Case Information

*0 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 6/4/2015 2:38:02 PM LISA MATZ Clerk *1 ACCEPTED 05-15-00458-cv FIFTH COURT OF APPEALS DALLAS, TEXAS 6/4/2015 2:38:02 PM LISA MATZ CLERK

June 3, 2015

Re: Shane Langston v. Freese & Goss, et al. , Court of Appeals No. 05-15-00458-CV

AMENDED LETTER BRIEF

Dear Honorable Appellate Judges and Clerk Matz:

This letter brief is in response to the Court’s letter from Ms. Matz dated June 2, 2015. I

represent myself in this appeal. The Texas Court of Appeals, Fifth District, Dallas, does have jurisdiction over the subject

appeal because the March 19, 2015 trial court order (denying sanctions) is a FINAL appealable

order as to the appellant NON-PARTY Shane Langston.

While I have located no case from the Texas Court of Appeals or the Texas Supreme

Court directly addressing the jurisdictional issue before this Court, the prevailing law in multiple

jurisdictions throughout the country is that an order entered against a non-party relative to

sanctions is a FINAL appealable order. See, e.g., OSRecovery, Inc., v. One Group International, Inc. , 462 F.3d 87 (2nd Cir. 2006); Rae v. Pennsylvania Funeral Directors , 925 A.2d 197

(Pa.Cmwlth. 2007); Covey Oil Company v. Continental Oil Company , 340 F.2d 993 (10th Cir.

1965); Burden-Meeks v. Welch , 319 F.3d 897 (7th Cir. 2003) (“Courts recognize one distinction

between appeals by parties and appeals by non-parties: parties must wait until the end of the case

or a finding of criminal contempt, while non-parties may appeal from a finding of civil

contempt.”). Etc. Brief Summary of Issue and Order subject to Instant Appeal: The underlying trial court

action involves one group of attorneys suing another group of attorneys. One of the attorney

defendants is my father-n-law Chuck McRae, Esq., a former Mississippi Supreme Court Justice

now in private practice in Mississippi. Since the date of its filing until the present all issues and

related discovery have been stayed until the trial court rules on the defendants’ motion to dismiss

for lack of personal jurisdiction.

My wife and I are attorneys licensed in Mississippi. We own and operate the law firm

Langston & Langston. We moved to Texas last year and soon intend to apply for a Texas bar

license. WE ARE NOT PARTIES TO THE UNDERLYING ACTION. Further, the Order

subject to this appeal has absolutely no nexus or connection with the underlying cause because

we are not parties to the underlying action and are not attorneys representing anyone in the

underlying action. (By contrast, if we were parties and/or attorneys in the underlying action then

the trial court’s denial of the sanctions would have a nexus to the underlying lawsuit and would

not be a final appealable order.)

Presumably to help develop facts that would help establish personal jurisdiction over

McRae, plaintiffs Freese & Goss, et al., and their counsel (collectively “F&G”) sought to take

the depositions of my wife and me. Though the length restrictions in this letter brief will not

permit me to explain the abusive, harassing, frivolous, bad faith, “bullying tactics” of F&G,

suffice it to say that the deposition subpoenas duces tecum (i.e., 25 categories of document

requests asking for every client file for years, all law firm banking records for years, personal contracts, e.g., prenuptial, between my wife and me, personal financial statements, etc., etc., etc.)

caused by F&G to be issued for service on my wife and me were the most harassing, overly

broad, bad faith subpoenas this Court will ever review. Even worse, F&G did not serve the

subpoenas on my wife or me; but then filed a patently frivolous motion for contempt falsely

claiming, among many other falsehoods, that we were served and that we failed to show; etc.,

etc. Thus, F&G, without our presence at a hearing or knowledge of a hearing, secured (through

falsehoods) a “Show Cause” order against us. Etc., etc.

We filed a motion to quash and for sanctions, with sworn affidavits, etc. ^[1] F&G never

filed a response. Never contested their bad faith conduct. We had an evidentiary hearing where

my wife and I gave sworn, live testimony. F&G contested nothing. Though the document

subpoenas duces tecum were quashed and the Show Cause order set aside, and though the trial

court found the subpoenas unreasonable and overly broad to the point that it “angered” Your

Honor, and that the motion for contempt had “no apparent factual basis”; the court without

explanation just denied sanctions.

Finality of Order: This Court in its June 2 nd letter cited In re Ron SMITH , 192 S.W.3d

564 (Tex. 2006) for the proposition that a sanctions order is reviewable on appeal from a final

judgment. Respectfully, the Court is absolutely correct if the sanction order is against a party

litigant and/or its counsel. However, In re Ron Smith did not involve a sanction order adverse to

a non-party. It cited and relied on a one-paragraph holding in Arndt v. Farris , 633 S.W.2d 497 (Tex. 1982), which held that, “Adequate and effective review of discovery sanctions can be

obtained by appeal [4] once the sanctions become part of a final judgment.” Arndt , 633 S.W. 2d

at 500. This holding applied only to parties and their counsel.

Federal appellate court jurisdiction, under 28 U.S.C. §1291, restricts jurisdiction to

appeals of “final decisions.” It, like Texas, simply provides that , “The courts of appeals . . . shall

have jurisdiction of appeals from all final decisions of the district courts . . . .” Id.

What is a “final decision” for purposes of appellate review, however, depends on

whether the aggrieved appellant is a party or non-party. In United States v. Columbia

Broadcasting System, Inc. , 666 F.2d 364 (9th Cir. 1982), a party litigant issued and served

oppressive, harassing subpoenas duces tecum on non-parties commanding them to produce

massive quantities of documents. The non-parties moved to quash. The court ordered

production of most of the documents. The non-parties produced the documents at a cost of

several millions of dollars and then moved for costs. Id. at 366. The trial court denied the costs and the non-parties appealed before a final judgment on the underlying case was entered. On

appeal, appellees challenged jurisdiction. The 9 th Circuit Court of Appeals rejected the challenge

and found as follows:

*3 The finality requirement is designed to balance the institutional interests of the

courts in efficiency against the individual litigant's interest in obtaining prompt review.

By preventing premature interference with discretionary trial court orders, the finality

rule minimizes the disruption and delay of trial court functions and the strain on both the

parties and judicial system caused by proliferation of appellate proceedings by piecemeal

review of interlocutory orders. See generally, 15 Federal Practice and Procedure: Civil,

supra, § 3912; 9 Moore's, supra, at P 110.07.

Consistent with these considerations, the Court has given the finality requirement a

"practical rather than a technical construction," Cohen, 337 U.S. at 545, 69 S.Ct. at 1225,

and has recognized certain exceptions to the rule. See Forgay v. Conrad, 47 U.S. (6

How.) 212, 214, 12 L.Ed.2d 404 (1848) (hardship doctrine); Cohen, 337 U.S. at 546-47,

69 S.Ct. at 1225-26 (collateral order doctrine); Gillespie v. United States Steel Corp., 379

U.S. 148, 152-54, 85 S.Ct. 308, 310-12, 13 L.Ed.2d 199 (1964) (pragmatic finality). The

critical inquiry in determining whether a particular order is appealable under one of these

exceptions to the finality rule is not only whether the order fits neatly within the

exception, but, additionally, whether appeal would be consistent with the purposes of the

rule. Andre, Jr., supra, 55 N.Y.U.L.Rev., at 1062.

To come within Cohen 's collateral order doctrine "the order must conclusively

determine the disputed question, resolve an important issue completely separate from the

merits of the action, and be effectively unreviewable on appeal from a final judgment." . .

. . Although most discovery orders do not meet the requirements of the collateral order

doctrine, ^[5] even as to nonparties, ^[6] the subject order clearly falls within the narrow class

of orders that does. ^[7] First, the order denying costs was not, in the language of Cohen,

"tentative, informal or incomplete," . . . . The order left no issue as to costs, or as to any

other matter affecting the studios' involvement in the action, "open, unfinished or

inconclusive." Id. Second, the order resolved an issue "separable from, and collateral to,

rights asserted in the action." Id. Because discovery against the studios was complete

when costs were denied, appeal entailed no risk of delaying proceedings in the underlying

action. The post-production denial of costs was "too independent of the cause itself to

require that appellate consideration be deferred until the whole case is adjudicated." Id. at

546, 69 S.Ct. at 1225. Third, this is not a case of merely "deferring" review, for we see no

way that the nonparty studios could have protected themselves by appeal from the

consent judgments eventually entered against the networks.

Id. at 370.

I have no further participation in the underlying action. This action could continue for

years. Likely, had I not appealed defendants would argue that my right to appeal had expired.

/s/ Shane Langston, pro se Appellant

[1] My wife and I began this process representing ourselves pro se . We later felt the need to hire co-counsel, Krisi Kastl, Esq. Ms. Kastl represented us throughout the final trial court hearing. I am prosecuting this appeal .