                                                                                                        ACCEPTED
                                                                                                    01-15-01044-CV
                                                                                         FIRST COURT OF APPEALS
                                                                                                 HOUSTON, TEXAS
                                                                                              12/28/2015 4:26:30 PM
                                                                                              CHRISTOPHER PRINE
                                                                                                             CLERK


                        NO. 01-15-01044-CV
__________________________________________________________________
                                                          FILED IN
               IN THE COURT OF APPEALS FOR THE1st COURT OF APPEALS
                                                      HOUSTON, TEXAS
             FIRST DISTRICT OF TEXAS AT HOUSTON    12/28/2015 4:26:30 PM
__________________________________________________________________
                                                   CHRISTOPHER A. PRINE
                                                                                 Clerk
                                          Don Prochaska,
                                                              Appellant,
                                                v.

         Matthew Barnes, Montcalm Co., LLC and Schain Leifer Guralnick

                                           Appellees.
__________________________________________________________________

             APPELLEE SCHAIN LEIFER GURALNICK’S
                   OBJECTION TO MEMORANDUM
               ORDER OF REFERRAL TO MEDIATION
__________________________________________________________________
            From the 334th District Court of Harris County, Texas.
                     Trial Court Cause No. 2013-35800
__________________________________________________________________
       TO THE HONORABLE COURT:

       Appellee Schain Leifer Guralnick (“SLG”) files this Objection to the Memorandum

Order of Referral to Mediation (the “Referral Order”), pursuant to Tex. Civ. Prac. & Rem. Code

Ann. §154.022, and would respectfully show unto the Court the following:

                                  PROCEDURAL HISTORY

       1.      On December 18, 2015, this Court issued the Referral Order.

       2.      The Referral Order provides that any party may file an objection to the referral

within ten days of receiving the Order.




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       3.         SLG received the Order via electronic mail from counsel to Appellant Don

Prochaska (“Prochaska”) on December 20, 2015 and so the current Objection is timely.

       4.         This action was commenced by Prochaska filing an Original Petition in the

District Court of Harris County, Texas (the “Trial Court”) on or around June 17, 2013.

       5.         SLG thereafter filed a Special Appearance asserting that it was not subject to

personal jurisdiction in the State of Texas. Following the conclusion of extensive jurisdictional

discovery, SLG filed a Second Amended Special Appearance on October 27, 2014, in which it

substantiated the following:

                  (a)    SLG is not a Texas entity, and is organized under the laws of the State of

New York;

                  (b)    SLG does not maintain any office or asset of any kind in Texas and has no

employees, agents, and/or representatives that live or work in Texas;

                  (c)    SLG has no systematic and continuous contacts with the State of Texas

such as to subject it to the jurisdiction of a Texas court;

                  (d)    SLG in no manner invoked the benefits and protections of the laws of

Texas within the context of this lawsuit;

                  (e)    SLG does not own property, maintain a bank account, or pay taxes in the

State of Texas;

                  (f)    SLG has not committed any tort, in whole or in part, within Texas to

which it would be liable;

                  (g)    SLG did not purposefully avail itself of the privilege of conducting

activities with the forum of Texas;




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               (h)     SLG has neither entered into contracts nor engaged in substantial business

transactions in Texas in connection with the subject matter of this case; and

               (i)     SLG is not “essentially at home” in Texas as required by Daimler AG v.

Bauman, -- U.S. --, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014).

        6.     On November 3, 2015, following a hearing, the Trial Court signed an Order

granting SLG’s Special Appearance and dismissing all claims and causes of action against SLG

on the grounds that it was not subject to personal jurisdiction within the State of Texas.

        7.     Prochaska noticed an interlocutory appeal of that dismissal on or around

December 7, 2015.

        8.     SLG now objects to the Referral Order on the grounds that: a) SLG has already

been held not to be subject to personal jurisdiction in the State of Texas and so should not be

required to appear here to participate in a mediation or to pay a mediator located here; and b) The

likely costs of mediation significantly exceed the reasonable settlement value of the case, as SLG

is confident of its ability to obtain an affirmance of the Trial Court’s dismissal at minimal

expense.

                                           POINT ONE

 SLG SHOULD NOT BE COMPELLED TO MEDIATE BECAUSE IT HAS ALREADY
  BEEN FOUND NOT TO BE SUBJECT TO PERSONAL JURISDICTION IN TEXAS

        9.     SLG was previously dismissed by the Trial Court—who considered an extensive

jurisdictional record, developed over the course of several months of discovery—on the grounds

that SLG lacked sufficient contacts with the State of Texas to subject it to personal jurisdiction

here.

        10.    SLG should consequently not now be required to invest further time, money and

resources in mediation by the courts of this state. Specifically, given the lack of personal


                                                 3
jurisdiction over SLG, it should not be compelled to pay its longtime counsel to prepare for,

travel to and participate in mediation in Texas. Moreover, SLG should not be required to pay a

Texas mediator, when SLG is not subject to suit in Texas. Indeed, compelling SLG to do so in

the face of a finding that it is not subject to jurisdiction would arguably violate its federal right to

due process.

                                            POINT TWO

       MEDIATION WOULD BE UNPRODUCTIVE AND WOULD EXCEED ANY
                   REASONABLE SETTLEMENT VALUE

       11.     SLG believes that it can prepare and file a brief in support of an affirmance at

minimal cost due to the fact that the record is closed and the sole question on appeal is whether

SLG is subject to jurisdiction in the State of Texas.

       12.     Furthermore, SLG is confident of its ability to obtain an affirmance due to the

extensive degree of discovery afforded to Prochaska by the Trial Court and the length of the

Trial Court’s deliberation before dismissing SLG.

       13.     Consequently, SLG believes that the cost of participating in mediation is likely to

exceed both its costs on the appeal and the reasonable settlement value of the now-dismissed

claims against it.




                                                   4
      14.    For the foregoing reasons, Appellee Schain Leifer Guralnick objects to the

Court’s Memorandum Order of Referral to Mediation.



                                         Respectfully submitted,

                                         RYMER, MOORE, JACKSON & ECHOLS, P.C.


                                         By:    /s/ Clinton J. Echols
                                                Clinton J. Echols
                                                State Bar No. 00790625
                                                2801 Post Oak Blvd., Suite 250
                                                Houston, Texas 77056
                                                Telephone: (713) 626-1550
                                                Facsimile: (713) 626-1558

                                         ATTORNEYS FOR APPELLEE
                                         SCHAIN LEIFER GURALNICK




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                                   CERTIFICATE OF SERVICE

       I hereby certify that I have caused a true and correct copy of the foregoing instrument to
be served upon the following counsel of record herein by method indicated on this 28th day of
December, 2015:

Anthony L. Vitullo                                 Via Electronic Mail
Lance L. Livingston
FEE SMITH SHARP & VITULLO LLP
Three Galleria Tower
13155 Noel Rd., Ste. 1000
Dallas, TX 75240

Attorney for Plaintiff-Appellant
Don Prochaska

Robert L. Plotz                                    Via Electronic Mail
LAW OFFICES OF ROBERT L. PLOTZ
565 Fifth Avenue, 7th Floor
New York, NY 10017

Gregg Weinberg, Esq.
Frank Carroll, Esq.
ROBERTS MARKEL WEINBERG P.C.
2800 Post Oak Blvd., 57th Floor
Houston, TX 77056

Attorneys for Defendants-Appellees
Matthew Barnes and Montcalm Co., LLC




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Keith M. Fleischman, Esq.                       Via Electronic Mail
Ananda N. Chaudhuri, Esq.
THE FLEISCHMAN LAW FIRM
565 Fifth Avenue, 7th Floor
New York, NY 10017

Patrick Andrew Zummo
LAW OFFICES OF PATRICK ZUMMO
3900 Essex Lane, Suite 800
Houston, TX 77027

Attorney for Defendants Jonathan Feldman,
Patriot Exploration Company, LLC, and
Millennium Drilling Co., Inc.

Stacy Lee Williams                              Via Electronic Mail
LOCKE LORD LLP
600 Travis St., Suite 3400
Houston, TX 77002

Attorney for Defendant Carter Henson, Jr.



                                            /s/ Clinton J. Echols
                                                Clinton J. Echols




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