CONDITIONALLY GRANT and Opinion Filed July 13, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00194-CV
IN RE SCOTT FRENKEL, Relator
Original Proceeding from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-03470-2016
MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Smith
Opinion by Justice Reichek
In this original proceeding, relator Scott Frenkel, an attorney representing one
of the defendants in the underlying action, challenges a trial court order sanctioning
him for misrepresenting the authenticity of a document filed in response to a motion
to compel discovery.1 Frenkel argues the trial court abused its discretion by refusing
to defer the monetary and performative sanctions against him until a final judgment
is rendered in the underlying case, which would allow him to seek an adequate
remedy on appeal. Alternatively, he challenges the merits of the sanctions.
1
Although Frenkel is a nonparty, there is no jurisdictional bar to him seeking relief from the sanctions
order. See Braden v. Downey, 811 S.W.2d 922, 928 n.6 (Tex. 1991) (orig. proceeding).
For reasons set out below, we conclude the trial court abused its discretion by
not deferring both sanctions until after rendition of an appealable judgment.
Accordingly, we conditionally grant Frenkel’s petition for writ of mandamus.
BACKGROUND
In the underlying lawsuit, plaintiffs/real parties in interest Stephen Courtney,
M.D., and Stephen Courtney, M.D., P.A. (collectively “Courtney”) sued various
defendants, alleging they schemed and colluded to illegally and unethically obtain
and use confidential patient information to “wreak havoc” on Courtney and to inflict
“as much torment, professional embarrassment and financial harm as possible.” One
of the defendants is Kelly M. Liebbe, a licensed Texas attorney who is representing
herself in the lawsuit and who is also represented by co-counsel/relator Scott
Frenkel. The other defendants are William C. McMurrey, Jonathan Rute, Cameron
Carmody, M.D., and Cameron Carmody, M.D., P.A.
Liebbe represented three of Courtney’s former patients in a separate medical
malpractice lawsuit filed in Dallas County.2 Courtney asserts that protected health
information pertaining to his patients was openly shared and discussed among the
2
This lawsuit was dismissed on summary judgment, which this Court affirmed on appeal. Tarrant v.
Baylor Scott & White Med. Ctr.-Frisco, 05-18-01129-CV, 2020 WL 219314, at *1 (Tex. App.—Dallas Jan.
15, 2020, pet. filed) (mem. op.).
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defendants and ultimately weaponized against him via the medical malpractice
lawsuit and baseless complaints filed with the Texas Medical Board (“TMB”).3
During the course of the litigation, Courtney filed a motion to compel Liebbe
to produce certain audio recordings she had made of conversations between herself
and counsel for Courtney and Carmody. Liebbe asserted the recordings were
protected from disclosure by the law enforcement privilege, and the trial court
ordered Liebbe to submit the recordings for in camera review along with information
that would allow the court to evaluate Liebbe’s privilege claim.
After Liebbe responded, Courtney and Carmody objected to what they
considered Liebbe’s partial compliance with the order and jointly filed another
motion to compel against Liebbe. In response to the joint motion to compel, and in
support of her argument that the law enforcement privilege shielded these audio
recordings from disclosure, Liebbe attached documents that she claimed were
prepared by and contained findings of the TMB against Courtney. Liebbe
electronically signed and filed the response, and Frenkel was listed on the signature
block as counsel for Liebbe.
In separate replies, Courtney and Carmody argued the documents were not
findings made by or adopted by the TMB but were instead excerpts from a complaint
3
The Courtney plaintiffs allege McMurrey obtained Dr. Courtney’s patient list from Dr. Carmody, who
is a former partner at the same professional association where Courtney previously practiced as an
orthopedic spine surgeon, and illegally shared it with Liebbe. According to Courtney, Liebbe then began
exploring legal action against Dr. Courtney and entities affiliated with him.
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filed by Dr. Courtney’s ex-wife that the TMB had subsequently dismissed. Courtney
and Carmody both requested sanctions against Liebbe. Liebbe filed a sur-reply in
which she continued to maintain the authenticity of the documents.
Frenkel represented Liebbe at the hearing on the motion. The authenticity of
the documents was hotly disputed, and Frenkel specifically represented to the trial
court that the documents were not “forged” and “were actual findings from the Texas
Medical Board about Courtney.” Given the conflicting representations about the
documents, the trial court directed Courtney to contact the TMB to establish whether
they were authentic. The court also set a follow-up hearing on the matter.
Prior to the hearing, Courtney produced an affidavit from TMB’s general
counsel attesting that the documents were not official TMB documents, were not
created by the TMB, and did not constitute any findings, conclusions, statements or
any other determination by TMB. TMB counsel further attested that the documents
were created and submitted to the TMB by a private citizen and the use of the TMB
letterhead by the private citizen was not authorized by TMB. Courtney and Carmody
subsequently filed another joint motion for sanctions and, this time, requested the
court award sanctions against Frenkel, in addition to Liebbe, for misrepresenting to
the court that the documents represented actual TMB findings against Courtney.
At the hearing, the trial court took sworn testimony from Liebbe and Frenkel,
who no longer challenged that the documents were not authentic. Both, however,
testified that they were unaware that the documents were not authentic until the TMB
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general counsel’s affidavit was filed. Frenkel pointed out that Liebbe had filed the
response and sur-reply with the court, and his representations to the court that the
documents were authentic were based on what Liebbe told him. He testified he did
not do any due diligence before making the representations.
At the conclusion of the hearing, the trial court determined sanctions were
warranted against Frenkel.4 By order dated March 1, 2021 the trial court found:
Frenkel’s representation to the Court, as Liebbe’s counsel of record,
during the August 10, 2020 hearing of “And, by the way, nothing
was forged from the TMB. Those were actual findings from the
Texas Medical Board about Courtney,” . . . was false. Before
making that representation to the Court, Frenkel knew, should have
known, or should have made a reasonable investigation that would
have revealed that the Documents at Issue were not actual findings
made or adopted by the Texas Medical Board against Dr. Courtney.
The false representations made by Liebbe and Frenkel regarding the
authenticity or legitimacy of the Documents at Issue were made in
an attempt to resist discovery sought jointly by Dr. Courtney and Dr.
Carmody, specifically, the audio recordings Liebbe made or
possessed which she claimed contained recorded statements made
by counsel for Dr. Courtney and Dr. Carmody. Therefore, Liebbe’s
and Frenkel’s conduct is sanctionable under Rule 215 of the Texas
Rules of Civil Procedure and the inherent power of the Court.
Sanctions are warranted under Rule 215 of the Texas Rules of Civil
Procedure against both Liebbe and Frenkel to deter them from
making any further false representations to the Court.
Based on these findings, the trial court ordered Frenkel to pay $1,000 to the
Texas Lawyers Assistance Program (“TLAP”) within thirty days of the order and to
4
The court also imposed sanctions against Liebbe, but she is not a party to this original proceeding.
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complete an additional ten hours of continuing legal education on legal ethics within
twenty-four months of the order. Frenkel filed a motion seeking either severance or
deferral of the sanctions, arguing that the deadline for compliance before a final
judgment would deprive him of an adequate appellate remedy. The trial court denied
the motion, and Frenkel sought mandamus review.
APPLICABLE LAW
To be entitled to the extraordinary remedy of mandamus, Frenkel must show
both that the trial court has clearly abused its discretion and that he has no adequate
appellate remedy. See In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex.
2004) (orig. proceeding). A trial court has no discretion in determining what the law
is or applying the law to the facts. Id. at 135. Thus, a clear failure by the trial court
to analyze or apply the law correctly will constitute an abuse of discretion and may
result in appellate reversal by extraordinary writ. Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992) (orig. proceeding).
The Texas Rules of Civil Procedure authorize trial courts to impose sanctions
for discovery abuses. See TEX. R. CIV. P. 215.3 (permitting court to impose
appropriate sanctions if court finds party is abusing discovery process in seeking,
making, or resisting discovery). A sanctions order is subject to review on appeal
from the final judgment, but, under certain circumstances, is subject to review before
final judgment by writ of mandamus. In re Garza, 544 S.W.3d 836, 840 (Tex. 2018)
(orig. proceeding).
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Both sides rely on the supreme court’s decision in Braden v. Downey, 811
S.W.2d 922 (Tex. 1991) (orig. proceeding), to support their respective positions in
this original proceeding. In Braden, a litigant and his attorney were sanctioned for
discovery abuse. 811 S.W.2d at 924. The trial court ordered the party to pay $10,000
within thirty days and the attorney to complete ten hours of community service
within six weeks. Id. at 926. The monetary sanction, however, far exceeded the
$500 reimbursable attorney’s fees the movant had requested as a sanction and thus
amounted to a penalty. Id. at 929. The sanctioned party sought mandamus relief,
asserting the sanctions order was improper and that neither he nor his lawyer had an
adequate remedy at law. Id. at 928.
The supreme court declined to consider the propriety of the sanctions by
mandamus but held the trial court abused its discretion in imposing monetary
sanctions to be paid and community service to be performed “before those sanctions,
and the basis for imposing them, could be appealed.” Id. at 925, 930. The court
granted relief and directed the trial court to modify the sanctions order to defer
payment of the monetary and performative sanctions until rendition of final
judgment, which allowed the merits of the sanctions order to be determined on
appeal. Id. at 930–31.
In reaching its decision with regard to the monetary sanctions, the court
acknowledged prior cases in which it had denied mandamus relief, noting the
concern “that the appeals courts not embroil themselves unnecessarily in incidental
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pretrial rulings of the trial courts.” Id. at 928 (citing Street v. Second Court of
Appeals, 715 S.W.2d 638, 639–40 (Tex. 1986) (per curiam) (orig. proceeding), and
Stringer v. Eleventh Court of Appeals, 720 S.W.2d 801, 802 (Tex. 1986) (per
curiam) (orig. proceeding)). But, the court contrasted the modest monetary sanctions
at issue in those cases––$1,050 in Street and $200 in Stringer ––with those in Braden
and observed that the magnitude of a monetary sanction could raise “the real
possibility that a party’s willingness or ability to continue the litigation will be
significantly impaired.” Id. at 929. Consequently, the Braden court determined that
if the imposition of monetary sanctions threatens a party’s continuation of the
litigation, then appeal affords an adequate remedy only if payment of the sanctions
is deferred until final judgment is rendered and the party has had the opportunity to
supersede the judgment and perfect his appeal. Id. To ensure that a monetary
sanction does not have a preclusive effect on litigation, the court concluded that if a
litigant contends that a monetary sanction precludes access to the court, the district
court must either (1) provide that the sanction is payable only at a date that coincides
with or follows entry of a final order terminating the litigation, or (2) make express
written findings, after a prompt hearing, as to why the award does not have a
preclusive effect. Id. This, the court reasoned, allows the trial court to levy some
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monetary sanctions during pretrial proceedings but requires that payment of more
severe sanctions be deferred until an appealable judgment is rendered.5 Id.
As for the performative sanctions ordered by the trial court, the court
concluded that, unlike money paid, time spent is not recoverable. Since the trial
court ordered Braden’s lawyer to complete his community service before he could
obtain appellate review per rule 215, his appellate remedy was “plainly inadequate”
and the trial court abused its discretion in ordering the performance of that sanction
before it could be appealed. Id. at 930.
DISCUSSION
A. Monetary Sanction
While a trial court has discretion to require immediate payment of a monetary
sanction, that discretion is not without limits. In re Casey, 589 S.W.3d at 856. And
rule 215.3 mandates that sanctions imposed under the rule “shall be subject to review
on appeal from final judgment.” TEX. R. CIV. P. 215.3. “Subject to” means “having
a contingent relation to something and usually dependent on some relation for final
form, validity, or significance.” Subject to, WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY (1993).
Although we recognize that monetary sanctions of the amount at issue here
are not generally reviewable by mandamus because they can typically be rectified
5
Braden’s application to monetary sanctions was recently reaffirmed in In re Casey, 589 S.W.3d 850
(Tex. 2019) (per curiam) (orig. proceeding).
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on appeal, this case presents a different situation impacting appellate review.
Specifically, if the sanction is determined on appeal to be improper, neither the trial
court nor this Court would have authority to compel TLAP to repay the sanction
because TLAP is not a party to this lawsuit. Thus, while the monetary sanction
may technically be reviewed on appeal, it is not “subject to” such review as
required by rule 215.3. And, without the ability to have any real review, Frenkel
is left without an adequate appellate remedy.
In reaching this conclusion, we reject any suggestion that Braden mandates
a different result. While Braden clearly applies to a sanction that precludes access
to the court, it does not follow that such a sanction is the only type of monetary
sanction that may deny a party an adequate remedy on appeal as required by In re
Prudential. The requirement that the relator have no adequate appellate remedy “has
no comprehensive definition.” In re Prudential, 148 S.W.3d at 136. The word
“adequate” is “simply a proxy for the careful balance of jurisprudential
considerations that determine when appellate courts will use original mandamus
proceedings to review the actions of lower courts,” and “an appellate remedy is
‘adequate’ when any benefits to mandamus review are outweighed by the
detriments.” Id. Whether an appellate remedy is “adequate” so as to preclude
mandamus review depends on the circumstances presented and is guided by general
principles rather than simple rules. Id. at 137. And, the Texas Supreme Court has
expressed a willingness to expand Braden beyond the facts presented in that case.
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See In re Casey, 589 S.W.3d at 856 (“Braden was not (and has never been) expressly
limited to its facts.”). This approach is consistent with In re Prudential.
Our sister court’s reasoning in In re Rusk Energy, No. 12-07-00245-CV, 2008
WL 257019, at *6 (Tex. App.—Tyler Jan. 31, 2008, orig. proceeding) (mem. op.),
is instructive. There, the court determined that mandamus relief was available to
challenge an order requiring posting of a prejudgment bond. Declining to apply
Braden, the court reasoned that a strict application of Braden is akin to a “rigid rules”
approach that is inconsistent with In re Prudential, which was decided after Braden
and signaled a flexible approach to mandamus relief. In re Rusk Energy, 2008 WL
257019, at *6. The court concluded that appeal was an inadequate remedy because,
even if Rusk were able to obtain reversal of the trial court’s order on appeal, it would
not be awarded damages for its loss of use of the money it deposited. Id. Just as
Rusk would be denied an adequate remedy on appeal, Frenkel would be as well
because the trial court would not have the means to compel TLAP to return the
monetary sanction.
We conclude the trial court abused its discretion by not deferring payment of
the monetary sanction until after rendition of final judgment in the case.
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B. Performative Sanction
Relying on Braden, Frenkel argues the trial court clearly abused its discretion
by not deferring its order that he complete an additional ten hours of ethics CLE until
after rendition of final judgment in this case. Again, we agree.
As the Braden court noted, “Time spent is different from money paid;
recovery of the latter may be problematic, but recovery of the former is impossible.”
Braden, 811 S.W.2d at 930. And, the trial court should not have the discretion, by
setting the time for performance of the sanctions ordered, to determine whether a
party must seek relief by appeal or by mandamus. Id.
Here, the trial court ordered Frenkel to complete the ethics CLE within
twenty-four months of the order. Real parties in interest argue that this complies
with Braden because Frenkel will likely be able to appeal before the twenty-four
months expires. We are unpersuaded by this argument. There is no guarantee that
a final appealable judgment will be rendered before the twenty-four-month period
expires, especially given the current delays in scheduling trials caused by the
COVID-19 pandemic and the potential for post-judgment motions. Moreover,
Braden disapproved of allowing trial courts the discretion to determine whether a
party must seek relief by appeal or by mandamus by setting the time for performance
of the sanctions order as that discretion is at odds with the mandate in rule 215.3 that
a sanctions order be reviewable on appeal. Id.
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CONCLUSION
For the foregoing reasons, we conclude that the trial court abused its discretion
by not deferring both sanctions until after rendition of a final appealable judgment,
leaving Frenkel without an adequate remedy by appeal. As the supreme court did in
Braden, we conditionally grant mandamus relief and direct the trial court to modify
its March 1, 2021 sanctions order to defer payment of the monetary sanction and
performance of additional legal ethics education until rendition of final judgment,
thus allowing the merits of the sanctions order to be considered on appeal. Id. at
930–31. Because we do not reach the merits of the sanctions order, we likewise
decline to consider real parties’ request that we impose additional sanctions on
Frenkel for representations made to this Court in connection with his merits
argument.
The writ will issue only if the trial court fails to comply. We lift the stay
imposed by order dated March 30, 2021.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
210194F.P05
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