author: JOHN CAYCE, Chief Justice.

text:
    PLEASANT GLADE ASSEMBLY OF GOD, Reverend Lloyd A. McCutchen, Rod Linzay, Holly Linzay, Sandra Smith, Becky Bickel, and Paul Patterson, Appellants, v. Laura SCHUBERT, Appellee.
    No. 2-02-264-CV.
    Court of Appeals of Texas, Fort Worth.
    Sept. 15, 2005.

      Law Office of David M. Pruessner, David M. Pruessner, Dallas, for Appellants.
    Douglas, Wuester & Stenholm, P.C., William 0. Wuester, Fort Worth, for Ap-pellee.
    PANEL A: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
   OPINION ON REHEARING

JOHN CAYCE, Chief Justice.

Introduction

This is an appeal from a judgment against Pleasant Glade Assembly of God church, two of its pastors, and several church members based on a jury verdict in favor of a former church member, Laura Schubert, for assault and battery and false imprisonment. In ten issues, appellants assert they should not be held liable for Laura’s damages because they were acting in loco 'parentis and as Good Samaritans. They also complain that the damages awarded by the jury were not foreseeable and that the trial court improperly admitted medical evidence concerning Laura’s post-traumatic stress disorder (PTSD). Finally, appellants contend that the judgment should be reversed because there is no clear and convincing evidence, as required by the First Amendment, that they acted with malice.

We reverse and render in part and affirm in part.

Factual and Procedural Background

On Saturday, June 8, 1996, Tom and Judy Schubert went out of town for a long weekend, leaving their three teenage children home alone. The Schuberts left their oldest child, nineteen-year-old Amy, in charge. While the Schuberts were away, their middle child, seventeen-year-old Laura, spent much of her time at the family’s church, Pleasant Glade Assembly of God, participating in church-related activities. Laura collapsed following the evening service on Sunday, June 9, and several church members, including appellants, felt it necessary to physically restrain her. The evidence concerning the restraint and the events that followed is hotly contested.

The record shows that, after her collapse, Laura clenched her fists tightly, gritted her teeth, foamed at the mouth, made guttural noises, cried, yelled, kicked, sweated, and hallucinated. The parties sharply disagree, however, over whether these things were the cause, or the result, of appellants’ attempts to restrain her. The parties also disagree over the amount of force used to restrain Laura and whether she was restrained for minutes or hours.

There is evidence that Laura’s collapse and her reaction to being restrained could have been due to the medical condition hypoglycemia. Appellants did not know this at the time, however, and some of them believed that Laura’s actions were a dramatic ploy for attention from members of the church’s youth group. None of appellants sought medical attention for Laura, and there is conflicting evidence concerning whether any of them attempted to check her vital signs or determine whether she was feeling all right. Appellants testified at trial, however, that they had acted solely out of a desire to help Laura, not hurt her, and that they had no feelings of ill will or malice towards her.

Following the Sunday episode, the next two days passed uneventfully. Laura continued to participate in church-related activities, such as Vacation Bible School and preparing for youth drama productions. Tom and Judy Schubert returned home late Tuesday afternoon.

On Wednesday evening, Laura attended the church’s weekly youth service. Rod Linzay, the church’s youth pastor, was in charge of the service. At the close of the service, Laura began to act in a manner that Linzay and the youth group believed indicated that she was having another episode like that of the previous Sunday night. At some point, Laura began thrashing about on the floor. Once again, there is conflicting evidence about whether this was the cause or the result of appellants’ attempts to restrain her, as well as about how long the restraint lasted and the amount of force used.

The church’s senior pastor, Lloyd McCutchen, was summoned and told that “Laura is doing it again.” At the prompting of Gene Schacterle, a visiting pastor, McCutchen eventually telephoned Tom Schubert. Laura’s parents drove to the church to get her, where they found her in a condition that Tom described as “dazed.” They took Laura to a restaurant for a meal and then drove home. Both Laura and her parents testified that Laura suffered carpet burns, a scrape on her back, and bruises on her wrists and shoulders as a result of her experiences. Laura’s parents did not, however, seek medical attention for her physical injuries.

By June 21, Laura had begun to experience nightmares about her experiences at the church. In late June 1996, she first visited a counselor. In addition, although Laura had been attending public school before the summer of 1996, she became anxious and left school on the first day of her senior year in August 1996. She was authorized to complete her senior year of high school at home. Also, while at work in late October 1996, Laura cut her wrists, although not badly, with a box cutter after seeing her overwhelming work schedule. She also reported that she had become depressed and suicidal because of the June 1996 events at the church.

In November 1996, Laura was first diagnosed as suffering from post-traumatic stress disorder (PTSD). By May 1997, several other doctors had also made this diagnosis and a diagnosis of acute stress disorder. Several of Laura’s doctors testified at trial and opined that Laura’s PTSD was caused by her being held down physically at the church in early June 1996.

Between the fall of 1996 and the time of trial, Laura saw many different counselors, psychologists, and psychiatrists and, on a number of occasions, was admitted to psychiatric institutions for several days. She suffered a variety of symptoms, including angry outbursts, weight loss, sleeplessness, nightmares, hallucinations, self-mutilation, fear of abandonment, and agoraphobia. She was also classified as “disabled” by the Social Security Administration and began drawing a monthly disability check.

Laura eventually sued appellants for, among other things, assault and battery and false imprisonment. In defense to the suit, appellants claimed that they were immune from liability under the in loco par-entis doctrine and because they acted as Good Samaritans. In addition, appellants contended that under the First Amendment to the United States Constitution and article I, section 6 of the Texas Constitution Laura should be required to prove by clear and convincing evidence that appellants acted with malice. Appellants also asserted that they should not be held responsible for Laura’s damages because they were not foreseeable.

The case was tried to a jury. At the close of the evidence, appellants moved for a directed verdict on their defenses and on the ground that there was no evidence that Laura’s damages arising from her PTSD were foreseeable as a result of appellants’ conduct. The motion was overruled. Appellants then requested jury instructions on their defenses and on the question of foreseeability as it related to Laura’s damages, all of which the trial court denied.

The jury found appellants liable for assault and battery and false imprisonment and awarded Laura damages for past physical pain and mental anguish in the sum of $150,000, past and future loss of earning capacity in the sum of $122,000, and past and future medical care in the sum of $28,000, for a total recovery of $300,000. After the trial court overruled appellants’ motion for judgment notwithstanding the verdict, this appeal followed.

In Loco Parentis

In their first issue, appellants complain that the trial court improperly denied their motions for a directed verdict and for judgment notwithstanding the verdict based on in loco parentis. They assert that they are immune from liability for Laura’s assault and battery and false imprisonment claims because they stood in loco parentis as to Laura during the June 1996 incidents and acted with the “reasonable belief’ that their actions were necessary to restrain her. In the alternative, appellants assert that the trial court erroneously refused to submit their proposed jury instruction on in loco parentis.

“In loco parentis ” literally means “in the place of a parent” and refers to “acting as a temporary guardian or caretaker of a child, taking on all or some of the responsibilities of a parent.” In Texas, in loco parentis status has been conferred on persons and entities who have voluntarily assumed parental responsibilities and attempted to create a homelike environment for the child. “[0]ne who through kindness or charity or other motive has received into his family and treats a child as a member thereof, stands in loco parentis ... so long as the child remains in his family.” The defining characteristics of in loco parentis are the actual care and custody of a child by a nonparent who assumes parental duties because the parent — generally due to his or her absence — is unable or unwilling to care for the child. A person who has only a temporary responsibility for supervising a child, however, is not deemed to be in loco parentis as to the child.

In this case, appellants assert that they stood in loco parentis as to Laura on the occasions in question because Tom and Judy Schubert had entrusted them with Laura’s care while the Schuberts were out of town; the church’s youth pastor, Rod Linzay, and his wife Holly, regularly “played a parental role with respect to the youth group”; and other church members assumed parental responsibilities for Laura, which Tom Schubert testified that he expected. These are, however, merely temporary supervisory situations; they are not the types of circumstances that give rise to the in loco parentis status.

Further, the record shows that Laura was primarily responsible for her own care and was not in the custody of anyone in particular while the Schuberts were out of town. Although Laura’s parents left Amy “in charge” and also expected Laura to spend much of her time at the church, Laura was responsible for her own meals and getting herself to and from her retail job and church-related activities. She also stayed at night in her own home, sometimes -with a friend, unsupervised by any adults. Thus, the defining characteristics of in loco parentis — actual care and custody — are not present in this case.

The authorities on which appellants rely are inapposite because they involve either the teacher-pupil relationship or defenses to criminal prosecution — neither of which is present here. The teacher-pupil relationship is statutorily defined and is limited to professional employees of a school district. Moreover, the fact that conduct is justified under the penal code does not abolish or impair any remedy for the conduct that is available in a civil suit.

Because appellants did not stand in loco parentis as to Laura, the trial court did not err by overruling their requests based on this doctrine. Accordingly, we overrule appellants’ first issue.

Good Samaritan

In their second issue, appellants contend that the trial court erred by denying their motion for a directed verdict based on the Good Samaritan statute. This statute provides that a person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully and wantonly negligent. It is designed to offer protection to persons who voluntarily administer emergency care.

Appellants contend that they administered emergency care to Laura because there is evidence that her collapse following the Sunday evening service was due to a hypoglycemic attack. Appellants’ position is contradicted, however, by their trial testimony that they moved Laura from the church sanctuary, where she had collapsed initially, to a Sunday School room because they believed her actions were a dramatic ploy for attention from other members of the youth group. Several of the appellants testified that they wanted to remove Laura from the “audience” that was forming in the main sanctuary. Moreover, there is no evidence that any emergency continued after appellants moved Laura from the sanctuary to the Sunday School room.

In addition, the record does not show that appellants believed the Wednesday evening episode involved an emergency. When McCutchen was summoned on Wednesday evening while Laura was being restrained, he simply put his hand on her forehead, played a tape of music to calm things down, and eventually telephoned her father.

A directed verdict is proper only in limited circumstances: (1) when the evidence conclusively establishes the right of the movant to judgment or negates the right of the opponent; or (2) when the evidence is insufficient to raise a material fact issue. We hold that appellants did not conclusively establish their right to a directed verdict based on the Good Samaritan statute. Accordingly, we overrule appellants’ second issue.

Foreseeability of Damages

In their third issue, appellants contend that the trial court erred by denying their request for a directed verdict on the issue of mental anguish and loss of earning capacity damages because there is no evidence that those damages were foreseeable. Alternatively, appellants contend that the trial court erred by refusing to instruct the jury that Laura’s damages were limited to those that were foreseeable.

At common law, actual damages are either “direct” or “consequential.” In the case of intentional torts such as assault and battery and false imprisonment, the wrongdoer is responsible for the direct and immediate damages resulting from the tort regardless of whether those damages were contemplated, foreseen, or expected. Direct damages, also known as “general” damages, flow naturally and necessarily from the wrong and compensate the plaintiff for the loss that the defendant is conclusively presumed to have foreseen as a result of his wrongful act.

Consequential or “special” damages, on the other hand, result naturally but not necessarily from the defendant’s wrongful acts. Unlike direct damages, consequential damages are not presumed to have been foreseen; instead, they must be premised upon a finding that the damages were proximately caused by the defendant’s wrongful conduct.

Proximate cause requires proof of foreseeability. An injury is foreseeable if its general character might have been reasonably anticipated. “Even an intentional wrongdoer has no liability for remote consequential injuries that could not have been reasonably anticipated as a probable result of his acts.”

Mental anguish damages shown to have resulted directly from some types of intentional torts, such as assault and battery, are recoverable regardless of their foreseeability. The rationale for this rule is that the traditionally recognized “problems of foreseeability and genuineness are sufficiently mitigated” because “the high level of culpability [associated with these torts] affects the determination of proximate cause ... and makes it just that the defendant should bear the risk of any overcompensation that an award of mental anguish damages in a particular case might entail.”

In this case, there is evidence that Laura’s mental anguish resulted directly from appellants’ intentional acts. Several of Laura’s experts, Drs. Roger Pentzien, Arthur Swen Helge, and Millie Carol As-tin, testified that Laura suffered from PTSD and major depressive disorder, which were caused by her being held down physically at the church on two occasions in June 1996 when she was exhausted and unable to contact her parents. There is also evidence that Laura’s damages for past and future medical care were the natural and necessary result of appellants’ wrongful conduct. Dr. Helge tied Laura’s need for such medical care directly to her PTSD caused by the June 1996 events.

Because there is evidence that Laura’s mental anguish and need for medical care resulted directly from appellant’s intentional conduct, appellants are liable to Laura for these damages regardless of whether they were contemplated, foreseen, or expected. Accordingly, the trial court did not err by ruling against appellants regarding these elements of Laura’s damages.

We now turn to appellants’ complaint about Laura’s loss of earning capacity damages.

Unlike her mental anguish damages, Laura’s loss of earning capacity damages are consequential or special damages. Therefore, they must be premised upon a finding that they were proximately caused by, and a foreseeable result of, appellants’ wrongful conduct. To be held liable for Laura’s lifetime loss of earning capacity, appellants must have reasonably contemplated that their actions might have resulted in damages of this general character This cannot be established by mere conjecture, guess, or speculation.

The evidence supporting Laura’s loss of earning capacity damages shows that she could not go to Bible college and become a missionary because of the PTSD she suffered as a result of appellants’ intentional actions in holding her down on the floor on two occasions during church functions when she was a junior in high school. Based on these facts, “nothing short of prophetic ken” could have foreseen that Laura would forever lose the ability to pursue a college education and a career as a missionary as a result of appellants’ conduct. On the record before us, the only way someone could conclude that appellants might have contemplated an injury of such magnitude would be by “viewing the facts in retrospect, theorizing an extraordinary sequence of events whereby the defendants’ conduct brings about the injury.” A finding of foreseeability requires more than this.

Because there is no evidence that would support a finding that Laura’s loss of earning capacity was foreseeable, there is no evidence that appellants’ conduct was the proximate cause of Laura’s consequential damages for loss of earning capacity. Thus, the trial court erred by denying appellants’ motion for a directed verdict and awarding Laura damages for loss of earning capacity.

We sustain appellants’ third issue in part and overrule it in part.

Absence of Malice

In their fourth issue, Appellants contend that Laura is not entitled to recover mental anguish damages or the resulting expenses for her medical care under City of Tyler, because appellants did not act with malice or intend to cause Laura’s injuries. Appellants’ rebanee on City of Tyler is, however, misplaced. In City of Tyler, the supreme court said, “[M]ental anguish damages are recoverable for some common law torts that generally involve intentional or malicious conduct such as ... battery.” The supreme court did not hold that a plaintiff who has suffered an intentional tort is required to prove malice in addition to the defendant’s intentional conduct or that the defendant intended to cause the plaintiffs injury, Because the jury found the requisite intent to commit the tortious conduct causing Laura’s mental anguish and other damages, neither the appellants’ good motives nor their erroneous beliefs that they were acting rightfully excuse them from liability.

We overrule appellants’ fourth issue.

Reliability of PTSD Evidence

In their fifth and sixth issues, appellants assert that the trial court improperly admitted certain medical records and expert testimony showing that Laura suffered from PTSD as a result of the events of June 1996. Appellants assert that this evidence lacks the scientific reliability required by E.I. du Pont de Nemours & Co. v. Robinson and the Texas Rules of Evidence. In particular, appellants argue that the expert opinions of Drs. Roger Pentzien, Arthur Swen Helge, and Millie Carol Astin are based on unreliable data because virtually all of the information was provided by Laura or her family, whom the record shows to be prone to exaggeration and fabrication. Appellants also contend that the opinions are unreliable because the experts faded to rule out Laura’s traumatic childhood experiences in Africa as a possible cause of her PTSD.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of opinion or otherwise. A two-part test governs whether expert testimony is admissible: (1) the expert must be qualified; and (2) the testimony must be relevant and be based on a reliable foundation.

To gauge reliability, the trial court must evaluate the methods, analysis, and principles relied upon in reaching the opinion. The trial court should ensure that the opinion comports with applicable professional standards outside the courtroom and that it will have a reliable basis in the knowledge and experience of the discipline. In determining reliability, however, the trial court does not decide whether the expert’s conclusions are correct, but only whether the analysis used to reach those conclusions is reliable.

If the foundational data underlying opinion testimony are unreliable, an expert will not be permitted to base an opinion on the data because any opinion drawn from that data is likewise unreliable. Further, an expert’s testimony is unreliable even when the underlying data are sound if the expert draws conclusions from the data based on flawed methodology-

The supreme court has crafted two approaches for determining whether expert testimony is reliable: the Robinson factors and the Gammill analytical gap test. Only the Robinson factors are at issue here. These factors include, but are not limited to (1) the extent to which the theory has been or can be tested, (2) the extent to which the technique relies upon the subjective interpretation of the expert, (3) whether the theory has been subjected to peer review and/or publication, (4) the technique’s potential rate of error, (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community, and (6) the nonjudicial uses that have been made of the theory or technique. Expert testimony that is based on research the expert has conducted independent of the litigation provides important, objective proof that the research comports with the dictates of good science.

The trial court has broad discretion to determine admissibility, and we will not reverse the trial court’s ruling absent a clear abuse of that discretion. A trial court abuses its discretion only if it acts arbitrarily and capriciously, without reference to any guiding rules or princi-pies. Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred.

The evidence concerning the reliability of Dr. Helge’s, Dr. Astin’s, and Dr. Pent-zien’s expert testimony is as follows.

Dr. Helge, a clinical and forensic psychologist, had over twenty-five years’ experience diagnosing mental diseases and disorders and had conducted seminars and published articles related to his profession. He had also testified at more than two hundred trials and given over a hundred depositions. Dr. Helge opined that Laura suffered from a dependent personality disorder and that her being touched and held down against her will on the two occasions in June 1996 when she was exhausted and not able to contact her parents were the cause of her PTSD.

Dr. Helge conceded that Laura or her family had been the source of all the information he had relied upon in making these diagnoses, either through their self-reporting to him or other mental health professionals, or Laura’s responses to the tests that he had conducted. But Dr. Helge testified that this was “the way it’s normally done” in the psychological community and pointed out that he had also reviewed Laura’s medical records and relied on the expertise of the • other experts who had interviewed her. Moreover, Dr. Helge testified that he had conducted standard psychological testing on Laura, along with a Psychiatric Diagnostic Interview (PDI-R) and a clinical interview, which were consistent with the standard and practice for clinical psychology.

Dr. Helge also listed seven specific tests that he had performed on Laura. According to Dr. Helge, the tests had been subjected to peer review, published in professional literature, accepted as valid testing instruments within the psychological community, and used in court situations. Several of the tests had been used and revised since the 1950s; others were introduced in the 1980s. He relied on the results from four of these tests, the MMPI-II, MCRI, TAT, and TSI, along with the PDI-R and Laura’s medical records from other doctors, in making his diagnoses.

Dr. Helge explained that, while psychological testing does not identify the specific incidents that caused a person’s PTSD, the tests do identify the fact that an event traumatic to an individual occurred and its characteristics. For example, Dr. Helge testified that the TAT tests a person’s feelings or attitudes about certain situations, and the TSI determines sources of situations in which the person expresses unusual symptoms of trauma at a point in time. Further, Dr. Helge explained that, although there is always a measure of subjective interpretation associated with the tests he conducted, the tests also involved objective data with objective norms.

Dr. Pentzien, a practicing neuropsychia-trist with twenty-six years’ experience, also diagnosed Laura as suffering from PTSD and major depressive disorder caused by the events of June 1996. Dr. Pentzien opined that nothing that had happened in Laura’s life before the June 1996 events, including the Schubert family’s experiences in Africa, would have caused these disorders. Dr. Pentzien stated that, due to Laura’s conflicting recounting of her history, he would want to see more information before rendering an opinion for the jury to base its verdict on. But he further testified that the rate of error for' the methodology he had used in making his diagnoses was one in ten thousand, which is generally accepted throughout the scientific community as reliable.

Dr. Astin had eight years of experience as a clinical psychologist. She specialized in trauma disorders such as PTSD, had authored articles and book chapters on PTSD, had taught courses on the psychology of victims and the assessment of PTSD, and had made numerous conference presentations on PTSD.

In May 2001, Dr. Astin diagnosed Laura as suffering from PTSD and major depression. She testified that these diagnoses had not changed after twenty-five treatment sessions and additional testing. Although she was aware of Laura’s experiences in Africa and was of the opinion that “horrible experiences” in a person’s childhood could affect her later in life, Dr. Astin opined that the cause of Laura’s PTSD and depression was related to the June 1996 incidents.

Dr. Astin testified that, in making her diagnoses, she had administered several standardized tests to Laura that are generally accepted as valid in the field of psychology for determining whether a person is suffering from PTSD and depression, and if so, with what intensity.

Further, Dr. Astin acknowledged that much of the information she used in making her PTSD diagnosis had been provided by Laura herself. But Dr. Astin listed several methods that she used to ensure that Laura — or any other patient — was not “pulling the wool over her eyes.” First, Dr. Astin relied on her clinical skills and experience. She also asked Laura to give her detailed descriptions of each of the symptoms Laura claimed to be having related to PTSD and depression (such as flashbacks, for example), so that she could determine whether Laura was actually experiencing the symptoms.

Dr. Astin explained that she had done extensive PTSD research and knew from experience that a lot of people wanted to participate in research studies for financial gain. According to Dr. Astin, these people would “overendorse,” or report very high PTSD symptom levels that were inconsistent with their behavior. Over time, Dr. Astin examined these individuals’ detailed, repeated self-reporting about their alleged symptoms and behavior to see if they were consistent with PTSD. If, based on her extensive clinical training and experience, she determined that a particular patient was overendorsing symptomology consistent with PTSD, but was not actually suffering from it, she would reject the patient from her research studies. She followed the same process with Laura during twenty-five visits and, as a result, “had no sense” that Laura was trying to he.

Finally, in addition to a regular clinical interview, Dr. Astin conducted a standardized clinical interview, known as CAPS, that, in a “very structured way” required her patients, including Laura, to provide specific, detailed information regarding each of the seventeen possible criteria for PTSD listed in the DSM-IV. She explained that the standardization meant that every clinician who administered CAPS to a patient conducted it according to the same format, thereby enabling clinicians to better determine the validity of the responses received and lending greater credence to their resulting diagnoses. Dr. Astin stated that CAPS had been developed in the 1980s as a result of research on potential PTSD sufferers by nationally and internationally known experts and peer-reviewed by experts in PTSD and trauma, some of whom had also written the DSM-IV. Dr. Astin stated that trauma experts considered CAPS to be “state-of-the art” and the “gold standard” for diagnosing PTSD or eliminating it as a diagnosis.

Appellants assert that Dr. Astin’s methodology was not rehable because it was “unusual” and “quite strange.” To support their position, appellants assert that Dr. Astin employed “an unusual form of clinical practice” that most mental health professionals do not recognize: Eye Movement Desensitization and Reprocessing (EMDR). Appellants also assert that Dr. Astin admitted she had treated so many traumatized women that she had been “vicariously traumatized” herself and .experienced PTSD symptoms. Based on our review of the record, we cannot agree with appellants’ characterization of Dr. Astin’s methodology.

First, there is no evidence that Dr. Astin employed EMDR in diagnosing Laura’s condition; instead, Dr. Astin testified that she had used this and other techniques in treating Laura. Dr. Astin testified that EMDR is a therapy technique that involves asking a person to bring up some aspect of a traumatic memory, along with the negative thoughts that have developed as a result of it, while watching the therapist’s fingers move back and forth in front of the patient’s eyes. Dr. Astin’s personal opinion, however, was that the eye movements were just a way to distract the person while thinking about the trauma, therefore making it less aversive to do so.

Dr. Astin further testified that EMDR was generally accepted in the scientific community, but remained controversial because the inventor of the technique was a controversial person. She explained that there had been little good research on EMDR at first, but that seven recent, “very well controlled studies” had shown EMDR to be highly effective. As a result, this technique had been endorsed, although not promoted, by the Society for Traumatic Stress Studies — a well-respected organization of mental health providers, including psychologists and psychiatrists, and “virtually all” of the members of the national centers for PTSD established by the federal government. Dr. Astin testified that large numbers of clinicians were now using it, and she provided the trial court with two articles about EMDR that explained why it was valid. Regarding vicarious traumati-zation, Dr. Astin acknowledged that, early in her career, she had experienced symptoms of this phenomenon, which is well recognized in the field of psychology. Dr. Astin testified that, several years before Laura became her patient, she had written an article about her experiences. She also testified that she had recognized how to prevent these feelings and symptoms, no longer had them, and had never been treated for them. Finally, Dr. Astin testified that vicarious traumatization had not affected her diagnosis of Laura in any way.

Despite all of this evidence of reliability, appellants assert that these experts’ testimony concerning Laura’s PTSD diagnosis is unreliable because the experts made the diagnosis without conducting any rate-of-incidence studies or objective medical tests, such as imaging technology or blood work, or reviewing results of similar cases of restraint. Appellants further assert that Laura’s MMPI-II score showed she was “faking bad,” that is, exaggerating her symptoms.

Appellants do not direct us to any expert testimony that these tests should have been conducted or would have assisted in a determination of the cause of Laura’s PTSD. Further, regarding rate-of-incidence studies, Dr. Helge testified that he did not know of any case studies examining the incidence of PTSD arising from Laura’s type of situation.

Regarding medical tests, Dr. Pentzien testified that a blood test and neuroimag-ing technique were available to serve as additional tools in diagnosing mental disorders. He further testified, however, that the tests had not been conducted because they were not specific enough to distinguish between particular types of disorders. In addition, Dr. Pentzien testified that the neuroimaging technique was not sufficiently standardized to be generally accepted as reliable in the field of neurop-sychiatry. Likewise, Dr. Astin testified that she knew of no literature in the field of psychotherapy that suggested a blood test or brain scan could be specific enough to reveal PTSD.

Drs. Astin and Helge conceded that Laura’s MMPI-II score showed she was “faking bad.” But they interpreted Laura’s particular score as consistent with a “cry for help,” meaning that she was embellishing her symptoms somewhat in order to be heard, not that she was claiming to have symptoms that did not exist. Dr. Pentzien testified that, while he considered the MMPI-II helpful in making a diagnosis, he was not trained in the field of psychometrics and therefore was not qualified to interpret the MMPI-II test results.

Having conducted a careful review, we conclude that, although the record shows that the methods and analyses that Drs. Helge, Astin, and Pentzien relied upon in formulating their diagnoses involved some subjective interpretation, the record also shows that these methods and analyses had a rate of error generally accepted in the scientific community as rehable, had been accepted as valid in the scientific community for decades, had been subject to extensive peer review and publication, and had been widely used for nonjudicial purposes. Accordingly, we hold that the trial court did not abuse its discretion by concluding that these experts’ opinion testimony was rehable and therefore admissible.

We overrule appellants’ fifth and sixth issues.

First Amendment

In their seventh and eighth issues, appellants complain that the trial court erred by failing to give them the benefit of certain protections against Laura’s claims under the First Amendment of the United States Constitution. Specifically, appellants contend that a clear and convincing proof of mahce requirement similar to that which the United States Supreme Court has apphed to hbel actions under the Free Speech Clause should be apphed to Laura’s claims and that the judgment against them should be reversed because the evidence conclusively establishes that they did not act with malice. In the alternative, appellants assert that the case should be remanded for a new trial because the trial court erred in refusing to submit 'jury instructions on the issue of malice and the clear and convincing evi-dentiary standard.

In a prior original proceeding, appellants sought, based on the First Amendment, a writ of mandamus ordering the trial court to dismiss all of the “religious” claims that had been brought by Laura and her parents. In the same proceeding, appellants requested that we allow Laura’s claims for assault and battery and false imprisonment “to go forward” because, in the words of appellants’ attorney of record and Reverend McCutchen stated under oath, these claims constitute “a ‘secular controversy’ and do[ ] not come within the protection of the First Amendment.” Appellants averred that “no church or pastor can use the First Amendment as an excuse to cause bodily injury to any person,” and represented that “no religious beliefs would be implicated” if Laura’s “pure ‘bodily injury’ ” claims of assault and battery and false imprisonment were litigated.

We granted the relief appellants requested and held that all of the challenged “religious” claims were barred by the First Amendment. Thereafter, trial proceeded on Laura’s assault and battery and false imprisonment claims with all of the appellants’ acquiescence.

Having obtained, in the prior mandamus proceeding, the dismissal of all but Laura’s assault and false imprisonment claims, which they swore under oath should “go forward” because they were purely secular and entitled to no First Amendment protections, appellants cannot now “play fast and loose” with the judicial system by taking the opposite position in this appeal to suit their own purposes. We therefore hold that the church and pastors are estopped from asserting in this appeal that they are entitled to First Amendment protections with regard to Laura’s assault and false imprisonment claims. Accordingly, we overrule appellants’ seventh and eighth issues.

Course and Scope of Employment

In their ninth and tenth issues, appellants contend that the trial court erred in concluding, as a matter of law, that McCutchen and Rod Linzay were acting in the scope and course of their employment during the June 1996 incidents. Appellants assert that rendition of judgment against the church absent a jury finding on this issue was improper.

Appellants have not briefed these issues. Further, appellants admit that McCutchen and Linzay “were in the course and scope of their work for the Church during the times in question.” Therefore, we overrule appellants’ ninth and tenth issues.

Conclusion

Having disposed of all of appellants’ issues, we reverse the trial court’s judgment awarding Laura $122,000 in damages for loss of earning capacity and render judgment that she take nothing on this damages claim. We affirm the remainder of the trial court’s judgment.

LIVINGSTON, J., dissents in part without opinion as to issue three.

      . Appellants are Pleasant Glade Assembly of God church, Reverend Lloyd A. McCutchen, Rod Linzay, Holly Linzay, Sandra Smith, Becky Bickel, and Paul Patterson.

      . McCutchen had not been present during the Sunday evening episode, but had been told about it.

      . Agoraphobia is the abnormal fear of being helpless in an embarrassing or inescapable situation that is characterized by the avoidance of being in public places. Merriam Webster’s Collegiate Dictionary 24 (10th ed.1994).

      . Black’s Law Dictionary 803 (8th ed.1999).

      . See McGee v. McGee, 936 S.W.2d 360, 369-70 (Tex.App.-Waco 1996, writ denied) (op. on reh’g) (holding that stepfather stood in loco parentis because he had cared for child from early childhood and was the only father child had ever known); Goetz v. Lutheran Social Serv. of Tex., Inc., 579 S.W.2d 82, 83 (Tex.Civ.App.-Austin 1979, no writ) (holding that children's home had in loco parentis status and appointing home as child’s managing conservator after parental rights were terminated); Malone v. Dixon, 410 S.W.2d 278, 285 (Tex.Civ.App.-Eastland 1966, writ ref’d n.r.e.) (concluding that orphanage stood in loco par-entis as to child after his aunt placed him there following his parents' death); Trotter v. Pollan, 311 S.W.2d 723, 729 (Tex.Civ.App.-Dallas) (deeming couple in loco parentis to child who lived for years in their home with no financial assistance from child's father and whom they voluntarily cared for and treated as their own), writ ref'd n.r.e. per curiam, 158 Tex. 494, 313 S.W.2d 603 (1958); Cantu v. S. Pac. Ry. Co., 166 S.W.2d 963, 965 (Tex.Civ.App.-Amarillo 1942, writ ref'd) (holding couple stood in loco parentis to child whose parents had committed to couple child’s care, custody, and child-rearing responsibilities from age 15 months until child's death ten years later).

      . Trotter, 311 S.W.2d at 729; accord McGee, 936 S.W.2d at 369.

      . Coons-Andersen v. Andersen, 104 S.W.3d 630, 635-36 (Tex.App.-Dallas 2003, no pet.).

      . See In re Martin, 147 S.W.3d 453, 456 (Tex.App.-Beaumont 2004, orig. proceeding) (holding that child’s uncle, who was temporarily responsible for babysitting child, was not entitled to in loco parentis status).

      . See id. & supra n. 5.

      . See Coons-Andersen, 104 S.W.3d at 635-36.

      . See Spacek v. Charles, 928 S.W.2d 88, 95 (Tex.App.-Houston [14th Dist.] 1996, writ dism’d w.o.j.); Hogenson v. Williams, 542 S.W.2d 456, 459-60 (Tex.Civ.App.-Texarkana 1976, no writ) (both involving athletic coaches and students and citing Restatement (Second) of Torts §§ 147, 150-51 (1965)).

      . See Tex. Penal Code Ann. § 9.61(b) (Vernon 2003) (providing that adult can stand in loco parentis as to child by express or implied consent of child’s parents), § 9.62(1) (providing that use of nondeadly force against a person is justified (1) if actor is entrusted with the care, supervision, or administration of the person for a special purpose, (2) when and to the degree actor reasonably believes necessary to further special purpose or to maintain discipline in a group); see also Snowden v. State, 12 Tex.Ct.App. 105, 105, 1882 WL 9200, at *2 (1882) (holding that brother who provided home and financial support to his 15-year-old sister could assert in loco paren-tis defense to criminal prosecution for shoving her).

      . See Tex. Educ.Code Ann. §§ 22.051, .0511 (Vernon Supp.2004-05).

      . See Tex. Penal Code Ann. § 9.06 (Vernon 2003); J. Hadley Edgar, Jr. & James B. Sales, 4 Texas Torts & Remedies § 50.04[1] (2005).

      . See Act of May 22, 1993, 73rd Leg., R.S., ch. 960, § 1, 1993 Tex. Gen. Laws 4194, 4194 (amended 1999, 2003) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.151(a) (Vernon 2005)).

      . Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 658 (Tex.App.-Dallas 2002, pet. denied).

      . Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000); Ray v. McFarland, 97 S.W.3d 728, 730 (Tex.App.Fort Worth 2003, no pet.); see also Tex.R. Civ. P. 268.

      . Prudential Ins. Co. of Am., 29 S.W.3d at 77; Ray, 97 S.W.3d at 730.

      . The jury awarded Laura actual damages for past physical pain and mental anguish, past and future loss of earning capacity, and past and future medical care. The damages for past physical pain and mental anguish are not segregated.

      . 5 Texas Torts & Remedies § 80.01[2] (2005).

      . See Sitton v. Am. Title Co. of Dallas, 396 S.W.2d 899, 903-04 (Tex.Civ.App.-Dallas 1965, writ ref’d n.r.e.), cert. denied, 385 U.S. 975, 87 S.Ct. 501, 17 L.Ed.2d 437 (1966); Thompson v. Hodges, 237 S.W.2d 757, 759 (Tex.Civ.App.-San Antonio 1951, writ ref’d n.r.e.).

      . 5 Texas Torts & Remedies § 80.01[2][a].

      . Id. § 80.01[2][b],

      . See Airborne Freight Corp., Inc. v. C.R. Lee Enters., Inc., 847 S.W.2d 289, 295 (Tex.App.-El Paso 1992, writ denied) (discussing consequential damages in context of common law fraud cause of action).

      . Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992); see also Clark v. Waggoner, 452 S.W.2d 437, 438 (Tex.1970) ("In our State the two elements of proximate cause are cause in fact and foreseeability.”).

      . Boys Clubs of Greater Dallas, 907 S.W.2d at 478; Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 551 (Tex.1985).

      . See Phillips v. Latham, 523 S.W.2d 19, 27 (Tex.Civ.App.-Dallas 1975, writ ref'd n.r.e.) (holding mental anguish damages too remote to recover on basis of intentional tort claim for civil conspiracy); Sitton, 396 S.W.2d at 903-04 (same).

      . See Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex.1967) (holding that "[p]ersonal indignity is the essence of an action for battery’ ’); Durban v. Guajardo, 79 S.W.3d 198, 206 (Tex.App.-Dallas 2002, no pet.) (holding that emotional distress is "the essence” of assault claim); see also Dillard Dep't Stores, Inc. v. Silva, 148 S.W.3d 370, 372 (Tex.2004) (affirming award of actual mental anguish damages when there was legally sufficient evidence of false imprisonment).

      . City of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex.1997); see also Fitzpatrick v. Copeland, 80 S.W.3d 297, 302 & n. 2 (Tex.App.-Fort Worth 2002, pet. denied).

      . See 5 Texas Torts & Remedies § 80.01[2][a].

      . See Sitton, 396 S.W.2d at 903-04; Thompson, 237 S.W.2d at 759.

      . See Weingartens, Inc. v. Price, 461 S.W.2d 260, 264 (Tex.Civ.App.-Houston [14th Dist.] 1970, writ ref'd n.r.e.) (“Loss of earnings and loss of earning capacity are items of 'special damages.' ”).

      . Boys Clubs of Greater Dallas, 907 S.W.2d at 477; City of Mesquite, 830 S.W.2d at 98; Airborne Freight Corp., 847 S.W.2d at 295.

      . County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex.2002). Foreseeability does not require that the exact sequence of events that produce an injury be foreseeable, but only that the general character of the damages be foreseen. Id.; Boys Clubs of Greater Dallas, 907 S.W.2d at 478; Nixon, 690 S.W.2d at 551.

      . Boys Clubs of Greater Dallas, 907 S.W.2d at 477; McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.1980).

      . See Gulf, C. & S.F. Ry. Co. v. Bennett, 110 Tex. 262, 219 S.W. 197, 198 (1920).

      . Restatement (Second) of Torts § 435(2) (1965).

      . See Boys Clubs of Greater Dallas, 907 S.W.2d at 478.

      . See id. (holding that when there is no evidence raising a fact issue on foreseeability, there is no evidence to support a finding of proximate cause); Phillips, 523 S.W.2d at 26-27 (holding that because there was no competent evidence that plaintiff's illnesses could have been reasonably foreseen, there was no causal relation between defendants' intentional acts and plaintiffs injuries).

      . Because there is no evidence to support a finding that Laura’s loss of earning capacity damages were proximately caused by appellants’ conduct, we do not reach appellants’ alternative issue regarding whether the trial court erred in failing to submit a separate damages question asking whether Laura’s loss of earning capacity was proximately caused by appellants’ conduct.

      . 962 S.W.2d at 489.

      . Id. at 495 (emphasis supplied); accord Fitzpatrick, 80 S.W.3d at 302 & n. 2 (noting that mental anguish damages are recoverable for intentional tort of battery because legal concerns regarding foreseeability and legitimacy of injury are satisfied).

      . City of Tyler, 962 S.W.2d at 495.

      . See Dan B. Dobbs, The Law of Torts § 25, at 49-50 (2001).

      . 923 S.W.2d 549 (Tex.1995).

      . Appellants also complain in passing that this evidence was inadmissible because it was not based on a reasonable medical probability. We do not address this complaint because it is not briefed. See Tex.R.App. P. 38.1(h).

      . The record contains conflicting evidence concerning whether Laura's experiences in Africa were traumatic. Some of Laura’s medical records indicate that she had seen "traumatic events” such as "beatings and burnings” while her family lived as missionaries in Africa. The record is unclear, however, whether these records are based on Laura’s or Tom Schubert’s recounting of events. Also, Tom authored two letters in 1992 and 1996, respectively, regarding the family’s alleged experiences in Africa that indicated Laura had faced "fear and danger in Africa” that “was more than any child should ever see or face.” Tom testified at trial, however, that he had exaggerated in the letters "almost to the point of lying”—once to obtain leave from Africa from the mission board due to his children’s difficulties in school and another to emphasize how the events of June 1996 had hurt Laura more deeply than her experiences in Africa. Laura denied having suffered any traumatic experiences in Africa and testified instead that Africa was "an amazing place” where she would prefer to raise her daughter.

      . Tex.R. Evid. 702.

      . Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001); Robinson, 923 S.W.2d at 556.

      . Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex.2002); Gammill v. Jack Williams Chev., Inc., 972 S.W.2d 713, 725 (Tex.1998).

      . Helena Chem. Co., 47 S.W.3d at 499; Gammill, 972 S.W.2d at 725-26.

      . Exxon Pipeline Co., 88 S.W.3d at 629; Gammill, 972 S.W.2d at 728.

      . Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex.1997).

      . Id.

      . Gammill, 972 S.W.2d at 720, 726.

      . Robinson, 923 S.W.2d at 557.

      . Id. n. 2.

      . Exxon Pipeline Co., 88 S.W.3d at 629; Helena Chem. Co., 47 S.W.3d at 499; Reed v. Granbury Hosp. Corp., 117 S.W.3d 404, 410 (Tex.App.-Fort Worth 2003, no pet.).

      . See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex.2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

      . Downer, 701 S.W.2d at 242.

      . Appellants do not challenge the qualifications Drs. Helge and Pentzie. Instead, appellants acknowledged that these doctors were qualified as experts and also designated them as their own experts regarding certain of their diagnoses concerning Laura.

      . According to Dr. Helge, a dependent personality is one that trusts another person’s judgment, rather than her own, particularly when under stress.

      . These tests are the Minnesota Multiphasic Personality Inventory-2, Millón Clinical Mul-tiaxial Inventory-Ill, Thematic Apperception Test, and Traumatic Symptom Inventory, respectively.

      . Dr. Pentzien believed Tom Schubert had embellished the family’s situation in Africa because he was concerned about Laura’s lack of adjustment. Dr. Pentzien also discounted Laura's Africa experiences as a source of her PTSD because she had adjusted well academically, socially, and physically and had behaved "totally independently” after the family’s return to the United States in late 1992, about three-and-a-half years before the June 1996 incidents.

      .Although they did not object to Dr. Astin’s qualifications at trial, appellants assert that her testimony is not reliable because her credentials are suspect. Appellants’ attacks on Dr. Astin’s credentials are not supported by the record.

      . CAPS stands for Clinician Administered PTSD Scale.

      . The DSM-IV is the Diagnostic Statistical Manual, 4th Revision.

      . Dr. Astin explained that "endorsing” meant STSS had concluded there was good evidence EMDR was effective, while "promoting” would have including prompting from STSS to use the treatment.

      . See TexR.App. P. 38.1(h); Hall v. Stephenson, 919 S.W.2d 454, 466 (Tex.App.-Fort Worth 1996, writ denied) (both providing that appellant has duty to provide appellate court appropriate citations to record).

      . Psychometrics is the testing and interpretation of psychological tests.

      . See Robinson, 923 S.W.2d at 557.

      . See Carpenter, 98 S.W.3d at 687; Exxon Pipeline Co., 88 S.W.3d at 629; Helena Chem. Co., 47 S.W.3d at 499; Downer, 701 S.W.2d at 241-42. In light of this holding, we need not consider appellants’ complaint that the trial court summarily overruled their objection to the admission of Laura's medical records from nontestifying experts regarding their PTSD diagnoses. Such evidence, even if improperly admitted, would have been cumulative and would not have caused the rendition of an improper judgment. See Tex.R.App. P. 44.1(a).

      .The Free Exercise Clause to the First Amendment provides, "Congress shall make no law ... prohibiting the free exercise” of religion. U.S. Const, amend. I. Appellants also assert a claim under the Free Worship Clause, article I, section 6 of the Texas Constitution, but they do not argue that the Texas Constitution affords them different or greater protection than the First Amendment.

      . See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 763, 105 S.Ct. 2939, 2947, 86 L.Ed.2d 593 (1985) (indicating that damages in defamation cases involving matters of public concern are not presumed absent showing of actual malice); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80, 285-86, 84 S.Ct. 710, 726, 729, 11 L.Ed.2d 686 (1964) (applying actual malice and heightened evi-dentiary standard to free speech cases involving governmental officials); see also Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000) (applying same to public figures). Malice is not an element of the intentional torts of assault and battery or false imprisonment under current Texas law. See Wal-Mart Stores v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002); Baribeau v. Gustafson, 107 S.W.3d 52, 60 (Tex.App.-San Antonio 2003), cert. denied, — U.S. —, 125 S.Ct. 272, 160 L.Ed.2d 118 (2004); Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 134 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

      . See In re Pleasant Glade Assembly of God, 991 S.W.2d 85, 87-88 (Tex.App.-Fort Worth 1998, orig. proceeding).

      . Appellants have asked us to take judicial notice of our records in the original proceeding. A court may take judicial notice of its own records, see Brown v. Brown, 145 S.W.3d 745, 750 (Tex.App.-Dallas 2004, pet. denied), and such notice is mandatory if a party requests it .and supplies the necessary information. See Tex.R. Evid. 201(d).

      . Pleasant Glade Assembly of God, 991 S.W.2d at 87, 90.

      . For example, before trial began, appellants' counsel responded “Okay” to the trial court's ruling that neither side would be allowed to put on evidence about appellants' religious practices as a reason for Laura's restraint. The trial court also instructed the jury at the beginning of trial that, because the suit involved a church, the First Amendment would bar the parties from explaining why certain things were said and done during the June 1996 incidents. Appellants did not object to this instruction. Likewise, when the trial court instructed various witnesses not to mention religious matters, such as prayer, or instructed the jury to disregard testimony concerning religious matters, appellants did not object to these rulings. In addition, at appellants’ request, the trial court instructed one of Laura's expert witnesses to refrain from referring to all issues of faith or religious activity that may have been connected with the June 1996 incidents.

      . Andrews v. Diamond, Rash, Leslie & Smith, 959 S.W.2d 646, 649 (Tex.App.-El Paso 1997, pet. denied); see also Long v. Knox, 155 Tex. 581, 291 S.W.2d 292, 295 (1956).

      . Whether appellants’ actions are labeled as waiver or judicial estoppel is immaterial. See Jernigan v. Langley, 111 S.W.3d 153, 156-57 (Tex.2003) (noting that waiver is defined as "an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right"); Long, 291 S.W.2d at 295 ("Under the doctrine of judicial estoppel ... a party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary to the assertion sought to be made.”). What is clear is that courts, faced with burgeoning dockets, are entitled to rely on prior sworn statements of parties and counsel such as those in this case. See Ergo Sci. Inc. v. Martin, 73 F.3d 595, 599-600 (5th Cir.1996); see also Cleaver v. Cleaver, 140 S.W.3d 771, 774-75 (Tex.App.-Tyler 2004, no pet.) (stating that, under federal law, judicial estoppel does not require a prior sworn statement, but only that party successfully maintained an affirmative position in a prior proceeding that is contrary to the position it now seeks to invoke).

      . On rehearing, Smith, Bickel, and Patterson (collectively, the church members) argue that they are entitled to First Amendment protection because they did not participate in the prior mandamus proceeding. The church members have, however, waived their right to assert this affirmative defense because they did not establish in the trial court that their assault and imprisonment of Laura was based on their sincerely held religious beliefs. See Tilton v. Marshall, 925 S.W.2d 672, 677-78 (Tex.1996) (orig.proceeding) ("Before a court can determine whether a law ... substantially burdens one’s free exercise rights [and entitles the person to First Amendment protection], the individual must establish by a preponderance of the evidence that the beliefs avowed are not only religious in nature, but sincerely held.”). To the contrary, the church members each testified that their conduct arose from their belief that Laura’s actions were a ploy for attention from other members of the youth group. The church members’ reliance on McCutchen's pretrial affidavit concerning some of their denomination’s religious beliefs is misplaced. The affidavit does not establish by a preponderance of the evidence that the church members themselves sincerely held those beliefs or that their conduct in this case was based on those beliefs. See id.

        .See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.1994) (noting long-standing rule that point may be waived due to inadequate briefing).


source: Caselaw Access Project

author:
KEM THOMPSON FROST, Justice.
      CHARLES W. SEYMORE, Justice,

license: Public Domain

text:
    In re CHOICE HOMES, INC., Micky May, and James B. White.
    No. 14-04-01008-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 30, 2005.

      Edward L. Friedman, Gretchen Susanne Agena, S. Shawn Stephens, Scott Kneeland Davidson and Tara Beaudoin Hittelman, Houston, TX, for Appellants.
    Howard T. Dulmage, James L. Ware and Joseph A. Garnett, Houston, TX, for Appellees.
    Panel consists of Justices FROST, SEYMORE, and GUZMAN.
   MAJORITY OPINION

KEM THOMPSON FROST, Justice.

In this mandamus proceeding, the rela-tors, a homebuilding company, one of its current employees, and a former employee, seek a writ of mandamus compelling the Honorable David E. Garner, judge of the 10th Judicial District Court of Galveston County, to compel to arbitration certain claims asserted by two former employees in the underlying litigation. Concluding that the homebuilding company lacks standing, we dismiss the petition as to its request for mandamus relief. Concluding that the arbitration agreement covers the claims in question, we conditionally grant the mandamus relief sought by the other two relators.

I. BACKGROUND

The real parties in interest, Carl M. Bright and Dennis J. Czajka, are former employees of relator, Choice Homes, Inc., and are the plaintiffs in the underlying case. They brought suit against Choice Homes, its current employee, Micky May, and two of the company’s former employees, James B. White and David A. Roskos. The plaintiffs contend that they were wrongfully terminated or constructively terminated from their employment at Choice Homes. They assert claims based on alleged statutory and common law wrongful termination, fraud, negligent misrepresentation, breach of contract, uncon-scionability, promissory estoppel, reformation/quantum meruit, unjust enrichment, tortious interference, negligence, defamation, invasion of privacy by disclosure of private facts, intentional infliction of emotional distress, and civil conspiracy. All four defendants filed a motion to compel arbitration, arguing that all of the claims asserted are subject to arbitration under two identical written arbitration agreements the plaintiffs signed upon their employment with Choice Homes. Under these contracts, entitled “Election and Arbitration Agreement” (hereinafter, “Arbitration Agreement”), each of the plaintiffs agreed to resolve through binding arbitration certain disputes with Choice Homes that might arise during or after their employment. The scope and enforceability of this arbitration agreement is at the heart of this mandamus proceeding.

Following a hearing, the trial court signed an order on October 21, 2004, in which it granted the motion to compel arbitration as to all claims asserted against Choice Homes and Roskos and as to some of the claims asserted against May and White. The trial court declined to compel arbitration of two groups of claims: (1) the claims against May and White in their individual capacities based on alleged defamation, invasion of privacy, and civil conspiracy alleged to have occurred outside the scope of May’s and White’s employment with Choice Homes and after the plaintiffs separation from employment with Choice Homes, and (2) the claim brought by Czajka against White in his individual capacity, alleging breach of promise relating to an alleged loan of money-

The relators filed their petition for writ of mandamus, asserting the trial court misapplied the law and abused its discretion in refusing to compel arbitration of these claims. They ask this court to issue a writ of mandamus ordering the trial judge to withdraw the October 21, 2004 order and to issue a new order compelling all claims asserted by the plaintiffs to arbitration.

II. STANDARD FOR MANDAMUS RELIEF

A writ of mandamus will issue to correct a clear abuse of discretion when there is no other adequate remedy at law. Walker v. Packer, 827 S.W.2d 838, 839 (Tex.1992) (orig.proceeding). A party seeking relief from the denial of arbitration sought under the Federal Arbitration Act (hereinafter, “FAA”) has no adequate remedy by appeal and is entitled to mandamus relief to correct a clear abuse of discretion by the trial court. In re L & L Kempwood Associates, L.P., 9 S.W.3d 125, 128 (Tex.1999) (per curiam).

A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker, 827 S.W.2d at 839. With respect to the resolution of factual issues, this means that we may not substitute our judgment for that of the trial court, even if we would have decided the issue differently. Id. at 839-40. Instead, we may not overturn the trial court’s decision unless that court reasonably could have reached only the opposite decision. See id. at 840. The relator has the burden of establishing that the trial court abused its discretion. Id. at 839.

With respect to the resolution of legal issues, however, our review is much less deferential. Id. The trial court has no discretion in determining what the law is or in applying the law to the facts. Id. Therefore, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id.

III. ANALYSIS

Does Choice Homes have standing to seek mandamus relief?

As a preliminary matter, we must determine if Choice Homes has standing to seek mandamus relief in this proceeding. The trial court’s order unambiguously states that all claims against Choice Homes, including all claims for vicarious liability, are ordered to arbitration. There is nothing in the record that would show Choice Homes has any interest in whether the claims at issue against White and May are compelled to arbitration. To have standing a party must be affected by the controversy at hand. See McAllen Med. Ctr. v. Cortez, 66 S.W.3d 227, 234 (Tex.2001). Because Choice Homes has been granted all the relief sought and will not be adversely affected if Bright’s and Czajka’s claims against White and May are not ordered to arbitration, Choice Homes lacks standing to challenge the trial court’s refusal to order these claims to arbitration. See IDS Life Ins. Co. v. SunAmerica, Inc., 103 F.3d 524, 527 (7th Cir.1996). Accordingly, we dismiss the petition for writ of mandamus as to relator Choice Homes for lack of jurisdiction.

Did the trial court abuse its discretion in failing to send all of the plaintiffs claims to arbitration?

The party seeking to compel arbitration by mandamus first must show the existence of an arbitration agreement subject to the FAA. In re J.D. Edwards World Solutions Co., 87 S.W.3d 546, 549 (Tex.2002) (per curiam). Once the party establishes such an agreement, it then must demonstrate that its claims fall within the scope of that agreement. Id. Federal policy embodied in the FAA favors agreements to arbitrate, and courts must resolve any doubts about the scope of an arbitration agreement in favor of arbitration. In re FirstMerit Bank, N.A, 52 S.W.3d 749, 753 (Tex.2001). If the arbitration agreement encompasses the claims in question and the party opposing arbitration has failed to prove its defenses, the trial court has no discretion; its only option is to compel arbitration and stay its own proceedings. Id. at 753-54.

Does an arbitration agreement subject to the FAA exist?

The parties do not dispute the Arbitration Agreement’s existence or whether the arbitration agreement is governed by the FAA. By signing the Arbitration Agreement, White and Czajka agreed to abide by its terms, which incorporate by reference Article IX of the “Choice Homes, Inc. Employee Injury Benefit Plan Summary Plan Description” (hereinafter, “the Plan Description”). The Plan Description specifically provides that the FAA will govern “the interpretation, enforcement, and all judicial proceedings under and/or with respect to the Election and Arbitration Agreement.” When parties agree to arbitrate under the FAA, they are not required to establish that the transaction at issue involves or affects interstate commerce. In re Kellogg Brown & Root, 80 S.W.3d 611, 617 (Tex.App.Houston [1st Dist.] 2002, orig. proceeding). Therefore, we conclude the Arbitration Agreement is governed by the FAA. See id.

Do the claims in dispute fall within the scope of the Arbitration Agreement?

Because the relators have established the existence of an agreement to arbitrate subject to the FAA, we next must determine whether the Arbitration Agreement covers the claims at issue. To determine whether these claims fall within the scope of the Arbitration Agreement, we focus on the factual allegations rather than the legal claims asserted. Prudential Sec. Incorp. v. Marshall, 909 S.W.2d 896, 900 (Tex.1995). When considering the Arbitration Agreement, we must give “due regard” to the federal policy favoring arbitration. Webb v. Investacorp., Inc., 89 F.3d 252, 258 (5th Cir.1996). We are to construe arbitration clauses broadly, and when a contract contains an arbitration clause, there is a presumption of arbitrability. See AT & T Tech., Inc. v. Communications Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Any doubts as to arbitrability are to be resolved in favor of coverage. In re FirstMerit Bank, 52 S.W.3d at 754. Likewise, we resolve any doubts about the scope of the Arbitration Agreement in favor of coverage. Id.

The relators contend the Arbitration Agreement covers any claim that exists or may exist in the future between any employee or former employee of Choice Homes. They argue the trial court erred in excluding some claims from arbitration. The issue of arbitrability involves legal questions of contract interpretation regarding the scope of the arbitration provision. Therefore, we construe the scope of an unambiguous arbitration agreement as a matter of law. See Kline v. O’Quinn, 874 S.W.2d 776, 782 (Tex.App.-Houston [14th Dist.] 1994, pet. denied).

The Arbitration Agreement states:

MUTUAL PROMISES TO RESOLVE CLAIMS BY BINDING ARBITRATION: I recognize that disputes may arise between the Company (or one of its affiliates) and me during or after my employment with the Company. I understand and agree that any and all such disputes that cannot first be resolved through the Company’s internal dispute resolution procedures or mediation must be submitted to binding arbitration.
I acknowledge and understand that by signing this Agreement I am giving up the right to a jury trial on all of the claims covered by this agreement in exchange for eligibility for the Plan’s medical, disability, dismemberment and death benefits and in anticipation of gaining the benefits of a speedy, impartial, mutually-binding procedure for resolving disputes.
This agreement to resolve claims by arbitration is mutually binding upon both me and the Company (and its affiliates), and it binds and benefits our successors, subsidiaries, assigns, beneficiaries, heirs, children, spouses, parents and legal representatives.
CLAIMS SUBJECT TO ARBITRATION: Claims and disputes covered by this Agreement include:
(A) all claims and disputes that I may now have or may in the future have against the Company and/or its successors, subsidiaries and affiliates and/or any of their officers, directors, shareholders, partners, owners, employees and agents, or against any Company employee benefit plan (including the Plan) or the plans administrators or fiduciaries ....

The scope of the Arbitration Agreement is broad. It covers all current and future claims and disputes that Bright and Czaj-ka have against Choice Homes and any of its employees and agents. The Arbitration Agreement states that it covers many types of claims, including but not limited to tort claims, claims for personal or bodily injury or physical, mental, or psychological injury, without regard to whether such injury was sustained on the job. The Arbitration Agreement excludes from its scope only criminal complaints and proceedings and claims before the Texas Workforce Commission for unemployment benefits, neither of which is applicable in this ease.

In their factual allegations, Bright and Czajka assert that May and White made false, defamatory statements about them. Bright and Czajka do not provide much factual support for their defamation claims, but Bright alleges that after her termination, employees and agents of Choice Homes made defamatory statements about her, accusing her of violating Choice Homes’s policies. Czajka claims employees and agents of Choice Homes, specifically White and May, made defamatory statements about him, which he claims has prevented him from finding new employment. Bright and Czajka do not describe the substance of the alleged defamatory remarks, nor do they state exactly when or to whom they were made.

Bright and Czajka also claim that White and May invaded their privacy by disclosing private information about them to third parties while and after Bright and Czajka were employed by Choice Homes. Bright claims that White has disclosed details about her termination to third parties. In asserting these claims, Bright and Czaj-ka do not describe the private information allegedly disclosed, state the reason for disclosure, or identify to whom or precisely when the information was disclosed. Based on the pleadings, it appears that the plaintiffs’ invasion-of-privacy claims are grounded on alleged disclosures relating to their employment or termination that occurred before or after the plaintiffs’ employment was terminated.

In their civil conspiracy allegation, Bright and Czajka assert that “the defendants conspired to commit tortious acts against them. They allege that the Defendants announced their plans to commit torts against Plaintiffs” and “agreed on a course of action and committed unlawful and overt acts.” These allegations are vague ’ and provide no details about the factual bases for these assertions.

In addition, Czajka alleges that, in exchange for a personal loan of $10,000 by Czajka to White, White promised to move Czajka to any of Choice Homes’s subdivisions where White served as Community Manager, if Czajka wanted to work there. Czajka bases this breach-of-promise claim on White’s alleged refusal to bring him to Galveston County as an employee of Choice Homes after White moved there. Based on Czajka’s pleadings, it appears that his breach-of-promise claim against White arose prior to his termination and relates to Czajka’s employment with Choice Homes.

In light of the Arbitration Agreement’s broad language, all of Bright’s and Czaj-ka’s factual allegations fall within the Arbitration Agreement’s scope. Czajka and White do not allege many specific facts regarding their claims for defamation, invasion of privacy, and conspiracy. The defamation and invasion-of-privacy claims seem to involve White and May allegedly commenting on the reasons why Choice Homes terminated Bright and Czajka. The civil conspiracy claims seem to address White’s and May’s alleged violations of company policy. Czajka’s breach-of-promise claim relates directly to his employment with Choice Homes. Evaluating the factual allegations in light of the broad scope of the Arbitration Agreement, we conclude that the claims in question are covered by the agreement because they are a subset of all current and future claims and disputes that Bright and Czaj-ka have against any employee or agent of Choice Homes.

The claims and disputes covered by the Arbitration Agreement include all claims and disputes Bright and Czajka had at the time of signing or might have in the future against Choice Homes or any of its employees. The record reveals that both White and May were employees of Choice Homes at the time Bright’s and Czajka’s claims accrued. As third-party beneficiaries, White and May can enforce the Arbitration Agreement.

Bright and Czajka argue that the Arbitration Agreement does not apply to the claims in question because their claims involve torts allegedly committed solely between individuals, which allegedly occurred after their employment with Choice Homes, and are based on alleged acts that were outside the course and scope of White’s and May’s employment. Bright and Czajka also contend that the tort claims at issue are not subject to the Arbitration Agreement because they do not arise out of or relate to the claims subject to arbitration and could have been maintained independently. Had they elected to do so, Bright and Czajka could have pursued these claims independently in a separate lawsuit. In the Arbitration Agreement, however, Bright and Czajka acknowledge that claims may arise “during or after” employment with the Choice Homes. The Arbitration Agreement does not require that the claims arise out of or relate to the employee’s employment or that the actions giving rise to the claims have been committed in the course and scope of May’s and White’s employment. Giving this plain language effect, all of the claims asserted by the plaintiffs fall -within the broad scope of the Arbitration Agreement.

Bright and Czajka also argue that the tort claims at issue in this mandamus action are expressly excluded from the Choice Homes, Inc. Employee Injury Benefit Plan (“Benefit Plan”). They point to a provision in the Plan Description that expressly excludes from coverage any injury “arising out of an act of a third person intended to injure the Participant because of personal reasons and not directed at the Participant as an Employee of or because of his or her employment by [Choice Homes]”. This provision, however, is an exclusion from coverage by the Benefit Plan, not from the types of claims that must be arbitrated.

Accordingly, we conclude the trial court abused its discretion by not compelling the claims in question to arbitration. See Prudential Sec., 909 S.W.2d at 900.

CONCLUSION

Because Choice Homes received all relief requested in the trial court, and will not be adversely affected if Bright’s and Czajka’s claims are not ordered to arbitration, we conclude that Choice Homes lacks standing to seek mandamus relief. Accordingly, we dismiss the petition for writ of mandamus as to relator Choice Homes for lack of jurisdiction.

We also conclude the Arbitration Agreement covers all of the claims asserted in the plaintiffs live pleadings. By failing to compel these claims to arbitration, the trial court abused its discretion. May and White are effectively deprived of their contractual right to a speedy alternative to conventional litigation and therefore lack an adequate remedy at law. Accordingly, we conditionally grant the petition for writ of mandamus as to relators May and White. We are confident that the trial judge will comply with this ruling. The writ will issue only if the trial court does not do so.

SEYMORE, J., concurring.

CHARLES W. SEYMORE, Justice,

concurring.

I concur with the majority, but write separately to express concern about the use of an Employee Injury Benefit Plan to eliminate a former employee’s right to a jury trial when pursuing legal remedies against a former fellow employee for conduct wholly unrelated to or outside the course and scope of employment. Succinctly, I would discourage future litigants from contending that the majority opinion provides authority for courts to compel arbitration under those circumstances. With this reservation, I agree with the majority that we must focus on the plaintiffs factual allegations in order to determine whether the claims fall within the scope of the arbitration agreement. Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 900 (Tex.1995). I concur with the majority because the appellate record supports the assertion that the described claims relate to circumstances surrounding plaintiffs employment relationships that occurred before or after plaintiffs were terminated. Moreover, arbitration of disputes is strongly favored under federal and state law. Id. at 898.

      . In the trial court, White and Czajka asserted the defenses of procedural and substantive unconscionability, fraud, duress, and failure of consideration. They do not assert these defenses in this proceeding. The trial court implicitly rejected these defenses and found the Arbitration Agreement to be valid and enforceable by compelling arbitration of (1) all of their claims against Choice Homes and Roskos and (2) some of their claims against White and May.


author: PER CURIAM. TOM GRAY, Chief Justice,

text:
    John David SICKLES, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00258-CR.
    Court of Appeals of Texas, Waco.
    Nov. 9, 2005.
    Bryan Frazier, Orange, TX, for Appel-lanf/Relator.
    John D. Kimbrough, Orange County District Attorney, Orange, TX, for Appel-lee/Respondent.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ORDER

PER CURIAM.

By order dated September 14, 2005, we abated this appeal for a hearing in the trial court to determine whether John David Sickles had voluntarily and intelligently waived his right to counsel in connection with a motion for self-representation he filed with this Court. See Sickles v. State, 170 S.W.3d 298 (Tex.App.-Waco 2005, order) (per curiam). Sickles has since filed a motion to withdraw his motion for self-representation. In addition, due to the damage caused by Hurricane Rita, the trial court has advised that she will not be able to conduct the contemplated abatement hearing in the foreseeable future because the Sheriffs Department is unable to keep or transport inmates.

In light of these developments, we reinstate this appeal, grant Sickles’s motion to withdraw the motion for self-representation, and notify counsel for the State that the State’s brief is due thirty days after the date of this Order.

Chief Justice GRAY concurring.

TOM GRAY, Chief Justice,

concurring.

A classic waste of resources. We could do this in a simple letter directed only to the parties so that I would not have to do a formal concurring opinion. It would be less embarrassing for the Court. And the majority knows that I cannot check off on something I do not agree with, it is simply not in my nature or my job description. So rather than easy, we do it the hard way.

Failure to Serve Motion

There are very few of our procedural rules that are clearer than Texas Rule of Appellate Procedure 9.5 regarding service. Two aspects of that rule are relevant here.

Service of All Documents Required

I would have thought there was no room for debate — service of all documents is required. Tex.R.App. P. 9.5(a). The rule states:

(a) Service of All Documents Required. At or before the time of a document’s filing, the filing party must serve a copy on all parties to the proceeding.

The motion to vacate which was obviously prepared and mailed to us by Sickles, not his lawyer, does not indicate that it was served.

Proof of Service

If a document is presented for filing, there must be evidence that it was served on opposing parties. Tex.R.App. P. 9.5(d). The rule provides:

(d) Proof of Service. A document presented for filing must contain a proof of service in the form of either an acknowledgment of service by the person served or a certificate of service. Proof of service may appear on or be affixed to the filed document. The clerk may permit a document to be filed without proof of service, but will require the proof to be filed promptly.

Of course, the rule goes on and is very specific about what must be in the certificate of service if that form of proof of service is utilized. Tex.R.App. P. 9.5(e). The requirements of the certificate of service are very detailed, noticeably more detailed than the certificate required for serving civil pleadings at the trial court level. See Tex.R. Civ. P. 21. We have, on occasion, allowed less than strict compliance with Rule 9.5(e) if it appeared from the certificate that substantial, though not perfect, compliance was obtained.

For this motion, there is no compliance. We should strike the motion if Sickles fails to cure the defect after notice thereof.

Evidence on Motions

Ruling on this motion requires the majority to rely on evidence not in the record. Where is this evidence? It is in the form of statements in the motion. That is what the majority is relying upon to grant the relief requested. The rules require the evidence being relied upon in this motion to be verified. Tex.R.App. P. 10.2.

The types of facts requiring proof are those that are:

(a) not in the record;
(b) not within the court’s knowledge in its official capacity; or
(c) not within the personal knowledge of the attorney signing the motion.

Id.

The evidence for this motion is as follows:

Due to unscrupulous actions by many dishonest inmates in here, I was lead to believe that any issues my appointed attorney did not raise would never allow me to bring them up or litigate them in my 11.07 Writ of Habeas Corpus if my appeal were to go into that court. And that my appointed counsel would deliberately omit anything that could or would bring me relief. These people instigated me to file the motion to have my counsel withdrawn from my appeal. After some research, and allowing some honest inmates to expose their devious intentions, I now realize that this was a foolhardy move by allowing that motion to be filed.
As you have ordered the trial court to determine if my decision to waive counsel was made voluntarily and intelligently. I believe that this memo will support my claim that this decision to waive counsel was not made intelligently.

This evidence fits all three of the requirements for verification. It is not verified. We have no evidence properly before us on which we can base our ruling. We should require verification of the facts if we are going to grant the motion on this evidence.

HuRRicane Rita

Contrary to the statements in the majority’s order, Rita has nothing to do with whether Sickles should be allowed to represent himself on appeal or whether there should be a hearing. Rita may cause us to grant an extension, but it does not alter the entitlement to a hearing. If he was entitled to a hearing before Rita, he is still entitled to one now. They even noted in footnote 2 of their September 14, 2005 abatement order that Sickles did not have to appear in person so the sheriffs ability to transport or keep prisoners is not in issue.

REPRESENTATION ON APPEAL BY COUNSEL

Sickles had expressed a desire to represent himself. Initially, we held unanimously that he could not. Sickles v. State, No. 10-04-00258-CR (Tex.App.-Waco June 15, 2005, order) (not designated for publication). Over my objection, a majority of this Court flip-flopped, holding that he was entitled to represent himself on appeal but only if he made a voluntary and intelligent waiver of his statutory right to counsel in writing. Sickles v. State, 170 S.W.3d 298 (Tex.App.-Waco 2005, order). They abated the appeal so the trial court could make the evaluation necessary regarding the voluntary and intelligent waiver. We had already made one evaluation based upon the relevant factors and determined that he should not be allowed to represent himself on appeal. But then they decided to let the trial court have a go at it.

Sickles has now provided a document to this Court in which he asks “the Honorable Court to please vacate the order of this Court delivered [sic] and filed on September 14th, 2005.” The referenced order is the abatement order. The majority determines that he can represent himself on appeal, at least for this motion. After completely re-characterizing his motion to vacate the abatement order as a motion to withdraw his earlier motion to represent himself, they grant “his” motion and reinstate the appeal.

There is an assumption implicit in what they have done. The majority has concluded that his decision to move to vacate the abatement order, an order designed to implement his asserted right to waive the assistance of counsel and to represent himself, is voluntary and intelligent. Sounds confusing, doesn’t it? But if we as a court can make this decision, why could we not, in the first instance, determine that he did not make a voluntary and intelligent waiver rather than ordering this to go through the cost and expense of a hearing on abatement before the trial court? He asserts in his explanation that he did not make the earlier waiver of his right to counsel intelligently. Maybe it is Sickles’s current decision that is not being made voluntarily or intelligently. How does the majority know this decision was voluntary and intelligent but could not decide the same issue as to the earlier request?

I, for one, would like some guidance on when this Court can and will make a decision on whether a waiver is voluntary and intelligent and when we must abate the proceeding for a trial court to make that determination.

As I said in my dissenting opinion, the flip-flop remains unexplained.

Conclusion

Because we are back to precisely where we were on June 15, 2005 when we unanimously held that Sickles would be represented on appeal by counsel, I concur in the result of the order though I join no part of the reasoning the majority has used to get to that result. We have arrived here over four months late.

      . It may be argued that considering the merits of Sickles’s motion for self-representation and/or his motion to withdraw that motion bestows on him a right of hybrid representation, which is not generally permitted. See Ex parte Taylor, 36 S.W.3d 883, 887 (Tex.Crim.App.2001); Sossamon v. State, 110 S.W.3d 57, 61 (Tex.App.-Waco 2002, order) (per curiam). However, the prohibition on hybrid representation is not absolute. See e.g. Warren v. State, 98 S.W.3d 739, 741 (Tex.App.-Waco 2003, pet. ref’d). In the context of a case in which a criminal appellant has asserted his right of self-representation, there will undoubtedly be pleadings filed by both the appellant and his attorney until the issue of self-representation is determined.

      . All we had to say in a letter order is: "A majority of the Court vacates the abatement order issued September 14, 2005, and reinstates the appeal. The State’s brief is due within 30 days after the date of this order.”


author: EVELYN V. KEYES, Justice.

text:
    In re MacGREGOR (FIN) OY, Relator.
    No. 01-02-01318-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 10, 2005.
    Jeffrey L. Raizner and Ira E. Hoffman, for MacGregor (Fin) Oy.
    Mark D. Davidson, pro se.
    Kevin B. Finkel and Jack G. Carnegie, for Kellogg Brown & Root, Inc.
    Clint Alexander Corrie, Joseph Lawrence Mira, Jeff Nobles and Robert B. Tobor, for Gulf Coast Holdings, Inc.
    Panel consists of Justices TAFT, NUCHIA and KEYES.
   SUPPLEMENTAL OPINION ON REMAND

EVELYN V. KEYES, Justice.

On July 10, 2003, we issued our original opinion in the above-referenced cause. See In re MacGregor (FIN) Oy, 126 S.W.3d 176,184-85 (Tex.App.-Houston [1st Dist.] 2003, orig. proceeding). On May 20, 2005, the Texas Supreme Court conditionally granted mandamus relief and ordered this Court to “vacate its order compelling KBR to ‘arbitrate all claims.’ ” In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 742 (Tex.2005). In our July 10, 2003 opinion, we decreed:

The trial court is ordered to vacate its order denying MacGregor’s plea in abatement and motion to compel arbitration, to issue an order compelling KBR to arbitrate all claims, and to stay all proceedings pending arbitration. Only if the trial court fails to comply with these directions shall we instruct the clerk to issue the writ.

In re MacGregor, 126 S.W.3d at 184-85. In accordance with the supreme court’s order, we vacate only the herein above-quoted decree of our July 10, 2003 opinion and issue the following decree in its stead:

The trial court is ordered to vacate its order denying MacGregor’s plea in abatement and motion to compel arbitration and to stay all proceedings pending arbitration. Only if the trial court fails to comply with these directions shall we instruct the clerk to issue the writ.