Lance Christopher Kassab and David Eric Kassab v. Jimmy Van Knighton, II A/K/A Jay v. Knighton, II, Individually and Stone & Associates N/K/A Knighton & Stone, PLLC ( 2015 )

ACCEPTED
14-15-00363-cv
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
5/1/2015 11:20:35 AM
CHRISTOPHER PRINE
CLERK
No. 14-15-00363-CV FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
5/1/2015 11:20:35 AM
IN THE FOURTEENTH COURT OF APPEALS
CHRISTOPHER A. PRINE
HOUSTON, TEXAS Clerk
LANCE CHRISTOPHER KASSAB and
DAVID ERIC KASSAB,
Appellants,
v.
JIMMY VAN KNIGHTON, II a/k/a JAY V. KNIGHTON, II, individually,
and STONE & ASSOCIATES, LLP n/k/a KNIGHTON & STONE, PLLC,
Appellees.
On Appeal from 2011-75990-A, in the 133rd District Court, Harris County
Honorable Jaclanel McFarland, Presiding
AGREED MOTION TO ABATE APPEAL
TO THE HONORABLE COURT OF APPEALS:
Appellants Lance Christopher Kassab and David Eric Kassab
(collectively “Kassab”) file this agreed motion to abate this appeal, and in
support states as follows:
1. By this appeal, Kassab intends to challenge an order rendered
by the Honorable Jaclanel McFarland in Beatty v. Jimmy Van Knighton, II
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a/k/a Jay V. Knighton, II, Individually, and Stone & Associates, LLP n/k/a
Knighton & Stone, PLLC, Cause No. 2011-75990, in the 133rd Judicial
District Court, Harris County, Texas, on March 5, 2012 sanctioning Kassab
for the filing of Plaintiff’s First Amended Petition (“First Amended
Petition”) in that lawsuit. That order remained interlocutory during the
pendency of that lawsuit.
2. In addition to imposing monetary sanctions and awarding
attorney’s fees against Kassab in connection with the filing, the sanctions
order also directed the district clerk to strike the First Amended Petition
from the record.
3. The underlying suit subsequently settled, but the settlement did
not resolve the sanctions order. On March 23, 2015, Judge McFarland
declined Plaintiff’s motion to vacate the sanctions order but granted the
request that the sanctions order be severed it into a new case, Beatty v.
Jimmy Van Knighton, II a/k/a Jay V. Knighton, II, individually, and Stone &
Associates, LLP n/k/a Knighton & Stone, PLLC Cause No. 2011-75990-A
(the “Severed Case”) so that Kassab can challenge the sanction and the
award of attorney’s fees on appeal.
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4. The order of severance directed the district clerk to include
certain items in the file of the Severed Case, but did not direct the clerk to
include the stricken “First Amended Petition” with those items.
5. It will be necessary for Kassab to have the First Amended
Petition included in the appellate record so that the sanctions imposed as a
result of its filing may be addressed on appeal.
6. As the underlying suit had been terminated by the settlement,
the Severance Order should have rendered the sanctions order, once severed
into the new cause, a final an appealable order. However, the Severance
Order included no language indicating that the sanctions order should be
treated as final and appealable.
7. Assuming that the Severance Order rendered the sanctions
order final and appealable, Kassab timely filed a notice of appeal within 30
days of its entry, giving rise to this appeal. Contemporaneously with that
filing, to resolve any uncertainty about the finality of the Severance Order,
Kassab also filed a motion with the trial court requesting that it enter an
amended order of severance that would do two things: (1) incorporate
“Mother Hubbard” language into the severance order that would confirm
that the sanctions order is now final and appealable, and (2) direct the trial
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court to include the First Amended Petition in the pleadings of the severed
case so that Kassab can bring it before this Court on appeal.
8. Kassab’s certificate of conference to the motion to amend the
sanctions order stated that counsel for Defendants/Appellees had not
indicated whether the motion would be opposed or unopposed as of the time
of its filing. Since that time, counsel has authorized Kassab to inform the
trial court that the motion is unopposed, and Kassab is in the process of
doing so and requesting the entry of an agreed amended order of severance
as described above.
9. Kassab files this Agreed Motion to Abate this appeal pending a
resolution of the motion to sever by Judge McFarland. If the motion in the
district court is granted, the amended order will resolve any issues about
whether this appeal arises from a final judgment, eliminating any need for
briefing before this Court on the issue. It will also ensure that the
designation of clerk’s record will contain all items necessary for the proper
consideration of the appeal, and that the docketing statement accurately sets
forth the procedural history by which Appellants assert finality.
PRAYER FOR RELIEF
Wherefore, premises considered, Appellants respectfully pray that this
Court abate the deadlines associated with this appeal, including the deadlines
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for filing a docketing statement and designating the clerk’s record until such
time as the pending motion to amend the severance order is resolved by the
district court.
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Respectfully submitted,
/S/ Michael S. Truesdale
Michael S. Truesdale
LAW OFFICE OF MICHAEL S. TRUESDALE, PLLC
State Bar No. 00791825
801 West Avenue, Suite 201
Austin, TX 78701
512-482-8671
866-847-8719 (fax)
mike@truesdalelaw.com
COUNSEL FOR APPELLANT
CERTIFICATE OF SERVICE
On May 1, 2015, the undersigned certifies that he served a copy of
this Brief of Appellants on the following in the manner listed below, in
compliance with Texas Rules of Appellate Procedure 9:
Sam A. Houston
Shepherd, Scott, Clawater & Houston, LLP
2777 Allen Parkway, 7th Floor
Houston, TX 77019
713-650-6600
713-650-1720 (fax)
Counsel for Appellees
Via e-service
/s/ Michael S. Truesdale
Michael S. Truesdale
SBN 00791825
CERTIFICATE OF CONFERENCE
The undersigned certifies that he conferred with Sam A. Houston
regarding the relief requested in this motion and Mr. Houston indicated that
the motion could be filed as an agreed motion.
/s/ Michael S. Truesdale
Michael S. Truesdale
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