Tracey Lynn Freezia v. IS Storage Venture, LLC, JLE Investors, Inc. D/B/A Associated Mortgage Investors, Post Oak Bank, N.A., and James L. Emerson ( 2015 )

ACCEPTED
14-14-00174-cv
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
7/7/2015 2:30:43 PM
CHRISTOPHER PRINE
CLERK
NO. 14-14-00174-CV
FILED IN
14th COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FOURTEENTH JUDICIAL DISTRICT OF TEXAS
7/7/2015 2:30:43 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
TRACEY LYNN FREEZIA
Plaintiff/Appellant
VS.
IS STORAGE VENTURES, LLC, JLE INVESTORS, INC., d/b/a
ASSOCIATED MORTGAGE INVESTORS, POST OAK BANK, N.A., AND
JAMES L. EMERSON
Defendants/Appellees
On Appeal from the 281st Judicial
District Court of Harris County, Texas
Trial Court Cause No. 2012-20372
AGREED MOTION TO REINSTATE
/S/ BRITTON L. LARISON
BRITTON L. LARISON
Texas Bar No. 24007531
R. DWAYNE DANNER
Texas Bar No. 00792443
MCGLINCHEY STAFFORD, PLLC
2711 N. Haskell Avenue
Suite 2750, LB 38
Dallas, Texas 75204
(214) 445-2445 (Tel.)
(214) 594-5522 (Fax)
blarison@mcglinchey.com
525216.1
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TO THE HONORABLE FOURTEENTH COURT OF APPEALS:
COME NOW JLE Investors, Inc., d/b/a Associated Mortgage Investors, Inc.,
(“JLE”), James L. Emerson, (“Emerson”), IS Storage Ventures, LLC, (“IS”), Post
Oak Bank, (“Post Oak”), and Tracey Lynn Freezia, (“Freezia”) (collectively, the
“Parties”) and file this their Motion to Reinstate the appeal and, in support thereof,
would show this Court of Appeals the following:
I. STATEMENT OF THE CASE
1. This appeal was abated pursuant to the Abatement Order filed May
12, 2015. This Court expressed concern over the finality of the judgment due to
counter-claims of James Emerson.1 However, James Emerson had filed no
individual counter-claims in the suit.
2. The counter-claims which may have been of concern were filed by the
entity defendant, JLE Investors, Inc., d/b/a Associated Mortgage Investors, Inc. 2
These counterclaims are phrased as follows:
CAUSES OF ACTION
In the alternative [to the defenses plead] …
* * *
1
See Abatement Order of May 12, 2015.
2
See Clerk’s Record 369-381.
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WHEREFORE, PREMISES CONSIDERED,
Defendant prays, in the alternative, that should the Court
determine that the lien of JLE was invalid, defective, or
otherwise unenforceable under applicable law, and set
aside said lien and/or quiet title to the Property in
question to Plaintiff,… 3
3. Because of the conditional language of the counterclaim, the parties
had filed a Rule 11 Agreement which stated:
Specifically, the Court Coordinator of the 281st
Judicial District Court has advised the my client’s
counter-claims against Freezia as well as IS Storage’s
claim … are set for trial on the Court’s Monday trial
docket. As you know, each of these counter-claims were
pled in the alternative and were dependent on Freezia
obtaining a favorable ruling as to title to the Property
and/or was successful in setting aside the loan
transaction with JLE. Since the Court granted JLE’s and
IS’s Motions for Summary Judgment on all her claims,
we took the position that the counter-claims pled in the
alternative were/are now moot and that the summary
judgment orders, taken together, constitute the final
judgment for the purposes of appeal.
* * *
The purpose of this letter is to confirm our
understanding that we believe the granting of the
summary judgments in favor of JLE, Emerson and IS
have rendered the counter-claims pled in the alternative
moot and that the judgment now on appeal is final. In
the event that the Court of Appeals reverses, renders,
and/or remands the case back to the 281st we have agreed
that the counter-claims would then become “live” again,
3
See Second Supplemental Clerk’s Record 3-5.
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as currently pled in the alternative. Additionally, in case
we are incorrect in our assumptions, we have agreed that
any statute(s) of limitations in regards to the counter-
claims is hereby tolled during the appeal and for six (6)
weeks following the final disposition of the appeal by the
Court of Appeals and/or the Texas Supreme Court, as
applicable, so that if the counter-claims require non-suit
to make the judgment final for appellate purposes, and
then require refiling at the trial court level, such defense
(statute(s) of limitations) will not be asserted by Freezia. 4
The parties all believed due to the conditional nature of the counterclaim, that it
was mooted by its own terms and wording. Thus, all parties proceeded with this
appeal.
4. After this court entered its Abatement Order, on May 19, 2015, in
case deemed necessary, JLE filed its Notice of Non-suit of Counterclaims Without
Prejudice (the “Nonsuit”) in the trial court. 5
5. On May 29, 2015, JLE requested that the trial court clerk supplement
the record on appeal with the Nonsuit.6
6. On June 19, 2015, the trial court entered its Response to Request for
Clarification advising that the JLE counter-claims had been non-suited and
confirmed that the court’s record did not indicate any counter-claims filed
4
See Second Supplemental Clerk’s Record 3-4.
5
See Exhibit “A” attached hereto.
6
See Exhibit “B” attached hereto.
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individually by James Emerson.7 On June 23, 2015, counsel for Appellee filed a
second supplemental record request to include the recent clarification response
from the trial court. 8
7. A Supplemental Record was filed on June 30, 2015. A second
supplemental request has been requested.
8. Accordingly, to the extent that there was a question as to the finality
of the judgment, it should be resolved. The parties respectfully request that this
appeal be reinstated.
II. MOTION FOR REINSTATEMENT
9. The Abatement Order, which cited to Texas Rule of Appellate
Procedure 27.2, allowed the parties to supplement the record and, after doing so,
allowed the parties to move for reinstatement of this appeal. The Abatement Order
allowed the trial court “…to permit the parties to obtain an order or orders
disposing of the counterclaims against Tracey Lynn Freezia…”
10. The counterclaims were conditioned on liability. JLE’s Nonsuit
effectively dismisses the counterclaims, if any, and no additional order from the
trial court is necessary. No claim for affirmative relief was pending from Counter-
Defendant/Appellant and no other claims are pending from any party. As such, if
7
See Exhibit “C” attached hereto.
8
See Exhibit “D” attached hereto.
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it was not already terminated, the Nonsuit terminates the case, was served, and is
effective “without necessity of court order.” Tex. R. Civ. Proc. Rule 162. The trial
court’s Response to Request for Clarification confirms these events.
11. Thus, the Parties move for the reinstatement of the appeal in this
Court, and request that this Court grant such Motion.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Parties respectfully
request that this appeal be reinstated.
Respectfully submitted,
By: /s/ Britton L. Larison
BRITTON L. LARISON
Texas Bar No. 24007531
blarison@mcglinchey.com
R. DWAYNE DANNER
Texas Bar No. 00792443
ddanner@mcglinchey.com
MCGLINCHEY STAFFORD, PLLC
2711 N. Haskell Avenue
Suite 2750, LB 38
Dallas, Texas 75204
(214) 445-2445 (Tel.)
(214) 594-5522 (Fax)
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DATED: July 7, 2015
CERTIFICATE OF CONFERENCE
The undersigned represents to this Court that he has conferred with
Elizabeth Bruman, counsel for Appellant, and Elizabeth Flora, counsel for Co-
Appellees, about the merits of this motion and all counsel advised that they are
unopposed to this Motion and agree to the relief sought herein.
/s/ Britton L. Larison
Britton L. Larison
CERTIFICATE OF SERVICE
On July 7, 2015, in accordance with Texas Rules of Appellate Procedure, a
true and correct copy of the foregoing was filed with the Texas E-File system who
will in turn provide a copy of same to all counsel of record: Elizabeth Flora, 5151
Belt Line Road, Suite 410, Dallas, Texas 75254 and Elizabeth M. Bruman, 4560
Cypress Creek Parkway, Suite 104, Houston, Texas 77069.
/s/ Britton L. Larison
Britton L. Larison
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