### NO. 13-15-00278-CV

__________________________________________________________________ IN THE THIRTEENTH COURT OF APPEALS EDINBURG, TEXAS 13 th 

### JUDICIAL DISTRICT

__________________________________________________________________ ADOLFO MORALES

v. OPHTHALMIC CONSULTANTS OF TEXAS, P.A.

__________________________________________________________________ On Appeal from the 444 th 

### 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

CLERKINTERLOCUTORY 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 

### L EWIS 

### PC 500 N. Akard, Suite 2500 Dallas, Texas 75201 Phone: (214) 520-2400 Fax: (214) 520-2008 APPELLEE : Adolfo Morales, M.D. C OUNSEL 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 H ODGE 

### & S HERGOLD 

### , LLP 1534 East 6 th 

### Street, Suite 103 Brownsville, Texas 78520 Phone: (956) 548-9100 Fax: (956) 548-9102INTERLOCUTORY APPEAL BRIEF PAGE ii



### TRIAL COURT JUDGE : The Honorable David Sanchez 444 th 

### District Court, Cameron County 974 E. Harrison, First Floor #5 Brownsville, Texas 78520 Phone: (956) 547-7034INTERLOCUTORY 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 ....................................................................................19INTERLOCUTORY 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) .........................................................11INTERLOCUTORY 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, 16INTERLOCUTORY 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 [1 st 

### Dist.] 2007)....................................13 Interconex, Inc. v. Ugarov , S.W.3d 2006 WL 2506562 (Tex. App.—Houston [1 st 

### 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).......................18INTERLOCUTORY 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 [1 st 

### Dist.] 2002, no pet.).................14, 15 S TATUTES 

### TEX 

### . LAB 

### . C ODE 

### ANN 

### . § 21.202 (Vernon Pamph. 1996) .........................................14 Texas Commission on Human Rights Act, TEX 

### . LAB 

### . C ODE 

### ANN 

### . § 21.001, et seq . ................................................................................................................1, 4INTERLOCUTORY 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 

### . C ODE 

### 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 withINTERLOCUTORY 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 

### . C ODE 

### ANN 

### . § 21.001 et seq

. 8 

### Dr. Morales was hired by OCT as an ophthalmology specialist in 2009. 9 

### In 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 [1 st 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 [1 st 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 [1 st 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. Campb ell, 5 S.W.3d 824, 827 (Tex. App.—Houston [14 th 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 APPELLANTINTERLOCUTORY 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 

### C OUNSELINTERLOCUTORY 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 20 th 

### 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 H ODGE 

### & S HERGOLD 

### , LLP 1534 East 6 th 

### Street, Suite 103 Brownsville, Texas 78520 CMRR: 7013 2630 0002 1217 9688

/s/ Victor N. Corpuz ONE OF 

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

### NO. 13-15-00278-CV

__________________________________________________________________ IN THE THIRTEENTH COURT OF APPEALS

EL PASO, TEXAS 13 TH 

### JUDICIAL DISTRICT

__________________________________________________________________ ADOLFO MORALES

v. OPHTHALMIC CONSULTANTS OF TEXAS, P.A.

__________________________________________________________________ On Appeal from the 444 th 

### 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 REQUESTEDAPPENDIX 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 

### D ESCRIPTION 

### 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. 1P D F c reat ed w i t h pd f F a ct o ryt ri a l ve rs i on www . pd ff a ct o ry . comFILED2014-DCL-0583310/28/2014 3:51:25 PMAurora De La GarzaCameron County District ClerkBy Ezequiel Zepeda Deputy Clerk29845361 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 1

**REPORTER'S RECORD V** **OLUME 1 OF 3 TRIAL COURT CAUSE**  **N O. 2014-DCL-05833-H**  **A PPELLATE CAUSE**  **N O. 13-15-00278-CV** 

**- - - - - - - - - - - - - - - x :**  **A DOLFO**  **M ORALES, : IN THE DISTRICT COURT**  **Plaintiff : :**  **V S. : 444TH JUDICIAL DISTRICT**  **: OPHTHALMIC CONSULTANTS OF :**  **TEXAS, P. A**  **., : Defendant : CAMERON COUNTY, TEXAS**  **: - - - - - - - - - - - - - - - x** 

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

**M ASTER INDEXES TO**  **REPORTER'S RECORD**

****************** ****************** ****************** ******************1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 2

**V OLUME 1**  **M ASTER INDEXES TO**  **REPORTER'S RECORD**

**V OLUME 2**  **HEARING ON DEFENDANT'S M** **OTION TO ENFORCE A** **RBITRATION N** **OVEMBER 19, 2014 PAGE**  **V OL**  Argument by Mr. Sher gold ................ ..... 7 2 Court's Ruling taken under Advise ment ........ 11 2 Adjournment ......

.............. .............. 11 2 Court Reporter's Certificate ....

............. 12 2

**V OLUME 3 INDEX**  **HEARING ON DEFENDANT'S M** **OTION TO ENFORCE A** **RBITRATION M** **AY 20, 2015 PAGE**  **V OL**  Discussion of Co unsel Regarding St atus of Case 6 3 Argument by Mr. Corpuz........ ................ 10 3 Argument by Mr. Sher gold ................ ..... 13 3 Court's Ruling taken under Advise ment ........ 17 3 Adjournment ......

.............. .............. 19 3 Court Reporter's Certificate ....

............. 20 31 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 1

**REPORTER'S RECORD V** **OLUME 2 OF 3 TRIAL COURT CAUSE**  **N O. 2014-DCL-05833-H**  **A PPELLATE CAUSE**  **N O. 13-15-00278-CV** 

**- - - - - - - - - - - - - - - x :**  **A DOLFO**  **M ORALES, : IN THE DISTRICT COURT**  **Plaintiff : :**  **V S. : 444TH JUDICIAL DISTRICT**  **: OPHTHALMIC CONSULTANTS OF :**  **TEXAS, P. A**  **., : Defendant : CAMERON COUNTY, TEXAS**  **: - - - - - - - - - - - - - - - x** 

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

**HEARING ON DEFENDANT'S**  **M OTION TO ENFORCE**  **A RBITRATION** 

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

On NOVEMBER 19, 20 14, the following proceedings came onto be heard in the above- entitled and numbered cause before the Honorabl e DAVID A. SANCHEZ, Judge Presiding, he ld in Brownsville, Cameron County, Texas. Proceedings re ported by co mputerized stenotype machine.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 2

**A P P E**  **A R**  **A N** **C E S** APPEARING FOR THE PLAINTIFF: JOHN L. SHERGOLD State Bar No . 00794624 HODGE & SHER GOLD, L.L.P. 1534 E. 6th St reet, Suite 103 Brownsville, Texas 78520 (956) 548-91001 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 3

**V OLUME 2 INDEX**  **HEARING ON DEFENDANT'S M** **OTION TO ENFORCE A** **RBITRATION N** **OVEMBER 19, 2014 PAGE**  **V OL**  Argument by Mr. Sher gold ................ ..... 7 2 Court's Ruling taken under Advise ment ........ 11 2 Adjournment ......

.............. .............. 11 2 Court Reporter's Certificate ....

............. 12 2

**INDEX OF EXHIBITS** (NO EXHIBITS MARKED)1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 4

**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 Moti on to Enforce Arbitr ation and I'm ready to argue my case against en forcement of the arbitration provision. THE COURT: Wh o is on the other side? MR. SHERGOLD: A gentle man by the name of Victor Corpuz. THE COURT: Bu t he's not here today? THE ADMINISTRATOR: Judge, Mr. David Oliveira checked in. I beli eve he may have checked in on this case. THE COURT: Do you know if he's -- MR. SHERGOLD: I was ina jury trial last week and David Oliv eira was represen ting the school district at that time, but I don't have any information as to whether he's represen ting Defendan t Ophthalmic Consultants of Texas. But, Judge, I'll st and ready. I'll go get a cup of coffee or something. THE COURT: I' m assuming it's their motion,1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 5

right? MR. SHERGOLD: It's their motion and I filed a response, if the Court could ch eck its file. I have a file-stamped copy of the response I filed Monday. I don't know if the Co urt has it or not. THE COURT: I haven't looked at the file yet, but, I mean, if theydon't show up, you know. MR. SHERGOLD: I unders tand. We would ask that their motion be denied, Your Honor. At this time we ask that the defendan t'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 ch ecked in on or not. MR. SHERGOLD: Sure. I understand. I'll go get a cup of coffee an d 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 ap proach, 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 --1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 6

MR. OLIVEIRA: And he beat me. For the record, he beat me. THE COURT: He's a ve ry fine attorney. MR. SHERGOLD: I'll lo se the next one to David, but he's not on the case of Ophthalmic Consultants. I as ked him upstairs. MR. OLIVEIRA: Does my name show up somewhere? THE COURT: No. Pr iscilla just wasn't sure. She just -- MR. OLIVEIRA: Becaus e 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 Ho nor. It's 9: 35 and I have -- John Shergold , for the record. I represent Dr. Adolfo Morales, plaintiff in a wr ongful termination suit where we have alleged th at he was term inated due to discrimination. I believe the defendant has filed a motion to enforc e arbitration. And, obviously, plaintiff is opposed. We filed a response inopposition and I'm here as ordered, Ju dge, to argue agai nst the motion to enforce as filed bythe defendant.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 7

THE COURT: Al l 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 ADMINISTRATO R: They did not call or check in. THE COURT: Ok ay. All right. Go ahead. MR. SHERGOLD: Very well, Your Honor. Several -- there's been se veral treatise s written on enforceability of arbitration pr ovisions. The plaintiff has filed a resp onse and we have summ arized our position as to why arbitratio n in this matter is not approp riate. One of the main arguments that we have here, Your Honor, is that it's an il lusory -- the contra ct to arbitrate is illusory. Dr. Morales was terminated byOphthalmic Consultants of Texas. And after his termin ation, then the defendant deci ded to enforce the arbitration provision. We believe that sinc e Dr. Morales is no longer an employee of the employer -- and if you would look at the -- we'dask that you take judicial notice of1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 8

the exhibit A that was filed by the defendant's representatives, which is the actual proposed arbitration agre ement. You'll see in that arbitration agreement no provision as to what the situation is where the employee or ex -employee file s or is gain ing access to the Court system . In other words, the arbitration agreement is silent as to how do you mo dify, amend, change the agreement. Now, when you're not working for a company any longer, ther e ought to be some so rt of provision in the proposed agreement that sa ys that in th e event that this could be amended, modifiedor changed, it should -- some sort of notice shouldgo 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 enforc ed could be modifiedsometime in the future, thus renderin g this illusory. Your Honor, I wrote quite a leng thy 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 occu rred that plaintiff did in ordered to tip off the de fendant that there was going to be some sort of litigation.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 9

Well, back in De cember 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. Th ere was no trigger bythe defendant at that time as to wh ether or not they wa nted to initiate the arbitration pr ovision. Going forward, client filed -- got a right to sue letter in June of 2014. Again, defendant di d not trigger its arbitration agre ement. Then we fi led the laws uit, 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 ag reement in its answ er but it didn't say that it was -- it did not say or not filed at that time contemporaneou sly that it was pl anning to enforce the arbitration ag reement. That motion was filed subsequent to the answer. So another argument we have here is waiver,1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 1 0

that -- the provisio n that we always know is that if you're going to cont est jurisdicti on, it should be done at the time that yo u file an answer, co ntemporaneously. The answer was that there was an arbi tration agreement but it did not stat e that the defendan t was to file or to oppose or to force plai ntiff into this arbitration agreement at that time. So, in sum, Your Hono r, we believe it's illusory. We believ e that there has beena waiver here. Also, we believe there is -- substantial du e process has been violated, whic h basically the Hali burton Court goes to the illusory aspect. Al so, it discus ses the issue regarding the enfo rceability of a substantial due process pr oblem. And also, finall y, the waiver we indicated a case that -- regardin g the timeline that the arbitration clau se was not triggered. And I cited that -- if I could just have one second to cite that case, Your Honor. An d that case was Interconex Incorporated versus Ugarov, SW3d Reporter 2006, Westlaw 2506562, and that's where the ap pellate court in Ho uston talked about the time lapse as to how th at would give rise to a waiver. Your Honor, for all th e reasons gi ven that I've stated, I woul d ask that the defe ndant's motion to1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 1 1

enforce arbitrat ion be denied. I re present pl aintiff, of course, and we ha ve included an orde r attached to my response that we ask that yo u sign to deny defendant's motion. Thank you. THE COURT: All ri ght. Thank you, Mr. Shergold. I'll review your brief an d then I'll make a ruling. MR. SHERGOLD: Thank yo u, Your Honor. May I be excused, Judge? THE COURT: Yes, sir. Have a nice day. MR. SHERGOLD: And, Yo ur Honor, just for the record, I'd ju st like to make note that the defendant's coun sel 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 want ed to make. MR. SHERGOLD: Thank you, Your Honor. Have a nice day. (The hearing was conc luded at 9:44 a.m.)1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 1 2

THE STATE OF TEXAS: COUNTY OF CAMERON: **CERTIFICATE OF COURT REPORTER** I, CORINNA N. GARCIA, Offici al Court Repo rter in and for the 444th Distri ct Court of Camero n County, Texas, do hereby certify that the above and forego ing contains a true and correct transcription of all portions of evidence and other proceeding s requested in writing by counsel for the parties to be included in th is volume of Reporter's Record, in the above styled and numbered cause, all of whic h occurred in op en court or in chambers and were reported by me. I further certify that this transc ription of the record of the proc eedings truly and co rrectly reflects the exhibits, if any, offered by the respective parties. WITNESS MY OFFICIAL HAND on this the 2 ndday 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 Certificat e No. 5210 Expiration Da te 12/31/151 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 1

**REPORTER'S RECORD V** **OLUME 3 OF 3 TRIAL COURT CAUSE**  **N O. 2014-DCL-05833-H**  **A PPELLATE CAUSE**  **N O. 13-15-00278-CV** 

**- - - - - - - - - - - - - - - x :**  **A DOLFO**  **M ORALES, : IN THE DISTRICT COURT**  **Plaintiff : :**  **V S. : 444TH JUDICIAL DISTRICT**  **: OPHTHALMIC CONSULTANTS OF :**  **TEXAS, P. A**  **., : Defendant : CAMERON COUNTY, TEXAS**  **: - - - - - - - - - - - - - - - x** 

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

**HEARING ON DEFENDANT'S**  **M OTION TO ENFORCE**  **A RBITRATION** 

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

On MAY 20, 2015, the following pr oceedings came on to be hear d in the above-enti tled and numbered cause before the Honorable DAVID A. SANCHEZ, Judge Presiding, held in Brownsvi lle, Cameron County, Texas. Proceedings re ported by co mputerized stenotype machine.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

C ORINNA N . GARCIA , C SR 2

**A P P E**  **A R**  **A N** **C E S** APPEARING FOR THE PLAINTIFF: JOHN L. SHERGOLD State Bar No . 00794624 HODGE & SHER GOLD, L.L.P. 1534 E. 6th St reet, Suite 103 Brownsville, Texas 78520 (956) 548-9100 APPEARING FO R 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) 547-77751 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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**V OLUME 3 INDEX**  **HEARING ON DEFENDANT'S M** **OTION TO ENFORCE A** **RBITRATION M** **AY 20, 2015 PAGE**  **V OL**  Discussion of Co unsel Regarding St atus of Case 6 3 Argument by Mr. Corpuz........ ................ 10 3 Argument by Mr. Sher gold ................ ..... 13 3 Court's Ruling taken under Advise ment ........ 17 3 Adjournment ......

.............. .............. 19 3 Court Reporter's Certificate ....

............. 20 3

**INDEX OF EXHIBITS** (NO EXHIBITS MARKED)1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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**P R O C E E D I N** **G S (Open court, 9:27 a.**  **m .)**  THE COURT: 20 14-DCL-5833, Ad olfo Morales versus Ophthalmic Cons ultants of Texas. MR. CORPUZ: Victor Co rpuz and Eddie Garza on behalf of Defend ant Ophthalmic Cons ultants of Texas, Your Honor. MR. GARZA: Good mo rning, Your Honor. THE COURT: Good morning. THE ADMINISTRATO R: Judge, Mr. Shergold did check in and he said he would be here at about 10:30. They said it woul dn't take mayb e more than 10 minutes because one of the attorney s has a flight. MR. CORPUZ: 10 to 15 minutes, Your Honor. THE COURT: Ok ay. Where is Mr. Shergold? MR. GARZA: At an administrative hearing at BISD. He came in this morning. THE COURT: Ok ay. All right. Well, as soon as he comes in , we'll stop whatev er 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,1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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2014-DCL-5833, Adol fo Morales and Opht halmic Consultants of Texas, P.A. MR. SHERGOLD: Good mo rning, Your Honor. THE COURT: Go od morning. MR. SHERGOLD: Your Honor, this is defendant's motionto compel arbi tration on an employment matter di spute. 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 pres ent at that time. Then at this point we've been given a rese t 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 no w for defe ndant. Thank you for allowi ng me to be here at 10:30. I submitted a cont inuance for a co uple of hours. I was at the Brownsvill e ISD with a huge administration issue that I had to be part of with a client, and the gentlemen gracio usly waited until 10 :30. So I thank them for their professi onal courtesy today. THE COURT: All right. MR. CORPUZ: Your Hono r, Victor Corpuz on behalf of Ophthalmic Consultants of Texa s, along with my co-counsel Eddie Garza. Your Honor, we di d receive --1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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and it's all my fa ult. We did rece ive 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 re sponse or a copy of Mr. Shergold's respon se until we actual ly requested it. That would have cert ainly triggere d in our mind that an order had been set, or at least a hearin g had been set. We were actually exploring a couple of da tes 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 swor d today and also point out the fact that we're here now to argue the merits of the mo tion to compel arbitration. MR. SHERGOLD: Your Ho nor, I object to the fact that the gent leman was given th e opportunity to come back, you know, five months later. This case has been in abatement. I at this poin t would state that I've already made my argument. The judge said he was going to make a de cision. Then I fi nd out he's back again today in May, which, you know, we're seven months later. And so, yo u know, I really do n't have anything else to say, Your Honor, except that I object. MR. GARZA: Ma y I address the Court, Your Honor? THE COURT: Sure.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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MR. GARZA: Th e original notice that was sent out to my co-c ounsel was sent ou t in the customary fashion that we do here in Cameron Coun ty. Those of us from the local bar are very accustomedto that. It's all electronic data that comes throug h e-mail. So we know what we're lo oking out for. Up in Dallas sometime s it goes through the ECDF system or the electronic system wh ere it comes in a whole different kind of fashio n with all kind of notices and whatnot. And what happened here is that particular order was receiv ed by the firm but it wasn't recognized as an official correspondence from the cour t. That's why it was not put down or an ticipated. I' ve seen that happen a couple of times in our office, but my staff is used to it, so th ey're accustomed. It's not -- the Court did exactly what it was supposed to do in sending out th at notice, but it was a complete inadvertent ov ersight with no disrespect to the Court, Your Honor. MR. CORPUZ: And, Your Honor, if I might add this too. Had we receiv ed a copy of the response before the hearing, that cert ainly would have alerted us to a hearing actual ly set. But it wasn't until we actually called Mr . Shergold's office and requested a1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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copy that we actually had a copy of thei r response. MR. SHERGOLD: Your Honor, I e-mailed a copy the same day that I file d it in U.S. regular mail, for whatever matter it is. If I'm going to be blamed for defense coun sel not being here, I guess I've heard a lot of arguments in my care er, but I just heard another one. I sent him a copy. Wh ether it got there five days after the hearing or not -- I was he re. I was here. THE COURT: Le t me ask you al l this. With regard to the case, I mean, I know it wa s 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 -- al l proceedings and discovery are stayed until there is a de cision made bythe 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 mediatio n, Your Honor. MR. CORPUZ: Your Honor, there is a mediation comp onent in that arbitr ation agre ement. Mr. Shergold approached us ab out mediation an d I said -- and I told him as well that there is a component in the1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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arbitration agre ement to an early me diation. And I've invited him to agre e to the arbitratio n agreement. But he didn't agree to it, and so my client did not want to go to mediation unti l we at least have a decision on the arbitration agreement. MR. SHERGOLD: And, Your Honor, the condition of mediation was fo r 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 tomorrowbut I'm not goin g to waive my client's right to bust this arbitration agre ement. And, obviously, that's what the defense counse l wants, he wants me to agre e to mediation an d then go to arbitration as a condition of dismissing this motion, and I'm not goin g to agree to that, Judge. THE COURT: Wo uld 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 itse lf 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'r e talking about is , obviously, the1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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issue of arbitration is pa ramount and is a viable motion. That's why we're here. It's not a long argument that we're here to present fo r you. But, at the same time, assuming that the arbitrat ion agreement is enforced or the motion to compel is granted, one of the first things that has to be done inthat capacity is to mediate, which is nonbindi ng, it's an op portunity to sit down and try to work it out. But just from a proc edural standpoint, before we take any steps fu rther with respect to this litigation, we'd like to get that motionaddressed if we could, Your Honor. MR. SHERGOLD: Again, Yo ur Honor, I have no objection to being sent to mediation pr ior to this hearing. I've be en waiting seven or eight months for this proceeding to go forward. THE COURT: All right. And I know you said really the only thin g you want to say is you object to this. So let me he ar -- other than wh at you stated is the reason you missed, do yo u have anything else you want to argue with rega rd to your motion for arbitration? MR. CORPUZ: Sure, Yo ur Honor. On the merits, Dr. Adol fo Morales, the plai ntiff in this case, filed a petition alleging age discrimi nation and1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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retaliation. So th is case is really an employment law case. Dr. Morales in Octobe r of 2009, when he first started his empl oyment with Ophthalm ic Consultants of Texas, signed an arbitrat ion agreement. It's a stand-alone sepa rate document from any handbook or any other documents as part of hi s employment. He signed it in Oc tober of 2009. He understood it ba sed 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 spec ialist for OCT, Ophthalmic Consultants of Texas. Th e arbitration agreement is valid because it was sign ed at the be ginning of Dr. Morales's employment. He agreed to the arbi tration clause based on any allegations of workplace misc onduct, including employment discrimination an d retaliatory discharge. All such claims wo uld be arbitrated in an arbitration setting. The arbitratio n agreement also specifies that it would be conducted inthe city wher e Dr. Morales worked. It would be conducted in ac cordance with the employment dispute resoluti on rules of the American Arbitration Asso ciation. The arbitrator would also have the right to coordinate all discovery. Th e arbitration1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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agreement also specifies th at it would be final and binding on both Dr . Morales and Ophtha lmic Consultants of Texas and perhap s, most importantl y, the arbitration agreement specif ies that the cost an d expenses would be borne by OCT. Certainly, because Dr. Morales is alleging age discriminati on 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 enfo rceable and Dr . Morales's claims of age discri mination and retali ation fall within the scope of the arbitration agreement. And based on those two elem ents, it's our positi on that the Court must compel arbitratio n in this matter. THE COURT: Mr . Shergold, woul d you like to respond to anything? MR. SHERGOLD: Yes, before I do, I would just like to state that I wo uld like the op portunity to have the transcript that wa s created on 18 November, 2014 produced. I'll make the request to your court staff. I'd like to have that transc ribed and attached as part of my resp onse, please. In other words, Your Honor, the argument I made on November -- THE COURT: Yo u just want to reiterate it as part of today's record, co rrect?1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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MR. SHERGOLD: Yes, that's correct, and that way I'll be very brief inmy response, Your Honor. The arbitratio n agreement is illuso ry. The document that I responded to was stampe d November 17, 2014. What I'm basically ar guing on behalf of this worker, Your Honor, is that -- I know it's a fad no w. I think that the courts have st ruggled with the is sue of enforcing arbitration ag reements. Of course, we believ e and the plaintiff believes it's a violation of the ultimate court's doctrine, the fa ct that people have a constitutional right to be able to have a jury of th eir peers basically hear the case. It's a matt er of first impression on this issue if this case is ap pealed or plac es a plea to the jurisdiction . I plan to make th e argument that this is a constitutional violatio n 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 arbitratio n enforceability, we claim it's illusory and void because in the agre ement -- in the agreement to arbitrate, ther e is nothing in there that talks about what happens if the person, or the employee,1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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I should state, be comes an ex-employe e. And if the person becomes an ex-employe e, like Dr. Morales, is there any sort of notice provision that's in this arbitration agre ement that states spec ifically that that ex-employee is to be notified of any sp ecific changes in the arbitration ag reement. No, there isn't. And if the defense co unsel can point out what happens in that scenario in that document, where a person becomes an ex-emplo yee and if there is any documentation in th at agreement, it says that notice shall be provided to the ex -employee of any changes or any revisions or cancelatio ns in the po licy, then I would like to see th at. Because I have n'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 ag reement void because it's illusory. In ot her words, he who pays the piper plays the tune, Your Honor. He who pays the piper plays the tune. So if the arbitratio n agreement that exists doesn't have any noti fication provisions or any discussion regarding the si tuation when an employee becomes an ex-employee and he moves off to Alaska or California or maybe to Mexico or what ever, maybe across the street, ther e is nothing there that says that if we change the agreemen t you become part of the change and1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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you shall be notified . That's my argume nt 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 defe ndant waived his right to enforce this arbitration agre ement. It wa ited almost over a year from the time th at the EEOC wa s contacted in order to invoke or to have a provisio n enforced. And I can point out in myresponse to th e enforceability agreement of this arbitration. I can point out the page -- if I can ge t to that, please. Page 14, item 3, wa iver of arbitration agreement. De fendant has wa ived its right to compel arbitration from th e fact that the la test request is nearly a year afte r plaintiff su bmitted a disc rimination complaint with the Texas WorkForce Commissi on, Division of Civil Rights. I cited a case. It was the Interconex case, Your Honor, that come s out of the Fi rst District of Houston, Texas Ap peals, where it ac tually talks about the fact that in that si tuation defend ant had acted inconsistently with the right to arbitr ate by failing to answer before the defaul t judgment was taken. In this situation th e analogy cl early is equivalent because of the fa ct that the de fendant here1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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knew that my client was fi ling a complaint with the Equal Employment Opportunit y Commission, Civil Rights Division and Workforce Divisi on of the state, and they waited over a year to invoke the provis ion, Your Honor. So we say that the defendan t has waived the arbitration agreement by waiver. So those are our two ma in points, Judge. I'm going to stop talking and, again, for the record, indicate that I will be requesting th at the transcript that I basically made on18 November , 2014 be incorporated as part of my response arguing ag ainst the arbitration enfo rceability, Your Hono r. And with that, I thank you very much. THE COURT: Al l right. Do you all have proposed orders? MR. SHERGOLD: Your Honor, I do have a proposed order that was subm itted by paper back in 18 November. I don't know if it stood the te st 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: Th at's fine. Let me --1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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MR. SHERGOLD: That's a very salient point, Your Honor. THE COURT: Let me look at th at transcript and then I'll get yo u 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 readit on the computer. MR. SHERGOLD: Your Ho nor, I'll make an official request to pay the transcription fee because I do know your employ ees do a lot of go od 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 br iefly. The case law on arbitration agreement and waiver of arbitration agreements that Dr. Morales signed is pr etty clear. The only time that the courts ha ve found waiver is when a party has done something in consistent, si gnificantly inconsistent with the arbitratio n agreement, such as seeking affirmat ive relief from the Court, filing any kind of discovery motions with the Court, filing a counterclaim, co nducting discovery fo r over a year and a half before triggering th e arbitration agreement. So in this instance there has no t been a waiver of the ar bitration agreemen t. In fact,1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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Dr. Morales's sign ature at the beginning of his employment demonstrates that he agreed to the arbitration agreement. THE COURT: Ok ay. Mr. Corpuz , your firm filed the origin al -- beginnin g with the original answer and subsequent documents electronically ; is that correct? MR. CORPUZ: That's co rrect, Your Honor. THE COURT: Ok ay. 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 courtesycopy for the Court, if you'd li ke, Your Honor. THE COURT: No, that's fine. I just wanted to make sure that electron ic is the way you all were filing from the get-go. MR. CORPUZ: Yes, Yo ur Honor, and our answer does refer to the arbi tration agreemen t as well. MR. SHERGOLD: May I re spond to that, Your Honor? The an swer refers to the ar bitration ag reement, but does not -- was not -- an arbitrat ion enforcement of that agreement was not filed until se veral weeks after that. So I think that also constitu tes a waiver as well, Your Honor. THE COURT: Ok ay. Well, I'll look at the1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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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 luckcatching your fl ight, Mr. Corpuz. MR. CORPUS: Thank yo u, Your Honor. (The hearing was conc luded at 10:53 a.m.)1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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THE STATE OF TEXAS: COUNTY OF CAMERON: **CERTIFICATE OF COURT REPORTER** I, CORINNA N. GARCIA, Offici al Court Repo rter in and for the 444th Distri ct Court of Camero n County, Texas, do hereby certify that the above and forego ing contains a true and correct transcription of all portions of evidence and other proceeding s requested in writing by counsel for the parties to be included in th is volume of Reporter's Record, in the above styled and numbered cause, all of whic h occurred in op en court or in chambers and were reported by me. I further certify that this transc ription of the record of the proc eedings truly and co rrectly reflects the exhibits, if any, offered by the respective parties. I further certif y that the total cost for the preparation of this Re porter's Record is $ 112

. 20 and was paid/will be paid by Appellan t Ophthalmic Consultants of Texas. WITNESS MY OFFICIAL HAND on this the 2 ndday of July , 2015. / S / Corinna N . Garcia CORINNA N. GARCIA, CSR Official Court Reporter 974 East Harrison Street Brownsville, Texas 78520 Certificat e No. 5210 Expiration Da te 12/31/15 (956) 547-7061