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