Preview
FILED
8/8/2023 11:22 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
- r—n‘ -
FRI DMA
Debra Clark DEPUTY
1G "' R
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—-1
‘* ‘*
_ .4 J24 - _.|
A T T O R N E Y S A T L A W
Richard W. Winn
972-788-1400
rwinn@fi'lawoffice.com
August 8, 2023
VIA E-FILING and
E-MAIL: flv(aDdallascourts.org
The Honorable Dale Tillery
Judge, 134th Judicial District Court
George L. Allen, Sr. Courts Building
600 Commerce Street, 6th Floor West
Dallas, Texas 75202
Re: Cause No. DC-22-00247; Mindsight Medical, LLC v. Roger KasendorfDO, PC,
pending in the 134th Judicial District Court of Dallas County, Texas.
Dear Judge Tillery:
This letter brief is presented by Plaintiff Mindsight Medical, LLC in accordance with
the invitation of the Court at the hearing of Defendant’s Motion for New Trial heard by the
Court on July 27, 2023, at 8:30 am.
During the July 27 hearing, Defendant’s counsel cited for the first time the case of
Gibson v. Bostick Roofing and Sheet Metal Company, 148 S.W.3d 482 (Tex. App. — E1 Paso
2004, no pet). Despite the fact that Plaintiff had filed Plaintiff’s Response to Defendant’s
Motion for New Trial on July 7, 2023, twenty (20) days prior to the scheduled hearing,
Defendant never filed a reply brief identifying the Gibson case prior to the July 27 hearing nor
did Defendant’s counsel provide Plaintiff’s counsel with a copy of the Gibson case at the time
of the July 27 hearing. The Court gave Plaintiff’s counsel the opportunity to review the Gibson
case and present the Court with this letter brief responding thereto. Since Plaintiff‘s counsel
informed the Court that he was leaving for vacation the following day, the Court granted
permission for Plaintiff’ s counsel to file this letter brief on or before Wednesday August 9,
2023.
In Gibson, Plaintiff Bostick Roofing, a roofing contractor, sued the legal owner of an
apartment complex, Defendant Jimmy Gibson (“Gibson”) on a sworn account and, in the
alternative, on a theory of quantum meruit. The Court entered judgment in favor of the Plaintiff
for $5,500.00. Ibid at 486-487.
FFLAWOFFICECOM
Dominion Plaza West 17304 Preston Rd., Suite 300 -
Dallas, Texas 75252 Office (972) 788—1400
- - Fax (972 788—2667
The Honorable Dale Tillery
Judge, 134th Judicial District Court
August 8, 2023
Page 2
However, Gibson was only the legal owner of the apartment complex. Id. at 487. On
the same day Gibson had purchased the apartment complex from the Federal Home Loan
Mortgage Corporation, Gibson had entered into a contract for deed to sell the complex to
equitable owners Jim and Mary Nell Brown and Gerald and Johnnie Jones. Id. at 487.
After a 1993 hailstorm, one of the equitable owners Jim Brown (“Brown”) presented
himself to Bostick Roofing as the owner and received an estimate for repair from Bostick
Roofing. Id. at 487. The work on the apartment complex was completed by Bostick Roofing,
but they never received payment. The petition filed by Bostick Roofing was against Gibson
but many of the documents attached to the petition demonstrated the account was with Brown,
rather than with Gibson including “(1) the job estimate which contained Brown’s name; (2)
two invoices addressed to Brown; (3) a demand letter addressed to Brown; (4) a letter from its
attorney to Gibson notifying him of the materialman’s lien; and (5) a demand letter from its
attorney to Gibson.” Id. at 491.
At this Court’s July 27 hearing, Defendant cited an exception in Gibson for the
proposition that “it is well established that the rule [ie. Tex. R. Civ. P. 93(10)] which makes a
verified account prima facie evidence in the absence of a written denial under oath does not
apply to transactions between third parties or parties who were strangers to the transaction.”
Gibson, 148 S.W.3d 482 at 490. “This exception has been applied where the plaintiff’s own
pleadings—or the invoices or other evidence exhibited as the basis of the obligations—
reflected that the defendant was not a party t0 the original transaction.” (emphasis added)
Id. at 490.
Gibson is distinguishable for at least two reasons:
First, the factual predicate for the Gibson exception is missing since the contractual
agreements, all account invoices, statements and demand letters were all forwarded to, or
named, the correct Defendant Roger Kasendorf DO, PC named in the lawsuit. There were no
inherent contradictions or ambiguities arising from the documentation supporting the
pleadings or account documents as in Gibson. For example, the name of third party Revelo
Health, LLC does not appear in any of the documentation supporting the pleadings or the
account which might raise the type of inherent contradictions or ambiguities found in Gibson.
In short, the contractual agreements, all account invoices, statements and demand letters
conformed to the allegations in the petition asserted a claim against the Defendant Roger
Kasendorf DO, PC.
Second, Tex. R. Civ. P. 93( 10) upon which Gibson relies was never an issue in this
case and was never argued by Plaintiff’s counsel since it is undisputed that Defendant filed
Defendant First Amended Answer dated January 3, 2023 in which Defendant filed a specific
denial under oath that “[p]ursuant to the provisions of Rule 93, Texas Rules of Civil Procedure,
The Honorable Dale Tillery
Judge, 134th Judicial District Court
August 8, 2023
Page 3
Defendant specifically denies that the account upon which Plaintiff filed this suit is either just
or true and demands strict proof thereof.”
Instead, Plaintiff in the case at bar pleaded and argued that Defendant’s denial of agency
argument fails because Defendant never filed a verified denial of agency under Tex. R. CiV. P.
93(7). The Gibson case never mentions or references a denial of agency under Tex. R. Civ. P.
93 (7) and is therefore distinguishable.
For example, Defendant argues on page 2 of Defendant’s Motion for New Trial that “[t]he
uncontradicted evidence reflects that Hernandez was not, in fact, a Manager or other agent of
Kasendorf and had no actual authority to enter into the Mindsight Agreement obligating Kasendorf
to pay for the products ordered by Hernandez, alleging to be Kasendorfs “Manager” or Agent.”
However, Defendant never filed a verified denial of agency under Tex. R. of Civ. P. 93 (7)
which requires:
A pleading setting forth any of the following matters, unless the truth of such
matters appear of record, shall be verified by affidavit.
***
7. Denial of the execution by himself or by his authority of any instrument
in writing, upon which any pleading is founded, in whole or in part and
charged to have been executed by him or by his authority, and not alleged to
be lost or destroyed...In the absence of such a sworn plea, the instrument
shall be received in evidence as fully proved.
See Mobil Exploration & Producing US Inc., No. 07-96-0023-CV; 1997 WL 401937 at * 5-6 (Tex.
App. Amarillo July l7, 1997, pet. denied) citing Security and Com. Systems, Inc. v. Hooper, 575
S.W.2d 606, 608 (Tex. Civ. App-Dallas 1978, no writ) (“Lack of an agent’s authority is a
defensive matter that must be specifically plead and sworn to before agency can be raised”).
“Further, in the absence of a sworn denial, the written instrument is received into evidence as fully
proved; and the party who failed to deny the execution or the agent’s authority to execute the
written agreement is deemed to have admitted the same.” Mobil Exploration at *6.
Defendant clearly admits an actual agency relationship with Revelo Health, LLC and
Hernandez in 11 1., page 1 of Defendant’s Motion for New Trial entitled “Uncontroverted Evidence
at Trial” as follows:
The uncontroverted evidence presented at trial reflects the following salient
facts:
The Honorable Dale Tillery
Judge, 134th Judicial District Court
August 8, 2023
Page 4
1. Kasendorf entered into a Management Services Agreement with Revelo
Health, LLC dated September 14. 2020 whereby Revelo Health
(“Revelo”) was appointed “Manager” of Kasendorf (DX “F”).
Further, Hernandez signed the Management Services Agreement as follows:
“MANAGER”
Revelo Health, LLC, a Nevada limited liability
company
s/ Rick Hernandez
By: Rick Hernandez
Its: Manager
Based on the admissions of Defendant’s own “Uncontroverted Evidence at Trial” and
Management Services Agreement, Defendant clearly authorized Hernandez to act as its “Manager”
and therefore was the actual agent of the Defendant. See also Management Services Agreement
Exhibit DX “F”, page 1, Paragraph D which clearly states:
[Roger Kasendorf, D.O.] PC desires to engage Manager, under the terms of
this Agreement , to provide office space, technology, and Manager’s skills,
supervision, and certain personnel in the development of the operations of
and in the management of the Practice, with the full authority and ultimate
control over all clinical aspects of the operations of the Practice remaining
with PC, and Manger wishes to accept such engagement, all upon the terms
and conditions set out herein.
In addition, the BioLab Sciences Fluid Flow Rebate Fulfillment Agreement attached as
Exhibit A to Plaintiff’s Original Petition was docu-signed as follows:
CUSTOMER: [defined as Roger Kasendorf, DO PC, a California
professional corporation on page 1]
By: Rick Hernandez
Name: Rick Hernandez
Title: Manager
The allegations in Plaintiff’ s Original Petition including the attachment of Exhibit A, which
established that the BioLab Sciences Fluid Flow Rebate Fulfillment Agreement was signed by
Defendant’s Manager, placed the burden on Defendant to file a verified denial of agency meeting
the requirements of Tex. R. Civ. P. 93(7) including a “[d]enial of the execution by himself or by
The Honorable Dale Tillery
Judge, 134th Judicial District Court
August 8, 2023
Page 5
his authority of any instrument in writing, upon which any pleading is founded , in whole or in
part and charged to have been executed by him or by his authority. . .”. “In the absence of such a
sworn plea, the instrument shall be received in evidence as fully proved.” Ibid.
Accordingly, Plaintiff requests that Defendant’s Motion for New Trial be denied.
A copy of this Letter Brief has been simultaneously transmitted to counsel for Defendant.
Plaintiff is available at the Court’s convenience to address any questions the Court may have.
Respectfully submitted,
FRIEDMAN & FEIGER, L.L.P.
By: Richard W. Winn
Richard W. Winn
cc: Counsel of Record
Marshal W. Dooley (Via E-mail)
Alan M. Howard (Via E-mail)
1060413
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Debbie Perrone on behalf of Richard Winn
Bar No. 21779700
dperrone@fflawoffice.com
Envelope ID: 78304181
Filing Code Description: Brief Filed
Filing Description: PLTS LETTER BRIEF TO COURT
Status as of 8/8/2023 12:38 PM CST
Associated Case Party: MINDSIGHT MEDICAL, LLC
Name BarNumber Email TimestampSubmitted Status
Jason HFriedman jhfriedman@fflawoffice.com 8/8/2023 11:22:01 AM SENT
Richard Winn rwinn@fflawoffice.com 8/8/2023 11:22:01 AM SENT
Associated Case Party: ROGER KASENDORF DO, P.C.
Name BarNumber Email TimestampSubmitted Status
Marshal WayneDooley mdooley@dooley—law.com 8/8/2023 11:22:01 AM SENT
Alan M.Howard alan@amhattorney.com 8/8/2023 11:22:01 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Marshal Dooley 5993000 mdooley@dooley-law.com 8/8/2023 11:22:01 AM SENT
Debbie Perrone dperrone@fflawoffice.com 8/8/2023 11:22:01 AM SENT
Francine Ly fly@dallascourts.org 8/8/2023 11:22:01 AM SENT
Jeff O'Dell jodell@fflawoffice.com 8/8/2023 11:22:01 AM SENT
Jossette Griffin jgriffin@fflawoffice.com 8/8/2023 11:22:01 AM SENT
Preview
FILED 8/8/2023 11:22 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS - r—n‘ - FRI DMA Debra Clark DEPUTY 1G "' R — —-1 ‘* ‘* _ .4 J24 - _.| A T T O R N E Y S A T L A W Richard W. Winn 972-788-1400 rwinn@fi'lawoffice.com August 8, 2023 VIA E-FILING and E-MAIL: flv(aDdallascourts.org The Honorable Dale Tillery Judge, 134th Judicial District Court George L. Allen, Sr. Courts Building 600 Commerce Street, 6th Floor West Dallas, Texas 75202 Re: Cause No. DC-22-00247; Mindsight Medical, LLC v. Roger KasendorfDO, PC, pending in the 134th Judicial District Court of Dallas County, Texas. Dear Judge Tillery: This letter brief is presented by Plaintiff Mindsight Medical, LLC in accordance with the invitation of the Court at the hearing of Defendant’s Motion for New Trial heard by the Court on July 27, 2023, at 8:30 am. During the July 27 hearing, Defendant’s counsel cited for the first time the case of Gibson v. Bostick Roofing and Sheet Metal Company, 148 S.W.3d 482 (Tex. App. — E1 Paso 2004, no pet). Despite the fact that Plaintiff had filed Plaintiff’s Response to Defendant’s Motion for New Trial on July 7, 2023, twenty (20) days prior to the scheduled hearing, Defendant never filed a reply brief identifying the Gibson case prior to the July 27 hearing nor did Defendant’s counsel provide Plaintiff’s counsel with a copy of the Gibson case at the time of the July 27 hearing. The Court gave Plaintiff’s counsel the opportunity to review the Gibson case and present the Court with this letter brief responding thereto. Since Plaintiff‘s counsel informed the Court that he was leaving for vacation the following day, the Court granted permission for Plaintiff’ s counsel to file this letter brief on or before Wednesday August 9, 2023. In Gibson, Plaintiff Bostick Roofing, a roofing contractor, sued the legal owner of an apartment complex, Defendant Jimmy Gibson (“Gibson”) on a sworn account and, in the alternative, on a theory of quantum meruit. The Court entered judgment in favor of the Plaintiff for $5,500.00. Ibid at 486-487. FFLAWOFFICECOM Dominion Plaza West 17304 Preston Rd., Suite 300 - Dallas, Texas 75252 Office (972) 788—1400 - - Fax (972 788—2667 The Honorable Dale Tillery Judge, 134th Judicial District Court August 8, 2023 Page 2 However, Gibson was only the legal owner of the apartment complex. Id. at 487. On the same day Gibson had purchased the apartment complex from the Federal Home Loan Mortgage Corporation, Gibson had entered into a contract for deed to sell the complex to equitable owners Jim and Mary Nell Brown and Gerald and Johnnie Jones. Id. at 487. After a 1993 hailstorm, one of the equitable owners Jim Brown (“Brown”) presented himself to Bostick Roofing as the owner and received an estimate for repair from Bostick Roofing. Id. at 487. The work on the apartment complex was completed by Bostick Roofing, but they never received payment. The petition filed by Bostick Roofing was against Gibson but many of the documents attached to the petition demonstrated the account was with Brown, rather than with Gibson including “(1) the job estimate which contained Brown’s name; (2) two invoices addressed to Brown; (3) a demand letter addressed to Brown; (4) a letter from its attorney to Gibson notifying him of the materialman’s lien; and (5) a demand letter from its attorney to Gibson.” Id. at 491. At this Court’s July 27 hearing, Defendant cited an exception in Gibson for the proposition that “it is well established that the rule [ie. Tex. R. Civ. P. 93(10)] which makes a verified account prima facie evidence in the absence of a written denial under oath does not apply to transactions between third parties or parties who were strangers to the transaction.” Gibson, 148 S.W.3d 482 at 490. “This exception has been applied where the plaintiff’s own pleadings—or the invoices or other evidence exhibited as the basis of the obligations— reflected that the defendant was not a party t0 the original transaction.” (emphasis added) Id. at 490. Gibson is distinguishable for at least two reasons: First, the factual predicate for the Gibson exception is missing since the contractual agreements, all account invoices, statements and demand letters were all forwarded to, or named, the correct Defendant Roger Kasendorf DO, PC named in the lawsuit. There were no inherent contradictions or ambiguities arising from the documentation supporting the pleadings or account documents as in Gibson. For example, the name of third party Revelo Health, LLC does not appear in any of the documentation supporting the pleadings or the account which might raise the type of inherent contradictions or ambiguities found in Gibson. In short, the contractual agreements, all account invoices, statements and demand letters conformed to the allegations in the petition asserted a claim against the Defendant Roger Kasendorf DO, PC. Second, Tex. R. Civ. P. 93( 10) upon which Gibson relies was never an issue in this case and was never argued by Plaintiff’s counsel since it is undisputed that Defendant filed Defendant First Amended Answer dated January 3, 2023 in which Defendant filed a specific denial under oath that “[p]ursuant to the provisions of Rule 93, Texas Rules of Civil Procedure, The Honorable Dale Tillery Judge, 134th Judicial District Court August 8, 2023 Page 3 Defendant specifically denies that the account upon which Plaintiff filed this suit is either just or true and demands strict proof thereof.” Instead, Plaintiff in the case at bar pleaded and argued that Defendant’s denial of agency argument fails because Defendant never filed a verified denial of agency under Tex. R. CiV. P. 93(7). The Gibson case never mentions or references a denial of agency under Tex. R. Civ. P. 93 (7) and is therefore distinguishable. For example, Defendant argues on page 2 of Defendant’s Motion for New Trial that “[t]he uncontradicted evidence reflects that Hernandez was not, in fact, a Manager or other agent of Kasendorf and had no actual authority to enter into the Mindsight Agreement obligating Kasendorf to pay for the products ordered by Hernandez, alleging to be Kasendorfs “Manager” or Agent.” However, Defendant never filed a verified denial of agency under Tex. R. of Civ. P. 93 (7) which requires: A pleading setting forth any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit. *** 7. Denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in whole or in part and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed...In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved. See Mobil Exploration & Producing US Inc., No. 07-96-0023-CV; 1997 WL 401937 at * 5-6 (Tex. App. Amarillo July l7, 1997, pet. denied) citing Security and Com. Systems, Inc. v. Hooper, 575 S.W.2d 606, 608 (Tex. Civ. App-Dallas 1978, no writ) (“Lack of an agent’s authority is a defensive matter that must be specifically plead and sworn to before agency can be raised”). “Further, in the absence of a sworn denial, the written instrument is received into evidence as fully proved; and the party who failed to deny the execution or the agent’s authority to execute the written agreement is deemed to have admitted the same.” Mobil Exploration at *6. Defendant clearly admits an actual agency relationship with Revelo Health, LLC and Hernandez in 11 1., page 1 of Defendant’s Motion for New Trial entitled “Uncontroverted Evidence at Trial” as follows: The uncontroverted evidence presented at trial reflects the following salient facts: The Honorable Dale Tillery Judge, 134th Judicial District Court August 8, 2023 Page 4 1. Kasendorf entered into a Management Services Agreement with Revelo Health, LLC dated September 14. 2020 whereby Revelo Health (“Revelo”) was appointed “Manager” of Kasendorf (DX “F”). Further, Hernandez signed the Management Services Agreement as follows: “MANAGER” Revelo Health, LLC, a Nevada limited liability company s/ Rick Hernandez By: Rick Hernandez Its: Manager Based on the admissions of Defendant’s own “Uncontroverted Evidence at Trial” and Management Services Agreement, Defendant clearly authorized Hernandez to act as its “Manager” and therefore was the actual agent of the Defendant. See also Management Services Agreement Exhibit DX “F”, page 1, Paragraph D which clearly states: [Roger Kasendorf, D.O.] PC desires to engage Manager, under the terms of this Agreement , to provide office space, technology, and Manager’s skills, supervision, and certain personnel in the development of the operations of and in the management of the Practice, with the full authority and ultimate control over all clinical aspects of the operations of the Practice remaining with PC, and Manger wishes to accept such engagement, all upon the terms and conditions set out herein. In addition, the BioLab Sciences Fluid Flow Rebate Fulfillment Agreement attached as Exhibit A to Plaintiff’s Original Petition was docu-signed as follows: CUSTOMER: [defined as Roger Kasendorf, DO PC, a California professional corporation on page 1] By: Rick Hernandez Name: Rick Hernandez Title: Manager The allegations in Plaintiff’ s Original Petition including the attachment of Exhibit A, which established that the BioLab Sciences Fluid Flow Rebate Fulfillment Agreement was signed by Defendant’s Manager, placed the burden on Defendant to file a verified denial of agency meeting the requirements of Tex. R. Civ. P. 93(7) including a “[d]enial of the execution by himself or by The Honorable Dale Tillery Judge, 134th Judicial District Court August 8, 2023 Page 5 his authority of any instrument in writing, upon which any pleading is founded , in whole or in part and charged to have been executed by him or by his authority. . .”. “In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved.” Ibid. Accordingly, Plaintiff requests that Defendant’s Motion for New Trial be denied. A copy of this Letter Brief has been simultaneously transmitted to counsel for Defendant. Plaintiff is available at the Court’s convenience to address any questions the Court may have. Respectfully submitted, FRIEDMAN & FEIGER, L.L.P. By: Richard W. Winn Richard W. Winn cc: Counsel of Record Marshal W. Dooley (Via E-mail) Alan M. Howard (Via E-mail) 1060413 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Debbie Perrone on behalf of Richard Winn Bar No. 21779700 dperrone@fflawoffice.com Envelope ID: 78304181 Filing Code Description: Brief Filed Filing Description: PLTS LETTER BRIEF TO COURT Status as of 8/8/2023 12:38 PM CST Associated Case Party: MINDSIGHT MEDICAL, LLC Name BarNumber Email TimestampSubmitted Status Jason HFriedman jhfriedman@fflawoffice.com 8/8/2023 11:22:01 AM SENT Richard Winn rwinn@fflawoffice.com 8/8/2023 11:22:01 AM SENT Associated Case Party: ROGER KASENDORF DO, P.C. Name BarNumber Email TimestampSubmitted Status Marshal WayneDooley mdooley@dooley—law.com 8/8/2023 11:22:01 AM SENT Alan M.Howard alan@amhattorney.com 8/8/2023 11:22:01 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Marshal Dooley 5993000 mdooley@dooley-law.com 8/8/2023 11:22:01 AM SENT Debbie Perrone dperrone@fflawoffice.com 8/8/2023 11:22:01 AM SENT Francine Ly fly@dallascourts.org 8/8/2023 11:22:01 AM SENT Jeff O'Dell jodell@fflawoffice.com 8/8/2023 11:22:01 AM SENT Jossette Griffin jgriffin@fflawoffice.com 8/8/2023 11:22:01 AM SENT