in Re: Scott Frenkel
05-21-00194-CV
| Tex. App. | Jul 13, 2021Background
- Plaintiffs Stephen Courtney, M.D., and his practice sued multiple defendants alleging misuse of confidential patient information; one defendant, Kelly Liebbe, represented herself and was co‑represented by attorney Scott Frenkel.
- Courtney moved to compel audio recordings Liebbe claimed to possess; Liebbe invoked law‑enforcement privilege and submitted documents she said were Texas Medical Board (TMB) findings to support that claim; Frenkel signed the filing and orally told the court the documents were actual TMB findings.
- The trial court ordered TMB contacted; TMB general counsel swore the documents were not official TMB findings and had been submitted by a private citizen using TMB letterhead without authorization.
- Courtney and Carmody moved for sanctions; at a hearing Liebbe and Frenkel admitted they were unaware of inauthenticity until the TMB affidavit, and Frenkel conceded he had not investigated before making representations.
- The trial court found Frenkel made false representations, sanctioned him to pay $1,000 to the Texas Lawyers Assistance Program (TLAP) and to complete ten additional hours of ethics CLE, and denied Frenkel’s motion to defer/sever those sanctions.
- Frenkel sought mandamus; the Court of Appeals conditionally granted relief, ordering the trial court to defer both the monetary and performative sanctions until after rendition of a final, appealable judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by refusing to defer the monetary sanction until final judgment | Frenkel: immediate payment is effectively unreviewable because TLAP is not a party and cannot be compelled to return funds, leaving no adequate appellate remedy | Courtney: monetary sanction is reviewable on appeal and Braden does not mandate deferral here | Held: Abuse of discretion; monetary payment must be deferred until final judgment because appeal would not provide an adequate remedy given TLAP is not a party |
| Whether the trial court abused its discretion by refusing to defer the performative sanction (10 hrs ethics CLE) until final judgment | Frenkel: time spent on CLE is irrecoverable; ordering performance before final judgment denies meaningful appellate review under Braden | Courtney: CLE likely can be appealed before the deadline; deferral unnecessary | Held: Abuse of discretion; performative sanction must be deferred until final judgment because time spent cannot be undone on appeal |
Key Cases Cited
- Braden v. Downey, 811 S.W.2d 922 (1991) (trial court must defer monetary and performative sanctions until final judgment when immediate performance/payment would preclude meaningful appellate review)
- In re Prudential Ins. Co., 148 S.W.3d 124 (2004) (mandamus requires showing clear abuse of discretion and lack of adequate appellate remedy)
- Walker v. Packer, 827 S.W.2d 833 (1992) (trial court has no discretion in determining what the law is or in applying law to facts)
- In re Casey, 589 S.W.3d 850 (2019) (Braden is not strictly limited to its facts; courts should flexibly assess adequacy of appellate remedies)
- In re Garza, 544 S.W.3d 836 (2018) (sanctions orders under Rule 215 may be reviewed by mandamus in appropriate circumstances)