NO. 13-15-00278-CV

__________________________________________________________________

IN THE

THIRTEENTH COURT OF APPEALS

EDINBURG, TEXAS

13th JUDICIAL DISTRICT

__________________________________________________________________

ADOLFO MORALES

v.

OPHTHALMIC CONSULTANTS OF TEXAS, P.A.

__________________________________________________________________

On Appeal from the

444th District Court of Cameron County, Texas

INTERLOCUTORY APPEAL

__________________________________________________________________

JACKSON LEWIS P.C.

Victor N. Corpuz, Esq.

corpuzv@jacksonlewis.com

Texas Bar No. 04838450

Allyson L. Johnson, Esq.

johnsona@jacksonlewis.com

Texas Bar No. 24054005

500 N. Akard, Suite 2500

Dallas, Texas 75201

Phone: (214) 520-2400

Fax: (214) 520-2008

LEAD ATTORNEYS FOR APPELLANT

ORAL ARGUMENT REQUESTED

ACCEPTED

13-15-00278-CV

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

7/20/2015 1:54:35 PM

CECILE FOY GSANGER

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 7/20/2015 1:54:35 PM CECILE FOY GSANGER Clerk
INTERLOCUTORY APPEAL BRIEF PAGE i

IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties, as well as the names,

addresses, and telephone numbers of all counsel of record.

APPELLANT:

Ophthalmic Consultants of Texas,

P.A.

COUNSEL FOR APPELLANT:

Victor N. Corpuz, Esq.

corpuzv@jacksonlewis.com

Texas Bar No. 04838450

Allyson L. Johnson, Esq.

johnsona@jacksonlewis.com

Texas Bar No. 24054005

JACKSON LEWIS PC

500 N. Akard, Suite 2500

Dallas, Texas 75201

Phone: (214) 520-2400

Fax: (214) 520-2008

APPELLEE:

Adolfo Morales, M.D.

COUNSEL FOR APPELLEE:

Larry Warner

Larrywarner1945@gmail.com

Texas Bar No. 20871500

3109 Banyan Circle

Harlingen, TX 78550

Phone: (956) 454-4994

Fax: (956) 230-0361

John Shergold

hodgeshergold@aol.com

Texas Bar No. 00794624

HODGE & SHERGOLD, LLP

1534 East 6th Street, Suite 103

Brownsville, Texas 78520

Phone: (956) 548-9100

Fax: (956) 548-9102
INTERLOCUTORY APPEAL BRIEF PAGE ii

TRIAL COURT JUDGE:

The Honorable David Sanchez

444th District Court, Cameron County

974 E. Harrison, First Floor #5

Brownsville, Texas 78520

Phone: (956) 547-7034
INTERLOCUTORY APPEAL BRIEF PAGE iii

TABLE OF CONTENTS

HEADING PAGE

IDENTITY OF PARTIES AND COUNSEL ............................................................ i

TABLE OF CONTENTS.....................................................................................iii-iv

TABLE OF AUTHORITIES ..............................................................................v-viii

STATEMENT OF THE CASE..................................................................................1

ISSUES PRESENTED...............................................................................................3

STATEMENT OF FACTS ........................................................................................3

I. ARGUMENT AND AUTHORITIES ....................................................................5

A. Summary of Argument..................................................................................5

B. Standard of Review .......................................................................................6

C. The trial court erred by not submitting the dispute concerning

enforceability of the Agreement to the Arbitrator. .......................................8

D. The Agreement constitutes a valid agreement to arbitrate between the

Parties..........................................................................................................10

E. Dr. Morales’s claims fall within the Agreement’s scope............................12

F. OCT Has Not Waived Its Right to Compel Arbitration..............................13

1. OCT Has Not Substantially Invoked the Judicial Process..................14

2. Dr. Morales Cannot Show Prejudice...................................................16

II. CONCLUSION ...................................................................................................18

III. PRAYER FOR RELIEF ....................................................................................19
INTERLOCUTORY APPEAL BRIEF PAGE iv

TABLE OF AUTHORITIES

Page(s)

CASES

AT&T Techs., Inc. v. Commc’ns Workers of Am. et al.,

475 U.S. 643 (1986)..........................................................................................7, 9

Buckeye Check Cashing Inc. v. Cardegna,

546 U.S. 440 (2006)..................................................................................3, 6, 7, 9

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001)..............................................................................................7

Dallas Cardiology Assocs., P.A. v. Mallick,

978 S.W.2d 209 (Tex. App.—Texarkana 1998, writ denied) ..............................7

EZ Pawn Corporation v. Mancias,

934 S.W.2d 87 (Tex. 1996)..........................................................................passim

First Community Insurance Company and Boyd Construction v. F-Con

Contractors, Inc.,

2000 Tex. App. Lexis 1655 (Tex. App.—Dallas March 14, 2000)..............13, 14

Forest Oil Corp. v. McAllen,

268 S.W.3d 51 (Tex. 2008).................................................................................12

Granite Constr. Co. v. Beaty,

130 S.W.3d 362 (Tex. App.—Beaumont 2004).................................................18

Henry v. Gonzalez,

18 S.W.3d 684 (Tex. App.—San Antonio 2000, no writ)................................7, 8

Home Club, Inc. v. Barlow,

818 S.W.2d 192 (Tex. App.—San Antonio 1991, orig. proceeding).................17

In re 24R, Inc.,

324 S.W.3d 564 (Tex. 2010) ........................................................................11, 12

In re AdvancePCS Health L.P.,

172 S.W.3d 603 (Tex. 2005) (per curiam) .........................................................11
INTERLOCUTORY APPEAL BRIEF PAGE v

In re Delta Homes, Inc.,

5 S.W.3d 237 (Tex. App.—Tyler 1999, orig. proceeding).................................18

In re FirstMerit Bank,

52 S.W.3d 749 (Tex. 2001)...............................................................................7, 9

In re Fleetwood Homes of Texas, L.P.,

257 S.W.3d 692 (Tex. 2008) ..............................................................................15

In re Halliburton Co.,

80 S.W.3d 566 (Tex. 2002)...........................................................................10, 11

In re Hornbeck Offshore Corp.,

981 F.2d 752 (5th Cir. 1993) ..............................................................................12

In re Merrill Lynch Trust Co. FSB,

235 S.W.3d 185 (Tex. 2007) ....................................................................3, 6, 7, 9

In re Multifuels, L.P.,

2010 Tex. App. LEXIS 3576 (Tex. App.—Houston [1st Dist.] May 7,

2010) ...................................................................................................................18

In re Next Fin. Group, Inc.,

271 S.W.3d 263 (Tex. 2008) (per curiam) ...........................................................7

In re Oakwood Mobile Homes, Inc.,

987 S.W.2d 571 (Tex. 1999) ....................................................................8, 16, 17

In re Odyssey Healthcare, Inc.,

310 S.W.3d 419 (Tex. 2010) ..............................................................................11

In re Permian Tank & MFG, Inc.,

306 S.W.3d 338 (Tex. App.—Eastland 2010, no pet.).........................................9

In re Poly-America, L.P.,

262 S.W.3d 337 (Tex. 2008) ................................................................................7

In re Serv. Corp. Int’l,

85 S.W.3d 171 (Tex. 2002)...........................................................................15, 16
INTERLOCUTORY APPEAL BRIEF PAGE vi

In re Tenet Healthcare, Ltd.,

84 S.W.3d 760 (Tex. App.—Houston [1st Dist.] 2002, no pet.)......................7, 8

Interconex, Inc. v. Ugarov,

224 S.W.3d 523 (Tex. App.—Houston [1st Dist.] 2007)....................................13

Interconex, Inc. v. Ugarov,

S.W.3d 2006 WL 2506562 (Tex. App.—Houston [1st Dist.] 2006, n.p.h.) .......13

J.M. Davidson, Inc. v. Webster,

128 S.W.3d 223 (Tex. 2003) ..........................................................................7, 10

Jernigan v. Langley,

111 S.W.3d 153 (Tex. 2003) ..............................................................................13

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,

289 S.W.3d 844 (Tex. 2009) ..............................................................................11

Mouton v. Metropolitan Life Ins. Co.,

147 F.3d 453 (5th Cir. 1998) ................................................................................7

Pennzoil Co. v. Arnold Oil Co., Inc.,

30 S.W.3d 494 (Tex. App.—San Antonio [4th Dist.] 2000)..................15, 16, 18

Pepe Intern. Dev. Co. v. Pub Brewing Co.,

915 S.W.2d 925 (Tex. App.—Houston [1st Dist.] 1996, no writ) .......................6

Schroeder v. Texas Iron Works, Inc.,

813 S.W.2d 483 (Tex. 1991) ..............................................................................14

Steelworkers v. American Mfg. Co.,

363 U.S. 564 (1960)..............................................................................................7

Steelworkers v. Warrior & Gulf Navigation Co.,

363 U.S. 574 (1960)..............................................................................................7

Sun Exploration & Prod. Co. v. Benton,

728 S.W.2d 35 (Tex. 1987).................................................................................13

United Parcel Serv., Inc. v. McFall,

940 S.W.2d 716 (Tex. App.—Amarillo 1997, orig. proceeding).......................18
INTERLOCUTORY APPEAL BRIEF PAGE vii

Walker v. J.C. Bradford & Co.,

938 F.2d 575 (5th Cir. 1991) ..............................................................................15

Williams Indus., Inc. v. Earth Dev. Sys. Corp.,

110 S.W.3d 131 (Tex. App.—Houston [1st Dist.] 2002, no pet.).................14, 15

STATUTES

TEX. LAB. CODE ANN. § 21.202 (Vernon Pamph. 1996) .........................................14

Texas Commission on Human Rights Act, TEX. LAB. CODE ANN. § 21.001,

et seq. ................................................................................................................1, 4
INTERLOCUTORY APPEAL BRIEF PAGE 1

STATEMENT OF CASE

This is an employment discrimination and retaliation lawsuit filed by

Appellee, Dr. Adolfo Morales (“Dr. Morales”) in the 444th District Court for

Cameron County, Texas.1 Dr. Morales seeks to recover damages from his former

employer, Ophthalmic Consultants of Texas, P.A. (“Appellant” or “OCT”) under

the Texas Commission on Human Rights Act, TEX. LAB. CODE ANN. § 21.001, et

seq. for alleged age discrimination and retaliation. Specifically, Dr. Morales

alleges that OCT terminated his employment after he opposed and/or complained

about alleged discrimination in the workplace.2

During his employment as an ophthalmology specialist with OCT, Dr.

Morales agreed to arbitrate any claims arising from his employment or the

termination of his employment pursuant to an Agreement to Arbitrate

(“Agreement”), which he signed on October 20, 2009.3 Notably, in this standalone Agreement both OCT and Dr. Morales agreed to substitute arbitration for

litigation, and waived the right to have disputes resolved in court.4 Dr. Morales

has presented no evidence to contest his signature on the Agreement.

1 Court Record (“C.R.”) at 4-9.

2

Id.

3 C.R. at 25-27.

4

Id.
INTERLOCUTORY APPEAL BRIEF PAGE 2

OCT moved the trial court to compel Dr. Morales to arbitrate his claims

pursuant to the Agreement and stay its proceedings pending arbitration.5 After a

hearing on May 20, 2015, the trial court denied OCT’s Motion to Compel

Arbitration.6 No discovery has been conducted by either party and other than

seeking to compel arbitration, OCT has not sought any other relief from the

District Court.7

OCT now seeks to overturn the trial court’s ruling because Dr. Morales’s

challenge to the validity and enforceability of the Agreement is a dispute that

should be decided by the arbitrator based on applicable United States Supreme

Court and Texas Supreme Court decisions. Regardless of who determines the

issue, Dr. Morales’s dispute relates exclusively and entirely to his employment

and/or the termination of his employment with OCT and, therefore, falls squarely

within the scope of the valid, mutually-binding Agreement which Dr. Morales

acknowledged and accepted as a matter of law. Finally, OCT has not waived its

right to enforce the Agreement as it has not substantially invoked the judicial

5 C.R. at 17-28.

6 C.R. at 67. The court originally set OCT’s motion to compel arbitration for hearing on

November 19, 2014; however, OCT inadvertently did not receive notice of the hearing, and did

not receive a copy of Dr. Morales’s response to the motion to compel until it requested a copy

directly from Dr. Morales’s counsel. (Appendix Exhibit E, Reporter’s Record (“R.R.”) Hearing

Transcript 5/20/15 at 7:1-8:1). The Court agreed to reschedule the hearing for May 20, 2015.

(C.R. at 64.)

7

Exhibit E, R.R. (Hearing Transcript 5/20/15) at 8:9-16.
INTERLOCUTORY APPEAL BRIEF PAGE 3

process and there has been no prejudice to Dr. Morales. There is no evidence to

support the trial court’s denial of OCT’s Motion to Compel Arbitration.

ISSUES PRESENTED

1. Whether the trial court erred when it denied OCT’s Motion to

Compel Arbitration and to Stay Proceedings Pending Arbitration of Dr. Morales’s

employment-related claims under the Agreement.

2. Whether the trial court erred by ruling on Dr. Morales’s

defenses to the Agreement as a whole, when Buckeye Check Cashing Inc. v.

Cardegna, 546 U.S. 440, 449 (2006) and In re Merrill Lynch Trust Co. FSB, 235

S.W.3d 185, 190 (Tex. 2007) mandate that challenges to agreements as a whole,

such as Dr. Morales’s argument that the Agreement is illusory, are to be

determined by the arbitrator.

3. Whether the trial court erred by ruling that the Agreement is

illusory and unenforceable.

4. Whether the trial court erred by ruling that OCT had waived its

right to enforce the Agreement.

STATEMENT OF FACTS

This lawsuit stems from Dr. Morales’s employment as an ophthalmology

specialist with OCT, and the non-renewal of his contract of employment with
INTERLOCUTORY APPEAL BRIEF PAGE 4

OCT. Dr. Morales contends that OCT discriminated against him on the basis of

his age and retaliated against him for opposing workplace discrimination, in

violation of various provisions of the Texas Commission on Human Rights Act of

1983, TEX. LAB. CODE ANN. § 21.001 et seq.

8

Dr. Morales was hired by OCT as an ophthalmology specialist in 2009.9In

conjunction with his hire, OCT presented Dr. Morales with an Agreement to

Arbitrate (“Agreement”) which he executed on October 20, 2009.10 This

Agreement is a stand-alone Agreement which does not incorporate language from

any other policy.11 This Agreement does not contain any language which reserves

OCT’s right to modify the Agreement, thus the Agreement cannot be modified

unilaterally by OCT in any way.12

By signing this Agreement, Dr. Morales agreed to the following language:

I acknowledge and agree that I have carefully read this Arbitration

Agreement, that I understand its terms, and that I have entered into

this Arbitration Agreement voluntarily and without duress, pressure or

coercion from any person and without relying on any promises or

representations by the Company other than those contained in this

Arbitration Agreement itself.13

8 C.R. at 4-9.

9 C.R. at 5, 18.

10 C.R. at 25-27.

11 Id.

12 Id.

13 C.R. at 27.
INTERLOCUTORY APPEAL BRIEF PAGE 5

Dr. Morales’s voluntary signature on the Agreement expressly and implicitly

evidences his consent to arbitrate all disputes related to his employment, including,

but not limited to, the following:

wrongful discharge under statutory law and common law;

employment discrimination based on federal, state or local statute,

ordinance, or governmental regulations; retaliatory discharge;

compensation disputes; tortuous conduct; contractual violations,

ERISA violations; FLSA (wage and hour) violations; and other

statutory and common law claims and disputes.14

In this proceeding, Dr. Morales seeks relief exclusively under the Texas

Labor Code for alleged age discrimination in employment, and for retaliation,

claiming that OCT terminated his employment after he complained of

discrimination.15 Therefore, Dr. Morales’s entire dispute is employment-related

and falls squarely within the scope of the Agreement. In fact, Dr. Morales’s claims

are of the exact type listed as an example of disputes explicitly covered by the

Agreement.

I.

ARGUMENT AND AUTHORITIES

A. Summary of Argument

The trial court erred by not submitting Dr. Morales’s defense concerning the

enforceability of the Agreement as a whole to the arbitrator, as required under

14 C.R. at 27.

15 C.R. at 5-7.
INTERLOCUTORY APPEAL BRIEF PAGE 6

Buckeye Check Cashing Inc., 546 U.S. 440 (2006) and In re. Merrill Lynch Trust

Co. FSB, 235 S.W.3d 185 (Tex. 2007). Alternatively, the trial court erred when it

denied OCT’s Motion to Compel Arbitration because a valid, mutually binding

agreement to arbitrate all employment-related disputes exits between OCT and Dr.

Morales that explicitly covers the subject matter of the present litigation. In

conjunction with his hire, OCT presented Dr. Morales with an Agreement to

Arbitrate which he executed on October 20, 2009.16 Dr. Morales’s voluntary

signature on the Agreement expressly and implicitly evidences his consent to

arbitrate all disputes relating to his employment. This Agreement does not contain

any provision which allows OCT to unilaterally modify or change the Agreement

in any way.17 For this reason, the Agreement is not illusory as it cannot be

modified. Finally, the trial court erred in finding that OCT waived its right to

enforce the Agreement.

B. Standard of Review

The “no evidence” standard of review applies to an interlocutory appeal

from the denial of a motion to compel arbitration.18 On appeal, a trial court’s

determination as to the validity and enforceability of an arbitration agreement is a

16 C.R. at 27.

17 C.R. at 25-27.

18 See Pepe Intern. Dev. Co. v. Pub Brewing Co., 915 S.W.2d 925, 929 (Tex. App.—Houston

[1st Dist.] 1996, no writ).
INTERLOCUTORY APPEAL BRIEF PAGE 7

legal question subject to de novo review.19 Notably, courts strongly favor the

resolution of employment disputes through arbitration, rather than formal

litigation,20 and any “[d]oubts should be resolved in favor of arbitration.”21

Under established precedent, when a dispute or defense addresses the entire

agreement between the parties – such as Dr. Morales’s argument that the

Agreement is illusory and thus unconscionable – this defense is properly raised

before an arbitrator during arbitration proceedings.22 Here, as a preliminary matter,

the trial court, erred by not referring Dr. Morales’s dispute concerning the validity

and/or enforceability of the Agreement as a whole to arbitration.

Alternatively, to the extent the Court is the proper entity to determine

arbitrability in this context, the Court must first decide: “(1) whether there is a

valid agreement to arbitrate between the parties; and (2) whether the dispute in

19 J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003).

20 Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123 (2001); Mouton v. Metropolitan Life

Ins. Co., 147 F.3d 453, 456 (5th Cir. 1998); In re Next Fin. Group, Inc., 271 S.W.3d 263, 267

(Tex. 2008) (per curiam); In re Poly-America, L.P., 262 S.W.3d 337, 348 (Tex. 2008); In re

Tenet Healthcare, Ltd., 84 S.W.3d 760, 765-66 (Tex. App.—Houston [1st Dist.] 2002, no pet.);

Henry v. Gonzalez, 18 S.W.3d 684, 689 (Tex. App.—San Antonio 2000, no writ); Dallas

Cardiology Assocs., P.A. v. Mallick, 978 S.W.2d 209, 212 (Tex. App.—Texarkana 1998, writ

denied).

21 AT&T Techs., Inc. v. Commc’ns Workers of Am. et al., 475 U.S. 643, 650 (1986) (emphasis

added); see also Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960), and

Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960).

22 See In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 190 (Tex. 2007) (citing Buckeye

Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449 (2006) (“We reaffirm today that . . . a

challenge to the validity of the contract as a whole, and not specifically to the arbitration clause,

must go to the arbitrator.”); In re FirstMerit Bank, 52 S.W.3d 749, 756 (Tex. 2001).
INTERLOCUTORY APPEAL BRIEF PAGE 8

question falls within the scope of that arbitration agreement.”23 “A court has no

discretion and must compel arbitration if the answer to both questions is

affirmative.”24

The trial court should have compelled arbitration and stayed its proceedings

pending arbitration under the two-prong test because: (1) the Agreement mutually

obligates both Dr. Morales and OCT to submit employment-related disputes

between them to arbitration; and (2) the Agreement expressly covers all “legal or

equitable claims arising out of or in connection with [his] employment, and all

other claims between [Dr. Morales] and the company,”25 such as those raised by

Dr. Morales.

C. The trial court erred by not submitting the dispute concerning

enforceability of the Agreement to the Arbitrator.

Even if the trial court’s conclusion that the Agreement was unenforceable is

correct, the trial court erred by not submitting this determination to the arbitrator,

as mandated by applicable case law regarding defenses raised to agreements as a

whole. “Whether the parties have submitted a particular dispute to arbitration, i.e.,

the ‘question of arbitrability,’ is an issue for judicial determination unless the

23 In re Tenet Healthcare, Ltd., 84 S.W.3d 760, 765-66 (Tex. App.—Houston [1st Dist.] 2002,

no pet.) (citing In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999)).

24 See In re Tenet, 84 S.W.3d at 755-766 (emphasis added); In re. Oakwood Mobile Homes, 987

S.W.2d at 573; Henry, 18. S.W.3d at 688.

25 C.R. at 25.
INTERLOCUTORY APPEAL BRIEF PAGE 9

parties clearly and unmistakably provide otherwise.”26 The defenses raised by Dr.

Morales in his Response to OCT’s Motion to Compel, and at the hearing on OCT’s

motion, namely that the Agreement is unconscionable and illusory, apply to the

Agreement between the parties as a whole.27 Morales’s argument that the

Agreement is illusory because it is silent with regard to how the Agreement can be

modified or amended by OCT is a defense to the parties’ agreement as a whole.28

The United States and Texas Supreme Courts have made abundantly clear that

when the defense raised addresses the entire agreement between the parties, such

as here, that defense is properly brought before an arbitrator during the arbitration

proceedings.29 As such, the enforceability of the Agreement is a question for the

arbitrator, and not the Court, to decide; and the dispute over enforceability should

be compelled to arbitration. The trial court erred in not submitting Dr. Morales’s

dispute concerning the enforceability of the Agreement as a whole to the arbitrator.

26 AT&T Techs., Inc. v. Commc’ns Workers, 475 U.S. at 649.

27 C.R. at 35-41; Appendix Exhibit D, R.R. (Hearing Transcript 11/19/14) at 7:11-8:25.

28 Exhibit D, R.R. (Hearing Transcript 11/19/14) at 7:11-8:25.

29 See In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 190 (Tex. 2007) (citing Buckeye

Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449 (2006) (“We reaffirm today that . . . a

challenge to the validity of the contract as a whole, and not specifically to the arbitration clause,

must go to the arbitrator.”); In re FirstMerit Bank, 52 S.W.3d 749, 756 (Tex. 2001)); In re

Permian Tank & MFG, Inc., 306 S.W.3d 338, 340 (Tex. App.—Eastland 2010, no pet.)
INTERLOCUTORY APPEAL BRIEF PAGE 10

D. The Agreement constitutes a valid agreement to arbitrate between

the Parties.

An employer attempting to enforce an arbitration agreement must show that

the agreement meets all requisite contract elements – offer, acceptance,

consideration, and mutuality of obligation.30 Arbitration should be compelled if

the promises to arbitrate disputes are mutual and the parties seeking to compel

arbitration have the right to compel arbitration against the other party.31 Here, all

of these elements have been established. Dr. Morales does not dispute that he was

offered the Agreement, and voluntarily executed it on October 20, 2009 in

acceptance of the offer.32 Rather, he claims only that as written the Agreement is

illusory, but as set forth below this is not the case.

Under Texas law, a court should compel arbitration if the promises to

arbitrate disputes are mutually-binding and non-illusory, and the parties seeking to

compel arbitration have the right to compel arbitration against the other party.33

"In the context of stand-alone arbitration agreements, binding promises are

required on both sides as they are the only consideration rendered to create a

30 J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 228 (Tex. 2003).

31 Id. at 288; In re Halliburton Co., 80 S.W.3d 566, 569-70 (Tex. 2002).

32 C.R. at 27; 32-46.

33 See J.M. Davidson, Inc., 128 S.W.3d at 228; In re Halliburton Co., 80 S.W.3d at 569-70.
INTERLOCUTORY APPEAL BRIEF PAGE 11

contract."34 A party’s inability to unilaterally modify the provisions of an

arbitration provision indicates its intent to be mutually bound by its terms, which in

turn constitutes adequate consideration between the parties for the agreement.35

Dr. Morales argued before the District Court that the Agreement is illusory

because OCT allegedly has the right to modify, amend or change the Agreement in

its sole and exclusive discretion.36 This is not correct. In fact, Dr. Morales failed

to cite any provision of the Agreement which supports this proposition in both his

response to OCT’s motion to compel arbitration or at the hearing on the motion.37

Rather, Dr. Morales admits that the Agreement is silent as to the modification or

alteration of the terms and conditions.38 A promise is illusory only if it does not

bind the promisor, such as when the promisor retains the option to discontinue

performance.39 There is no language in the Agreement whereby OCT reserved the

34 In re AdvancePCS Health L.P., 172 S.W.3d 603, 607 (Tex. 2005) (per curiam); In re Odyssey

Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010).

35 See e.g., Halliburton, 80 S.W.3d at 570 (noting that an arbitration provision in an

employment context was not illusory where the employer could not retroactively avoid its

promise to arbitrate an existing dispute by unilateral modification).

36 See Exhibit D, R.R. (Hearing Transcript 11/19/14) at 7:10-8:25; Exhibit E, (Hearing

Transcript 5/20/15) at 13:1-15:2)

37 Id.; C.R. 32-46.

38 See Exhibit D, R.R. (Hearing Transcript 11/19/14) at 7:10-8:8)

39 In re 24R, Inc., 324 S.W.3d 564 (Tex. 2010); Mann Frankfort Stein & Lipp Advisors, Inc. v.

Fielding, 289 S.W.3d 844, 849 (Tex. 2009).
INTERLOCUTORY APPEAL BRIEF PAGE 12

right to modify the Agreement, either prospectively or retroactively. Accordingly,

the Agreement is not illusory or unenforceable.40

Both OCT and Dr. Morales are mutually bound by the Agreement’s nonillusory terms, and they both have the right to enforce it against the other.41

Indeed, the Agreement specifically provides that OCT is bound by the terms of the

Agreement to Arbitrate.42 Accordingly, the Agreement is not illusory, is supported

by adequate consideration, and constitutes an enforceable, binding agreement to

arbitrate between OCT and Dr. Morales. A signed, written agreement to arbitrate

may be revoked by a party only on any ground that exists at law or in equity for the

revocation of a contract.43 Dr. Morales identifies so such ground for revocation

and thus the Agreement must be enforced.

E. Dr. Morales’s claims fall within the Agreement’s scope.

Federal and state law strongly favor arbitration, and any doubts concerning

the scope of arbitral issues should be resolved in favor of arbitration.44 Here, the

40 In re 24R, Inc., 324 S.W.3d at 564 (The company did not retain any right within the

arbitration agreement to modify or abolish its terms.)

41 See C.R. at 25-27.

42 See C.R. at 26 (“Both [Dr. Morales] and [OCT] understand that, by agreeing to arbitration,

[Dr. Morales and OCT] are agreeing to substitute one legitimate dispute resolution forum

(arbitration) for another (litigation), and thereby are waiving the right to have disputes resolved

in court.”)

43 See Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 56-61 (Tex. 2008).

44 See, e.g., In re Hornbeck Offshore Corp., 981 F.2d 752, 755 (5th Cir. 1993) (stating

“whenever the scope of an arbitration clause is fairly debatable or reasonably in doubt, the court

should decide the question of construction in favor of arbitration”).
INTERLOCUTORY APPEAL BRIEF PAGE 13

Agreement lists several examples of the types of disputes which, if they arose,

would fall within the Agreement’s scope, including claims for wrongful discharge,

employment discrimination and retaliatory discharge.45 Accordingly, this Court

should give effect to the Agreement’s specific scope by ordering the trial court to

compel arbitration of Dr. Morales’s claims, all of which fall within the scope of the

Agreement.

F. OCT Has Not Waived Its Right to Compel Arbitration.

Dr. Morales’s additional argument, that OCT waived its right to compel

arbitration is also without basis.46 Waiver is the intentional relinquishment of a

known right or intentional conduct inconsistent with claiming that right.47 There is

a strong presumption against waiver of arbitration rights, and waiver is

disfavored.48 It must be intentional.49 Any doubts are resolved in favor of

45 See C.R. at 25 (“The Agreement states: “Both I and the Company, ..., agree that, ..., any

legal or equitable claims arising out of or in connection with my employment, the terms and

conditions of my employment, or the termination of my employment, and all other claims

between me and the Company, even if not related to my employment, will be settled by binding

arbitration.”)

46 Exhibit D, R.R. (Hearing Transcript 11/19/14) at 8:21-11:4; Exhibit E, (Hearing Transcript

5/20/15) at 15:3-16:13); Indeed, in support, Dr. Morales relies only upon a single case,

Interconex, Inc. v. Ugarov, S.W.3d 2006 WL 2506562 (Tex. App.—Houston [1st Dist.] 2006,

n.p.h.). However, the Texas Court of Appeals has vacated the 2006 ruling on which Morales

relied in both his response to OCT’s motion to compel arbitration and during the hearing on the

motion. See Interconex, Inc. v. Ugarov, 224 S.W.3d 523 (Tex. App.—Houston [1st Dist.] 2007).

47 Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003); Sun Exploration & Prod. Co. v.

Benton, 728 S.W.2d 35, 37 (Tex. 1987).

48 First Community Insurance Company and Boyd Construction v. F-Con Contractors, Inc.,

2000 Tex. App. Lexis 1655 (Tex. App.—Dallas March 14, 2000); EZ Pawn Corporation v.

Mancias, 934 S.W.2d 87, 89-90 (Tex. 1996); Interconex, 224 S.W.3d at 533.
INTERLOCUTORY APPEAL BRIEF PAGE 14

arbitration. The party claiming waiver has a heavy burden to prove the opposing

party substantially invoked the judicial process to the other's detriment or

prejudice.50 Waiver will be found only when (1) the party seeking arbitration has

substantially invoked the judicial process,51 and (2) the party opposing arbitration

suffers actual prejudice as a result.52 Here, OCT has not substantially invoked the

judicial process and Dr. Morales has not suffered any prejudice.53

1. OCT Has Not Substantially Invoked the Judicial Process

OCT has not taken any position inconsistent with its Agreement, such that it

intentionally waived its ability to enforce this Agreement.54 Substantially invoking

the judicial process involves “taking specific and deliberate actions, after the suit’s

49 EZ Pawn Corp., 934 S.W.2d at 89 (“Implying waiver from a party's actions is appropriate

only if the facts demonstrate that the party seeking to enforce arbitration intended to waive its

arbitration right.”)

50 First Community Insurance Company and Boyd Construction v. F-Con Contractors, Inc.,

2000 Tex. App. Lexis 1655 * 4-5.

51 To invoke a trial court's subject matter jurisdiction to adjudicate a claim under the Texas

Commission on Human Rights Act, the complaining party must first file a charge of

discrimination to the Texas Commission on Human Rights. Schroeder v. Texas Iron Works, Inc.,

813 S.W.2d 483, 488 (Tex. 1991). If the claim is not presented to the commission, the litigant

does not have the right to have the claim adjudicated in a judicial court. Only after this is done

could Dr. Morales have participated in the judicial process, and OCT been able to move to

compel arbitration.

52 Williams Indus., Inc. v. Earth Dev. Sys. Corp., 110 S.W.3d 131, 134 (Tex. App.—Houston

[1st Dist.] 2002, no pet.); see Schroeder, 813 S.W.2d at 488. A party must file a complaint with

the commission within 180 days after the date the alleged unlawful employment practice

occurred; the commission shall dismiss untimely complaints. TEX. LAB. CODE ANN. § 21.202

(Vernon Pamph. 1996).

53 Id.

54 Exhibit E, (R.R. (Hearing Transcript 5/20/15) at 17:8-18:3)
INTERLOCUTORY APPEAL BRIEF PAGE 15

filing, that are inconsistent with the right to arbitrate.”55 The Court has found that

participation in a docket control conference, sending interrogatories and requests

for production, noticing an oral deposition, and agreeing to re-set a trial date were

insufficient to prove prejudice.56 Engaging in written discovery, filing motions for

protective orders, amending scheduling orders, filing a motion to transfer venue,

conducting depositions and attending pre-trial conference hearings prior to filing a

motion to compel arbitration were also insufficient.57 Furthermore, generalized

protestations about the costs of delay are not enough to overcome the strong

presumption in favor of arbitration.58

During the pendency of this case, other than its motion to compel arbitration,

OCT filed only an Answer subject to arbitration.59 OCT’s Answer included an

affirmative defense that a valid, enforceable, and binding arbitration provision

55 Williams Indus., 110 S.W.3d at 135 (citing Sedillo v. Campbell, 5 S.W.3d 824, 827 (Tex.

App.—Houston [14th Dist.] 1999, no pet.).

56 EZ Pawn Corporation, 934 S.W.2d at 90; see also Walker v. J.C. Bradford & Co., 938 F.2d

575, 578 (5th Cir. 1991) (holding no waiver even though parties engaged in discovery, attended

pretrial conference, amended scheduling order three times and moved to transfer case during

thirteen-month period before filing motion to compel arbitration).

57 Id.; In re Fleetwood Homes of Texas, L.P., 257 S.W.3d 692, 694 (Tex. 2008) (discussing

potential trial setting and sending discovery one day before moving to compel arbitration did not

waive arbitration.)

58 Pennzoil Co. v. Arnold Oil Co., Inc., 30 S.W.3d 494, 499 (Tex. App.—San Antonio [4th

Dist.] 2000).

59 C.R. at 13; OCT’s Answer states as its second defense, “A valid, enforceable, and binding

arbitration provision governs all Plaintiff’s allegations and causes of action, so arbitration of this

matter should be compelled and all proceedings in this Court should be stayed pending final and

binding arbitration.”; See In re Serv. Corp. Int’l, 85 S.W.3d 171, 175 (Tex. 2002) (Motions to

dismiss and to stay discovery were sought to avoid litigation and not to participate in it, thus no

waiver occurred.)
INTERLOCUTORY APPEAL BRIEF PAGE 16

governed Dr. Morales’s allegations, and that arbitration should be compelled;

therefore, OCT’s right and intent to arbitrate were clear since its appearance on

October 13, 2014.60 Emails from OCT on October 13, 2014, and on October 28,

2014, further reminded Dr. Morales that OCT intended to arbitrate this matter.61

Finally, on October 28, 2014, only 15 days after filing its Answer, OCT filed its

Motion to Compel Arbitration.62 During the hearing, counsel for Dr. Morales even

admitted that it was OCT’s position that all proceedings and discovery were stayed

until there was a decision made by the Court with regard to OCT’s motion to

compel arbitration.63 Accordingly, Dr. Morales has not shown any intent by OCT

during this lawsuit to waive its ability to invoke the arbitration process.

2. Dr. Morales Cannot Show Prejudice

To prevail on a waiver defense, a party must prove that it has suffered

prejudice, and general allegations of harm will not suffice.64 Prejudice is defined

in terms of delay, expense, or damage to a party's legal position when it is forced to

litigate issues which will later be arbitrated.65 A delay in making a demand for

60 Id.; Exhibit E, R.R. (Hearing Transcript 5/20/15) at 18:4-18.

61 C.R. at 28.

62 C.R. at 17-28.

63 Exhibit E, R.R. (Hearing Transcript 5/20/15) at 8:9-19.

64 Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494 (Tex. App.—San Antonio 2000); See In re

Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999).

65 Id.; EZ Pawn Corp. v. Mancias, 934 S.W.2d at 91.
INTERLOCUTORY APPEAL BRIEF PAGE 17

arbitration does not constitute waiver in the absence of actual prejudice.66

Prejudice occurs when a party engages in discovery not available in arbitration,

makes motions going to the merits of an adversary's claims, or delays invoking

arbitration rights while the adversary incurs unnecessary delay or expense.67 As

stated above, none of these things have occurred in this case.68 Moreover, Dr.

Morales failed to provide any evidence of prejudice in his Response, or at the

hearings on the motion to compel arbitration.69 Indeed, Dr. Morales presented no

evidence that he was prejudiced by any action or delay by OCT. He did not

identify any discovery obtained by OCT through the judicial process that OCT

would not have been entitled to in arbitration. Furthermore, Dr. Morales made no

attempt to establish the time and expenses incurred in litigating his claim that

66 EZ Pawn Corp., 934 S.W.2d at 91; see also Home Club, Inc. v. Barlow, 818 S.W.2d 192, 193

(Tex. App.—San Antonio 1991, orig. proceeding) (no waiver of right to arbitrate dispute despite

delay of almost 13 months from time suit was filed until motion for stay was filed.)

67 In re Oakwood Mobile Homes, Inc., 987 S.W.2d at 573.

68 Both Parties will have an opportunity to conduct written and oral discovery pursuant to the

rules and procedures agreed to by the Parties and pursuant to the American Arbitration

Association.

69 C.R. at 44-45; Exhibit D, R.R. (Hearing Transcript 11/19/14) at 8:19-11:4; Exhibit E,

(Hearing Transcript 5/20/15) at 15:3-16:13.
INTERLOCUTORY APPEAL BRIEF PAGE 18

would not have been expended in arbitration.70 Without evidence of prejudice, Dr.

Morales’s waiver argument fails.71

II.

CONCLUSION

The trial court erred by ruling on the enforceability of the Agreement when

such determination should have been made by the arbitrator under the law.

Alternatively, to the extent the trial court was the proper entity to adjudicate the

enforceability of the Agreement, it had no choice but to compel arbitration of Dr.

Morales’s claims. OCT presented evidence that Dr. Morales voluntarily

acknowledged and accepted OCT’s Agreement to Arbitrate. Additionally, OCT

established that the Agreement clearly and unambiguously includes Dr. Morales’s

claims, all of which are brought under the Texas Labor Code. Dr. Morales

presented no evidence to rebut these facts. This Court should, therefore, remand

this case with instructions to the trial court to refer the dispute concerning the

70 Granite Constr. Co. v. Beaty, 130 S.W.3d 362 (Tex. App.—Beaumont 2004); See Pennzoil

Co. v. Arnold Oil Co., 30 S.W.3d 494, 499-500 (Tex. App.—San Antonio 2000, orig.

proceeding).

71 In re Multifuels, L.P., 2010 Tex. App. LEXIS 3576 (Tex. App.—Houston [1st Dist.] May 7,

2010); In re Delta Homes, Inc., 5 S.W.3d 237, 240 (Tex. App.—Tyler 1999, orig. proceeding)

("Here, . . . [the opponents] . . . have set forth no evidence showing that they were actually

prejudiced as a result of the delay. Thus, they have failed to establish Delta's waiver of the right

to arbitrate."); United Parcel Serv., Inc. v. McFall, 940 S.W.2d 716, 720 (Tex. App.—Amarillo

1997, orig. proceeding) ("[The opponent] may have explained the extent of the delay, but he did

not illustrate, by argument or evidence, how it prejudiced him. Thus, he did not carry the burden

imposed by EZ Pawn or Prudential.").
INTERLOCUTORY APPEAL BRIEF PAGE 19

Agreement’s enforceability to arbitration or, alternatively, compel Dr. Morales to

arbitrate his claims under the Agreement.

III.

PRAYER FOR RELIEF

Appellant Ophthalmic Consultants of Texas, P.A., respectfully requests that

this Court overrule the decision of the trial court and order Dr. Morales to arbitrate

his dispute over the enforceability of the Agreement or order Dr. Morales’s claims

to arbitration, and for such other relief, both at law and in equity, to which

Appellant OCT may be justly entitled.

Respectfully submitted,

/s/ Victor N. Corpuz

Victor N. Corpuz, Esq.

corpuzv@jacksonlewis.com

Texas Bar No. 04838450

Allyson L. Johnson, Esq.

johnsona@jacksonlewis.com

Texas Bar No. 24054005

JACKSON LEWIS P.C.

500 N. Akard, Suite 2500

Dallas, Texas 75201

Phone: (214) 520-2400

Fax: (214) 520-2008

LEAD ATTORNEYS FOR APPELLANT
INTERLOCUTORY APPEAL BRIEF PAGE 20

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that

this brief (including footnotes) contains 4,158 words (excluding the caption, table

of contents, table of authorities, signature, proof of service, certification, and

certificate of compliance). This is a computer-generated document created in

Microsoft Word, using 14-point typeface for all text, except for footnotes which

are in 12-point typeface. In making this certificate of compliance, I am relying on

the word count provided by the software used to prepare the document.

/s/ Victor N. Corpuz

ONE OF COUNSEL
INTERLOCUTORY APPEAL BRIEF PAGE 21

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the corrected foregoing

document has been sent by electronic mail, and certified mail, return receipt

requested, on the following counsel of record on this 20th day of July, 2015:

Larry Warner

Larrywarner1945@gmail.com

3109 Banyan Circle

Harlingen, TX 78550

CMRR: 7013 2630 0002 1217 9695

John Shergold

hodgeshergold@aol.com

HODGE & SHERGOLD, LLP

1534 East 6th Street, Suite 103

Brownsville, Texas 78520

CMRR: 7013 2630 0002 1217 9688

/s/ Victor N. Corpuz

ONE OF COUNSEL

4824-9469-5205, V. 2
APPENDIX IN SUPPORT OF INTERLOCUTORY APPEAL Page 1

NO. 13-15-00278-CV

__________________________________________________________________

IN THE

THIRTEENTH COURT OF APPEALS

EL PASO, TEXAS

13TH JUDICIAL DISTRICT

__________________________________________________________________

ADOLFO MORALES

v.

OPHTHALMIC CONSULTANTS OF TEXAS, P.A.

__________________________________________________________________

On Appeal from the

444th District Court of Cameron County, Texas

________________________________________________________________

APPENDIX IN SUPPORT OF INTERLOCUTORY APPEAL

__________________________________________________________________

JACKSON LEWIS P.C.

Victor N. Corpuz, Esq.

corpuzv@jacksonlewis.com

Texas Bar No. 04838450

Allyson L. Johnson, Esq.

johnsona@jacksonlewis.com

Texas Bar No. 24054005

500 N. Akard, Suite 2500

Dallas, Texas 75201

Phone: (214) 520-2400

Fax: (214) 520-2008

LEAD ATTORNEYS FOR APPELLANT

ORAL ARGUMENT REQUESTED
APPENDIX IN SUPPORT OF INTERLOCUTORY APPEAL Page 2

Pursuant to Rule 38.1 of the Texas Rules of Appellate Procedure, Appellant

Ophthalmic Consultants of Texas, P.A., files the following Appendix in support of

its Interlocutory Appeal on file:

APPENDIX OF EVIDENCE IN SUPPORT OF

INTERLOCUTORY APPEAL

TAB DESCRIPTION

A June 1, 2015 Order Denying Defendant’s Motion to Compel

Arbitration

B Ophthalmic Consultants of Texas Agreement to Arbitrate signed by

Dr. Morales (October 20, 2009)

C Excerpts from the Master Indexes to Reporter’s Record (Volume 1)

D Excerpts from the Certified Court Reporter’s Record/Hearing

Transcript from November 19, 2014 (Volume 2)

E Excerpts from the Certified Court Reporter’s Record/Hearing

Transcript from May 20, 2015 (Volume 3)

4824-9156-3557, v. 1
PDF created with pdfFactory trial version www.pdffactory.com

A
B


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CORINNA N. GARCIA, CSR

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REPORTER'S RECORD

VOLUME 1 OF 3 

TRIAL COURT CAUSE NO. 2014-DCL-05833-H

APPELLATE CAUSE NO. 13-15-00278-CV

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:

ADOLFO MORALES, : IN THE DISTRICT COURT

Plaintiff :

:

VS. : 444TH JUDICIAL DISTRICT 

:

OPHTHALMIC CONSULTANTS OF : 

TEXAS, P.A., : 

Defendant : CAMERON COUNTY, TEXAS

:

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MASTER INDEXES TO REPORTER'S RECORD

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VOLUME 1

MASTER INDEXES TO REPORTER'S RECORD

VOLUME 2

HEARING ON DEFENDANT'S MOTION TO ENFORCE ARBITRATION 

NOVEMBER 19, 2014 PAGE VOL

Argument by Mr. Shergold ..................... 7 2

Court's Ruling taken under Advisement ........ 11 2 

Adjournment .................................. 11 2 

Court Reporter's Certificate ................. 12 2 

VOLUME 3 INDEX

HEARING ON DEFENDANT'S MOTION TO ENFORCE ARBITRATION 

MAY 20, 2015 PAGE VOL

Discussion of Counsel Regarding Status of Case 6 3

Argument by Mr. Corpuz........................ 10 3 

Argument by Mr. Shergold ..................... 13 3

Court's Ruling taken under Advisement ........ 17 3 

Adjournment .................................. 19 3 

Court Reporter's Certificate ................. 20 3 
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CORINNA N. GARCIA, CSR

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REPORTER'S RECORD

VOLUME 2 OF 3 

TRIAL COURT CAUSE NO. 2014-DCL-05833-H

APPELLATE CAUSE NO. 13-15-00278-CV

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:

ADOLFO MORALES, : IN THE DISTRICT COURT

Plaintiff :

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VS. : 444TH JUDICIAL DISTRICT 

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OPHTHALMIC CONSULTANTS OF : 

TEXAS, P.A., : 

Defendant : CAMERON COUNTY, TEXAS

:

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********************************************************

HEARING ON 

DEFENDANT'S MOTION TO ENFORCE ARBITRATION 

********************************************************

On NOVEMBER 19, 2014, the following 

proceedings came on to be heard in the above-entitled 

and numbered cause before the Honorable DAVID A. 

SANCHEZ, Judge Presiding, held in Brownsville, Cameron 

County, Texas.

Proceedings reported by computerized 

stenotype machine.

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A P P E A R A N C E S

APPEARING FOR THE PLAINTIFF:

JOHN L. SHERGOLD

State Bar No. 00794624

HODGE & SHERGOLD, L.L.P.

1534 E. 6th Street, Suite 103

Brownsville, Texas 78520

(956) 548-9100
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VOLUME 2 INDEX

HEARING ON DEFENDANT'S MOTION TO ENFORCE ARBITRATION 

NOVEMBER 19, 2014 PAGE VOL

Argument by Mr. Shergold ..................... 7 2

Court's Ruling taken under Advisement ........ 11 2 

Adjournment .................................. 11 2 

Court Reporter's Certificate ................. 12 2 

INDEX OF EXHIBITS

(NO EXHIBITS MARKED)
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P R O C E E D I N G S

(Open court, 9:15 a.m.)

THE COURT: Mr. Shergold, what are you here 

on? 

MR. SHERGOLD: Your Honor, I represent 

Dr. Adolfo Morales in Cause Number 2014-DCL-05833, and I 

believe I'm here -- I filed a document responding to 

Defendant's Motion to Enforce Arbitration and I'm ready 

to argue my case against enforcement of the arbitration 

provision. 

THE COURT: Who is on the other side? 

MR. SHERGOLD: A gentleman by the name of 

Victor Corpuz. 

THE COURT: But he's not here today? 

THE ADMINISTRATOR: Judge, Mr. David 

Oliveira checked in. I believe he may have checked in 

on this case. 

THE COURT: Do you know if he's -- 

MR. SHERGOLD: I was in a jury trial last 

week and David Oliveira was representing the school 

district at that time, but I don't have any information 

as to whether he's representing Defendant Ophthalmic 

Consultants of Texas. But, Judge, I'll stand ready. 

I'll go get a cup of coffee or something. 

THE COURT: I'm assuming it's their motion, 
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right? 

MR. SHERGOLD: It's their motion and I 

filed a response, if the Court could check its file. I 

have a file-stamped copy of the response I filed Monday. 

I don't know if the Court has it or not. 

THE COURT: I haven't looked at the file 

yet, but, I mean, if they don't show up, you know. 

MR. SHERGOLD: I understand. We would ask 

that their motion be denied, Your Honor. At this time 

we ask that the defendant's motion be denied. 

THE COURT: Well, let's just wait to see if 

that's the case Mr. Oliveira checked in on. I believe 

there is a little bit of uncertainly as to whether 

that's the case he checked in on or not.

MR. SHERGOLD: Sure. I understand. I'll 

go get a cup of coffee and hang out for 15 to 20 

minutes. 

THE COURT: We'll page you.

(Recess from 9:16 a.m. to 9:36 a.m.)

(David Oliveira present)

MR. SHERGOLD: May I approach, Your Honor? 

THE COURT: Yes. 

MR. SHERGOLD: Your Honor, I approached 

Mr. Oliveira and he -- we were in trial against each 

other last week and -- 
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MR. OLIVEIRA: And he beat me. For the 

record, he beat me. 

THE COURT: He's a very fine attorney. 

MR. SHERGOLD: I'll lose the next one to 

David, but he's not on the case of Ophthalmic 

Consultants. I asked him upstairs. 

MR. OLIVEIRA: Does my name show up 

somewhere? 

THE COURT: No. Priscilla just wasn't 

sure. She just --

MR. OLIVEIRA: Because I was here on the 

other case, yes. Okay. No, I'm not on that case. 

THE COURT: Okay. Have a good day. Okay. 

So --

MR. SHERGOLD: I'm here appearing as 

ordered by the Court, Your Honor. It's 9:35 and I have 

-- John Shergold, for the record. I represent 

Dr. Adolfo Morales, plaintiff in a wrongful termination 

suit where we have alleged that he was terminated due to 

discrimination. I believe the defendant has filed a 

motion to enforce arbitration. And, obviously, 

plaintiff is opposed. 

We filed a response in opposition and I'm 

here as ordered, Judge, to argue against the motion to 

enforce as filed by the defendant. 
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THE COURT: All right. Go ahead and give 

me your argument. 

MR. SHERGOLD: Your Honor, we're -- the 

plaintiff is -- 

THE COURT: And excuse me for interrupting. 

I'm sorry. But, Priscilla, the defendants didn't call 

or check in on this, did they? 

THE ADMINISTRATOR: They did not call or 

check in. 

THE COURT: Okay. All right. Go ahead.

MR. SHERGOLD: Very well, Your Honor. 

Several -- there's been several treatises written on 

enforceability of arbitration provisions. The plaintiff 

has filed a response and we have summarized our position 

as to why arbitration in this matter is not appropriate. 

One of the main arguments that we have here, Your Honor, 

is that it's an illusory -- the contract to arbitrate is 

illusory. 

Dr. Morales was terminated by Ophthalmic 

Consultants of Texas. And after his termination, then 

the defendant decided to enforce the arbitration 

provision. 

We believe that since Dr. Morales is no 

longer an employee of the employer -- and if you would 

look at the -- we'd ask that you take judicial notice of 
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the exhibit A that was filed by the defendant's 

representatives, which is the actual proposed 

arbitration agreement. You'll see in that arbitration 

agreement no provision as to what the situation is where 

the employee or ex-employee files or is gaining access 

to the Court system. In other words, the arbitration 

agreement is silent as to how do you modify, amend, 

change the agreement. 

Now, when you're not working for a company 

any longer, there ought to be some sort of provision in 

the proposed agreement that says that in the event that 

this could be amended, modified or changed, it should -- 

some sort of notice should go to the ex-employee. 

In other words, it doesn't give the 

plaintiff in my case the opportunity to be notified or 

have any sort of say on how or when or if this agreement 

that is being enforced could be modified sometime in the 

future, thus rendering this illusory. 

Your Honor, I wrote quite a lengthy paper 

on this and I'd ask that basically that you read through 

that as well. Also waiver -- this is a very interesting 

concept -- does the fact that the time that's gone by 

from the point in which something occurred that 

plaintiff did in ordered to tip off the defendant that 

there was going to be some sort of litigation. 
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Well, back in December 2013 my client filed 

a complaint with the Texas Work Force Commission's 

Division of Civil Rights. At that point that was -- 

notice of that -- notification was sent to the 

defendant. There was no trigger by the defendant at 

that time as to whether or not they wanted to initiate 

the arbitration provision. Going forward, client 

filed -- got a right to sue letter in June of 2014. 

Again, defendant did not trigger its 

arbitration agreement. Then we filed the lawsuit, if 

you'll notice, in August of 2014 and there is still not 

a trigger to the arbitration agreement. And then we 

march it down to 18 November, 2014 and we don't have -- 

we have this hearing. 

And so what I'm saying is that if you look 

at the -- the whole file and look at the chronology of 

the dates, we have right to sue letter issued in June, 

lawsuit filed in August, answer filed by defendant. But 

when the defendant filed his answer, it stated that it 

had an arbitration agreement in its answer but it didn't 

say that it was -- it did not say or not filed at that 

time contemporaneously that it was planning to enforce 

the arbitration agreement. That motion was filed 

subsequent to the answer. 

So another argument we have here is waiver, 
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that -- the provision that we always know is that if 

you're going to contest jurisdiction, it should be done 

at the time that you file an answer, contemporaneously. 

The answer was that there was an arbitration agreement 

but it did not state that the defendant was to file or 

to oppose or to force plaintiff into this arbitration 

agreement at that time. 

So, in sum, Your Honor, we believe it's 

illusory. We believe that there has been a waiver here. 

Also, we believe there is -- substantial due process has 

been violated, which basically the Haliburton Court goes 

to the illusory aspect. Also, it discusses the issue 

regarding the enforceability of a substantial due 

process problem. 

And also, finally, the waiver we indicated 

a case that -- regarding the timeline that the 

arbitration clause was not triggered. And I cited that 

-- if I could just have one second to cite that case, 

Your Honor. And that case was Interconex Incorporated 

versus Ugarov, SW3d Reporter 2006, Westlaw 2506562, and 

that's where the appellate court in Houston talked about 

the time lapse as to how that would give rise to a 

waiver. 

Your Honor, for all the reasons given that 

I've stated, I would ask that the defendant's motion to 
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CORINNA N. GARCIA, CSR

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enforce arbitration be denied. I represent plaintiff, 

of course, and we have included an order attached to my 

response that we ask that you sign to deny defendant's 

motion. Thank you.

THE COURT: All right. Thank you, 

Mr. Shergold. I'll review your brief and then I'll make 

a ruling. 

MR. SHERGOLD: Thank you, Your Honor. May 

I be excused, Judge? 

THE COURT: Yes, sir. Have a nice day. 

MR. SHERGOLD: And, Your Honor, just for 

the record, I'd just like to make note that the 

defendant's counsel is not present. Is that correct? 

THE COURT: That's correct, didn't call or 

check in with us, so thereby waiving any oral arguments 

he may have wanted to make. 

MR. SHERGOLD: Thank you, Your Honor. Have 

a nice day. 

(The hearing was concluded at 9:44 a.m.)
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THE STATE OF TEXAS:

COUNTY OF CAMERON:

CERTIFICATE OF COURT REPORTER

I, CORINNA N. GARCIA, Official Court Reporter in and 

for the 444th District Court of Cameron County, Texas, 

do hereby certify that the above and foregoing contains 

a true and correct transcription of all portions of 

evidence and other proceedings requested in writing by 

counsel for the parties to be included in this volume of 

Reporter's Record, in the above styled and numbered 

cause, all of which occurred in open court or in 

chambers and were reported by me.

I further certify that this transcription of the 

record of the proceedings truly and correctly reflects 

the exhibits, if any, offered by the respective parties.

WITNESS MY OFFICIAL HAND on this the 2nd day of July,

2015.

/S/ Corinna N. Garcia

CORINNA N. GARCIA, CSR

Official Court Reporter

444th Judicial District Court

974 East Harrison Street

Brownsville, Texas 78520

Certificate No. 5210

Expiration Date 12/31/15
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REPORTER'S RECORD

VOLUME 3 OF 3 

TRIAL COURT CAUSE NO. 2014-DCL-05833-H

APPELLATE CAUSE NO. 13-15-00278-CV

- - - - - - - - - - - - - - - x

:

ADOLFO MORALES, : IN THE DISTRICT COURT

Plaintiff :

:

VS. : 444TH JUDICIAL DISTRICT 

:

OPHTHALMIC CONSULTANTS OF : 

TEXAS, P.A., : 

Defendant : CAMERON COUNTY, TEXAS

:

- - - - - - - - - - - - - - - x

********************************************************

HEARING ON 

DEFENDANT'S MOTION TO ENFORCE ARBITRATION 

********************************************************

On MAY 20, 2015, the following proceedings 

came on to be heard in the above-entitled and numbered 

cause before the Honorable DAVID A. SANCHEZ, Judge 

Presiding, held in Brownsville, Cameron County, Texas.

Proceedings reported by computerized 

stenotype machine.

E
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CORINNA N. GARCIA, CSR

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A P P E A R A N C E S

APPEARING FOR THE PLAINTIFF:

JOHN L. SHERGOLD

State Bar No. 00794624

HODGE & SHERGOLD, L.L.P.

1534 E. 6th Street, Suite 103

Brownsville, Texas 78520

(956) 548-9100

APPEARING FOR DEFENDANT:

VICTOR NAVASCA CORPUZ

State Bar No. 04838450

JACKSON LEWIS, P.C.

500 North Akard, Suite 2500

Dallas, Texas 75201

(214) 520-2400

EDUARDO G. "EDDIE" GARZA

State Bar No. 00796609

ESPARZA & GARZA, L.L.P.

964 E. Los Ebanos Boulevard

Brownsville, Texas 78520

(956) 547-7775 
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VOLUME 3 INDEX

HEARING ON DEFENDANT'S MOTION TO ENFORCE ARBITRATION 

MAY 20, 2015 PAGE VOL

Discussion of Counsel Regarding Status of Case 6 3

Argument by Mr. Corpuz........................ 10 3 

Argument by Mr. Shergold ..................... 13 3

Court's Ruling taken under Advisement ........ 17 3 

Adjournment .................................. 19 3 

Court Reporter's Certificate ................. 20 3 

INDEX OF EXHIBITS

(NO EXHIBITS MARKED)
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P R O C E E D I N G S

(Open court, 9:27 a.m.)

THE COURT: 2014-DCL-5833, Adolfo Morales 

versus Ophthalmic Consultants of Texas. 

MR. CORPUZ: Victor Corpuz and Eddie Garza 

on behalf of Defendant Ophthalmic Consultants of Texas, 

Your Honor. 

MR. GARZA: Good morning, Your Honor.

THE COURT: Good morning.

THE ADMINISTRATOR: Judge, Mr. Shergold 

did check in and he said he would be here at about 

10:30. They said it wouldn't take maybe more than 

10 minutes because one of the attorneys has a flight. 

MR. CORPUZ: 10 to 15 minutes, Your Honor. 

THE COURT: Okay. Where is Mr. Shergold? 

MR. GARZA: At an administrative hearing at 

BISD. He came in this morning.

THE COURT: Okay. All right. Well, as 

soon as he comes in, we'll stop whatever we're doing so 

that we can take yours up so you can catch your flight. 

All right?

MR. CORPUZ: Very good.

MR. GARZA: Thank you, Your Honor.

(Recess from 9:27 a.m. to 10:34 a.m.)

THE COURT: Okay. Mr. Shergold, 
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2014-DCL-5833, Adolfo Morales and Ophthalmic Consultants 

of Texas, P.A. 

MR. SHERGOLD: Good morning, Your Honor. 

THE COURT: Good morning. 

MR. SHERGOLD: Your Honor, this is 

defendant's motion to compel arbitration on an 

employment matter dispute. Back on 18 November of 2014, 

I appeared. I was ordered to appear on this matter. I 

was here. I made an argument to the Court. The defense 

counsel was not present at that time. Then at this 

point we've been given a reset notice for today in order 

to, I suppose, reargue the same argument I made back on 

18 November. 

I'm here. The defense counsel is here. I 

believe another attorney is here now for defendant. 

Thank you for allowing me to be here at 10:30. I 

submitted a continuance for a couple of hours. I was at 

the Brownsville ISD with a huge administration issue 

that I had to be part of with a client, and the 

gentlemen graciously waited until 10:30. So I thank 

them for their professional courtesy today. 

THE COURT: All right. 

MR. CORPUZ: Your Honor, Victor Corpuz on 

behalf of Ophthalmic Consultants of Texas, along with my 

co-counsel Eddie Garza. Your Honor, we did receive -- 
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and it's all my fault. We did receive the order by 

e-mail. I was out of town the week that the order did 

come in. I missed it. It was not calendared. 

We didn't receive a response or a copy of 

Mr. Shergold's response until we actually requested it. 

That would have certainly triggered in our mind that an 

order had been set, or at least a hearing had been set. 

We were actually exploring a couple of dates in early 

December to set it. So that's when I was anticipating 

that it would be set. 

So I'm going to fall on my sword today and 

also point out the fact that we're here now to argue the 

merits of the motion to compel arbitration. 

MR. SHERGOLD: Your Honor, I object to the 

fact that the gentleman was given the opportunity to 

come back, you know, five months later. This case has 

been in abatement. I at this point would state that 

I've already made my argument. The judge said he was 

going to make a decision. Then I find out he's back 

again today in May, which, you know, we're seven months 

later. And so, you know, I really don't have anything 

else to say, Your Honor, except that I object. 

MR. GARZA: May I address the Court, Your 

Honor? 

THE COURT: Sure.
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MR. GARZA: The original notice that was 

sent out to my co-counsel was sent out in the customary 

fashion that we do here in Cameron County. Those of us 

from the local bar are very accustomed to that. It's 

all electronic data that comes through e-mail. So we 

know what we're looking out for. 

Up in Dallas sometimes it goes through the 

ECDF system or the electronic system where it comes in a 

whole different kind of fashion with all kind of notices 

and whatnot. 

And what happened here is that particular 

order was received by the firm but it wasn't recognized 

as an official correspondence from the court. That's 

why it was not put down or anticipated. I've seen that 

happen a couple of times in our office, but my staff is 

used to it, so they're accustomed. 

It's not -- the Court did exactly what it 

was supposed to do in sending out that notice, but it 

was a complete inadvertent oversight with no disrespect 

to the Court, Your Honor. 

MR. CORPUZ: And, Your Honor, if I might 

add this too. Had we received a copy of the response 

before the hearing, that certainly would have alerted us 

to a hearing actually set. But it wasn't until we 

actually called Mr. Shergold's office and requested a 
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copy that we actually had a copy of their response. 

MR. SHERGOLD: Your Honor, I e-mailed a 

copy the same day that I filed it in U.S. regular mail, 

for whatever matter it is. If I'm going to be blamed 

for defense counsel not being here, I guess I've heard a 

lot of arguments in my career, but I just heard another 

one. I sent him a copy. Whether it got there five days 

after the hearing or not -- I was here. I was here. 

THE COURT: Let me ask you all this. With 

regard to the case, I mean, I know it was filed in 2014. 

Has very little been done in the way of discovery and 

working the case up? 

MR. SHERGOLD: Your Honor, the defense 

position is that the -- all proceedings and discovery 

are stayed until there is a decision made by the Court. 

That's been my -- 

THE COURT: I was just wondering if sending 

you all to mediation before I take this up might be 

fruitful for everybody. 

MR. SHERGOLD: I have no objection being 

sent to mediation, Your Honor.

MR. CORPUZ: Your Honor, there is a 

mediation component in that arbitration agreement. 

Mr. Shergold approached us about mediation and I said -- 

and I told him as well that there is a component in the 
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arbitration agreement to an early mediation. And I've 

invited him to agree to the arbitration agreement. But 

he didn't agree to it, and so my client did not want to 

go to mediation until we at least have a decision on the 

arbitration agreement. 

MR. SHERGOLD: And, Your Honor, the 

condition of mediation was for me to waive any arguments 

I have in front of you, which I was not going to do. 

I've been in this business too many years. But I'll 

tell you, I will do this, Judge. I'm willing to go to 

mediation tomorrow but I'm not going to waive my 

client's right to bust this arbitration agreement. And, 

obviously, that's what the defense counsel wants, he 

wants me to agree to mediation and then go to 

arbitration as a condition of dismissing this motion, 

and I'm not going to agree to that, Judge. 

THE COURT: Would you all be willing to go 

to mediation before I make a ruling here to see if maybe 

it will settle? 

MR. GARZA: One of the reasons, Your Honor, 

behind the actual motion itself and why it's done at the 

preliminary stages of litigation is to avoid any 

particular ancillary cost or any judicial economy being 

preserved here for this Court as well. The component 

for mediation we're talking about is, obviously, the 
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CORINNA N. GARCIA, CSR

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issue of arbitration is paramount and is a viable 

motion. That's why we're here. It's not a long 

argument that we're here to present for you. But, at 

the same time, assuming that the arbitration agreement 

is enforced or the motion to compel is granted, one of 

the first things that has to be done in that capacity is 

to mediate, which is nonbinding, it's an opportunity to 

sit down and try to work it out. 

But just from a procedural standpoint, 

before we take any steps further with respect to this 

litigation, we'd like to get that motion addressed if we 

could, Your Honor. 

MR. SHERGOLD: Again, Your Honor, I have no 

objection to being sent to mediation prior to this 

hearing. I've been waiting seven or eight months for 

this proceeding to go forward. 

THE COURT: All right. And I know you said 

really the only thing you want to say is you object to 

this. So let me hear -- other than what you stated is 

the reason you missed, do you have anything else you 

want to argue with regard to your motion for 

arbitration? 

MR. CORPUZ: Sure, Your Honor. On the 

merits, Dr. Adolfo Morales, the plaintiff in this case, 

filed a petition alleging age discrimination and 
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CORINNA N. GARCIA, CSR

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retaliation. So this case is really an employment law 

case. Dr. Morales in October of 2009, when he first 

started his employment with Ophthalmic Consultants of 

Texas, signed an arbitration agreement. It's a 

stand-alone separate document from any handbook or any 

other documents as part of his employment. 

He signed it in October of 2009. He 

understood it based on his level of education and 

understanding of the fact that he was waiving a right to 

a jury trial. He, after he signed it, he continued to 

work as an ophthalmic specialist for OCT, Ophthalmic 

Consultants of Texas. The arbitration agreement is 

valid because it was signed at the beginning of 

Dr. Morales's employment. 

He agreed to the arbitration clause based 

on any allegations of workplace misconduct, including 

employment discrimination and retaliatory discharge. 

All such claims would be arbitrated in an arbitration 

setting. 

The arbitration agreement also specifies 

that it would be conducted in the city where Dr. Morales 

worked. It would be conducted in accordance with the 

employment dispute resolution rules of the American 

Arbitration Association. The arbitrator would also have 

the right to coordinate all discovery. The arbitration 
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CORINNA N. GARCIA, CSR

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agreement also specifies that it would be final and 

binding on both Dr. Morales and Ophthalmic Consultants 

of Texas and perhaps, most importantly, the arbitration 

agreement specifies that the cost and expenses would be 

borne by OCT. 

Certainly, because Dr. Morales is alleging 

age discrimination and retaliation, those are the types 

of claims that fall within the scope of the arbitration 

agreement that it's our position that the arbitration 

agreement is valid and enforceable and Dr. Morales's 

claims of age discrimination and retaliation fall within 

the scope of the arbitration agreement. And based on 

those two elements, it's our position that the Court 

must compel arbitration in this matter. 

THE COURT: Mr. Shergold, would you like to 

respond to anything? 

MR. SHERGOLD: Yes, before I do, I would 

just like to state that I would like the opportunity to 

have the transcript that was created on 18 November, 

2014 produced. I'll make the request to your court 

staff. I'd like to have that transcribed and attached 

as part of my response, please. In other words, Your 

Honor, the argument I made on November -- 

THE COURT: You just want to reiterate it 

as part of today's record, correct? 
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MR. SHERGOLD: Yes, that's correct, and 

that way I'll be very brief in my response, Your Honor. 

The arbitration agreement is illusory. The document 

that I responded to was stamped November 17, 2014. What 

I'm basically arguing on behalf of this worker, Your 

Honor, is that -- I know it's a fad now. I think that 

the courts have struggled with the issue of enforcing 

arbitration agreements. 

Of course, we believe and the plaintiff 

believes it's a violation of the ultimate court's 

doctrine, the fact that people have a constitutional 

right to be able to have a jury of their peers basically 

hear the case. It's a matter of first impression on 

this issue if this case is appealed or places a plea to 

the jurisdiction. I plan to make the argument that this 

is a constitutional violation of the Texas constitution 

to prohibit or to somehow impede a citizen's right to 

have his day in court based upon that. And that would 

be something I would use as an appeal. 

But getting to the nuts and bolts of what 

we have to deal with right now as far as the current law 

in the arbitration enforceability, we claim it's 

illusory and void because in the agreement -- in the 

agreement to arbitrate, there is nothing in there that 

talks about what happens if the person, or the employee, 
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I should state, becomes an ex-employee. And if the 

person becomes an ex-employee, like Dr. Morales, is 

there any sort of notice provision that's in this 

arbitration agreement that states specifically that that 

ex-employee is to be notified of any specific changes in 

the arbitration agreement. No, there isn't. 

And if the defense counsel can point out 

what happens in that scenario in that document, where a 

person becomes an ex-employee and if there is any 

documentation in that agreement, it says that notice 

shall be provided to the ex-employee of any changes or 

any revisions or cancelations in the policy, then I 

would like to see that. Because I haven't been able to 

find it in the paperwork that was sent to me. 

We claim on behalf of the worker ipso facto 

that that would make the arbitration agreement void 

because it's illusory. In other words, he who pays the 

piper plays the tune, Your Honor. He who pays the piper 

plays the tune. So if the arbitration agreement that 

exists doesn't have any notification provisions or any 

discussion regarding the situation when an employee 

becomes an ex-employee and he moves off to Alaska or 

California or maybe to Mexico or whatever, maybe across 

the street, there is nothing there that says that if we 

change the agreement you become part of the change and 
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you shall be notified. That's my argument in a nutshell 

on that issue. 

The second component of my argument is even 

more simple, since I'm a country boy. The other 

argument is that the defendant waived his right to 

enforce this arbitration agreement. It waited almost 

over a year from the time that the EEOC was contacted in 

order to invoke or to have a provision enforced. And I 

can point out in my response to the enforceability 

agreement of this arbitration. I can point out the 

page -- if I can get to that, please. 

Page 14, item 3, waiver of arbitration 

agreement. Defendant has waived its right to compel 

arbitration from the fact that the latest request is 

nearly a year after plaintiff submitted a discrimination 

complaint with the Texas Work Force Commission, Division 

of Civil Rights. 

I cited a case. It was the Interconex

case, Your Honor, that comes out of the First District 

of Houston, Texas Appeals, where it actually talks about 

the fact that in that situation defendant had acted 

inconsistently with the right to arbitrate by failing to 

answer before the default judgment was taken. 

In this situation the analogy clearly is 

equivalent because of the fact that the defendant here 
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knew that my client was filing a complaint with the 

Equal Employment Opportunity Commission, Civil Rights 

Division and Workforce Division of the state, and they 

waited over a year to invoke the provision, Your Honor. 

So we say that the defendant has waived the arbitration 

agreement by waiver. 

So those are our two main points, Judge. 

I'm going to stop talking and, again, for the record, 

indicate that I will be requesting that the transcript 

that I basically made on 18 November, 2014 be 

incorporated as part of my response arguing against the 

arbitration enforceability, Your Honor. And with that, 

I thank you very much. 

THE COURT: All right. Do you all have 

proposed orders? 

MR. SHERGOLD: Your Honor, I do have a 

proposed order that was submitted by paper back in 18 

November. I don't know if it stood the test of time. 

THE COURT: Yes. 

MR. CORPUZ: We have a proposed order, Your 

Honor, other than the fact that -- 

THE COURT: I do have them both. 

MR. CORPUZ: -- 2014 needs to be changed to 

2015. 

THE COURT: That's fine. Let me -- 
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MR. SHERGOLD: That's a very salient point, 

Your Honor. 

THE COURT: Let me look at that transcript 

and then I'll get you an answer here. I'll try to have 

an order out before the end of the day. I think Corinna 

can probably pull it up and I can read it on the 

computer. 

MR. SHERGOLD: Your Honor, I'll make an 

official request to pay the transcription fee because I 

do know your employees do a lot of good work and we'll 

be happy to request that in writing and pay whatever it 

costs. 

MR. CORPUZ: And, Your Honor, if I could 

respond to the waiver argument very briefly. The case 

law on arbitration agreement and waiver of arbitration 

agreements that Dr. Morales signed is pretty clear. The 

only time that the courts have found waiver is when a 

party has done something inconsistent, significantly 

inconsistent with the arbitration agreement, such as 

seeking affirmative relief from the Court, filing any 

kind of discovery motions with the Court, filing a 

counterclaim, conducting discovery for over a year and a 

half before triggering the arbitration agreement. 

So in this instance there has not been a 

waiver of the arbitration agreement. In fact, 
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CORINNA N. GARCIA, CSR

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Dr. Morales's signature at the beginning of his 

employment demonstrates that he agreed to the 

arbitration agreement. 

THE COURT: Okay. Mr. Corpuz, your firm 

filed the original -- beginning with the original answer 

and subsequent documents electronically; is that 

correct? 

MR. CORPUZ: That's correct, Your Honor. 

THE COURT: Okay. Because I was looking 

for all that in the file and it seems to be actually in 

the electronic file and not in the physical file. 

MR. GARZA: I have a courtesy copy for the 

Court, if you'd like, Your Honor. 

THE COURT: No, that's fine. I just wanted 

to make sure that electronic is the way you all were 

filing from the get-go. 

MR. CORPUZ: Yes, Your Honor, and our 

answer does refer to the arbitration agreement as well. 

MR. SHERGOLD: May I respond to that, Your 

Honor? The answer refers to the arbitration agreement, 

but does not -- was not -- an arbitration enforcement of 

that agreement was not filed until several weeks after 

that. So I think that also constitutes a waiver as 

well, Your Honor. 

THE COURT: Okay. Well, I'll look at the 
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transcript and I'll try to get you all a ruling on this 

before the end of the day.

MR. SHERGOLD: And can I get the court 

reporter's card, please? 

THE COURT: Sure.

MR. SHERGOLD: May I approach? 

THE COURT: Yes, sir. Thank you. All 

right. Good luck catching your flight, Mr. Corpuz.

MR. CORPUS: Thank you, Your Honor. 

(The hearing was concluded at 10:53 a.m.)
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CORINNA N. GARCIA, CSR

20

THE STATE OF TEXAS:

COUNTY OF CAMERON:

CERTIFICATE OF COURT REPORTER

I, CORINNA N. GARCIA, Official Court Reporter in and 

for the 444th District Court of Cameron County, Texas, 

do hereby certify that the above and foregoing contains 

a true and correct transcription of all portions of 

evidence and other proceedings requested in writing by 

counsel for the parties to be included in this volume of 

Reporter's Record, in the above styled and numbered 

cause, all of which occurred in open court or in 

chambers and were reported by me.

I further certify that this transcription of the 

record of the proceedings truly and correctly reflects 

the exhibits, if any, offered by the respective parties.

I further certify that the total cost for the 

preparation of this Reporter's Record is $112.20 and was 

paid/will be paid by Appellant Ophthalmic Consultants of 

Texas.

WITNESS MY OFFICIAL HAND on this the 2nd day of July,

2015.

/S/ Corinna N. Garcia

CORINNA N. GARCIA, CSR

Official Court Reporter

974 East Harrison Street

Brownsville, Texas 78520

Certificate No. 5210

Expiration Date 12/31/15

(956) 547-7061