in Re 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
01-15-00990-CV
| Tex. App. | Nov 24, 2015Background
- Several Mexican citizens (Real Parties) were plaintiffs in U.S. federal suits arising from a 2007 offshore oil-platform accident; Relators are the lawyers who represented them in that federal litigation.
- Federal judges conditionally dismissed the underlying personal-injury suits on forum non conveniens grounds, finding Mexico an available and adequate forum, and included a return-jurisdiction clause allowing reinstatement in U.S. court if Mexican courts refuse jurisdiction.
- Plaintiffs attempted to pursue claims in Mexico; Mexican courts summarily rejected the individual complaints on jurisdictional grounds, and a motion to reinstate in the Eastern District of Texas was denied by Judge Crone, who instructed the plaintiffs to diligently pursue Mexican remedies first.
- Instead of pursuing Mexico remedies, the Real Parties abandoned the underlying claims and sued their former counsel in Texas state court for legal malpractice arising from losing the forum non conveniens fight.
- Relators filed pleas to the jurisdiction and alternative pleas in abatement arguing the malpractice claims are premature and must be dismissed or abated until the underlying litigation is finally resolved; the trial court denied those pleas and allowed an interlocutory appeal on ripeness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ripeness/subject-matter jurisdiction: Are malpractice claims justiciable before the underlying litigation is finally resolved? | Malpractice claim is ripe now; experts can opine about the probable outcome of the underlying suits and damages. | Claims are premature because outcome and injury depend on contingent events (Mexican courts’ acceptance; possible reinstatement in federal court). | Court of appeals petition argues trial court abused discretion by denying plea to jurisdiction; relator seeks mandamus (trial court previously denied pleas). |
| Abatement: Should malpractice suit be abated pending resolution of the underlying litigation? | Plaintiffs assert they may prosecute malpractice separately without pursuing underlying claims further. | Relators: malpractice claims arising from litigation must be abated until underlying litigation is finally resolved; otherwise claims remain speculative and may be moot. | Relators contend trial court abused discretion by denying abatement; appellate relief sought. |
| Adequacy of appeal: Is mandamus appropriate as opposed to post-judgment appeal? | Plaintiffs presumably argue normal appellate review is adequate. | Relators argue appeal is inadequate because substantive rights, defenses, and ability to present outcome of underlying suits would be lost or impaired and waste would result. | Relators assert mandamus is warranted; trial court’s denial prejudicial and not remedied by ordinary appeal. |
| Use of expert testimony to cure prematurity: Can experts predict outcomes to support a malpractice claim before the underlying litigation concludes? | Plaintiffs propose speculative expert proof of what would have happened but for counsel’s conduct. | Relators argue such expert opinion would be speculation layered on hypothetical future events; Apex Towing forbids treating predicted outcomes as substitute for final adjudication. | Relators argue experts cannot make the premature claims viable; trial court should have dismissed or abated. |
Key Cases Cited
- In re Apex Towing Co., 41 S.W.3d 118 (Tex. 2001) (viability of litigation-related malpractice depends on outcome of underlying suit)
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (factors for mandamus relief; preserving substantive rights)
- Patterson v. Planned Parenthood of Houston & S.E. Tex., 971 S.W.2d 439 (Tex. 1998) (ripeness doctrine and prohibition on advisory opinions)
- In re Texas Collegiate Baseball League, Ltd., 367 S.W.3d 462 (Tex. App.—Fort Worth 2012) (abatement of malpractice and related claims pending resolution of underlying litigation)
- In re Bridgestone Americas Tire Operations, LLC, 459 S.W.3d 565 (Tex. 2014) (forum non conveniens principles in Texas context)
- In re United Scaffolding, Inc., 301 S.W.3d 661 (Tex. 2010) (mandamus standards)
- Philips v. Giles, 620 S.W.2d 750 (Tex. App.—Dallas 1981) (malpractice claim premature where underlying liability not yet established)