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

ACCEPTED
01-15-00989-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/10/2015 2:39:00 PM
CHRISTOPHER PRINE
CLERK

No. 01-15-00989-CV
________________
FILED IN
In the First Court of Appeals, 1st COURT OF APPEALS
HOUSTON, TEXAS
Houston, Texas 12/10/2015 2:39:00 PM
________________ CHRISTOPHER A. PRINE
Clerk
ARNOLD & ITKIN, L.L.P., BECK REDDEN LLP, ALBRITTON LAW FIRM,
KURT ARNOLD, CORY ITKIN, JASON ITKIN, RUSSELL POST, FIELDS
ALEXANDER, JAS BRAR AND ERIC ALBRITTON,
Petitioners,
v.

MARIA SANTOS LOPEZ DOMINGUEZ, INDIVIDUALLY AND AS NEXT
FRIEND OF KAREN MARIEN ANDRADE LOPEZ, ET AL.,
Respondents.
________________
From the 11th Judicial District, Harris County, Texas; No. 2015-28543
________________

REPLY IN SUPPORT OF PETITION FOR
PERMISSION TO APPEAL INTERLOCUTORY
ORDER AND RESPONSE TO MOTION TO
DISMISS
________________

Reagan W. Simpson Jeremy L. Doyle Billy Shepherd
State Bar No. 18404700 State Bar No. 24012553 State Bar No. 18219700
rsimpson@yettercoleman.com jdoyle@reynoldsfrizzell.com bshpeherd@spmlegal.com
YETTER COLEMAN LLP Reynolds Frizzell LLP Shepherd Prewett Miller
909 Fannin, Suite 3600 1100 Louisiana, Suite 3500 PLLC
Houston, Texas 77010 Houston, Texas 77002 770 South Post Oak Lane
Tel. 713-632-8000 Tel. 713-485-7200 Suite 420
Fax 713-632-8002 Fax 713-488-7250 Houston, Texas 77056
Counsel for Petitioners Counsel for Petitioners Tel. 713-955-4440
Beck Redden LLP, Arnold & Itkin, L.L.P., Fax +1 713-766-6542
Russell Post, Fields Kurt Arnold, Cory Itkin, Counsel for Petitioners
Alexander and Jas Brar and Jason Itkin Albritton Law Firm and
Eric Albritton

(Additional Counsel for Petitioners on Following Page)
 Additional Counsel for Petitioners
James Schuelke Allison Standish Miller
State Bar No. 24075037 State Bar No. 24046440
jschuelke@reynoldsfrizzell.com amiller@spmlegal.com
Reynolds Frizzell LLP Shepherd Prewett Miller PLLC
1100 Louisiana, Suite 3500 770 South Post Oak Lane
Houston, Texas 77002 Suite 420
Tel. 713-485-7200 Houston, Texas 77056
Fax 713-488-7250 Tel. 713-955-4440
Counsel for Petitioners Arnold & Itkin, Fax +1 713-766-6542
L.L.P., Kurt Arnold, Cory Itkin and Counsel for Petitioners Albritton
Jason Itkin Law Firm and Eric Albritton

Sam Houston John Black
State Bar No. 10059550 State Bar No. 24012292
shouston@sschlaw.com jblack@dalyblack.com
Scott, Clawater & Houston L.L.P. Daly & Black, P.C.
2777 Allen Parkway, 7th Floor 2211 Norfolk, Suite 800
Houston, Texas 77019-2133 Houston, Texas 77008
Tel. 713-650-6600 Tel. 888-492-2671
Fax 713-766-6542 Fax 713-655-1587
Counsel for Petitioners Arnold & Itkin, Counsel for Petitioners Arnold & Itkin,
L.L.P., Kurt Arnold, Cory Itkin and L.L.P., Kurt Arnold, Cory Itkin and
Jason Itkin Jason Itkin

2
 TABLE OF CONTENTS
INDEX OF AUTHORITIES.............................................................................................. 4 
INTRODUCTION ........................................................................................................... 6 
ARGUMENT ................................................................................................................ 7 
I.  THIS SUIT IS NOT RIPE FOR ADJUDICATION. ................................................... 7 
II.  THE APPEAL INVOLVES A CONTROLLING LEGAL ISSUE................................... 9 
A.  The trial court correctly identified ripeness as the controlling
issue that it had decided. ...................................................................... 9 
B.  Ripeness is a controlling issue. .......................................................... 11 
III.  A SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION EXISTS................... 12 
IV.  IMMEDIATE APPEAL WILL EXPEDITE THE CONCLUSION OF THE LITIGATION.
...................................................................................................................... 13 
CONCLUSION AND PRAYER ...................................................................................... 15 
CERTIFICATE OF COMPLIANCE UNDER APPELLATE RULE 9.4 .................................. 18 
CERTIFICATE OF SERVICE ......................................................................................... 19 

3
 INDEX OF AUTHORITIES

PAGE(S)
CASES

Alexander v. Turtur & Assocs.,
146 S.W.3d 113 (Tex. 2004) ........................................................................ 11 
City of El Paso v. Madero Dev. & Constr. Co.,
803 S.W.2d 396 (Tex. App.—El Paso 1991, writ denied) ............................13
Fertitta Hospitality, LLC v. O’Balle,
No. 01-14-00193-CV, 2014 WL 5780329
(Tex. App. —Houston [1st Dist.] Nov. 6, 2014, no pet.) ....................... 11, 12
Gulf Coast Asphalt Co. v. Lloyd,
457 S.W.3d 539 (Tex. App.—Houston [14th Dist.] 2015, no pet.) ..............12
Gulley v. State Farm Lloyds,
350 S.W.3d 204 (Tex. App.—San Antonio 2011, no pet.) ..........................10
King-A Corp. v. Wehling,
No. 13-13-00100-CV, 2013 WL 1092209
(Tex. App.—Corpus Christi Mar. 14, 2013, no pet.) ....................................11
Mayhew v. Town of Sunnyvale,
964 S.W.2d 922 (Tex. 1998) .................................................................. 11, 13
Patterson v. Planned Parenthood of Houston & Se. Texas, Inc.,
971 S.W.2d 439 (Tex. 1998) ........................................................ 8, 13, 14, 15
Rothrock v. Akin, Gump, Hauer & Feld,
No. 05-92-02332-CV, 1994 WL 183318
(Tex. App.—Dallas May 11, 1994, no writ) ................................................ 14
Stier v. Reading & Bates Corp.,
992 S.W.2d 423 (Tex. 1999) ...........................................................................8
Vasquez v. Bridgestone/Firestone, Inc.,
325 F.3d 665 (5th Cir. 2003) ..........................................................................7
Vestalia, Ltd. v. Taylor-Watson,
No. 01-15-00332-CV, 2015 WL 3799505
(Tex. App—Houston [1st Dist.] June 18, 2015, no pet.) ..............................10
Waco Indep. Sch. Dist. v. Gibson,
22 S.W.3d 849 (Tex. 2000) ............................................................................8

4
Warren v. Weiner,
01-15-00432-CV, 2015 WL 4627404
(Tex. App.—Houston [1st Dist.] Aug. 4, 2015, no pet.) ........................ 10, 15

STATUTES & RULES
46 U.S.C. app. §688(b) ............................................................................................. 8 
Tex. Civ. Prac. & Rem. Code §51.014 ......................................................................9
Tex. R. App. P. 28.3................................................................................................ 18 
Tex. R. Civ. P. 168 .....................................................................................................9
OTHER AUTHORITY
Renée Forinash McElhaney,
Toward Permissive Appeal in Texas, 29 St. Mary’s L.J. 729 (1998)........... 12

5
 INTRODUCTION
Three U.S. federal judges have ordered the Clients to pursue their claims in

Mexican courts, while allowing them to return to U.S. courts if they cannot

maintain their claims in Mexico. The Clients have instead chosen to bring a

malpractice claim against their attorneys, premised on speculation about how the

foreign and federal courts would have ruled had they proceeded with their claims.

The trial court in this case issued an interlocutory order denying defendants’

pleas to the jurisdiction and for abatement on the ground that the claims in this case

are ripe. That order threatens to erode the ripeness requirement, standing for the

proposition that litigants can sue their lawyers when they are dissatisfied with the

progress of their cases before any final resolution. The result will be the

prosecution of a speculative malpractice claim that can lead only to a void advisory

determination at great cost to the parties and the judicial system. Heightening the

impropriety are issues of international comity.

Ripeness is a threshold legal issue, protecting courts and parties from the

burden of litigating a premature suit. An immediate appeal from the interlocutory

order will materially advance the ultimate termination of this litigation. The

Clients’ maneuvers to bypass the judicial process following an adverse forum

ruling have important ramifications for ripeness, malpractice, federalism, and

6
comity jurisprudence. Therefore, the petition for permission to appeal should be

granted.

ARGUMENT

I. This Suit Is Not Ripe For Adjudication.
The Clients’ response largely ignores the core ripeness issue. Straining to

cast the issue presented as anything but a threshold legal question, the Clients

avoid discussing the impropriety of bringing a malpractice claim following a forum

non conveniens ruling in a case that has not been finally resolved.

Three separate federal judges found that conditional dismissal in favor of a

Mexican forum was warranted. (Pet. Tabs 3, 5, 6, 7). Because of the return

jurisdiction clause in the second dismissal, the Clients can seek reinstatement in

U.S. federal court should the Mexican courts refuse to exercise jurisdiction. (Pet.

Tab 6 at 2, Tab 7 at 15). “A return jurisdiction clause remedies” concerns about

forum availability “by permitting parties to return to the dismissing court should

the lawsuit become impossible in the foreign forum.” Vasquez v.

Bridgestone/Firestone, Inc., 325 F.3d 665, 675 (5th Cir. 2003).

The Clients nevertheless abandoned the underlying litigation midstream. If

their malpractice suit continues, the state court will have to lay conjecture upon

conjecture to reach an advisory opinion.

7
 “At the time a lawsuit is filed, ripeness asks whether the facts have

developed sufficiently so that an injury has occurred or is likely to occur, rather

than being contingent or remote.” Patterson v. Planned Parenthood of Houston &

Se. Texas, Inc., 971 S.W.2d 439, 442 (Tex. 1998). “By focusing on whether the

plaintiff has a concrete injury, the ripeness doctrine allows courts to avoid

premature adjudication, and serves the constitutional interests in prohibiting

advisory opinions.” Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex.

2000).

The Clients have not, and may never, experience a legal injury. They

complain that they have lost the opportunity to litigate in U.S. federal court. (Resp.

at 18). But if their claims are barred in Mexico as they argue,1 they can return to

U.S. federal court. Likewise, the Clients complain that the Lawyers’ conduct cost

them their Jones Act claims, but the Jones Act claims were dismissed without

prejudice. See Pet. Tab 4.2 Without any final rulings in the underlying suit, the

1
Among other allegations, the Clients contend at page 9 of their Third Amended Petition (Pet.
Tab 2) that the defendants’ waiver of limitations in the underlying case is invalid in Mexico and
that the plaintiffs’ choice of a U.S. forum precludes jurisdiction in Mexican courts.
2
The Jones Act precludes citizens of other countries injured in waters outside the United States
from bringing a Jones Act claim unless there is absolutely “no remedy” afforded by the country
where they reside or where the accident happened. 46 U.S.C. app. §688(b); see Stier v. Reading
& Bates Corp., 992 S.W.2d 423, 431-32 (Tex. 1999) (detailing the history and purpose of this
provision). While the Clients imply at pages 3-4 of their Response that the Jones Act standard is
akin to the forum non conveniens standard of available remedy, they do not go as far as to argue
that Mexico affords absolutely no remedy to its citizens when they are injured in Mexico by the
negligence of others. And as to Texas state law claims mentioned at page 3 of the Response, the
preemption of any such claims by the Jones Act is settled law. See id.

8
Clients’ malpractice claims are premature, and adjudicating them would contradict

the ripeness doctrine and, on the facts of this case, offend notions of international

comity and federalism.

II. The Appeal Involves A Controlling Legal Issue.
Although the trial court was incorrect in ruling that this case is ripe for

adjudication, it was correct in identifying ripeness as a controlling issue. Further,

ripeness falls within the type of issues that are proper for permissive appeals.

A. The trial court correctly identified ripeness as the controlling
issue that it had decided.
The trial court’s interlocutory order permits appeal on a threshold legal

question:

As required by section 51.014(d) of the Texas Civil
Practice & Remedies Code and Texas Rule of Civil
Procedure 168, the Court identifies the following issue of
law as the subject of the permitted interlocutory appeal:
Whether this case, as pleaded by plaintiffs, is ripe for
adjudication.

(Pet. Tab 1 at 2). Notwithstanding any statements the trial court may have made

during a preliminary hearing, the key is this: the trial court issued an order denying

a plea to the jurisdiction because of the court’s decision that the case is ripe for

adjudication and then allowed an interlocutory appeal on the controlling ripeness

issue. (Pet. Tab 1). Leaving no doubt, the interlocutory order expressly stated that

the malpractice case was ripe: “The Pleas in Abatement and Pleas to the

9
Jurisdiction . . . are hereby denied because the Court has decided that the claims for

malpractice in this case are ripe for adjudication.” (Pet. Tab 1 at 2).

Wholly distinguishable are cases cited by the Clients—cases in which the

trial court declined to decide the controlling legal issues in a summary judgment

ruling. For example, in Vestalia, Ltd. v. Taylor-Watson, No. 01-15-00332-CV,

2015 WL 3799505, at *1 (Tex. App.—Houston [1st Dist.] June 18, 2015, no pet.),

a blanket summary judgment denial, with no explanation, gave no indication of the

trial court’s stance on the four questions presented on appeal. Id. Likewise, in

Gulley v. State Farm Lloyds, 350 S.W.3d 204, 207 (Tex. App.—San Antonio 2011,

no pet.), the trial court denied competing summary judgment motions and declined

to determine the proper interpretation of an insurance policy’s endorsements,

despite identifying the controlling legal question as which one of two possible

interpretations was correct. The Clients also cite Warren v. Weiner, 01-15-00432-

CV, 2015 WL 4627404, at *1 (Tex. App.—Houston [1st Dist.] Aug. 4, 2015, no

pet.), but that opinion does not even describe, let alone critique, the interlocutory

order.

Unlike the judges in the cases cited by the Clients, the trial court here

expressly found the Clients’ malpractice claim to be ripe for adjudication and then

identified ripeness as a controlling issue.

10
 B. Ripeness is a controlling issue.
“Ripeness is an element of subject matter jurisdiction” and “is a legal

question subject to de novo review.” Mayhew v. Town of Sunnyvale, 964 S.W.2d

922, 928 (Tex. 1998). According to the Clients, “a controlling question of law is

one that deeply affects the ongoing process of litigation.” (Resp. at 12). Here, the

ripeness question determines whether the malpractice suit can proceed, which is

indeed a “deep effect.”

Attempting to cast ripeness as a fact question, the Clients list potential

disputed fact issues that might arise in a hypothetical trial. See Resp. at 14.

Whether their claims are barred in Mexican courts is hardly a fact issue, as the

Clients contend (id.); it is a legal issue, which should be decided by a Mexican

court as directed by three U.S. federal court orders. They even try to convert

ripeness into a factual question on mitigation of damages. Id.

Further, the Clients cite inapposite cases. For example, they cite Alexander

v. Turtur & Associates, 146 S.W.3d 113 (Tex. 2004), apparently contending that

the typical trial-within-a-trial in a legal malpractice case means that it is

permissible to try an ongoing and unfinished case within their malpractice case.

Similarly, they cite summary judgment cases laden with contested facts. See, e.g.,

King-A Corp. v. Wehling, No. 13-13-00100-CV, 2013 WL 1092209, at *3 (Tex.

App.—Corpus Christi Mar. 14, 2013, no pet.); Fertitta Hospitality, LLC v.

11
O’Balle, No. 01-14-00193-CV, 2014 WL 5780329, at *4 (Tex. App.—Houston

[1st Dist.] Nov. 6, 2014, no pet.).

But the unmistakable and distinguishing fact here is that the Clients are

asserting a claim about harm that has not and may not ever occur. The fundamental

legal question at issue is whether the case, as pleaded by the Clients, is ripe for

adjudication in the first place.

III. A Substantial Ground For Difference of Opinion Exists.
Without citing a case on point, the Clients contend that whether the claims

are ripe for adjudication is not a legal question that poses substantial grounds for

disagreement. “Substantial grounds for disagreement exist when the question

presented to the court is novel or difficult, when controlling circuit law is doubtful,

when controlling circuit law is in disagreement with other courts of appeals, and

when there simply is little authority upon which the district court can rely.” Gulf

Coast Asphalt Co. v. Lloyd, 457 S.W.3d 539, 544-45 (Tex. App.—Houston [14th

Dist.] 2015, no pet.) (quoting Renée Forinash McElhaney, Toward Permissive

Appeal in Texas, 29 St. Mary’s L.J. 729, 747–49 (1998)).

No Texas court has addressed whether a plaintiff ordered on forum non

conveniens grounds to refile in a foreign court, with the option of returning to

federal court to seek reinstatement, can instead bring a malpractice case prefaced

on speculation about how the foreign and federal courts would have hypothetically

12
ruled. Yet this is precisely what “this case, as pleaded by plaintiffs,” (Tab 1 at 2),

seeks to do. Any trial court ruling would be nonbinding and would upset

international comity and federalism principles. The trial court’s ripeness

determination represents a vast expansion of malpractice law, enabling litigants to

short-circuit the judicial process by paying experts to stand in the place of judges

and court proceedings.

IV. Immediate Appeal Will Expedite The Conclusion Of The Litigation.
Resolution of the ripeness question will materially advance the ultimate

termination of the litigation. If the case is not ripe, the lawsuit cannot proceed, and

any result would amount to an impermissible advisory opinion.

The ripeness “doctrine has a pragmatic, prudential aspect that is directed

toward” judicial efficiency. Patterson, 971 S.W.2d at 443. The doctrine “conserves

judicial time and resources for real and current controversies, rather than abstract,

hypothetical, or remote disputes.” Mayhew, 964 S.W.2d at 928. “[A]voiding

premature litigation prevents courts from ‘entangling themselves in abstract

disagreements.’” Patterson, 971 S.W.2d at 443 (quoting City of El Paso v. Madero

Dev. & Constr. Co., 803 S.W.2d 396, 398–99 (Tex. App.—El Paso 1991, writ

denied)). Here, the trial court would be making nonbinding interpretations of how

Mexican and Texas federal courts would rule on unique jurisdictional and

procedural matters.

13
 The Clients suggest that a finding that the case is not ripe will protract the

litigation process because they will be forced to litigate their underlying claims.

Clients’ argument underscores the fallacy of their position: malpractice claims are

not a stand-in for judicial resolution of underlying disputes. Judicial economy in

the trial court would be squandered on a premature case. There has been no final

resolution of the Clients’ underlying claims, nor have the Clients been barred from

Texas federal courts. The Clients’ purported injury has not and may never occur.

See Rothrock v. Akin, Gump, Hauer & Feld, No. 05-92-02332-CV, 1994 WL

183318, at *7 (Tex. App.—Dallas May 11, 1994, no writ) (“Where the

misfeasance or nonfeasance is intertwined with an adjudicative process that is

necessary to complete invasion of the protected interest, injury is not suffered until

an adjudicative decision is made.”).

The malpractice litigation cannot continue if this Court finds the case to be

unripe. But in the absence of an appeal, the parties and trial court will expend

resources on a premature case premised on contingent and hypothetical facts. Any

damages model would be speculative and unreliable. And the trial court ruling

would ultimately be void as an advisory opinion beyond the subject matter

jurisdiction of Texas courts. See Patterson, 971 S.W.2d at 443 (the prohibition on

advisory opinions “extends to cases that are not yet ripe”). “Refraining from

14
issuing advisory opinions and waiting for cases’ timely factual development is . . .

essential to the proper development of the state’s jurisprudence.” Id.

Further, despite the Clients’ suggestion, no Texas rule bars consideration of

a permissive appeal when a mandamus petition is pending. In attempting to create

such a prohibition, the Clients cite Warren, 2015 WL 4627404, at *1. But that one-

paragraph opinion found that the petition for permissive appeal failed to “establish

that the order involves a controlling question of law as to which there is a

substantial ground for a difference of opinion.” Id.

CONCLUSION AND PRAYER
For the reasons stated above, this Court should grant the petition for

interlocutory appeal, deny the Clients’ motion to dismiss, and grant the Lawyers all

other relief to which they are entitled.

15
 Respectfully submitted by
Counsel for Petitioners:

/s/ Reagan W. Simpson
Reagan W. Simpson
State Bar No. 18404700
rsimpson@yettercoleman.com
YETTER COLEMAN LLP
909 Fannin, Suite 3600
Houston, Texas 77010
Tel. 713-632-8000
Fax 713-632-8002
Counsel for Petitioners
Beck Redden LLP, Russell Post,
Fields Alexander and Jas Brar

/s/Jeremy L. Doyle /s/Billy Shepherd
Jeremy L. Doyle Billy Shepherd
State Bar No. 24012553 State Bar No. 18219700
jdoyle@reynoldsfrizzell.com bshpeherd@spmlegal.com
James Schuelke Allison Standish Miller
State Bar No. 24075037 State Bar No. 24046440
jschuelke@reynoldsfrizzell.com amiller@spmlegal.com
REYNOLDS FRIZZELL LLP SHEPHERD PREWETT MILLER
1100 Louisiana, Suite 3500 PLLC
Houston, Texas 77002 770 South Post Oak Lane
Tel. 713-485-7200 Suite 420
Fax 713-488-7250 Houston, Texas 77056
Counsel for Petitioners Arnold & Tel. 713-955-4440
Itkin, L.L.P., Kurt Arnold, Cory Itkin Fax +1 713-766-6542
and Jason Itkin Counsel for Petitioners
Albritton Law Firm and Eric
Albritton

16
/s/Sam Houston /s/John Black
Sam Houston John Black
State Bar No.10059550 State Bar No. 24012292
shouston@sschlaw.com jblack@dalyblack.com
SCOTT, CLAWATER & HOUSTON L.L.P. DALY & BLACK, P.C.
2777 Allen Parkway, 7th Floor 2211 Norfolk, Suite 800
Houston, Texas 77019-2133 Houston, Texas 77008
Tel. 713-650-6600 Tel. 888-492-2671
Fax 713-766-6542 Fax 713-655-1587
Counsel for Petitioners Arnold & Itkin, Counsel for Petitioners Arnold &
L.L.P., Kurt Arnold, Cory Itkin and Itkin, L.L.P., Kurt Arnold, Cory
Jason Itkin Itkin and Jason Itkin

17
 CERTIFICATE OF COMPLIANCE UNDER APPELLATE RULE 9.4
I certify that this brief complies with the type-volume limitation of Texas

Rule of Appellate Procedure 9.4(i)(2)(E), incorporated by Texas Rule of Appellate

Procedure 28.3(g), because it contains 2,286 words, excluding the parts of the

briefs exempted by Texas Rule of Appellate Procedure 9.4(i)(2)(E).

/s/ Reagan W. Simspon
Reagan W. Simpson

18
 CERTIFICATE OF SERVICE
In compliance with Texas Rule of Appellate Procedure 9.5(e), I hereby

certify that a true and correct copy of this brief has been served on lead counsel

and additional counsel for respondents by electronic means and/or via e-mail on

December 10, 2015, as follows:

Lance Christopher Kassab Brett Wagner
David Eric Kassab Larry Joe Doherty
The Kassab Law Firm Ryan W. Smith
1420 Alabama Doherty  Wagner
Houston, Texas 77004 13810 Champion Forest Drive
lck@texaslegalmalpractice.com Suite 225
dek@texasleglamalpractice.com Houston, Texas 77069
Counsel for Plaintiffs- brett@dwlawyers.com
Respondents larry@dwlawyers.com
ryan@dwlawyers.com
Counsel for Plaintiffs-Respondents

/s/ Reagan W. Simspon
Reagan W. Simpson

19