Roger Cornell Fox, Individually and on Behalf of the Estate of Karen Nasine Fox v. the Rehabilitation & Wellness Centre of Dallas, LLC and Brius, LLC

Reverse and Remanded and Opinion Filed June 5, 2023

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00904-CV

ROGER CORNELL FOX, INDIVIDUALLY AND ON BEHALF OF THE
ESTATE OF KAREN NASINE FOX, Appellant
V.
THE REHABILITATION & WELLNESS CENTRE OF DALLAS, LLC
AND BRIUS, LLC, Appellee

On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-01019

MEMORANDUM OPINION
Before Justices Molberg, Partida-Kipness, and Carlyle
Opinion by Justice Molberg

In this wrongful death and survival action, appellant Roger Cornell Fox,

individually and on behalf of the Estate of Karen Nasine Fox, his late wife, appeals

the trial court’s order dismissing Fox’s claims and granting the “Motion to Dismiss,

Motion to Compel Arbitration, or, in the Alternative, Stay Proceedings” filed by

appellees The Rehabilitation & Wellness Centre of Dallas, LLC (TRWCD) and

Brius, LLC. On appeal, Fox argues the trial court erred in finding a valid arbitration

agreement existed because Mrs. Fox did not sign the arbitration agreement and
appellees failed to prove she conferred authority on him to sign on her behalf. In

this memorandum opinion, see TEX. R. APP. P. 47.4, because we conclude appellees

failed to meet their initial evidentiary burden to prove the existence of a valid,

enforceable arbitration agreement, we reverse the trial court’s order and remand the

case for further proceedings.

I. BACKGROUND
In their motion, appellees asked the trial court to dismiss or stay Fox’s claims

pending arbitration of their dispute because (1) Fox signed a valid arbitration

agreement on Mrs. Fox’s behalf, and (2) the claims in the lawsuit are within the

agreement’s scope. Fox opposed the motion and argued appellees failed to establish

the existence of a valid arbitration agreement because they presented no proof of any

actions by Mrs. Fox authorizing Fox to sign on her behalf. Fox made no argument

regarding the agreement’s scope.

Both parties attached various unauthenticated documents to their filings.

Appellees attached only one item to their motion—a two-page, unauthenticated

“Resident and Center Arbitration Agreement” (“the Agreement”), that states, in part:

RESIDENT AND CENTER ARBITRATION
AGREEMENT - READ CAREFULLY

It is understood and agreed by (“Center”) and (“Resident,” or
“Resident’s Authorized Representative”, hereinafter collectively
“Resident”)[1] that they shall use their best efforts to resolve any legal

1
The Agreement’s text does not name Fox, Mrs. Fox, TRWCD, or Brius, LLC or identify the parties
to the Agreement, as it does not define “Center,” “Resident,” or “Resident’s Authorized Representative.”
Though the Agreement’s text later refers to it, no “Resident Admission Agreement” is in the record.
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dispute . . . that arises out of or relates to the Resident Admission
Agreement or any service or health care provided by Center to
Resident, and that they will consult and negotiate with each other in
good faith to attempt to reach a fair solution satisfactory to both. If
Center and Resident do not reach a solution within a period of sixty
(60) days, upon written notice by either party to the other, the claim
shall be resolved exclusively by binding arbitration. . . .
This agreement to arbitrate includes, but is not limited to, any claim
for . . . negligence, gross negligence, malpractice, or any other claim
based on any departure from accepted standards of medical or health
care or safety whether sounding in tort or in contract. . . .

....

It is the intention of the parties to this arbitration agreement that it shall
inure to the benefit of and bind the parties, their successors and assigns,
including . . . any parent, spouse . . . or heir of Resident.

....

The parties understand and agree that by entering this arbitration
agreement they are giving up and waiving their constitutional right
to have any claim decided in a court of law before a judge and a
jury.
....
This arbitration agreement shall be governed and interpreted under the
Federal Arbitration Act. 9 U.S.C. §§ 1–16.

By virtue of Resident’s consent, instruction and/or durable power of
attorney, I hereby certify that I am authorized to act as Resident’s agent
in executing . . . on his/her and my behalf the arbitration agreement.

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 Fox attached various unauthenticated items to his response, including, but not

limited to, a power of attorney form purportedly signed by Mrs. Fox on August 1,

2019, over five months after the handwritten date reflected in the Agreement

appellees attached to their motion.

The trial court held a hearing on appellees’ motion, but it was not evidentiary.

The appellate record contains a hearing transcript. During the hearing, the parties’

counsel made arguments, but neither party called witnesses or made any attempt to

authenticate, offer, or admit any items into evidence. After counsel’s arguments, the

court stated:

THE COURT: All right. I am going to go ahead and abate for the
purposes of the mediation, or whatever is the term of art used in the
Agreement. If no agreement is reached, then I’m going to send it to
arbitration.

The court later signed an order granting appellees’ motion. The order required

the parties, for a period of sixty days following the order’s entry, to consult and in

good faith attempt to reach a fair solution satisfactory to both sides; ordered the

parties, if they did not reach a solution within that period, to proceed to binding

arbitration on any and all claims, issues, complaints and causes of action raised or

that could have been raised against appellees in Fox’s original petition; and stated,

“all matters and proceedings between [the parties] in this cause of action shall be

DISMISSED following the sixty (60) day negotiation period, pending resolution of

the arbitration of [Fox’s] claims.”

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 II. ISSUES AND ANALYSIS
Fox timely appealed.2 In his sole issue on appeal, Fox argues the trial court

erred in finding a valid arbitration agreement existed because Mrs. Fox did not sign

the arbitration agreement and appellees failed to prove Mrs. Fox conferred authority

on Mr. Fox to sign on her behalf. As explained below, we conclude appellees failed

to establish the existence of a valid arbitration agreement and thus agree the trial

court erred.

In their response on appeal, appellees dispute Fox’s position and raise other

issues as well, including, but not limited to, twice asking us to dismiss the appeal—

first in a letter brief arguing we lack jurisdiction, and second in their appellate brief,

arguing we should dismiss the appeal because Fox had not yet filed a docketing

statement. We already considered the parties’ letter briefs regarding our jurisdiction

and concluded we have it, for the same reason we include below.

We need not consider appellees’ argument on the docketing statement, as it is

moot.3 We also need not consider new issues appellees raise for the first time on

appeal, such as whether Fox signed the arbitration agreement in his personal capacity

and whether Fox’s claims should be arbitrated based on an equitable estoppel theory,

2
In their letter briefs regarding jurisdiction, Fox stated, and appellees did not dispute, that his claims
were dismissed on October 24, 2021, at the conclusion of the negotiation period and the sixtieth day after
the trial court signed its order. While Fox filed his notice of appeal before that date, his notice is appeal is
effective and deemed filed on that date—the day of, but after, the dismissal of his claims. See TEX. R. APP.
P. 27.1(a) (“In a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of,
but after, the event that begins the period for perfecting the appeal.”).
3
Fox filed a docketing statement in our Court on February 15, 2022, over eight months before the
appeal was submitted to us without oral argument.
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as these issues could not have formed the basis for the trial court’s decision, when

they were not raised below. See Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764

n.4 (Tex. 2014) (stating the court does not consider issues not presented in the trial

court but noting parties are free to construct new arguments in support of issues

properly before the court).

A. Jurisdiction Over the Appeal
Before we address Fox’s issue, we first explain our conclusion that we have

jurisdiction over this appeal. Because we initially questioned it, we asked Fox to

submit a jurisdictional letter brief and allowed appellees to submit a letter brief in

response. After reviewing those letters, we informed the parties it appears we have

jurisdiction over this appeal. Neither party has asked us to reconsider that view.

Although it is not authenticated, the Agreement attached to appellees’ motion

states it “shall be governed and interpreted under the Federal Arbitration Act”

(FAA). See 9 U.S.C. §§ 1–16. The Texas Civil Practice and Remedies Code states,

In a matter subject to the FAA, a person may take an appeal or writ of
error to the court of appeals from the judgment or interlocutory order
of a district court, county court at law, or county court under the same
circumstances that an appeal from a federal district court’s order or
decision would be permitted by 9 U.S.C. Section 16.

TEX. CIV. PRAC. & REM. CODE ANN. § 51.016.

While the FAA “makes no provision for an interlocutory appeal from an order

compelling arbitration,” such an order “can clearly be reviewed on appeal from a

final judgment.” Chambers v. O’Quinn, 242 S.W.3d 30, 32 (Tex. 2007) (per curiam)

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(stating, “The United States Supreme Court has said that orders compelling

arbitration can be reviewed after final judgment in the case.”) (citing Green Tree

Fin. Corp. v. Randolph, 531 U.S. 79, 89 (2000)); see 9 U.S.C. § 16(a)(3) (stating an

appeal may be taken from “a final decision with respect to an arbitration that is

subject to this title”). Thus, “[c]ourts may review an order compelling arbitration if

the order also dismisses the underlying litigation so it is final rather than

interlocutory.” In re Gulf Expl., LLC, 289 S.W.3d 836, 839 n.14 (Tex. 2009)

(quoting Perry Homes v. Cull, 258 S.W.3d 580, 586 n.13 (Tex.2008)).

Here, in their motion and in the hearing, appellees asked the trial court to

either stay or dismiss the proceedings. The trial court did the latter,4 compelling and

ordering the parties to arbitration if they did not reach a solution after a sixty-day

negotiation period, and stating in its order, “all matters and proceedings between [the

parties] in this cause of action shall be DISMISSED following the sixty (60) day

negotiation period”), pending resolution of the arbitration of [Fox’s] claims.”

We have jurisdiction over this appeal because the trial court’s order dismissed

the proceedings. See In re Gulf Expl., LLC, 289 S.W.3d at 839 n.14.

B. Validity of the Agreement
We turn to Fox’s sole issue, in which he argues the trial court erred in finding

there was a valid arbitration agreement because Mrs. Fox did not sign the arbitration

4
We do not decide the propriety of dismissal rather than a stay, as neither party has raised the issue.
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agreement and appellees failed to prove Mrs. Fox conferred authority on Mr. Fox to

sign on her behalf.

Under the FAA, a party seeking to compel arbitration must establish the

existence of a valid arbitration agreement and show that the disputed claims fall

within the scope of that agreement. In re Kellogg Brown & Root, Inc., 166 S.W.3d

732, 737 (Tex. 2005) (orig. proceeding). A trial court’s determination of the

arbitration agreement’s validity is a legal question subject to de novo review. J.M.

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

In Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266 (Tex. 1992), the court

described how trial courts are to review disputes regarding arbitration, explaining:

Because the main benefits of arbitration lie in expedited and less
expensive disposition of a dispute, and the legislature has mandated that
a motion to compel arbitration be decided summarily, we think it
unlikely that the legislature intended the issue to be resolved following
a full evidentiary hearing in all cases. We also envision that the hearing
at which a motion to compel arbitration is decided would ordinarily
involve application of the terms of the arbitration agreement to
undisputed facts, amenable to proof by affidavit. With these
considerations in mind, we hold that the trial court may summarily
decide whether to compel arbitration on the basis of affidavits,
pleadings, discovery, and stipulations. However, if the material facts
necessary to determine the issue are controverted, by an opposing
affidavit or otherwise admissible evidence, the trial court must conduct
an evidentiary hearing to determine the disputed material facts.

Id. at 269 (emphasis added) (internal footnote omitted). We discussed these and

other standards in Constant v. Gillespie, No. 05-20-00734-CV, 2022 WL 1564555,

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*4–5 (Tex. App.—Dallas May 18, 2022, no pet.) (mem. op.).5 We also reaffirmed

that a party moving to compel arbitration “is required to put forth competent, prima

facie evidence of the arbitration agreement itself.” Id. at *6.

5
In Constant, which involved a denial of a motion to compel arbitration, we stated:
A party seeking to compel arbitration must establish two things: (1) the existence of a
valid, enforceable arbitration agreement and (2) that the disputed claim falls within the
scope of that agreement. See Wagner v. Apache Corp., 627 S.W.3d 277, 282 (Tex. 2021).
When deciding whether the parties have agreed to arbitrate, we do not resolve doubts or
indulge a presumption in favor of arbitration. Emery v. Hilltop Sec., Inc., No. 05-18-00697-
CV, 2019 WL 4010775, at *5 (Tex. App.—Dallas Aug. 26, 2019, no pet.) (mem. op.).
Although there is a strong presumption favoring arbitration, that presumption arises only
after the party seeking to compel arbitration proves that a valid arbitration agreement exists.
VSR Fin. Servs., Inc. v. McLendon, 409 S.W.3d 817, 827 (Tex. App.—Dallas 2013, no
pet.).

After the party seeking to compel arbitration satisfies its initial evidentiary burden, the
burden then shifts to the party seeking to avoid arbitration to raise an affirmative defense
to the enforcement of the otherwise valid arbitration provision. See Haddington Fund, LP
v. Kidwell, No. 05-19-01202-CV, 2022 WL 100111, at *4 (Tex. App.—Dallas Jan. 11,
2022, pet. filed) (mem. op.). In the absence of a valid defense, the trial court has no
discretion—it must compel arbitration and stay its own proceedings. Id.

A motion to compel arbitration is initially presented to the trial court in a summary
proceeding on the basis of affidavits, pleadings, discovery, and stipulations. See Jack B.
Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992) (orig. proceeding); GJ
Partners, Ltd. v. Cima Contractors, LLC, No. 05-18-01412-CV, 2020 WL 400180, at *3
(Tex. App.—Dallas Jan. 23, 2020, pet. denied) (mem. op.). The summary disposition of a
motion to compel arbitration is governed by the same evidentiary standards as a motion for
partial summary judgment. See Tex. Health Res. v. Kruse, No. 05-13-01754-CV, 2014 WL
3408636, at *6 (Tex. App.—Dallas July 11, 2014, pet. denied) (mem. op.).

A trial court, however, must forgo summary disposition and hold an evidentiary hearing
on a motion to compel arbitration when there is a genuine question of material fact
concerning the existence of an arbitration agreement. See id. Specifically, the Supreme
Court of Texas has stated: “[I]f the material facts necessary to determine the issue [of
whether to compel arbitration] are controverted, by an opposing affidavit or otherwise
admissible evidence, [then] the trial court must conduct an evidentiary hearing to determine
the disputed material facts.” Jack B. Anglin, Co., Inc., 842 S.W.2d at 269. . . .

We review a trial court’s order denying a motion to compel arbitration for abuse of
discretion. Wagner, 627 S.W.3d at 283. Under this standard of review, we defer to the
trial court’s factual determinations if they are supported by evidence, but we review the
trial court’s legal determinations de novo. Redi-Mix, LLC v. Martinez, No. 05-17-01347-
CV, 2018 WL 3569612, at *2 (Tex. App.—Dallas July 25, 2018, no pet.) (mem. op.).

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 Appellees, the movants, failed to do this. Rather than submitting with their

motion any “affidavits, pleadings, discovery, or stipulations” to support their motion,

see Tipps, 842 S.W.2d at 269, appellees attached to their motion only the two-page

unauthenticated Agreement, and they submitted no evidence at the later non-

evidentiary hearing.

Constant involved the same problem, as the movant in that case merely

attached to his motion exhibits containing arbitration provisions but did not submit

any affidavits from a witness to authenticate any of his exhibits. 2022 WL 1564555

at *6. Because “[s]imply attaching a document to a motion does not make the

document admissible as evidence, dispense with proper foundational evidentiary

requirements, or relieve a litigant of complying with other admissibility

requirements[,]” we concluded that, as a matter of law, the movant’s mere

attachment of the purported arbitration agreement as an exhibit to his motion,

without more, “submitted no evidence of a valid arbitration agreement to the trial

court[,]” id. at *6, and “was insufficient to meet [the movant’s] initial evidentiary

Whether disputed claims fall within the scope of an arbitration agreement is a question of
law that we review de novo. Wagner, 627 S.W.3d at 283.

Where . . . the trial court makes no written findings of fact or conclusions of law in support
of its ruling, all facts necessary to support the judgment and supported by the evidence are
implied. Redi-Mix, LLC, 2018 WL 3569612, at *2. We affirm the ruling if it can be upheld
on any legal theory supported by the evidence. Id. We reverse a trial court for abusing its
discretion only when we determine the court acted in an unreasonable or arbitrary manner,
meaning that it acted without reference to any guiding rules and principles. Id.

2022 WL 1564555, at *4–5.

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burden to prove the existence of a valid, enforceable arbitration agreement.” Id. at

*1, 4; see id. at *9 (stating similar conclusion).

Although the record before us justifies the same conclusion, both parties

ignore this problem, just as the trial court did. Even if we, too, ignore the problem

and assume, as we do, that appellees properly authenticated the Agreement, another

fundamental problem exists: the lack of any evidence that Fox signed the Agreement

on Mrs. Fox’s behalf.

“[A] party can be forced to arbitrate only those issues it specifically has agreed

to submit to arbitration.” Jody James Farms, JV v. Altman Grp., Inc., 547 S.W.3d

624, 631 (Tex. 2018) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938,

945 (1995)). “Whether parties have agreed to arbitrate is a gateway matter ordinarily

committed to the trial court and controlled by state law governing ‘the validity,

revocability, and enforceability of contracts generally.’” Id. (quoting Arthur

Andersen LLP v. Carlisle, 556 U.S. 624, 631 (2009)). “The question of ‘[w]ho is

actually bound by an arbitration agreement is [ultimately] a function of the intent of

the parties, as expressed in the terms of the agreement.’” In re Rubiola, 334 S.W.3d

220, 224 (Tex. 2011) (quoting Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d

347, 355, 358 (5th Cir.2003)). Generally, parties must sign arbitration agreements

before being bound by them, id., but an obligation to arbitrate not only attaches to

one who has personally signed the written arbitration agreement but may also bind

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a non-signatory under principles of contract law and agency. Id.; see In re Kellogg

Brown & Root, Inc., 166 S.W.3d at 738.

Here, even assuming the Agreement was properly authenticated, the non-

signatory is Mrs. Fox, Fox’s late wife. As Fox’s wrongful death and survival claims

are all derivative of Mrs. Fox’s claims, see Prestonwood Tradition, LP v. Jennings,

653 S.W.3d 436, 441–43 (Tex. App.—Dallas 2022, no pet.), the central dispute

before us is whether appellees established the existence of a valid arbitration

agreement with Mrs. Fox, under principles of contract law and agency.

In the trial court, appellees argued they did so, on the theory that Fox signed

the Agreement on Mrs. Fox’s behalf. Appellees’ motion states, “On February 18,

2019, Karen Fox’s husband Roger Fox, acting as Mrs. Fox’s legal representative,

signed the [Agreement] as evidenced by his signature on the document. . . . The

document was also signed by a [TRWC] facility representative.”

In Gaines v. Kelly, 235 S.W.3d 179, 182–83 (Tex. 2007), the Court stated:

An agent’s authority to act on behalf of a principal depends on some
communication by the principal either to the agent (actual or express
authority) or to the third party (apparent or implied authority). . . .

Apparent authority, we have said, is based on estoppel, arising “either
from a principal knowingly permitting an agent to hold [himself] out as
having authority or by a principal’s actions which lack such ordinary
care as to clothe an agent with the indicia of authority, thus leading a
reasonably prudent person to believe that the agent has the authority
[he] purports to exercise.” Baptist Mem. Hosp. Sys. v. Sampson, 969
S.W.2d 945, 948 (Tex.1998). We have further noted that the principal’s
full knowledge of all material facts is essential to establish a claim of
apparent authority based on estoppel. Rourke v. Garza, 530 S.W.2d
794, 803 (Tex.1975) (citing Hallmark v. United Fid. Life Ins. Co., 155
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 Tex. 291, 286 S.W.2d 133 (1956)). Moreover, when making that
determination, only the conduct of the principal is relevant.
NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 953 (Tex.1996) (per
curiam). Finally, the standard is that of a reasonably prudent person,
using diligence and discretion to ascertain the agent’s authority.
Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422, 427
(1953). Thus, to determine an agent’s apparent authority we examine
the conduct of the principal and the reasonableness of the third party’s
assumptions about authority.

No such evidence exists in the record before us. Even assuming the

Agreement was properly authenticated, the record lacks evidence of the conduct of

Mrs. Fox, the alleged principal; appellees’ assumptions about Fox’s authority, if any;

and any circumstances from which we could determine whether such assumptions,

if any, are reasonable.

We agree with Fox that, despite his signature on the Agreement under

language purportedly “certifying” that he was acting as her agent, the record lacks

any evidence showing that an agency relationship did, in fact, exist between Fox and

Mrs. Fox at the time he signed the Agreement. Appellees argue, in essence, that the

Agreement itself evidences Mrs. Fox’s granting of authority to Fox because Fox

signed the Agreement below language stating, “By virtue of Resident’s consent,

instruction and/or durable power of attorney, I hereby certify that I am authorized to

act as Resident’s agent in executing . . . on his/her and my behalf the arbitration

agreement.” We disagree. Fox’s signature on the Agreement fails to establish Fox

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did, in fact, have Mrs. Fox’s consent or authorization to sign it on her behalf and

constitutes, at most, no more than a scintilla of evidence that Fox was her agent.6

Based on the record before us, we conclude the trial court erred in compelling

arbitration and dismissing Fox’s claims because appellees failed to meet their initial

evidentiary burden to prove the existence of a valid, enforceable arbitration

agreement. See In re Kellogg Brown & Root, Inc., 166 S.W.3d at 737 (establishing

burden is appellees’, as movants); Tex. Cityview Care Ctr., L.P. v. Fryer, 227

S.W.3d 345, 352 (Tex. App.—Fort Worth 2007, pet. dism’d) (noting the party

alleging agency has the burden to prove its existence and that absent actual or

apparent authority, an agent cannot bind a principal). We sustain Fox’s sole issue.

III. CONCLUSION
We reverse the trial court’s August 25, 2021 order and remand the case for

further proceedings consistent with this opinion.

/Ken Molberg/
210904f.p05 KEN MOLBERG
JUSTICE

6
Though not directly on point, as the case did not involve arbitration and involved an appeal following
a bench trial in which the trial court issued findings of fact and conclusions of law, appellees’ position is
similar to the position taken by the lender in Tong v. Nationstar Mortgage LLC, No. 05-19-01558-CV, 2023
WL 2422482 (Tex. App.—Dallas March 9, 2023, no pet. h.) (mem. op.). In Tong, we were unpersuaded
by the lender’s argument that the husband’s signature on a home equity affidavit signed at the loan’s closing
constituted proof of the wife’s consent to the home equity loan, even though the affidavit stated, in part,
“The Extension of Credit is secured by a voluntary lien on the Property created under a written agreement
with the consent of all owners and all spouses of owners and execution of this [affidavit] is deemed evidence
of such consent.” Id. at *10. We stated that we did not believe such evidence “would allow one to
reasonably conclude the wife consented to the lien,” and concluded that, “[t]o the extent the affidavit is any
evidence at all of [the wife’s] consent to the lien . . . it is nothing more than a scintilla.” Id.
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 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

ROGER CORNELL FOX, On Appeal from the 298th Judicial
INDIVIDUALLY AND ON District Court, Dallas County, Texas
BEHALF OF THE ESTATE OF Trial Court Cause No. DC-21-01019.
KAREN NASINE FOX, Appellant Opinion delivered by Justice
Molberg. Justices Partida-Kipness
No. 05-21-00904-CV V. and Carlyle participating.

THE REHABILITATION &
WELLNESS CENTRE OF
DALLAS, LLC AND BRIUS, LLC,
Appellees

In accordance with this Court’s opinion of this date, the trial court’s August
25, 2021 order is REVERSED and this cause is REMANDED to the trial court
for further proceedings consistent with this opinion.

It is ORDERED that appellant ROGER CORNELL FOX,
INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF KAREN NASINE
FOX recover his costs of this appeal from appellees THE REHABILITATION &
WELLNESS CENTRE OF DALLAS, LLC AND BRIUS, LLC.

Judgment entered this 5th day of June, 2023.

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