Tracey Lynn Freezia v. IS Storage Venture, LLC, JLE Investors, Inc. D/B/A Associated Mortgage Investors, Post Oak Bank, N.A., and James L. Emerson

• Court: Court of Appeals of Texas
• Decided: July 7, 2015
• Docket: 14-14-00174-CV
• Status: Published

Opinion

ACCEPTED 14-14-00174-cv FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 7/7/2015 2:30:43 PM CHRISTOPHER PRINE CLERK

NO. 14-14-00174-CV

FILED IN 14th COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOR THE FOURTEENTH JUDICIAL DISTRICT OF TEXAS 7/7/2015 2:30:43 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk

TRACEY LYNN FREEZIA Plaintiff/Appellant

VS.

IS STORAGE VENTURES, LLC, JLE INVESTORS, INC., d/b/a ASSOCIATED MORTGAGE INVESTORS, POST OAK BANK, N.A., AND JAMES L. EMERSON Defendants/Appellees

On Appeal from the 281st Judicial District Court of Harris County, Texas Trial Court Cause No. 2012-20372

AGREED MOTION TO REINSTATE

/S/ BRITTON L. LARISON BRITTON L. LARISON Texas Bar No. 24007531 R. DWAYNE DANNER Texas Bar No. 00792443 MCGLINCHEY STAFFORD, PLLC 2711 N. Haskell Avenue Suite 2750, LB 38 Dallas, Texas 75204 (214) 445-2445 (Tel.) (214) 594-5522 (Fax) blarison@mcglinchey.com 525216.1

Page 1 of 7 TO THE HONORABLE FOURTEENTH COURT OF APPEALS:

COME NOW JLE Investors, Inc., d/b/a Associated Mortgage Investors, Inc.,

(“JLE”), James L. Emerson, (“Emerson”), IS Storage Ventures, LLC, (“IS”), Post

Oak Bank, (“Post Oak”), and Tracey Lynn Freezia, (“Freezia”) (collectively, the

“Parties”) and file this their Motion to Reinstate the appeal and, in support thereof,

would show this Court of Appeals the following:

I. STATEMENT OF THE CASE 1. This appeal was abated pursuant to the Abatement Order filed May

12, 2015. This Court expressed concern over the finality of the judgment due to

counter-claims of James Emerson.1 However, James Emerson had filed no

individual counter-claims in the suit.

2. The counter-claims which may have been of concern were filed by the

entity defendant, JLE Investors, Inc., d/b/a Associated Mortgage Investors, Inc. 2

These counterclaims are phrased as follows:

CAUSES OF ACTION

In the alternative [to the defenses plead] …

* * *

1 See Abatement Order of May 12, 2015. 2 See Clerk’s Record 369-381. 525216.1

Page 2 of 7 WHEREFORE, PREMISES CONSIDERED, Defendant prays, in the alternative, that should the Court determine that the lien of JLE was invalid, defective, or otherwise unenforceable under applicable law, and set aside said lien and/or quiet title to the Property in question to Plaintiff,… 3

3. Because of the conditional language of the counterclaim, the parties

had filed a Rule 11 Agreement which stated:

Specifically, the Court Coordinator of the 281st Judicial District Court has advised the my client’s counter-claims against Freezia as well as IS Storage’s claim … are set for trial on the Court’s Monday trial docket. As you know, each of these counter-claims were pled in the alternative and were dependent on Freezia obtaining a favorable ruling as to title to the Property and/or was successful in setting aside the loan transaction with JLE. Since the Court granted JLE’s and IS’s Motions for Summary Judgment on all her claims, we took the position that the counter-claims pled in the alternative were/are now moot and that the summary judgment orders, taken together, constitute the final judgment for the purposes of appeal.

The purpose of this letter is to confirm our understanding that we believe the granting of the summary judgments in favor of JLE, Emerson and IS have rendered the counter-claims pled in the alternative moot and that the judgment now on appeal is final. In the event that the Court of Appeals reverses, renders, and/or remands the case back to the 281st we have agreed that the counter-claims would then become “live” again,

3 See Second Supplemental Clerk’s Record 3-5. 525216.1

Page 3 of 7 as currently pled in the alternative. Additionally, in case we are incorrect in our assumptions, we have agreed that any statute(s) of limitations in regards to the counter- claims is hereby tolled during the appeal and for six (6) weeks following the final disposition of the appeal by the Court of Appeals and/or the Texas Supreme Court, as applicable, so that if the counter-claims require non-suit to make the judgment final for appellate purposes, and then require refiling at the trial court level, such defense (statute(s) of limitations) will not be asserted by Freezia. 4

The parties all believed due to the conditional nature of the counterclaim, that it

was mooted by its own terms and wording. Thus, all parties proceeded with this

appeal.

4. After this court entered its Abatement Order, on May 19, 2015, in

case deemed necessary, JLE filed its Notice of Non-suit of Counterclaims Without

Prejudice (the “Nonsuit”) in the trial court. 5

5. On May 29, 2015, JLE requested that the trial court clerk supplement

the record on appeal with the Nonsuit.6

6. On June 19, 2015, the trial court entered its Response to Request for

Clarification advising that the JLE counter-claims had been non-suited and

confirmed that the court’s record did not indicate any counter-claims filed

4 See Second Supplemental Clerk’s Record 3-4. 5 See Exhibit “A” attached hereto. 6 See Exhibit “B” attached hereto. 525216.1

Page 4 of 7 individually by James Emerson.7 On June 23, 2015, counsel for Appellee filed a

second supplemental record request to include the recent clarification response

from the trial court. 8

7. A Supplemental Record was filed on June 30, 2015. A second

supplemental request has been requested.

8. Accordingly, to the extent that there was a question as to the finality

of the judgment, it should be resolved. The parties respectfully request that this

appeal be reinstated.

II. MOTION FOR REINSTATEMENT

9. The Abatement Order, which cited to Texas Rule of Appellate

Procedure 27.2, allowed the parties to supplement the record and, after doing so,

allowed the parties to move for reinstatement of this appeal. The Abatement Order

allowed the trial court “…to permit the parties to obtain an order or orders

disposing of the counterclaims against Tracey Lynn Freezia…”

10. The counterclaims were conditioned on liability. JLE’s Nonsuit

effectively dismisses the counterclaims, if any, and no additional order from the

trial court is necessary. No claim for affirmative relief was pending from Counter-

Defendant/Appellant and no other claims are pending from any party. As such, if

7 See Exhibit “C” attached hereto. 8 See Exhibit “D” attached hereto. 525216.1

Page 5 of 7 it was not already terminated, the Nonsuit terminates the case, was served, and is

effective “without necessity of court order.” Tex. R. Civ. Proc. Rule 162. The trial

court’s Response to Request for Clarification confirms these events.

11. Thus, the Parties move for the reinstatement of the appeal in this

Court, and request that this Court grant such Motion.

PRAYER

WHEREFORE, PREMISES CONSIDERED, the Parties respectfully

request that this appeal be reinstated.

Respectfully submitted,

By: /s/ Britton L. Larison BRITTON L. LARISON Texas Bar No. 24007531 blarison@mcglinchey.com R. DWAYNE DANNER Texas Bar No. 00792443 ddanner@mcglinchey.com MCGLINCHEY STAFFORD, PLLC 2711 N. Haskell Avenue Suite 2750, LB 38 Dallas, Texas 75204 (214) 445-2445 (Tel.) (214) 594-5522 (Fax)

525216.1

Page 6 of 7 DATED: July 7, 2015

CERTIFICATE OF CONFERENCE The undersigned represents to this Court that he has conferred with Elizabeth Bruman, counsel for Appellant, and Elizabeth Flora, counsel for Co- Appellees, about the merits of this motion and all counsel advised that they are unopposed to this Motion and agree to the relief sought herein.

/s/ Britton L. Larison Britton L. Larison

CERTIFICATE OF SERVICE On July 7, 2015, in accordance with Texas Rules of Appellate Procedure, a true and correct copy of the foregoing was filed with the Texas E-File system who will in turn provide a copy of same to all counsel of record: Elizabeth Flora, 5151 Belt Line Road, Suite 410, Dallas, Texas 75254 and Elizabeth M. Bruman, 4560 Cypress Creek Parkway, Suite 104, Houston, Texas 77069.

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