Lance Christopher Kassab and David Eric Kassab v. Jimmy Van Knighton, II A/K/A Jay v. Knighton, II, Individually and Stone & Associates N/K/A Knighton & Stone, PLLC

• Court: Court of Appeals of Texas
• Decided: May 1, 2015
• Docket: 14-15-00363-CV
• Status: Published

Opinion

ACCEPTED 14-15-00363-cv FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 5/1/2015 11:20:35 AM CHRISTOPHER PRINE CLERK

No. 14-15-00363-CV FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 5/1/2015 11:20:35 AM IN THE FOURTEENTH COURT OF APPEALS CHRISTOPHER A. PRINE HOUSTON, TEXAS Clerk

LANCE CHRISTOPHER KASSAB and DAVID ERIC KASSAB,

Appellants,

v.

JIMMY VAN KNIGHTON, II a/k/a JAY V. KNIGHTON, II, individually, and STONE & ASSOCIATES, LLP n/k/a KNIGHTON & STONE, PLLC,

Appellees.

On Appeal from 2011-75990-A, in the 133rd District Court, Harris County Honorable Jaclanel McFarland, Presiding

AGREED MOTION TO ABATE APPEAL

TO THE HONORABLE COURT OF APPEALS:

Appellants Lance Christopher Kassab and David Eric Kassab

(collectively “Kassab”) file this agreed motion to abate this appeal, and in

support states as follows:

1. By this appeal, Kassab intends to challenge an order rendered

by the Honorable Jaclanel McFarland in Beatty v. Jimmy Van Knighton, II

1 a/k/a Jay V. Knighton, II, Individually, and Stone & Associates, LLP n/k/a

Knighton & Stone, PLLC, Cause No. 2011-75990, in the 133rd Judicial

District Court, Harris County, Texas, on March 5, 2012 sanctioning Kassab

for the filing of Plaintiff’s First Amended Petition (“First Amended

Petition”) in that lawsuit. That order remained interlocutory during the

pendency of that lawsuit.

2. In addition to imposing monetary sanctions and awarding

attorney’s fees against Kassab in connection with the filing, the sanctions

order also directed the district clerk to strike the First Amended Petition

from the record.

3. The underlying suit subsequently settled, but the settlement did

not resolve the sanctions order. On March 23, 2015, Judge McFarland

declined Plaintiff’s motion to vacate the sanctions order but granted the

request that the sanctions order be severed it into a new case, Beatty v.

Jimmy Van Knighton, II a/k/a Jay V. Knighton, II, individually, and Stone &

Associates, LLP n/k/a Knighton & Stone, PLLC Cause No. 2011-75990-A

(the “Severed Case”) so that Kassab can challenge the sanction and the

award of attorney’s fees on appeal.

2 4. The order of severance directed the district clerk to include

certain items in the file of the Severed Case, but did not direct the clerk to

include the stricken “First Amended Petition” with those items.

5. It will be necessary for Kassab to have the First Amended

Petition included in the appellate record so that the sanctions imposed as a

result of its filing may be addressed on appeal.

6. As the underlying suit had been terminated by the settlement,

the Severance Order should have rendered the sanctions order, once severed

into the new cause, a final an appealable order. However, the Severance

Order included no language indicating that the sanctions order should be

treated as final and appealable.

7. Assuming that the Severance Order rendered the sanctions

order final and appealable, Kassab timely filed a notice of appeal within 30

days of its entry, giving rise to this appeal. Contemporaneously with that

filing, to resolve any uncertainty about the finality of the Severance Order,

Kassab also filed a motion with the trial court requesting that it enter an

amended order of severance that would do two things: (1) incorporate

“Mother Hubbard” language into the severance order that would confirm

that the sanctions order is now final and appealable, and (2) direct the trial

3 court to include the First Amended Petition in the pleadings of the severed

case so that Kassab can bring it before this Court on appeal.

8. Kassab’s certificate of conference to the motion to amend the

sanctions order stated that counsel for Defendants/Appellees had not

indicated whether the motion would be opposed or unopposed as of the time

of its filing. Since that time, counsel has authorized Kassab to inform the

trial court that the motion is unopposed, and Kassab is in the process of

doing so and requesting the entry of an agreed amended order of severance

as described above.

9. Kassab files this Agreed Motion to Abate this appeal pending a

resolution of the motion to sever by Judge McFarland. If the motion in the

district court is granted, the amended order will resolve any issues about

whether this appeal arises from a final judgment, eliminating any need for

briefing before this Court on the issue. It will also ensure that the

designation of clerk’s record will contain all items necessary for the proper

consideration of the appeal, and that the docketing statement accurately sets

forth the procedural history by which Appellants assert finality.

PRAYER FOR RELIEF Wherefore, premises considered, Appellants respectfully pray that this

Court abate the deadlines associated with this appeal, including the deadlines

4 for filing a docketing statement and designating the clerk’s record until such

time as the pending motion to amend the severance order is resolved by the

district court.

5 Respectfully submitted,

/S/ Michael S. Truesdale Michael S. Truesdale

LAW OFFICE OF MICHAEL S. TRUESDALE, PLLC State Bar No. 00791825 801 West Avenue, Suite 201 Austin, TX 78701 512-482-8671 866-847-8719 (fax) mike@truesdalelaw.com COUNSEL FOR APPELLANT

CERTIFICATE OF SERVICE On May 1, 2015, the undersigned certifies that he served a copy of this Brief of Appellants on the following in the manner listed below, in compliance with Texas Rules of Appellate Procedure 9:

Sam A. Houston Shepherd, Scott, Clawater & Houston, LLP 2777 Allen Parkway, 7th Floor Houston, TX 77019 713-650-6600 713-650-1720 (fax) Counsel for Appellees Via e-service /s/ Michael S. Truesdale Michael S. Truesdale SBN 00791825

CERTIFICATE OF CONFERENCE The undersigned certifies that he conferred with Sam A. Houston regarding the relief requested in this motion and Mr. Houston indicated that the motion could be filed as an agreed motion.