Preview
FILED
4/14/2023 11:56 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Martin Reyes DEPUTY
CAUSE NO. DC-22-02879
DALLAS COUNTY HOSPITAL § IN THE DISTRICT COURT
DISTRICT D/B/A PARKLAND §
HEALTH §
§
VS. § 44TH JUDICIAL DISTRICT
§
MORGAN MCANELLY, §
VANESSA SANCHEZ, DIANA GARCIA, §
SYDNEY RUSSELL, SAMANTHA §
MCKEOWN, BRITTANY WASHINGTON, §
JACOB ROCHESTER, DORMEL THOMPSON, §
HANNAH JOHNSON, ESMERELDA ORDONEZ, §
STEPHANIE SISK, COURTNEY KERCHER, §
AND MEAGAN HLAVENDA § DALLAS COUNTY, TEXAS
STEPHANIE SISK’S RESPONSE TO
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES STEPHANIE BARHAM, fka STEPHANIE SISK, one of the Defendants
in this collection case, and files her Response to the Motion for Summary Judgment filed by
Plaintiff, DALLAS COUNTY HOSPITAL DISTRICT DBA PARKLAND HEALTH, and shows
this Honorable Court the following:
PRELIMINARY CONSIDERATIONS
1. The Court is respectfully directed to the forfeiture of Plaintiff’s counsel’s right to
do business in Texas as of March 10, 2023. The Secretary of State effected the forfeiture
pursuant to Section 171.309 of the Texas Tax Code of The Turek Law Firm, P.C. See Exhibit B
and B-1. An entity “the existence of which has been . . . forfeited pursuant to the tax code . . .” is
a terminated entity. See TEX. BUS. ORGS. CODE § 11.001(4)(B).
2. Pursuant to Exhibit B-1, The Turek Law Firm, P.C. has been unable to act as a
corporation from at least March 10, 2023 and perhaps 120 days before that date.
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-1
3. In Plaintiff’s Motion for Summary Judgment, Plaintiff claims to have contracted
with The Turek Law Firm, P.C.1 Absent its corporate privileges, The Turek Law Firm, P.C. is
not able to act in its corporate capacity to represent Plaintiff.
INTRODUCTION
4. Parkland seeks to enforce an unconscionable, overreachjng, worldwide noncompete
provision in violation of the overwhelming law and public policy of the of Texas. Parkland relies on
the affidavit of Allen Kirby for support. As will be shown later in this Response, Allen Kirby was
not employed at Parkland until after Stephanie Sisk had come and gone. Additionally, the affidavit
of Allen Kirby fails to show that he is a custodian of records for Parkland.
5. This motion is based on the pleadings on file with this Court, all of which are
hereby incorporated into and made a part of this motion to the degree referenced, as well as the
affidavits attached to this motion. The declaration of Stephanie Barham and Jerry Jarzombek
and the exhibits attached to those declarations are incorporated herein by reference and made a
part hereof and Stephanie intends to use the affidavits as summary judgment proof.
TRADITIONAL SUMMARY JUDGMENT
6. The requirements of summary judgment are well known to the trial Court. The
purpose of summary judgment practice is to eliminate patently unmeritorious claims and
untenable defenses; not to deprive litigants of their right to a full hearing on the merits of any
real issues of fact. Compton v. Calabria, 811 S.W.2d 945 (Tex. App. - Dallas 1991, no writ).
Summary judgment practice is proper in cases addressing matters of law. Howell v. City of
Dallas, 549 S.W.2d 36 (Tex. Civ. App. - Waco 1977, writ ref’d n.r.e.). When a plaintiff moves
for summary judgment on its own cause of action, the plaintiff must prove it is entitled to
summary judgment by establishing every element of its claim as a matter of law. MMP, Ltd. V.
1
See Exhibit C to Plaintiff’s Motion, the affidavit of Douglas Turek and the attachments thereto.
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-2
Jones, 979 S.W.2d 331, 334 (Tex. App. – Houston [14th Dist.] 1998, pet. denied). When the
damages are unliquidated, the court may grant an interlocutory summary judgment on liability
and hold a hearing on damages, should there be a genuine issue as to the amount. TEX. R. CIV.
P. 166a(a). For a defendant to prevail on a motion for summary judgment, he must disprove as a
matter of law at least one element of the plaintiff’s theory of recovery. International Union of
United Auto. Aerospace & Agric. Implement Workers of Am. Local 119 v. Johnson Controls,
Inc., 813 S.W.2d 558 (Tex. App. - Dallas 1991, writ denied).
FACTUAL BACKGROUND
Employment at Parkland
7. Stephanie discussed a nursing education and employment opportunity at Parkland
with representatives of Parkland. An offer was made to hire Stephanie to be part of the Neonatal
ICU Resident/Graduate Nurse Program. See Exhibit A.
8. Thereafter, Stephanie executed the Resident/Graduate Nurse Program Employment
Agreement (the “Contract”) on May 23, 2016. The Contract was countersigned by Vicki Bell,
Associate Director of Accounting for Parkland, the same day. The Contract is attached as Exhibit
A-1 to the declaration of Stephanie Barham.
9. The Contract specified that Stephanie “will be a participant in the Neonatal ICU
Resident/Graduate Nurse Program for the of July 1, 2016, November 18, 2016, (the Program
Period)” and become “a member of the nursing staff of Parkland Health & Hospital System from
November 19, 2016 through November 18, 2019.” The Contract specified that employment shall
begin on July 1, 2016 and go through November 18, 2019. This is a period of 41 months. See
Exhibit A-1.
10. Furthermore, per the Contract - and upon completion of the Program, which ran
from November 19, 2016 through November 18, 2019 – Stephanie would then be declared as an
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-3
“RN I” and would continue to perform such duties required of her as a member of the nursing staff
of the Employer. See Exhibit A-1.
11. Further, the Contract includes an obscured non-compete clause stating that
Stephanie, “'upon successful completion of the Program, will not be eligible to enroll in another
Internship/Resident/Graduate Nurse Program until the Employee’s obligations under this
Agreement are fulfilled, which would have been November 18, 2019 (the '”Non-Compete Clause”).
See Exhibit A-1.
12. This Non-Compete Clause is a worldwide restriction as it is not limited in geography
or locality, lasts for an overlong duration of 41 months, and is overbroad in scope, prohibiting any
and all internship nurse programs, resident nurse programs, and/or graduate nurse programs.
13. The Contract also includes a liquidated damages clause that assesses a penalty
against Stephanie in the amount of $20,000.00 should Stephanie be terminated or quit between
August 28, 2016 to November 18, 2019 of the Contract Term; however, if Stephanie quits or is
terminated prior to August 27, 2016, no penalty would be assessed (the “Liquidated Damages
Clause”). See Exhibit A-1.
14. Ultimately, Stephanie proceeded with terminating her employment, her last day
being on September 4, 2018. See Exhibit A.
Unconscionable, Overreaching, Non-Compete and Penalty Provisions
15. The Contract includes an obscured non-compete clause stating that “[Stephanie] will
not be permitted to enroll in another Internship/Resident/Graduate Nurse or Nurse Fellowship
Program until November 18, 2019” (the “Non-Compete Clause”). This Non-Compete Clause is a
worldwide restriction as it is not limited in geography or locality, lasts for an overlong duration of
41 months, and is overbroad in scope, prohibiting any and all internship nurse programs, resident
nurse programs, graduate nurse programs, and/or fellowship programs. See Exhibit A-1.
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-4
16. The Contract also includes a liquidated damages clause that assesses a penalty
against Stephanie in the amount of $20,000.00 should Stephanie be terminated or quit between
August 28, 2016 and November 18, 2019 of the Contract Term; however, if Stephanie quit or was
terminated prior to August 27, 2016, no penalty would be assessed (the “Liquidated Damages
Clause”). See Exhibit A-1.
17. On March 22, 2022, Parkland filed this lawsuit against five (5) nurses.
18. On June 17, 2022, Parkland amended its lawsuit to include Stephanie and twelve
(12) other nurses alleging that each of the defendant nurses have breached their respective contracts
with Parkland and thus owe Parkland liquidated damages. Parkland has established a pattern of
attempting to enforce the same punitive contractual provision against hard working men and women
who dedicated their lives to helping care for others.
19. The liquidated damages provisions in each of the defendant's contracts range from
$10,000.00 to $20,000.00. Most of the nurses have been sued for the vast majority, if not the full
amount of their respective liquidated damages provision. Essentially, Parkland is using the
liquidated damages provision in each of these contracts as a profit center and as referenced above,
an unconscionable and overreaching restriction on each of the employee's ability to seek gainful
employment – that is to say, Parkland is attempting to extract a penalty from its nurses.
20. Although the facts are different in each case, since each of the suits against the
named defendants in this lawsuit are different cases with different facts and different parties,
Parkland includes multiple nurses in each lawsuit to avoid the cost of filing fees for bringing what
should be separate suits for separate causes of action against separate nurses. Stephanie is not
familiar with these other nurses. It is inexcusable and inequitable for Stephanie to be added to a
lawsuit with other nurses / defendants with whom Stephanie has no connection, nor knowledge of,
and a disclosure of her personal financial situation with Parkland.
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-5
21. As applicable to Stephanie, Parkland seeks to enforce its unconscionable and
overreaching noncompete and liquated damages clauses in an amount of $19,400.58., and in an
effort to prevent Stephanie from working as a nurse worldwide.
22. This lawsuit was filed against several defendants who are not residents of Dallas
County, with an explicit claim that Dallas County was a proper venue. Plaintiff takes advantage of a
single filing fee without regard to the residence of any particular defendant and aggregates its claims
rather than observe the venue rules. Perhaps Plaintiff relies on its venue clause in the misguided
belief that the ‘agreement’ isolates it from venue claims.
23. Stephanie Sisk was neither a resident of Dallas County at the time she entered in the
agreement made the basis of Plaintiff’s lawsuit nor at the time the lawsuit was amended to add her
as a defendant. Stephanie Sisk did not sign the agreement in Dallas County. Stephanie Sisk signed
the agreement in Denton County and was served in Denton County on July 22, 2022.
24. Transactions such as this are consumer in nature, lacking a “profit motive” on the
part of the nurses involved. Much of the authority as to the “consumer” nature of education is found
in federal cases under the Fair Debt Collection Practices Act.
25. “Education” encompasses something broader than mere investment in pursuit of
profit. Brown v. Bd. of Ed. Of Topeka, Shawnee Cnty, Kan., 347 U.S. 483, 493 (1954) (“. . . our
recognition of the importance of education to our democratic society . . . . It is the very foundation
of good citizenship.”); Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (“The American people have
always regarded education and acquisition of knowledge as matters of supreme importance which
should be diligently promoted.”). Education, unlike venture capital, cannot be taken by creditors
upon default and remains with the consumer throughout his or her life; any skill or knowledge
acquired by Defendant is hers and hers alone. In contrast, if Defendant invested her ‘loan’ in a
business and then defaulted, any plaintiff seeking to collect that ‘loan’ would be provided with
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-6
ample opportunities to reach such an interest. These factors, when viewed “as a whole,” indicate
that educational services were primarily for personal purposes. Indeed, Stephanie Sisk sought to
improve her earning capacity to provide a better life for herself and her family.
26. One intended purpose of these contracts is to deter nurses from leaving Parkland.
As a result, often working conditions are made difficult for the nurses – after all, Parkland will just
replace them. That is what happened to Stephanie Sisk.
27. Parkland does not disclose scheduling until long after a nurse enters into the
Contract. Stephanie did not get a “set schedule” until after she completed the residency. She was
assigned a shift from 7pm to 7am. Frequently she was asked to work an additional 4 hours in
addition to my 12-hour shift raising concerns for her safety and the safety of her patients. See
Exhibit A.
28. Parkland maintained a rigid scheduling system for their nurses, based off seniority.
If you were a newer nurse for the first couple of years, you worked every other Friday, Saturday and
Sunday. Stephanie Sisk found herself going through a divorce, and her (now) ex-husband was
trying to use the fact that she worked nights against her in an attempt to keep her from having
primary custody of their child. Stephanie asked her manager if she could temporarily go to dayshift
until her divorce was final so that it would not get in the way of her getting primary custody, but that
request was refused. Parkland was unwilling to work with her because they believed if they would
work with Stephanie, then they would have to work with everyone. See Exhibit A.
29. Stephanie asked for some accommodation to be made for her during her divorce; she
knows it was certainly more than once. These requests were made to her supervisor, and Stephanie
told her about her custody situation and everything she was going through. It was such a large unit
that Parkland simply did not care about personal situations and wouldn’t budge on scheduling
whatsoever. It was black and white to them period. Parkland forced Stephanie into a situation where
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-7
she had to make a choice as to whether she would be there for her child. Parkland made the
scheduling so intolerable that a reasonable employee would feel forced to resign, and that is what
she did. Her last day at Parkland was September 4, 2018. See Exhibit A.
30. In one situation, Stephanie was scheduled to work a night shift and the day shift the
following day – resulting in 24 hours on duty. Her supervisor refused to alter the schedule, causing
Stephanie to engage in the ‘frowned upon practice’ of going to the director to get the relief she
requested. See Exhibit A.
ARGUMENTS & AUTHORITIES
31. Plaintiff’s Motion is based solely on a beach of contract, and incorrectly assumes
the validity of that contract. Plaintiff then takes a journey through the elements of contract
formation and never addresses the validity of the contract and whether the contract is enforceable
under Texas law. Stephanie Sisk raised the issue of enforceability in her counterclaim, which is
not addressed in Plaintiff’s Motion for Summary Judgment.
32. Plaintiff then discusses the liquidated damages clause, claiming that damages are
difficult to determine - but then providing the Kirby affidavit in an effort to show the damages
are able to be quantified. Plaintiff has raised a fact question as to its liquidated damages
argument.
33. And finally, Plaintiff argues its entitlement to recover attorney fees – and a time
when The Turek Law Firm, P.C. has become a “terminated entity” – incapable of transacting
business in Texas.
The Contract is an Unlawful Restraint of Trade
34. Under the Texas Free Enterprise and Antitrust Act, “Every contract...in restraint
of trade or commerce is unlawful.” TEX. BUS. COMM. CODE § 15.05(a). The statute contains one
exception to this rule: even though they are contracts in restraint of trade, covenants not to
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-8
compete are permitted, as long as they meet certain requirements. TEX. BUS. COMM. CODE §
15.50. Those requirements are:
● The covenant not to compete must be “ancillary to or part of an otherwise
enforceable agreement at the time the agreement is made;” and
● It must contain “limitations as to time, geographical area, and scope of activity to
be restrained” that are “reasonable,” and that “do not impose a greater restraint
than is necessary to protect the goodwill or other business interest of the
promisee.” Id.
35. If the primary purpose of an agreement is to obligate an employee to render
personal services, for a term or at will, the employer has the burden of establishing that the
covenant meets the above criteria. TEX. BUS. COMM. CODE § 15.51(b). Parkland cannot do this,
and has not established its right to summary judgment considering Stephanie Sisk’s
counterclaim.
36. If the agreement fails to meet both of these criteria, it must be declared unlawful
under TEX. BUS. COMM. CODE § 15.05. If the agreement meets the first criterion, but not the
second (i.e., if it is part of another enforceable agreement, but does not contain reasonable
limitations or imposes a greater restraint than is necessary), the Court may reform the agreement.
But in the case of reformation, the employer may not collect damages for breaches that occurred
prior to the reformation, and the relief granted to the employer must be limited to injunctive
relief only. TEX. BUS. COMM. CODE § 15.51(c).
37. Parkland’s Nurse Agreement is a clear restraint of trade. That means it is
unlawful, unless Parkland can establish that it meets the requirements of a “covenant not-to-
compete” under TEX. BUS. COMM. CODE § 15.50. Parkland cannot do this, because its anti-
competitive liquidated damage clause: (1) is not “part of an otherwise enforceable agreement;”
(2) does not contain any limitations as to time, geography, or scope - let alone “reasonable”
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-9
limitations; and (3) is not designed to enforce any other non-illusory promises made by
Stephanie in the Nurse Agreement.
Parkland’s Contract operates as a Restraint of Trade,
and therefore must be analyzed under Tex. Bus. Comm. Code § 15.50 et seq.
38. The Contract at issue in this case requires Parkland’s nurses to serve out a three
year term at Parkland. If they fail to do so for any reason (including if they are fired by
Parkland), they are required to pay Parkland a substantial sum of money.
39. Parkland may argue that because its Contract is not an explicit “non-compete,” it
is not subject to the requirements of TEX. BUS. COMM. CODE § 15.50. But Texas courts have
repeatedly confirmed that the statute applies “not only to provisions that expressly limit a former
employee’s professional mobility, but also to damages provisions that impose a severe economic
penalty on a departing employee.” Rieves v. Buc-ee’s Ltd., 532 S.W.3d 845, 851 (2017) (citing
Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381, 388 (Tex. 1991) (holding that “provisions
clearly intended to restrict the right to render personal services are in restraint of trade and must
be analyzed for the same standards of reasonableness as covenants not to compete to be
enforceable,” and applying those standards to conclude that requiring employee to pay liquidated
damages was unreasonable); Frankiewicz v. Nat'l Comp Assocs., 633 S.W.2d 505, 507 (Tex.
1982) (agreement that departing employee would forfeit vested commissions in event of
competition was unenforceable)).
40. This is because “The practical and economic reality” of such clauses is that they
inhibit employee mobility in “virtually the same [manner] as a covenant not to compete.” Haass,
818 S.W.2d at 385-86. The Texas Supreme Court in Haass noted that it has “expressly rejected”
the argument that a liquidated damages provision like Parkland’s “is not a covenant not to
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-10
compete” just because the former employee is not explicitly prohibited from competing. Haass,
818 S.W.2d at 386 (citing Frankiewicz, 633 S.W.2d at 507).
41. The Rieves case is instructive on this point. In that case, Buc-ee’s required its
employee Kelley Rieves to sign a contract that required her to pay Buc-ee’s a large sum of
money if she did not remain employed by Buc-ee’s for at least four years. The sum was equal to
the amount of certain “bonus” and “retention” payments she had been paid while employed
there. When she resigned prior to the end of her four-year term, Buc-ee’s sent her a letter
demanding payment under that contract. Rieves responded by filing a lawsuit, seeking a
declaration that the contract was an unenforceable restraint of trade. This is the same relief
Stephanie Sisk seeks through her counterclaim.
42. Buc-ee’s argued that the contract was merely a loyalty incentive program, not a
restraint of trade. The appellate court disagreed, holding: “Because the [repayment] provisions
impose a severe economic penalty on Rieves if she exercises her right as an at-will employee to
quit her employment with Buc-ee’s, we conclude they are unlawful unless they meet the
reasonableness standards applicable to covenants not to compete.” Rieves at 851.
43. That is abundantly clear in this case, because Plaintiff seeks to have Stephanie
return all the money she was paid by Parkland – effectively causing her to have received nothing
for the services she performed for the patients at Parkland – resulting in violation of law
regarding the payment of a minimum wage…
44. The Rieves Court also explained how a punitive repayment clause like this is
different from legal loyalty or incentive-based compensation plans:
● A legal loyalty-based compensation plan involves the cancellation of future
payments, such as unvested stock options under a non-contributory profit-sharing
plan - not the return of compensation that had already vested or been paid.
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-11
● Legal forfeiture provisions conditioned on loyalty do not restrict or prohibit the
employees' future employment opportunities. Instead, they reward employees for
continued employment and loyalty. Their purpose is unrelated to restraining
competition. A non-compete, on the other hand, attempts to protect the
investments an employer has made in an employee, ensuring that the costs
incurred to develop human capital are protected against competitors who, having
not made such expenditures, might appropriate the employer's investment.
● A former employer does not need to take legal action to trigger the terms of a
loyalty program, because the profit-sharing or other similar plan belongs to the
employer. Whereas with a non-compete, the former employer must bring a breach
of contract suit to enforce the clause.
45. The repayment clause in this case is remarkably similar to the clause at issue in
Rieves. It requires the nurse to “repay” Parkland for its purported investment in them if they
leave Parkland’s employ before a given date. Like the Buc-ee’s clause, the Parkland clause
requires this repayment regardless of the reason for an employee’s departure. Parkland’s clause
does not have any of the hallmarks of a legal employee incentive or loyalty plan. And it
unquestionably “imposes a severe economic penalty” on the Parkland nurses if they exercise
their right as at-will employees to quit their employment. As a result, the Parkland clause - like
the clause in Rieves - must be analyzed under TEX. BUS. COMM. CODE § 15.50 et seq.
The liquidated damage clause is not “Ancillary to or Part of”
another, otherwise enforceable agreement.
46. For an anti-competitive clause like Parkland’s to be enforceable, it must be
“ancillary to or part of” another separate set of mutually-binding, non-illusory promises - a set of
promises that is enforceable on its own, separate from the anti-competitive clause. See, e.g. Light
v. Central Cellular Co., 883 S.W.2d 642 (Tex. 1994). In Light, the Texas Supreme Court
explained that when determining if a noncompete is “ancillary to or part of” another enforceable
agreement, courts must examine what, if any, non-illusory promises have been made by the
parties other than the non-compete promise itself. Id. at 645-46 (observing that separate from the
covenant not to compete, the contract contained three non-illusory promises).
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-12
47. The Contract at issue in this case requires Parkland’s nurses to serve out a three
year term, or else pay a hefty fee. That is the anti-competitive clause in the Agreement (as
explained above). Looking beyond that clause, the Court must determine: (1) what other
promises exist in Parkland’s Contract, if any; and (2) whether those other promises (if any) are
non-illusory. If there are no other non-illusory, mutually-binding promises in the Contract, then
the anti-competitive clause is not “ancillary to or part of” another, otherwise enforceable
agreement - and it fails under Texas law.
Parkland makes no promises in the Agreement
48. Parkland does not expressly agree to anything in its Agreement. It makes a few
representations that appear to promise something, but each of them is belied by subsequent
disclaimers that relieve Parkland of any actual obligation to perform.
Parkland’s offer of at-will employment is illusory, and is
not sufficient to support the anti-competitive “liquidated damages” clause
49. Parkland has confirmed that the “job offer” contained in these types of
agreements are only for at-will employment. This is reflected in the Agreement, which explicitly
states in multiple places that the Employee can be terminated at any time (see Exhibit A-1).
50. The Agreement could not be interpreted any other way, because it does not
explicitly limit Parkland’s ability to terminate the nurse to specific, limited circumstances. See,
e.g. Talford v. Columbia Med. Ctr. At Lancaster Subsidiary, L.P., 198 S.W.3d 462 (Tex. App. -
Dallas 2006, no pet.) (to overcome the presumption of at-will employment, the employer must
unequivocally indicate a definite intent to be bound not to terminate the employee); Massey v.
Houston Baptist University, 902 S.W.2d 81 (Tex. App - Houston [1st Dist], 1995) (written
employment contract did not alter at-will employment relationship because it contained no terms
expressly limiting employer's ability to terminate the employee).
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-13
51. This is important, because under Texas law, a promise of at-will employment is
no promise at all. It is illusory because it does not bind the promisor, who retains the option to
discontinue performance at any time. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 849 (Tex. 2009). When illusory promises are all that support a purported
bilateral contract, there is no mutuality of obligation, and therefore, no contract. Vanegas v. Am.
Energy Servs., 302 S.W.3d 299, 301–02 (Tex. 2009). For this reason, an at-will employment
relationship alone cannot constitute an “otherwise enforceable agreement.” Light v. Centel
Cellular Co., 883 S.W.2d 642, 645 (Tex. 1994).
An anti-competitive clause is only enforceable if it is designed to enforce
the promises made by the employee in the “otherwise enforceable agreement.”
52. Even in cases where a non-compete clause is found to be “ancillary to or part of”
a separate, standalone exchange of non-illusory promises, it can only be enforced if it is
“designed to enforce the employee's...return promise in the otherwise enforceable agreement.”
Sheshhunoff, at 649 (citing Light, at 647).
53. For example, in Light, the underlying agreement contained the following non-
illusory exchange of promises: (1) the employer agreed to provide specialized training and
confidential information; and (2) the employee agreed to give 14-days’ advance notice before
leaving the company, and to provide an inventory upon her exit. This mutual exchange of
promises, which stood on its own, apart from the noncompete, counted as an “otherwise
enforceable agreement.” But the Court still declined to enforce the non-compete clause, because
it was not “designed to enforce the employee's...return promise” to provide notice and an
inventory. The Court noted that if there had been a reciprocal promise by the employee not to
disclose confidential information, that could meet the “designed to enforce” requirement, since a
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-14
non-compete would naturally enforce such a promise. But the employee in Light made no such
agreement in the contract, so the employer’s suit failed.
54. Similarly, the only “return promise” made by Stephanie in this case (other than
the anticompetitive clause itself) is to abide by Parkland’s personnel policies and directives, and
maintain her nursing license while there. Those are not non-illusory promises, because they are
tied to the continuation of at-will employment. But even if they were non-illusory, the anti-
competitive clause in this case (i.e., the nurse must stay for three years) is not designed to, and
does not, enforce those particular promises.
55. In this case, there is no “otherwise enforceable agreement,” because there are no
standalone, mutually-binding, non-illusory promises between the parties. But even if there were,
Parkland’s anti-competitive clause is not “designed to enforce the employee’s return promise” to
abide by Parkland’s personnel policies and directives. That means it fails under Light,
Sheshunoff, and their progeny.
Parkland’s Contract does not contain reasonable limitations
as to geography or scope, and imposes a greater restraint than necessary.
56. Like the contract at issue in Rieves, the Parkland contracts “impose no limits on
[the employee’s] repayment obligation based on whether her new employment involves certain
competitive activities or is located within certain areas,” and require an employee to pay up
“even if (1) [the employer] chooses to terminate her through no fault of her own on the last day
of the period she is “required to work,” or (2) she quits to take a non-competing job — or no job
at all.” Rieves, 532 S.W.3d at 851.
57. Parkland demands payment of the penalty regardless of whether the employee
quits or is fired by Parkland. Also like the contract in Rieves, Parkland demands 100% of the fee,
regardless of whether the nurse has served 1% or 99% of his or her “term” with Parkland. And
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-15
again like the contract in Rieves, Parkland’s punitive payment clause is triggered regardless of
where, geographically, the nurse goes to work after Parkland (or whether they continue working
at all), or what they choose to do after Parkland (i.e., whether they continue nursing or go into an
entirely different field, or drop out of the workforce altogether). In other words, the contract does
not contain any geographical or scope-based limitations.
58. As the Court in Rieves concluded, provisions like this “go far beyond protecting
any legitimate competitive interest” of the employer. Rieves, 532 S.W.3d at 851-852. Further,
they “injure the public by limiting choice and mobility of skilled employees.” Id. If that was true
in Rieves, a case concerning a gas station manager, it is doubly true in this case. Parkland’s
contracts restrict the mobility of, and public access to, skilled nurses - a group that is already in
short supply.
59. Because the Contract is a restraint of trade under TEX. BUS. COMM. CODE § 15.50,
and because Parkland cannot carry its burden to show that it meets the requirements of TEX. BUS.
COMM. CODE § 15.50 (an element on which it would have the burden of proof at trial), summary
judgment should be denied to Parkland.
The liquidated damages clause is also an unenforceable penalty.
60. If a liquidated damages provision is nothing more than a penalty intended to
secure performance of the contract, it is unenforceable. Stewart v. Basey, 245 S.W.2d 484, 486
(Tex. 1952). A liquidated damage clause is an unenforceable penalty unless it meets two
requirements: (1) the harm caused by the breach is incapable or difficult of estimation, and (2)
the amount of liquidated damages called for is a reasonable forecast of just compensation.
Phillips v. Phillips, 820 S.W.2d 786, 788 (Tex. 1991).
61. And, a liquidated damage provision may be shown to be unreasonable on the face
of the contract without proof of actual damages. Bunker v. Strandhagen, Case No. 03–14–
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-16
00510–CV, 2017 WL 876374 (Tex. App. - Austin, March 3, 2017). When it is plain from the
face of a contract that a provision may operate as a penalty instead of a reasonable forecast of
loss, no extrinsic evidence of unreasonableness is required. Bunker at *7, n.14.
62. A liquidated-damages provision that applies the same measure of damages for
breaches of plainly varying magnitude is “facially unreasonable.” Bunker at *7 (citing Stewart,
245 S.W.2d at 485–86). This is because when a contract imposes the same penalty for a trivial
breach as it does for a major breach, “it is obvious that the parties have not adhered to the rule of
just compensation.” Stewart, 245 S.W.2d at 486; Cmty. Dev. Serv., Inc. v. Replacement Parts
Mfg., Inc., 679 S.W.2d 721, 727 (Tex. App.--Houston [1st Dist.] 1983, no writ) (finding a fixed
damages amount unenforceable because it was not a reasonable estimate of the amount needed as
compensation, because all defaults, even a minor one, resulted in the same penalty); Steadfast
Ins. Co. v. SMX 98, Inc., Case No. H-06-2736, 2008 WL 62199 (S.D. Tex., Jan. 3, 2008) (“the
damages provision imposes a flat rate, unrelated to either the magnitude of the breach or of any
harm that might result. As a matter of law, the provision does not reasonably estimate just
compensation”); Mayfield v. Hicks, 575 S.W.2d 571. 575 (1978) (a liquidated damage provision
is a penalty if it provides for unreasonable payments for a minor breach).
63. It is immaterial whether the actual breach at issue in the case is a major or minor
one. Mayfield, at 575. What matters is whether the contract allows for a draconian penalty for
even a minor breach. Id. In this case, Parkland’s contract is plainly designed as a penalty, not a
legal liquidated damages provision.
It does not matter whether the Parties “agreed” to the penalty.
64. Parkland may argue that because Stephanie agreed to the clause, which states that
it is “not a penalty,” it cannot be considered an unenforceable penalty. This would be
unpersuasive. Courts refuse to enforce liquidated damages clauses in otherwise valid contracts if
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-17
those clauses are unreasonable penalties, despite the fact that such clauses are “agreed to.” See
Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 435 (Tex. App-Dallas 2004, pet. denied) (“[I]f the
liquidated damages provision contains an unlawful penalty, public policy may forbid
enforcement of the “agreed-to” measure of damages.”).
Parkland’s claim for the wages paid to Stephanie Sisk as “actual damages” is without merit
65. Parkland's argument (that it can still recover actual damages, even if the
liquidated damage clause is deemed unenforceable) assumes that it has incurred, and can prove
up, any actual damages that it suffered as a result of Stephanie’s. It has not. In its Motion,
Parkland identifies only one “actual damage” figure - the wages it paid to Stephanie in exchange
for her work in the Nurse Residency Program. Parkland could never legally recover actual
damages based on the salary it paid its employee for her work. Parkland attempts to avoid this
problem by claiming that the work performed by the nurses during their residencies is “non-
productive,”2 and therefore their salaries are actually a “loss” to Parkland. This argument wildly
misconstrues what “damage” means in the context of a breach of contract claim.
66. Financial losses are only recoverable if they result from a breach. To the extent
that Parkland recoups less in profit than it pays out in salaries, that may be a “loss” on its books –
but it’s not a loss that results from the breach (i.e., the nurse leaving before his/her term is up).
That “loss” would exist regardless of whether a nurse serves out their full term.
67. Furthermore, Parkland is statutorily required to pay its nurses for their work under
Fair Labor Standards Act, under the Texas Payday Act, and under its own contracts. Wage
payments that Parkland made pursuant to statutory and contractual requirements cannot
somehow now be “damages.” If Parkland were to now claw back those previously paid-out
2
This appears as a common theme in Allen Kirby affidavits in this case, for each Defendant. It would seem that Mr.
Kirby refers to all the early terminations as being “non-productive” on the one hand, while Parkland claims it was
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-18
wages (on which the nurses have already paid taxes), the absurd result would be that the nurses
worked without pay during their residency. That would put Parkland in violation of the FLSA,
among other statutes. The argument has no merit.
The harm caused by a breach is not incapable of estimation, maybe?
68. For a liquidated damage clause to be enforceable, “the harm caused by the
breach” must be “incapable or difficult of estimation.” Phillips, at 788. See also Steadfast Ins.
Co. v. SMX 98, Inc., Case No. H-06-2736, 2008 U.S. Dist. LEXIS 446, 2008 WL 62199 (S.D.
Tex., Jan. 3, 2008) (striking down a purported liquidated damage clause where “[t]he harm
resulting from uninsured and underinsured subcontractors is neither incapable nor very difficult
of accurate estimation,” and “[t]he record shows that the likely harm...could be estimated”).
69. Plaintiff’s argument lacks candor, as it makes an argument in its Motion (through
Allen Kirby) about the costs to Parkland.
Parkland’s claim for attorney’s fees is preempted by
TEX. BUS. COMM. CODE § 15.50 et seq., and therefore must be dismissed.
70. In its Petition, Parkland seeks attorney’s fees under TEX. CIV. PRAC. & REM.
CODE § 38.001. That section permits the recovery of attorneys’ fees on claims for breach of a
written contract. It is explicitly preempted, however, by TEX. BUS. COMM. CODE § 15.50 et seq.
TEX. BUS. COMM. CODE § 15.52 (“the procedures and remedies in an action to enforce a
covenant not to compete provided by Section 15.51 of this code are exclusive and preempt any
other...procedures and remedies in an action to enforce a covenant not to compete under common
law or otherwise”).
71. That statute limits the type of relief that a Court can award to a promisee (i.e.,
Parkland) suing to enforce an anti-competitive covenant. It may only recover damages,
deprived of their services on the other hand.
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-19
injunctive relief, or both. TEX. BUS. COMM. CODE § 15.51; Rieves, 532 S.W.3d at 854 (sustaining
employee’s challenge to employer’s request for attorney’s fees, because “section 15.52 preempts
Buc-ee's request for fees based on other statutes or the 2010 Agreement”).
72. Because Parkland’s Contract is subject to the dictates of TEX. BUS. COMM. CODE
§ 15.05, as set forth above, it cannot seek attorney’s fees against Stephanie (or any other
defendant). Stephanie is therefore entitled to have Parkland’s claim for attorney’s fees denied as
a matter of law on under TEX. R. CIV. P. 166a(c).
OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE
Objections to the affidavit of Allen Kirby
73. The affidavit of Allen Kirby is an attempt at creating a summary judgment
affidavit (which must be based on personal knowledge) with a business records affidavit (which
does not require personal knowledge of the contents of the documents, but does require
knowledge of the creation of the documents). The Kirby affidavit fails both as a summary
judgment affidavit and as a business records affidavit.
74. Summary judgment affidavits. The summary judgment affidavit must show that
the affiant is testifying from personal knowledge. TEX. R. CIV. P. 166a(f); TEX. R. EVID. 602;
Ryland, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1966); Grand Prairie ISD v. Vaughn, 792
S.W.2d 1944, 1945 (Tex.1990). The affidavit must also show that the witness is competent to
testify about the subject matter of the affidavit. Radio Station KSCS v. Jennings, 750 S.W.2d
760, 761-62 (Tex. 1988). “An affidavit which does not positively and unqualifiedly represent the
facts as disclosed in the affidavit to be true and within the affiant’s personal knowledge is legally
insufficient.” Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (citing Brownlee v.
Brownlee, 665 S.W.2d 111, 112 (Tex. 1984)); see also N. P. Davis & Co. v. Campbell & Clough,
35 Tex. 779, 781 (1872) (affidavits must be made to actual knowledge of the facts, “not to the
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-20
best of the knowledge and belief” of the affiant); Caperton v. Wanslow, 18 Tex. 125, 133 (1856)
(finding affidavit based on “information and belief of the party” manifestly insufficient). Nothing
in the affidavit shows that he is competent to testify about the transactions he describes in the
affidavit. His statements are conclusory, based on hearsay and speculation, without foundation,
and will not support a summary judgment. He was not at Parkland at any time Stephanie Sisk
was there. See Exhibits B, B-2, B-3, B-4, B-5 and B-6.
75. Business records affidavits. To be a business record, entries must be made
routinely in the regular course of the entity’s activity and not irregularly or sporadically. See
Redkin Lab., Inc. v. Levin, 843 F.2d 226, 229 (6th Cir. 1988); Tex. Employer's Ins. Ass’n v.
Sauceda, 636 S.W.2d 494, 499 (Tex. App. - San Antonio 1982, no writ). Thus, a document
prepared for purposes of litigation is not admissible under this exception because it lacks
trustworthiness. Paddock v. Dave Christensen, Inc., 745 F.2d 1254, 1259 (9th Cir. 1984);
Sauceda, 636 S.W.2d at 499. This is because “where the only function that the report serves is to
assist in litigation or its preparation, many of the normal checks upon the accuracy of business
records are not operative.” MICHAEL J. MCCORMICK ON EVIDENCE § 288, at 272 n.33
(John W. Strong 4th ed. 1992). A case that describes the requirement that the affiant have
knowledge of how the business records are prepared is In re E.A.K., 192 S.W.3d 133, 142 (Tex.
App. – Houston [14 Dist.] 2006, pet. denied):
“Rule 803(6) does not require that the witness laying the predicate for admission of a
document be the creator of the document or even an employee of the same company as
the creator. See TEX. R. EVID. 803(6); Houston Shell & Concrete Co. v. Kingsley
Constructors, Inc., 987 S.W.2d 184, 186 (Tex. App. - Houston [14th Dist.] 1999, no
pet.); Montoya v. State, 832 S.W.2d 138, 141 (Tex. App. - Fort Worth 1992, no pet.). The
witness does not even have to have personal knowledge of the information recorded in
the document but need only have knowledge of how the records were prepared. In re
K.C.P., 142 S.W.3d 574, 578 (Tex. App. - Texarkana 2004, no pet.); In re J.G., 112
S.W.3d 256, 262 (Tex. App. - Corpus Christi 2003, no pet.); Montoya, 832 S.W.2d at
141.”
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-21
76. Nothing in his affidavit shows that Mr. Kirby is competent to testify as to how the
records were created at Parkland – because he was not there at any time when Stephanie Sisk
was there.
77. To better understand the lack of knowledge regarding Parkland’s records,
consider the five exhibits obtained from the UT Southwestern Medical Center website. See
Exhibits B, B-2, B-3, B-4, B-5 and B-6.
78. Printouts from government websites were self-authenticating under Texas Rule of
Evidence 902(5). Williams Farms Produce Sales, Inc. v. R & G Produce Co., 443 S.W.3d 250,
258 (Tex. App.—Corpus Christi 2014, no pet.). Texas Rule of Evidence 902(5) dictates that
“[b]ooks, pamphlets, or other publications purporting to be issued by public authority” are self-
authenticating. Id. Multiple federal district courts have determined that documents printed from
government websites are self-authenticating under Federal Rule of Evidence 902(a)(5), the
federal counterpart to Texas Rule of Evidence 902(5). See Williams v. Long, 585 F.Supp.2d 679,
689 (D.Md. 2008) (reasoning that “the public authority’s selection of the posted information for
publication on its website will act as the necessary ‘seal of approval’ needed to establish that the
information came from a public authority for purposes of Rule 902(5)”); see also Paralyzed
Veterans of Am. v. McPherson, C064670SBA, 2008 WL 4183981 at *7 (N.D. Cal. Sept. 9, 2008)
(collecting federal cases from multiple jurisdictions holding that printouts from government
websites are self-authenticating); U.S. E.E.O.C. v. E.I. DuPont de Nemours & Co., CIV. A. 03–
1605, 2004 WL 2347559, at *2 (E.D.La. Oct. 18, 2004). Moreover, the application of the rule in
these circumstances is consistent with its plain language as information on a government website
is a “publication purporting to be issued by a public authority.” See F.F.P. Operating Partners,
LP. v. Duenez, 237 S.W.3d 680, 684 (Tex. 2007) (“As with any statutory provision, our goal is to
ascertain legislative intent by examining the statute's plain language.”).
STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-22
79. UT Southwestern is a member of the University of Texas health institution. See
Exhibit B-7. As such, it is a governmental entity of the State of Texas.
80. As to the rest of the exhibits, Exhibit B-1 is a copy of the forfeiture notice for The
Turek Law Firm, P.C. from the website o
Preview
FILED 4/14/2023 11:56 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Martin Reyes DEPUTY CAUSE NO. DC-22-02879 DALLAS COUNTY HOSPITAL § IN THE DISTRICT COURT DISTRICT D/B/A PARKLAND § HEALTH § § VS. § 44TH JUDICIAL DISTRICT § MORGAN MCANELLY, § VANESSA SANCHEZ, DIANA GARCIA, § SYDNEY RUSSELL, SAMANTHA § MCKEOWN, BRITTANY WASHINGTON, § JACOB ROCHESTER, DORMEL THOMPSON, § HANNAH JOHNSON, ESMERELDA ORDONEZ, § STEPHANIE SISK, COURTNEY KERCHER, § AND MEAGAN HLAVENDA § DALLAS COUNTY, TEXAS STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES STEPHANIE BARHAM, fka STEPHANIE SISK, one of the Defendants in this collection case, and files her Response to the Motion for Summary Judgment filed by Plaintiff, DALLAS COUNTY HOSPITAL DISTRICT DBA PARKLAND HEALTH, and shows this Honorable Court the following: PRELIMINARY CONSIDERATIONS 1. The Court is respectfully directed to the forfeiture of Plaintiff’s counsel’s right to do business in Texas as of March 10, 2023. The Secretary of State effected the forfeiture pursuant to Section 171.309 of the Texas Tax Code of The Turek Law Firm, P.C. See Exhibit B and B-1. An entity “the existence of which has been . . . forfeited pursuant to the tax code . . .” is a terminated entity. See TEX. BUS. ORGS. CODE § 11.001(4)(B). 2. Pursuant to Exhibit B-1, The Turek Law Firm, P.C. has been unable to act as a corporation from at least March 10, 2023 and perhaps 120 days before that date. STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-1 3. In Plaintiff’s Motion for Summary Judgment, Plaintiff claims to have contracted with The Turek Law Firm, P.C.1 Absent its corporate privileges, The Turek Law Firm, P.C. is not able to act in its corporate capacity to represent Plaintiff. INTRODUCTION 4. Parkland seeks to enforce an unconscionable, overreachjng, worldwide noncompete provision in violation of the overwhelming law and public policy of the of Texas. Parkland relies on the affidavit of Allen Kirby for support. As will be shown later in this Response, Allen Kirby was not employed at Parkland until after Stephanie Sisk had come and gone. Additionally, the affidavit of Allen Kirby fails to show that he is a custodian of records for Parkland. 5. This motion is based on the pleadings on file with this Court, all of which are hereby incorporated into and made a part of this motion to the degree referenced, as well as the affidavits attached to this motion. The declaration of Stephanie Barham and Jerry Jarzombek and the exhibits attached to those declarations are incorporated herein by reference and made a part hereof and Stephanie intends to use the affidavits as summary judgment proof. TRADITIONAL SUMMARY JUDGMENT 6. The requirements of summary judgment are well known to the trial Court. The purpose of summary judgment practice is to eliminate patently unmeritorious claims and untenable defenses; not to deprive litigants of their right to a full hearing on the merits of any real issues of fact. Compton v. Calabria, 811 S.W.2d 945 (Tex. App. - Dallas 1991, no writ). Summary judgment practice is proper in cases addressing matters of law. Howell v. City of Dallas, 549 S.W.2d 36 (Tex. Civ. App. - Waco 1977, writ ref’d n.r.e.). When a plaintiff moves for summary judgment on its own cause of action, the plaintiff must prove it is entitled to summary judgment by establishing every element of its claim as a matter of law. MMP, Ltd. V. 1 See Exhibit C to Plaintiff’s Motion, the affidavit of Douglas Turek and the attachments thereto. STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-2 Jones, 979 S.W.2d 331, 334 (Tex. App. – Houston [14th Dist.] 1998, pet. denied). When the damages are unliquidated, the court may grant an interlocutory summary judgment on liability and hold a hearing on damages, should there be a genuine issue as to the amount. TEX. R. CIV. P. 166a(a). For a defendant to prevail on a motion for summary judgment, he must disprove as a matter of law at least one element of the plaintiff’s theory of recovery. International Union of United Auto. Aerospace & Agric. Implement Workers of Am. Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558 (Tex. App. - Dallas 1991, writ denied). FACTUAL BACKGROUND Employment at Parkland 7. Stephanie discussed a nursing education and employment opportunity at Parkland with representatives of Parkland. An offer was made to hire Stephanie to be part of the Neonatal ICU Resident/Graduate Nurse Program. See Exhibit A. 8. Thereafter, Stephanie executed the Resident/Graduate Nurse Program Employment Agreement (the “Contract”) on May 23, 2016. The Contract was countersigned by Vicki Bell, Associate Director of Accounting for Parkland, the same day. The Contract is attached as Exhibit A-1 to the declaration of Stephanie Barham. 9. The Contract specified that Stephanie “will be a participant in the Neonatal ICU Resident/Graduate Nurse Program for the of July 1, 2016, November 18, 2016, (the Program Period)” and become “a member of the nursing staff of Parkland Health & Hospital System from November 19, 2016 through November 18, 2019.” The Contract specified that employment shall begin on July 1, 2016 and go through November 18, 2019. This is a period of 41 months. See Exhibit A-1. 10. Furthermore, per the Contract - and upon completion of the Program, which ran from November 19, 2016 through November 18, 2019 – Stephanie would then be declared as an STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-3 “RN I” and would continue to perform such duties required of her as a member of the nursing staff of the Employer. See Exhibit A-1. 11. Further, the Contract includes an obscured non-compete clause stating that Stephanie, “'upon successful completion of the Program, will not be eligible to enroll in another Internship/Resident/Graduate Nurse Program until the Employee’s obligations under this Agreement are fulfilled, which would have been November 18, 2019 (the '”Non-Compete Clause”). See Exhibit A-1. 12. This Non-Compete Clause is a worldwide restriction as it is not limited in geography or locality, lasts for an overlong duration of 41 months, and is overbroad in scope, prohibiting any and all internship nurse programs, resident nurse programs, and/or graduate nurse programs. 13. The Contract also includes a liquidated damages clause that assesses a penalty against Stephanie in the amount of $20,000.00 should Stephanie be terminated or quit between August 28, 2016 to November 18, 2019 of the Contract Term; however, if Stephanie quits or is terminated prior to August 27, 2016, no penalty would be assessed (the “Liquidated Damages Clause”). See Exhibit A-1. 14. Ultimately, Stephanie proceeded with terminating her employment, her last day being on September 4, 2018. See Exhibit A. Unconscionable, Overreaching, Non-Compete and Penalty Provisions 15. The Contract includes an obscured non-compete clause stating that “[Stephanie] will not be permitted to enroll in another Internship/Resident/Graduate Nurse or Nurse Fellowship Program until November 18, 2019” (the “Non-Compete Clause”). This Non-Compete Clause is a worldwide restriction as it is not limited in geography or locality, lasts for an overlong duration of 41 months, and is overbroad in scope, prohibiting any and all internship nurse programs, resident nurse programs, graduate nurse programs, and/or fellowship programs. See Exhibit A-1. STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-4 16. The Contract also includes a liquidated damages clause that assesses a penalty against Stephanie in the amount of $20,000.00 should Stephanie be terminated or quit between August 28, 2016 and November 18, 2019 of the Contract Term; however, if Stephanie quit or was terminated prior to August 27, 2016, no penalty would be assessed (the “Liquidated Damages Clause”). See Exhibit A-1. 17. On March 22, 2022, Parkland filed this lawsuit against five (5) nurses. 18. On June 17, 2022, Parkland amended its lawsuit to include Stephanie and twelve (12) other nurses alleging that each of the defendant nurses have breached their respective contracts with Parkland and thus owe Parkland liquidated damages. Parkland has established a pattern of attempting to enforce the same punitive contractual provision against hard working men and women who dedicated their lives to helping care for others. 19. The liquidated damages provisions in each of the defendant's contracts range from $10,000.00 to $20,000.00. Most of the nurses have been sued for the vast majority, if not the full amount of their respective liquidated damages provision. Essentially, Parkland is using the liquidated damages provision in each of these contracts as a profit center and as referenced above, an unconscionable and overreaching restriction on each of the employee's ability to seek gainful employment – that is to say, Parkland is attempting to extract a penalty from its nurses. 20. Although the facts are different in each case, since each of the suits against the named defendants in this lawsuit are different cases with different facts and different parties, Parkland includes multiple nurses in each lawsuit to avoid the cost of filing fees for bringing what should be separate suits for separate causes of action against separate nurses. Stephanie is not familiar with these other nurses. It is inexcusable and inequitable for Stephanie to be added to a lawsuit with other nurses / defendants with whom Stephanie has no connection, nor knowledge of, and a disclosure of her personal financial situation with Parkland. STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-5 21. As applicable to Stephanie, Parkland seeks to enforce its unconscionable and overreaching noncompete and liquated damages clauses in an amount of $19,400.58., and in an effort to prevent Stephanie from working as a nurse worldwide. 22. This lawsuit was filed against several defendants who are not residents of Dallas County, with an explicit claim that Dallas County was a proper venue. Plaintiff takes advantage of a single filing fee without regard to the residence of any particular defendant and aggregates its claims rather than observe the venue rules. Perhaps Plaintiff relies on its venue clause in the misguided belief that the ‘agreement’ isolates it from venue claims. 23. Stephanie Sisk was neither a resident of Dallas County at the time she entered in the agreement made the basis of Plaintiff’s lawsuit nor at the time the lawsuit was amended to add her as a defendant. Stephanie Sisk did not sign the agreement in Dallas County. Stephanie Sisk signed the agreement in Denton County and was served in Denton County on July 22, 2022. 24. Transactions such as this are consumer in nature, lacking a “profit motive” on the part of the nurses involved. Much of the authority as to the “consumer” nature of education is found in federal cases under the Fair Debt Collection Practices Act. 25. “Education” encompasses something broader than mere investment in pursuit of profit. Brown v. Bd. of Ed. Of Topeka, Shawnee Cnty, Kan., 347 U.S. 483, 493 (1954) (“. . . our recognition of the importance of education to our democratic society . . . . It is the very foundation of good citizenship.”); Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (“The American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted.”). Education, unlike venture capital, cannot be taken by creditors upon default and remains with the consumer throughout his or her life; any skill or knowledge acquired by Defendant is hers and hers alone. In contrast, if Defendant invested her ‘loan’ in a business and then defaulted, any plaintiff seeking to collect that ‘loan’ would be provided with STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-6 ample opportunities to reach such an interest. These factors, when viewed “as a whole,” indicate that educational services were primarily for personal purposes. Indeed, Stephanie Sisk sought to improve her earning capacity to provide a better life for herself and her family. 26. One intended purpose of these contracts is to deter nurses from leaving Parkland. As a result, often working conditions are made difficult for the nurses – after all, Parkland will just replace them. That is what happened to Stephanie Sisk. 27. Parkland does not disclose scheduling until long after a nurse enters into the Contract. Stephanie did not get a “set schedule” until after she completed the residency. She was assigned a shift from 7pm to 7am. Frequently she was asked to work an additional 4 hours in addition to my 12-hour shift raising concerns for her safety and the safety of her patients. See Exhibit A. 28. Parkland maintained a rigid scheduling system for their nurses, based off seniority. If you were a newer nurse for the first couple of years, you worked every other Friday, Saturday and Sunday. Stephanie Sisk found herself going through a divorce, and her (now) ex-husband was trying to use the fact that she worked nights against her in an attempt to keep her from having primary custody of their child. Stephanie asked her manager if she could temporarily go to dayshift until her divorce was final so that it would not get in the way of her getting primary custody, but that request was refused. Parkland was unwilling to work with her because they believed if they would work with Stephanie, then they would have to work with everyone. See Exhibit A. 29. Stephanie asked for some accommodation to be made for her during her divorce; she knows it was certainly more than once. These requests were made to her supervisor, and Stephanie told her about her custody situation and everything she was going through. It was such a large unit that Parkland simply did not care about personal situations and wouldn’t budge on scheduling whatsoever. It was black and white to them period. Parkland forced Stephanie into a situation where STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-7 she had to make a choice as to whether she would be there for her child. Parkland made the scheduling so intolerable that a reasonable employee would feel forced to resign, and that is what she did. Her last day at Parkland was September 4, 2018. See Exhibit A. 30. In one situation, Stephanie was scheduled to work a night shift and the day shift the following day – resulting in 24 hours on duty. Her supervisor refused to alter the schedule, causing Stephanie to engage in the ‘frowned upon practice’ of going to the director to get the relief she requested. See Exhibit A. ARGUMENTS & AUTHORITIES 31. Plaintiff’s Motion is based solely on a beach of contract, and incorrectly assumes the validity of that contract. Plaintiff then takes a journey through the elements of contract formation and never addresses the validity of the contract and whether the contract is enforceable under Texas law. Stephanie Sisk raised the issue of enforceability in her counterclaim, which is not addressed in Plaintiff’s Motion for Summary Judgment. 32. Plaintiff then discusses the liquidated damages clause, claiming that damages are difficult to determine - but then providing the Kirby affidavit in an effort to show the damages are able to be quantified. Plaintiff has raised a fact question as to its liquidated damages argument. 33. And finally, Plaintiff argues its entitlement to recover attorney fees – and a time when The Turek Law Firm, P.C. has become a “terminated entity” – incapable of transacting business in Texas. The Contract is an Unlawful Restraint of Trade 34. Under the Texas Free Enterprise and Antitrust Act, “Every contract...in restraint of trade or commerce is unlawful.” TEX. BUS. COMM. CODE § 15.05(a). The statute contains one exception to this rule: even though they are contracts in restraint of trade, covenants not to STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-8 compete are permitted, as long as they meet certain requirements. TEX. BUS. COMM. CODE § 15.50. Those requirements are: ● The covenant not to compete must be “ancillary to or part of an otherwise enforceable agreement at the time the agreement is made;” and ● It must contain “limitations as to time, geographical area, and scope of activity to be restrained” that are “reasonable,” and that “do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.” Id. 35. If the primary purpose of an agreement is to obligate an employee to render personal services, for a term or at will, the employer has the burden of establishing that the covenant meets the above criteria. TEX. BUS. COMM. CODE § 15.51(b). Parkland cannot do this, and has not established its right to summary judgment considering Stephanie Sisk’s counterclaim. 36. If the agreement fails to meet both of these criteria, it must be declared unlawful under TEX. BUS. COMM. CODE § 15.05. If the agreement meets the first criterion, but not the second (i.e., if it is part of another enforceable agreement, but does not contain reasonable limitations or imposes a greater restraint than is necessary), the Court may reform the agreement. But in the case of reformation, the employer may not collect damages for breaches that occurred prior to the reformation, and the relief granted to the employer must be limited to injunctive relief only. TEX. BUS. COMM. CODE § 15.51(c). 37. Parkland’s Nurse Agreement is a clear restraint of trade. That means it is unlawful, unless Parkland can establish that it meets the requirements of a “covenant not-to- compete” under TEX. BUS. COMM. CODE § 15.50. Parkland cannot do this, because its anti- competitive liquidated damage clause: (1) is not “part of an otherwise enforceable agreement;” (2) does not contain any limitations as to time, geography, or scope - let alone “reasonable” STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-9 limitations; and (3) is not designed to enforce any other non-illusory promises made by Stephanie in the Nurse Agreement. Parkland’s Contract operates as a Restraint of Trade, and therefore must be analyzed under Tex. Bus. Comm. Code § 15.50 et seq. 38. The Contract at issue in this case requires Parkland’s nurses to serve out a three year term at Parkland. If they fail to do so for any reason (including if they are fired by Parkland), they are required to pay Parkland a substantial sum of money. 39. Parkland may argue that because its Contract is not an explicit “non-compete,” it is not subject to the requirements of TEX. BUS. COMM. CODE § 15.50. But Texas courts have repeatedly confirmed that the statute applies “not only to provisions that expressly limit a former employee’s professional mobility, but also to damages provisions that impose a severe economic penalty on a departing employee.” Rieves v. Buc-ee’s Ltd., 532 S.W.3d 845, 851 (2017) (citing Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381, 388 (Tex. 1991) (holding that “provisions clearly intended to restrict the right to render personal services are in restraint of trade and must be analyzed for the same standards of reasonableness as covenants not to compete to be enforceable,” and applying those standards to conclude that requiring employee to pay liquidated damages was unreasonable); Frankiewicz v. Nat'l Comp Assocs., 633 S.W.2d 505, 507 (Tex. 1982) (agreement that departing employee would forfeit vested commissions in event of competition was unenforceable)). 40. This is because “The practical and economic reality” of such clauses is that they inhibit employee mobility in “virtually the same [manner] as a covenant not to compete.” Haass, 818 S.W.2d at 385-86. The Texas Supreme Court in Haass noted that it has “expressly rejected” the argument that a liquidated damages provision like Parkland’s “is not a covenant not to STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-10 compete” just because the former employee is not explicitly prohibited from competing. Haass, 818 S.W.2d at 386 (citing Frankiewicz, 633 S.W.2d at 507). 41. The Rieves case is instructive on this point. In that case, Buc-ee’s required its employee Kelley Rieves to sign a contract that required her to pay Buc-ee’s a large sum of money if she did not remain employed by Buc-ee’s for at least four years. The sum was equal to the amount of certain “bonus” and “retention” payments she had been paid while employed there. When she resigned prior to the end of her four-year term, Buc-ee’s sent her a letter demanding payment under that contract. Rieves responded by filing a lawsuit, seeking a declaration that the contract was an unenforceable restraint of trade. This is the same relief Stephanie Sisk seeks through her counterclaim. 42. Buc-ee’s argued that the contract was merely a loyalty incentive program, not a restraint of trade. The appellate court disagreed, holding: “Because the [repayment] provisions impose a severe economic penalty on Rieves if she exercises her right as an at-will employee to quit her employment with Buc-ee’s, we conclude they are unlawful unless they meet the reasonableness standards applicable to covenants not to compete.” Rieves at 851. 43. That is abundantly clear in this case, because Plaintiff seeks to have Stephanie return all the money she was paid by Parkland – effectively causing her to have received nothing for the services she performed for the patients at Parkland – resulting in violation of law regarding the payment of a minimum wage… 44. The Rieves Court also explained how a punitive repayment clause like this is different from legal loyalty or incentive-based compensation plans: ● A legal loyalty-based compensation plan involves the cancellation of future payments, such as unvested stock options under a non-contributory profit-sharing plan - not the return of compensation that had already vested or been paid. STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-11 ● Legal forfeiture provisions conditioned on loyalty do not restrict or prohibit the employees' future employment opportunities. Instead, they reward employees for continued employment and loyalty. Their purpose is unrelated to restraining competition. A non-compete, on the other hand, attempts to protect the investments an employer has made in an employee, ensuring that the costs incurred to develop human capital are protected against competitors who, having not made such expenditures, might appropriate the employer's investment. ● A former employer does not need to take legal action to trigger the terms of a loyalty program, because the profit-sharing or other similar plan belongs to the employer. Whereas with a non-compete, the former employer must bring a breach of contract suit to enforce the clause. 45. The repayment clause in this case is remarkably similar to the clause at issue in Rieves. It requires the nurse to “repay” Parkland for its purported investment in them if they leave Parkland’s employ before a given date. Like the Buc-ee’s clause, the Parkland clause requires this repayment regardless of the reason for an employee’s departure. Parkland’s clause does not have any of the hallmarks of a legal employee incentive or loyalty plan. And it unquestionably “imposes a severe economic penalty” on the Parkland nurses if they exercise their right as at-will employees to quit their employment. As a result, the Parkland clause - like the clause in Rieves - must be analyzed under TEX. BUS. COMM. CODE § 15.50 et seq. The liquidated damage clause is not “Ancillary to or Part of” another, otherwise enforceable agreement. 46. For an anti-competitive clause like Parkland’s to be enforceable, it must be “ancillary to or part of” another separate set of mutually-binding, non-illusory promises - a set of promises that is enforceable on its own, separate from the anti-competitive clause. See, e.g. Light v. Central Cellular Co., 883 S.W.2d 642 (Tex. 1994). In Light, the Texas Supreme Court explained that when determining if a noncompete is “ancillary to or part of” another enforceable agreement, courts must examine what, if any, non-illusory promises have been made by the parties other than the non-compete promise itself. Id. at 645-46 (observing that separate from the covenant not to compete, the contract contained three non-illusory promises). STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-12 47. The Contract at issue in this case requires Parkland’s nurses to serve out a three year term, or else pay a hefty fee. That is the anti-competitive clause in the Agreement (as explained above). Looking beyond that clause, the Court must determine: (1) what other promises exist in Parkland’s Contract, if any; and (2) whether those other promises (if any) are non-illusory. If there are no other non-illusory, mutually-binding promises in the Contract, then the anti-competitive clause is not “ancillary to or part of” another, otherwise enforceable agreement - and it fails under Texas law. Parkland makes no promises in the Agreement 48. Parkland does not expressly agree to anything in its Agreement. It makes a few representations that appear to promise something, but each of them is belied by subsequent disclaimers that relieve Parkland of any actual obligation to perform. Parkland’s offer of at-will employment is illusory, and is not sufficient to support the anti-competitive “liquidated damages” clause 49. Parkland has confirmed that the “job offer” contained in these types of agreements are only for at-will employment. This is reflected in the Agreement, which explicitly states in multiple places that the Employee can be terminated at any time (see Exhibit A-1). 50. The Agreement could not be interpreted any other way, because it does not explicitly limit Parkland’s ability to terminate the nurse to specific, limited circumstances. See, e.g. Talford v. Columbia Med. Ctr. At Lancaster Subsidiary, L.P., 198 S.W.3d 462 (Tex. App. - Dallas 2006, no pet.) (to overcome the presumption of at-will employment, the employer must unequivocally indicate a definite intent to be bound not to terminate the employee); Massey v. Houston Baptist University, 902 S.W.2d 81 (Tex. App - Houston [1st Dist], 1995) (written employment contract did not alter at-will employment relationship because it contained no terms expressly limiting employer's ability to terminate the employee). STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-13 51. This is important, because under Texas law, a promise of at-will employment is no promise at all. It is illusory because it does not bind the promisor, who retains the option to discontinue performance at any time. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 849 (Tex. 2009). When illusory promises are all that support a purported bilateral contract, there is no mutuality of obligation, and therefore, no contract. Vanegas v. Am. Energy Servs., 302 S.W.3d 299, 301–02 (Tex. 2009). For this reason, an at-will employment relationship alone cannot constitute an “otherwise enforceable agreement.” Light v. Centel Cellular Co., 883 S.W.2d 642, 645 (Tex. 1994). An anti-competitive clause is only enforceable if it is designed to enforce the promises made by the employee in the “otherwise enforceable agreement.” 52. Even in cases where a non-compete clause is found to be “ancillary to or part of” a separate, standalone exchange of non-illusory promises, it can only be enforced if it is “designed to enforce the employee's...return promise in the otherwise enforceable agreement.” Sheshhunoff, at 649 (citing Light, at 647). 53. For example, in Light, the underlying agreement contained the following non- illusory exchange of promises: (1) the employer agreed to provide specialized training and confidential information; and (2) the employee agreed to give 14-days’ advance notice before leaving the company, and to provide an inventory upon her exit. This mutual exchange of promises, which stood on its own, apart from the noncompete, counted as an “otherwise enforceable agreement.” But the Court still declined to enforce the non-compete clause, because it was not “designed to enforce the employee's...return promise” to provide notice and an inventory. The Court noted that if there had been a reciprocal promise by the employee not to disclose confidential information, that could meet the “designed to enforce” requirement, since a STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-14 non-compete would naturally enforce such a promise. But the employee in Light made no such agreement in the contract, so the employer’s suit failed. 54. Similarly, the only “return promise” made by Stephanie in this case (other than the anticompetitive clause itself) is to abide by Parkland’s personnel policies and directives, and maintain her nursing license while there. Those are not non-illusory promises, because they are tied to the continuation of at-will employment. But even if they were non-illusory, the anti- competitive clause in this case (i.e., the nurse must stay for three years) is not designed to, and does not, enforce those particular promises. 55. In this case, there is no “otherwise enforceable agreement,” because there are no standalone, mutually-binding, non-illusory promises between the parties. But even if there were, Parkland’s anti-competitive clause is not “designed to enforce the employee’s return promise” to abide by Parkland’s personnel policies and directives. That means it fails under Light, Sheshunoff, and their progeny. Parkland’s Contract does not contain reasonable limitations as to geography or scope, and imposes a greater restraint than necessary. 56. Like the contract at issue in Rieves, the Parkland contracts “impose no limits on [the employee’s] repayment obligation based on whether her new employment involves certain competitive activities or is located within certain areas,” and require an employee to pay up “even if (1) [the employer] chooses to terminate her through no fault of her own on the last day of the period she is “required to work,” or (2) she quits to take a non-competing job — or no job at all.” Rieves, 532 S.W.3d at 851. 57. Parkland demands payment of the penalty regardless of whether the employee quits or is fired by Parkland. Also like the contract in Rieves, Parkland demands 100% of the fee, regardless of whether the nurse has served 1% or 99% of his or her “term” with Parkland. And STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-15 again like the contract in Rieves, Parkland’s punitive payment clause is triggered regardless of where, geographically, the nurse goes to work after Parkland (or whether they continue working at all), or what they choose to do after Parkland (i.e., whether they continue nursing or go into an entirely different field, or drop out of the workforce altogether). In other words, the contract does not contain any geographical or scope-based limitations. 58. As the Court in Rieves concluded, provisions like this “go far beyond protecting any legitimate competitive interest” of the employer. Rieves, 532 S.W.3d at 851-852. Further, they “injure the public by limiting choice and mobility of skilled employees.” Id. If that was true in Rieves, a case concerning a gas station manager, it is doubly true in this case. Parkland’s contracts restrict the mobility of, and public access to, skilled nurses - a group that is already in short supply. 59. Because the Contract is a restraint of trade under TEX. BUS. COMM. CODE § 15.50, and because Parkland cannot carry its burden to show that it meets the requirements of TEX. BUS. COMM. CODE § 15.50 (an element on which it would have the burden of proof at trial), summary judgment should be denied to Parkland. The liquidated damages clause is also an unenforceable penalty. 60. If a liquidated damages provision is nothing more than a penalty intended to secure performance of the contract, it is unenforceable. Stewart v. Basey, 245 S.W.2d 484, 486 (Tex. 1952). A liquidated damage clause is an unenforceable penalty unless it meets two requirements: (1) the harm caused by the breach is incapable or difficult of estimation, and (2) the amount of liquidated damages called for is a reasonable forecast of just compensation. Phillips v. Phillips, 820 S.W.2d 786, 788 (Tex. 1991). 61. And, a liquidated damage provision may be shown to be unreasonable on the face of the contract without proof of actual damages. Bunker v. Strandhagen, Case No. 03–14– STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-16 00510–CV, 2017 WL 876374 (Tex. App. - Austin, March 3, 2017). When it is plain from the face of a contract that a provision may operate as a penalty instead of a reasonable forecast of loss, no extrinsic evidence of unreasonableness is required. Bunker at *7, n.14. 62. A liquidated-damages provision that applies the same measure of damages for breaches of plainly varying magnitude is “facially unreasonable.” Bunker at *7 (citing Stewart, 245 S.W.2d at 485–86). This is because when a contract imposes the same penalty for a trivial breach as it does for a major breach, “it is obvious that the parties have not adhered to the rule of just compensation.” Stewart, 245 S.W.2d at 486; Cmty. Dev. Serv., Inc. v. Replacement Parts Mfg., Inc., 679 S.W.2d 721, 727 (Tex. App.--Houston [1st Dist.] 1983, no writ) (finding a fixed damages amount unenforceable because it was not a reasonable estimate of the amount needed as compensation, because all defaults, even a minor one, resulted in the same penalty); Steadfast Ins. Co. v. SMX 98, Inc., Case No. H-06-2736, 2008 WL 62199 (S.D. Tex., Jan. 3, 2008) (“the damages provision imposes a flat rate, unrelated to either the magnitude of the breach or of any harm that might result. As a matter of law, the provision does not reasonably estimate just compensation”); Mayfield v. Hicks, 575 S.W.2d 571. 575 (1978) (a liquidated damage provision is a penalty if it provides for unreasonable payments for a minor breach). 63. It is immaterial whether the actual breach at issue in the case is a major or minor one. Mayfield, at 575. What matters is whether the contract allows for a draconian penalty for even a minor breach. Id. In this case, Parkland’s contract is plainly designed as a penalty, not a legal liquidated damages provision. It does not matter whether the Parties “agreed” to the penalty. 64. Parkland may argue that because Stephanie agreed to the clause, which states that it is “not a penalty,” it cannot be considered an unenforceable penalty. This would be unpersuasive. Courts refuse to enforce liquidated damages clauses in otherwise valid contracts if STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-17 those clauses are unreasonable penalties, despite the fact that such clauses are “agreed to.” See Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 435 (Tex. App-Dallas 2004, pet. denied) (“[I]f the liquidated damages provision contains an unlawful penalty, public policy may forbid enforcement of the “agreed-to” measure of damages.”). Parkland’s claim for the wages paid to Stephanie Sisk as “actual damages” is without merit 65. Parkland's argument (that it can still recover actual damages, even if the liquidated damage clause is deemed unenforceable) assumes that it has incurred, and can prove up, any actual damages that it suffered as a result of Stephanie’s. It has not. In its Motion, Parkland identifies only one “actual damage” figure - the wages it paid to Stephanie in exchange for her work in the Nurse Residency Program. Parkland could never legally recover actual damages based on the salary it paid its employee for her work. Parkland attempts to avoid this problem by claiming that the work performed by the nurses during their residencies is “non- productive,”2 and therefore their salaries are actually a “loss” to Parkland. This argument wildly misconstrues what “damage” means in the context of a breach of contract claim. 66. Financial losses are only recoverable if they result from a breach. To the extent that Parkland recoups less in profit than it pays out in salaries, that may be a “loss” on its books – but it’s not a loss that results from the breach (i.e., the nurse leaving before his/her term is up). That “loss” would exist regardless of whether a nurse serves out their full term. 67. Furthermore, Parkland is statutorily required to pay its nurses for their work under Fair Labor Standards Act, under the Texas Payday Act, and under its own contracts. Wage payments that Parkland made pursuant to statutory and contractual requirements cannot somehow now be “damages.” If Parkland were to now claw back those previously paid-out 2 This appears as a common theme in Allen Kirby affidavits in this case, for each Defendant. It would seem that Mr. Kirby refers to all the early terminations as being “non-productive” on the one hand, while Parkland claims it was STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-18 wages (on which the nurses have already paid taxes), the absurd result would be that the nurses worked without pay during their residency. That would put Parkland in violation of the FLSA, among other statutes. The argument has no merit. The harm caused by a breach is not incapable of estimation, maybe? 68. For a liquidated damage clause to be enforceable, “the harm caused by the breach” must be “incapable or difficult of estimation.” Phillips, at 788. See also Steadfast Ins. Co. v. SMX 98, Inc., Case No. H-06-2736, 2008 U.S. Dist. LEXIS 446, 2008 WL 62199 (S.D. Tex., Jan. 3, 2008) (striking down a purported liquidated damage clause where “[t]he harm resulting from uninsured and underinsured subcontractors is neither incapable nor very difficult of accurate estimation,” and “[t]he record shows that the likely harm...could be estimated”). 69. Plaintiff’s argument lacks candor, as it makes an argument in its Motion (through Allen Kirby) about the costs to Parkland. Parkland’s claim for attorney’s fees is preempted by TEX. BUS. COMM. CODE § 15.50 et seq., and therefore must be dismissed. 70. In its Petition, Parkland seeks attorney’s fees under TEX. CIV. PRAC. & REM. CODE § 38.001. That section permits the recovery of attorneys’ fees on claims for breach of a written contract. It is explicitly preempted, however, by TEX. BUS. COMM. CODE § 15.50 et seq. TEX. BUS. COMM. CODE § 15.52 (“the procedures and remedies in an action to enforce a covenant not to compete provided by Section 15.51 of this code are exclusive and preempt any other...procedures and remedies in an action to enforce a covenant not to compete under common law or otherwise”). 71. That statute limits the type of relief that a Court can award to a promisee (i.e., Parkland) suing to enforce an anti-competitive covenant. It may only recover damages, deprived of their services on the other hand. STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-19 injunctive relief, or both. TEX. BUS. COMM. CODE § 15.51; Rieves, 532 S.W.3d at 854 (sustaining employee’s challenge to employer’s request for attorney’s fees, because “section 15.52 preempts Buc-ee's request for fees based on other statutes or the 2010 Agreement”). 72. Because Parkland’s Contract is subject to the dictates of TEX. BUS. COMM. CODE § 15.05, as set forth above, it cannot seek attorney’s fees against Stephanie (or any other defendant). Stephanie is therefore entitled to have Parkland’s claim for attorney’s fees denied as a matter of law on under TEX. R. CIV. P. 166a(c). OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE Objections to the affidavit of Allen Kirby 73. The affidavit of Allen Kirby is an attempt at creating a summary judgment affidavit (which must be based on personal knowledge) with a business records affidavit (which does not require personal knowledge of the contents of the documents, but does require knowledge of the creation of the documents). The Kirby affidavit fails both as a summary judgment affidavit and as a business records affidavit. 74. Summary judgment affidavits. The summary judgment affidavit must show that the affiant is testifying from personal knowledge. TEX. R. CIV. P. 166a(f); TEX. R. EVID. 602; Ryland, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1966); Grand Prairie ISD v. Vaughn, 792 S.W.2d 1944, 1945 (Tex.1990). The affidavit must also show that the witness is competent to testify about the subject matter of the affidavit. Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761-62 (Tex. 1988). “An affidavit which does not positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant’s personal knowledge is legally insufficient.” Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984)); see also N. P. Davis & Co. v. Campbell & Clough, 35 Tex. 779, 781 (1872) (affidavits must be made to actual knowledge of the facts, “not to the STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-20 best of the knowledge and belief” of the affiant); Caperton v. Wanslow, 18 Tex. 125, 133 (1856) (finding affidavit based on “information and belief of the party” manifestly insufficient). Nothing in the affidavit shows that he is competent to testify about the transactions he describes in the affidavit. His statements are conclusory, based on hearsay and speculation, without foundation, and will not support a summary judgment. He was not at Parkland at any time Stephanie Sisk was there. See Exhibits B, B-2, B-3, B-4, B-5 and B-6. 75. Business records affidavits. To be a business record, entries must be made routinely in the regular course of the entity’s activity and not irregularly or sporadically. See Redkin Lab., Inc. v. Levin, 843 F.2d 226, 229 (6th Cir. 1988); Tex. Employer's Ins. Ass’n v. Sauceda, 636 S.W.2d 494, 499 (Tex. App. - San Antonio 1982, no writ). Thus, a document prepared for purposes of litigation is not admissible under this exception because it lacks trustworthiness. Paddock v. Dave Christensen, Inc., 745 F.2d 1254, 1259 (9th Cir. 1984); Sauceda, 636 S.W.2d at 499. This is because “where the only function that the report serves is to assist in litigation or its preparation, many of the normal checks upon the accuracy of business records are not operative.” MICHAEL J. MCCORMICK ON EVIDENCE § 288, at 272 n.33 (John W. Strong 4th ed. 1992). A case that describes the requirement that the affiant have knowledge of how the business records are prepared is In re E.A.K., 192 S.W.3d 133, 142 (Tex. App. – Houston [14 Dist.] 2006, pet. denied): “Rule 803(6) does not require that the witness laying the predicate for admission of a document be the creator of the document or even an employee of the same company as the creator. See TEX. R. EVID. 803(6); Houston Shell & Concrete Co. v. Kingsley Constructors, Inc., 987 S.W.2d 184, 186 (Tex. App. - Houston [14th Dist.] 1999, no pet.); Montoya v. State, 832 S.W.2d 138, 141 (Tex. App. - Fort Worth 1992, no pet.). The witness does not even have to have personal knowledge of the information recorded in the document but need only have knowledge of how the records were prepared. In re K.C.P., 142 S.W.3d 574, 578 (Tex. App. - Texarkana 2004, no pet.); In re J.G., 112 S.W.3d 256, 262 (Tex. App. - Corpus Christi 2003, no pet.); Montoya, 832 S.W.2d at 141.” STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-21 76. Nothing in his affidavit shows that Mr. Kirby is competent to testify as to how the records were created at Parkland – because he was not there at any time when Stephanie Sisk was there. 77. To better understand the lack of knowledge regarding Parkland’s records, consider the five exhibits obtained from the UT Southwestern Medical Center website. See Exhibits B, B-2, B-3, B-4, B-5 and B-6. 78. Printouts from government websites were self-authenticating under Texas Rule of Evidence 902(5). Williams Farms Produce Sales, Inc. v. R & G Produce Co., 443 S.W.3d 250, 258 (Tex. App.—Corpus Christi 2014, no pet.). Texas Rule of Evidence 902(5) dictates that “[b]ooks, pamphlets, or other publications purporting to be issued by public authority” are self- authenticating. Id. Multiple federal district courts have determined that documents printed from government websites are self-authenticating under Federal Rule of Evidence 902(a)(5), the federal counterpart to Texas Rule of Evidence 902(5). See Williams v. Long, 585 F.Supp.2d 679, 689 (D.Md. 2008) (reasoning that “the public authority’s selection of the posted information for publication on its website will act as the necessary ‘seal of approval’ needed to establish that the information came from a public authority for purposes of Rule 902(5)”); see also Paralyzed Veterans of Am. v. McPherson, C064670SBA, 2008 WL 4183981 at *7 (N.D. Cal. Sept. 9, 2008) (collecting federal cases from multiple jurisdictions holding that printouts from government websites are self-authenticating); U.S. E.E.O.C. v. E.I. DuPont de Nemours & Co., CIV. A. 03– 1605, 2004 WL 2347559, at *2 (E.D.La. Oct. 18, 2004). Moreover, the application of the rule in these circumstances is consistent with its plain language as information on a government website is a “publication purporting to be issued by a public authority.” See F.F.P. Operating Partners, LP. v. Duenez, 237 S.W.3d 680, 684 (Tex. 2007) (“As with any statutory provision, our goal is to ascertain legislative intent by examining the statute's plain language.”). STEPHANIE SISK’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE-22 79. UT Southwestern is a member of the University of Texas health institution. See Exhibit B-7. As such, it is a governmental entity of the State of Texas. 80. As to the rest of the exhibits, Exhibit B-1 is a copy of the forfeiture notice for The Turek Law Firm, P.C. from the website o