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# No. 14

- 15

- 00363

- CV

I N THE F OURTEENTH C OURT OF A PPEALS H OUSTON , T EXAS

LANCE CHRISTOPHER KASSAB and DAVID ERIC KASSAB, Appellant s ,

v. JIMMY VAN KNIGHTON, II a/k/a JAY V. KNIGHTON, II, individually , and STONE & ASSOCIATES, LLP n/k/ a KNIGHTON & STONE, PLLC , Appellee s
.
On Appeal from 2011

- 75990

- A, in the 133 rd District Court , Harris County Honorable Jaclanel McFarland , Presiding

AGREED MOTION TO ABATE APPEAL

TO THE HONORABLE COURT OF APPEALS: App ellants Lance Christopher Kassab and David Eric Kassab (collectively “Kassab”) file this agreed motion to abate this appeal, and in support states as follows:
1. By this appeal, Kassab intends to challenge a n order rendered by the Honorable Jaclanel McFarland in Beatty v. Jimmy Van Knighton, II ACCEPTED 14-15-00363-cv FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS 5/1/2015 11:20:35 AM CHRISTOPHER PRINE

CLERK2 a/k/a Jay V. Knighton, II, I ndividually, and Stone & Associates, LLP n/k/a Knighton & Stone , PLLC , Cause No. 2011

- 75990 , in the 133 rd Judicial District Court, Harris County, Texas, on March 5, 2012 sanctioning Kassab for the filing of Plaintiff’s First Amended Petition (“First Ame nded Petition”) in that lawsuit . That order remained interlocutory during the pendency of that lawsuit.
2. In addition to imposing monetary sanctions and awarding attorney’s fees against Kassab in connection with the filing, the sanctions
order also directe d the district clerk to strike the First Amended Petition
from the record.
3. The underlying suit subsequently settled , but the settlement did
not resolve the sanctions order. On March 23, 2015, Judge McFarland
declined Plaintiff’s motion to vacate the sanct ions order but granted the request that the sanctions order be severed it into a new case , Beatty v. Jimmy Van Knighton, II a/k/a Jay V. Knighton, II, individually, and Stone & Associates, LLP n/k/a Knighton & Stone , PLLC Cause No. 2011

- 75990

- A (the “Sever ed Case”) so that Kassab can challenge the sanction and the award of attorney’s fees on appeal.3 4. The order of severance directed the district clerk to include
certain items in the file of the S evered C ase, but did not direct the clerk to
include the stricke n “First Amended Petition” with those items.
5. It will be necessary for Kassab to have the First Amended Petition included in the appellate record so that the sanctions imposed as a result of its filing may be addressed on appeal.
6. As the underlying suit ha d been terminated by the settlement,
the S everance O rder should have rendered the sanctions order, once severed into the new cause, a final an appealable order. However, the Severance
Order included no language indicatin g that the sanctions order should b e treated as final and appealable

. 7. Assuming that the Severance Order rendered the sanctions order final and appealable, Kassab timely filed a notice of appeal within 30 days of its entry , giving rise to this appeal . Contemporaneously with that filing, to resolve any uncertainty abou t the finality of the Severance Order, Kassab also filed a motion with the trial court requesting that it enter an amended order of severance that would do two things : (1) incorporate “Mother Hubbard” language into the severance order that would confirm
th at the sanctions order is now final and appealable, and (2) direct the trial4 court to include the First Amended Petition in the pleadings of the severed case so that Kassab can bring it before this Court on appeal.
8. Kassab’s certificate of conference to the motion to amend the sanctions order stated that counsel for Defendants/Appellees had not indicated whether the motion would be opposed or unopposed as of the time of its filing. Since that time, counsel has authorized Kassab to inform the
trial court tha t the motion is unopposed, and Kassab is in the process of doing so and requesting the entry of an agreed amended order of severance
as described above.
9. Kassab files this Agreed Motion to Abate this appeal pending a resolution of the motion to sever by Jud ge McFarland. If the motion i n the
district court i s granted, the amended order will resolve any issues about whether this appeal arises from a final judgment, eliminating any need for briefing before this Court on the issue. It will also ensure that the designation of clerk’s record will contain all items necessary for the proper consideration of the appeal, and that the docketing statement accurately sets forth the procedural history by which Appellants assert finality.
PRAYER FOR RELIEF Wherefore, pre mises considered, Appellants respectfully pray that this Court abate the deadlines associated with this appeal, including the deadlines5 for filing a docketing statement and designating the clerk’s record until such time as the pending motion to amend the s everance order is resolved by the
district court.6 Respectfully submitted,
/

S

/ Michael S. Truesdale Michael S. Truesdale
L AW O FFICE OF M ICHAEL S. T RUESDALE , PLLC State Bar No. 00791825 801 West Avenue, Suite 201 Austin, TX 78701 512

- 482

- 8671 866

- 847

- 8 719 (fax) mike@truesdalelaw.com COUNSEL FOR APPELLANT
CERTIFICATE OF SERVICE On May 1 , 2015 , the undersigned certifies that he served a copy of this Brief of Appellants on the following in the manner liste d below, in compliance with Texas Rules of Appellate Procedure 9 : Sam A. Houston Shepherd, Scott, Clawater & Houston, LLP 2777 Allen Parkway, 7 th Floor Houston, TX 77019 713

- 650

- 6600 713

- 650

- 1720 (fax) Counsel for Appellees Via e

- service /s/ Michael S. Truesdale Michael S. Truesdale SBN 00791825
CERTIFICATE OF CONFERENCE The undersigned certifies that he conferred with Sam A. Houston regarding the relief requested in this motion and Mr. Houston indicated that the motion could be filed as an agreed motion.
/s/ Michael S. Truesdale Michael S. Truesdale