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

12/3/2015 1:47:58 PM

CHRISTOPHER PRINE

CLERK

No. 01-15-00989-CV

_________________________________________

FILED IN

1st COURT OF APPEALS

IN THE HOUSTON, TEXAS

FIRST COURT OF APPEALS 12/3/2015 1:47:58 PM

at Houston CHRISTOPHER A. PRINE

Clerk

______________________________________________

ARNOLD & ITKIN, LLP, ET AL.

Petitioners,

v.

MARIA SANTOS LOPEZ DOMINGUEZ, ET AL.

Respondents,

______________________________________________

Trial Court Cause Number 2015-28543

From the 11th Judicial District Court of Harris County, Texas

______________________________________________

RESPONDENTS’ MOTION TO DISMISS FOR LACK OF APPELLATE

JURISDICTION AND RESPONSE TO PETITIONERS’

PETITION FOR PERMISSION TO APPEAL

______________________________________________

THE KASSAB LAW FIRM DOHERTY✯WAGNER

LANCE CHRISTOPHER KASSAB BRETT WAGNER

Texas State Bar No. 00794070 Texas State Bar No. 20654270

lck@TexasLegalMalpractice.com brett@dwlawyers.com

DAVID ERIC KASSAB LARRY JOE DOHERTY

Texas State Bar No. 24071351 Texas State Bar No. 05950000

dek@TexasLegalMalpractice.com larry@dwlawyers.com

1420 Alabama 13810 Champion Forest Drive, Suite 225

Houston, Texas 77004 Houston, Texas 77069

Phone (713) 522-7400 Phone (281) 583-8700

Facsimile (713) 522-7410 Facsimile (281) 583-8701

ATTORNEYS FOR RESPONDENTS

IDENTITY OF PARTIES AND COUNSEL

The following is a list of all parties, and the names and addresses of all

counsel.

Defendants-Petitioners: Beck Redden LLP, Russell Post, Fields

Alexander, Jas Brar, Arnold & Itkin, LLP, Kurt

Arnold, Cory Itkin, Jason Itkin, Albritton Law

Firm and Eric Albritton

Petitioners’ Counsel Reagan W. Simpson

(Trial Court and on Appeal): YETTER COLEMAN LLP

909 Fannin, Suite 3600

Houston, Texas 77010

Tel. (713) 632-8000

Fax (713) 632-8002

Counsel for Defendants-Petitioners

Beck Redden LLP, Russell Post, Fields

Alexander and Jas Brar

Jeremy L. Doyle

James Schuelke

Reynolds Frizzell LLP

1100 Louisiana, Suite 3500

Houston, Texas 77002

Counsel for Defendants-Petitioners

Arnold & Itkin, L.L.P., Kurt Arnold,

Cory Itkin and Jason Itkin

Sam Houston

Scott, Clawater & Houston L.L.P.

2777 Allen Parkway, 7th Floor

Houston, Texas 77019-2133

Counsel for Defendants-Petitioners

Arnold & Itkin, L.L.P., Kurt Arnold,

Cory Itkin and Jason Itkin

I

John Black

Daly & Black, P.C.

2211 Norfolk, Suite 800

Houston, Texas 77008

Counsel for Defendants-Petitioners

Arnold & Itkin, L.L.P., Kurt Arnold,

Cory Itkin and Jason Itkin

Billy Shepherd

Allison Standish Miller

Shepherd Prewett Miller PLLC

770 South Post Oak Lane, Suite 420

Houston, Texas 77056

Counsel for Defendants-Petitioners

Albritton Law Firm and Eric Albritton

Plaintiffs-Respondents 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 Navarrete; 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 Zuñiga Salazar, Josefa Santos

Castellano, Individually and as Representative

of the Estate of Benito De Los Santos, Joel

Santos Ventura, Individually and as

II

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 Leandro

Manuel Pozo, and Eudocio Alejandro Jacome

Gomez

Respondents’ Counsel Lance Christopher Kassab

(Trial Court and on Appeal) David Eric Kassab

THE KASSAB LAW FIRM

1420 Alabama

Houston, Texas 77004

Brett Wagner

Larry Joe Doherty

Ryan W. Smith

DOHERTY✯WAGNER

13810 Champion Forest Drive, Suite 225

Houston, Texas 77069

III

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ……………………………………....I

TABLE OF CONTENTS ....................................................................................... .IV

INDEX OF AUTHORITIES..................................................................................... V

PREFACE ..................................................................................................................1

RECORD REFERENCES………………………………………………………….1

STATEMENT OF THE CASE ..................................................................................2

STATEMENT OF FACTS ........................................................................................2

A. FACTUAL BACKGROUND ...................................................................................2

B. PROCEDURAL BACKGROUND ............................................................................7

ARGUMENT ...........................................................................................................10

A. THE PETITION SHOULD BE DENIED BECAUSE THE LAWYERS HAVE

ALSO FILED A MANDAMUS………………………………..……………....... 10

B. THE PETITION SHOULD BE DENIED BECAUSE THE TRIAL COURT

DEFERRED ITS RULING ON WHETHER THE LEGAL ISSUE IS CONTROLLING

TO THIS COURT ……………………………...……………….……….….... 11

C. THE PETITION SHOULD BE DENIED BECAUSE THE ISSUE TO BE APPEALED

IS NOT A CONTROLLING LEGAL ISSUE ABOUT WHICH THERE IS A

SUBSTANTIAL DIFFERENCE OF OPINION …………………………..……….... 12

D. THE PETITION SHOULD BE DENIED BECAUSE AN IMMEDIATE APPEAL

WILL NOT MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF THE

LITIGATION BUT WILL LEAD TO JUDICIAL INEFFICIENCY ..................................17

CONCLUSION & PRAYER ...................................................................................19

CERTIFICATE OF COMPLIANCE .......................................................................21

CERTIFICATE OF SERVICE ................................................................................22

VERIFICATION ......................................... ATTACHED TO END OF RESPONSE

APPENDIX ................................................. ATTACHED TO END OF RESPONSE

IV

INDEX OF AUTHORITIES

TEXAS STATE CASES PAGE(S)

Alexander v. Turtur & Assocs.,

146 S.W.3d 113 (Tex. 2004)……………………………………….…………………….14

America Online, Inc. v. Williams,

958 S.W.2d 268 (Tex. App. – Houston [14th Dist.] 1997, no pet.)……………..……….17

Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547 (Tex. 2000)………………………………….…………………………….2

Borowski v. Ayers,

432 S.W.3d 344 (Tex. App.—Waco 2013, no pet.)………………………..…………….15

Diamond Prods. Int’l., Inc. v. Handsel,

142 S.W.3d 491 (Tex. App.—Houston [14th Dist.] 2004, no pet.)……………….……..15

Fertitta Hospitality, LLC v. O'Balle,

2014 Tex. App. LEXIS 12141

(Tex.App. – Houston [1st Dist.] Nov. 6, 2014, no pet.)…………………………………15

Great Am. E & S Ins. Co. v. Lapolla Indus., Inc.,

2014 Tex. App. LEXIS 6746, 2014 WL 2895770

(Tex. App.—Houston [1st Dist.] June 24, 2014, no pet.) (mem. op.)…….……………..12

Gulf Coast Asphalt Co., L.L.C. v. Lloyd,

457 S.W.3d 539 (Tex. App.—Houston [14th] 2015, no pet.)……………12, 13, 16, 17, 19

Gulley v. State Farm Lloyds,

350 S.W.3d 204 (Tex. App.—San Antonio 2011, no pet.)…..……………………....10, 12

In re Estate of Fisher,

421 S.W.3d 682 (Tex. App.—Texarkana 2014, no pet.) ………...…...…….……….10, 19

King-A Corp. v. Wehling,

2013 Tex. App. LEXIS 2761

(Tex. App.—Corpus Christi Mar. 14, 2013, no pet.) (mem. op.)………………….…….15

Lehmann v. Har-Con Corp.,

39 S.W.3d 191 (Tex. 2001)………………………………………………………………13

Texas Animal Health Com’n v. Garza,

27 S.W.3d 54 (Tex. App.—San Antonio 2000, pet. denied)…………………….………14

Texas Ass’n of Bus. v. Texas Air Control Bd.,

852 S.W.2d 440 (Tex. 1993)………….…….……………….…………………………….2

Vanderweyst v. Boudreaux,

2003 Tex. App. LEXIS 8549, 2003 WL 22255833

(Tex. App.—Houston [1st Dist.] Oct. 2, 2003, pet. denied) (mem. op.))………….….2, 18

Vestalia, Ltd. v. Taylor-Watson,

2015 Tex. App. LEXIS 6249, 2015 WL 3799505

(Tex. App.—Houston [1st Dist.] June 18, 2015, no pet.) (mem. op.)……….…..11, 13, 14

Warren v. Weiner,

2015 Tex. App. LEXIS 8148

(Tex.App. – Houston [1st Dist.] Aug. 4, 2015, no pet.)..............................................10, 14

V

TEXAS STATUTES PAGE(S)

TEX. CIV. PRAC. & REM. CODE § 51.014(a)……………………………..………………………..13

TEX. CIV. PRAC. & REM. CODE. § 51.014(d)…………………………………….....……8, 9, 12, 17

TEX. CIV. PRAC. & REM. CODE § 51.014(f)…………………………………..…………………....1

TEXAS RULES PAGE(S)

TEX. R. APP. P. 28.3(e)(3). . ......………...……………..……………………………………..…....1

TEX. R. APP. P. 28.3(f) ….………………………..…………………………………………..…....1

TEX. R. APP. P. 28.3, cmt….……....……………..…………………………….……………..…....1

VI

PREFACE

Texas Rule of Appellate Procedure 28.3(e)(3) is clear that a petition for

permissive appeal should “argue clearly and concisely why the order to be

appealed involves a controlling question of law as to which there is a substantial

ground for difference of opinion and how an immediate appeal from the order may

materially advance the ultimate termination of the litigation.” TEX. R. APP. P.

28.3(e)(3). Petitioners-Defendants’ Petition for Permission to Appeal Interlocutory

Order (“Petition”) spends one single page attempting to comply with this rule. See

Pet. Mot., at p. 11. In the remaining twenty-three (23) pages of the Petition,

Petitioner-Defendants argue the merits of the trial court’s decision. To this extent,

the Petition is defective and Respondents-Plaintiffs move to strike these irrelevant

portions.

Accordingly, Respondents-Plaintiffs’ focus this Response on why a

permissive appeal is inappropriate. TEX. R. APP. P. 28.3(f). In the event the Court

grants a permissive appeal, Respondents-Plaintiffs will address the merits of the

trial court’s decision in further appellate briefing. See TEX. R. APP. P. 28.3, cmt.;

See also TEX. CIV. PRAC. & REM. CODE § 51.014(f).

RECORD REFERENCES

Source Citation Format

Petitioners’ Appendix Tabs Pet. Tab [number]

Respondents’ Appendix Tabs Resp. Tab [number]

1

STATEMENT OF FACTS

The statement of facts will be taken primarily from Respondents-Plaintiffs’

Second Amended Petition because this was the live pleading before the trial court

when it ruled on Petitioners’ pleas to the jurisdiction.1 When necessary, the facts

will also be supported by additional evidence. See Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547, 554 (Tex. 2000). The statements of fact as set forth in

Respondents’ pleadings (and as set forth herein) must be liberally construed in

Respondents’ favor and taken as true. See Texas Ass’n of Bus. v. Texas Air

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); See also Vanderweyst v.

Boudreaux, No. 01-02-00928-CV, 2003 Tex. App. LEXIS 8549, 2003 WL

22255833, at *10 (Tex. App.—Houston [1st Dist.] Oct. 2, 2003, pet. denied)

(mem. op.).

A. FACTUAL BACKGROUND.

Respondents-Plaintiffs Maria Santos Lopez Dominguez, et al. (the

“Clients”) are offshore oilfield workers (or the surviving representatives of oil field

workers) who were working on the mobile drilling rig, Usumacinta located in the

Bay of Campeche, Mexico and who were injured or killed as a result of the

1

For reasons unknown, Petitioners improperly attached Respondents’ Third Amended Petition

filed on September 25, 2013 to their Petition which was filed after the trial court denied the

subject pleas on September 17, 2015. See Resp. Tab 4.

2

underlying defendants’ acts or omissions occurring on or about October 23, 2007.

Resp. Tab 1, p. 4-5; Pet. Tab 5, p. 2-3.

One or more of the Clients were improperly solicited to retain Arnold &

Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason Itkin (“Itkin”) to represent them in

claims against the parties responsible for causing the injuries or death. Resp. Tab 1,

p. 5. Eventually, however, all Clients retained Itkin to represent them in their

claims. Id. Eric Albritton and the Albritton Law Firm (“Albritton”) were enlisted

by Itkin as local counsel. Id. Later, Beck Redden, LLP, Russell Post, Fields

Alexander and Jas Brar (“Beck”) also represented the Clients in seeking

reinstatement of the Clients’ claims in the United States. Id. Itkin, Albritton and

Beck will be referred to collectively as the “Lawyers.”

In October of 2008, the Itkin-Albritton, on behalf of the Clients, filed

various lawsuits in the United States Federal District Court for the Eastern District

of Texas (the “District Court”) seeking actual and punitive damages against a

number of American individuals and companies (the “underlying lawsuit”). Resp.

Tab 1, p. 6; Pet. Tab 7, p. 2. Itkin-Albritton alleged claims based on Texas state

law, general federal or international maritime law, including the Jones Act, and

Mexican law. Resp. Tab 1, p. 6-7.

The District Court dismissed the Clients’ state law claims with prejudice,

finding they were preempted by the Jones Act. Resp. Tab 1, p. 7. In addition, the

3

District Court dismissed the Clients’ federal maritime claims because the Lawyers

negligently “failed to allege that there was no available remedy in Mexico, as

required to pursue a federal maritime claim under the Jones Act.” Pet. Tab 5, p. 5.

Thus, the Clients allege that, due to the negligence of the Lawyers, the only claims

remaining were the Clients’ Mexican claims for civil liability and moral damages.

Resp. Tab 1, p. 7.

The District Court, on September 15, 2010, consolidated the underlying

lawsuit with six other lawsuits filed by other plaintiffs and a number of other law

firms for the purpose of briefing and deciding a forum non conveniens issue raised

by underlying defendants common to each case. Id. In responding to the forum non

conveniens motions, the Lawyers failed to argue and submit evidence establishing

that Mexico was not an available or adequate forum to litigate the underlying case.

Id. at p. 7-8. The Clients allege that, had the appropriate substantive arguments

been properly asserted by the Lawyers in the response to the forum non conveniens

motion, the motion would not have been granted by the District Court thereby

allowing the Clients’ claims to proceed forward in the chosen forum. Id.

On March 10, 2011, the District Court conditionally granted the forum non

conveniens motion. Id. at 8-9. The order acknowledged the underlying defendants’

agreement to waive any statute of limitations defense that they did not possess as

of the date the underlying case was filed. Id.; See also Pet. Tab 5, p. 27. The order

4

also carried with it a return jurisdiction clause stating, “[s]hould the courts of

Mexico refuse to accept jurisdiction of any of these cases for reasons other than

Plaintiffs’ 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.” Pet. Tab 5, p. 27 (emphasis added). The Clients

allege that the Lawyers’ negligent failure to appeal the May 4, 2011 order was one

proximate cause of damage. Resp. Tab 1, p. 11.

Between February and May of 2013, the Lawyers refiled in Mexico only

eleven (11) of the more than eighty (80) original cases. Id. at p. 9. Due to the

Lawyers’ failure to comply with procedural requirements, the Mexican courts

immediately rejected jurisdiction of the cases. Id. at p. 9-10; See also Pet. Tab 7, p.

4-5. Five months later on October 18, 2013, the Lawyers filed a motion to reinstate

the Clients’ underlying case in District Court, arguing Mexico would not accept

jurisdiction over the cases. Resp. Tab 1, p. 10.

The District Court denied the Lawyers’ attempt to re-file the cases in Texas

and exposed their lack of good faith in great detail, noting the Lawyers “filed

some, but not all, of the cases dismissed by Judge Ward in Mexico.” Pet. Tab 7, p.

9. Judge Crone continued, “Because counsel made no attempt to litigate those

cases in Mexico in compliance with the court’s Memorandum and Order, there is

no basis upon which to reopen them here.” Id. Therefore, with regard to all of the

5

underlying cases, save and except the eleven that were refiled in Mexico, the

Clients allege the Lawyers grossly failed to litigate diligently and in good faith

thereby invalidating the waiver of the statute of limitations. Resp. Tab 1, p. 11. The

Clients also allege the waivers were invalid under both Texas and Mexican law

because they were indefinite and not specific. Id. Additionally, at this late date, any

new filing in Mexico would be untimely.

With regard to the eleven cases that were refiled in Mexico, the District

Court found that the Lawyers simply “did not prosecute the cases in good faith.”

Pet. Tab 7, p. 9. Thus, on May 14, 2014, as a direct and proximate result of the

Lawyers’ negligence, the District Court dismissed the Clients’ underlying lawsuits.

Id. at p. 11-15. Because the Lawyers failed to follow the District Court’s

reinstatement requirements, the District Court placed an additional burden on the

Clients, stating the Clients could “not seek reinstatement in [the District 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.” Id. at p. 15 (emphasis added).

Several months after the dismissal, Kurt Arnold sent out deceitful

withdrawal letters wherein he attempted to conceal and downplay the significance

of the Lawyers’ malfeasance and abandoning the Clients. Resp. Tab 2, Ex. D. The

one bit of truth contained within these letters was Mr. Arnold’s recognition of the

6

unlikelihood of the cases being reinstated in the United States: “I think the chances

of the Court accepting the jurisdiction for these cases even after following all steps

[and refiling the cases in Mexico] is remote.” Resp. Tab 2, Ex. D. This statement

by Mr. Arnold is accurate and comports with the Clients’ allegations (supported by

expert testimony) that any claim now filed in Mexico would be dismissed on

limitations grounds because the waivers became invalid and unenforceable when

the Lawyers failed to timely refile the cases in Mexico and litigate these cases

diligently and in good faith. Resp. Tab 1, p. 11. Accordingly, the Clients’ pleadings

and the Lawyers’ admissions establish that the waivers and stipulations are of no

consequence at this late date and, as a result, the Clients’ underlying claims are

forever barred in both the United States and Mexico. Id.; See also Resp. Tab 3, at

Ex. A, p. 11-13.

B. PROCEDURAL BACKGROUND.

The Lawyers filed (or joined in) various Pleas to the Jurisdiction, and, in the

Alternative, Pleas in Abatement (the “Pleas”) arguing the underlying case was not

yet concluded and seeking to dismiss or abate this case until the underlying claims

were resolved. The Clients disputed this issue of fact, arguing the underlying

claims were “concluded” and that the Clients underlying claims could not now be

refiled in Mexico due to the Lawyers’ negligence. Resp. Tab 2 and 3. The Clients

also responded by arguing (and proving through expert testimony) that, even if the

7

claims could be refiled in Mexico, the Clients suffered injury when the Lawyers

negligently allowed the Clients’ United States cases to be dismissed on forum non

conveniens grounds as litigating in Mexico hinders the Clients’ ability to pursue

their claims. Resp. Tab 3. On September 17, 2015, the trial court agreed with the

Clients and signed an order simply denying the Lawyers’ Pleas. Resp. Tab 4.

The Lawyers subsequently filed (or joined in) Motions for Permission to File

Interlocutory Appeals moving the trial court to amend the original order to comply

with the requirements of section 51.014(d) of the Texas Civil Practice & Remedies

Code. The Clients opposed this request. Resp. Tab. 5. At the hearing on the

motion, the trial court noted that its September 17, 2015 Order did not rule on any

controlling question of law, stating: “I agree with you. I am not even sure what the

issues are.” Resp. Tab 5, p. 12. The trial court was very candid in expressing its

concern about the validity of a permissive appeal due to the complexity of the

factual issues involved:

I kind of doubt also this is the sort of thing they had in mind because

of the multiplicity of the issues and how complex it is. To say that

there is some central narrow controlling legal issue that can be

determined here that is outcome determinative, I think that is wishful

thinking. I think that is probably the response you are going to get

from [the court of appeals].

Id. at p. 10. The trial court further expressed that it is not possible to generalize

what the controlling issues are in this case because there are so many issues

8

involved with the Pleas. Id. at p. 12. Nonetheless, the trial court granted the

Lawyers’ request to file a permissive appeal even though it “had [its] doubts” with

regard to the validity of such appeal, stating “[l]et’s see what the court of appeals

thinks if [the Lawyers] are correct or not.” Id. Thus, on November 9, 2015, the trial

court entered an amended order attempting to comply with section 51.014(d) and

identifying the “controlling question of law” as “[w]hether this case, as pleaded by

the plaintiffs, is ripe for adjudication.” Pet. Tab 1, p. 2.

The Lawyers’ filed this Petition on November 24, 2015. The Lawyers have

concurrently filed a Petition for Writ of Mandamus that is pending before this

Honorable Court wherein they assert an identical argument.2 Not only should the

Petition be dismissed because the Lawyers’ mandamus is currently pending before

this Court, but the Lawyers have failed to demonstrate their right to a permissive

appeal.

2

See Cause No. 15-00990-CV; In re Arnold & Itkin, LLP, et al.; In the First Court of Appeals of

Texas, at Houston.

9

ARGUMENT

A. THE PETITION SHOULD BE DENIED BECAUSE THE LAWYERS

HAVE ALSO FILED A MANDAMUS.

This Honorable Court has recognized that a permissive appeal is

inappropriate when, as here, the issues are raised in connection with a petition for

writ of mandamus. See Warren v. Weiner, 2015 Tex. App. LEXIS 8148, at *1

(Tex.App. – Houston [1st Dist.] Aug. 4, 2015, no pet.). Although not articulated in

Warren, the rationale for such a holding is likely premised on the notion that

“[s]ubsection (d) was added to Section 51.014 to promote judicial efficiency.” In

re Estate of Fisher, 421 S.W.3d 682, 685 (Tex. App.—Texarkana 2014, no pet.);

Gulley v. State Farm Lloyds, 350 S.W.3d 204, 207-208 (Tex. App.—San Antonio

2011, no pet.). Requiring the parties to brief and this Court to consider identical

issues in two separate appellate proceedings does not “promote judicial efficiency”

and, therefore, the Petition should be denied. See Warren, 2015 Tex. App. LEXIS

8148, at *1; See also In re Estate of Fisher, 421 S.W.3d at 685-686 (“Here, judicial

economy will not be served if permissive appeal is allowed at this stage, since an

unhappy party is free to appeal the order which would be expected to result soon

from the court's summary judgment ruling…”).

10

B. THE PETITION SHOULD BE DENIED BECAUSE THE TRIAL COURT

DEFERRED ITS RULING ON WHETHER THE LEGAL ISSUE IS

CONTROLLING TO THIS COURT.

The Lawyers contend that the “controlling question of law” or “The Issue”

to be appealed is “[w]hether this case, as pleaded by the Clients, is ripe for

adjudication.” Pet. Mot., p. 10. Importantly, however, the trial court never found

this issue to be controlling. Pet. Tab 1, p. 2 (“The Court is uncertain about the

meaning of a controlling issue of law for purposes of section 51.0149(d), but

believes that The Issue may be controlling.”)(emphasis added). The uncertainty

reflected in the trial court’s order is further highlighted by the transcript from the

hearing on the Lawyers’ motion to file a permissive appeal wherein the trial court

stated that its order denying the Lawyers’ Pleas did not rule on any controlling

question of law.3 Resp. Tab 5, p. 12 (“I agree with you. I am not even sure what the

issues are.”). Rather, the trial court merely deferred a ruling on the legal issue to

this Court. Id. (“Let’s see what the court of appeals thinks if [the Lawyers] are

correct or not.”).

The trial court’s deferral of ruling on any substantive legal issues deprives

this Court of jurisdiction. See Vestalia, Ltd. v. Taylor-Watson, No. 01-15-00332-

CV, 2015 Tex. App. LEXIS 6249, 2015 WL 3799505, at *2 (Tex. App.—Houston

[1st Dist.] June 18, 2015, no pet.) (mem. op.)(denying petition for permissive

3

This transcript, of course, was omitted from the Lawyers’ record.

11

appeal when, among other things, “the trial court did not rule on a controlling

question of law…”); See also Great Am. E & S Ins. Co. v. Lapolla Indus., Inc., No.

01-14-00372-CV, 2014 Tex. App. LEXIS 6746, 2014 WL 2895770, at *2 (Tex.

App.—Houston [1st Dist.] June 24, 2014, no pet.) (mem. op.); See also Gulley, 350

S.W.3d at 207 (“[w]e have found no reported case in which 51.014(d) was used in

this manner to present an intermediate court of appeals with a ‘controlling legal

question’ prior to the trial court making a substantive ruling on the legal issue.”).4

Thus, the Petition should be denied. See Id.

C. THE PETITION SHOULD BE DENIED BECAUSE THE ISSUE TO BE

APPEALED IS NOT A CONTROLLING LEGAL ISSUE ABOUT WHICH

THERE IS A SUBSTANTIAL DIFFERENCE OF OPINION.

“There has been little development in the case law construing section

51.014 regarding just what constitutes a controlling legal issue about which there is

a difference of opinion and the resolution of which disposes of primary issues in

the case.” Gulf Coast Asphalt Co., L.L.C. v. Lloyd, 457 S.W.3d 539, 544 (Tex.

App.—Houston [14th] 2015, no pet.). Nonetheless, the Fourteenth Court of

Appeals, citing to applicable legal treatises, has stated:

[A] controlling question of law is one that deeply affects the ongoing

process of litigation. If resolution of the question will considerably

shorten the time, effort, and expense of fully litigating the case, the

question is controlling. Generally, if the viability of a claim rests upon

4

For reasons not present in this case, the court in Gulley held that the statutory requirements for

an agreed interlocutory appeal technically were met and it had jurisdiction over the appeal. See

Gulley, 350 S.W.3d at 208, n.2.

12

the court’s determination of a question of law, the question is

controlling

Id. at 544-545. The Lawyers have failed to establish this first element.

The Lawyers argue that the trial court’s denial of their Pleas was a ruling on

a controlling legal issue for which an immediate appeal may advance the ultimate

termination of litigation because the trail court’s ruling dealt with jurisdiction. Pet.

Mot., at p. 11. The Lawyers’ logic is flawed. There is no doubt that jurisdiction is

necessary in order for any court to entertain litigation of any kind. However, only

specific interlocutory orders regarding jurisdiction are immediately appealable.

See TEX. CIV. PRAC. & REM. CODE § 51.014(a). Otherwise, Texas law is clear:

appeals may only be taken from final judgments. Lehmann v. Har-Con Corp., 39

S.W.3d 191, 195 (Tex. 2001).

The only “legal issue” that the trial court ruled on was “whether this case, as

pleaded by plaintiffs, is ripe for adjudication.” Pet. Tab 1, at p. 2. Although it is

true that the trial court, at the request of the Lawyers, amended its original order

merely denying the Pleas, the amendment is of no consequence because the

amended order failed to provide a basis for the denial. Pet. Tab 1. “When a trial

court in its order … provides no basis for its denial, the trial court fails to make [a]

substantive ruling on the controlling question of law sought to be appealed.”

Vestalia, 2015 Tex. App. LEXIS 6249 at *1-2. In Vestalia, this Court denied a

13

petition for permissive appeal even though the trial court’s order stated that it

“involve[d] questions of law as to which there is a substantial ground for difference

of opinion” and listed the questions because the trial court merely denied the

summary judgment motion without explanation. Id. at *2. Just as in Vestalia, the

trial court wholly failed to explain the reason for the denial and thus, the Petition

should be denied. See also Warren, 2015 Tex. App. LEXIS 8148, at *1 (mere

denial of a plea to the jurisdiction insufficient to warrant permissive appeal

because such orders do not involve controlling questions of law as to which there

are substantial grounds for difference of opinion).

Furthermore, there exist disputed questions of fact which render a

permissive appeal inappropriate. The question of whether the Clients’ underlying

claims are actually barred from being refiled in Mexico is the proximate cause

element of the Clients’ negligence claim and is a question of fact for the jury to

decide. See Alexander v. Turtur & Assocs., 146 S.W.3d 113, 122 (Tex. 2004)

(requiring fact finder to decide what a judge would have decided in the underlying

case under hypothetical circumstances). Likewise, mitigation of damages is a

defensive issue upon which the Lawyers bear the burden of proof at trial and is

generally a question of fact. See Texas Animal Health Com’n v. Garza, 27 S.W.3d

54, 62 (Tex. App.—San Antonio 2000, pet. denied). These unresolved factual

issues preclude a permissive appeal.

14

In Fertitta Hospitality, LLC v. O'Balle, 2014 Tex. App. LEXIS 12141

(Tex.App. – Houston [1st Dist.] Nov. 6, 2014, no pet.), this Court held that a

permissive appeal of a denial of a summary judgment was inappropriate “[b]ecause

the parties ha[d] identified neither a controlling legal principle nor an agreed set

of facts[.]” Id. at *10 (emphasis added). The facts of this case are heavily in

dispute: the Lawyers have an unsupported belief that the Clients can refile their

underlying claims in Mexico whereas the Clients believe – and have provided

expert testimony to support the fact that – their underlying claims cannot be refiled

in Mexico and are barred by limitations. Without an undisputed or agreed set of

facts, a permissive appeal is inappropriate. See Id.; See also Borowski v. Ayers, 432

S.W.3d 344, 348 (Tex. App.—Waco 2013, no pet.)(dismissing permissive appeal

of denial of summary judgment motion because factual issues were in dispute); See

also King-A Corp. v. Wehling, No. 13-13-00100-CV, 2013 Tex. App. LEXIS 2761,

at *8-9(Tex. App.—Corpus Christi Mar. 14, 2013, no pet.) (mem. op.)(dismissing

permissive appeal on issue of whether party exercised due diligence in securing

service of process because this is generally a question of fact); See also Diamond

Prods. Int’l., Inc. v. Handsel, 142 S.W.3d 491, 494 (Tex. App.—Houston [14th

Dist.] 2004, no pet.) (“The statute does not contemplate permissive appeals of

summary judgments where the facts are in dispute”).

15

Moreover, whether the Clients’ claims are ripe under the disputed facts

plead by the Clients is not a legal question that is subject to 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[.]”

Lloyd, 457 S.W.3d at 544-545. In an effort to contort the question presented into a

“novel” or “difficult” one, the Lawyers argue that the “issue presented” is “whether

dismissal on forum non conveniens grounds in favor of Mexico conditioned on a

limitations waiver and with a return jurisdiction clause represents the accrual of an

injury for purposes of a legal malpractice claim.” Pet. Mot., at p. 11. Yet, this was

not the question ruled upon by the trial court. Rather, the question was simply

“whether this case, as pleaded by plaintiffs, is ripe for adjudication.” Pet. App. Tab

1, at p. 2. This is not a “novel or difficult” question the resolution of which will

further Texas jurisprudence. Likewise, the courts of appeals are not struggling or in

conflict with one another to determine the ripeness of the Clients’ claims. Simply

put; there is nothing “novel” or “controlling” about the trial court’s denial of the

Lawyers’ Pleas and, therefore, the Petition should be dismissed.

16

D. THE PETITION SHOULD BE DENIED BECAUSE AN IMMEDIATE

APPEAL WILL NOT MATERIALLY ADVANCE THE ULTIMATE

TERMINATION OF THE LITIGATION BUT WILL LEAD TO JUDICIAL

INEFFICIENCY.

The second element of the statute requires the Lawyers to show that “an

immediate appeal from the order may materially advance the ultimate termination

of the litigation.” TEX. CIV. PRAC. & REM. CODE. § 51.014(d)(emphasis added).

“Generally, a district court will make a finding that the appeal will facilitate final

resolution of the case when resolution of the legal question dramatically affects

recovery in a lawsuit.” Lloyd, 457 S.W.3d at 544-545 (emphasis added)(internal

brackets omitted). While a ruling on the Pleas may be “important” to the Lawyers,

“it does not dispose of controlling issues in the case.” See Lloyd, 457 S.W.3d at

545. Rather, a ruling on the Lawyers’ Pleas – which sought to either dismiss or

abate this lawsuit pending the Clients filing and litigating their claims in Mexico

through exhaustion of all appeals – will merely postpone and delay this litigation,

not terminate it. Indeed, abatement, by definition, means “to cause to cease for a

time; to postpone; to stay, delay, or hinder; to discontinue temporarily, but with an

expectation or purpose of resumption.” America Online, Inc. v. Williams, 958

S.W.2d 268, 272 (Tex. App. – Houston [14th Dist.] 1997, no pet.)(emphasis

added).

17

Judicial economy will not be served if a permissive appeal is allowed

because the Lawyers will be delaying the inevitable malpractice suit as well as

creating three other judicial proceedings: (1) the permissive appeal relating to the

trial court’s denial of the Pleas; (2) the mandamus proceeding relating to the trial

court’s denial of the Pleas; and, if either are successful; (3) another lawsuit in

Mexico plus numerous appeals of any decision. Whatever the outcome, however,

the Clients’ claims against the Lawyers will remain relating to the failure to

properly respond to the forum non conveniens motions which caused the Clients to

have to refile the claims in Mexico in the first instance.

More specifically, the Clients contend that, due to the Lawyers’ negligence,

the underlying court granted the forum non conveniens motion and required the

Clients to file their claims in Mexico, where, even if the claims are not barred, they

are now faced with virtually non-existent discovery, no procedural protections,

extensive delays to any resolution and the unlikelihood of any attorney taking their

case. Resp. Tab 1 and Tab 3, at Ex. A. The lost benefit of pursuing their claims in a

United States court is at least some “concrete injury” which has already occurred

and is not contingent on any future event, thereby rendering these claims ripe. See

Vanderweyst, 2003 Tex. App. LEXIS 8549, at *14-15 (lost opportunity found to

constitute injury sufficient to demonstrate ripeness even if other damages were

speculative, holding “[t]he loss of that benefit, whatever it may ultimately be

18

determined to be worth, constitutes the first of [the plaintiff’s] pled injuries.”).

Accordingly, a ruling on the Lawyers’ proposed legal question will not terminate

this litigation because the Clients will still have claims against the Lawyers for

these damages and thus, the Petition should be denied. See Lloyd, 457 S.W.3d at

545 (dismissing permissive appeal because trial court’s ruling on summary

judgment only affected “one facet” of the client’s malpractice claim); See also In

re Estate of Fisher, 421 S.W.3d at 686 (denying permissive appeal because “[t]he

parties may also have the opportunity to appeal other future orders that adjudicate a

substantial right and end various phases of the probate proceeding.”).

CONCLUSION & PRAYER

For these reasons, the Clients request this Honorable Court to deny the

Lawyers’ Petition for Permission to Appeal Interlocutory Order and grant the

Clients all other relief to which they may be entitled.

19

Respectfully submitted,

THE KASSAB LAW FIRM

/ s / David Eric Kassab

LANCE CHRISTOPHER KASSAB

Texas State Bar No. 00794070

lck@texaslegalmalpractice.com

DAVID ERIC KASSAB

Texas State Bar No. 24071351

dek@texaslegalmalpractice.com

1420 Alabama

Houston, Texas 77004

t. 713.522.7400

f. 713.522.7410

DOHERTY✯WAGNER

/ s / Brett Wagner

BRETT WAGNER

Texas State Bar No. 20654270

brett@dwlawyers.com

LARRY JOE DOHERTY

Texas State Bar No. 05950000

larry@dwlawyers.com

RYAN W. SMITH

Texas State Bar No. 24063010

ryan@dwlawyers.com

13810 Champion Forest Drive, Suite 225

Houston, Texas 77069

t. 281 583-8700

f. 281 583-8701

ATTORNEYS FOR RESPONDENTS

20

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that

this motion/response contains approximately 4,487 words excluding the allowable

items set forth in Texas Rule of Appellate Procedure 9.4(i)(1). This is a computer-

generated document created in Microsoft Word 2010, 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.

Dated: December 3, 2015

/ s / David Eric Kassab

David Eric Kassab

21

CERTIFICATE OF SERVICE

The undersigned certifies that on December 3, 2015, the foregoing response

was served electronically on the following parties in accordance with the

requirements of the Texas Rules of Appellate Procedure:

Reagan W. Simpson Jeremy L. Doyle

State Bar No. 18404700 State Bar No. 24012553

rsimpson@yettercoleman.com jdoyle@reynoldsfrizzell.com

YETTER COLEMAN LLP REYNOLDS FRIZZELL LLP

909 Fannin, Suite 3600 1100 Louisiana, Suite 3500

Houston, Texas 77010 Houston, Texas 77002

Tel. 713-632-8000 Tel. 713-485-7200

Fax 713-632-8002 Fax 713-488-7250

Counsel for Petitioners Counsel for Petitioners

Beck Redden LLP, Arnold & Itkin, L.L.P.,

Russell Post, Fields Kurt Arnold, Cory Itkin

Alexander and Jas Brar and Jason Itkin

Billy Shepherd Sam Houston

State Bar No. 18219700 State Bar No.10059550

bshpeherd@spmlegal.com shouston@sschlaw.com

SHEPHERD PREWETT MILLER PLLC SCOTT, CLAWATER & HOUSTON L.L.P.

770 South Post Oak Lane 2777 Allen Parkway, 7th Floor

Suite 420 Houston, Texas 77019-2133

Houston, Texas 77056 Tel. 713-650-6600

Tel. 713-955-4440 Fax 713-766-6542

Fax +1 713-766-6542 Counsel for Petitioners Arnold &

Counsel for Petitioners Itkin,

Albritton Law Firm and L.L.P., Kurt Arnold, Cory Itkin and

Eric Albritton Jason Itkin

22

John Black

State Bar No. 24012292

jblack@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 Itkin

/ s / David Eric Kassab

David Eric Kassab

23

VERIFICATION

STATE OF TEXAS §

COUNTY OF HARRIS §

BEFORE ME, the undersigned notary, on this day, personally appeared

David Eric Kassab, a person whose identity is known to me. After I administered

an oath to him, upon his oath, he said:

"My name is David Eric Kassab. I am one of the attorneys for Plaintiffs in

the trial court and in this appeal. All pleadings, motions, order(s), and/or other

documents attached to the Appendix of Plaintiffs-Respondents' Motion to Dismiss

for Lack of Appellate Jurisdiction and Response to Petitioners' Petition for

Permission to Appeal are true and correct copies of documents filed with, or

obtained from, the trial court."

SUBSCRIBED AND SWORN TO BEFORE ME by David Eric Kassab, on

this the 3rdday of December, 2015.

My commission expires:

No. 01-15-00989-CV

_________________________________________

IN THE

FIRST COURT OF APPEALS

at Houston

______________________________________________

ARNOLD & ITKIN, LLP, ET AL.

Petitioners,

v.

MARIA SANTOS LOPEZ DOMINGUEZ, ET AL.

Respondents,

______________________________________________

Trial Court Cause Number 2015-28543

From the 11th Judicial District Court of Harris County, Texas

______________________________________________

RESPONDENTS’ APPENDIX

______________________________________________

INDEX OF APPENDIX

TAB NUMBER DOCUMENT

1 Plaintiffs’ Second Amended Petition

2 Plaintiffs’ Response to All Defendants’ Plea to the

Jurisdiction, and, In the Alternative, Plea in Abatement

3 Plaintiffs’ Sur-Reply to All Defendants’ Plea to the

Jurisdiction, and, In the Alternative, Plea in Abatement

4 September 17, 2015 Order Denying Defendants’ Plea to

the Jurisdiction, and, In the Alternative, Plea in Abatement

5 October 19, 2015 Transcript of Status Conference on

Defendants’ Motion for Permission to File Interlocutory

Appeal

Appendix Tab 1

CAUSE NO. 2015-28543

MARIA SANTOS LOPEZ DOMINGUEZ, § IN THE DISTRICT COURT

INDIVIDUALLY AND AS NEXT FRIEND §

OF KAREN MARIEN ANDRADE LOPEZ, §

MAIRET SAMELI ANDRADE LOPEZ §

AND IMAR GERARDO ANDRADE LOPEZ §

ON BEHALF THE ESTATE OF OMAR §

GERARDO ANDRADE LOPEZ, ET AL §

§

V. § OF HARRIS COUNTY, TEXAS

§

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 § 11TH JUDICIAL DISTRICT

PLAINTIFFS’ SECOND AMENDED PETITION

AND REQUEST FOR DISCLOSURE

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW Plaintiffs, 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 Navarrete; 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; and Miguel Cobos Salas

complaining of Defendants, 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 would respectfully show as follows:

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 1 OF 20

I

DISCOVERY CONTROL PLAN

Based upon this Petition, this case should be controlled by discovery control plan Level 3

pursuant to the Texas Rules of Civil Procedure, Rule 190.4. Plaintiffs seek monetary relief over

$1,000,000.00.

II

PARTIES

Plaintiff, 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 is a resident of Mexico.

Plaintiff, Gabriel Gonzalez Toral is a resident of Mexico.

Plaintiff, Jorge Arturo Jimenez Rangel is a resident of Mexico.

Plaintiff, Antonio Montero Hernandez is a resident of Mexico.

Plaintiff, Juan Antonio Palafox Navarrete is a resident of Mexico.

Plaintiff, Leonel Fernandez Rivera is a resident of Mexico.

Plaintiff, Fernando Augusto Cervera Ramirez is a resident of Mexico.

Plaintiffs, 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 is a resident of Mexico.

Plaintiff, Pastor Garcia Ocana is a resident of Mexico.

Plaintiff, Jorge Guzman Martinez is a resident of Mexico.

Plaintiff, Aldo Antonio Lopez Lorenzo and Monica Lopez are residents of Mexico.

Plaintiff, Miguel Cobos Salas is a resident of Mexico.

Defendant, Arnold & Itkin, L.L.P., is a Texas Limited Liability Partnership formed for

the practice of law and has answered herein.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 2 OF 20

Defendant, Beck Redden, L.L.P., is a Texas Limited Liability Partnership formed for the

practice of law and has answered herein.

Defendant, Albritton Law Firm is a law firm located in Longview, Texas and has

answered herein.

Defendant, Kurt Arnold, is an individual residing in and/or doing business in Harris

County, Texas and has answered herein.

Defendant, Jason Itkin, is an individual residing in and/or doing business in Harris

County, Texas and has answered herein.

Defendant, Cory Itkin, is an individual residing in and/or doing business in Harris

County, Texas and has answered herein.

Defendant, Russell Post, is an individual residing in and/or doing business in Harris

County, Texas and has answered herein.

Defendant, Jas Brar, is an individual residing in and/or doing business in Harris County,

Texas and has answered herein.

Defendant, Eric Albritton, is an individual residing in and/or doing business in Gregg

County, Texas and has answered herein.

III

JURISDICTION AND VENUE

This Court has subject matter jurisdiction over the controversy because the claims

asserted in this Petition arose, in whole or in part, in Texas and the amount in controversy

exceeds the minimum jurisdictional limits of this Court.

This Court has personal jurisdiction over each Defendant because the acts and omissions

complained of herein occurred in Texas, each Defendant does and/or did do business in the State

of Texas, has committed a tort, in whole or in part in Texas, is a resident and citizen of Texas,

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 3 OF 20

and/or has minimum contacts with the State of Texas during the period of time complained of

herein.

Venue is properly laid in the Harris County, Texas because Defendant, Arnold & Itkin,

LLP has a principal office and headquarters in Harris County, Texas. See TEX. CIV. PRAC. &

REM. CODE § 15.002(a)(3). All other Defendants jointly represented Plaintiffs in the underlying

case and are responsible for each other’s conduct. Because the claims and causes of action

against all other Defendants arise out of the same transaction, occurrence, or series of

transactions or occurrences, the Court has venue for all Defendants. See TEX. CIV. PRAC. & REM.

CODE § 15.005.

IV

FACTUAL BACKGROUND

This is a legal malpractice case arising out of a grossly tragic, yet entirely avoidable

mobile off-shore platform accident which took place off the Bay of Campeche, Mexico in

October of 2007. The accident caused the death of twenty-two workers and injured sixty-three

more. After the explosion, Plaintiffs were herded by the lawyers to sue the various American and

Mexican oil companies responsible. Unfortunately, the lawyers, after filing the lawsuits, were

found by the court to have failed to “prosecute the cases in good faith” thereby causing the cases

to be dismissed. With the statute of limitations lapsed and unwaivable under Mexico law, the

cases are forever barred to being refiled. In the end, the fatal negligence of the lawyers deprived

these Plaintiffs of their right to seek redress for the injuries and deaths they sustained. The

disastrous series of events is as follows.

A. THE ACCIDENT

Plaintiffs Maria Santos Lopez Dominguez, et al. (“Plaintiffs”) are offshore oilfield

workers (or the surviving representatives of oil field workers) who were working on the mobile

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 4 OF 20

drilling rig, Usumacinta located in the Bay of Campeche, Mexico in October 2007. On October

23, 2007, a storm entered the Bay of Campeche, causing the Usumacinta to strike a stationary

platform next to which the Usumacinta had been anchored. An oil and gas leak was detected in

one of the wells, however, a defective safety valve failed to seal off the leak resulting in a release

of poisonous gases necessitating the evacuation of the platform. As a result, twenty two offshore

workers (including two rescuers) died and sixty three others were injured. Plaintiffs were among

those injured and/or survivors of those killed in the tragedy.

B. THE IMPROPER SOLICITATION.

On information and belief, Plaintiffs were illegally and unethically contacted via

telephone by an individual claiming to be a representative of a law firm (the “runner”) shortly

after the incident. The runner told some of the Plaintiffs that the law firm was interested in

representing them against the American companies responsible for the faulty valve and

ultimately the incident and their injuries. The runner advised some of the Plaintiffs to recruit

others to be solicited by the law firm for representation. The runner then met with other

Plaintiffs to solicit them into hiring the attorneys.

C. THE UNDERLYING LAWSUIT

Thereafter, Plaintiffs, either individually or collectively, retained Defendants Arnold &

Itkin, L.L.P., Kurt Arnold, Cory Itkin, Jason Itkin, (“Defendants” or “Lawyers”) to represent

them in claims against the parties responsible for causing the injuries and deaths. Thereafter,

Eric Albritton and the Albritton Law Firm (“Albritton Defendants”) were enlisted as local

counsel to represent the Plaintiffs. Beck Redden, L.L.P., Russell Post, Fields Alexander and Jas

Brar (“Beck Defendants”) were also enlisted to represent Plaintiffs with regard to the attempt to

reinstate Plaintiffs’ cases in the United States.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 5 OF 20

Beginning in October of 2008, Defendants, on behalf of Plaintiffs, filed various lawsuits

in the United States Federal District Court for the Eastern District of Texas, Lufkin Division (the

“District Court”) seeking actual and punitive damages against an individual Glen Carter and a

number of Mexican and American companies including Gulf Coast Marine & Associates, Inc.,

Schlumberger Technology Corporation, Halliburton Energy Services, Inc. and Matthews-Daniel

Company (the “underlying lawsuit”).

In the underlying lawsuit, the Lawyers alleged negligence, gross negligence, products

liability, and wrongful death claims. These Texas corporate defendants were responsible for

making policy, safety, corporate, manufacturing, supervision, and design decisions, in their

United States headquarters, that directly affected the events relevant in the underlying lawsuit.

More specifically, Defendants, on Plaintiffs’ behalf, alleged the underlying defendants breached

their duties by negligently failing to provide a safe working environment, accurate weather

information, proper supervision, proper equipment that was in good repair; accurate information

as to soil conditions and platform placement; and failing to timely engage in rescue efforts,

among other claims. Defendants, on Plaintiffs’ behalf, alleged that Schlumberger and Halliburton

were liable for strict products liability for defective design and manufacture of the safety valves

and/or sensors that failed in the underlying incident. Even more specifically, Defendants alleged

that the valve design defect posed an unreasonably dangerous rate of fouling, a process leading

to the buildup of solids which creates a false seal that erodes with time, significantly increasing

the risk of a perilous and incessant oil and gas leak. Defendants also alleged that products in

question contained inadequate warnings. Defendants alleged that these product defects rendered

the offending products unreasonably dangerous and, therefore, Schlumberger and Halliburton

were liable for all damages caused thereby without regard to fault. These claims were based on

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 6 OF 20

Texas state law, general federal or international maritime law, including the Jones Act, and

Mexican law.

The District Court dismissed Plaintiff’s state law claims with prejudice, finding that they

were preempted by the Jones Act. In addition, the District Court dismissed Plaintiff’s federal

maritime claims because the Lawyers negligently failed to allege that there was no available

remedy in Mexico, as required to pursue a federal maritime claim under the Jones Act. Thus, due

to the negligence of the Lawyer Defendants, including the Albritton Defendants, the only claims

remaining were Plaintiff’s Mexican claims for civil liability and moral damages.1

The District Court, on September 15, 2010, consolidated the underlying lawsuit with six

other lawsuits filed by other plaintiffs and a number of other law firms for the purpose of

briefing and deciding the forum non conveniens issue which was common to each case. More

specifically, the defendants in the underlying lawsuit argued that because the underlying events

arose out of the collision of a mobile drilling rig and oil platform in Mexico territorial waters,

and because the plaintiffs were all Mexican residents and employed by Mexican companies,

Mexico was the appropriate forum to hear the dispute. More importantly however, the

underlying defendants argued that since the only remaining claims were brought under Mexican

law, Mexico was an appropriate and adequate forum. The underlying defendants argued that

Mexico was an adequate forum because they would waive any statute of limitations and agree to

submit themselves to jurisdiction in Mexico.

In response, the Lawyers, including the Albritton Defendants, merely argued that all of

the underlying defendants were U.S. companies or citizens and, therefore, the documents and

witnesses regarding liability were located in the United States. However, the Defendants, the

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 7 OF 20

Albritton Defendants and the Beck Defendants wholly failed to argue, among other things, that

Mexico was not an available forum because:

1. The waiver of the statute of limitations is invalid under Mexican law;

2. Mexico lacks jurisdiction over United States residents and the unilateral

consent by the underlying defendants does not create jurisdiction in

Mexico;

3. Plaintiff would not be voluntarily choosing the Mexican forum as required

under Mexican law; and

4. Mexico had lost any initial jurisdiction it ever had over the case after the

case was initially filed in the United States.

Additionally, all of the Defendants wholly failed to argue, among other things, that

Mexican courts were not adequate for adjudicating the case because:

1. Mexico does not have procedural safeguards to permit the Plaintiff to

develop his evidence; and

2. Proceedings in Mexico will not be concluded within a reasonable time

frame.

As discussed further below, had the foregoing substantive arguments been properly asserted by

all of the Defendants in the response to the forum non conveniens, the outcome of the underlying

case would have been different and the forum non conveniens would not have been granted by

the District Court thereby allowing Plaintiff’s claims to proceed forward in the chosen forum.

After a hearing on that motion on March 10, 2011, the District Court conditionally

granted the motion. The granting of the motion carried five crucial conditions to the survival of

Plaintiff’s claims:

1

Pursuant to Articles 500 and 502 of the Federal Labor Law in Mexico allows only approximately $9,500.00 U.S.

Dollars as compensation for civil liability in death cases. Moral damages in Mexico are equally inadequate to

compensate worker’s personal injuries.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 8 OF 20

1. Defendants agree to appear and submit themselves to the jurisdiction of a

Mexican federal or state court, waiving any jurisdictional defenses they

might normally possess;

2. Defendants agree to waive any statute of limitations defense that they did

not possess as of the date each of the seven cases was originally filed;

3. Defendants agree to submit to discovery in the Mexican forum in

accordance with the procedural rules of the Mexican court;

4. Defendants agree that they will make all relevant witnesses and documents

available in Mexico to the extent consistent with Mexican law;

5. Defendants further agree that they will make any employee witness

available for trial in Mexico to the extent consistent with Mexican law.

The order also carried with it a return jurisdiction clause stating that, “Should the courts

of Mexico refuse to accept jurisdiction of any of these cases for reasons other than Plaintiffs’

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.”

From February to May 2013, Defendants filed in Mexico only eleven (11) of the more

than eighty (80) original cases. The underlying defendants then challenged the Mexican court’s

jurisdiction due to Defendants failure to comply with the District Court’s Order. In what appears

to be part of Defendants’ sophomoric, jejune and grossly negligent trial strategy to have

Plaintiffs’ claims tried in Texas (where Defendants’ practice and reside) as soon as possible,

Defendants attempted to bypass the dictates of the District Court’s Orders. Specifically, the

Defendants did not make use of the stipulation to Mexican jurisdiction the underlying defendants

signed as part of the dismissal in the District Court or otherwise contest the underlying

defendant’s resistance to Mexican jurisdiction. Not surprisingly, the Mexican courts

immediately rejected jurisdiction of the cases.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 9 OF 20

Moreover, rather than appeal the dismissal for lack of jurisdiction to a higher Mexican

court, all of the Defendants simply filed a motion to reinstate the Plaintiffs’ case in District Court

on or about October 18, 2013. After extensive briefing, the District Court denied Defendants’

attempt to re-file the cases in Texas. In her May 14, 2014 memorandum opinion, Judge Marcia

Crone exposed Defendants’ fraud on the courts in great detail, noting that Defendants “filed

some, but not all, of the cases dismissed by Judge Ward in Mexico.” Judge Crone continued,

“Because counsel made no attempt to litigate those cases in Mexico in compliance with the

court’s Memorandum and Order, there is no basis upon which to reopen them here.” Therefore,

with regard to all of the underlying cases, save and except the eleven that were refiled in Mexico,

Defendants grossly failed to litigate diligently and in good faith.

With regard to the eleven cases that were refiled in Mexico, the District Court found that

Defendants simply “did not prosecute the cases in good faith.” Specifically, the District Court

found that Defendants (1) failed to properly inform the Mexican courts of the underlying

defendants’ stipulation to jurisdiction; (2) failed to properly inform the Mexican courts of Judge

Ward’s Orders dated April 20 and May 4, 2011; (3) failed to state in the complaints filed in

Mexico that the underlying defendants consented to jurisdiction; (4) failed to translate copies of

the stipulations or court orders for the Mexican court; and (5) failed to provide the Beaumont

Federal Court any copies of the original apostilled orders issued by Judge Ward or the

underlying defendants’ stipulations with markings confirming that the documents filed in the

Mexican courts were filed properly. Thus, on May 14, 2014, as a direct and proximate result of

the Lawyers’ gross malfeasance, the District Court dismissed the Plaintiffs’ underlying lawsuits.

With the accident and resulting injuries and deaths occurring in October of 2008, the

Plaintiffs’ underlying lawsuit may not be refiled in Mexico because it is now barred by

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 10 OF 20

limitations. Moreover, while the underlying defendants agreed to stipulate to jurisdiction in

Mexico and waive the statute of limitations, these stipulations and waivers were invalid under

Texas and Mexican law from the outset. See Sacks v. Four Seasons Hotel Ltd., 2006 U.S. Dist.

LEXIS 17768 at *18 (E.D. Tex. Mar. 7, 2006)(denying motion to dismiss under the doctrine of

forum non conveniens based, in part, on Mexican law experts testimony that “stipulations made

before a United States court to waive the Mexican statute of limitations are meaningless in

Mexico.”). The Lawyers, including all Defendants herein, wholly failed to raise these points in

response to various motions to dismiss. Had such evidence, arguments and authority been

presented, the District Court would not have dismissed the case and the case would have

remained in the Texas District Court. Moreover, and in the alternative, all Defendants failed to

appeal the District Court’s rulings based upon the above arguments and authority. Had this

appeal been undertaken, it would have been successful and the case would have remained in

District Court.

Furthermore, the waivers became invalid and unenforceable when the Lawyers, including

the Albritton Defendants, failed to comply with the initial March 10, 2011 order from the District

Court requiring the underlying lawsuits to be litigated and refiled in Mexico diligently and in

good faith. Accordingly, the waivers and stipulations are of no consequence. As a result,

Plaintiffs’ claims are forever barred in both the United States and Mexico.

Obviously, Defendants attempted to make jurisdiction in the United States as quickly as

possible no matter what the cost to their clients. This is demonstrated by the fact that the suits

were filed in Texas first rather than exhausting all remedies in Mexico. When that failed,

Defendants filed only eleven cases in Mexico rather than waste their time filing all of them in

Mexico. Even then, Defendants purposefully, intentionally and willfully sabotaged the cases so

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 11 OF 20

that the Mexican courts would quickly dismiss them for lack of jurisdiction, which is exactly

what they did. The obviousness of this failed strategy is underscored by the fact that Defendants

chose to file similarly-worded and woefully inadequate complaints even after receiving dismissal

orders from the Mexican courts for the first several cases instead of correcting the inadequacies

by expressly stating that Defendants had submitted to Mexico’s jurisdictions in writing.

To add insult to injury, after the May 14, 2014 dismissal, some of the Defendants sent

deceitful withdrawal letters to the Plaintiffs wherein they attempted to conceal and downplay the

significance of their actions and conceal their wrongdoing. Not only this, but to the extent the

decision of the District Court was erroneous, all Defendants neglected to appeal the decision of

the District Court or even advise the Plaintiffs of their rights to do so within the prescribed

period of time. As a result of all the Defendants’ grossly incompetent strategy, Plaintiffs were

left with no remedy for themselves or their loved ones who lost lives.

V

RESPONDEAT SUPERIOR

At all times material hereto, Defendants, including the Albritton Defendants represented

Plaintiffs in the legal matters described herein. Additionally, the Beck Defendants represented

Plaintiffs with regard to strategy and litigation related to the attempted reinstatement of

Plaintiffs’ cases in the United States. Thus, at all times material hereto all of the specific acts

complained of herein below are attributable to the conduct of the individual Defendants, who

were attorneys associated with their respective law firm Defendant, as a partner, agent, servant,

representative and/or employee. Thus, the liability and responsibility of the Defendants herein is

vicarious and joint and several, and, further, Plaintiffs plead the legal theory of respondeat

superior as between the individual Defendants and their respective law firms. Therefore, as

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 12 OF 20

Plaintiffs’ lawyers, Defendants, including the Albritton Defendants and the Beck Defendants

owed Plaintiffs fiduciary and other duties of care as a matter of law.

VI

STATEMENT OF CLAIMS

Therefore, it has become necessary to bring this suit to collect a legal debt of money

damages owing to Plaintiffs due to all of the Defendants’ conduct as listed above and below. All

the Defendants’ actions, either individually or in consert constitute negligence, gross negligence,

breach of fiduciary duty, fraud and constructive fraud as those terms are understood in law.

Defendants also violated section 32.45 of the Texas Penal Code (Misapplication of Fiduciary

Property).

A. NEGLIGENCE

It has become necessary to bring this suit to collect a legal debt of money damages owing

to Plaintiffs because of all of the Defendants’ negligence as that term is understood in law.

Specifically, Plaintiffs would show the following errors and/or omissions as to the conduct of

some or all Defendants in their legal representation of Plaintiffs:

1. Failure to properly represent Plaintiffs;

2. Failure to preserve Plaintiffs’ rights and interests;

3. Failure to make the proper arguments in response to the motions filed in

the District Court.

4. Failure to properly prosecute Plaintiffs’ causes of action in Mexican courts

in good faith;

5. Failure to properly advise and/or inform Plaintiffs regarding the benefits

and/or risks associated with the course of action taken by Defendants in

the prosecution of their claims;

6. Failure to timely and fully advise Plaintiffs as to the status of their claims;

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 13 OF 20

7. Failing to timely file suit against parties against whom Plaintiffs had

lawful claims;

8. Accepting representation for litigation for which Defendants were not

competent to handle;

9. Failing to fully comply with Judge Wards April 20 and May 4, 2011

Orders;

10. Failing to comply with the procedural laws of Mexico;

11. Failing to put forth sufficient evidence, argument and authority to the

District Court to establish that any waivers of limitations or stipulations to

jurisdiction by the underlying defendants would be invalid under Mexican

law thereby rendering Mexico an inadequate forum;

12. Conceding that Mexico is an available and adequate forum for the

adjudication of Plaintiff’s claims when it was not;

13. Failing to advise Plaintiffs of their right to appeal the decisions of the

District Court or undertaking this appeal within the proscribed period of

time; and

14. Failing to properly plead the Jones Act.

Of Course, nothing Plaintiffs did or failed to do caused or in any way contributed to

cause the occurrences which resulted in losses and damages. On the contrary, all of the

Defendants wholly failed and neglected to properly represent Plaintiffs, and their conduct was a

proximate and/or producing cause of Plaintiffs’ losses and damages.

B. GROSS NEGLIGENCE

The acts and omissions of all Defendants described herein constitute gross negligence for

which Plaintiffs now sue. All of the Defendants herein owed Plaintiffs a duty to render legal

services with the care, skill and diligence of an attorney of ordinary and reasonable skill and

knowledge. All of the Defendants failed to perform as an attorney of ordinary and reasonable

prudence to a gross extent. Moreover, some or all of the Defendants hold themselves out as

superior lawyers in ability and ethics, rising themselves to the status of an expert lawyer. In fact,

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 14 OF 20

some of the lawyer Defendants classify and market themselves as “Super Lawyers.” Thus, these

Lawyer Defendants are held to the expert lawyer standard. Unfortunately however, all of hte

Defendants’ incompetence, as shown by the way they handled the underlying case, does not even

rise to the level of an ordinarily prudent lawyer. All of the Defendants herein wholly failed to

even uphold this minimal standard of care. Instead, all of the Defendants chose to treat Plaintiffs

with an entire want of care, such that all of these Defendants’ actions constitute an actual

conscious disregard to the rights, welfare and safety of Plaintiffs. Thus, all of the Defendants’

negligence and gross negligence proximately resulted in legal damages for which Plaintiffs sue.

C. BREACH OF FIDUCIARY DUTY

An attorney client relationship existed between Plaintiffs and all Defendants herein.

Thus, all the Defendants owed Plaintiffs various fiduciary duties as a matter of law, including:

1. Duty to act with loyalty and utmost good faith;

2. Duty to act with absolute perfect candor, openness, and honesty, and

without any deception or concealment, no matter how slight;

3. Duty to refrain from self-dealing, which extends to dealings with persons

whose interests are closely identified with those of the fiduciary;

4. Duty to act with integrity of the strictest kind;

5. Duty of fair, honest dealing;

6. Duty of full disclosure; that is, a duty not to conceal matters that might

influence a fiduciary to act in a manner prejudicial to the principal;

7. Duty to represent Plaintiffs with undivided loyalty;

8. Duty to make a full and fair disclosure of every facet regarding the matters

material to the representation;

Some or all of the Defendants knowingly and intentionally breached any one or all of the

above fiduciary duties owed to Plaintiffs by the acts and omissions stated herein and above. All

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 15 OF 20

of the Defendants’ various breaches of the fiduciary duties owed to Plaintiffs resulted in legal

damages to Plaintiffs and/or a benefit to Defendants, for which Plaintiffs now sue.

D. FRAUD AND CONSTRUCTIVE FRAUD

Plaintiffs will show that the acts and omissions of some or all of the Defendants

constitute fraud in that: (i) Defendants made material misrepresentations (ii) Defendants made

the misrepresentations (and/or non-disclosures) with knowledge of its falsity or made them

recklessly without any knowledge of the truth and as a positive assertion; (iii) the

misrepresentations (and/or non-disclosures) were made with the intention that they should be

acted and/or relied upon by Plaintiffs; and (iv) Plaintiffs relied on the misrepresentations (and/or

non-disclosures) and suffered injury. Specifically, Defendants represented they would follow the

District Court’s Orders and litigate in good faith by re filing the underlying suits in Mexico and

by exhausting all remedies in Mexico prior to reopening the cases in the United States.

Defendants had no intention of following the District Court’s Orders, nor litigate in good faith in

Mexico as outlined above. Plaintiffs relied on these Defendants misrepresentations and/or lack

thereof to their detriment. This was not only a fraud perpetrated against Plaintiffs, the Lawyers

own clients, but was a fraud upon the Court as well.

E. MISAPPLICATION OF FIDUCIARY PROPERTY

Defendants herein violated section 32.45 of the Texas Penal Code (Misapplication of

Fiduciary Property). Pursuant to section 32.45, a violation occurs when a fiduciary intentionally,

knowingly or recklessly misapplies property he holds as a fiduciary in a manner that involves

substantial risk of loss to the owner of the property or to a person for whose benefit the property

is held. These Defendants owed a fiduciary duty to Plaintiffs as a matter of law. Further,

Plaintiffs’ underlying lawsuit was considered “property” as that term is understood in law and

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 16 OF 20

was held in these Defendants’ safe keeping. These Defendants intentionally, knowingly or

recklessly misapplied Plaintiffs’ property (1) by attempting to bypass Mexican procedural law;

(2) by failing to follow the simple dictates of Judge Ward’s Orders; (3) by not diligently

prosecuting Plaintiffs’ claims; (4) by failing to argue that Mexican law does not recognize

stipulations made in other jurisdictions; and (5) by failing to appeal Judge Ward’s April 20 and

May 4, 2011 Orders. Clearly, such conduct involved a substantial risk of loss to Plaintiffs’

property, and in fact, such property was lost due to Defendants’ actions. Therefore, Defendants

violated section 32.45 of the Texas Penal Code. Moreover, pursuant to Civil Practice and

Remedies Code, Section 41.008 (c) the statutory caps for punitive and/or exemplary damages do

not apply to this case.

F. VIOLATION OF THE BARRATRY STATUTE

Texas Disciplinary Rule of Professional Conduct 8.04(a) prohibits an attorney from

“engage[ing] in conduct that constitutes barratry as defined by the law of this state.” TEX. DISCP.

R. PROF’L CONDUCT 8.04. A person commits barratry “if, with intent to obtain an economic

benefit the person… pays or gives or offers to pay or give a person money or anything of value

to solicit employment.” TEX. PENAL CODE § 38.12(a)(4). Simply put, “[b]arratry is the

solicitation of employment to prosecute or defend a claim with intent to obtain a personal

benefit.” State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 659 (Tex. 1994). An agreement

procured through barratry is voidable by the client. Cobb v. Stern, Miller & Higdon, 305 S.W.3d

36, 42 (Tex. App.—Houston [1st Dist.] 2009, no pet.). As stated above, Defendants violated the

foregoing rules and statutes by engaging third parties to personally contact Plaintiffs and solicit

Defendants’ employment in the underlying lawsuit.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 17 OF 20

VII

DAMAGES

A. ACTUAL DAMAGES

Regarding the causes of action and conduct alleged above, Plaintiffs sustained pecuniary

losses that were proximately caused by all of the Defendants’ conduct. Plaintiffs’ actual

damages exceed the minimum jurisdictional limits of this court. After completion of discovery,

Plaintiffs will amend their pleadings in order to indicate more specifically the damages they have

suffered.

B. EXEMPLARY DAMAGES

Due to all of the Defendants’ gross negligence, breach of fiduciary duty and fraud,

Plaintiffs are entitled to exemplary/punitive damages which they seek herein. Moreover, based

upon Defendants violation of the Texas Penal Code, Section 32.45, punitive damages are not

capped pursuant to Section 41.008 of the Texas Civil Practice and Remedies Code with regard to

these Defendants. Thus, Plaintiffs seek punitive damages to the maximum extent of what the jury

awards.

VIII

DISCOVERY RULE

To the extent that any party pleads the statute of limitations as a defense, Plaintiffs hereby

assert the provision of the “Discovery Rule” as pronounced by the Texas Supreme Court in

Willis v. Maverick, 760 S.W.2d 642 (Tex. 1988), and would say and show that said suit has been

filed within two years of the Plaintiffs’ knowledge of such facts as would lead a reasonably

prudent person to discover all of the Defendants’ wrongful acts.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 18 OF 20

IX

JURY DEMAND

Plaintiffs desire to have a jury decide this case and make this formal request pursuant to

Tex. R. Civ. P. 216. This request is filed more than thirty days before this case has been set for

trial. A jury fee has been tendered herewith in the above entitled and numbered cause.

X

REQUEST FOR DISCLOSURE

Pursuant to Texas Rule of Civil Procedure 194, all of the Defendants are requested to

disclose, within fifty (50) days of service of this request, the information or material described in

Rule 194.2 (a) - (l).

XI

PRAYER

WHEREFORE, Plaintiffs pray that after trial herein, that judgment be entered against all

of the Defendants jointly and severally as prayed for, that costs of court be taxed against all

Defendants herein, that Plaintiffs be given prejudgment as well as post judgment interest, and for

such other and further relief, at law and in equity to which Plaintiffs may show themselves to be

justly entitled, to which the Court believes Plaintiffs to be deserving, and for which Plaintiffs

will ever pray.

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 19 OF 20

Respectfully submitted,

THE KASSAB LAW FIRM

/ s / Lance Christopher Kassab

LANCE CHRISTOPHER KASSAB

Texas State Bar No. 00794070

lck@texaslegalmalpractice.com

DAVID ERIC KASSAB

Texas State Bar No. 24071351

dek@texaslegalmalpractice.com

1420 Alabama

Houston, Texas 77004

t.713.522.7400

f.713.522.7410

DOHERTY✯WAGNER

/ s / Brett Wagner

BRETT WAGNER

Texas State Bar No. 20654270

brett@dwlawyers.com

LARRY JOE DOHERTY

Texas State Bar No. 05950000

larry@dwlawyers.com

RYAN W. SMITH

Texas State Bar No. 24063010

ryan@dwlawyers.com

13810 Champion Forest Drive, Suite 225

Houston, Texas 77069

t.281 583-8700

f.281 583-8701

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing instrument has

been forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the 11th day

of August, 2015.

/s/ Lance Christopher Kassab

Lance Christopher Kassab

PLAINTIFFS’ SECOND AMENDED PETITION AND REQUEST FOR DISCLOSURE PAGE 20 OF 20

Appendix Tab 2

CAUSE NO. 2015-28543

MARIA SANTOS LOPEZ DOMINGUEZ, § IN THE DISTRICT COURT

INDIVIDUALLY AND AS NEXT FRIEND §

OF KAREN MARIEN ANDRADE LOPEZ, §

MAIRET SAMELI ANDRADE LOPEZ §

AND IMAR GERARDO ANDRADE LOPEZ §

ON BEHALF THE ESTATE OF OMAR §

GERARDO ANDRADE LOPEZ, ET AL §

§

V. § OF HARRIS COUNTY, TEXAS

§

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 § 11TH JUDICIAL DISTRICT

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE

JURISDICTION, AND, IN THE ALTERNATIVE, PLEA IN ABATEMENT

TO THE HONORABLE JUDGE MIKE MILLER:

COME NOW Plaintiffs, Maria Santos Lopez Dominguez, et al., and files this, their

Response to All Defendants Plea to the Jurisdiction, and, in the Alternative, Plea in Abatement,

and would respectfully show as follows:

I

INTRODUCTION

Plaintiffs, Maria Santos Lopez Dominguez, et al., are Mexican nationals and former

clients of Defendants. Defendants are Arnold & Itkin, L.L.P., Kurt Arnold, Cory Itkin and Jason

Itkin (the “Itkin Defendants”), Beck Redden, L.L.P., Russell Post, Fields Alexander, Jas Brar

(the “Beck Redden Defendants”) and Eric Albritton and his law firm Albritton Law Firm (the

“Albritton Defendants”) (collectively “Defendants” or the “Lawyers”).

Plaintiffs sued the Lawyers for, among other claims, negligence after Plaintiffs’

underlying claims were dismissed. Specifically, Plaintiffs allege that their underlying maritime

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 1 OF 29

claims were wrongfully dismissed because “the Lawyers negligently failed to allege that there

was no available remedy in Mexico, as required to pursue a federal maritime claim under the

Jones Act.”1 “Thus, due to the negligence of the [Lawyers] the only claims remaining were

Plaintiffs’ Mexican claims for civil liability and moral damages.”2 Second, Plaintiffs allege that

the Lawyers allowed Plaintiffs’ remaining underlying claims to be wrongfully dismissed on

forum non conveniens grounds because the Lawyers “wholly failed to argue, among other things,

that Mexico was not an available forum” or that “that Mexican courts were not adequate for

adjudicating the case…”3 Plaintiffs allege that “had the [identified] substantive arguments been

properly asserted by the Lawyers in the response to the forum non conveniens, the outcome of

the underlying case would have been different and the forum non conveniens would not have

been granted by the District Court thereby allowing Plaintiffs’ claims to proceed forward in the

chosen forum.”4 Finally, Plaintiffs allege that with the accident and resulting injuries and deaths

occurring in October of 2007, “the Plaintiffs’ underlying lawsuit may not be refiled in Mexico

because it is now barred by limitations.”5

The Beck Redden Defendants and the Itkin Defendants both filed the pending Plea to the

Jurisdiction, and, in the Alternative, Plea in Abatement arguing that this lawsuit should be

dismissed because it is not ripe. More specifically, the Lawyers allege that because Plaintiffs’

underlying claims can allegedly be refiled in Mexico, “Plaintiffs have not suffered any concrete

injury” and this case is therefore “premised on contingent and hypothetical events that have not

yet come to pass.”6 Simply put; the Lawyers argue that Plaintiffs must continue to pursue their

underlying claims in Mexico and, upon dismissal, again attempt to have the underlying case

1

PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

2

PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

3

PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.

4

PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 2 OF 29

reinstated in Texas before their legal malpractice claims are ripe for adjudication. The Albritton

Defendants joined in the other Defendants’ pleas to the jurisdiction and requests for abatement.

The Lawyers’ pleas to the jurisdiction and request for abatement should be denied for at

least the following reasons:

 The plea to the jurisdiction is premature because it implicates the merits of

this lawsuit and there are genuine issue of material fact regarding a

disputed jurisdictional facts and, therefore, the trial Court cannot grant the

motion to dismiss;

 Plaintiffs have asserted negligence claims against Defendants for failing to

properly assert their federal maritime claims and nothing about Plaintiffs’

ability or inability to pursue Mexican law claims in Mexico changes the

effect of Defendants’ malpractice related to these claims;

 Defendants’ negligence in failing to assert and prove the proper

substantive arguments in the response to the forum non conveniens caused

the District Court to render the decision that it did and had such arguments

been properly asserted, the outcome of the underlying case would have

been different and, even if the cases could be refiled in Mexico, Plaintiffs’

damages would be the difference between the value of the case in Mexico

verses the United States;

 There are genuine issues of material fact as to whether the waiver of

limitations would be valid in Mexico as the case law is conflicting on this

issue; and

 Even if a waiver of limitations is valid under Mexico law, the waiver

became invalid due to the lapse of time caused by Defendants’ delay in

litigating the underlying case and, more importantly, the waiver is void as

against public policy under Texas law and thus Plaintiffs’ underlying case

may not be refiled in Texas even if a Mexico court denied jurisdiction.

II

FACTUAL BACKGROUND

In ruling on this motion, the Court is required to construe the pleadings in the Plaintiffs’

favor. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

5

PLAINTIFFS’ SECOND AMENDED PETITION, p. 10-11.

6

ITKIN DEFENDANTS’ PLEA, p. 6.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 3 OF 29

Accordingly, the factual background will be comprised of Plaintiffs’ most recent petition and,

when necessary, filings from the underlying proceedings.7

Plaintiffs Maria Santos Lopez Dominguez, et al. (“Plaintiffs”) are offshore oilfield

workers (or the surviving representatives of oil field workers) who were working on the mobile

drilling rig, Usumacinta located in the Bay of Campeche, Mexico in October 2007. 8 On October

23, 2007, a storm entered the Bay of Campeche, causing the Usumacinta to strike a stationary

platform next to which the Usumacinta had been anchored.9 An oil and gas leak was detected in

one of the wells, however, a defective safety valve failed to seal off the leak resulting in a release

of poisonous gases necessitating the evacuation of the platform.10 As a result, twenty two

offshore workers (including two rescuers) died and sixty three others were injured.11 Plaintiffs

were among those injured and/or survivors of those killed in the tragedy.12

In October of 2008, the Lawyers, on behalf of Plaintiffs, filed various lawsuits in the

United States Federal District Court for the Eastern District of Texas, Lufkin Division (the

“District Court”) seeking actual and punitive damages against an individual Glen Carter and a

number of American companies including Gulf Coast Marine & Associates, Inc., Schlumberger

Technology Corporation, Halliburton Energy Services, Inc. and Matthews-Daniel Company (the

“underlying lawsuit”).13 In the underlying lawsuit, the Lawyers alleged negligence, gross

negligence, products liability, and wrongful death claims. These Texas corporate defendants

were responsible for making policy, safety, corporate, manufacturing, supervision, and design

7

Plaintiffs have included the affidavit of their counsel, David Eric Kassab, as Exhibit “G” authenticating the

pleadings from the underlying case as well as other exhibits which may be helpful to the Court’s resolution of the

issues.

8

PLAINTIFFS’ SECOND AMENDED PETITION, pp. 4-5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, pp. 2-3.

9

PLAINTIFFS’ SECOND AMENDED PETITION, p. 5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 3.

10

PLAINTIFFS’ SECOND AMENDED PETITION, p. 5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 3.

11

PLAINTIFFS’ SECOND AMENDED PETITION, p. 5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 3.

12

PLAINTIFFS’ SECOND AMENDED PETITION, p. 5; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 3.

13

PLAINTIFFS’ SECOND AMENDED PETITION, pp. 6; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 2.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 4 OF 29

decisions, in their United States headquarters, that directly affected the events relevant in the

underlying lawsuit.14 More specifically, Defendants, on Plaintiffs’ behalf, alleged the underlying

defendants breached their duties by negligently failing to provide a safe working environment,

accurate weather information, proper supervision, proper equipment that was in good repair;

accurate information as to soil conditions and platform placement; and failing to timely engage

in rescue efforts, among other claims.15 Defendants, on Plaintiffs’ behalf, alleged that

Schlumberger and Halliburton were liable for strict products liability for defective design and

manufacture of the safety valves and/or sensors that failed in the underlying incident. Even more

specifically, Defendants alleged that the valve design defect posed an unreasonably dangerous

rate of fouling, a process leading to the buildup of solids which creates a false seal that erodes

with time, significantly increasing the risk of a perilous and incessant oil and gas leak. 16

Defendants also alleged that products in question contained inadequate warnings. Defendants

alleged that these product defects rendered the offending products unreasonably dangerous and,

therefore, Schlumberger and Halliburton were liable for all damages caused thereby without

regard to fault.17 These claims were based on Texas state law, general federal or international

maritime law, including the Jones Act, and Mexican law.18

The District Court dismissed Plaintiffs’ state law claims with prejudice, finding that they

were preempted by the Jones Act.19 In addition, the District Court dismissed Plaintiffs’ federal

maritime claims because the Lawyers negligently “failed to allege that there was no available

remedy in Mexico, as required to pursue a federal maritime claim under the Jones Act.”20 This

14

PLAINTIFFS’ SECOND AMENDED PETITION, p. 6; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 2.

15

PLAINTIFFS’ SECOND AMENDED PETITION, p. 6.

16

PLAINTIFFS’ SECOND AMENDED PETITION, p. 6.

17

PLAINTIFFS’ SECOND AMENDED PETITION, p. 6.

18

PLAINTIFFS’ SECOND AMENDED PETITION, p. 6-7.

19

PLAINTIFFS’ SECOND AMENDED PETITION, p. 7; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5.

20

Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 5 OF 29

allegation would have been successful as Section 1916 of the Mexican Civil Code provides for

recovery of only 1/3 of the amount of civil liability.21 Even then, Section 1916 requires to

plaintiff to have “material damages” and is only recoverable for “illegal” conduct on part of the

defendants.22 Moreover, Mexican law only allows the plaintiff to recover from the specific

person responsible for the illegal act.23 Therefore, a Mexico forum would be inadequate to

compensate Plaintiffs. Nonetheless, due to the negligence of Defendants, the only claims

remaining were Plaintiffs’ Mexican claims for civil liability and moral damages.24

The District Court, on September 15, 2010, consolidated the underlying lawsuit with six

other lawsuits filed by other plaintiffs and a number of other law firms for the purpose of

briefing and deciding the forum non conveniens issue which was common to each case.25 More

specifically, the defendants in the underlying lawsuit argued that because the underlying events

arose out of the collision of a mobile drilling rig and oil platform in Mexico territorial waters,

and because the plaintiffs were all Mexican residents and employed by Mexican companies,

Mexico was the appropriate forum to hear the dispute.26 More importantly however, the

underlying defendants argued that since the only remaining claims were brought under Mexican

law, Mexico was an appropriate and adequate forum.27 The underlying defendants argued that

Mexico was an adequate forum because they would waive any statute of limitations and agree to

submit themselves to jurisdiction in Mexico.28

In response, the Lawyers merely argued that all of the underlying defendants were U.S.

companies or citizens and, therefore, the documents and witnesses regarding liability were

21

Exhibit “C” – Moral Damages in Mexican Law, p. 254.

22

Exhibit “C” – Moral Damages in Mexican Law, p. 254-255.

23

Exhibit “C” – Moral Damages in Mexican Law, p. 256.

24

Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

25

PLAINTIFFS’ SECOND AMENDED PETITION, p. 7; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 2.

26

Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

27

Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 6 OF 29

located in the United States.29 However, the Lawyers wholly failed to argue, among other things,

that Mexico was not an available forum because:

1. The waiver of the statute of limitations is invalid under Mexican law;

2. Mexico lacks jurisdiction over United States residents and the unilateral

consent by the underlying defendants does not create jurisdiction in

Mexico;

3. Plaintiffs would not be voluntarily choosing the Mexican forum as

required under Mexican law; and

4. Mexico had lost any initial jurisdiction it ever had over the case after the

case was initially filed in the United States.30

Additionally, the Lawyers wholly failed to argue and establish, among other things, that Mexican

courts were not adequate for adjudicating the case because:

1. Mexico does not have procedural safeguards to permit the Plaintiffs to

develop their evidence; and

2. Proceedings in Mexico would not be concluded within a reasonable time

frame.31

Plaintiffs allege that, had the foregoing substantive arguments been properly asserted by the

Lawyers in the response to the forum non conveniens, the outcome of the underlying case would

have been different and the forum non conveniens would not have been granted by the District

Court thereby allowing Plaintiff’s claims to proceed forward in the chosen forum. 32 As

demonstrated below, Defendants have not (and cannot) affirmatively show that “but for” their

failures, the District Court would have ruled the same.

28

Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 5; See also PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

29

Exhibit “A” – Judge Ward’s April 20, 2011 Order, pp. 5-6; See also PLAINTIFFS’ SECOND AMENDED PETITION, p.

7.

30

PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.

31

PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.

32

PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 7 OF 29

After a hearing on the underlying defendants’ forum non conveniens motion on March

10, 2011, the District Court conditionally granted the motion.33 The granting of the motion

carried five crucial conditions to the survival of Plaintiffs’ claims:

1. The underlying defendants agree to appear and submit themselves to the

jurisdiction of a Mexican federal or state court, waiving any jurisdictional

defenses they might normally possess;

2. The underlying defendants agree to waive any statute of limitations

defense that they did not possess as of the date each of the seven cases was

originally filed;

3. The underlying defendants agree to submit to discovery in the Mexican

forum in accordance with the procedural rules of the Mexican court;

4. The underlying defendants agree that they will make all relevant witnesses

and documents available in Mexico to the extent consistent with Mexican

law;

5. The underlying defendants agree that they will make any employee

witness available for trial in Mexico to the extent consistent with Mexican

law.34

The order also carried with it a return jurisdiction clause stating that, “Should the courts of

Mexico refuse to accept jurisdiction of any of these cases for reasons other than Plaintiffs’

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.”35 The Lawyers did not

appeal the May 4, 2011 order.36 Plaintiffs allege that, had the Lawyers appealed this order, the

appeal would have been successful.37 Again, Defendants have not (and cannot) affirmatively

show that “but for” this failure, the appeal would have been unsuccessful.

33

PLAINTIFFS’ SECOND AMENDED PETITION, p. 8; Exhibit “A” – Judge Ward’s April 20, 2011 Order, pp. 26-27.

34

PLAINTIFFS’ SECOND AMENDED PETITION, pp. 8-9; Exhibit “A” – Judge Ward’s April 20, 2011 Order, pp. 26-27.

35

PLAINTIFFS’ SECOND AMENDED PETITION, p. 9; Exhibit “A” – Judge Ward’s April 20, 2011 Order, p. 27.

36

PLAINTIFFS’ SECOND AMENDED PETITION, p. 11.

37

PLAINTIFFS’ SECOND AMENDED PETITION, p. 11.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 8 OF 29

From February to May 2013, Defendants filed in Mexico only eleven (11) of the more

than eighty (80) original cases.38 However, Defendants did not make use of the stipulation to

Mexican jurisdiction the underlying defendants signed as part of the dismissal in the District

Court or otherwise contest the underlying defendant’s resistance to Mexican jurisdiction.39 As a

result, the Mexican courts immediately rejected jurisdiction of the cases.40

On October 18, 2013, Defendants filed a motion to reinstate Plaintiffs’ case in District

Court arguing that Mexico would not accept jurisdiction over the cases.41 After extensive

briefing, the District Court denied Defendants’ attempt to re-file the cases in Texas and exposed

Defendants’ lack of good faith in great detail, noting that Defendants “filed some, but not all, of

the cases dismissed by Judge Ward in Mexico.”42 Judge Crone continued, “Because counsel

made no attempt to litigate those cases in Mexico in compliance with the court’s Memorandum

and Order, there is no basis upon which to reopen them here.”43 Therefore, with regard to all of

the underlying cases, save and except the eleven that were refiled in Mexico, Plaintiffs allege

that Defendants grossly failed to litigate diligently and in good faith thereby invalidating the

waiver of the statute of limitations.44 Further, as discussed below, the waivers were invalid under

Texas law because they were indefinite and not specific.

With regard to the eleven cases that were refiled in Mexico, the District Court found that

Defendants simply “did not prosecute the cases in good faith.”45 Specifically, the District Court

found that Defendants (1) failed to properly inform the Mexican courts of the underlying

defendants’ stipulation to jurisdiction; (2) failed to properly inform the Mexican courts of Judge

38

PLAINTIFFS’ SECOND AMENDED PETITION, p. 9; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 3.

39

PLAINTIFFS’ SECOND AMENDED PETITION, p. 9; Exhibit “B” – Judge Crone’s August 14, 2014 Order, pp. 4-5.

40

PLAINTIFFS’ SECOND AMENDED PETITION, p. 9; Exhibit “B” – Judge Crone’s August 14, 2014 Order, pp. 4-5.

41

PLAINTIFFS’ SECOND AMENDED PETITION, p. 10; Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 5.

42

Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 9.

43

Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 9.

44

PLAINTIFFS’ SECOND AMENDED PETITION, p. 10.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 9 OF 29

Ward’s Orders dated April 20 and May 4, 2011; (3) failed to state in the complaints filed in

Mexico that the underlying defendants consented to jurisdiction; (4) failed to translate copies of

the stipulations or court orders for the Mexican court; and (5) failed to provide the Beaumont

Federal Court any copies of the original apostilled orders issued by Judge Ward or the

underlying defendants’ stipulations with markings confirming that the documents filed in the

Mexican courts were filed properly.46 Thus, on May 14, 2014, as a direct and proximate result of

the Lawyers’ gross malfeasance, the District Court dismissed the Plaintiffs’ underlying

lawsuits.47 The District Court stated that Plaintiffs could “not seek reinstatement in [the District

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.”48

Several months after the dismissal, the Itkin Defendants sent out deceitful withdrawal

letters wherein they attempted to conceal and downplay the significance of their wrongdoing and

abandoning Plaintiffs.49 The one bit of truth contained within these letters was Kurt Arnold’s

recognition that the chances of the District Court accepting jurisdiction over the cases in light of

what had occurred was slim. Specifically, Mr. Arnold states: “I think the chances of the Court

accepting the jurisdiction for these cases even after following all steps [and refiling the cases in

Mexico] is remote.”50 Mr. Arnold is accurate as any claim now filed in Mexico would be

dismissed on limitations grounds because the waivers became invalid and unenforceable when

the Lawyers failed to comply with the initial March 10, 2011 order from the District Court

requiring the underlying lawsuits to be litigated and refiled in Mexico diligently and in good

45

Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 9.

46

Exhibit “B” – Judge Crone’s August 14, 2014 Order, pp. 11-15.

47

PLAINTIFFS’ SECOND AMENDED PETITION, p. 10; See Exhibit “B” – Judge Crone’s August 14, 2014 Order, pp. 11-

15.

48

Exhibit “B” – Judge Crone’s August 14, 2014 Order, p. 15.

49

Exhibit “D” – Arnold & Itkin October 3, 2014 Letter to Clients.

50

Exhibit “D” – Arnold & Itkin October 3, 2014 Letter to Clients.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 10 OF 29

faith.51 In fact, as explained below, the waiver was invalid under Texas law to begin with and,

under Mexican law, limitations may only be waived for a certain period of time. Accordingly,

the waivers and stipulations are of no consequence at this late date and, as a result, Plaintiffs’

claims are forever barred in both the United States and Mexico.52

Immediately after this lawsuit was filed, the Lawyers filed the present pleas to the

jurisdiction arguing that Plaintiffs must continue to pursue their clearly-barred underlying claims

in Mexico and, upon dismissal, again attempt to have the underlying case reinstated in Texas

before their legal malpractice claims are ripe for adjudication. Thus, the Lawyers request the

Court to dismiss this action or, alternatively, abate these proceedings until the filings of the

underlying case have occurred. For the reasons stated herein, Defendants’ pleas to the

jurisdiction and request for abatement should be denied.

III

ARGUMENT & AUTHORITIES

Ripeness is a component of subject matter jurisdiction. Waco Indep. Sch. Dist. v. Gibson,

22 S.W.3d 849 (Tex. 2000). Ripeness focuses on when an action may be brought. Id. at 851.

“[R]ipeness, like standing, 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.

When, as here, a defendant asks a court to dismiss the case for want of subject matter

jurisdiction, the Court must overrule the motion unless the moving parties’ evidence clearly

demonstrates that the court lacks jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d

547, 555 (Tex. 2000). Defendants have utterly failed to carry their burden.

51

PLAINTIFFS’ SECOND AMENDED PETITION, p. 11.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 11 OF 29

A. DEFENDANTS’ PLEA TO THE JURISDICTION SHOULD BE DENIED BECAUSE

IT IMPLICATES THE MERITS OF PLAINTIFFS’ CLAIMS.

Defendants essentially argue that their conduct caused no damage to Plaintiffs because

the underlying cases can still be refiled in Mexico.53 However, as discussed above, the failure of

Defendants to litigate Plaintiffs’ case in good faith is only one act of negligence at issue.

Plaintiffs have also sued Defendants for failing to properly maintain Plaintiffs’ maritime claims,

failing to properly respond to the forum non conveniens motions and, alternatively, failing to

appeal the District Court’s dismissal of the underlying case.54 Regardless, the malpractice

concerning Defendants’ good faith necessarily implicates the merits of this lawsuit because if the

statute of limitations waiver is void due to Defendants’ failure to litigate the claims in good faith,

then Plaintiffs have been damaged as a result of Defendants’ negligence because the lawsuits

may not be refiled in Mexico.

The Beck Redden Defendants argue that “there has been no court order…indicating that

the statute of limitations on Plaintiffs’ claims has run, or that the statute of limitations would not

be honored by the Mexican courts.”55 However, a plaintiff in a legal malpractice case who is

suing his attorney for missing a statute of limitations is not required to file the underlying case

anyway in order to obtain a court order stating that the statute of limitations has run on the

plaintiff’s claim. See Rhodes v. Batilla, 848 S.W.2d 833, 842 (Tex. App. – Houston [14th Dist.]

1993, writ denied)(“there was no requirement that [the client] appeal the final assessment by the

IRS in order to establish the open and obvious malpractice committed by appellant…”). Rather,

the plaintiff must prove that his claims are barred (i.e. causation) by way of expert testimony.

Rangel v. Lapin, 177 S.W.3d 17, 22 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)(“In

52

PLAINTIFFS’ SECOND AMENDED PETITION, p. 11.

53

See BECK REDDEN DEFENDANTS’ PLEA, p. 7; ITKIN DEFENDANTS’ PLEA, p. 3.

54

PLAINTIFFS’ SECOND AMENDED PETITION, pp. 8, 11, 13-14.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 12 OF 29

general, one proves causation in a legal malpractice suit by expert testimony.”). Thus, to prove

causation in this case, Plaintiffs must introduce expert testimony to establish that, even if they

would refile the claims in Mexico, they would be dismissed due to the Defendants’ conduct. See

Id. (affirming summary judgment against client because the client “did not offer expert testimony

from which one could infer that the underlying case would have had merit…”); See also

Alexander v. Turtur & Assocs., 146 S.W.3d 113, 118 (Tex. 2004)(in a legal malpractice case a

jury, with the benefit and guidance of expert testimony, is required to determine whether the

“omitted evidence was different from, and more compelling than, the evidence and testimony

presented [to the underlying judge]” and “whether the result of the underlying …proceeding

would have been different but for the alleged malpractice.”).

When jurisdictional facts are disputed, the manner in which the trial court analyzes the

jurisdictional challenge depends on whether the disputed jurisdictional fact issues do or do not

implicate the merits of the plaintiff's case. See University of Tex. v. Poindexter, 306 S.W.3d 798,

806-07 (Tex. App.—Austin 2009, no pet.). If the disputed jurisdictional issue or facts do not

implicate the merits, the court—not the jury—must make the necessary factual findings to

resolve the jurisdictional issue. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004). However, when, as here, “the jurisdictional inquiry does implicate the merits of the

plaintiff’s case, a very different standard applies.” Martin v. Nat'l Instruments Corp., 2013 Tex.

App. LEXIS 7021, at *6 (Tex.App. – Austin June 11, 2013, no pet.). “In that instance, the trial

court does not act as a fact-finder.” Id. (emphasis added)(citing Poindexter, 306 S.W.3d at 807

and Miranda, 133 S.W.3d at 227-28). “If the evidence submitted by the parties creates a genuine

issue of material fact regarding a disputed jurisdictional fact, then the trial court cannot grant the

motion to dismiss, and the fact issue must be resolved by the fact-finder at trial.” Id. at *6-*7.

55

See BECK REDDEN DEFENDANTS’ PLEA, p. 2.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 13 OF 29

At this stage, the Defendants that have the burden to show through their pleas to the

jurisdiction and attached evidence that this Court lacks jurisdiction as a matter of law. Miranda,

133 S.W.3d at 228. The only evidence submitted by Defendants are certain pleadings from the

underlying proceedings and court orders stating that Plaintiffs can allegedly refile their cases in

Mexico.56 Using these exhibits, Defendants argue that the statements in Plaintiffs’ pleadings are

invalid and that Plaintiffs’ underlying claims are not forever barred because Plaintiffs have not

validly attempted to re-assert their claims in the Courts of Mexico and, therefore, jurisdiction is

not conferred upon this Court.57 However, the Texas Supreme Court and the Houston Court of

Appeals have made clear that such an assertion “attacks [the plaintiff’s] right of recovery” and

should be made in a motion for summary judgment, not in a plea to the jurisdiction. See

Concerned Cmty. Involved Dev., Inc. v. City of Houston, 209 S.W.3d 666, 673 (Tex. App –

Houston [14th Dist.] 2006, pet. denied)(citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-

77 (Tex. 2000)). “The right of a plaintiff to maintain a suit, while frequently treated as going to

the question of jurisdiction, has been said to go in reality to the right of the plaintiff to relief

rather than to the jurisdiction of the court to afford it.” Kazi, 12 S.W.3d at 76-77. Therefore, the

Court should deny Defendants’ pleas to the jurisdiction as they implicate the merits of Plaintiffs’

claims. See Concerned, 209 S.W.3d at 673 (holding it was error for the trial court to dispose of

claims by way of a plea to the jurisdiction rather than a summary judgment when the defendants

alleged that the court lacked jurisdiction because plaintiff had not made a valid open records

claim to confer jurisdiction).

56

See, e.g., BECK REDDEN DEFENDANTS’ PLEA, at Exhibits, generally.

57

ITKIN DEFENDANTS’ PLEA, p. 6.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 14 OF 29

B. DEFENDANTS’ PLEA TO THE JURISDICTION SHOULD BE DENIED BECAUSE

DEFENDANTS’ NEGLIGENCE CAUSED THE DISMISSAL OF PLAINTIFFS’

FEDERAL LAW CLAIMS AND THESE CLAIMS CANNOT BE REFILED IN

MEXICO.

Defendants’ sole argument for lack of jurisdiction and/or abatement is based on the false

premise that Plaintiffs’ malpractice claims all relate to their inability to pursue their Mexican law

claims in Mexico. While that is certainly part of Plaintiffs’ negligence allegations against

Defendants, Plaintiffs’ live pleading also alleges that Defendants negligently lost Plaintiffs’

ability to pursue Jones Act claims in the United States by failing to properly plead those claims

and/or competently resist the underlying defendants’ attempts to dismiss Plaintiffs’ underlying

claims.58 Specifically, Plaintiffs allege: “the District Court dismissed Plaintiff’s federal maritime

claims because the Lawyers negligently failed to allege that there was no available remedy in

Mexico, as required to pursue a federal maritime claim under the Jones Act.” 59 Nothing about

Plaintiffs’ ability or inability to pursue Mexican law claims in Mexico changes the effect of

Defendants’ malpractice related to Plaintiffs’ Jones Act claims.

“The party contesting jurisdiction must meet the summary-judgment standard of proof to

support its contention that the trial court lacks subject-matter jurisdiction.” HSBC Bank USA,

N.A. v. Watson, 377 S.W.3d 766, 773 (Tex. App.—Dallas 2012, pet. dism'd). “This means the

movant must support its plea with conclusive evidence establishing facts that defeat

jurisdiction.” Id. “If the movant fails to meet its burden, the claimant has no burden at all, and the

jurisdictional challenge fails.” Id. “The defendant cannot simply deny the existence of

jurisdictional facts and force the plaintiff to raise a fact issue.” Id. (internal quotations omitted).

Even if Plaintiffs could still pursue their Mexican law claims in Mexico, which Plaintiffs deny,

Plaintiffs have forever lost their ability to pursue their Jones Act claims in the United States due

58

PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 15 OF 29

to the negligence of Defendants. Defendants’ pleas to the jurisdiction are devoid of any

argument, analysis or evidence proving, as a matter of law, that these claims could be refiled in

Mexico. For this reason alone, Defendants’ pleas to the jurisdiction should be denied.

C. DEFENDANTS’ PLEA TO THE JURISDICTION SHOULD BE DENIED BECAUSE

DEFENDANTS’ NEGLIGENCE CAUSED THE DISTRICT COURT TO DISMISS

PLAINTIFFS’ TEXAS CASE IN THE FIRST INSTANCE.

Defendants’ pleas to the jurisdiction should also be denied because Defendants have not

disproven Plaintiffs’ theory that, had the proper substantive arguments been asserted by the

Lawyers in the response to the forum non conveniens, the outcome of the underlying case would

have been different and the forum non conveniens would not have been granted by the District

Court.60 This theory of malpractice may be simplified by the venerable principle “garbage in,

garbage out.”61 If a court is presented with inaccurate or incomplete evidence and argument it is

going to reach inaccurate conclusions and produce an inaccurate result. See United States v.

Seminerio, 680 F. Supp. 2d 523, 542 (S.D.N.Y. 2010)(noting that ethics opinion was “a classic

illustration of ‘garbage in, garbage out’ because the individual seeking the opinion omitted

material facts in requesting the opinion); See also Moyle v. Liberty Mut. Ret. Benefit Plan, 2013

U.S. Dist. LEXIS 2237 at *7 (S.D. Cal. Jan. 7, 2013)(noting the difficulty of the court in having

to render a ruling because of inadequate and confusing briefing, stating: “[t]he Court has been

asked to rule and it will do so. The result, considering the confusing, incomplete mishmash

before the Court, may be a function of the old adage, ‘garbage in, garbage out.’”); Smith v. ABN

AMRO Mortg. Group, Inc., 2007 U.S. Dist. LEXIS 26585 (S.D. Ohio Mar. 27, 2007)(ordering

pro se plaintiffs to obtain counsel due to the inadequacies of their court filings and recognizing

59

PLAINTIFFS’ SECOND AMENDED PETITION, p. 7.

60

PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.

61

This principle is most commonly referred to in computer science but is traced back to the philosopher Charles

Babbage: “On two occasions I have been asked,—'Pray Mr. Babbage, if you put into the machine wrong figures,

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 16 OF 29

that, because of this, “the ‘garbage in - garbage out’ computer analogy may characterize the

Court's attempt to render a fair and just verdict.”); Hunt v. Sullivan, 1992 U.S. Dist. LEXIS

13091 at *9 (N.D. Ill. Aug. 31, 1992)(noting that Appeals Counsel’s decision denying

supplemental security income was based on an inadequate record, stating “[t]his was simply the

social security version of what in familiar computer jargon bears the GIGO acronym: ‘Garbage

in, garbage out.’”).

In articulating this concept with respect to the judicial system, one California court noted

that, while “[t]he federal judicial process is not a GIGO (garbage in, garbage out) system” with

respect to the law – because “a federal judge has the responsibility to make his or her decision

based on the correct law” – it may certainly be so with respect to the facts as “the federal judge is

dependent on the parties to present the competent, credible evidence from which the judge is to

make the required findings of fact.” Cal. Franchise Tax Bd. v. Wilshire Courtyard (In re

Wilshire Courtyard), 2015 Bankr. LEXIS 1172 at *19 (B.A.P. 9th Cir. Apr. 7, 2015)(emphasis

added). In this case, Plaintiffs allege that the Lawyers wholly failed to argue a litany of reasons as

to why Mexican courts were not adequate for adjudicating the case and, had the listed substantive

arguments been properly asserted by the Lawyers in the response to the forum non conveniens, the

outcome of the underlying case would have been different. 62 Simply put, had the Lawyers put forth

competent, credible evidence before the District Court concerning the adequacy of the Mexican

forum rather than allowing the inaccurate “garbage” that was presented to it by the underlying

defendants to go uncontroverted, then the forum non conveniens would not have been granted by

the District Court thereby allowing Plaintiffs claims to proceed forward in their chosen forum.63

will the right answers come out?' . . . I am not able rightly to apprehend the kind of confusion of ideas that could

provoke such a question.” Charles Babbage, PASSAGES FROM THE LIFE OF A PHILOSOPHER 67 (1864).

62

PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.

63

PLAINTIFFS’ SECOND AMENDED PETITION, p. 8.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 17 OF 29

The Texas Supreme Court has held that, in a legal malpractice case such as this, what

would have happened had proper argument and evidence been submitted in the underlying case

is a fact question for the jury. See Alexander v. Turtur & Assocs., 146 S.W.3d 113, 118 (Tex.

2004). Specifically, a jury, with the benefit and guidance of expert testimony, is required to

determine whether the “omitted evidence was different from, and more compelling than, the

evidence and testimony presented [to the underlying judge]” and “whether the result of the

underlying …proceeding would have been different but for the alleged malpractice.” Id. at 118.

Thus, because this Court at this juncture must take Plaintiffs’ pleadings as true, Miranda, 133

S.W.3d at 226, whether the omitted evidence and argument set forth in Plaintiffs’ Petition –

which was omitted from the response filed by the Lawyers in the underlying case – “was

different from, and more compelling than, the evidence and testimony presented” to the courts in

the underlying case and whether the District Court would have ruled differently had this

evidence and argument been presented are all fact issues for the jury. See Alexander 146 S.W.3d

at 118 (in legal malpractice case, jury was charged with deciding whether, in reasonable

probability, a bankruptcy judge would have decided the underlying adversary proceeding

differently, absent the alleged malpractice). Accordingly, Defendants’ pleas to the jurisdiction

are without merit.

D. DEFENDANTS’ PLEA TO THE JURISDICTION SHOULD BE DENIED BECAUSE

NEITHER A MEXICO NOR A TEXAS COURT WILL ACCEPT JURISDICTION OF

THE UNDERLYING CASE AS THE CLAIMS ARE BARRED BY LIMITATIONS.

Defendants argue that dismissal is appropriate because Plaintiffs’ malpractice claims are

not yet ripe as “Plaintiffs have not suffered any concrete injury” and the question of whether a

Mexico court will still accept jurisdiction over Plaintiffs’ claims “is a hypothetical one at this

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 18 OF 29

point.”64 To support this argument, Defendants claim that Texas courts have “determined that

statute of limitations defenses can be waived under Mexico law” and cite Seguros Comercial

Ams. S.A. De C.V. v. American President Lines, 933 F. Supp. 1301 (S.D. Tex. 1996) as support.

Yet, in Seguros, the plaintiff’s expert did not provide the court with any authority for its position

that waivers of limitations were invalid under Mexican law. Id. at 1308. Thus, that court never

analyzed Mexican law in this regard or considered the overall validity of the waivers. See Id.

The Beck Redden Defendants also cite to Zermeno v. McDonnell Douglas Corp., 246 F.

Supp. 2d 646 (S.D. Tex. 2003) and Dominguez-Cota v. Cooper Tire & Rubber Co., 284 F. Supp.

2d 444 (N.D. Miss. 2003) to support their wavier of limitations argument.65 Like the court in

Seguros, however, neither the courts in Zermeno nor Dominguez-Cota truly analyzed the ability

to waive limitations under Mexican law. See Zermeno, 246 F. Supp. 2d at 658 (holding

stipulation to waive limitations is valid under Mexican law without any analysis); see also

Dominguez-Cota, 284 F. Supp. 2d at 448 (holding same).

On the other hand, in the more recent Texas federal case Sacks v. Four Seasons Hotel

Ltd., 2006 U.S. Dist. LEXIS 17768 (E.D. Tex. Mar. 7, 2006), the court denied the defendants’

motion to dismiss on forum non conveniens based, in part, on the plaintiff’s Mexican law

experts’ properly supported testimony that waivers of limitations are meaningless in Mexico. Id.

at *18. In Sacks, the plaintiff sued a Four Seasons hotel in Mexico for the death of her husband.

Id. at *2-3. The hotel sought to dismiss the action on forum non conveniens grounds and, like the

underlying defendants, agreed to waive any defense of limitations. Id. at *10. In denying the

hotel’s motion, the Sacks court considered Mexican law as supported by plaintiff’s Mexican law

expert and recognized that “stipulations made before a United States court to waive the Mexican

64

ITKIN DEFENDANTS’ PLEA, p. 6.

65

BECK REDDEN DEFENDANTS’ PLEA, p. 5-6.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 19 OF 29

statute of limitations are meaningless in Mexico.” Id. at *18. Thus, the Sacks court found that

the case could not be refiled in Mexico because it was past the statute of limitations and,

therefore, the plaintiff did not have an adequate remedy under Mexican law. See Id. Accordingly,

more recent Texas case law indicates that, when properly and/or competently challenged with

reference to evidence and Mexican law, waivers of limitations are ineffective as a basis for

granting a forum non conveniens.

In fact, the underlying defendants’ waiver of limitations is invalid under Texas law and,

therefore, Plaintiffs may not refile their underlying case in Texas or anywhere else because the

claims are past the statute of limitations – thereby rendering a “concrete injury” to Plaintiffs. In

Texas, parties may agree to waive the statute of limitations before or after the statutory bar has

fallen. Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267, 280-281 (Tex. App.—Houston [1st

Dist.] 2004, pet. denied); Starcrest Trust v. Berry, 926 S.W.2d 343, 351 (Tex. App.--Austin

1996, no writ); American Alloy Steel v. Armco, Inc., 777 S.W.2d 173, 177 (Tex. App. – Houston

[14th Dist.] 1989, no writ); However, “[a] general agreement in advance to waive or not to plead

the statute of limitations on a particular obligation is void as against public policy.” Segal, 155

S.W.3d at 281; American Alloy, 777 S.W.2d at 177. Rather, “[t]he agreement must be specific

and for a pre-determined length of time.” Segal, 155 S.W.3d at 281. The same rule applies under

Federal law. Lett v. Crown Cork & Seal Co., 2015 U.S. Dist. LEXIS 14627, at *9-*10, at n. 2

(N.D. Tex. Feb. 5, 2015).

Intentionally ignoring the foregoing authority, Defendants contend that dismissal is

appropriate because Plaintiffs can still allegedly refile their claims in Mexico or, if the Mexican

courts refuse jurisdiction, the District Court, because “the underlying defendants … have filed a

binding stipulation in Federal Court stating that they have waived any argument that the statute

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 20 OF 29

of limitations on those claims have expired.”66 However, the alleged stipulation concerning the

statute of limitations in the underlying case did not meet the criteria for an effective tolling. The

stipulation merely stated “Defendants agree to waive any statute of limitations or laches defense

that they did not possess as of the date this lawsuit was originally filed.”67 The sentence is not

specific and does not provide a pre-determined length of time for a tolling period. See Duncan,

912 S.W.2d at 859; Lett, 2015 U.S. Dist. LEXIS 14627, at *9-*10. Therefore, as a matter of

Texas law, Plaintiffs would not be entitled to a tolling of the statute for an undetermined period

of time. See Hoff v. Texas Med. Liab. Trust, 1998 Tex. App. LEXIS 2219, at *8 (Tex.App. –

Austin Apr. 16, 1998, pet. denied)(affirming summary judgment on statute of limitations ground

because a waiver of limitations was void as against public policy because it was not specific and

did not provide for a pre-determined length of time). Accordingly, with the incident occurring on

October 23, 2007, the statute of limitations on Plaintiffs’ underlying claims have clearly lapsed

and the waiver of limitations is invalid as a matter of law. See Id.

The waiver of limitations does not fare any better under Mexican law. Plaintiffs’

underlying personal injury claims arise out of a maritime accident that occurred in Mexican

territorial waters, those claims are governed by Mexican federal law, including the Federal Civil

Code. MEXICAN CONSTITUTION, Art. 27; MEXICAN FEDERAL CIVIL CODE, Art. 1.68 The

limitations period applicable to Plaintiffs’ claims is 2 years from the date on which the injury

occurred. MEXICAN FEDERAL CIVIL CODE, Art. 1934. In this case, absent the filing of any suit,

limitations would have run on Plaintiffs’ claims on October 23, 2009, the second anniversary of

the accident. Id. While the Mexican Federal Civil Code provides that the running of limitations

66

ITKIN DEFENDANTS’ PLEA, p. 2.

67

Exhibit “F” – Stipulation, p. 1.

68

For the Court’s convenience, Plaintiffs have attached English and Spanish versions of the applicable Mexican

statutes and codes referred to herein as Exhibit “E”.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 21 OF 29

may be tolled by the commencement of any action of which the potentially liable party receives

notice, the code also provides that there is no tolling of limitations if the judicial proceeding that

initially tolled limitations is dismissed. See MEXICAN FEDERAL CIVIL CODE, Art. 1168. Applied

literally, Judge Ward’s dismissal of the underlying case in May 2011 had the effect under

Mexican law of stripping Plaintiffs of the benefit of tolling. In other words, by virtue of the 2011

dismissal, Plaintiffs’ Mexican law claims would be deemed to have been barred by limitations as

of October 23, 2009 unless a Mexican court would accept the underlying defendants’ waiver of

limitations.

While there is some question as to whether a Mexican court would even accept a waiver

of limitations made before a United States court, see Sacks, 2006 U.S. Dist. LEXIS 17768 at *18,

the Mexican Federal Code does seem to provide a proper way for a party to renounce or waive

limitations in Mexico. See MEXICAN FEDERAL CIVIL CODE, Art. 1141. Article 1141 of the

Mexican Federal Civil Code provides:

Las personas con capacidad para enajenar pueden renunciar la prescripción

ganada, pero no el derecho de prescriber para lo sucesivo.

Professor Jorge Vargas, in what is viewed as a leading, authoritative translation of the Mexican

Federal Civil Code, translates Article 1141 as follows:

Any person who has the capacity to convey may renounce the limitations period

attained, but not the right of adverse possession to accrue in the future.

Jorge A. Vargas, MEXICAN CIVIL CODE ANNOTATED – BILINGUAL EDITION 431 (West 2009)

(emphasis added). The maximum limitations period that can be “attained” is two years for the

claims at issue in the underlying case. MEXICAN FEDERAL CIVIL CODE, Art. 1934. Therefore,

even assuming that a waiver of limitations is valid and appropriately obtained under Mexican

law, the underlying defendants would have had to waive limitations in a Mexican court prior to

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 22 OF 29

October 23, 2011. Because Defendants did not refile Plaintiffs’ underlying cases in Mexico until

February 2013, Plaintiffs’ claims were subject to a limitations defense by this date that could no

longer be waived in Mexico and the contention that the underlying defendants’ statute of

limitations waivers would still be honored by the Mexican courts in 2015 is incorrect. See

MEXICAN FEDERAL CIVIL CODE, Art. 1141. Thus, Plaintiffs’ Mexican law claims may not be

refiled in Mexico and, with Plaintiffs’ United States claims being irretrievably lost due to

Defendants’ negligence, these claims are also forever barred.

The Defendants urge this Court to dismiss this action and require Plaintiffs – Mexican

nationals with little or no means and all of whom suffered injury or loss due to the underlying

tragedy – to locate and obtain a Mexican law firm to attempt to pursue their now stale claims

against the underlying defendants. The Lawyers argue that, because Plaintiffs have not done so,

“Plaintiffs’ claimed injury has not and may never occur and consequently, is based entirely on

contingent and hypothetical facts.”69 As support, Defendants cite the Court to two Dallas cases:

Rothrock v. Akin, Gump, Hauer & Feld, 1994 Tex. App. LEXIS 3526 (Tex.App. – Dallas May

11, 1994, no pet.) and Philips v. Giles, 620 S.W.2d 750 (Tex. Civ. App.—Dallas 1981, no writ).

However, not only are Rothrock and Philips distinguishable from the present case, but the

proposition in these cases – that a cause of action for malpractice does not accrue until a

deficiency is assessed – is contrary to Houston Court of Appeals precedent which this Honorable

Court must follow. See Rhodes, 848 S.W.2d at 842.

In Rhodes, the client sued her attorney for gross negligence in connection with the

client’s tax defense from the IRS. Id. at 837. The attorney argued – similar to Defendants in this

case – that the claim was premature because “she had not exhausted her administrative or

judicial remedies prior to bringing this action.” Id. at 842. Rejecting this argument, the Houston

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 23 OF 29

Court of Appeals made clear that “there was no requirement that [the client] appeal the final

assessment by the IRS in order to establish the open and obvious malpractice committed by [the

lawyer].” Id.; See also Estate of Jobe v. Berry, 428 S.W.3d 888, 900 (Tex. App.—Texarkana

2014, no pet.)(distinguishing Philips and holding that malpractice claim may accrue even before

tax penalties are assessed). Defendants’ request for this Court to require Plaintiffs to refile their

clearly already barred claims in Mexico and, later, the District Court (and potentially be subject

to sanctions under Federal Rule of Civil Procedure 1170) is out of line with the law set forth in

Rhodes, Berry and other malpractice cases which do not require a malpractice plaintiff to appeal

decisions or otherwise file lawsuits elsewhere to establish the “open and obvious” malpractice of

Defendants. See Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 785-86

(Tex. 2006)(in malpractice action involving estate planning, cause of action for malpractice

accrued when attorney committed negligent act, not when estate suffered the tax consequences of

that act).

Texas law has made clear that a cause of action for malpractice accrues “when facts have

come into existence that authorize a claimant to seek a judicial remedy”. Apex Towing Co. v.

Tolin, 41 S.W. 3d 118, 120 (Tex. 2001). “[A] cause of action accrues when a wrongful act causes

some legal injury, even if the fact of injury is not discovered until later, and even if all resulting

damages have not yet occurred.” S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). A legal malpractice

claim is governed by the limitations period prescribed in Section 16.003(a) of the Texas Civil

Practices & Remedies Code because it is considered a claim for personal injury. Estate of Degley

v. Vega, 797 S.W.2d 299, 302-303 (Tex.App. – Corpus Christi 1990, no writ). Section 16.003(a)

69

BECK REDDEN DEFENDANTS’ PLEA, p. 7.

70

See Comer v. Interstate United Corp., 119 F.R.D. 392, 393 (N.D. Ill. 1988) (sanctioning attorney under Federal

Rule of Civil Procedure 11 for filing a frivolous pleading because a cursory investigation of documents contained in

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 24 OF 29

states that “a person must bring suit for … personal injury … not later than two years after the

day the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE § 16.003(a). Thus, the legal

malpractice claims in this case accrued when Plaintiffs suffered some injury and Plaintiffs have a

legal right to file this lawsuit now. A dismissal under these circumstances merely rewards and

incentivizes Defendants dilatory and negligent acts in failing to properly handle Plaintiffs’

underlying claims from the beginning of their representation until they belatedly terminated the

representation.

E. DEFENDANTS’ REQUEST FOR ABATEMENT SHOULD ALSO BE DENIED.

In the alternative, and despite their own failures to comply with the District Court’s

orders over the last several years, Defendants request this Court to abate this case to “wait and

see if Plaintiffs follow through on the federal district courts’ orders…”71 In support of their

request for abetment, Defendants cite primarily to Philips v. Giles, 620 S.W.2d 750 (Tex. Civ.

App.—Dallas 1981, no writ) and In re Tex. Collegiate Baseball League, Ltd., 367 S.W.3d 462

(Tex.App. – Fort Worth 2012, orig. proceeding). Both Philips and Tex. Collegiate are

distinguishable and the circumstances of this case do not warrant abatement.

In Philips, a wife's ex-husband, as part of a negotiated divorce settlement, executed a

promissory note in her favor for $500,000.00 as compensation for her community property

interest in a jointly-owned business. Id. at 750. The wife’s attorney told her that there would be

no tax consequences arising from a divorce settlement with her ex-husband, including the note

payments. Id. The wife’s accountant disagreed and encouraged her to file income tax returns

which reported the monthly note payments from her ex-husband as income. Id. Relying on the

accountant’s advice, the wife filed the tax returns and sued the defendant for legal malpractice.

plaintiff’s file irrefutably demonstrated that he had not filed his suit within set time limits or, at best, plaintiff's

attorney failed to conduct reasonable investigation before filing suit).

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 25 OF 29

Id. However, the IRS never assessed any taxes on the money and had not made a determination

at the time suit was filed that the note payments were income. Id. The Dallas Court of Appeals

ruled that the trial court correctly abated the case because the suit for malpractice was premature,

no damages had been established, and it was possible that none would ever be established. Id. at

750. Simply put, there was no certainty of any injury-causing conduct on the part of the attorney.

See Id.

First, Philips has been severely criticized by the Fifth Circuit Court of Appeals for

placing the client in a discriminating situation:

Our trouble with this decision is on two levels. First, the court placed the taxpayer

in an unfortunate “catch-22”. She could choose to pay the IRS the money she

thinks she owes without being able to recover from the party whose acts caused

her to owe this liability, or she can deliberately defy the tax code by refusing to

pay what she perceives to be her full tax liability. This is not a fair choice for the

taxpayer because, either way, she loses.

State Farm Life Ins. Co. v. Swift (In re Swift), 129 F.3d 792, 800 (5th Cir. Tex. 1997). The court

in Swift also criticized Philips for prematurely dismissing the case for lack of damages contrary

to well-established law concerning the discovery rule:

We also find the decision troubling in that the court dismissed the suit because of

a lack of damages when there was a genuine issue of fact concerning the existence

of damages. As [sic] such an early stage, it was premature for the court to make

the assumption.

Id. Indeed, the Texarkana Court of Appeals recently noted that “Philips does not stand for the

idea that an injury cannot be discovered until a penalty is actually assessed” because “[s]uch a

holding would be contrary to the caselaw regarding the discovery rule…” Estate of Jobe v.

Berry, 428 S.W.3d 888, 900 (Tex. App.—Texarkana 2014, no pet.).

Second, the facts of this case are distinguishable from Philips. As discussed above, the

Lawyers’ failures concerning the Jones Act claims was injury-causing conduct because it

71

ITKIN DEFENDANTS’ PLEA, p. 8-9.

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 26 OF 29

immediately damaged Plaintiffs as these claims were immediately lost. Plaintiffs cannot refile

these claims in Mexico because these claims do not exist under Mexican law. Likewise,

Defendants failure to litigate the cases in Mexico in good faith and subsequent lapse of the

statutes of limitations in both Texas and Mexico has now prevented the cases from being refiled

in Mexico or Texas. Accordingly, unlike the yet-to-be-determined damages at issue in Philips,

Plaintiffs have suffered concrete damages and abatement is inappropriate. See Rhodes, 848

S.W.2d at 842.

Moreover, unlike the parties in this case, the parties in Tex. Collegiate “acknowledge[d]

that the statute of limitations [was] not at issue…” Tex. Collegiate, 367 S.W.3d at 465.

Furthermore, unlike the situation in Tex. Collegiate where the malpractice claims “may have no

merit upon final resolution” of the underlying litigation, the Plaintiffs’ malpractice claims at

issue in this case concerning the Jones Act claims, the failure to appeal the District Court’s order

and the failure to prosecute the claims in good faith leading to the lapsing of the statute of

limitations will have merit irrespective of whether the claims are refiled in Mexico. Accordingly,

abatement is not appropriate.

IV

CONCLUSION & PRAYER

The damages at issue are not contingent upon the refiling of the underlying case in

Mexico. Several instances of negligence plead in Plaintiffs’ current pleadings exist whether the

claims are refiled or not. Moreover, the waivers of limitations are invalid under Texas and

Mexico law because they are void against public policy or because of Defendants’ negligence in

failing to timely and diligently prosecute these cases in Mexico. Plaintiffs’ claims against

Defendants accrued when these acts of negligence occurred and Plaintiffs are not required to file

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 27 OF 29

untimely lawsuits elsewhere to establish the “open and obvious” malpractice of Defendants.

Simply put; Plaintiffs’ claims are ripe for adjudication and should proceed as filed.

WHEREFORE, Plaintiffs pray that the Court deny Defendants’ Pleas to the Jurisdiction

and Alternative Pleas in Abatement and grant Plaintiffs any further relief, at law and in equity to

which Plaintiffs may show themselves to be justly entitled, to which the Court believes Plaintiffs

to be deserving, and for which Plaintiffs will ever pray.

Respectfully submitted,

THE KASSAB LAW FIRM

/ s / David Eric Kassab

LANCE CHRISTOPHER KASSAB

Texas State Bar No. 00794070

lck@texaslegalmalpractice.com

DAVID ERIC KASSAB

Texas State Bar No. 24071351

dek@texaslegalmalpractice.com

1420 Alabama

Houston, Texas 77004

t.713.522.7400

f.713.522.7410

DOHERTY✯WAGNER

/ s / Brett Wagner

BRETT WAGNER

Texas State Bar No. 20654270

brett@dwlawyers.com

LARRY JOE DOHERTY

Texas State Bar No. 05950000

larry@dwlawyers.com

RYAN W. SMITH

Texas State Bar No. 24063010

ryan@dwlawyers.com

13810 Champion Forest Drive, Suite 225

Houston, Texas 77069

t.281 583-8700

f.281 583-8701

ATTORNEYS FOR PLAINTIFFS

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 28 OF 29

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing instrument has

been forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the 12th day

of August, 2015.

/s/ David Eric Kassab

David Eric Kassab

PLAINTIFFS’ RESPONSE TO ALL DEFENDANTS’ PLEA TO THE JURISDICTION PAGE 29 OF 29

Case 9:08-cv-00200-MAC Document 257 Filed 04/20/11 Page 1 of 27 PageID #: 4642

EXHIBIT "A"

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

MARIA SANTOS LOPEZ DOMINGUEZ §

Individually and next friend of KAREN §

MARLEN ANDRADE LOPEZ, et al, §

Plaintiffs, § CIVIL ACTION NO. 9:08-cv-200 (TJW)

§

v. §

§

GULF COAST MARINE & ASSOCIATES, §

INC, et al, §

Defendants. §

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants’ Consolidated Motion to Dismiss for Forum Non

Conveniens (Dkt. No. 196 in Case No. 9:08cv200). On September 15, 2010, the Court

consolidated the following seven cases for the limited purpose of briefing and deciding the

common forum non conveniens issue in each case: Dominguez v. Gulf Coast Marine & Assoc.,

Inc., et al, Case No. 9:08cv200; Lorenzana v. Gulf Coast Marine & Assoc., Inc., et al., Case No.

9:09cv150; Friaz v. Gulf Coast Marine & Assoc., Inc., et al., Case No. 9:09cv162; Perez v. Gulf

Coast Marine & Assoc., Inc., et al., Case No. 9:09cv156; Jimenez Govea v. Gulf Coast Marine &

Assoc., Inc., et al., Case No. 9:09cv170; Gordillo v. Gulf Coast Marine & Assoc., Inc., et al.,

Case No. 9:09cv164; De La Cruz v. Gulf Coast

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