Cassidy v. Teamhealth, Inc. (Full Text)
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Opinion issued July 23, 2009
seal.gif
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00324-CV
CRYSTAL CASSIDY, THE AMERICAN ACADEMY OF EMERGENCY
MEDICINE, THE TEXAS ACADEMY OF EMERGENCY MEDICINE, AND
RICHARD J. YBARRA, Appellants
V.
TEAMHEALTH, INC., TEAMHEALTH, P.A., MEMORIAL HERMANN
HEALTHCARE SYSTEM, ACS PRIMARY CARE PHYSICIANS SOUTHWEST,
P.A., AND TEAMHEALTH WEST, Appellees
On Appeal from the 80th District Court
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Harris County, Texas
Trial Court Cause No. 2007-39019
MEMORANDUM OPINION
Appellants, Dr. Crystal Cassidy, The American Academy of Emergency
Medicine (“AAEM”), The Texas Academy of Emergency Medicine (“TAEM”), and
Dr. Richard J. Ybarra, challenge the trial court’s order granting the pleas to the
jurisdiction of appellees, TeamHealth, Inc. (“TeamHealth”), TeamHealth, P.A.,
Memorial Hermann Healthcare System (“Memorial”), ACS Primary Care
Physicians Southwest, P.A. (“ACS”), and TeamHealth West, in appellants’ suit for
declaratory judgment. In four issues, appellants contend that the trial court
erred in granting appellees’ pleas to the jurisdiction, not giving appellants an
opportunity to cure any pleading deficiencies by amending their petition,
denying appellants an opportunity to present testimony from four witnesses,
and admitting affidavits offered by appellees as evidence that appellants lack
standing.
We affirm.
Factual and Procedural Background
Cassidy and Ybarra both practice emergency medicine in emergency
rooms in Memorial hospitals located in Harris County. AAEM is a “ national
professional society representing over 5,000 specialists in emergency medicine
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throughout the country, including in Texas.” TAEM “
is the Texas Chapter of AAEM. ”
In this suit, appellants allege that appellees “ have engaged in and continue to engage in
the unlawful corporate practice of medicine in violation of the Medical Practice Act.”
Appellants assert that they have “standing and a st rong justiciable interest in”
this
declaratory judgment action because of their “duty
to protect the patient-physician
relationship ” and because “all contractual relation ships [are] tainted by” appellees ’
“unlawful corporate practice of medicine in violati on of the Medical Practice Act.”
In their petition, appellants seek a declaration that three particular agreements are
“void because they violate the corporate practice o f medicine doctrine. ” First, appellants
complain about an alleged agreement between TeamHealth and Memorial “ that allowed
TeamHealth to provide emergency department staffing and management services to
eight ” of Memorial ’s hospitals.
Second, appellants complain of a “ proposed contract
currently has privileges to provide
between Cassidy and ACS,” alleging that Cassidy “
care as an emergency department physician with Memorial ” and had been “
asked to sign
a contract with ” ACS; however, “ACS withdrew their contract offer” after Cassidy “
filed
this lawsuit seeking a declaration ” regarding her proposed contract. Third, appellants
complain of a “ fully executed contract between [Ybarra] and ACS to provide services at
one or more of the facilities associated with Memorial.” Appellants allege that ACS “
is
no more than a shell professional association being used by TeamHealth to disguise the
‘for-profit’ nature of the venture ”
and that TeamHealth has violated the Medical Practice
Act by engaging in “ such issues as peer review activities, hiring and termination of
physicians and physician duties.”
In its plea to the jurisdiction, TeamHealth contends that Cassidy, AAEM,
and TAEM are not “parties to any contract or agreement with” any of appellees
and “have no justiciable interest or standing to bring this suit against” appellees.
TeamHealth also asserts that there “is no private, civil cause of action” to
enforce the Medical Practice Act and that the Texas Legislature has provided for
enforcement “through criminal penalties and administrative regulation.” In its
supplemental plea to the jurisdiction, TeamHealth further asserts that Ybarra
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does not have standing to pursue a declaratory suit for any contract “beyond his
own contract with ACS” and he “lacks standing to assert any claim against
[appellees] for the alleged ‘corporate practice of medicine.’” Memorial also filed
a plea to the jurisdiction in which it contends that appellants “have no standing
to pursue their cause of action for declaratory judgment” and “also failed to
show that a justiciable controversy exists.”
In their response to appellees’ pleas, appellants contend that they all
have standing to bring suit and their pleadings demonstrate that a real
controversy exists “that will be resolved by the judicial relief sought, specifically
a declaratory judgment from [the trial court].” First, they assert that Cassidy has
standing even though she had “not entered into a contract with any of the
[appellees]” as she “could unwittingly be involved in the corporate practice of
medicine” and be “exposed to a claim by the Texas Disciplinary Board [or a
patient] for aiding and abetting the corporate practice of medicine.” Thus, her
“distinct interest in this matter” is that “she needs to be able to practice
medicine without fear of violating the corporate practice of medicine doctrine.”
Second, appellants assert that AAEM has associational standing to “sue on
behalf of its members.” Third, appellants assert that Ybarra “has standing to
bring suit against [appellees]” as he had “entered into a contract with ACS.”
Finally, appellants assert that they have standing because “the 14th Court of
Appeals also confirmed that Cassidy had standing” to take pre-suit depositions.
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The trial court granted appellees’ pleas to the jurisdiction and dismissed
appellants’ claims.
Subject Matter Jurisdiction
In their first issue, appellants argue that the trial court erred in granting appellees ’
pleas to the jurisdiction because appellants alleged sufficient facts in their petition to
demonstrate that they have standing sufficient to confer jurisdiction on the trial court.
They assert that “ there is a real controversy between the parties and as a result thereof,
[each appellant has] suffered a distinct injury. ”
Standard of Review
A plea to the jurisdiction seeks dismissal of a case for lack of subject-matter
jurisdiction. Tex. Dep ’t of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999). When
reviewing a trial court ’ s ruling on a plea to the jurisdiction, we construe the pleadings in
favor of the plaintiff. See Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217,
226 (Tex. 2004); Tex. Ass ’n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex.
1993). We review de novo whether, as a matter of law, the pleader’ s alleged facts, or
undisputed evidence of jurisdictional facts, affirmatively demonstrate that a trial court
has subject matter jurisdiction. See Tex. Dep’t of Parks & Wildlife , 133 S.W.3d at 226. If
the existence of jurisdictional facts is challenged, a court must consider relevant
evidence submitted by the parties when necessary to resolve the jurisdictional issues
raised. Id. at 227. If the relevant evidence is undisputed or fails to raise a fact question
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on the jurisdictional issue, the court considers the plea as a matter of law. Id. at 228. If
the evidence creates a fact question regarding the jurisdictional issue, then the plea
cannot be sustained. Id. at 227 –28.
Standing
In an action for declaratory relief, a plaintiff must allege facts that affirmatively
demonstrate that the trial court has subject matter jurisdiction. Tex. Ass ’n of Bus. , 852
S.W.2d at 446; City of Pasadena v. Smith, 263 S.W.3d 80, 86 (Tex. App. — Houston [1st
Dist.] 2006, pet. denied). Both standing and ripeness are components of subject matter
jurisdiction. E.g. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000). In
regard to standing, the focus is on who may bring an action, and, in regard to ripeness,
the focus is on when that action may be brought. Id.
Standing “requires that the controversy a dversely affect the party seeking review. ”
McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 234 (Tex. 2001). In a standing
analysis we focus on whether the “ party has a sufficient relationship with the lawsuit so
as to have a ‘justiciable interest ’ in its outcome.
” Austin Nursing Ctr. v. Lovato, 171
S.W.3d 845, 848 (Tex. 2005). A party seeking declaratory relief has a justiciable interest
in the subject matter if there is “a real controver sy between the parties ”
that will
“actually be determined by the judicial declaration sought. ” Tex. Ass ’n of Bus. , 852
S.W.2d at 446. When determining standing, we “ construe the pleadings in favor of the
plaintiff and look at the pleader’s intent. ”
Id.
The Contracts
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Here, appellants seek declarations related to three agreements: the alleged contract
between TeamHealth and Memorial, the proposed contract between Cassidy and ACS,
and the executed contract between Ybarra and ACS.
Memorial TeamHealth Contract
In regard to appellants ’ claims for declarations related to the alleged contract
between TeamHealth and Memorial, appellants would be non-contracting third parties to
any such contract.
Generally, Texas courts presume that a non-contracting, third party has no
justiciable interest in a contract. S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 306
(Tex. 2007); El Paso Cmty. Partners v. B&G/Sunrise Joint Venture, 24 S.W.3d 620, 626
(Tex. App.—Austin 2000, no pet.);
Imco Oil & Gas v. Mitchell Energy Corp., 911
S.W.2d 916, 920 (Tex. App.— Fort Worth 1995, no writ). A third party may have an
interest in a contract made between other parties only if the parties intended to secure
some benefit to that third party, and only if the parties entered into the contract directly
for the third party ’s benefit. Lomas, 223 S.W.3d at 306. The intent to confer a direct
benefit upon a third party must be clearly and fully indicated in the contract, and courts
presume that a non-contracting party is not a third-party beneficiary. Id.
Here, regarding Cassidy and Ybarra, appellants allege that their direct interest in
the case arises from their concern that the Memorial Teamhealth contract violates the
Medical Practice Act. However, appellants do not allege that either Cassidy or Ybarra is
a party to the Memorial TeamHealth contract. Nor do appellants allege that the parties to
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the Memorial TeamHealth contract intended to confer a direct benefit on either Cassidy
or Ybarra. See id. Thus, we conclude that Cassidy and Ybarra do not have standing to
seek a declaratory judgment regarding the Memorial TeamHealth contract.
In regard to AAEM and TAEM, we note that an association claiming to have
associational standing to seek declaratory relief as a third party to a contract must show
that: (1) its members have standing to sue on their own behalf, (2) the interests the
organization seeks to protect are germane to the organization’ s purpose, and (3) neither
the claim nor the relief requested requires the participation of individual members in the
lawsuit. Id. at 308; Tex. Ass’n of Bus. , 852 S.W.2d at 447 –48; Am. Acad. of Emergency
Med. v. Memorial Hermann Healthcare, No. 01-08-00096-CV, 2009 WL 214507, at *4
(Tex. App.—Houston [1st Dist.] Jan. 29, 2009, no pe
t.); Wilchester W. Concerned
Homeowners LDEF, Inc. v. Wilchester W. Fund, Inc., 177 S.W.3d 552, 561 (Tex. App. —
Houston [1st Dist.] 2005, pet. denied).
Here, appellants do not allege that any party to the Memorial TeamHealth contract
is a member of AAEM or TAEM. See Am. Acad. of Emergency Med., 2009 WL 214507,
at *5 (involving complaint by AAEM that agreement between TeamHealth and Memorial
violated Medical Practice Act). Additionally, appellants do not allege that the parties to
the Memorial TeamHealth contract intended to confer a direct benefit on any members of
AAEM or TAEM. Even if we were to assume, as appellants allege, that the Memorial
TeamHealth contract violates the Medical Practice Act, nothing in appellants ’ pleadings
indicates that any member of AAEM or TAEM is identified in the Memorial TeamHealth
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contract or that the Memorial TeamHealth contract requires the employment of any
AAEM member. See id.
Accordingly, we hold that appellants do not have standing to seek a declaratory
judgment on the Memorial TeamHealth contract.
Cassidy’s Proposed Contract
In regard to the “proposed contract betwe en Cassidy and ACS, ” appellants argue
that Cassidy “clearly meets the standards for demon strating standing” and that AAEM
has standing to seek declaratory relief because Cassidy is a member of AAEM.
The Uniform Declaratory Judgment Act ( “DJ A ”) provides that a person who is
“interested under ” a written contract may seek a de
termination of “ any questions of
construction or validity arising under” the written contract. TEX. CIV. PRAC. & REM.
CODE ANN. § 37.004 (Vernon 2008). However, a valid, written contract does not exist
unless there is an offer and an acceptance. Beverick v. Koch Power, Inc., 186 S.W.3d
145, 150 (Tex. App. —Houston [1st Dist.] 2005, pet. denied).
Here, it is undisputed that Cassidy never accepted ACS’ s offer, so there is no
existing written contract upon which a court may render a declaratory judgment. See
TEX. CIV. PRAC. & REM. CODE ANN. § 37.004; Beverick, 186 S.W.3d at 150. Because
Cassidy’ s controversy in regard to her proposed contract cannot be determined by a
judicial declaration, she does not have standing to seek a declaratory judgment.
See
Tex. Ass ’n of Bus. , 852 S.W.2d at 446– 47 (reciting general test of standing as including
requirement that controversy “ will be actually determined by the judicial declaration
sought ”).
Because Cassidy has no standing to seek declaratory relief based on the proposed
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contract, AAEM also lacks associational standing to seek declaratory relief on the
proposed contract. See Lomas, 223 S.W.3d at 308 (requiring that association ’ s members
have standing to sue on their own behalf for association to have standing).
Accordingly, we hold that appellants do not have standing to seek a declaratory
judgment on Cassidy’s proposed contract.
Ybarra’s Contract
In regard to Ybarra’s contract with ACS, appellants argue that Ybarra has standing
because he has entered into a contractual relationship with ACS and is uncertain as to
how to resolve “ conflicts between what the [a]ppellees require him to do contractually
and what the applicable standard of care requires him to do professionally” and that
AAEM has standing to seek declaratory relief because Ybarra is a member of AAEM.
Unlike Cassidy, Ybarra entered into a written contract with ACS, and therefore
has an interest under the contract. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.004.
However, the existence of a contract between a plaintiff and defendant in a declaratory
judgment action does not guarantee that the plaintiff will have standing to seek
declaratory relief. See Paulsen v. Tex. Equal Access to Justice Found., 23 S.W.3d 42,
47 –48 (Tex. App.—Austin 1999, pet. denied)
(holding that plaintiff did not have
standing to seek declaratory judgment on contracts with defendant when dispute alleged
was “secondary to their desire to have ”
appellate court rule on constitutionality of
IOLTA program).
Here, appellants’ controversy with appell ees, i.e., appellees’ alleged violation of
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the Medical Practice Act by allowing TeamHealth to be involved in the “ peer review
activities, hiring and termination of physicians,” would not be resolved by judicial
declarations related to Ybarra’s contract with ACS. See Tex. Ass ’n of Bus. , 852 S.W.2d
at 446 (reciting general test of standing as including requirement that controversy “ will
be actually determined by the judicial declaration sought ”). Any controversy about
Ybarra’s contract is secondary to appellants ’
desire to have a court declare that
appellees’ conduct violates the Medical Practice Ac t. See Paulsen, 23 S.W.3d at 47.
Although appellants argue that Ybarra’s c ontract is “ void because [it] violate[s]
the corporate practice of medicine,”
they have not alleged any facts that support their
contention that Ybarra’ s contract violates the Medical Practice Act. Instead, appellees
attempt to use Ybarra ’ s contract as a means to seek a judicial declaration on whether
appellees have violated the Medical Practice Act. In their briefing, appellants admit
that “the real thrust” of their allegations is an attempt to determine “whether
the illegal corporate practice of medicine renders these contracts illegal and/or
exposes these physicians to the charge of aiding and abetting illegal conduct.”
Appellants argument shows that they are actually seeking a judicial declaration that
appellees’ conduct violates the Medical Practice Act, not that Ybarra ’s contract violates
the Medical Practice Act.
In support of their argument that they may bring a declaratory judgment action to
determine whether appellees ’ conduct violates the Medical Practice Act and renders
Ybarra’s contract void, appellants rely on Penny v. Orthalliance, Inc., 255 F. Supp. 2d
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579 (N.D. Tex. 2003). In Penny, several orthodontists sought a declaration that several
contracts that they had entered violated the Texas Dental Practices Act.
Id. at 580. The
district court held that the contracts themselves were invalid because the contracts
themselves allowed the defendant corporation “to pr actice dentistry without a license. ”
Id. at 581 –83. However, unlike the Penny plaintiffs, appellants have not alleged that
Ybarra’ s contract itself violates the Medical Practice Act, instead they seek a declaration
that appellees’ conduct violates the Medical Practi ce Act.
Although appellants could
seek a declaration that Ybarra’ s contract is void because something in the contract
violates the Medical Practice Act, they cannot use Ybarra ’ s contract as a pretext to
obtain an otherwise unavailable judicial declaration that appellees ’ conduct violates the
Medical Practices Act. See Cole v. Huntsville Mem ’l Hosp. , 920 S.W.2d 364, 372– 73
(Tex. App. —Houston [1st Dist.] 1996, writ denied).
We conclude that appellants may not use the DJA to obtain indirectly what they
cannot legally obtain directly. Tex. Ass ’n of Bus. , 852 S.W.2d at 446 – 47 (reciting general
test of standing as including requirement that controversy “ will be actually determined
by the judicial declaration sought ”). The Medical Practice Act does not create a private
cause of action, and appellants may not use the DJA to create a quasi cause of action to
enforce the Medical Practice Act. See Cole, 920 S.W.2d at 373. Rather, violations of the
Medical Practice Act may be punished with administrative penalties and injunctive relief
imposed by the Texas State Board of Medical Examiners, civil penalties sought by the
Texas Attorney General, or criminal penalties sought by the State. See TEX. OCC. CODE
ANN. §§ 165.001–.160.
Because the controversy alleged in appellants ’ pleadings cannot be determined by
a judicial declaration on Ybarra ’ s contract, he does not have standing to seek a
declaratory judgment. See Tex. Ass ’n of Bus. , 852 S.W.2d at 446– 47 (reciting general
test of standing as including requirement that controversy “ will be actually determined
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by the judicial declaration sought”). Because Ybarra has no standing to seek this
declaratory judgment on his contract, AAEM also lacks standing. See Lomas, 223
S.W.3d at 308.
Accordingly, we hold that appellants do not have standing to seek a declaratory
judgment on Ybarra’s contract.
We overrule appellants ’ first issue.
Opportunity to Cure Pleadings
In their second issue, appellants argue that they “were wrongfully denied
an opportunity to replead” because their “pleadings do not affirmatively
demonstrate incurable defects in jurisdiction.” Appellants contend that “before
dismissing this case” the trial court “should have permitted [appellants] to
amend their pleadings.”
If the pleadings do not contain sufficient facts to affirmatively
demonstrate the trial court’s jurisdiction, but do not affirmatively demonstrate
incurable defects in jurisdiction, the issue is one of pleading sufficiency and the
plaintiffs should be afforded the opportunity to amend. Tex. Dep’t of Parks &
Wildlife, 133 S.W.3d at 226–27. If the pleadings affirmatively negate the
existence of jurisdiction, then a plea to the jurisdiction may be granted without
allowing the plaintiff’s an opportunity to amend. Id. Although plaintiffs should
generally be allowed amend totheir pleadings while their case is pending before
a trial court, they may forfeit this opportunity through inaction. See Kassen v.
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Hatley, 887 S.W.2d 4, 13–14 n.10 (Tex. 1994) (stating that plaintiffs waived
complaint by not requesting opportunity to amend their pleadings after
challenged by opposing party); Haddix v. Am. Zurich Ins. Co., 253 S.W.3d 339,
347 (Tex. App.—Eastland, 2008, no pet.) (same); Dahl ex rel. Dahl v. State, 92
S.W.3d 856, 862 n.6 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (noting
that by not seeking leave to amend pleadings plaintiffs had arguably “waived
the claim the trial court erred in not allowing them time to amend”).
In April 2008, after the trial court had granted appellees’ pleas to the
jurisdiction, appellants filed a motion for new trial contending, in part, that the
trial court “should have permitted [appellants] to amend their pleadings.”
However, nothing in the record indicates that appellants attempted to amend
their pleadings or requested that they be allowed to amend their pleadings. Nor
does the record show that the trial court denied appellants such an opportunity.
Appellants did amend their petition in October 2007, adding Ybarra as a plaintiff.
In the following five months, before the trial court granted appellees’ pleas to
the jurisdiction, appellants did not amend or attempt to amend their pleadings.
Additionally, although appellants complained in their motion for new trial that
they should be allowed to amend their pleadings, they did not present the trial
court with any proposed amendments. Likewise, on appeal, appellants have not
described any proposed amendments that would affect their standing.
Accordingly, we hold that appellants have waived the opportunity to amend
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their pleadings by not attempting to amend their pleadings at the trial court
when they had the opportunity to do so.
We overrule appellants’ second issue.
Unconsidered Evidence of Jurisdictional Facts
In their third issue, appellants argue that the trial court erred in granting
appellees’ pleas to the jurisdiction because it did not first giving each appellant
“an opportunity to present evidence from four (4) live witnesses on the subject
of certain disputed jurisdictional facts.”
On February 29, 2008, the trial court held a hearing on appellees’ pleas
to the jurisdiction and allowed appellants to offer evidence relevant to whether
the trial court had subject matter jurisdiction over appellants’ claims for
declaratory relief. At the hearing, appellants requested that the trial court
consider live testimony in the following exchange:
[Appellants’ Counsel]:I would like to
call to the witness stand Dr. Crystal
Cassidy and after we are done with Dr.
Cassidy I would like to call Dr. Tom
Scaletta, and when we are done with
Dr. Scaletta I would like to call Dr.
Larry Wise, and those three witnesses
are the live witnesses that I would offer
for today’s testimony.
[TeamHealth’s Counsel]:I view that as
a matter of Your Honor’s discretion. I
don’t think it requires any input from
us.
[Trial Court]:True?
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[Memorial’s Counsel]:True.
[Trial Court]:Okay. And I don’t see it as
necessary for purposes of proceeding
that I can do it fully from the exhibits
that have been admitted as well as the
very extensive motions and exhibits
attached thereto and responses replies.
Alright, what else?
[Appellants’ Counsel]:That concludes
our evidentiary presentation.
Although appellants contend in their briefing that the trial court erred in
not allowing them to present four witnesses, appellants only asked the trial
court to consider testimony from three witnesses: Cassidy, Tom Scaletta,
and
Larry Wise.
Appellants assert that the testimony of these witnesses would
have supported appellants’ “opposition to the [a]ppellees’ [p]leas” to the
jurisdiction. Although appellants do not clearly explain how this testimony would
have undermined appellees’ pleas to the jurisdiction, they imply that the
testimony would have been relevant to refute “an affidavit [that] was submitted
denying that [a]ppellants Cassidy and AAEM had any contractual or business
relationship with [a]ppellees ACS or TeamHealth.”
When a plea to the jurisdiction challenges a plaintiff’s pleadings, we
determine whether the pleader has alleged facts that affirmatively demonstrate
the trial court’s subject matter jurisdiction. Tex. Dep’t of Parks & Wildlife, 133
S.W.3d at 226. We construe the pleadings liberally in favor of the pleader. Id. If
a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial
court is required to consider relevant evidence submitted by the parties. Id. at
227.
Here, appellees, in their pleas to the jurisdiction, did not challenge the
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existence of jurisdictional facts pleaded by appellants. Instead, appellees
contend that the facts alleged by appellants in their pleadings affirmatively
demonstrate that they do not have standing to seek declaratory relief. Having
already concluded that the facts alleged in appellants’ pleadings do not establish
that they have standing, we further conclude that the trial court was not
required to consider testimony from appellants’ three witnesses. Accordingly, we
hold that the trial court did not err in denying appellants’ request to consider the
testimony of Cassidy, Scaletta, and Wise.
We overrule appellants’ third issue.
Admitted Affidavits
In their fourth issue, appellants’ argument, in its entirety, is that “the [t]
rial [c]ourt erred in admitting hearsay affidavits of [a]ppellees over the hearsay
objection of counsel for [a]ppellants, and the [t]rial [c]ourt compounded that
error by refusing [a]ppellants to offer [sic] sworn affidavits and/or live testimony
to rebut the hearsay contained in the affidavits.”
Appellants’ briefing on this issue is devoid of any citations to the record
or to appropriate legal authorities. See TEX. R. APP. P. 38.1(h) (“The brief must
contain clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.”). Accordingly, we hold that appellants
have inadequately briefed this issue and, thus, have waived their issue for our
review. See id.
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We overrule appellants’ fourth issue.
Conclusion
We affirm the order of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Keyes, and Higley.
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