Mireles also claims that Volmert asked her to perjure herself in connection with a lawsuit brought by a former employee against two doctors and that she refused. There is legally sufficient evidence of this allegation. Mireles testified that an office manager had "raised some concerns about one of the doctors in the practice to the administration at LMG." According to Mireles, after the office manager raised the concerns, one of the doctors wanted to fire the office manager. Volmert asked Mireles to investigate the accounting practices followed by the office manager at the doctors' office. After Mireles finished her investigation, Volmert asked her whether there were any grounds on which to fire the office manager. Mireles told Volmert that there was nothing wrong with the accounting practices followed by the manager, so Mireles could not recommend that the office manager be terminated. Volmert then told Mireles to say "whenever asked by counsel, that [Mireles] had found some inappropriate accounting practices by the office manager." Volmert asked Mireles to "concoct this story in the lawsuit." Mireles testified that she told Volmert she would not do so.Unfortunately for Mireles, the perjury issue was just one of four definitions of what constituted an "illegal act" for Sabine Pilot purposes, and there was no evidence to support findings that Mireles was ever ordered to violate the first three.
LMG and Mercy argue that Volmert's alleged request of Mireles to perjure herself and Mireles's refusal do not fit within Sabine Pilot because "[i]t is undisputed that Mireles was never called on to testify in the lawsuit brought before the office manager." Sabine Pilot, however, only requires a party to refuse to perform an illegal act. Whether one is called to testify is immaterial. Mireles meets Sabine Pilot's requirements by refusing to commit perjury when asked by Volmert.
The opinion turns on the broader trial/appellate issue of broad form submission, with the Court relying on decisions by the Supreme Court disapproving broad form submissions in cases with similar results, although it notes that the Supreme Court has never had this precise issue. To make it more interesting, the Court notes its sister court in Fort Worth has taken a different position on this question.
It seems ripe for Supreme Court review, but if it reaches the court, it will raise an interesting issue for Justice Green, a member of this panel decision. He will become a Supreme Court Justice on January 1st. My assumption is that he would recuse himself. However, I only assume that to be true and that may not be the case. If it is required, that raises an interesting question, since the people of Texas have elected him to sit in the capacity of a Supreme Court Justice. In the panel decision, he was only making a legal decision based on the record, as opposed to a trial judge who was creating the record, so it does not seem that the need for recusal is as great. Why shouldn't the defendant be entitled to have his legal judgment applied once again? I am sure that others who know a lot more about appellate law and recusal can quickly set the matter straight on this point.
Although Mireles and her counsel can not be happy, she has at least kept her hopes for another day in court alive. Unless, and I think that is a huge caveat, the Supreme Court chooses to weigh in on whether or not "perjury in the abstract", as this might be called, is sufficient for a Sabine Pilot cause of action when it is considering the issue of the proper submission.