                                                                                        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
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                                Page 1 of 7
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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                                             Page 2 of 7
                         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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                                                  Page 3 of 7
                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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                                                Page 4 of 7
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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                                             Page 5 of 7
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)




525216.1


                                      Page 6 of 7
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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