i'm very interested in answering your questions today so i believe they'll be the most there's three me to go talk oh i'm sorry your honor but there are there are there are three main reasons why the district court abuse its russian and compelling arbitration first the texas supreme court in merrill lynch made it very clear and i quote if the parties have not agreed to arbitration no trial court has discretion to make them go here it is undisputed that dr hayes never agreed to arbitrate any claims against a ca seconds and compelling arbitration the district court relied on the intertwined claims theory which has never been adopted by the texas supreme court and has been rejected by both federal and state courts in texas including in the southern district of texas in an opinion that this court affirmed in full just recently third even if the intertwined claims theory was valid the district court did not make the requisite findings for that theory to apply on the first point it's undisputed the dr hayes never agreed to arbitrate any claims against the document that's claimed to require arbitration the position employment agreement specifically says it's entered into between austin judge olson said that's not enough in texas it doesn't  honor he did he worked at many hospitals throughout his career many different health care so yes or at the same time he was paid by two separate entities and so had multiple different employers and that's what he is alleging in terms of against h c a as his separate relationship with h c a you know in terms of the initial argument in fact the austin heart when it was compelling arbitrations state court h c a was represented by the same council and they told the state court during that proceeding that the reason why they weren't moving to compel arbitration is because h c a was not a party to that agreement and so it didn't feel like it had a proper basis to do so as only after it had removed it to federal court in which it sought to compel arbitration that on the second point in rough shape this court recently affirmed that the texas supreme court has never only analyzed that sort of equitable stoppel theory and glass cell specifically quoted the disputed language here in merrill lynch in which it's talking about this inner twine claims test and glass cell after analyzing that still came to the conclusion that the only form of equitable stoppel recognized in texas is direct benefits  of texas also looked at that and specifically said that other cases including cotton commercial which is the case relied on by the district court that other courts might have misinterpreted merrill lynch because all marilyn said in describ intertwined claims theory was that it acknowledged that other federal circuits had applied this in her client intertwined claims test in very specific circumstances i'd like to talk a little bit about cotton commercial because that seems to be the case that's relied on most by the district court in the tele sense cited that as well but cotton commercial relied on two cases in particular that the texas supreme court has rejected the first was great sentence which was this court's texas is that goes to the concerted misconduct question and also limited its prior decision in meyer and cotton commercial relied on myer explicitly and in full to say that concerted misconduct in twenty claims would be a political and the in a footnote in the merrill lynch court said that meyer was not a political what happened in meyer was that there was both direct benefits of stoppel and potentially concerted misconduct and merrill lynch  that only the direct benefits of stoppel provision would apply for the third point even if the inner client intertwined claims theory would apply it's in that inapplicable here because there are no findings by the district court the doctor hayes's claims are intimately founded in an inner twine with the underlying contract obligations or that he sued in lieu of suing a contractual party that he sued the parties non signatory principal or agent for point strikes and there are several flaws in that argument in terms with the district court terms of the lack of factual findings first is the intimately founded in an inner twine with the underlying contract obligations that goes directly to direct benefits of stop it's basically saying the same thing it's got to be founded in the contract itself and the pelleas have tried to argue that it just simply is simply has to be somewhat related to it but that's not the test and in talking judge change your question about whether or not there's the article pleading talking about the same sorts of claims that's not what this in or to intertwine claims test is saying it's saying it's got to be related to or intertwined with the contract not with other claims that you're making against other parties that might be compelled to arbitration that the district court said that there is enough case law to suggest that this code of conduct might stand on its own and so that goes forward but then the district court also said it was not deciding it at that time it was not deciding whether it was a contract and so their argument and they actually put in their briefs that this court has to find that this contract stands on its own in order for you to find direct benefits of stoppel there with the district court specifically said it wasn't going to find that that wasn't proper pelleas never appealed that decision they're not asking for this court or they never appealed and said that the district court was wrong they are so they be going beyond what is actually here on appeal the second issue  in terms of them having to find that is there is nothing in the record that shows that dr hayes was not employed by eighty eight and was only employed by austin hart that is simply not in the record there is no factual findings that say that these documents this code of conduct in this document this is physician employment agreement interrelated all neither of them mention each other neither of them talk in saying that they have to have one to have the other there's nothing that suggests that this actually supplements any sort of relationship with dr hayes which is what they were asking that this code of conduct has to be just a supplement to this physician employment agreement but that's not present at all you are the district court specifically determines that dr hayes is negligence is discrimination is a breach of contract claims or not founded in the physician employment agreement that those stood independently to that and that's why the district  found that there was no direct benefits of stop and again because that's the only theory that's recognized in texas it also would mean that the intertwining claims three would not apply there is also has not been any finding any sort of evidence that shows that eight c is in some way the non signatory principal or agent of austin hart there's been a lot of things put in the brief that went beyond the record and without citation from the pallies that suggests that there might be there but they have never said and will not say that the they are the eight ca is the principal or the agent of austin hart that would get to the alter ego theory that is recognized in texas that if there is an alter ego if the two entities are operating as one in that case arbitration may be appropriate but here there's been no claims that there are the alter ego of each the texas supreme court and merrill lynch on that point specifically said that a corporate relationship is generally not enough to bind non signatory to an arbitration agreement that's a page one ninety one of the merrill lynch session here decision from the court of appeals in texarkana which this court relied on its decision in rache it saying that the only form of equitable stoppel recognize in texas is direct benefits and stop them applies here which is why which was dr hayes his employer i know there's been argument that dr hayes had four employers or three employers and that's not accurate in the as a single unit he's assertive identical claims against all four entity's and in fact the arbitration is still proceeding against his employer also harpy a little c and capital cardiology as we speak they've already conducted eleven depositions there's going to be a final arbitration hearing in late january to it to address counsel's argument that dr hayes and again i know the issue is whether you can compel non signatory to arbitration and we have to focus on the arbitration clause we have to look at the substance of dr hayes's allegations not his legal claims but the actual substance what he has alleged against these into teas and all four entities he's alleged all allegations relating to his employment and the record there's a physician employment contract signed by dr hayes and als state physician services inc in the record there is a mutual agreement a termination again signed by in agreement by dr hayes and austin hart  services inc it goes beyond a legal stretch to argue when the record is clear there is one employer of dr hayes he's not asserted any bill p alter ego claim he's assertive identical claims against four into t's he's referenced the code of conduct that he's asserting a breach of contract if he's treating holdings inc and its a physician services inc as his employer then they have the right to rely on the arbitration clause found in his employment contract we just viewed that these two entities employ dr hayes but he is relying on the code of conduct in his and in his in position employment contract is specifically states that dr hayes has to abide by all policies and procedures including those from h c a holdings inc or any affiliate which would include the code of conduct austin heart pelosi dr his his employer adopted the code of conduct which in essence is you must conduct yourself ethically it's a it's a business ethics policy and like all affiliates in all companies such as a j holdings inc the affiliates are required to adopt these policies and of course to conduct themselves ethically when you look at dr hayes's allegations they are related to his employment he's claiming discrimination that they discriminated against him in his employment while he was employed he's claiming negligence that there was in top professional behavior and they failed to accommodate dr hayes again relating to his employment he's claiming a breach of contract of his employment practice but it's my understanding he he was a practicing cardiologist with alston heart talking turn it again to the code of conduct the code of conduct requires that the employees of affiliates such as austin hart conduct themselves ethically and we've asserted this and it's in the record  court there is no private cause of action for a breach of a code of conduct there there hasn't been one there isn't one today and we did argue that he doesn't have a private cause of action when you look at dr hayes's employment contract it specifically states in the arbitration clause that he has agreed to arbitrate any controversy or claim relating to his appointment and again when you look at the allegations that he's raised against the apple lease they're all employment claims he's not asserted an independent cause of action separate and apart from the claims he has against his true employer  that p l o say he's not assertive anything different other than the same causes of actions relating to his employment head had argued that the merrill lynch case has has not recognized the intertwined claims test there is no texas supreme court that has outright rejected the intertwined claims test i do understand that the  that the concerted misconduct estoppel argument has been rejected by the texas supreme court but it has not rejected the intertwined claims test and it stands to reason when you have a concerted misconduct you're it's mainly a fairness issue of course all of this is based on equity because it's equitable stoppel but what the court is saying with concerted misconduct is it would be unfair to have outside third parties forced to arbitrate when there's no relationship between these entities the record is clear in this case all four entities the two appeal apple and the two that are in which includes dr hayes employer are all related they're all affiliates of h c a holies inc and our argument has been and will be you cannot you cannot argue that the direct benefits or or intertwined claims test is not applicable when you have this doctor who's asserting the identical claims against all parties relating to appointment that are covered under his employment agreement which is on the record and finally i want to focus back on the argument that there's a separate cause of action for a code of conduct which there is not if you look at his physician employment agreement you will see duties and obligations of dr hayes outlined in that agreement there is nothing in the code of conduct that references dr hayes's duties and responsibilities as a cardiologist at austin heart there's nothing relating to his work hours how much he's a order his benefits staffing there's nothing in the code of conduct that speaks to or obligates dr dr hayes with respect to how he practices as a cardiologist and finally added at a minimum the case should be stayed so that the arbitration that's currently pending and that will be finally heard in january will be concluded so that if the any issues that need to be resolved it can be resolved at that point but there shouldn't be dual proceedings at this point there shouldn't be two avenues of recovery when dr hayes has only one remedy and that remedy is whether or not he can recover damages for being terminated as a physician at austin heart therefore the apple is request that this honor very briefly just a few points in the first is that i believe counsel has stated that position employment agreement for some way relates to this code of conduct and other policies and procedures but that agreement that document specifically said that it is related to the policies and procedures of the employer and employer is defined as austin heart it never says that there's anything related to eight ca a policies and procedures or anything like that have to be abided by and so it's not true that this physician employment agreement and that's in the record i believe it starts at eight forty two that there's nothing in that agreement of all that in any way references h c a instead the only reference to any other entity is capital area cardiology because it says that austin heart is capital area cardiology is wholly owne ca he had in agreement he was being paid in a lump sum for a five year period three that was separate separate from i don't believe it's in the record your honor it's not in the record at all you're on the second thing counsel is relying on heavily she saying that there's all these claims negligence claim discrimination claim they're all related to his employment but the tech supreme court has repeatedly affirmed that it does not matter whether or not a claim like negligence or discrimination which is based on state law and not on and claiming agreement whether or not that relates to someone's employment is not enough in the district court relied on that as well the district court specifically said a mere relationship between the claims in hayes employment is not enough and that's of the record one thousand and thirty six and in making that determination it citing specifically to the texas supreme court in its two thousand and fifteen decision in g t leach builders of the south fire  february specifically said that there's going to be two different arbitration reseating says going to be a separate state court action in a didn't stay any any proceeding at all and that wouldn't be just here because counsel also hasn't raised either in their brief or in the argument any issues that would be precluded which is the one reason why the merrill lynch case looked at potentially doing instead was that are there going to be issues that are precluded such that the arbitra forward and that's the district court the federal court would decide it before the arbitration would and that wouldn't happen here as a practical matter judge sparks's docket down the district court is usually an eighteen month or a longer docket in this case came back it would be another year and a half before any trial would occur and any stay would just delay that even further which would be unjust to dr hayes in your are a good damages that are being sought again don't overlap they're being sought against h c a and as judge change pointed out if they're it's true that they're not employers that they're not responsible for all this there's not going to be any damages and if pelley is right which we believe they're wrong but if h c a has no