the Cardio Group, LLC, Cardiology Institute of America LLC, and Cardiocloud, LLC v. Jacob B. Kring and Hedrick Kring, PLLC

Affirmed and Opinion Filed December 20, 2022




                                               In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-22-00101-CV

                      THE CARDIO GROUP, LLC,
              CARDIOLOGY INSTITUTE OF AMERICA LLC,
                  AND CARDIOCLOUD, LLC, Appellants
                                V.
          JACOB B. KRING AND HEDRICK KRING, PLLC, Appellees

                   On Appeal from the 101st Judicial District Court
                                Dallas County, Texas
                        Trial Court Cause No. DC-21-14540

                            MEMORANDUM OPINION
                      Before Justices Nowell, Smith, and Rosenberg1
                              Opinion by Justice Rosenberg
        The trial court granted appellees’ motion to dismiss under the Texas Citizens

Participation Act (TCPA) and awarded attorney’s fees and sanctions against

appellants. See TEX. CIV. PRAC. & REM. CODE §§ 27.003, 27.009. In two issues,

appellants challenge the trial court’s awards and contend that TCPA § 27.009

violates their due process rights. Concluding that the trial court did not abuse its


    1
      The Hon. Barbara Rosenberg, Justice, Assigned. This case was submitted with oral argument. At the
time of submission, Justice Leslie Osborne was a member of the panel. Justice Rosenberg succeeded Justice
Osborne as a member of the panel after Justice Osborne’s resignation from the Court. See TEX. R. APP. P.
41.1.
discretion in making the awards and that appellants did not preserve their due process

challenge for appellate review, we affirm the trial court’s order.

                                            BACKGROUND

        The facts are well-known to the parties,2 and we do not recite them here except

as necessary to explain our decision and the reasons for it. See TEX. R. APP. P. 47.4.

        This lawsuit is a new chapter in a longstanding dispute between appellants,

their principal Melissa Larsen, and AC Square, Inc., a company represented by

appellees Jacob B. Kring and Hedrick Kring, PLLC (Lawyers). In a related lawsuit

filed in 2018, AC Square obtained a judgment against Larsen for amounts due on

several promissory notes (the Underlying Lawsuit). The notes were secured by

certain “Maxpulse cardiovascular devices.” Shortly after AC Square filed the

Underlying Lawsuit, Larsen submitted a “Confession of Judgment” for

$4,125,000.00, the full amount due under the promissory notes. The Lawyers

initially filed a motion on AC Square’s behalf for entry of judgment based on the

confession, but later withdrew the motion. The litigation continued, culminating in




    2
      Nor is this dispute new to this Court, which has denied five related petitions for writs of mandamus
and one petition for writ of habeas corpus filed by appellants’ principal Melissa Larsen. See In re Larsen,
No. 05-22-00030-CV, 

, at *1 (Tex. App.—Dallas July 14, 2022, orig. proceeding) (mem.
op.) (mandamus denied); In re Cardio Grp., LLC, No. 05-18-00777-CV, 

, at *1 (Tex.
App.—Dallas Dec. 19, 2018, orig. proceeding) (mem. op.) (mandamus denied); In re Larsen,
No. 05-18-00812-CV, 

, at *1 (Tex. App.—Dallas Dec. 19, 2018, orig. proceeding)
(mem. op.) (mandamus denied); In re Larsen, No. 05-18-00775-CV, 

, at *1 (Tex. App.—
Dallas July 10, 2018, orig. proceeding) (mem. op.) (mandamus denied); In re Larsen, No. 05-18-00779-CV,

, at *1 (Tex. App.—Dallas July 10, 2018, orig. proceeding) (mem. op.) (writ of habeas
corpus denied); see also In re Larsen, No. 05-22-01062-CV, 

, at *1 (Tex. App.—Dallas
Nov. 4, 2022, orig. proceeding) (mem. op.) (mandamus denied).
                                                   –2–
part in a partial summary judgment order awarding AC Square $4,891,043.88 on

March 23, 2021. This order became a final judgment when AC Square’s remaining

claims were severed into a separate action on March 29, 2021.

      On September 30, 2021, appellants The Cardio Group, LLC, Cardiology

Institute of America LLC, and Cardiocloud, LLC (Cardio entities) filed this case for

tortious interference with contract against the Lawyers. The Cardio entities pleaded

that in the Underlying Lawsuit, the Lawyers “sent multiple letters to [the Cardio

entities’] customers falsely stating that AC Square, Inc. had perfected liens against

the equipment, and demanding payment of the loan balance or return of the

equipment.” Attached to the petition were copies of several letters on the Lawyers’

letterhead. Each letter included the caption of the Underlying Lawsuit and attached

a copy of Larsen’s confession of judgment.

      The Lawyers filed a motion to dismiss pursuant to the TCPA, alleging that the

Cardio entities’ claims were based on the Lawyers’ exercise of their right to petition.

See TCPA §§ 27.001(4) (defining “exercise of the right to petition”); 27.003(a)

(motion to dismiss). The Cardio entities did not respond to the motion.

      Several weeks later, the Lawyers also filed a motion to dismiss pursuant to

civil procedure rule 91a, contending that the Cardio entities’ claims were barred

under the attorney immunity doctrine and by the statute of limitations. Shortly after

the Lawyers filed their 91a motion, the Cardio entities filed a notice of nonsuit

without prejudice that the trial court granted on December 28, 2021.

                                         –3–
      The trial court then heard the Lawyers’ TCPA motion and considered

evidence on attorney’s fees and sanctions. The Lawyers provided a sworn

declaration and itemized fee statements in support of their request for attorney’s fees.

The declaration, made by appellee Kring, also included testimony regarding the

amount of sanctions the Lawyers requested. Kring explained his conclusion that

$50,000.00 was appropriate and necessary to discourage appellants from bringing

similar suits in the future in violation of the TCPA. The Cardio entities filed an

objection and response to the request for attorney’s fees and sanctions.

      The trial court signed its order granting the Lawyers’ TCPA motion on

January 24, 2022. In the order, the trial court dismissed the Cardio entities’ claims

with prejudice, awarded attorney’s fees of $12,676.50 in the trial court and

additional amounts for appeal, and assessed sanctions in the amount of $50,000.00.

This appeal followed.

                        ISSUES AND STANDARDS OF REVIEW

      In their first issue, the Cardio entities contend the trial court erred by

(1) granting the Lawyers’ TCPA motion to dismiss, (2) awarding the Lawyers “an

unreasonable amount of attorney’s fees” and (3) awarding the Lawyers $50,000.00

“in discretionary sanctions.” In their second issue, the Cardio entities contend that

TCPA § 27.009 violates their due process rights “by not allowing parties to

voluntarily nonsuit their claims without being subject to mandatory attorney’s fees

and discretionary sanctions.”

                                          –4–
      The TCPA permits a defendant to move for dismissal of a legal action that is

“based on or is in response to a party’s exercise of the right of free speech, right to

petition, or right of association.” TCPA § 27.003(a). In deciding whether a legal

action should be dismissed under the TCPA, the trial court “shall consider the

pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil

Procedure, and supporting and opposing affidavits stating the facts on which the

liability or defense is based.” Id. § 27.006(a); Goldberg v. EMR (USA Holdings) Inc.,

, 824 (Tex. App.—Dallas 2020, pet. denied).

      The Cardio entities assert that the nonsuit with the trial court’s confirmation

should dispose of the case. Generally, a plaintiff may dismiss a case or take a nonsuit

at any time before it introduces all of its evidence, excluding rebuttal evidence. TEX.

R. CIV. P. 162. Such a dismissal, however, “shall not prejudice the right of an adverse

party to be heard on a pending claim for affirmative relief . . . .” 

 This Court

recognizes that a defendant’s TCPA motion to dismiss is a claim for affirmative

relief. Duchouquette v. Prestigious Pets, LLC, No. 05-16-01163-CV, 

, at *3 (Tex. App.—Dallas Nov. 6, 2017, no pet.) (mem. op.). Therefore,

the trial court’s consideration of the motion was proper.

      We review the trial court’s application of the TCPA de novo. Creative Oil &

Gas, LLC v. Lona Hills Ranch, LLC, 

, 132 (Tex. 2019); Goldberg,

594 S.W.3d at 827 (citing Youngkin v. Hines, 

 (Tex. 2018)). In

conducting that review, we consider, in the light most favorable to the nonmovant,

                                         –5–
the pleadings and any supporting and opposing affidavits stating the facts on which

the claim or defense is based. Dyer v. Medoc Health Servs., LLC, 

 (Tex. App.—Dallas 2019, pet. denied).

      We review attorney’s fees awards under the TCPA for abuse of discretion.

See Sullivan v. Abraham, 

 (Tex. 2016). The TCPA requires an

award of “reasonable” attorney’s fees to the successful movant, defined by the

supreme court as “not excessive or extreme, but rather moderate or fair.” 

 (internal

quotation omitted); TCPA § 27.009(a)(1) (trial court “shall award” court costs and

reasonable attorney’s fees to moving party).

      We also review sanctions awards in TCPA cases for abuse of discretion. ADB

Interest, LLC v. Wallace, 

, 443 (Tex. App.—Houston [1st Dist.]

2020, pet. denied) (citing Am. Flood Research, Inc. v. Jones, 

(Tex. 2006) (per curiam)). A trial court abuses its discretion if the sanctions awarded

are greater than necessary to promote compliance. 

 A trial court does not abuse

its discretion, however, when its sanctions award is based on conflicting evidence

and some evidence of substantive and probative character supports its decision. 

                                     DISCUSSION

      1. Motion to dismiss

      The Cardio entities first contend the trial court erred by granting the Lawyers’

TCPA motion to dismiss, arguing that “[t]his case has nothing to do with



                                         –6–
Defendants’ First Amendment rights”3 and complaining of the TCPA’s “poor

drafting and overbroad definitions.” We construe this argument as a complaint that

the Lawyers did not meet their initial burden to demonstrate that the TCPA applies

to the Cardio entities’ suit. See TCPA § 27.005(b) (court shall dismiss legal action

against moving party if moving party demonstrates the legal action is based on or is

in response to the party’s exercise of certain rights). This initial burden is the first

step in the TCPA’s three-step process that we have explained in detail in prior

decisions. See, e.g., Brenner v. Centurion Logistics LLC, No. 05-20-00308-CV,

, at *4 (Tex. App.—Dallas Dec. 14, 2020, pet. denied) (mem.

op.).4

                 A. The Cardio entities’ allegations

         The Cardio entities contend they “filed a meritorious lawsuit for tortious

interference with existing contracts” against the Lawyers. In their original petition,

the Cardio entities pleaded that “[t]he fact[s] of this case begin on May 1, 2018,

when AC Square, Inc., represented by [the Lawyers], filed an Original Petition and



    3
      We note that the supreme court has explained, “It does not follow from the fact that the TCPA
professes to safeguard the exercise of certain First Amendment rights that it should only apply to
constitutionally guaranteed activities.” Youngkin, 

.
    4
      In Brenner, we explained that in step one, the movant must demonstrate that the legal action is based
on or is in response to the movant’s exercise of a statutorily defined right or other statutorily defined
conduct. Brenner, 

, at *4 (citing TCPA § 27.005(b)). In step two, if the movant has
carried its step one burden, the burden shifts to the claimant to establish by clear and specific evidence each
essential element of the claim in question. Id. (citing TCPA § 27.005(c)). If the claimant does not carry its
burden, the trial court dismisses the claim. Id. Even if the claimant carries its step two burden, the trial court
must dismiss the legal action at step three if the movant establishes an affirmative defense as a matter of
law. Id. at *5 (citing TCPA § 27.005(d)).
                                                      –7–
Application for Temporary Restraining Order against Plaintiffs, which was assigned

to the 101st Judicial District Court in Cause Number DC-18-05693.” The Cardio

entities explained that in this “underlying matter,” Larsen signed a confession of

judgment. The Lawyers, on AC Square’s behalf, initially filed a motion for entry of

judgment based on the confession, but then withdrew the motion before any

judgment had been entered.

          The Cardio entities pleaded that despite the withdrawal “and with full

knowledge that there was no judgment entered in the case,” the Lawyers “sent

multiple letters to Plaintiff’s customers falsely stating that AC Square, Inc. had

perfected liens against the equipment, and demanding payment of the loan balance

or return of the equipment,” attaching a copy of the confession of judgment to the

letter.

               B. The Lawyers’ TCPA motion

          In their TCPA motion to dismiss, the Lawyers contended that the Cardio

entities’ lawsuit was premised on an “exercise of the right to petition,” defined in

part as “a communication in or pertaining to: (i) a judicial proceeding.” TCPA

§ 27.001(4)(A)(i). A “communication” “includes the making or submitting of a

statement or document in any form or medium.” Id. § 27.001(1). “The ordinary

meaning of the phrase ‘pertaining to’ is ‘relating directly to or concerning or having

to do with.’” Brenner, 

, at *5 (quoting Jetall Cos., Inc. v.

Johanson, No. 01-19-00305-CV, 

, at *3 (Tex. App.—Houston

                                         –8–
[1st Dist.] Nov. 3, 2020, no pet.) (mem. op.)). And a “judicial proceeding” is “any

proceeding initiated to procure an order or decree, whether in law or equity.” 

(quoting Levatino v. Apple Tree Café Touring, Inc., 

 (Tex.

App.—Dallas 2016, pet. denied) (internal quotation omitted)).

      To meet their step one burden, the Lawyers were required to demonstrate that

the Cardio entities’ legal action was in response to the Lawyers’ exercise of their

right to petition on their client’s behalf. See TCPA §§ 27.003(a), 27.005(b)(1)(B).

The Underlying Lawsuit was a TCPA “judicial proceeding.” See Brenner, 

, at *5. The Lawyers’ letters attached to the Cardio entities’ petition cited

to AC Square’s pending lawsuit against Larsen with a subject line containing the

caption, cause number, and court. The letters stated that Larsen was in default, AC

Square had a perfected lien, and AC Square had “declared its right” to take

possession of the collateral. The letters warned that any “transfer, disposition, or

concealment of AC Square’s collateral may constitute conversion, a tort.” Attached

to the letters was a copy of Larsen’s “Sworn Confession of Judgment” containing

the caption of the case and Larsen’s notarized signature.

      The Cardio entities pleaded that the Lawyers “willfully and intentionally

interfered with [their customers’] contracts . . . by knowingly sending false

correspondence regarding alleged perfected liens against the medical equipment in

Plaintiffs’ customers’ possession, and demanding payment of the loan balance or

return of the equipment without a legal right to the same.” These letters were

                                        –9–
communications relating directly to or concerning the Underlying Lawsuit. See

Brenner, 

, at *5. We conclude the Lawyers met their step one

burden to demonstrate that the Cardio entities’ lawsuit was based on or in response

to the Lawyers’ exercise of the right to petition. See TCPA §§ 27.003(a),

27.005(b)(1)(B).

      Because the Lawyers satisfied step one, the burden then shifted to the Cardio

entities to establish by clear and specific evidence a prima facie case for each

essential element of their claim for tortious interference. See TCPA § 27.005(c);

Brenner, 

, at *8. But the Cardio entities did not file a response to

the Lawyers’ motion or offer any evidence in support of their claim. Further, even if

we assume the Cardio entities met their step two burden, they conceded that their

claim was barred by the applicable statute of limitations, as the Lawyers argued in

their motion to dismiss. See TCPA § 27.005(d) (court shall dismiss legal action “if

the moving party establishes an affirmative defense . . . on which the moving party

is entitled to judgment as a matter of law”). We conclude the trial court did not err

by granting the Lawyers’ motion to dismiss. We decide this portion of the Cardio

entities’ first issue against them.

      2. Award of attorney’s fees and sanctions

             A. Attorney’s fees

      The Cardio entities argue the trial court abused its discretion by awarding the

Lawyers $12,676.50 in attorney’s fees because the amount awarded is not supported

                                       –10–
by legally and factually sufficient evidence. The TCPA provides that if a court grants

a motion to dismiss, the court “shall award to the moving party court costs and

reasonable attorney’s fees incurred in defending against the legal action.” TCPA

§ 27.009(a)(1); see also Sullivan, 

 (“the TCPA requires an award

of ‘reasonable attorney’s fees’ to the successful movant”).

        Citing Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 

,

488–89 (Tex. 2019), the Cardio entities argue that the Lawyers’ request for

attorney’s fees “includes fees which are unnecessary, unreasonable, and

unrecoverable.” And quoting Sullivan, they argue that “[u]nder the TCPA,

‘[r]easonable’ means ‘not excessive or extreme, but rather moderate or fair.’” See

Sullivan, 

. The Cardio entities’ argument rests on their contention

that had the Lawyers “reached out to Appellants’ counsel and discussed the

limitations issue,” “thousands of dollars of fees” could have been saved.5 Instead,

they argue, the Lawyers filed two “duplicative dispositive motions” under the TCPA

and Rule 91a.

        The Cardio entities also point to four specific time entries as “duplicative and

unnecessary,” noting that a paralegal, a partner, and another timekeeper each

charged several hours of time over two days in drafting and revising the TCPA

motion to dismiss. The Lawyers explain that the challenged entries include sufficient


    5
     Given the nature of the suit and these parties’ litigious history, some of which is detailed herein, we
conclude the trial court could have given this contention little weight.
                                                  –11–
detail for the trial court to have concluded that a paralegal began drafting the motion,

a partner-level attorney then further drafted and revised it, and a counsel-level

attorney continued to draft the motion based on additional research, after which the

paralegal performed further review. Based on this evidence, it was within the trial

court’s discretion to conclude that the fees charged met the required standards. See

Sullivan, 

 (determination of reasonable attorney’s fee under TCPA

is within trial court’s sound discretion).

      The Cardio entities also contend that the Lawyers’ declaration in support of

attorney’s fees does not comply with Texas law because the Lawyers did not

segregate the “fees incurred for TCPA dismissal activity” from “fees incurred for

other proceedings.” Specifically, the Cardio entities argue that the Lawyers failed to

segregate the fees incurred for the TCPA motion from the fees incurred for the

motion to dismiss under Rule 91a. They argue that fees relating to the Rule 91a

motion were not available because they timely nonsuited their claims. See TEX. R.

CIV. P. 91a.5(a) (court may not rule on motion to dismiss if, at least three days before

the hearing date, the respondent files a nonsuit of the challenged cause of action).

      The Lawyers respond that the TCPA does not limit a successful movant to

recovering only those fees incurred in connection with the motion to dismiss.

Instead, the TCPA requires the trial court to award “reasonable attorney’s fees

incurred in defending against the legal action.” TCPA § 27.009(a)(1). “Legal action”

is defined as “a lawsuit, cause of action, petition, complaint, cross-claim, or

                                         –12–
counterclaim or any other judicial pleading or filing that requests legal, declaratory,

or equitable relief.” Id. § 27.001(6). This Court has concluded a trial court did not

abuse its discretion by permitting recovery of fees under § 27.009(a)(1) for

“defensive work” including investigating the plaintiff’s claims, answering the

petition, responding to motions for discovery, attending the hearing on the motion

to dismiss, filing motions for protection to and quash subpoenas, and attending the

hearing on attorney’s fees. Shillinglaw v. Baylor Univ., No. 05-17-00498-CV, 

, at *6 (Tex. App.—Dallas June 21, 2018, pet. denied) (mem. op.); see

also Joselevitz v. Roane, No. 14-18-00172-CV, 

, at *7 (Tex.

App.—Houston [14th Dist.] Mar. 31, 2020, no pet.) (mem. op.) (permitting recovery

of fees “incurred pre-suit” and collecting similar cases).

      We conclude that the trial court did not abuse its discretion in its award of

attorney’s fees to the Lawyers. We decide this portion of the Cardio entities’ first

issue against them.

             B. Sanctions

      The Cardio entities next argue that the trial court abused its discretion by

awarding the Lawyers $50,000 in sanctions. They contend:

       The Lawyers’ own counsel requested a lesser amount of sanctions at the
        hearing;

       There is no admissible evidence to support the award;

       The trial court was not required to award sanctions in addition to attorney’s
        fees under the TCPA;

                                        –13–
         Deterrence is the only legitimate purpose of sanctions;

         Larsen’s actions are not relevant because she is not a party;

         The amount awarded was arbitrary;

         The factors the trial court should have considered in awarding sanctions
          all weigh in the Cardio entities’ favor;

         The Cardio entities’ suit “was meritorious but for the limitations issue”;
          and

         The Cardio entities “would have immediately nonsuited” had the Lawyers
          raised the limitations issue prior to filing their TCPA motion.

        The Lawyers respond that under the TCPA, the trial court was authorized to

award the amount of sanctions “sufficient to deter the party who brought the legal

action from bringing similar actions described in this chapter.” TCPA

§ 27.009(a)(2). The trial court has broad discretion to determine an amount that

meets     this   requirement.   See   Kinney    v.   BCG    Attorney      Search,   Inc.,

No. 03-12-00579-CV, 

, at *11 (Tex. App.—Austin Apr. 11, 2014,

pet. denied) (mem. op.).

        The Lawyers contend that the record supports the trial court’s exercise of its

discretion to impose sanctions. They argue a court may consider (1) whether the

sanctioned party has filed similar lawsuits in the past, see 1st and Trinity Super

Majority, LLC v. Milligan, —S.W.3d—, 

, at *20 (Tex. App.—El

Paso 2022, no pet.), (2) the party’s prior litigation conduct, see Jetall Cos., Inc. v.

Johanson, No. 01-19-00305-CV, 

, at *7 (Tex. App.—Houston

[1st Dist.] Nov. 3, 2020, no pet.) (mem. op.), (3) the amount of attorney’s fees
                                         –14–
incurred, ADB Interest, LLC, 606 S.W.3d at 443, (4) whether any aggravating

misconduct has occurred, see id., and (5) whether prior sanctions awards were

sufficient to deter the sanctioned party’s misconduct, see Kinney, 

,

at *12.

       “In general, a trial court is justified in finding that a sanction serves a deterrent

purpose under the TCPA when a sanctioned party has filed similar actions in the

past.” Milligan, 

, at *20 (collecting cases). In Milligan, even

though the appellant entities had not filed prior actions, their “predecessors-in-

interest” had done so, filing multiple actions in both the trial court and the court of

appeals to challenge—unsuccessfully—a related receivership. See 

 As here, the

same individual controlled both the appellant entities and the predecessors in

interest. 

       The Lawyers cite to Kring’s declaration in which he explains that Larsen is a

principal of each of the Cardio entities. Kring also attached a text message by Larsen

stating that once she and AC Square resolve the Underlying Litigation, the Lawyers

are “on deck for a suit” and Kring’s “skin, is next.” The Lawyers argue that “[t]his

plain threat of additional litigation” against opposing counsel “clearly implicates the

TCPA’s protection of the right to petition and supports the trial court’s decision to

sanction” the Cardio entities. Although Larsen, individually, is not a party to the

Cardio entities’ suit against the Lawyers, the Lawyers argue that the trial court took

judicial notice of its rulings in related matters in which the Cardio entities, Larsen,

                                           –15–
or both, are parties. The Lawyers have included motions and orders from these

related cases in this appellate record that detail Larsen’s and the Cardio entities’

failures to comply with discovery and related orders.6 In the Underlying Litigation,

for example, the trial court granted AC Square’s “Motion for Contempt for

Violations of Court’s Orders and Sanctions,” ordering that “Larsen is guilty of

contempt of this Court” for violation of several of the trial court’s discovery orders.

       The Cardio entities argue that the trial court could not take judicial notice “of

the truth of allegations contained in pleadings.” As we explained in Gruber v. CACV

of Colorado, LLC, a court may take judicial notice of pleadings, but may not take

the pleadings to be true absent testimony, other proof, or admissions by the other

party. No. 05-07-00379-CV, 

, at *2 (Tex. App.—Dallas Apr. 2,

2008, no pet.) (mem. op.). But “[i]t is well recognized that a trial court may take

judicial notice of its own records in a cause involving the same subject matter

between the same, or practically the same, parties.” Gardner v. Martin, 

 (Tex. 1961); see also Sierad v. Barnett, 

 (Tex. App.—

Dallas 2005, no pet.) (same, quoting Gardner). And here, the trial court took notice

of its own prior orders in related litigation, not “allegations contained in pleadings”


   6
      The supplemental clerk’s record filed in this appeal contains selected motions and orders from the
following related cases: (1) the Underlying Lawsuit, captioned as AC Square, Inc. v. Melissa Larsen, The
Cardio Grp., LLC, Larsen Medical, LLC d/b/a Cardiovascular Device Servs., LLC, Practice Freedom
Coaching, LLC, Cardiology Inst. of Am., LLC, Traction Integrated Sys. LLC, and Cardiocloud, LLC, No.
DC-18-05693 in the 101st Judicial District Court of Dallas County; (2) AC Square, Inc. v. Melissa Larsen
and Practice Freedom Coaching, LLC, No. DC-21-04344 in the 101st Judicial District Court of Dallas
County, and (3) The Cardio Grp., LLC, Cardiology Inst. of Am. LLC, and Cardiocloud, LLC v. Andrew
Korn, No. DC-21-14265 in the 193rd Judicial District Court of Dallas County.
                                                –16–
or unauthenticated documents. Cf. Gruber, 

, at *2 (unauthenticated

arbitration award attached to pleading in court’s file was not evidence).

        In its order granting the Lawyers’ TCPA motion, the court expressly recited

that it had taken judicial notice of the Underlying Litigation and two other related

matters. In those matters, the trial court had, among other rulings, “ORDERED, that

Larsen is guilty of contempt of this Court” for failing to comply with the court’s

orders to answer discovery and appear for her deposition; granted AC Square’s

application for a temporary restraining order to prevent Larsen and a related

company from disposing of collateral without AC Square’s consent, based on

findings that that Larsen and another entity “have written hot checks totaling

millions of dollars,” refused to provide financial information, made “false assurances

to ‘not worry’ about payment obligations,” and threatened bankruptcy; and heard

testimony from Larsen that she did not produce documents or appear for her

deposition even though she knew the court had ordered her to do so.7

        As explained by the court in Milligan, “[i]n determining the amount of a

sanction under the TCPA, a trial court should consider the parties’ litigation history,



    7
      We also note our finding in In re Larsen, 

, at *1, that Larsen, the Cardio entities,
and other related entities included statements in their mandamus petition that were “unsupported or
contradicted by its appendix” and omitted relevant facts and documents from their petition and appendix.
We also noted that “judgment debtor relators’ failure to make any payment towards the judgment and
relators’ failure to produce any responsive documents as of the time the petition was filed, as well as the
timeline and objections regarding AC Square’s pursuit of document production indicative of intent to delay
the underlying proceedings and recovery of the judgment by AC Square.” 

 Nonetheless, although we
found relators’ actions “concerning” and “caution[ed] them against such continued conduct,” we declined
to impose sanctions under appellate procedure rule 52.11. See 

                                                  –17–
just as it should in determining whether a sanction is warranted in the first place.”

, at *21. And as in Milligan, the trial court judge who imposed

the sanctions in this case was the same judge who had presided over the Underlying

Litigation “and observed first-hand [appellants’] conduct” in that proceeding. See 

Further, the trial court rendered judgment for AC Square in the Underlying Lawsuit

for $4,891,043.88 in actual damages which remained unpaid at the time of the

sanction. The trial court could have considered that amount, as well as the other

sanctions imposed, in determining the amount of the sanction here. See 

 (trial court

could consider sanctioned party’s ability to pay in determining amount of sanctions).

We conclude that considering the amount of the unpaid judgment, the past litigation

history, and the filing of a time-barred petition against opposing counsel, the trial

court could have reasonably concluded that an award of $50,000 in sanctions was a

reasonable and necessary amount to deter the Cardio Entities from filing similar

lawsuits in the future in violation of the TCPA. See 

 We decide this portion of the

Cardio Entities’ first issue against them.

      Having concluded that the trial court did not err by granting the Lawyers’

motion to dismiss or abuse its discretion in its awards of attorney’s fees and

sanctions, we decide the Cardio Entities’ first issue against them.

      3. Due process

      In their second issue, the Cardio entities argue that TCPA § 27.009 violates

their due process rights. They contend that “the TCPA—by limiting discovery,

                                         –18–
depriving the opportunity to confront and cross-examine witnesses, and providing

for automatic assessment of fees and expenses—impermissibly strips away

appropriate substantive and procedural safeguards to minimize the risk of unjust

punishment.” The Cardio entities did not present a due process challenge to the

TCPA in the trial court and, therefore, did not preserve the challenge for appellate

review. See TCI West End, Inc. v. City of Dallas, 

, 701–02 (Tex.

App.—Dallas 2016, pet. denied) (due process challenge not raised in trial court was

not preserved for appellate review).8 Consequently, we decide their second issue

against them.

                                            CONCLUSION

        The trial court’s judgment is affirmed.



                                                      /Barbara E. Rosenberg/
220101f.p05                                           BARBARA ROSENBERG
                                                      JUSTICE, ASSIGNED




    8
      Waiver aside, we note that several of our sister courts have rejected similar challenges to the TCPA.
See, e.g., PNC Inv. Co., LLC v. Fiamma Statler, LP, No. 02-19-00037-CV, 

, at *6–7
(Tex. App.—Fort Worth Sept. 3, 2020, no pet.) (mem. op.) (TCPA’s summary processes are neither per se
unconstitutional nor arbitrary and unreasonable when balanced against the statute’s legislative purpose and
basis); Baumgart v. Archer, 

, 830 (Tex. App.—Houston [1st Dist.] 2019, pet. denied)
(collecting cases for proposition that TCPA’s limitation on discovery does not deny access to courts).


                                                  –19–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                  JUDGMENT

THE CARDIO GROUP, LLC,                         On Appeal from the 101st Judicial
CARDIOLOGY INSTITUTE OF                        District Court, Dallas County, Texas
AMERICA LLC, AND                               Trial Court Cause No. DC-21-14540.
CARDIOCLOUD, LLC, Appellants                   Opinion delivered by Justice
                                               Rosenberg. Justices Nowell and
No. 05-22-00101-CV           V.                Smith participating.

JACOB B. KRING AND HEDRICK
KRING, PLLC, Appellees

       In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

      It is ORDERED that appellees Jacob B. Kring and Hedrick Kring, PLLC
recover their costs of this appeal and the full amount of the trial court’s judgment
from appellants The Cardio Group, LLC, Cardiology Institute of America LLC, and
Cardiocloud, LLC.


Judgment entered this 20th day of December, 2022.




                                        –20–