(Additional Counsel for Pe titioners on Following Page) 

### No. 01-15-00989-CV

________________ 

## In the First Court of Appeals, **Houston, Texas**

________________ 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

________________ 

## R EPLY IN 

## S UPPORT OF 

## P ETITION FOR 

## P ERMISSION TO 

## A PPEAL 

## I NTERLOCUTORY 

## O RDER AND 

## R ESPONSE TO 

## M OTION TO 

## D ISMISS

________________ Reagan W. Simpson State Bar No. 18404700 rsimpson@yettercoleman.com Y ETTER C OLEMAN 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 Bra r Jeremy L. Doyle State Bar No. 24012553 jdoyle@reynoldsfrizzell.com Reynolds Frizzell LLP 1100 Louisiana, Suite 3500 Houston, Texas 77002 Tel. 713-485-7200 Fax 713-488-7250 Counsel for Petitioners Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin, and Jason Itkin Billy Shepherd State Bar No. 18219700 bshpeherd@spmlegal.com Shepherd Prewett Miller PLLC 770 South Post Oak Lane Suite 420 Houston, Texas 77056 Tel. 713-955-4440 Fax +1 713-766-6542 Counsel for Petitioners Albritton Law Firm and Eric Albritton ACCEPTED 01-15-00989-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 12/10/2015 2:39:00 PM CHRISTOPHER PRINE

CLERK2 Additional Counsel for Petitioners James Schuelke State Bar No. 24075037 j schuelke@reynoldsfrizzell.com Reynolds Frizzell LLP 1100 Louisiana, Suite 3500 Houston, Texas 77002 Tel. 713-485-7200 Fax 713-488-7250 Counsel for Petitioners Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason Itkin

Sam Houston State Bar No. 10059550 shouston@sschlaw.com Scott, Clawater & Houston L.L.P. 2777 Allen Parkway, 7th Floor Houston, Texas 77019-2133 Tel. 713-650-6600 Fax 713-766-6542 Counsel for Petitioners Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason Itkin Allison Standish Miller State Bar No. 24046440 amiller@spmlegal.com Shepherd Prewett Miller PLLC 770 South Post Oak Lane Suite 420 Houston, Texas 77056 Tel. 713-955-4440 Fax +1 713-766-6542 Counsel for Petitioners Albritton Law Firm and Eric Albritton

John Black State Bar No. 24012292 j black@dalyblack.com Daly & Black, P.C. 2211 Norfolk, Suite 800 Houston, Texas 77008 Tel. 888-492-2671 Fax 713-655-1587 Counsel for Petitioners Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason Itkin3 T ABLE OF C ONTENTS I NDEX OF A UTHORITIES .............................................................................................. 4 I NTRODUCTION ........................................................................................................... 6 A RGUMENT ................................................................................................................ 7 I. T HIS S UIT I S N OT R IPE F OR A DJUDICATION . ................................................... 7 II. T HE A PPEAL I NVOLVES A C ONTROLLING L EGAL I SSUE ................................... 9 A. The trial court correctly identifie d ripeness as the controlling issue that it ha d decided. ...................................................................... 9 B. Ripeness is a contro lling issue. .......................................................... 11 III. A S UBSTANTIAL G ROUND F OR D IFFERENCE OF O PINION E XISTS . .................. 12 IV. I MMEDIATE A PPEAL W ILL E XPEDITE T HE C ONCLUSION O F T HE L ITIGATION

. ...................................................................................................................... 13 C ONCLUSION AND P RAYER ...................................................................................... 15 C ERTIFICATE OF C OMPLIANCE U NDER A PPELLATE R ULE 9.4 .................................. 18 C ERTIFICATE OF S ERVICE ......................................................................................... 194 I NDEX OF A UTHORITIES P AGE ( S ) C ASES

Alexander v. Turtur & Assocs. , 146 S.W.3d 113 (T ex. 2004) ........................................................................ 11 City of El Paso v. M adero Dev. & Constr. Co., 803 S.W.2d 396 (Tex. App.—El Pa so 1991, writ de nied) ............................ 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 (T ex. 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 (T ex. 2000) ............................................................................ 85 Warren v. Weiner , 01-15-00432-CV, 2015 WL 4627404 (Tex. App.—Houston [1st Dist.] Aug. 4, 2015, no pet.) ........................ 10, 15

S TATUTES & R ULES 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 O THER A UTHORITY Renée Forinash McElhaney, Toward Permissive Appeal in Texas, 29 St. Mary’s L.J. 729 (1998) ........... 126 I NTRODUCTION Three U.S. federal judges ha ve 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 C lients have instead chosen to bring a malpractice claim ag ainst their attorneys, premised on speculation about how the foreign and federal courts w ould 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 lawy ers when they are dissatisfied with the progress of their cases before any fi nal resolution. The result will be the prosecution of a speculative malpractice clai m that can lead only to a void advisory determination at great cost to the partie s 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 fro m the interlocutory order will materially advance the ultimat e termination of this litigation. The Clients’ maneuvers to bypass the judici al process following an adverse forum ruling have important ramifications for ripeness, malpractice, federalism, and7 comity jurisprudence. Therefore, the pe tition for permission to appeal should be granted.

A RGUMENT

I. This Suit Is Not Ripe For Adjudication. The Clients’ response larg ely 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 stat e court will have to lay conjecture upon conjecture to reach an advisory opinion.8 “At the time a lawsuit is filed, ri peness asks whether the facts have developed sufficiently so that an injury ha s occurred or is likely to occur, rather than being contingent or remote.” Patterson v. Planned Pa renthood of Houston & Se. Texas, Inc. , 971 S.W.2d 439, 442 (Tex. 1998). “By focusing on whether the plaintiff has a concrete injury, the ri peness doctrine allows courts to avoid premature adjudication, and serves th e constitutional intere sts in prohibiting advisory opinions.” Waco Indep. Sch. Dist. v. Gibson , 22 S.W.3d 849, 852 (Tex. 2000). The Clients have not, a nd 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 Jo nes 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’ waiv er of limitations in the underlying case is invalid in Mexico and that the plaintiffs’ choice of a U.S. foru m 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 impl y 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 cl aims mentioned at page 3 of the Response, the preemption of any such claims by the Jones Act is settled law. See id

.9 Clients’ malpractice claims are premature, and adjudicating them would contradict the ripeness doctrine and, on the facts of th is 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 contro lling issue. Further, ripeness falls within the type of issues that are proper for permissive appeals.

A. The trial court correctly identi fied 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 a nd Texas Rule of Civil Procedure 168, the Court identifies the following issue of law as the subject of the pe rmitted interlocutory appeal: Whether this case, as pleaded by plaintiffs, is ripe for adjudication. (Pet. Tab 1 at 2). Notwithstanding any st atements 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 c ourt’s decision that the case is ripe for adjudication and then allowed an interloc utory 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 the10 Jurisdiction . . . are hereby de nied 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 cite d by the Clients—cases in which the

trial court declined to decide the contro lling 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. A pp.—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 de nied competing summary judgment motions and declined to determine the proper in terpretation of an insura nce policy’s endorsements, despite identifying the controlling lega l 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 (T ex. App.—Houston [1st Dist.] Aug. 4, 2015, no pet.), but that opinion does not even desc ribe, 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.11 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 Clie nts, “a controlling question of law is one that deeply affects the ongoing proce ss 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 questi on 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), a pparently contending that the typical trial-within-a-trial in a le gal malpractice case means that it is permissible to try an ongoing and unfinis hed case within thei r malpractice case. Similarly, they cite summary judgmen t 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.12 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 Client s contend that whether the claims are ripe for adjudication is not a legal question that poses substantial grounds for disagreement. “Substantial grounds for di sagreement exist when the question presented to the court is novel or difficu lt, when controlling circ uit law is doubtful, when controlling circuit law is in disagree ment 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 (T ex. 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 cour t, with the option of returning to federal court to seek reinstatement, can instead bring a malpr actice case prefaced on speculation about how the foreign and fe deral courts would have hypothetically13 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 pr inciples. The trial court’s ripeness determination represents a vast expansion of malpractice law, enabling litigants to short-circuit the judicial process by payi ng experts to stand in the place of judges and court proceedings.

IV. Immediate Appeal Will Expedite Th e 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 im permissible 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 curre nt 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 inte rpretations of how

Mexican and Texas federa l courts would rule on unique jurisdictional and procedural matters.14 The Clients suggest that a finding that th e case is not ripe will protract the litigation process because they will be fo rced 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 clai ms, nor have the Clients been barred from Texas federal courts. The Clients’ purporte d 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 protect ed 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 tr ial court will expend resources on a premature case premised on contingent and hypothetical facts. Any damages model would be sp eculative and unreliable. An d the trial court ruling would ultimately be void as an advi sory 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 th at are not yet ripe”). “Refraining from15 issuing advisory opinions and waiting for cas es’ timely factual development is . . . essential to the proper developmen t of the state’s jurisprudence.” Id. Further, despite the Clients’ suggestion, no Texas rule bars consideration of a permissive appeal when a mandamus pe tition is pending. In attempting to create such a prohibition, the Clients cite Warren , 2015 WL 4627404, at *1. But that oneparagraph opinion found that th e petition for permissive a ppeal failed to “establish that the order involves a controlling qu estion of law as to which there is a substantial ground for a difference of opinion.” Id.

C ONCLUSION AND P RAYER For the reasons stated above, this Court should grant the petition for interlocutory appeal, deny the Clients’ moti on to dismiss, and grant the Lawyers all other relief to which they are entitled.16 Respectfully submitted by

Counsel for Petitioners:

/s/ Reagan W. Simpson Reagan W. Simpson State Bar No. 18404700 rsimpson@yettercoleman.com Y ETTER C OLEMAN 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 Jeremy L. Doyle State Bar No. 24012553 jdoyle@reynoldsfrizzell.com James Schuelke State Bar No. 24075037 jschuelke@reynoldsfrizzell.com R EYNOLDS F RIZZELL LLP 1100 Louisiana, Suite 3500 Houston, Texas 77002 Tel. 713-485-7200 Fax 713-488-7250 Counsel for Petitioners Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason Itkin /s/Billy Shepherd Billy Shepherd State Bar No. 18219700 bshpeherd@spmlegal.com Allison Standish Miller State Bar No. 24046440 amiller@spmlegal.com S HEPHERD P REWETT M ILLER PLLC 770 South Post Oak Lane Suite 420 Houston, Texas 77056 Tel. 713-955-4440 Fax +1 713-766-6542 Counsel for Petitioners Albritton Law Firm and Eric Albritton17 /s/Sam Houston Sam Houston State Bar No.10059550 shouston@sschlaw.com S COTT , C LAWATER & H OUSTON L.L.P. 2777 Allen Parkway, 7th Floor Houston, Texas 77019-2133 Tel. 713-650-6600 Fax 713-766-6542 Counsel for Petitioners Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason Itkin /s/John Black John Black State Bar No. 24012292 j black@dalyblack.com D ALY & B LACK , P.C. 2211 Norfolk, Suite 800 Houston, Texas 77008 Tel. 888-492-2671 Fax 713-655-1587 Counsel for Petitioners Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason Itkin18 C ERTIFICATE OF C OMPLIANCE U NDER A PPELLATE R ULE 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. Simpson19 C ERTIFICATE OF S ERVICE 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 David Eric Kassab The Kassab Law Firm 1420 Alabama Houston, Texas 77004 lck@texaslegalmalpractice.com dek@texasleglamalpractice.comCounsel for PlaintiffsRespondents Brett Wagner Larry Joe Doherty Ryan W. Smith Doherty  Wagner 13810 Champion Forest Drive Suite 225 Houston, Texas 77069 brett@dwlawyers.com larry@dwlawyers.com ryan@dwlawyers.com Counsel for Plaintiffs-Respondents

/s/ Reagan W. Simspon Reagan W. Simpson