a bag on counts one two and six of plaintiff's amended complaint which was then followed up by final judgment in that memorandum in order the district court erroneous lee health that as a matter of the three contracts at issue in this action are each illegal and void under the texas medical practice act the district court of the air for held that plaintiffs could not pursue their claims against mr begg for tortious interference with contract and conspiracy to induce breach of contract now the three separate contracts at issue in this case are each unique and different and had different purposes there was a purchase and sale agreement between doctor which was not supposed to go into effect until such time as dr chatty obtained his license to practice medicine in texas that corresponds to count two and count six in part that  contract or in a related and should all be read together is actually a contract the problem with that analysis you're not a very simple it is that you had different contracts that were supposed to go into effect at different times and there was nothing to prevent each of the contracts from operating independently so for example we plaintiffs agree that the most problematic contract is the ex management services agreement having said that even if there was no exclusive management services agreement even if that agreement were to be invalidated by your honest which we think you should not do and i'll get to that in a bit the purchase and sale agreement book and should still be found to be that a valid contract under the texas medical practices act because there was nothing in that agreement and there's nothing in the equity interest assignment agreement which  agreement that allows for the on what the rest practice of law it's no different than saying on and outside are there i want to purchase your practice or entering into an agreement and sometime down the road when i get my license i'm going to purchase that practice so it seems to me that to argue that they were all inexplicably intertwined without supplying any evidence without doing anything more than reading these agreements which could have been in effect  different times and which in fact had different start dates at the very least judge we're line was ignoring the evidence that we put forward before him at the very least this is disputed issue of fact as well as to whether they were in fact inexplicably intertwined our position and we repeated it is that two of the agreements could not and would not go into effect unless and until dr chowta obtained his texas medical practice license so from our perspective and we believe this is our strongest argument regardless of what the court does with the exclusive management services agreement the purchase and sale agreement in the equity interest is simon agreement in no way c the authorized practice of medicine in fact as we cited in our papers prior to judge were lined even dealing with this in the companion cases in the texas state action the texas trial court held that the violated the texas medical practice sac and therefore it was illegal regardless of the time as to whether or not dr towne three had got his license so although or not is your point exactly perfectly frank having said that it is it is clear that the argument was that this was a legal it wasn't an argument that it was illegal because dr sherry had not yet obtained his administrative license the argument was that this was an illegal agreement and if you were to look at the the motion for summary judgment in the papers in opposition i believe that bats it's not clear but i believe that that's the argument the management agreement violate texas law i think it's just sort of friendly question because it appears that it's administrative an operational but one that would in effect before i'm trying to figure out how that crack that that's that's our position that's our position your honor that and and in fact our position is that it was only operational that there was no violation of the practice of medicine that this situation find anything in there  practice of medicine in the management agreement i believe what the court said your honor and i just sort of don't really want to answer a question that's under undermining my case but i'll be but i'll be honest i believe with the district court said was that the health l l c was somehow controlling the practice of medicine having said that the only test that the district court cited two to support distinguishable for several different reasons reason number one because if you look at the whole purposes underlying the texas medical practice sack that has been advanced by various courts and we're talking now about where you launch into the multiple reasons is your argument that there's an issue of material fact as to whether there was control under flynn and good or your is your argument a legal one that because he's a licensed physician he was a professional medical corp what was there was there in the making now and what did you make the i think the argument we're making both now and below is that because he was a licensed physician therefore as a matter of law the purposes underlying the act that the courts discussed in gupta in flint in garcia simply don't apply here yet the text says licensed by the board are in the state just the text of the statute correct and you don't dispute that he wasn't at least for purposes of the direct i'd i'd i would not round whether the purpose you have strong intuitive arguments and people have criticised this doctrine and laura but nonetheless you've got a statute which it's plain language seems to confirm that he wouldn't have been licensed by the board the texas board well not that he wouldn't have been wise he wasn't it wasn't license that time and we do not dispute that your honor and so if you time and then the question becomes what judge said whether or not there's anything in the exclusive management services agreement that would in fact constitute the north rice practice of corporate medicine such as to that was the argument your honor and i will i will admit that this is a district court that is what the district court held your honor but the district court somehow attempted to apply that across the board and regardless of whether or not the payment that was due under the exclusive management services agreement was it was not a sham and it's our position although i admit this is not very well on the record that in fact that number wasn't chosen out of thin air there were attempts to try to get contracts that didn't happen i thought it was going to happen but that doesn't defend our position there's nothing in the purchase and sale agreement and there's nothing in the equity interest to sign an agreement that's a sham it's a normal it's a normal and regular transaction i'm agreeing with a texas doctor that that texas doctor is going to start a practice and at some point down the road when i become licensed i will then be assigned the right to purchase this particular medical practice from in this case dr ali khan and in fact as we made very clear in the record of venture in the texas state courts the equity interest to sign an agreement was signed by dr ali khan when dr chowdhury did obtain his state court those state court rulings scheme and in the motion to reconsider so they were in the record is that when they first came out no actually actually your honor the mistake or ruling at the trial court level in forcing the turnover order actually actually came in before judge moore along ruled on the motion for summary judgment with a contempt hearing for example is that in this record yes it is here on the only thing that happened after briefing here is that both the texas appeal in under two sec under two different situations actually affirmed the trial court's ruling both the ruling on summary judgment in the trial court and the texas state action with respect to whether or not the purchas sale agreement was a binding agreement as between dr choudhry and dr ali khan and also the texas court of appeal furthermore affirmed the ruling of the texas state court trial court as to the turnover order and we deal with some of that in our reply briefly also deal with one of those in one of our rule twenty eight jailers if these other courts had did they consider this argument at all ever because it here i guessed i don't know the answer to that you're out of because i have a problem with what you're saying which is this the sham argument understandably could invalidate the  exclusive management services agreement because that was a seven hundred fifty thousand dollars say i don't see how even if the payment in that agreement was a sham how it could possibly invalidate either those as seas for medical services that were provided beforehand and that's not and that's not in any way a violation of well he said that he wasn't necessarily and in control yes but he also said he didn't know whether the seven hundred fifty thousand was reachable up and in fact dr out in fact the a on in control of anything i mean the management agreement put but the control in chandran well he was certain he was certainly the person in charge in charge as he you know there's no no evidence in the record up and i understand how you're reading the agreement having having said that it is not unusual for agreements to have similar definitions when you doing a lot of corporate agreements and it is also there seems to me to be nothing on the authorized about having an agreement that allows for the purchase and sale of a medical practice based upon whatever business went on before and based upon whatever neck collections if there were fine if there were that weren't and that may be a problematic contract in terms of the amount or maybe there's some other contractual issue there but that's not the issue in this case the issue in this case is whether the purchas sale agreement provided for the on the rise practice of corporate medicine and to me it seems that a transaction whereby dr a sells his practice to doctor b does not call for that this was all part and parcel part of the same transaction and judge were line noted that in his opinion on the record that page eleven ninety nine the appellant noted in their main complaint at page ninety six ninety seven of the record that essentially they needed all of these things to happen to accomplish their objective which was they were expanding business into texas they had two specific clients already lined up in texas that they wanted to take advantage of but dr charger was not going to get his license until into whatever and so they wanted to be able to take advantage of the ability to profit and do business and essentially craft a legal end run around of the act which they were cognizant of  immediately specifically indicated that the seller could not take any distributions or any dividends until the closing took place also indicated that the seller could not institute any legal action that the seller could not make any changes to the ownership structure of the company so the purchase agreement is still tied back to the management services agreement because the whole idea was and and these are appellants own words the doctor charging me was going i'm sorry dr was going to temporarily own xenon taxes the idea is that dr kahn wasn't going to keep it permanently he was going to have to give up control in the person who had control of that was dr charge and also his entity xenon he so the perp agreement itself also is inextricably intertwined with the equity agreement because the purchase agreement as one of its conditions says that at closing the seller has to present a signed equity agreement so those two are married together you can achieve the purpose of xenon and dr charge ensuring that they can go back and take over the scene and as you know in texas and all those clients they want to profit from they needed to ensure that once he got his license so for those reasons your honor i think judge or line acknowledged all of that and clearly showed that these were inextricably intertwined and there's really been no evidence that's been cited by the appellants in their brief to the contrary they just point to the language of the agreements themselves and say that no one has denied the fact that xenon texas was practicing medicine by providing these anesthesia services so the next step is was it simply an alter ego essentially a straw man which is what was determined in in the case of flynn where already chosen and had me you're right i don't know that that's in the record as to whether he had chosen the staff i'm trying to get to the group to factors do you see that's one of the yes i don't want to surprise you short of choosing the staff preparing the man the billing in the manner he has and his own decisions regarding diagnosis treatment and operations and it's judgment in those decisions those are the group to factors so i'm trying to decide what in the record is contrary to the fact for violence during the period before the job no your honor and i'm quoting from from two point one of the management services agreement that says big xenon exclusively is going to provide the recruiting the credentialing and the scheduling of the anesthesia providers it's going to exclusively do that is there any evidence in the record that xenon did some type of medical control that was different than what connie want your own i don't know of any specific evidence actually to that effect but i do believe that from looking at the agreement itself and the control that it is that it best exclusively and you know that that factual determination didn't have to be made that i could pick the license well it doesn't show that any profits were actually received because as judge or line noted this appeared to him to be nothing more than a noncommercial sham because dr charging admitted that the price of seven hundred fifty thousand dollars as a flat fee that was supposed to be paid by seen on texas to xenon in exchange for these management services simply could have been paid doctor charge he declined to testify about whether he thought the seven hundred fifty thousand dollars c paid at his deposition a judge or line was proactive took judicial notice of the fact that the only two clients that xenon texas had at the time were single practitioner clients in texas and that there appeared to be absolutely no way that this brand new business could possibly pay the seven hundred fifty thousand dollars because organ and fee which was designed soley to ensure that any profits that came out would all go specifically to see variation on these questions though is pervasive control sounds highly fact specific and if this sort of guiding cases are planning both of those require trial for us to know whether there's control so so you've got to state your position is that it's uncontroverted that control existed here sufficient that khan was an employee of challenger yes your honor i have we've got factors that sound like they're sort of full of nuance and is there enough control and control of what and who hires whom i think so your honor i  think but so i guess the question is what's the case that allows this control question to be decided the summary judgment stage i think it's flynn but it's also group and lynn had a think trial right here on one was after a full trial one was after trial but the courts consideration two were primarily based on the plain language of the agreements of self so if i could just point out to him in there was a doctor being able to hire and fire staff as he saw fit which wasn't allowed in this instance and gupta the was mr begg i don't believe so it all your honor because the contract is the operative docking or the contract is the operative documents here and they do speak for themselves but i would note in addition that that judge were aligned to just look at the the actual contracts themselves he also looked at the undisputed facts in front of them that seven hundred fifty thousand dollars sham amount judicial notice of the fact the seven hundred fifty thousand couldn't be paid the fact the doctor charge him self admitted the paper was going to win good sort of this dialectic was it argued below or was there has their position been exclusively that as a doctor he is licensed and therefore the question of control is irrelevant judgments and i think that that is the issue i don't think that that issue was was argued below i think the only issue they're presenting is whether or not a doctor who is not licensed in the state of texas can possibly violate the act and i think as you point out the definition itself shows you have to be the factors that the court decided in flint the corporation had the sole power to hire staff we have that here the corporation collected two thirds of the doctor's net profits here we show this was designed so that xenon big xenon kept everything for itself and then the list goes on in our case from flynn there's complete management of all funds for xenon taxes that goes to xenon xenon was the one who was paying everyone that xenon texas supposedly hired through its own funds on the inextricably intertwined because to me that's the most difficult part of your argument if the purchase and sale agreement were the only contract we were looking at would you have any argument to make that this was the  medicine i believe so your honor based on the fact that the purchase and sale agreement has these additional terms that provide control and have these strings well right on trolls like control would be fine once choudhry is licensed and that's a condition precedent built into paragraph two point five or whatever it is so how would how could that that document with the exhibit ever equate without the management agreement to the an authorized back to medicine by someone who's been licensed key distinction is once he's licensed if he was licensed at the time and in other words if there were no management agreement in this case that purchase of sale agreement you wouldn't have the argument that you have now i disagree you're ok i believe that the dis the licensing at the time the agreement was signed so to your point if at the time that the purchase and sale agreement was signed he already had his license then i don't think i'd have a kid and i counted that's exactly the time i thought october ni is like october one and then he was compelled by court with arrest and contempt to sign it eight days later you are and all of that happened after the fact so all the allegation that's correct all the allegations in this case pertain to at the time the document was signed was it void as a matter of public policy and i don't know why the state court made a finding that because he had his administrative license that at the time he could sign over the equity interest  can say to the court is that it's very confusing but it is clear from the texas court of appeals the issue of whether these contracts were illegal at the time they were signed was never considered by the state courts it was never considered just like to point specifically to the record in that that's a record three three five eight this is the texas court of appeals opinion so the state court under siege against dr kahn dr kahn appeals the court of appeals in considering dr khan filed a motion to supplement his brief that for the first time is when he decided to raise the argument that the that the agreements with void from their inception as a matter of public policy the court of appeals specifically denied that sign the document if they're encouraging the signing of the documents of the obviously they don't think it's problematic but what i would say your honor is that nowhere in any of those state court opinions do they express lee consider this issue of whether it was legal at the time it was signed i agree it should be raised by someone but it wasn't if it had i expect those state court opinions with analyzed gupta would have analyzed flint and all the operative cases that had that addressed this issue but they didn't and to raise any doubt the court of appeals came back and made it clear for us that in its opinion its holding these issues were not raised definitively i don't understand the answer that you gave the the purchase and sale agreement would be illegal apart from the management agreement because i don't understand what can you find me what what conditions came to pass in that before he was licensed that would make it make it problematic yes your honor the starches the sale agreement itself in a vacuum so if the purchase and sale agreement itself were signed at a time as they were when dr chaudhry did not hold a license to practice medicine in texas judge found judge were lying found of this being a sham troll in the purchase and sale agreement because it says that he's got to get his license before the relevant medical parts kick in the purchasing control in the sa the owner of scene on texas can't take any distributions or any dividends at any point in time until a closing that's not defined in the purchase and sale agreement eventually takes place it's keeping the status quo until something that needs to happen under texas law happens why isn't that a good way to look at it well you are because i don't think that the agreement self can be looked at in a vacuum i think we have to take the concession by the appellants that they were doing all of this at the same time pre mature all dated and signed at the same vacuum what their sense of being is still so i believe that in the purchase and sale and the fact that we've no time for closing he's unable to take any distributions he can't institute any lawsuits on behalf of the company he can't sell lease license or dispose of any assets he can incur any and deadness whatsoever this is on your honor and i'm from the agreement twenty three twenty five is the page i'm citing this is the laundry list of the things that xenon texas  can do until this undefined closing takes place and so i submit that under the same analysis which is do all of these strings that are held by xenon because even on demonstrate the to the danger of having control over the company pertains more to whether or not you're going to have people who aren't familiar with texas regular regulations and licensing in terms of medical practice who are coming in slowly to make profit so we have xenon texas who's indisputably providing these medical services and it's big xenon who's stepping in to do something that they know they can't do because there's no medical license in texas yet trying to accomplish this  nron and i think each of these agreements independently can show all of these strings that tie back to xenon so that xenon texas doesn't have any control over what it does xenon taxes can't even take a distribution dr can't say we had a great month we have a surplus of funds i'm going to take distribution because i'm the sole owner of this company he can't do it why because there's a string that ties back to big xena where she didn't dr carter  of signature found in the record twenty three thirty nine yes your honor i believe you could and judge were allowed in particular spent a lot of time on that in his opinion and the appellant's i know in their brief don't mention the delegation of signature authority at all that delegation of signature authority says that the person who signs on behalf of xenon texas is big xenon and dr charging they sign all the contracts they take they keep all of the control so you can look at the delegation anything that he wanted and and then really the question i think is what was left that xenon texas and dr kahn could do after all these agreements were signed and all these strings were firmly attached to them and i submit that it was really  to just finally your honor to address the the pretty in the virtual interest argument i would just note that the bankruptcy court itself which is where that argument was raised for the first time actually granted the motion to dismiss d bankruptcy proceeding so i submit that clearly the bankruptcy court wasn't compelled by that virtual interest argument nor is there any state court or other holding where that was found to have existed your honor for all th being provisions of the purchase and sale agreement that supposedly went into effect at the time at the time the agreement was signed he also talks about the delegation of signature authority not neither of those p none of those points were raised in the police brief so frankly i did not have the opportunity to respond to them on the contrary the reason this case is in such an interesting and unusual posture is because the doesn't challenge our facts doesn't dispute or challenge our issues present it doesn't dispute or controvert any of our arguments now judge davis just said something about the delegation of signature authority and whether or recorder could not have signed on behalf of dr ali khan there's nothing about that in the record there's no discussion and there would need to be evidence in order for us to even address that issue i think on tractors in the delegation and in the record in the delegation of authority is in the record your honor but i would argue and i'm only arguing this because it was raised here it's not the orders all of the district court of big district court talked about the delegation of authority to the his texas medical license and therefore the purchase and sale agreement was supposed to go into effect what it boils down to also is i believe that if you listen to what mr sherry said he focused very much on terms and provision of the exclusive management services agreement but he couldn't answer because there is no answer to the fact as to how an agreement that was not in effect that could not go into effect because of the term a nation of the agreement by dr ali com because of what we allege his cousin mir is a big dead the fact is that agreement never went never went into effect and there it seven no one so clearly the texas court of appeals did look at the arguments that were raised by mr begg and that judge were alarmed accepted and decided that those were not arguments they were going to take the final point i'd like to make is my time is up if i may just finish the sentence there's a big distinction between the flynn case and our case the two agreements in the flu case were a partnership agreement and a similar management services agreement both of which went into effect simultaneously and monies were paid to the non were paid out at that time here we have a very different situation besides the fact that there were no doctors involved in  that the corporation was one by lay persons whereas here the corporation was run by a licensed physician as we said time and time again the purchase and sale agreement and the equity interest to sign an agreement did not go