Whose Card Is It Anyway?

2 minute read

American Express National Bank v. Sherwood

Dallas Court of Appeals, No. 05-20-00153-CV (January 27, 2022)
Justices Osborne (opinion available here), Reichek, and Carlyle

American Express brought suit against Christopher Sherwood to collect amounts it alleged were due on two credit card accounts. The trial court entered a take-nothing judgment against American Express, finding the bank had failed to prove it owned the accounts at issue. American Express appealed.

The Dallas Court of Appeals carefully reviewed the evidence presented by American Express to determine whether it conclusively proved its right to recover on the two accounts. Although American Express put on testimony from a custodian of records that the outstanding account balances were owed on accounts opened by Sherwood and owned by American Express, many questions remained. For example, there was no evidence explaining why the account number on one of the cards changed from one ending in 62009 to one ending in 61001. Despite the bank witness’s testimony that he was “one hundred percent” confident the two accounts were for the same card, there was no documentation showing the reason for the change in account numbers. The other card had originated with Citibank. The bank witness testified that American Express “took over the Citibank Hilton portfolio,” but there was no documentation of any transfer or assignment of the account at issue. In addition, there was a balance due when the account was allegedly transferred from Citibank to American Express, and American Express did not have any documentation of the Citibank charges that resulted in that balance. Even though Sherwood testified at trial and did not deny those charges were his, the Court held “Sherwood’s silence does not provide affirmative evidence that was otherwise lacking.”
In the end, American Express could not connect all the dots proving its right to collect on either card, and the take-nothing judgment was affirmed.

Does a Doctor of Pastoral Medicine Degree Expand a Practitioner’s Scope of Practice?

6 minute read

There is a mistaken belief that a D.PSc., PSC.D or Doctor of Pastoral Medicine degree from the Texas-based, Pastoral Medical Association, will expand the scope of practice of non-physician, medical providers. Will such a degree allow a nurse practitioner, for example, to provide services or perform medical assessments that they provide could not otherwise perform? Or, can the provider now hold themselves out as a “doctor” without disclosing the type of degree?

Whether disclosed or not, pastoral medical degrees can create confusion about the scope of practice and competency of the provider. Does this “medical” degree confer any authority to offer medical advice to their clients?

There are several internet articles about this degree and potential confusion, but little in the way of public guidance from state agencies.

I searched for disciplinary actions taken by the Texas Medical Board and the Texas Board of Chiropractic Examiners. Reviewing these disciplinary matters, I conclude that advertising or trying to use a pastoral medicine degree in the provision of health care has significant risks.

The Pastoral Medical Association purportedly “qualifies and licenses spiritually-minded health professionals with diverse practice specialties who are committed to partnering with their clients in using scripturally-sound means to achieve and maintain robust mental, physical and spiritual health.” While that description is innocuous enough, the word “Medical” in its name implies a focus beyond its stated purpose.

A problem arises when the activities of the pastoral medicine provider fall within the scope of practice regulated by a Texas licensing board. Because the Pastoral Medical Association is not a governmental agency, it does not have any legal authority to regulate a scope of practice.

Want to see what happens when apastoral medicine provider crosses the line into a scope of practice regulated by the Texas Medical Board or the Texas Board of Chiropractic Examiners?

These are their stories. [Bum. Bum.]

This information was reported publicly by the referenced licensing board. Nevertheless, I have redacted the practitioners’ names.

Texas Medical Board Disciplinary Actions

XXXX XXXXXX, D.C., No TMB License, Austin

On October 25, 2019, the Board directed the Executive Director to enter a Cease and Desist Order regarding XXXX XXXXXX, D.C., prohibiting him from practicing medicine in the state of Texas without a license issued by the Texas Medical Board. Mr. XXXXXX shall not refer to himself as a medical doctor or physician in any manner, by designating himself by using “doctor,” or “Dr.” unless he also designates that he is a doctor of chiropractic as required by the Texas Occupations Code. The Board found Mr. XXXXXX advertised his Doctor of Pastoral Medicine as Dr. XXXX XXXXXX, PSc.D., which is not recognized in Texas and no disclaimer was provided. Mr. XXXXXX does not identify himself as “D.C.” or “Doctor of Chiropractic” after calling himself “Dr.” on his website.

XXXX XXXXXX, No TMB License, Conroe

On August 25, 2017, the Board and XXXX XXXXXX, entered into an Agreed Cease and Desist Order prohibiting Mr. XXXXXX from practicing medicine in the state of Texas without a license issued by the Texas Medical Board; shall cease and desist any unlicensed practice of medicine; and shall cease and desist from identifying himself as a doctor. The Board found Mr. XXXXXX operates a business under the name Simple Wellness and a website and Facebook page where he claims to offer various health services, including “Frequency Specific Microcurrent (FSM) which can be used to treat the following: scar reduction, pain, injuries, fat loss, performance and recovery, energy mood, brain injury, nerve issues, stress trauma, emotions, anxiety, sleep, addiction, ADHD/Focus, autism, depression and PTSD” Mr. XXXXXX also advertises these services in publications such as Psychology Today where he refers to himself as Dr. XXXX XXXXXX,, and states on his website and other promotional materials that he is licensed by the Pastoral Medical Association, an entity that does not confer any authority upon Mr. XXXXXX to practice medicine in the state of Texas under the Medical Practice Act.

XXXX XXXXXX, D.C., No TMB License, Plano

On June 16, 2017, the Board and XXXX XXXXXX, D.C., entered into an Agreed Cease and Desist Order prohibiting Ms. XXXXXX from practicing medicine in the state of Texas, shall cease and desist using the titles Doctor, Medical Doctor, or Physician unless licensed by the Texas Medical Board. Because Ms. XXXXXX is a licensed Chiropractor, she may use the title of “Doctor of Chiropractic” or “D.C.” Ms. XXXXXX shall cease and desist from using the post-nominal titles of Doctor of Functional Medicine, Doctor of Pastoral Medicine, or any other title that is not recognized by Texas as an authority authorizing her use of the prenominal title of Doctor. Ms. XXXXXX shall denote in all promotional materials and biographies that she is not licensed to practice medicine in Texas. The Board found Ms. XXXXXX has identified herself in online promotional materials and biographies using the prenominal title Doctor and used the post-nominal title of Doctor of Pastoral Sciences and Functional Medicine Doctor as the authority authorizing her use of the prenominal title of Doctor neither of which is recognized in the state of Texas.

XXXX XXXXXX, D.C., No TMB License, Austin

On June 10, 2016, the Board and XXXX XXXXXX, D.C., entered into an Agreed Cease and Desist Order prohibiting Mr. XXXXXX from acting as, or holding himself out to be, a licensed physician in the state of Texas. The Board found Mr. XXXXXX’s website and other promotional materials did not make it clear that he does not treat thyroid disease, diabetes, Hashimoto’s disease, fatigue, digestive issues, and autoimmune disorders. Mr. XXXXXX’s website and other promotional materials state he is licensed by the Pastoral Medical Association. This entity does not confer any authority upon Mr. XXXXXX to practice medicine in the state of Texas under the Medical Practice Act.

XXXX XXXXXX, No TMB License, Galveston

On March 4, 2016, the Board and XXXX XXXXXX entered into an Agreed Cease and Desist Order, prohibiting Mr. XXXXXX from acting as, or holding himself out to be, a licensed physician in the state of Texas. Mr. XXXXXX shall cease and desist any practice of medicine and desist from identifying himself as a doctor, unless he does so in compliance with Healing Arts Identification Act. The Board found Mr. XXXXXX refers to himself as Dr. XXXXXX or “doctor” in publications and online without specifying an authority for the use of the title of “Dr.” or “doctor.” Mr. XXXXXX’s website and other promotional materials state he is licensed by the Pastoral Medical Association. This entity does not confer any authority upon Mr. XXXXXX to practice medicine in the state of Texas under the Medical Practice Act.

XXXX XXXXXX, No TMB License, The Woodlands

On March 4, 2016, the Board and XXXX XXXXXX entered into an Agreed Cease and Desist Order, prohibiting Mr. XXXXXX from acting as, or holding himself out to be, a licensed physician in the state of Texas. Mr. XXXXXX shall cease and desist from identifying himself as a doctor, unless he does so in compliance with Healing Arts Identification Act. The Board found Mr. XXXXXX refers to himself as Dr. XXXXXX or “doctor” in publications without specifying an authority for the use of the title of “Dr.” or “doctor.” Mr. XXXXXX’s website and other promotional materials state he is licensed by the Pastoral Medical Association. This entity does not confer any authority upon Mr. XXXXXX to practice medicine in the state of Texas under the Medical Practice Act.

XXXX XXXXXX, D.C., No TMB License, San Antonio

On March 4, 2016, the Board and XXXX XXXXXX, D.C., entered into an Agreed Cease and Desist Order, prohibiting Mr. XXXXXX from engaging in the unlicensed practice of medicine. Mr. XXXXXX shall indicate on each page of his website and other advertising, where the term “doctor or “Dr.” appears, that he is a doctor of chiropractic. In addition, where reference to the Pastoral Medical Association (PMA) appears on his website and other advertising, Mr. XXXXXX shall indicate PMA is not a state licensing agency, and he will comply with Tex. Occ. Code 104.004 with respect to the use of the title “doctor” in relation to his “D.PSc” credential. The Board found Mr. XXXXXX has published information, including Internet website pages, other postings, and mailings that did not at all times make it clear that his is not a medical doctor. Some of the material that Mr. XXXXXX posted and mailed could be read to imply that he treats medical and physical conditions, including chronic conditions of persons.

XXXX XXXXXX, No TMB License, Cedar Park

On March 4, 2016, the Board and XXXX XXXXXX entered into an Agreed Cease and Desist Order, prohibiting Mr. XXXXXX from acting as, or holding himself out to be, a licensed physician in the state of Texas. Mr. XXXXXX shall cease and desist from identifying himself as a doctor, unless he does so in compliance with Healing Arts Identification Act. The Board found Mr. XXXXXX refers to himself as Dr. XXXXXX or “doctor” in publications without specifying an authority for the use of the title of “Dr.” or “doctor.” Mr. XXXXXX’s website and other promotional materials state he is licensed by the Pastoral Medical Association. This entity does not confer any authority upon Mr. XXXXXX to practice medicine in the state of Texas under the Medical Practice Act.

Texas Board of Chiropractic Examiners Disciplinary Actions

XXXX XXXXXX, DC, TBCE Lic. No. XXXX, Houston

[Dr. XXXXXX was required to …] Differentiate his chiropractic practice from any other businesses that are outside the scope of chiropractic practice, remove any references of other businesses from his chiropractic website and provide statement in any advertisements referencing “Pastoral Medicine Association” (PMA), that PMA is not a state-regulated entity.

Two Practice Pointers: Redacting Fee Statements and Post-Judgment Interest Rates

2 minute read

THB Construction, LLC v. Holt Texas, Ltd.

Dallas Court of Appeals, No. 05-20-00020-CV (January 13, 2022)
Justices Myers, Partida-Kipness (Opinion, linked here), and Carlyle

The opinion of the Dallas Court of Appeals in THB Construction included two important reminders, the first for those practitioners proving up attorney’s fees, and the second for those seeking the maximum post-judgment interest allowed by law:

First, when seeking attorney’s fees, don’t go overboard in redacting the fee statements you submit to prove up those fees. Redactions are customary and necessary to avoid revealing confidential information protected by privilege or to eliminate time and expenses for tasks not covered by the fee request. But in THB Construction, the Court found the plaintiff’s redactions to be so extensive for one period of time that those billing records did not constitute “evidence identifying the specific tasks performed, the individual who performed the tasks, and the time each task took,” as required under Rohrmoos. That led to the reversal or remittitur of a significant portion of the fees awarded by the trial court. So, redact as necessary, but be careful and don’t overdo it. And supplement with other evidence if need be.
Second, remember that the Finance Code sets different levels of maximum post-judgment interest, depending on the basis for the judgment. In most circumstances, the post-judgment interest rate is 5%, unless the prime rate is higher. Tex. Fin. Code § 304.003. If the judgment is based on a contract “that provides for interest or time price differential,” however, post-judgment interest accrues at the “rate specified in the contract,” as one would expect. Tex. Fin. Code § 304.002. But, if the contract provides for interest but doesn’t specify a rate, then the court should order post-judgment interest at “18 percent a year.” Id.

Foreign Finality

2 minute read

Moreno v. Halperin

Dallas Court of Appeals, No. 05-20-00858-CV (December 14, 2021)
Justices Myers and Garcia (Opinion, linked here) [Burns, C.J., recused]

Filing a “foreign” judgment for domestication in Texas under the Uniform Enforcement of Foreign Judgments Act “instantly creates a Texas judgment that is enforceable.” The clock therefore immediately begins ticking on a potential appeal (limited though that may be in scope) and any post-judgment motions.

A federal court in Delaware entered judgment against Moreno and in favor of a bankruptcy trustee based on Morenno’s wrongful diversion of funds from the debtor in bankruptcy. The court awarded the trustee several million dollars and imposed a $10 million constructive trust on Moreno’s home in Highland Park, which allegedly had been purchased with the diverted funds. On January 22, 2020, the trustee domesticated that judgment in Dallas County in accordance with the UEFJA by filing it in a state district court. And then the fun began.
Moreno promptly filed a motion to vacate the judgment, arguing the Texas homestead exemption precludes enforcement of the constructive trust on his Highland Park home. Soon thereafter, Moreno’s wife intervened to assert her interest in the Highland Park property, and the trustee then asserted claims against Moreno’s wife and sister for fraudulent transfer and sought judicial foreclosure with respect to the property. The trial court denied Moreno’s motion to vacate on September 10, 2020, and Moreno filed his notice of appeal a few days later.
The Dallas Court of Appeals dismissed Moreno’s appeal for want of jurisdiction, finding his notice of appeal untimely. While his motion to vacate functioned as a motion for new trial, extending the initial deadline to appeal, even that extended deadline expired April 21, 2020—90 days after the foreign judgment was domesticated and became a final Texas judgment. The trial court’s September 10 order denying that motion to vacate did not resurrect Moreno’s right to appeal, because that order was void. The trial court had lost plenary jurisdiction months earlier, 105 days after the creation of the Texas judgment (30 days after Moreno’s motion was denied by operation of law, 75 days after the judgment). But, Moreno argued, the pendency of his sister’s intervention and the trustee’s fraudulent transfer and foreclosure claims surely made the “judgment” non-final, because it did not dispose of all issues and all parties. Alas, no. Those claims and issues pertained only to enforcement of the judgment. They did not alter the finality of the judgment at the time it was domesticated and therefore did not extend Moreno’s time to appeal.

Finality Bites

2 minute read

In re Woods Capital Enterprises, LLC

Dallas Court of Appeals, No. 05-21-00188-CV (November 8, 2021)
Justices Molberg, Reichek, and Smith (Opinion, linked here)

Beware Mother Hubbard, the source of unintended consequences—in this case, a loss of jurisdiction.
        
Woods Capital sued DXC Technology in Collin County, alleging DXC had breached a contract to sell it a parcel of real property. Woods Capital also filed a notice of lis pendens on that property. DXC moved to dismiss Woods Capital’s claims under the TCPA and to expunge the lis pendens. The trial court granted the motion to expunge and set a separate hearing on DXC’s TCPA motion and its request for fees relating to expunction of the lis pendens. During that hearing, counsel for DXC “asked the trial court to ‘table the motion for attorneys’ fees [on lis pendens] at this time because it may be double work that’s unnecessary based on how the Court handles the TCPA motion.’” The trial court granted DXC’s TCPA motion and awarded it fees under the TCPA. It did not expressly rule on the “tabled” lis pendens fee application. Thereafter, the court entered final judgment that included familiar Mother Hubbard language: “all other relief heretofore requested by any party, but not expressly granted by an Order of the Court, is DENIED. This Order finally disposes of all remaining claims and parties, and is appealable.”
The court of appeals reversed the trial court’s TCPA ruling, including the award of fees under that statute, and remanded. Woods Capital promptly nonsuited its claims and re-filed in Dallas County. DXC then attempted to assert a counterclaim for its lis pendens fees in the original Collin County case. Woods moved to dismiss for lack of jurisdiction, but the trial court denied that motion. Woods Capital sought mandamus relief, which the Dallas Court of Appeals granted.
DXC argued that Woods Capital’s nonsuit had no effect on its lis pendens fees claim. But the Court of Appeals concluded that claim had been dismissed by the recitation in the final judgment that “all other relief heretofore requested by any party, but not expressly granted by an Order of the Court, is DENIED,” and was therefore no longer pending after the appeal. “Had DXC believed the trial court erred by denying its lis pendens fee application,” the appeals court said, “it needed to file a cross appeal in the TCPA case.” It did not. So, when the appeals court remanded, the only claims left in the trial court were those asserted by Woods Capital. And when Woods nonsuited, that divested the trial court of jurisdiction.
The moral: Be careful with Mother Hubbard. She may not behave as you expect.

Part I: What’s Going On? Handling Licensing Board Investigations from Complaint to SOAH Hearing

7 minute read

This is a four-part series on Handling Licensing Board Investigations from Complaint to SOAH Hearing. In preparation for this series, I talked to several of the staff attorneys and investigators for the Texas Medical Board, the Board of Nursing, and the Board of Chiropractic Examiners. I asked them what advice they would give lawyers practicing before their boards. Some of the suggestions throughout this series come from the staff attorneys and others come from trial and error on my part through years of representing clients before these boards.

The series will present issues associated with the phases of the investigation and resolution:

  1. Part I – What’s Going On?
  2. Part II – The Investigation
  3. Part III – The Informal Settlement Conference (ISC)
  4. Part IV – The SOAH Hearing

The purpose of this series is to give licensees and their attorneys a greater understanding of the complaint and investigation process. Of course, each board is different and each investigation is driven by the issues and personalities involved. Licensees and their attorneys are encouraged to understand the rules and processes applicable to the relevant board. Further materials about the complaint, investigation, and hearing process are available on board websites.

Part I of the series will help licensees and attorneys who are new to board investigations get their bearings and understand the rules and processes involved.

Phases of Licensing Board Complaints

Licensing board complaints and investigations usually follow two general phases. There’s the informal phase from the filing of the complaint to the informal settlement conference and agreed order. If a licensee chooses not to accept the board’s resolution, the practitioner can request a more formal hearing before the State Office of Administrative Hearings (SOAH).

The strategies of each phase are very different. In the informal phase, you deal with a panel of 3 members of the licensing board. There is no impartial third party like a judge. Licensing boards are not impartial. I’m not suggesting they are unfair, but they are not impartial. They have an obligation to police their licensees and hold them accountable. The panelists come into an Informal Settlement Conference (ISC) with the intent to serve that purpose. ISCs are much more like mediations where you have a dialogue with panelists and a staff attorney and try to convince them to dismiss the complaint or to minimize the scope and degree of the violation and penalty.

If you get to the more formal SOAH hearing, there will be an administrative law judge, but no jury. The judge is impartial, but depending on the board involved, has varying degrees of authority in the outcome of the matter. After the hearing (like a trial), the judge will make findings of fact and conclusions of law. Most boards do not have to accept those findings and conclusions. And all the boards have the flexibility to take disciplinary action despite the findings.

TMB Statistics

I’ll give you some context about the scope of licensing board complaints with a few statistics. These are statistics from the Texas Medical Board (TMB) only. I have not included other licensing boards.

There are roughly 9,000 complaints that are filed annually. If you do the math that translates to about 750 complaints per month, about 25 complaints each day. The TMB tells me that about 90% of these complaints are dismissed, either on jurisdictional issues or because they do not pass a preliminary evaluation. Roughly 10% of those complaints, or 900, continue beyond the preliminary evaluation phase and into a phase where the board is considering some type of sanction or penalty.

Those that continue are relatively significant matters. Many practitioners think that any complaint against them must be bogus and therefore all they need to do is tell the board their version of the events and it will all go away. I will no go away. The board has already determined that the allegation, if true, is significant enough for them to impose some kind of sanction. The complaint can still get dismissed, in this phase, but that is the exception rather than the rule.

Most of these 900 complaints are ultimately resolved by agreed order either before or after an informal settlement conference. The vast majority are resolved by agreed order. If they are not resolved by agreed order, then they proceed to the State Office of Administrative Hearings (SOAH) for trial.

Types of Violations

Before we dive into the different phases of a complaint, I want to give you an idea of the types of violations that the practitioners can find themselves facing.

It could be quality of care issues where the allegation is that the practitioner has violated the applicable standard of care. It could be impaired physician issues where the physician’s ability to practice is compromised by substance abuse.

The complaint could also allege business issues like over-billing, deceptive advertising, or breaches in confidentiality. Maybe they did not close the doors of their practice appropriately and face allegations of patient abandonment. Or perhaps the practitioner failed to provide required disclosures to their patients.

Licensing boards are seeing an increase in what’s called, "boundary cases.”These are situations in which the provider has crossed a professional line by attempting to engage in an inappropriate personal relationship with the patient. Pro-tip: Practitioners, do not friend your patients on Facebook. Nothing good will come of it.

Finally, in almost every case, there will be an allegation of unprofessional conduct, which is kind of a catch-all. It’s very broad and very common.

Disciplinary Actions and Outcomes

There is a slew of possible outcomes from a board investigation. The panel can recommend dismissal of the complaint at any stage. I have had complaints dismissed before and after Informal Settlement Conferences, but it is not common.

If disciplinary action is warranted, the board has several tools available. They can revoke or suspend a license. They can put the licensee on probation. They can impose monetary fines, continuing education, monitoring, and reporting. When an agreed order is proposed, the board will often recommend several of these options.

All agreed orders will impose continuing education which will include, at a minimum, a Texas jurisprudence course. Depending on the findings of the panel, they will also require topical subjects like medical decision-making, nursing judgment, documentation, supervision of mid-levels, or understanding board orders. These classes are available online and usually take 2-6 hours each to complete. The agreed order will give the licensee a time period to complete the courses, during which the licensee remains on probation. If continuing education is the only disciplinary action, then the probation ends when the courses are complete.

The agreed order might also require monitoring and reporting. The licensee is required to check in with a monitor at regular intervals. The monitor will then report to the board the status of the licensee’s progress. For example, for nurse practitioners under the supervision of a physician, the Board of Nursing may require the supervising physician to file certain quarterly performance assessments.

I’ll discuss the process of negotiating agreed orders in Part II – The Informal Process.

Once a panel makes its recommendation, the matter will be considered by the full board at its next quarterly meeting. Agreed orders are not final until approved by the entire board.

The licensing board will publish the outcome of the investigation in its quarterly newsletter and online. The disciplinary action will also be reported to the National Practitioner Data Bank.

Boards, Boards Everywhere

You might be surprised at the number of healthcare licensing boards in Texas. The boards everyone is familiar with are the Texas Medical Board (TMB), the Texas Board of Nursing (BON), the State Board of Dental Examiners (TSBDE), the Texas Board of Chiropractic Examiners (TBCE), the Texas Optometry Board (TOB) and the State Board of Pharmacy (TSBP). I find it interesting that each of these boards has a slightly different naming convention. I presume there are historical reasons for this. Each of these boards has a separate governing body and is granted rulemaking authority by the Texas legislature.

Some boards are grouped under executive councils. For example, the Executive Council of Physical and Occupational Therapy Examiners is made up of the Texas Board of Physical Therapy Examiners and the Texas Board of Occupational Therapy Examiners, each of which has its own governing board members. And there’s the Texas State Board of Professional Counselors, which is part of the Texas Behavioral Health Executive Council that regulates the behavioral health services and social work practice in Texas.

Last, but not least, there are additional boards that are subboards or advisory boards of the Texas Medical Board, like the Texas Physician Assistant Board, the Texas State Board of Acupuncture Examiners, and the Texas Board of Medical Radiologic Technology. These boards have a separate governing board, but they do not have independent rulemaking authority. Instead, they operate under the rules of the TMB.

As you can see, licensed healthcare providers are subject to the oversight of the board that issues their license. These boards have similar, but separate, rules for handling complaints and imposing disciplinary actions.

All of the board rules are published in Title 22 of the Texas Administrative Code, Examining Boards. Many of the rules also refer to the relevant statutory authority.

Texas Medical Board

Texas Nursing Board

Texas Board of Chiropractic Examiners

Texas State Board of Dental Examiners

Up Next: the Investigation

In Part II – The Investigation, I’ll review the board investigatory process and the discovery issues involved.

Was Evidence “Admitted” During Zoom Hearing?

2 minute read

Kazi v. Sohail

Dallas Court of Appeals, No. 05-20-00789-CV (October 28, 2021)
Justices Molberg, Goldstein (Opinion available here), and Smith

        After conducting a hearing via Zoom, the trial court entered a temporary injunction against Defendants, and Defendants appealed, arguing there was no evidence to support the order. They contended that the Plaintiff had presented no live witnesses and that none of the affidavits or exhibits referred to during the hearing were actually admitted into evidence.

        The Dallas Court of Appeals disagreed and affirmed the temporary injunction. The trial court’s emergency standing order in effect at the time of the Zoom hearing—prompted by the COVID-19 pandemic—encouraged litigants to present evidence through affidavits, declarations, and depositions rather than through live testimony, when possible. The order further provided that parties wishing to admit exhibits or other evidence must electronically deliver the same to the court reporter, court coordinator, and opposing counsel prior to the hearing. Plaintiff’s counsel complied with that order and, during the hearing, referred to the evidence that was “put on the record” and stated he would consider such evidence “part of the record unless any objections arise.” Defendants’ counsel did not object to the evidence being “put on the record” and did not object to Plaintiff’s counsel referring to the evidence throughout the hearing. In the temporary injunction order, the trial court referred to the “evidence presented” during the hearing and stated that Plaintiff had “offered evidence” in support of his position.
The Court of Appeals held that, even though the trial court did not use “magic words” admitting Plaintiff’s affidavits and other electronic submissions into evidence, it was clear from the record that the trial court considered the electronically submitted evidence in determining whether to grant the temporary injunction. Under those circumstances, the Court concluded that the trial court did not abuse its discretion in granting a temporary injunction based on the electronically submitted evidence.

No Evidence? No Problem! Court Takes Judicial Notice of Property Records to Dismiss Based on Mootness

less than a minute

Courtney D. Alsobrook v. MTGLQ Investors, LP

Dallas Court of Appeals, No. 05-20-00400-CV (October 26, 2021)
Justices Myers, Partida-Kipness (Opinion, linked here), and Garcia

        Alsobrook stopped making mortgage payments on her house, and MTGLQ, the mortgagee, gave notice that it planned to foreclose. Alsobrook obtained a temporary restraining order stopping the foreclosure sale, but she never obtained a temporary or permanent injunction stopping future foreclosure proceedings. The trial court eventually granted MGTLQ’s motion for summary judgment. Alsobrook appealed.

        In its response brief on appeal, MTGLQ argued the appeal was moot because Alsobrook’s property had been sold at a foreclosure sale after the trial court entered judgment. But MTGLQ did not file a copy of the foreclosure sale deed or any other tangible proof of the sale. Nevertheless, the Court explained that it had the power to take judicial notice, for the first time on appeal, of facts that are a matter of public record and not subject to reasonable dispute.
        Rockwall County Central Appraisal District’s online records showed that the house was conveyed away from Alsobrook by foreclosure sale and identified someone other than Alsobrook as the current owner. Therefore, the Court took judicial notice of the sale. Because the property at issue had been sold, the Court held Alsobrook’s case had become moot and dismissed the appeal without considering the merits.

Beyond Mandamus: Writ of Injunction Secures Relief from Trial Court Order Pending Appeal

less than a minute

In re David Mu

Dallas Court of Appeals, No. 05-21-00323 (October 12, 2021)
Justices Myers, Partida-Kipness, and Carlyle (Opinion, linked here)

The trial court issued a protective order requiring Mu to complete a Batterer’s Intervention and Prevention Program (BIPP) no later than 30 days before the first anniversary of the order. Mu appealed and asked the trial court to stay the BIPP requirement pending that appeal, arguing that it violated his Fifth Amendment right against self-incrimination, because the course would require him to discuss his alleged bad acts before the statute of limitations had expired. The trial court denied Mu’s request to stay the BIPP requirement. So, Mu sought a writ of injunction against the BIPP requirement from the court of appeals.

An appeals court can grant writs of injunction only in limited circumstances, one being to prevent an appeal from becoming moot. Here, the Dallas Court of Appeals concluded that if Mu had to complete the BIPP course before the appeal was resolved, any relief on appeal could be ineffectual. Therefore, the court of appeals granted a writ of injunction enjoining the trial court from enforcing the BIPP requirement pending the appeal.

It’s Still the Law: Incorporating the AAA Rules Delegates Determination of Arbitrability to the Arbitrator

2 minute read

Holifield v. Barclay Properties, Ltd.

Dallas Court of Appeals, No. 05-21-00239-CV (October 5, 2021)
Justices Schenck (Opinion, linked here), Smith, and Garcia

        Barclay built and sold a home to the Holifields. When construction defects allegedly cropped up, the Holifields sent notice of those defects not only to Barclay, but also to others with which Barclay was hoping to do business. Because of that, Barclay sued the Holifields for tortious interference. But the contract between Barclay and the Holifields contained a broad arbitration provision, in which the parties agreed that “any controversy or claim … arising out of or relating to … this Contract [or] … the construction and/or sale of the Property” would be “submitted to binding arbitration with the AAA.” When the Holifields moved to compel arbitration of Barclay’s tortious interference claim, however, the trial court denied that motion. The Dallas Court of Appeals reversed, ruling that “it is for the arbitrator to decide whether Barclay must arbitrate its claim against the Holifields.”

        In addition to being broad in scope, the parties’ arbitration agreement provided that disputes would be arbitrated “in accordance with the Construction Industry Arbitration Rules of the AAA.” AAA Construction Rule 9 dictates that the arbitrator “has the power ‘to rule on his or her own jurisdiction.’” As a result, the Court said, the issue of arbitrability was entrusted to the arbitrator, not the trial court. “When, as here, the parties agree to a broad arbitration clause and explicitly incorporate rules empowering the arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties’ intent to delegate such issues to an arbitrator.” In fact, the Court said, “Where the parties’ contract clearly and unmistakably delegates the arbitrability question to the arbitrator, the court possesses no power to decide the arbitrability issue.”
        Barclays argued that in Jody James Farms v Altman, 547 S.W.3d 624 (Tex. 2018), the Supreme Court of Texas had rejected the principle that incorporation of the AAA rules constituted “clear and unmistakable evidence of the parties’ intent to delegate” the determination of arbitrability to the arbitrator. Not so, said the Dallas Court. The Supreme Court in Jody James rejected that principle only in the context of an arbitrability dispute between a party that was a signatory to the arbitration agreement and another party that was not. It did not rule on the issue in the context presented here, where both parties had agreed to delegate arbitrability to the arbitrator under the AAA rules.