling Legal Issue.
    Although the trial court was incorrect in ruling that this case is ripe for
    adjudication, it was correct in identifying ripeness as a controlling issue. Further,
    ripeness falls within the type of issues that are proper for permissive appeals.
    A.     The trial court correctly identified ripeness as the controlling
    issue that it had decided.
    The trial court’s interlocutory order permits appeal on a threshold legal
    question:
    As required by section 51.014(d) of the Texas Civil
    Practice & Remedies Code and Texas Rule of Civil
    Procedure 168, the Court identifies the following issue of
    law as the subject of the permitted interlocutory appeal:
    Whether this case, as pleaded by plaintiffs, is ripe for
    adjudication.
    (Pet. Tab 1 at 2). Notwithstanding any statements the trial court may have made
    during a preliminary hearing, the key is this: the trial court issued an order denying
    a plea to the jurisdiction because of the court’s decision that the case is ripe for
    adjudication and then allowed an interlocutory appeal on the controlling ripeness
    issue. (Pet. Tab 1). Leaving no doubt, the interlocutory order expressly stated that
    the malpractice case was ripe: “The Pleas in Abatement and Pleas to the
    9
    Jurisdiction . . . are hereby denied because the Court has decided that the claims for
    malpractice in this case are ripe for adjudication.” (Pet. Tab 1 at 2).
    Wholly distinguishable are cases cited by the Clients—cases in which the
    trial court declined to decide the controlling legal issues in a summary judgment
    ruling. For example, in Vestalia, Ltd. v. Taylor-Watson, No. 01-15-00332-CV,
    
    2015 WL 3799505
    , at *1 (Tex. App.—Houston [1st Dist.] June 18, 2015, no pet.),
    a blanket summary judgment denial, with no explanation, gave no indication of the
    trial court’s stance on the four questions presented on appeal. 
    Id. Likewise, in
    Gulley v. State Farm Lloyds, 
    350 S.W.3d 204
    , 207 (Tex. App.—San Antonio 2011,
    no pet.), the trial court denied competing summary judgment motions and declined
    to determine the proper interpretation of an insurance policy’s endorsements,
    despite identifying the controlling legal question as which one of two possible
    interpretations was correct. The Clients also cite Warren v. Weiner, 01-15-00432-
    CV, 
    2015 WL 4627404
    , at *1 (Tex. App.—Houston [1st Dist.] Aug. 4, 2015, no
    pet.), but that opinion does not even describe, let alone critique, the interlocutory
    order.
    Unlike the judges in the cases cited by the Clients, the trial court here
    expressly found the Clients’ malpractice claim to be ripe for adjudication and then
    identified ripeness as a controlling issue.
    10
    B.     Ripeness is a controlling issue.
    “Ripeness is an element of subject matter jurisdiction” and “is a legal
    question subject to de novo review.” Mayhew v. Town of Sunnyvale, 
    964 S.W.2d 922
    , 928 (Tex. 1998). According to the Clients, “a controlling question of law is
    one that deeply affects the ongoing process of litigation.” (Resp. at 12). Here, the
    ripeness question determines whether the malpractice suit can proceed, which is
    indeed a “deep effect.”
    Attempting to cast ripeness as a fact question, the Clients list potential
    disputed fact issues that might arise in a hypothetical trial. See Resp. at 14.
    Whether their claims are barred in Mexican courts is hardly a fact issue, as the
    Clients contend (id.); it is a legal issue, which should be decided by a Mexican
    court as directed by three U.S. federal court orders. They even try to convert
    ripeness into a factual question on mitigation of damages. 
    Id. Further, the
    Clients cite inapposite cases. For example, they cite Alexander
    v. Turtur & Associates, 
    146 S.W.3d 113
    (Tex. 2004), apparently contending that
    the typical trial-within-a-trial in a legal malpractice case means that it is
    permissible to try an ongoing and unfinished case within their malpractice case.
    Similarly, they cite summary judgment cases laden with contested facts. See, e.g.,
    King-A Corp. v. Wehling, No. 13-13-00100-CV, 
    2013 WL 1092209
    , at *3 (Tex.
    App.—Corpus Christi Mar. 14, 2013, no pet.); Fertitta Hospitality, LLC v.
    11
    O’Balle, No. 01-14-00193-CV, 
    2014 WL 5780329
    , at *4 (Tex. App.—Houston
    [1st Dist.] Nov. 6, 2014, no pet.).
    But the unmistakable and distinguishing fact here is that the Clients are
    asserting a claim about harm that has not and may not ever occur. The fundamental
    legal question at issue is whether the case, as pleaded by the Clients, is ripe for
    adjudication in the first place.
    III.   A Substantial Ground For Difference of Opinion Exists.
    Without citing a case on point, the Clients contend that whether the claims
    are ripe for adjudication is not a legal question that poses substantial grounds for
    disagreement. “Substantial grounds for disagreement exist when the question
    presented to the court is novel or difficult, when controlling circuit law is doubtful,
    when controlling circuit law is in disagreement with other courts of appeals, and
    when there simply is little authority upon which the district court can rely.” Gulf
    Coast Asphalt Co. v. Lloyd, 
    457 S.W.3d 539
    , 544-45 (Tex. App.—Houston [14th
    Dist.] 2015, no pet.) (quoting Renée Forinash McElhaney, Toward Permissive
    Appeal in Texas, 29 St. Mary’s L.J. 729, 747–49 (1998)).
    No Texas court has addressed whether a plaintiff ordered on forum non
    conveniens grounds to refile in a foreign court, with the option of returning to
    federal court to seek reinstatement, can instead bring a malpractice case prefaced
    on speculation about how the foreign and federal courts would have hypothetically
    12
    ruled. Yet this is precisely what “this case, as pleaded by plaintiffs,” (Tab 1 at 2),
    seeks to do. Any trial court ruling would be nonbinding and would upset
    international comity and federalism principles. The trial court’s ripeness
    determination represents a vast expansion of malpractice law, enabling litigants to
    short-circuit the judicial process by paying experts to stand in the place of judges
    and court proceedings.
    IV.   Immediate Appeal Will Expedite The Conclusion Of The Litigation.
    Resolution of the ripeness question will materially advance the ultimate
    termination of the litigation. If the case is not ripe, the lawsuit cannot proceed, and
    any result would amount to an impermissible advisory opinion.
    The ripeness “doctrine has a pragmatic, prudential aspect that is directed
    toward” judicial efficiency. 
    Patterson, 971 S.W.2d at 443
    . The doctrine “conserves
    judicial time and resources for real and current controversies, rather than abstract,
    hypothetical, or remote disputes.” 
    Mayhew, 964 S.W.2d at 928
    . “[A]voiding
    premature litigation prevents courts from ‘entangling themselves in abstract
    disagreements.’” 
    Patterson, 971 S.W.2d at 443
    (quoting City of El Paso v. Madero
    Dev. & Constr. Co., 
    803 S.W.2d 396
    , 398–99 (Tex. App.—El Paso 1991, writ
    denied)). Here, the trial court would be making nonbinding interpretations of how
    Mexican and Texas federal courts would rule on unique jurisdictional and
    procedural matters.
    13
    The Clients suggest that a finding that the case is not ripe will protract the
    litigation process because they will be forced to litigate their underlying claims.
    Clients’ argument underscores the fallacy of their position: malpractice claims are
    not a stand-in for judicial resolution of underlying disputes. Judicial economy in
    the trial court would be squandered on a premature case. There has been no final
    resolution of the Clients’ underlying claims, nor have the Clients been barred from
    Texas federal courts. The Clients’ purported injury has not and may never occur.
    See Rothrock v. Akin, Gump, Hauer & Feld, No. 05-92-02332-CV, 
    1994 WL 183318
    , at *7 (Tex. App.—Dallas May 11, 1994, no writ) (“Where the
    misfeasance or nonfeasance is intertwined with an adjudicative process that is
    necessary to complete invasion of the protected interest, injury is not suffered until
    an adjudicative decision is made.”).
    The malpractice litigation cannot continue if this Court finds the case to be
    unripe. But in the absence of an appeal, the parties and trial court will expend
    resources on a premature case premised on contingent and hypothetical facts. Any
    damages model would be speculative and unreliable. And the trial court ruling
    would ultimately be void as an advisory opinion beyond the subject matter
    jurisdiction of Texas courts. See 
    Patterson, 971 S.W.2d at 443
    (the prohibition on
    advisory opinions “extends to cases that are not yet ripe”). “Refraining from
    14
    issuing advisory opinions and waiting for cases’ timely factual development is . . .
    essential to the proper development of the state’s jurisprudence.” 
    Id. Further, despite
    the Clients’ suggestion, no Texas rule bars consideration of
    a permissive appeal when a mandamus petition is pending. In attempting to create
    such a prohibition, the Clients cite Warren, 
    2015 WL 4627404
    , at *1. But that one-
    paragraph opinion found that the petition for permissive appeal failed to “establish
    that the order involves a controlling question of law as to which there is a
    substantial ground for a difference of opinion.” 
    Id. CONCLUSION AND
    PRAYER
    For the reasons stated above, this Court should grant the petition for
    interlocutory appeal, deny the Clients’ motion to dismiss, and grant the Lawyers all
    other relief to which they are entitled.
    15
    Respectfully submitted by
    Counsel for Petitioners:
    /s/ Reagan W. Simpson
    Reagan W. Simpson
    State Bar No. 18404700
    rsimpson@yettercoleman.com
    YETTER COLEMAN LLP
    909 Fannin, Suite 3600
    Houston, Texas 77010
    Tel. 713-632-8000
    Fax 713-632-8002
    Counsel for Petitioners
    Beck Redden LLP, Russell Post,
    Fields Alexander and Jas Brar
    /s/Jeremy L. Doyle                       /s/Billy Shepherd
    Jeremy L. Doyle                          Billy Shepherd
    State Bar No. 24012553                   State Bar No. 18219700
    jdoyle@reynoldsfrizzell.com              bshpeherd@spmlegal.com
    James Schuelke                           Allison Standish Miller
    State Bar No. 24075037                   State Bar No. 24046440
    jschuelke@reynoldsfrizzell.com           amiller@spmlegal.com
    REYNOLDS FRIZZELL LLP                    SHEPHERD PREWETT MILLER
    1100 Louisiana, Suite 3500               PLLC
    Houston, Texas 77002                     770 South Post Oak Lane
    Tel. 713-485-7200                        Suite 420
    Fax 713-488-7250                         Houston, Texas 77056
    Counsel for Petitioners Arnold &         Tel. 713-955-4440
    Itkin, L.L.P., Kurt Arnold, Cory Itkin   Fax +1 713-766-6542
    and Jason Itkin                          Counsel for Petitioners
    Albritton Law Firm and Eric
    Albritton
    16
    /s/Sam Houston                          /s/John Black
    Sam Houston                             John Black
    State Bar No.10059550                   State Bar No. 24012292
    shouston@sschlaw.com                    jblack@dalyblack.com
    SCOTT, CLAWATER & HOUSTON L.L.P.        DALY & BLACK, P.C.
    2777 Allen Parkway, 7th Floor           2211 Norfolk, Suite 800
    Houston, Texas 77019-2133               Houston, Texas 77008
    Tel. 713-650-6600                       Tel. 888-492-2671
    Fax 713-766-6542                        Fax 713-655-1587
    Counsel for Petitioners Arnold & Itkin, Counsel for Petitioners Arnold &
    L.L.P., Kurt Arnold, Cory Itkin and     Itkin, L.L.P., Kurt Arnold, Cory
    Jason Itkin                             Itkin and Jason Itkin
    17
    CERTIFICATE OF COMPLIANCE UNDER APPELLATE RULE 9.4
    I certify that this brief complies with the type-volume limitation of Texas
    Rule of Appellate Procedure 9.4(i)(2)(E), incorporated by Texas Rule of Appellate
    Procedure 28.3(g), because it contains 2,286 words, excluding the parts of the
    briefs exempted by Texas Rule of Appellate Procedure 9.4(i)(2)(E).
    /s/ Reagan W. Simspon
    Reagan W. Simpson
    18
    CERTIFICATE OF SERVICE
    In compliance with Texas Rule of Appellate Procedure 9.5(e), I hereby
    certify that a true and correct copy of this brief has been served on lead counsel
    and additional counsel for respondents by electronic means and/or via e-mail on
    December 10, 2015, as follows:
    Lance Christopher Kassab           Brett Wagner
    David Eric Kassab                  Larry Joe Doherty
    The Kassab Law Firm                Ryan W. Smith
    1420 Alabama                       Doherty  Wagner
    Houston, Texas 77004               13810 Champion Forest Drive
    lck@texaslegalmalpractice.com      Suite 225
    dek@texasleglamalpractice.com      Houston, Texas 77069
    Counsel for Plaintiffs-            brett@dwlawyers.com
    Respondents                        larry@dwlawyers.com
    ryan@dwlawyers.com
    Counsel for Plaintiffs-Respondents
    /s/ Reagan W. Simspon
    Reagan W. Simpson
    19