in Re Arnold & Itkin, L.L.P., Beck Redden, L.L.P., Albritton Law Firm, Kurt Arnold, Cory Itkin, Jason Itkin, Russell Post, Fields Alexander, Jas Brar and Eric Albritton ( 2015 )

ACCEPTED
01-15-00990-CV
FIRST COURT OF APPEALS
15 00990 HOUSTON, TEXAS
No. ___ - _________- CV 11/24/2015 6:30:12 PM
CHRISTOPHER PRINE
CLERK
IN THE COURT OF APPEALS
FOR THE FIRST OR FOURTEENTH DISTRICT FILED IN
1st COURT OF APPEALS
OF TEXAS AT HOUSTON HOUSTON, TEXAS
11/24/2015 6:30:12 PM
CHRISTOPHER A. PRINE
Clerk
In re Arnold & Itkin, L.L.P., Beck Redden, L.L.P., Albritton Law Firm,
Kurt Arnold, Cory Itkin, Jason Itkin, Russell Post,
Fields Alexander, Jas Brar and Eric Albritton
Relators
Original Proceeding from the 11th Judicial District Court
Harris County, Texas
The Honorable Mike D. Miller, Presiding
Trial Court No. 2015-28543
PETITION FOR WRIT OF MANDAMUS
Jeremy L. Doyle Reagan W. Simpson Billy Shepherd
(SBN: 24012553) (SBN: 18404700) (SBN: 18219700)
James Schuelke YETTER COLEMAN Allison Standish Miller
(SBN: 24075037) LLP (SBN:24046440)
REYNOLDS FRIZZELL 909 Fannin, Suite 3600 SHEPHERD PREWETT
LLP Houston, Texas 77010 MILLER PLLC
1100 Louisiana, Suite 3500 PH: (713) 632-8000 770 South Post Oak Lane,
Houston, Texas 77002 Fax: (713) 632-8002 Suite 420
PH: (713) 485-7200 rsimpson@yettercoleman.com Houston, Texas 77056
Fax: (713) 485-7250 PH: (713) 995-4440
jdoyle@reynoldsfrizzell.com Counsel for Relators Fax: (713) 766-6542
jschuelke@reynoldsfrizzell.com Beck Redden L.L.P., bshepherd@spmlegal.com
Russell Post, Fields amiller@spmlegal.com
Counsel for Relators Alexander, and Jas Brar
Arnold & Itkin, L.L.P., Counsel for Relators
Kurt Arnold, Cory Itkin, Albritton Law Firm &
and Jason Itkin Eric Albritton
(Additional Counsel for Relators on Following Page)
Additional Counsel for Relators
John Scott Black (SBN: 24012292) Sam Houston (SBN: 10059550)
DALY & BLACK, P.C. SCOTT, CLAWATER & HOUSTON
2211 Norfolk, Suite 800
L.L.P.
Houston, Texas 77008
PH: (713) 655-1405 2777 Allen Parkway, 7th Floor
Fax: (713) 655-1587 Houston, Texas 77019-2133
jblack@dalyblack.com PH: (713) 650-6600
Counsel for Relators Arnold & Itkin, L.L.P., Fax: (713) 650-1720
Kurt Arnold, Cory Itkin, and Jason Itkin shouston@sschlaw.com
Counsel for Relators Arnold &
Itkin, L.L.P., Kurt Arnold,
Cory Itkin, and Jason Itkin
IDENTITY OF PARTIES AND COUNSEL
Relators
Arnold & Itkin, L.L.P., Kurt Beck Redden L.L.P., Russell Post,
Arnold, Cory Itkin, and Jason Fields Alexander, and Jas Brar
Itkin
Represented by:
Represented by:
Reagan W. Simpson
Jeremy L. Doyle Yetter Coleman LLP
James Schuelke 909 Fannin, Suite 3600
Reynolds Frizzell LLP Houston, Texas 77010
1100 Louisiana, Suite 3500 PH: (713) 632-8000
Houston, Texas 77002 Fax: (713) 632-8002
PH: (713) 485-7200 rsimpson@yettercoleman.com
Fax: (713) 485-7250
jdoyle@reynoldsfrizzell.com
jschuelke@reynoldsfrizzell.com Albritton Law Firm & Eric Albritton
Sam Houston Represented by:
Scott, Clawater & Houston L.L.P.
2777 Allen Parkway, 7th Floor Billy Shepherd
Houston, Texas 77019-2133 Allison Standish Miller
PH: (713) 650-6600 Shepherd Prewett Miller PLLC
Fax: (713) 650-1720 770 South Post Oak Lane, Suite 420
shouston@sschlaw.com Houston, Texas 77056
PH: (713) 995-4440
John Scott Black Fax: (713) 766-6542
Daly & Black, P.C. bshepherd@spmlegal.com
2211 Norfolk, Suite 800 amiller@spmlegal.com
Houston, Texas 77008
PH: (713) 655-1405
Fax: (713) 655-1587
jblack@dalyblack.com
i
Respondent
The Honorable Mike D. Miller
Harris County Civil Courthouse
11th Civil Court
201 Caroline, 9th Floor
Houston, Texas 77002
PH: (713) 368-6020
Real Parties in Interest
Maria Santos Lopez Dominguez, Individually and as Next friend of Karen Marien
Andrade Lopez, Mairet Sameli Andrade Lopez and Imar Gerardine Andrade
Lopez on behalf of the Estate of Omar Gerardo Andrade Zarate
Gabriel Gonzalez Toral
Jorge Arturo Jimenez Rangel
Antonio Montero Hernandez
Juan Antonio Palafox Navarette
Leonel Fernandez Rivera
Fernando Augusto Cervera Ramirez
Libia Arredondo Chavez, individually and as Next Friend of Jorge Ricardo
Barrancos Arredondo and Pedro Santiago Barrancos Arredondo on behalf of
the Estate of Jorge Alonso Barrancos Dzul
Pastor Garcia Ocana
Jorge Guzman Martinez
Aldo Antonio Lopez Lorenzo and Monica Lopez
Miguel Cobos Salas
Jose Pedro Cobos Quiroz
Oscar Romero Ortega
Sergio Rosado Cortes
Sergio Solis Ponce
Martin Zuniga Salazar
Josefa Santos Castellano, Individually and as Representative of the Estate of
Benito De Los Santos
Joel Santos Ventura, Individually and as Representative of the Estate of Benito
De Los Santos
Aleli Jiminez Perez, Individually and as Representative of the Estate of Aroer
May Jimenez
Tayde Maria Pozo Roble, Individually and as Representative of the Estate of
Leandro Manuel Hernandez Pozo
Miguel Hernandez Chan, Individually and as Representative of the Estate of
ii
Leandro Manuel Hernandez Pozo
Eudocio Alejandro Jacome Gomez
Represented by:
Brett Wagner (SBN: 20654270)
Lance Christopher Kassab Larry Joe Doherty
(SBN: 00794070) (SBN: 05950000)
David Eric Kassab Ryan W. Smith (SBN: 24063010)
(SBN: 24071351) Doherty  Wagner
The Kassab Law Firm 13810 Champion Forest Drive
1420 Alabama Suite 225
Houston, Texas 77004 Houston, Texas 77069
PH: (713) 522-7400 PH: (281) 583-8700
Fax: (713) 522-7410 Fax: (281) 583-8701
lck@texaslegalmalpractice.com brett@dwlawyers.com
dek@texaslegalmalpractice.com larry@dwlawyers.com
ryan@dwlawyers.com
iii
TABLE OF CONTENTS
Page(s)
TABLE OF CONTENTS ................................................................................... iv-v
TABLE OF AUTHORITIES............................................................................ vi-vii
STATEMENT OF THE CASE ...............................................................................1
STATEMENT OF JURISDICTION .......................................................................2
RECORD REFERENCES .......................................................................................2
ISSUES PRESENTED ............................................................................................2
STATEMENT OF FACTS ......................................................................................3
A. The Underlying Lawsuit ....................................................................4
B. The Forum Non Conveniens Argument in the Underlying
Lawsuit................................................................................................5
C. The Filing of This Lawsuit .................................................................8
D. Realtors’ Pleas to the Jurisdiction and Pleas in Abatement ............... 9
STANDARD OF REVIEW...................................................................................10
SUMMARY OF THE ARGUMENT ....................................................................11
ARGUMENT ........................................................................................................13
I. The Trial Court Clearly Abused Its Discretion By Failing to Grant
Relators’ Plea to the Jurisdiction .................................................... 13
A. Premature Lawsuits Must be Dismissed .................................... 13
B. This Lawsuit is Premature ...........................................................14
II. The Trial Court Clearly Abused Its Discretion By Failing to Grant
Relators’ Plea in Abatement ............................................................17
iv
A. Legal Malpractice Claims Arising From Litigation Are Not
Viable Until the Underlying Litigation is Fully and Finally
Resolved. .....................................................................................17
B. The Only Texas Appellate Courts to Confront This Issue Have
Held That This Action Must Be Abated. ..................................... 21
III. Relators Have No Adequate Remedy on Appeal ............................ 24
PRAYER ...............................................................................................................28
APPENDIX
Order Denying Defendants’ Plea to the Jurisdiction And Plea in Abatement
APP001-APP003 ............................................................................................TAB 1
Amended Order Denying Defendants’ Pleas in Abatement and Pleas to the
Jurisdiction and Granting Permission to File Interlocutory Appeal From Order
APP004-APP006 ............................................................................................TAB 2
v
TABLE OF AUTHORITIES
CASES PAGE
Atkins v. Crosland
417 S.W.2d 150 (Tex. 1967) .......................................................................23
Greathouse v. McConnell
982 S.W.2d 165 (Tex. App. – Houston [1st Dist.] 1998, pet. denied) ........ 19
In re: Apex Towing Co.
41 S.W.3d 118 (Tex. 2001) ....................................................... 17-18, 20, 22
In re Bridgestone Americas Tire Operations, LLC,
459 S.W.3d 565 (Tex. 2014) .......................................................................14
In re Olshan Found. Repair Co.
328 S.W.3d 883 (Tex. 2010) .......................................................................10
In re Pirelli Tire, L.L.C.
247 S.W.3d 670 (Tex. 2007) .......................................................................14
In re Prudential Ins. Co. of Am.
148 S.W.3d 124 (Tex. 2004) .................................................................11, 24
In re Reece
341 S.W.3d 360 (Tex. 2011) (orig. proceeding) .........................................10
In re: Southwestern Bell Tel. Co.
35 S.W.3d 602 (Tex. 2000) .........................................................................13
In re Team Rocket, L.P.
256 S.W.3d 257 (Tex. 2008) .......................................................................10
In re Texas Collegiate Baseball League, Ltd.
367 S.W.3d 462 (Tex. App. – Ft. Worth 2012, orig. proceeding) ........ 21-24
In re United Scaffolding, Inc.
301 S.W.3d 661 (Tex. 2010) .......................................................................10
vi
In re Van Waters & Rogers
145 S.W.3d 203 (Tex. 2004) (orig. proceeding) .........................................25
Mahaney & Higgins
821 S.W.2d 154 (Tex. 1992) .......................................................................17
Patterson v. Planned Parenthood of Houston & S.E. Tex., Inc.
971 S.W.2d 439 (Tex. 1998) .......................................................................13
Philips v. Giles
620 S.W.2d 750 (Tex. App. – Dallas 1981, no writ) ............................16, 23
Rothrock v. Akin, Gump, Hauer & Feld
1994 WL 183318, at *7 (Tex. App.—Dallas May 11, 1994, no pet.) ........ 15
Seguros Comercial Americas S.A. De C.V. v. Am. President Lines, Ltd.,
933 F. Supp. 1301 (S.D. Tex. 1996) ...........................................................14
Stier v. Reading & Bates Corp.
992 S.W.2d 423 (Tex. 1998) .................................................................... 5-6
Vasquez v. Bridgestone/Firestone, Inc.
325 F.3d 665 (5th Cir. 2003).......................................................................15
Waco Ind. School Dist. v. Gibson
22 S.W.3d 849 (Tex. 2000) .........................................................................13
Zermano v. McDonnell Douglas Corp.
246 F. Supp. 2d 646 (S.D. Tex. 2003) ........................................................14
STATUTES:
Article V, § 6 of the Texas Constitution .................................................................2
Texas Government Code section 22.221(b)(1) ......................................................2
vii
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Comes now Relators, Arnold & Itkin, L.L.P., Beck Redden, L.L.P.,
Albritton Law Firm, Kurt Arnold, Cory Itkin, Jason Itkin, Russell Post, Fields
Alexander, Jas Brar, and Eric Albritton and file this Petition for Writ of Mandamus.
In support thereof, Relators would respectfully show the Court as follows:
STATEMENT OF THE CASE
This is a legal malpractice action filed by several citizens of Mexico, the
Real Parties in Interest, against their former lawyers, the Relators. See R: 1-19.
Relators represented the Real Parties in Interest in connection with certain personal
injury claims arising out of an oil platform accident offshore of Mexico. See R:
21.
The Real Parties in Interest filed their personal injury claims relating to the
Mexico accident in the United States District Court for the Eastern District of
Texas against a number of corporate defendants. Id. The federal court
conditionally dismissed that lawsuit on forum non conveniens grounds based on a
determination that Mexico is the proper forum for the claims, since the accident
occurred in Mexico and the Real Parties in Interest are all Mexican citizens. See
R: 61-90.
The Real Parties in Interest stopped pursuing their personal injury claims
against the underlying defendants, and filed this legal malpractice action against
their lawyers for not defeating the forum non conveniens motion. See R: 1-19.
1
Relators filed pleas to the jurisdiction and pleas in abatement seeking dismissal or
abatement of this action until the Real Parties in Interest obtain a final resolution
of their underlying personal injury claims. See R: 21-31; 51-58.
The Respondent is the Honorable Mike D. Miller, judge of the 11th Judicial
District Court for Harris County, Texas.
On September 17, 2015 and November 9, 2015, Respondent entered orders
denying Relators’ pleas to the jurisdiction and pleas in abatement. See App: 001-
006. This Petition for Writ of Mandamus arises from those Orders.
STATEMENT OF JURISDICTION
This Court has jurisdiction to grant these Relators’ Petition for Writ of
Mandamus pursuant to Texas Government Code section 22.221(b)(1) and Article
V, § 6 of the Texas Constitution.
RECORD REFERENCES
The Appendix to Relators’ Petition for Writ of Mandamus will be referenced
as “App: [page number].”
The Record in Support of Relators’ Petition for Writ of Mandamus will be
referenced as “R: [page number].”
ISSUES PRESENTED
Whether the trial court committed a clear abuse of discretion for which
Relators have no adequate remedy of appeal by failing to grant Relators’ plea to
the jurisdiction and/or plea in abatement when:
2
(1) This is a legal malpractice action, but the underlying litigation in which
the alleged legal malpractice occurred has not yet been litigated to final resolution,
so whether Real Parties in Interest have been injured, and if so, in what amount, is
not known;
(2) Real Parties in Interest stopped pursuing their underlying personal injury
claims after they lost a forum non conveniens argument, and decided instead to sue
their litigation counsel for malpractice for losing the forum argument;
(3) The federal court overseeing the underlying lawsuit entered a conditional
dismissal order inviting the Real Parties in Interest to reinstate their personal injury
claims in Texas federal court if the Mexico courts do not accept jurisdiction over
them, yet Real Parties in Interest abandoned their personal injury claims and filed
this action seeking to litigate in Texas state court the hypothetical questions of
whether a Mexico court or Texas federal court would in the future accept
jurisdiction over their underlying claims; and
(4) The Real Parties in Interest’s claims in this action are premature and not
ripe because they depend on contingent and hypothetical events.
STATEMENT OF FACTS
Real Parties in Interest are several Mexican citizens who previously filed
personal injury claims in the United States District Court for the Eastern District
of Texas arising out an oil platform accident offshore of Mexico. See R: 1-19.
Relators are lawyers and law firms who represented the Real Parties in Interest in
3
that litigation in the Eastern District of Texas. See R: 51-59. This legal malpractice
action arises out of Relators’ representation of the Real Parties in Interest. See R:
1-19.
A. The Underlying Lawsuit
In 2007, Real Parties in Interest and their decedents were victims of an
offshore drilling accident. See R: 21. In October of that year, a powerful storm
developed in the Bay of Campeche, where the Usumancinta, a mobile drilling rig,
was positioned near the oil production platform KAB-101, approximately ten miles
north of the Mexican coast. See R: 62. As a result of the inclement weather, the
structures collided, forcing the occupants to evacuate the platform. See R: 63.
Despite rescue efforts, twenty-two offshore workers ultimately perished and many
more were injured. Id.
In October 2008, Relators filed personal injury lawsuits in the United States
District Court for the Eastern District of Texas on behalf of Real Parties in Interest
and others, all of whom are residents of Mexico, against Gulf Coast Marine &
Associates, Inc., Schlumberger Technology Corporation, Haliburton Energy
Services, Inc., Matthews-Daniel Company, and Glen Carter, an American
employee of Gulf Coast (collectively, “Personal Injury Defendants”). See R: 61-
62.
4
B. The Forum Non Conveniens Argument in the Underlying Lawsuit
The Personal Injury Defendants filed a motion to dismiss the lawsuits on the
basis of forum non conveniens, arguing that Mexico is the proper forum for the
personal injury claims. See R: 62. The core of their argument was that the Real
Parties in Interest are Mexican citizens, they reside in Mexico, and the accident
that gave rise to their claims occurred offshore of Mexico, so Mexico is the proper
forum to adjudicate those claims. See R: 65-66.
On May 29, 2009, Judge Ron Clark determined that Mexico is an available
and adequate forum for the Real Parties in Interest’s underlying claims, and he
conditionally granted the forum non conveniens motion. See R: 296-308. The
Personal Injury Defendants stipulated that they would agree to jurisdiction in
Mexico and waive any statute of limitations or laches defense they had to the Real
Parties in Interest’s claims. See R: 311-19. Judge Clark subsequently recused
himself, vacated his dismissal order, and the case was assigned to the Honorable
T. John Ward, also of the Eastern District of Texas.
Judge Ward first dismissed without prejudice the federal maritime claims
asserted by the Real Parties in Interest because the Jones Act precludes such claims
where, as here, foreign law provides any remedy for foreign citizens injured
outside of U.S. waters. See R: 327-37. See also Stier v. Reading & Bates Corp.,
992 S.W.2d 423, 425-8 (Tex. 1998). He also dismissed the Texas state law claims
5
because the Jones Act preempts such claims. See R: 327-37; Stier, 992 S.W.2d at
429.
On April 20, 2011, Judge Ward again conditionally granted the motion to
dismiss based on forum non conveniens. See R: 61-87. Judge Ward noted in his
order that “the Fifth Circuit has made it abundantly clear that where the Defendants
will submit to jurisdiction, Mexico is an available and adequate forum for the
resolution of these types of disputes,” and he cited to Fifth Circuit case law stating
that there is “a nearly airtight presumption that Mexico is an available forum.” See
R: 68-69, fn 5.
As conditions to granting the forum non conveniens motion, Judge Ward
required the Personal Injury Defendants to again stipulate that they would “appear
and submit themselves to the jurisdiction of a Mexican federal or state court,
waiving any jurisdictional defenses they might normally possess” and that they
would “waive any statute of limitations defense that they did not possess as of the
date that each of the seven cases was originally filed.” See R: 84-85. The Personal
Injury Defendants complied by filing a second stipulation in federal court in which
they stipulated that they would agree to submit to jurisdiction in Mexico, waive
any statute of limitations and laches defenses, agree to discovery in Mexico, and
make all witnesses and documents available in Mexico. See R: 323-24.
With that stipulation, Judge Ward conditionally dismissed the case on May
4, 2011. See R: 323-24. The dismissal of the underlying lawsuit was conditional
6
because it included a return-jurisdiction clause. See R: 324. The Fifth Circuit
requires such a clause in a forum non conveniens dismissal in order to protect the
Real Parties in Interest from suffering prejudice if the courts in Mexico do not
accept jurisdiction. See R: 84. Judge Ward’s order stated the following:
Should the courts of Mexico refuse to accept jurisdiction of this case
for reasons other than the Plaintiff’s refusal to pursue an action or to
comply with the procedural requirements of Mexican courts, this
Court may reassert jurisdiction upon timely notification of the same.
See R: 324
Following Judge Ward’s order, Mexico counsel for the Real Parties in
Interest filed a series of individual complaints in Mexico court on behalf of a
number of the Real Parties in Interest. See R: 37-38. The Mexico court summarily
rejected, on jurisdictional grounds, each of the complaints that were filed. Id.
Relators (on behalf of Real Parties in Interest) filed a motion to reinstate the
Personal Injury Claims in the District Court for the Eastern District of Texas. See
R: 108-111. Relators argued that the rejection of the complaints filed in Mexico
showed that the courts of Mexico had refused to accept jurisdiction over the
personal injury claims. Id. The Personal Injury Defendants opposed reinstatement.
See R: 38.
Judge Ward retired from the bench, so the Honorable Marcia Crone
considered the motion to reinstate. On May 14, 2014, Judge Crone declined to
reinstate the Personal Injury Claims at that time. See R: 35-49. Judge Crone
7
determined that “Plaintiffs can revise their complaints and re-file them in Mexico,”
and that the Mexico courts should accept jurisdiction over Plaintiffs’ claims. See
R: 48-49.
Judge Crone based her decision on an analysis of Mexican law, the expert
opinions provided to her, and “the clear Mexican legal authority supporting the
exercise of jurisdiction in cases where, as here, Defendants have consented in
writing to the jurisdiction of the Mexican courts.” See R: 43-48. Judge Crone
concluded that the Real Parties in Interest had not adequately informed the court
in Mexico that the Personal Injury Defendants had consented to jurisdiction in
Mexico and waived limitations and jurisdictional defenses, and therefore had not
fulfilled the requirements of the return jurisdiction clause. Id.
Judge Crone ordered that the Real Parties in Interest must return to Mexico
and diligently pursue their Personal Injury Claims there before seeking to have
them reinstated in the Texas federal court. Her Order stated the following: “[Real
Parties in Interest] shall not seek reinstatement in this court unless and until they
have pursued their claims in Mexico with diligence and good faith, including
seeking final appellate review of any Mexican dismissal order.” See R: 49.
C. The Filing of This Lawsuit
The Real Parties in Interest did not re-file their claims in Mexico. Instead,
the Real Parties in Interest filed the present suit against Relators in Harris County
District Court. See R: 1. The Real Parties in Interest made no intervening filings
8
and received no subsequent orders or judgments relating to their Personal Injury
Claims.
D. Relators’ Pleas to the Jurisdiction and Pleas in Abatement
On July 10, 2015, Relators Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin,
and Jason Itkin filed a Plea to the Jurisdiction, and, in the alternative, Plea in
Abatement. See R: 21-31. On the same date, Relators Beck Redden, L.L.P.,
Russell Post, Fields Alexander, and Jas Brar also filed a Plea to the Jurisdiction,
and, in the alternative, Plea in Abatement. See R: 51-58. Relators Albritton Law
Firm and Eric Albritton joined in both of those pleadings. See R: 119-20.
On August 17, 2015, the trial court conducted a hearing on the Pleas in
Abatement and Pleas to the Jurisdiction filed by Relators. See App. 004. On
September 17, 2015, the Court signed an order denying the Pleas in Abatement and
Pleas to the Jurisdiction. See App. 001-002.
On October 2, 2015, Relators filed a motion for permission to file an
interlocutory appeal from the Court’s September 17, 2015 order pursuant to
§51.014(d) of the Texas Civil Practices & Remedies Code. See App. 004. The
trial court conducted a hearing on that motion on October 16, 2015. Id. On
November 9, 2015, the Court signed an order granting Relators permission to file
an interlocutory appeal. See App: 004-006. In that order, the Court identified the
following issue for interlocutory appeal: “Whether this case, as pleaded by
plaintiffs, is ripe for adjudication.” See App: 005.
9
Relators are filing a Petition for Interlocutory Review on the issue of
ripeness simultaneously with the filing of this Petition for Writ of Mandamus. This
Petition for Writ of Mandamus arises from the trial court’s September 17, 2015
and November 9, 2015 orders and concerns (i) Relators’ request for dismissal of
this action on the grounds that the legal malpractice claims are not ripe; and (ii)
Relators’ alternative request for an abatement of this action.
STANDARD OF REVIEW
Mandamus relief is appropriate when a trial court clearly abuses its
discretion and there is no adequate remedy at law. In re Reece, 341 S.W.3d 360,
364 (Tex. 2011) (orig. proceeding). A trial court clearly abuses its discretion when
it reaches a decision that is arbitrary and unreasonable such that it amounts to a
clear and prejudicial error of law or when it fails to correctly analyze or apply the
law. In re Olshan Found. Repair Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig.
proceeding). An erroneous legal conclusion, even in an unsettled area of law, is
an abuse of discretion. In re United Scaffolding, Inc., 301 S.W.3d 661, 663 (Tex.
2010) (orig. proceeding).
The adequacy of an appellate remedy is determined by balancing the
benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256
S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). In balancing the benefits and
detriments, the court considers whether mandamus will “preserve important
substantive and procedural rights from impairment or loss, allow the appellate
10
courts to give needed and helpful direction to the law that would otherwise prove
elusive in appeals from final judgments, and spare private parties and the public
the time and money utterly wasted enduring eventual reversal of improperly
conducted proceedings.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136
(Tex. 2004) (orig. proceeding). The question of whether there is an adequate
remedy by appeal “is not an abstract or formulaic one; it is practical and
prudential.” Id.
SUMMARY OF ARGUMENT
The issue in this mandamus is whether plaintiffs to a lawsuit whose claims
are conditionally dismissed on forum non conveniens ground can elect to drop their
claims and instead sue their attorneys for legal malpractice in connection with
losing that forum non conveniens motion. Texas law is clear that they cannot.
Litigants must first pursue their underlying claims to a final resolution.
The Real Parties in Interest’s legal malpractice claims are premature and not
ripe for adjudication. They have not suffered any injury at this point, and they may
never suffer any injury depending on how their underlying claims turn out. The
legal malpractice claims against Relators depend on contingent and hypothetical
future events, such as whether a court in Mexico will accept jurisdiction over their
underlying personal injury claims and, if not, whether the federal court will
reinstate the personal injury claims pursuant to the return jurisdiction clause. The
11
trial court abused its discretion when it denied Relators’ plea to the jurisdiction and
failed to dismiss this premature lawsuit.
Even if Real Parties in Interest’s claims have technically accrued, this action
must be abated pending the outcome of their underlying claims against the Personal
Injury Defendants. The legal malpractice claims may have no merit depending on
the outcome of the personal injury claims. The harm suffered by the Real Parties
Interest as a result of Relators’ alleged malpractice, if any, has not come to pass
and cannot be known until the underlying claims reach a final resolution.
Mandamus is required because appeal is not an adequate remedy. Relators
have a right to know the actual outcome of the underlying personal injury claims,
and what harm, if any, the Real Parties in Interest have actually suffered, before
Relators have to defend a legal malpractice action arising out of their
representation of the Real Parties in Interest.
Further, the Real Parties in Interest have claims against the Personal Injury
Defendants who actually caused the oil platform accident. Judge Crone
determined that the Real Parties in Interest have the ability to re-file those claims
in Mexico. If the Mexico courts do not accept jurisdiction, the return jurisdiction
clause in Judge Ward’s conditional dismissal order provides the right to reinstate
the personal injury claims in U.S. federal court. Each of those rights will be lost
or impaired absent mandamus relief.
12
ARGUMENT
I. The Trial Court Clearly Abused Its Discretion By Failing to Grant
Relators’ Plea to the Jurisdiction
A. Premature Lawsuits Must be Dismissed
Texas courts are prohibited from hearing cases that are not yet ripe.
Patterson v. Planned Parenthood of Houston & S.E. Tex., Inc., 971 S.W.2d 439,
443 (Tex. 1998). “A case is not ripe when its resolution depends on contingent or
hypothetical facts, or upon events that have not yet come to pass.” Id.
Ripeness “is a threshold issue that implicates subject matter jurisdiction and
like standing, emphasizes the need for a concrete injury for a justiciable claim to
be presented.” Id. at 442. “[T]he ripeness doctrine allows courts to avoid
premature adjudication, and serves the constitutional interests in prohibiting
advisory opinions.” Waco Ind. School Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex.
2000) (citing Patterson). Texas courts should reserve judicial resources for actual,
as opposed to hypothetical, cases.
For the reasons explained herein, this legal malpractice action is premature
and the trial court lacks jurisdiction to proceed with it. The Texas Supreme Court
has recognized that a trial court abuses its discretion and mandamus is proper when
a trial court enters an order beyond its jurisdiction. In re Southwestern Bell Tel.
Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).
13
B. This Lawsuit is Premature
The claims that the Real Parties in Interest assert in this action are not ripe.
The Real Parties in Interest have not suffered any injury, and they may never suffer
any injury. Their claims are premised on contingent and hypothetical facts.
The Real Parties in Interest allege that Relators should have convinced the
Texas federal court that Mexico is an unavailable and inadequate forum for
Plaintiffs’ underlying claims and thus defeated the forum non conveniens
challenge. Forum non conveniens is subject to discretion. Two federal judges in
the underlying case (Judge Ron Clark, Judge T. John Ward) concluded that Mexico
is an appropriate forum for the underlying personal injury claims, and Judge Crone
reached the same conclusion in her recent order. See R: 296-308 (Clark); R: 61-
87 (Ward); R: 35-49 (Crone).
Federal and state courts routinely grant forum non conveniens motions in
lawsuits that involve accidents in foreign countries and plaintiffs who are citizens
of those countries. See, e.g., Seguros Comercial Americas S.A. De C.V. v. Am.
President Lines, Ltd., 933 F. Supp. 1301 (S.D. Tex. 1996); Zermano v. McDonnell
Douglas Corp. 246 F. Supp. 2d 646 (S.D. Tex. 2003); In re Pirelli Tire, L.L.C.,
247 S.W.3d 670 (Tex. 2007) (finding that Mexico is available and adequate after
rejecting arguments regarding limitations waivers and restrictions on discovery
and damages in Mexico); accord In re Bridgestone Americas Tire Operations,
LLC, 459 S.W.3d 565 (Tex. 2014).
14
Regardless of whether the forum decisions by Judge Clark and Judge Ward
were correct, the important thing is that they are not even final. Judge Ward’s
conditional dismissal order includes a return jurisdiction clause providing that the
Real Parties in Interest can reinstate their claims in the Eastern District of Texas if
the courts in Mexico do not accept jurisdiction. R. 87, 90. A return jurisdiction
clause protects a plaintiff from suffering any injury if the foreign country does not
accept jurisdiction, and the Fifth Circuit has held that it is an abuse of discretion
not to include such a clause. See Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d
665, 675 (5th Cir. 2003).
Judge Ward also required the Personal Injury Defendants to stipulate that
they would agree to jurisdiction in Mexico and would waive any statute of
limitations and laches arguments in connection with the personal injury claims. R:
86-87. The Personal Injury Defendants filed two stipulations to that effect in
federal court. R: 89-90; 315-19.
The Real Parties in Interest have not suffered any injury because they have
not lost the right to pursue their personal injury claims in U.S. federal court. Judge
Ward’s order gives them the right to reinstate their U.S. lawsuit if Mexico courts
do not accept jurisdiction over their claims, and Judge Crone’s recent order
recognized that right. Until the Real Parties in Interest see their underlying claims
through to a final resolution, this lawsuit is premature. See, e.g., Rothrock v. Akin,
Gump, Hauer & Feld, 1994 WL 183318, at *7 (Tex. App.—Dallas May 11, 1994,
15
no pet.) (“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.”); Philips v.
Giles, 620 S.W.2d 750, (Tex. App. – Dallas 1981, no writ) (“[W]e conclude
relator’s cause of action has not accrued because no tax liability has been
established by the Internal Revenue Service. Thus, relator has yet to be injured.”).
Proceeding with this legal malpractice action now would require the trial
court to guess what decisions foreign and federal courts might make in the future
about their own jurisdiction. The trial court would first have to decide whether a
Mexican court would accept jurisdiction over and adjudicate the personal injury
claims. Then, if the trial court were to make a hypothetical determination that the
courts in Mexico would not accept jurisdiction, the court would have to determine
whether under that hypothetical scenario the Real Parties in Interest could reinstate
their claims in Texas federal court as the return jurisdiction clause provides. Any
determination about how the Texas federal court would respond to a future motion
to reinstate the claims would likewise be hypothetical and speculative. It would
also interfere with the federal court’s power to interpret its own orders.
The Real Parties in Interest assert claims that depend on hypothetical and
contingent events, including guesses as to how foreign and federal courts would
handle the continued prosecution of the underlying personal injury claims. As a
result, the trial court had no choice but to dismiss the claims asserted in this lawsuit
16
on the grounds that they are not ripe. The court lacks jurisdiction to proceed with
this premature lawsuit. The trial court abused its discretion when it denied
Relators’ plea to the jurisdiction.
II. The Trial Court Clearly Abused Its Discretion By Failing to Grant
Relators’ Plea in Abatement
Alternatively, the trial court abused its discretion by declining to abate this
action until the underlying personal injury claims reach a final resolution. Under
Texas law, legal malpractice claims arising from alleged malpractice in connection
with representation during litigation cannot be prosecuted until the underlying
litigation is fully and finally resolved. The underlying claims that give rise to this
legal malpractice action have not been finally resolved; instead they were
conditionally dismissed for forum non conveniens. At a minimum, the trial court
had no choice but to abate this action.
A. Legal Malpractice Claims Arising From Litigation Are Not
Viable Until the Underlying Litigation is Fully and Finally
Resolved.
When an attorney commits malpractice while representing a party in
litigation, the Texas Supreme Court has stated clearly that “the viability of [a legal
malpractice] action depends on the outcome of the underlying litigation.” See In
re Apex Towing Co., 41 S.W.3d 118, 121 (Tex. 2001). That is one reason for
tolling the statute of limitations for such legal malpractice actions until the
underlying litigation reaches final resolution. Id. (citing Hughes v. Mahaney &
17
Higgins, 821 S.W.2d 154, 157 (Tex. 1992) (“Limitations are tolled for the second
cause of action because the viability of the second cause of action depends on the
outcome of the first.”). Until the underlying litigation reaches a final resolution
and the outcome is known, legal malpractice claims based on alleged malpractice
during that litigation are not viable under Texas law.
That law requires abatement of this lawsuit. The underlying personal injury
claims of the Real Parties in Interest have not reached a final resolution. As the
Supreme Court stated in Hughes and Apex Towing, the viability of the legal
malpractice claims in this action depends on the actual outcome of those
underlying personal injury claims, which, at present, is unknown. Abatement of
the legal malpractice action in this context protects the same interest for defendants
that tolling limitations protects for plaintiffs. It ensures that a party is not required
to litigate a legal malpractice action before the outcome of the underlying suit is
known.
If the Real Parties in Interest prosecute their claims to resolution in Mexico
or in Texas federal court pursuant to the return-jurisdiction clause, the legal
malpractice claims against Relators may be rendered moot. The crux of the claims
in this action is that Relators should have defeated the forum non conveniens
motion in the underlying lawsuit by demonstrating that Mexico is not an available
and adequate forum. If the Real Parties in Interest re-file in Mexico, and if the
Mexico court accepts jurisdiction over those claims, there would be no argument
18
that Mexico is not an available and adequate forum. Alternatively, if the Mexico
courts refuse jurisdiction and the Real Parties in Interest are able to reinstate their
claims in Texas federal court pursuant to the return jurisdiction clause, then the
Real Parties in Interest can still prosecute their claims in their chosen forum. In
either scenario, continued pursuit of the underlying claims would render this legal
malpractice action moot.
The Real Parties in Interest acknowledge that the viability of their legal
malpractice claims depends on the outcome of their underlying personal injury
claims. They argued to the trial court, however, that they should be permitted to
drop their underlying claims and offer speculative expert testimony about what the
outcome of the claims would be if they continued to pursue their those claims to
resolution.
Expert testimony cannot be used to overcome the fact that a lawsuit is
premature. Expert testimony is admissible in legal malpractice cases that arise from
prior litigation to prove “but for” causation. See, e.g., Greathouse v. McConnell,
982 S.W.2d 165, 172-3 (Tex. App. – Houston [1st Dist.] 1998, pet. denied) (“When
a legal malpractice case arises from prior litigation, the plaintiff has the burden to
prove that, ‘but for’ the attorney’s breach of duty, he or she would have prevailed
on the underlying cause of action and would have been entitled to judgment. This
aspect of the plaintiff’s burden is commonly referred to as the ‘suit within a suit’
requirement.”) (citations omitted). In every such case, however, the final outcome
19
of the prior litigation is known, and the expert only opines on how that actual
outcome would have been different if there had been no malpractice.
Here, the underlying personal injury claims have not reached a final
outcome. The Real Parties in Interest chose to drop those claims after losing an
argument about forum. They intend to offer expert testimony, first to predict what
the outcome would be if they continued to pursue their claims, and then to opine
on how that predicted outcome would have been different “but for” the Relators’
alleged malpractice. That is speculation on top of speculation. It also is in direct
conflict with the Supreme Court’s analysis in Apex Towing. If a litigant could
simply offer expert testimony as to what the outcome of the underlying claims
would be if they were litigated to conclusion, then the Supreme Court’s statement
that the “viability” of legal malpractice claims “depends on the outcome” of the
underlying litigation would not be correct. In re Apex Towing, 41 S.W.3d at 121.
A party to a lawsuit who believes that his or her lawyer committed
malpractice in connection with an argument about forum or venue cannot simply
drop its underlying claims midstream in favor of pursuing legal malpractice claims
against its lawyers. Under the rationale for the Hughes tolling doctrine as
enunciated by the Supreme Court in Hughes, Apex Towing, and their progeny, the
legal malpractice claims asserted by the Real Parties in Interest are not viable at
this time because they depend on the outcome of the underlying personal injury
claims, which is yet to be determined.
20
Texas courts should not adjudicate contingent and hypothetical disputes,
particularly those that involve speculation about how foreign and federal courts
would assess their own jurisdiction and give effect to their own orders. The trial
court had no choice but to abate this action until the underlying claims are fully
and finally resolved.
B. The Only Texas Appellate Courts to Confront This Issue Have
Held That This Action Must Be Abated.
The trial court’s denial of Relators’ plea in abatement is in conflict with the
only court of appeals in Texas to address the issue of whether a legal malpractice
claim premised on litigation malpractice must be abated pending a final outcome
of the underlying claims. See In re Texas Collegiate Baseball League, Ltd., 367
S.W.3d 462 (Tex. App. – Ft. Worth 2012, orig. proceeding).
In re Texas Collegiate Baseball League, Ltd. was a mandamus proceeding
in which relators contended that “the trial court abused its discretion by denying
their motion to abate the fee claim and malpractice claims until the [underlying
litigation] and any related appeals are concluded.” 367 S.W.3d at 465. The Fort
Worth Court of Appeals noted that the parties in that case agreed that the
malpractice claims were not mature and should be abated, but disagreed as to
whether a related fee claim must also be abated. Id. at 466. In analyzing that issue,
the court discussed the reasons why the fee claims and the malpractice claims must
be abated pending the resolution of the underlying litigation.
21
First, the court pointed out that “the malpractice allegations and damage
theories will remain fluid until the [underlying litigations] conclude. Id. at 468
(citing Apex Towing Co., 411 S.W.3d at 121). The court then explained the
rationale for abatement: “It makes little sense for the parties to conduct discovery
and prepare for trial concerning the fee claim and the legal malpractice claims in
this litigation while the [underlying litigations] remain pending. Indeed, [the]
malpractice claims may have no merit upon final resolution of the [underlying]
litigations.” Id.
Based on that reasoning, the Fort Worth court of appeals concluded “the trial
court had no viable option other than to grant the motion” to abate the legal
malpractice and related fee claims. Id. The court found that “the trial court abused
its discretion by denying [the] motion to abate the portions of this case relating to
the fee claim and malpractice claims pending the outcome of the [underlying]
litigations,” and granted the writ of mandamus. Id.
The trial court in this case similarly had no option other than to grant
Relators’ plea in abatement until the Real Parties in Interest litigate their personal
injury claims to resolution. The malpractice claims in this action remain fluid, and
speculative, until the underlying claims are resolved on the merits, just like the
claims at issue in In re Texas Collegiate Baseball League, Ltd. The fact that the
Real Parties in Interest have for the moment stopped pursuing their underlying
claims does not alter the analysis. The malpractice claims asserted by the Real
22
Parties in Interest may have no merit once the underlying claims reach a final
resolution.
The trial court’s denial of Relators’ plea in abatement is also in conflict with
the Dallas Court of Appeals decision in Philips v. Giles, 620 S.W.2d 750, 750 (Tex.
Civ. App.—Dallas 1981, no writ). In Philips, a client sued for damages arising
from alleged legal malpractice in a divorce settlement. During divorce
proceedings, the attorney assured the client that no tax consequences would result
from a proposed settlement. Id. An accountant later advised the client to report
certain monthly payments from her divorce as income, and the client then sued her
attorney. Id. However, at the time of the suit, the Internal Revenue Service had
never assessed taxes on the money the client had reported, nor had it made a
determination that the money in question was income. Id. The trial court
determined that the malpractice suit was premature and abated the proceedings.
Id.at 751. The appellate court affirmed, noting that an assessment of liability was
necessary “to consummate the harm.” Id. (citing Atkins v. Crosland, 417 S.W.2d
150, 153 (Tex. 1967)).
The reasoning of the In re Texas Collegiate Baseball League, Ltd. and
Philips v. Giles cases apply directly to this case. The trial court at a minimum had
to abate this lawsuit until the outcome of the underlying personal injury claims is
known. Its failure to do so was an abuse of discretion.
23
III. Relators Have No Adequate Remedy on Appeal
Relators have no adequate remedy by appeal for the trial court’s denial of
Relators’ pleas to the jurisdiction and pleas in abatement. See, e.g., In re Texas
Collegiate Baseball League, Ltd., 367 S.W.3d 462 (Tex. App. – Fort Worth 2012,
orig. proceeding) (conditionally granting writ of mandamus directing trial court to
vacate order denying motion to abate, and directing trial court to abate legal
malpractice and related fee claims until underlying litigations and resulting appeals
are concluded.)
To determine whether Relators have an adequate remedy on appeal, this
Court must balance the benefits and detriments of mandamus relief. In conducting
that balancing, the court considers whether mandamus relief would serve the
following goals:
[P]reserve important substantive and procedural rights from
impairment or loss, allow the appellate courts to give needed and
helpful direction to the law that would otherwise prove elusive in
appeals from final judgments, and spare private parties and the public
the time and money utterly wasted enduring eventual reversal of
improperly conducted proceedings.
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig.
proceeding). Those considerations support mandamus relief in this instance.
Important substantive and procedural rights will be lost if the trial court’s
denial of Relators’ plea to the jurisdiction or plea in the abatement are not vacated.
Relators have a right to know the outcome of the Real Parties’ in Interest’s
24
underlying personal injury claims before Relators are forced to defend claims that
they committed malpractice in connection with the pursuit of those underlying
claims. Relators also have a right to know whether the Real Parties in Interest have
suffered any injury, and, if so, what that injury is. Those rights will be lost, and
Relators will be unfairly prejudiced, if Relators have to defend this legal
malpractice action before the outcome of the underlying claims is known.
If the Real Parties in Interest are successful in pursuing their underlying
claims in a Mexico court, or if they reinstate them in Texas federal court, then
Relators would be able to point to those outcomes as a defense to the legal
malpractice claims. The Mexico and Texas federal courts are the proper courts to
make that determination, but neither has done so.
If this case proceeds before the Real Parties in Interest pursue their personal
injury claims to a final resolution, Relators will be deprived of their ability to
present the actual outcome of those claims as a defense to this legal malpractice
action. See In re Van Waters & Rogers, 145 S.W.3d 203, (Tex. 2004) (orig.
proceeding) (stating that parties are in danger of losing substantive rights when,
among other things, their ability to present a viable claim or defense is vitiated.)
Instead, Relators will have to defend against hypothetical speculation about what
would happen in the future if Real Parties in Interest continued to pursue their
personal injury claims to final judgment. That prejudice could not be remedied on
appeal.
25
Substantive rights of the Real Parties in Interest also will be lost or impaired
if mandamus relief is not granted. The Real Parties in Interest have the right to
pursue their personal injury claims against the Personal Injury Defendants. Judge
Crone recently determined that courts in Mexico should accept jurisdiction over
those claims if the courts are made aware of the stipulations made by the Personal
Injury Defendants. The Real Parties in Interest also have the right to reinstate those
claims in U.S. federal court if the Mexico court does not accept jurisdiction. The
orders entered by Judge Ward, and more recently by Judge Crone, grant and
recognize those rights.
If this case proceeds, however, those rights will be lost or impaired. The
Real Parties in Interest hope to develop evidence and prove at trial that they can no
longer pursue their personal injury claims in a Mexico court or U.S. federal court.
If it is then decided on appeal that this action is premature, and that any injury
suffered by the Real Parties in Interest as a result of Relators’ alleged legal
malpractice cannot be determined until the outcome of the underlying personal
injury claims is known, the ability of the Real Parties in Interest to pursue their
underlying claims at that time may be impaired by their own actions in pursuing
this case. In addition to the substantial passage of time to litigate this case, the
Real Parties in Interest will have to take the position throughout this case that they
cannot pursue their personal injury claims in any court, and they will submit
evidence and argument to support that position. Proffering such evidence and
26
taking such positions in this proceeding may ultimately impair their ability to
change course and pursue those personal injury claims months or years from now
after this case has been fully litigated and appealed. The loss or impairment of
those rights cannot be remedied through a post-trial appeal.
The Real Parties in Interest need to be advised now that Texas law requires
the underlying personal injury claims to reach a final outcome before the parties
can know if the Real Parties in Interest have viable legal malpractice claims against
Relators. Substantive rights of both the Relators and the Real Parties in Interest
will be lost or impaired if mandamus relief is not granted.
Granting mandamus relief also will avoid an enormous waste of public and
private time and money on a case that is premature. If this premature lawsuit goes
forward before the fact or amount of injury to the Real Parties in Interest is known,
the Real Parties in Interest will have to travel from Mexico to Houston to give their
depositions in this case, and perhaps again to attend trial. That will be burdensome
and logistically difficult, if not impossible, in light of the strict immigration laws.
The parties and the court system would have to litigate hypothetical questions
about what various courts would do in the future if the personal injury claims were
pursued in those courts, and how, if at all, the Real Parties in Interest have been
injured by the Relators’ alleged malpractice in losing a forum non conveniens
motion. Any damage model would be irreparably speculative and unfounded.
27
Mandamus is appropriate to save the parties and the court system from an
enormous waste of time and money.
The benefits of mandamus review significantly outweigh the detriments, and
addressing these issues through a post-trial appeal would not afford Relators or the
Real Parties in Interest an adequate remedy.
PRAYER
Plaintiffs to a lawsuit who lose a forum or venue argument cannot drop their
claims and sue their lawyers for malpractice. The Real Parties in Interest have not
lost any rights or suffered any injury at this point, and their legal malpractice action
is premature.
Relators respectfully request that this Court grant this Petition for Writ of
Mandamus and order Respondent to vacate its orders of September 17, 2015 and
November 9, 2015 denying Relators’ pleas to the jurisdiction and pleas in
abatement. Relators request such other and further relief to which it may be justly
entitled.
28
Respectfully Submitted,
/s/ Jeremy L. Doyle /s/ Reagan W. Simpson
Jeremy L. Doyle (SBN: 24012553) Reagan W. Simpson
James Schuelke (SBN: 24075037) Yetter Coleman LLP
REYNOLDS FRIZZELL LLP 909 Fannin, Suite 3600
1100 Louisiana, Suite 3500 Houston, Texas 77010
Houston, Texas 77002 Tel. (713) 632-8000
PH: (713) 485-7200 Fax (713) 632-8002
Fax: (713) 485-7250
jdoyle@reynoldsfrizzell.com Counsel for Relators
jschuelke@reynoldsfrizzell.com Beck Redden L.L.P., Russell Post,
Fields Alexander, and Jas Brar
Sam Houston
Scott, Clawater & Houston L.L.P. /s/ Billy Shepherd
2777 Allen Parkway, 7th Floor Billy Shepherd
Houston, Texas 77019-2133 Allison Standish Miller
PH: (713) 650-6600 Shepherd Prewett Miller PLLC
Fax: (713) 650-1720 770 South Post Oak Lane, Suite 420
shouston@sschlaw.com Houston, Texas 77056
PH: (713) 995-4440
John Scott Black Fax: (713) 766-6542
Daly & Black, P.C. bshepherd@spmlegal.com
2211 Norfolk, Suite 800 amiller@spmlegal.com
Houston, Texas 77008
PH: (713) 655-1405
Fax: (713) 655-1587 Counsel for Relators Albritton Law
jblack@dalyblack.com Firm & Eric Albritton
Counsel for Relators Arnold & Itkin,
L.L.P., Kurt Arnold, Cory Itkin, and
Jason Itkin
29
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify
that this brief contains 6738 words, excluding the words not included in the word
count pursuant to Texas Rule of Appellate Procedure 9.4(k)(1). This is a computer
generated document created in Microsoft Word, using 14-point typeface for all
text, except for footnotes which are in 12-point typeface. In making this certificate
of compliance, I am relying on the word count provided by the software used to
prepare the document.
/s/ Jeremy L. Doyle
Jeremy L. Doyle
30
VERIFICATION AND CERTIFICATION
STATE OF TEXAS §
§
COUNTY OF HARRIS §
BEFORE ME, the undersigned authority, on this day appeared the affiant
named herein, who is personally known to me, and who after being duly sworn
upon his oath, stated as follows:
1. My name is Jeremy L. Doyle. I am over twenty-one years of age, of
sound mind, and in all ways competent to make this verification. I am a partner
with the law firm of Reynolds Frizzell, LLP and am one of the attorneys
representing Relators Arnold & Itkin, LLP, Kurt Arnold, Jason Itkin, and Cory
Itkin in connection with the lawsuit styled Dominguez et al v. Arnold & Itkin, LLP,
et al, Cause No. 2015-28543, in the 11th Judicial District Court, Harris County,
Texas. I have personal knowledge of the facts stated in this verification and those
facts are true and correct.
2. I have reviewed the foregoing Petition for Writ of Mandamus. In my
personal knowledge, the Petition truly and correctly recites the factual allegations
set forth in the pleadings and the record. In addition, I have concluded that every
factual statement in the petition is supported by competent evidence in the
appendix or record.
3. The documents in the Appendix and Record are true and correct
copies of documents that are material to Relators' claim for relief and filed in the
underlying pleadings.
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority
on this the 24th day ofNovember 2015.
NOTARY PUBLIC IN AND
FOR THE STATE OF TEXAS
31
CERTIFICATE OF SERVICE
On this 24th day of November 2015, the above document was served on all
counsel of record in accordance with the Texas Rules of Civil Procedure:
Lance Christopher Kassab Brett Wagner
David Eric Kassab Larry Joe Doherty
THE KASSAB LAW FIRM Ryan W. Smith
1420 Alabama DOHERTY * WAGNER
Houston, TX 770004 13810 Champion Forest Drive
Fax: (713) 522-7410 Suite 225
lck@texaslegalmalpractice.com Houston, TX 77069
dek@texaslegalmalpractice.com Fax: (281) 583-8701
brett@dwlawyers.com
larry@dwlawyers.com
ryan@dwlawyers.com
Billy Shepherd Reagan W. Simpson
Allison Standish Miller YETTER COLEMAN LLP
SHEPHERD SCOTT CLAWATER 909 Fannin, Suite 3600
& HOUSTON, L.L.P. Houston, TX 77010
770 South Post Oak Lane, Suite 420 Fax: (713) 632-8002
Houston, TX 77056 rsimpson@yettercoleman.com
Fax: (713) 766-6542
bshepherd@spmlegal.com
amiller@spmlegal.com
Sam Houston John Scott Black (SBN: 24012292)
SCOTT, CLAWATER & HOUSTON DALY & BLACK, P.C.
L.L.P. 2211 Norfolk, Suite 800
2777 Allen Parkway, 7th Floor Houston, Texas 77008
Houston, Texas 77019-2133 Fax: (713) 655-1587
Fax: (713) 650-1720 jblack@dalyblack.com
shouston@sschlaw.com
The Honorable Mike D. Miller Harris
County Civil Courthouse
11th Civil Court
201 Caroline, 9th Floor
Houston, Texas 77002 /s/ Jeremy L. Doyle
Jeremy L. Doyle
32
No. ___ - _________- CV
IN THE COURT OF APPEALS
FOR THE FIRST OR FOURTEENTH DISTRICT
OF TEXAS AT HOUSTON
In re Arnold & Itkin, L.L.P., Beck Redden, L.L.P., Albritton Law Firm,
Kurt Arnold, Cory Itkin, Jason Itkin, Russell Post,
Fields Alexander, Jas Brar and Eric Albritton
Relators
Original Proceeding from the 11th Judicial District Court
Harris County, Texas
The Honorable Mike D. Miller, Presiding
Trial Court No. 2015-28543
APPENDIX
INDEX
Document Tab
Order Denying Defendants’ Plea to the Jurisdiction and Plea in Abatement
APP001-APP003 .................................................................................................... 1
Amended Order Denying Defendants’ Pleas in Abatement and Pleas to the
Jurisdiction and Granting Permission to File Interlocutory Appeal From Order
APP004-APP006 .................................................................................................... 2
2
TAB 1
APP001
APP002
APP003
TAB 2
APP004
APP005
APP006