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

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