ACCEPTED
14-15-00295-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
4/3/2015 11:45:08 AM
CHRISTOPHER PRINE
CLERK
14-15-00295-CV
NO. __________________________
FILED IN
14th COURT OF APPEALS
In the ______________ District Court of AppealsHOUSTON, TEXAS
Houston, Texas 4/3/2015 11:45:08 AM
CHRISTOPHER A. PRINE
Clerk
KHYATI UNDAVIA, MINU RX, LTD., AND MINU GP, LLC
Appellants,
v.
AVANT MEDICAL GROUP, P.A., D/B/A INTERVENTIONAL SPINE ASSOCIATES, AND
BRETT L. GARNER, D/B/A ALLIED MEDICAL CENTERS
Appellees.
On Appeal from the 152nd Judicial District Court,
Harris County, Texas
Trial Court Cause No. 2014-22186
PETITION FOR PERMISSION TO APPEAL INTERLOCUTORY ORDER
Ashish Mahendru
State Bar No. 00796980
amahendru@thelitigationgroup.com
Darren A. Braun
State Bar No. 24082267
dbraun@thelitigationgroup.com
MAHENDRU, PC
639 Heights Boulevard
Houston, Texas 77007
713-571-1519
713-651-0776 fax
APPELLATE COUNSEL FOR APPELLANTS
IDENTITY OF PARTIES AND COUNSEL
The undersigned counsel of record certifies that the following listed persons have
an interest in the outcome of this case. These representations are made so that the
Judges in this Court may evaluate possible disqualification issues.
Appellants/Defendants: Minu RX, Ltd. d/b/a Memorial
Compounding Pharmacy
Minu GP, LLC
Khyati Undavia
Counsel for Appellants Ashish Mahendru
State Bar No. 00796980
Darren A. Braun
State Bar No. 24082267
Mahendru, P.C.
639 Heights Blvd.
Houston, Texas 77007
amahendru@thelitigationgroup.com
dbraun@thelitigationgroup.com
Appellees/Plaintiffs: Brett Garner
Brett Garner, P.A.
Avant Medical Group, P.A d/b/a Allied
Medical Centers.
Interventional Spine Associates
Nisal Corp.
Qualcare Rehabilitation
Counsel for Appellees/
Plaintiffs: Matias Adrogue
State Bar No. 24012192
Robert Stephan Kaase
State Bar No. 24083287
1629 West Alabama St.
Houston, Texas 77006
713-425-7270 (Telephone)
713-425-7571 (Facsimile)
ii
service@mjalawyer.com
Co-Defendant: Compass Bank
Counsel for Co-Defendants
Compass Bank: William P. Huttenbach
State Bar No. 24002330
Jacob M. Stephens
State Bar No. 24066143
Hirsch & Westheimer
1415 Louisiana, 36th Floor
Houston, Texas 77002
(713) 223-5181 (Main)
(713) 223-9319 (Fax)
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ......................................................................................... iv
TABLE OF AUTHORITIES ................................................................................... vi
STATEMENT OF THE CASE ................................................................................ ix
ISSUES PRESENTED...............................................................................................x
SUMMARY ............................................................................................................. xi
STATEMENT OF FACTS ........................................................................................1
A. The Underlying Lawsuit And Mutual Release .......................................2
B. The Current Lawsuit ...............................................................................2
C. Appellees And Appellants Are Inextricably Connected
With The Signatories Of The Mutual Release .......................................3
SUMMARY OF THE ARGUMENT ........................................................................7
ARGUMENT AND AUTHORITIES ........................................................................9
I. THE ORDER TO BE APPEALED INVOLVES A CONTROLLING ISSUE
OF LAW AS TO WHICH THERE IS SUBSTANTIAL GROUNDS FOR
DISAGREEMENT. .......................................................................................10
A. This Appeal Involves A Controlling Issue Of Law Because, If Mutual
Release Encompasses Appellee’s Claims, Then Those Claims Are
Barred, And Appellants Are Entitled To Summary Judgment. ..........11
iv
B. Substantial Grounds For Disagreement Exist Because The Issue
Before The Court Is Novel And There Is Little Or No Authority Upon
Which The Trial Court Can Rely. .......................................................11
(i) The issue before the Court is novel because no Texas court
appears to have considered to what extent, and under what
circumstances, an unnamed plaintiff is bound by a release ......12
a. Texas courts broadly apply the protection of releases to
unnamed defendants that are intimately connected to the
facts giving rise to the release . . . . . . . . . . . . . . . . . . . .13
b. Despite the absence of case law, there are no policy
reasons for not applying the law applicable to unnamed
defendants to unnamed plaintiffs . . . . . . . . . . . . . . . . .17
c. The interpretation of "agent" in the context of a release is
also a novel issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
(ii) There are grounds for substantial difference of opinion with
regard to the controlling issue of law because there is an
absence of case law on the issue ...............................................20
II. AN IMMEDIATE APPEAL MATERIALLY ADAVANCES THE
ULTIMATE TERMINATION OF THIS LITIGATION. ..............................20
CONCLUSION ........................................................................................................22
CERTIFICATE OF COMPLIANCE .......................................................................24
CERTIFICATE OF SERVICE ................................................................................25
APPENDIX ..............................................................................................................26
v
TABLE OF AUTHORITIES
Cases
Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) .................................................28
Dyrcz v. Longview Enter., Ltd., 2:05-CV-476 (TJW),
2006 WL 3289046, at *1 (E.D. Tex. Nov. 13, 2006),
aff'd sub nom. Dyrcz v. Graham Bros. of Longview, LLC,
234 Fed. Appx. 236 (5th Cir. 2007) ............................................................ 25, 26, 27
Gulf Coast Asphalt Company, LLC v. Lloyd , 2015 WL 393407,
at *5 (Tex. App.—Houston [14th Dist.] Jan. 29, 2015, no. pet. h.). .......... 20, 21, 22
Jorgensen v. Stuart Place Water Supply Corp., 676 S.W.2d 191, 194
(Tex. App.—Corpus Christi 1984, no writ) .............................................................29
McMillen v. Klingensmith, 467 S.W.2d 193, 197 (Tex. 1971) ................................23
Mem'l Med. Ctr. of E. Tex. v. Keszler, 943 S.W.2d 433, 435 (Tex.1997) ...............23
Michael Lee Andrews Trust v. Licari, CIV.A.3:02-CV-1076-N,
2004 WL 524941, at *2 (N.D. Tex. Mar. 17, 2004) ................................................24
Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 254 (5th Cir. 2000) .......... 23, 26
Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13, 16
(Tex. App.—San Antonio, 1998, no pet.) ................................................................25
Winkler v. Kirkwood Atrium Office Park, 816 S.W.2d 111, 113-14
(Tex. App.—Houston [14th Dist.] 1991, writ denied)................................. 23, 24, 26
Statutes
TEX. CIV. PRAC. REM. CODE §51.014(d) ..................................................................19
TEX. R. CIV. P. 168 ...................................................................................................19
vi
NO. _______________________
In the ________ District Court of Appeals
Houston, Texas
KHYATI UNDAVIA, MINU RX, LTD., AND MINU GP, LLC
Appellants,
v.
AVANT MEDICAL GROUP, P.A., D/B/A INTERVENTIONAL SPINE ASSOCIATES,
AND BRETT L. GARNER, D/B/A ALLIED MEDICAL CENTERS
Appellees.
On Appeal from the 152nd Judicial District Court,
Harris County, Texas
Trial Court Cause No. 2014-22186
PETITION FOR PERMISSION TO APPEAL INTERLOCUTORY ORDER
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Appellants, Khyati Undavia, Minu RX, Ltd., and MINU GP, LLC, file this
Petition for Permission to Appeal Interlocutory Order issued by the Honorable
Robert Schaffer, Judge in the 152nd Judicial District Court, on March 20, 2015,
granting in-part and denying in-part Appellants’ Motion for Summary Judgment on
vii
the basis of a prior release agreement and non-suit with prejudice between the
parties. Because the release applies to all claims asserted by all Appellees in a
manner which presents a controlling issue of law, which if resolved by this Court
unquestionably materially advances the ultimate termination of the litigation, as
validated by the trial court in applying the release to Nisal Corp. and dismissing all
its claims in this lawsuit. If the release applies to Nisal Corp. in this series of
transactions as articulated by Appellees in this lawsuit, then it equally applies to all
parties.
The attached appendix will be referred to as "AR001-208".
viii
STATEMENT OF THE CASE
NATURE OF THE CASE: Appellees, former tenants of a landlord, filed
suit against the landlord’s agents for various
claims arising out of the parties’ landlord-tenant
relationship. Previously, one of the Appellees
sued the landlord regarding a lease dispute,
settled the case, and entered into a broad-form
mutual release. Although there are multiple
parties here, this case—like the previous case—
is a dispute between the landlord and tenants,
which was fully resolved, released, and
dismissed with prejudice. Appellants contend
that the mutual release bars Appellees’ claims
in this lawsuit, because the Appellee and
Appellants are all agents of the parties to the
underlying lawsuit and release.
TRIAL COURT: The Honorable Judge Robert Schaffer, 152nd
Judicial District Court, Harris County, Texas
TRIAL COURT’S DISPOSITION: After a hearing, the trial court granted in part
and denied in part Appellants’ Motion for
Summary Judgment, amended its original order
and granted permission to appeal by stating the
controlling issue of law and that an immediate
appeal will materially advance a termination of
this lawsuit.
ix
ISSUES PRESENTED
The trial court granted Appellants’ motion to present the interlocutory order
granting in-part and denying in-part their summary judgment for an immediate
appeal to this Court. In doing so, the trial court set forth the following controlling
issues of law:
Issue No. 1: Whether the broad-form release signed in a prior lawsuit by
parties intimately related to parties in the current lawsuit encompasses the
claims asserted in this lawsuit. The scope of the release, therefore, is
controlling. Further, the controlling question involves the extent to which
principal-agent analysis applies in the construction of a release.
Issue No. 2: Whether Appellants’ sought relief will materially advance the
ultimate termination of the litigation.
x
SUMMARY
Appellees consist of a chiropractor and the various companies through
which he carries out his chiropractic business. Appellants are the owner and
property manager of Providian, a landlord that leased office space to Appellees.
In 2013, after the lease ended, one of the Appellees and another company
owned by the chiropractor sued Providian for breach of the lease agreement. The
parties settled that lawsuit and entered into a broad-form mutual release (“Mutual
Release”) in which the parties released any claims against each other, whether
known or unknown.
One year later, the chiropractor discovered that the landlord’s property
manager—in a mail mix-up—had accidently indorsed and deposited checks
belonging to the chiropractor during the term of the lease. He and his companies
brought suit against the property manager and the owner of landlord for the
alleged-conversion.
Appellants moved for summary judgment, arguing that Appellee’s claims
fell squarely within the broad scope of the Mutual Release. The trial court agreed
in-part, and granted summary judgment with respect to Nisal Corp.—one of the
companies that actually signed the Mutual Release. The trial court refused to
extend the Mutual Release to the other remaining Appellees, who are intimately
xi
connected with both Nisal Corp. and Sterling Practice Management, the other
signatory of the Mutual Release.
Without doubt, the broad language of the Mutual Release bars any and all
claims that Appellees have against Appellants, because they all arise out of the
landlord-tenant relationship between the parties. That relationship was squarely at
issue in the original lawsuit that engendered the Mutual Release.
xii
STATEMENT OF FACTS
Appellant Minu Rx (“Minu”) is a pharmacy. (AR 93). Appellant Khyati
Undavia (“Undavia”), a pharmacist, owns Minu. Id.
Undavia also owns Providian Holding, Inc. (“Providian”). Id. Providian, in
turn, owns one asset: the building located at 2918 San Jacinto St., Houston, Texas
77004 (the “Building”). Id. Minu operates on the lower floor of the Building. Id.
Providian has no physical office space and its only employee is Undavia. Id.
Instead, Providian simply uses Minu’s offices and employees for its needs. Id.
From 2009 through 2013, Nisal Corp. (“Nisal”) and Sterling Practice
Management, L.L.C. (“Sterling”) rented the second floor of the Building from
Providian to provide Avant Medical Group P.A. and Qualcare Rehabilitation
(Nisal’s d/b/a) with medical offices. (AR 41-85, 94). Sterling “managed” Avant’s
non-medical business dealings. (AR 143). Likewise, Avant managed some of
Sterling’s business as well: the summary judgment evidence established that
Avant paid Sterling’s rent from its accounts and also procured the lease-required
insurance policy on Sterling’s behalf. (AR 108; AR 109). Additionally, all of these
entities—Sterling, Nisal, Avant, and Qualcare—are owned, at least in part, by
Appellee Brett Garner, who is also a chiropractor for Avant and Qualcare. AR
106; AR 107; AR 113.
1
A. The Underlying Lawsuit
In 2013, Providian ended its leases with Nisal and Sterling. (AR 114). Nisal
and Sterling then sued Providian over a breach of the lease agreements. (AR 110-
112). The parties settled the case and executed a broad-form mutual release
(“Mutual Release”):
NISAL [and STERLING] . . . [their] officers, directors,
shareholders, partners, successors, agents, assigns, employees,
servants, and attorneys . . . . hereby RELEASE, ACQUIT, and
FOREVER DISCHARGE PROVIDIAN, its officers,
directors, shareholders, successors, agents, assigns, employees,
servants, partners, heirs, and attorneys from any and all
liabilities, claims, demands, causes of action, judgments, liens,
liabilities or potential claims or causes of action which . . .
NISAL [and STERLING] . . . have ever had or could have had,
whether now known or unknown, which have arisen or may
arise from the beginning of time to the date of this release[.]
(AR 86-90). Importantly, the Mutual Release extends not only to Nisal, Sterling,
and Providian but also to their officers, directors, agents, employees, and servants.
Id. After the parties executed the Mutual Release, Sterling and Nisal nonsuited
their claims against Providian with prejudice. (AR 91-92).
B. The Current Lawsuit
Between 2009 and 2013, the postal service, when delivering mail to the
Building, intermingled the mail. (AR 20). It did not make separate deliveries to
each of the Building’s tenants. Id. Instead, it simply dumped all of the Building’s
2
mail in a reception area. Because Minu is a pharmacy, it received hundreds of
checks per month as payment for dispensed medications. Id. There was no formal
system of mail sorting or separation; each of Providian’s tenants took an ad hoc
approach to the mail handling. Id.
Through this clumsy process, a few checks dated between 2011 to 2013
made payable to Avant that arrived via the mail were accidentally sorted into
Minu’s large mail pile, stamped with Minu’s endorsement stamp, and then
deposited in Minu’s account. Id.
In 2014, more than one year after Providian, Sterling, and Nisal entered into
the Mutual Release in the underlying lawsuit, Avant realized that they had not
received payment for some of their outstanding accounts receivable. (AR 1-10).
They then learned that some checks intended for Avant had been received by Minu
and deposited into Minu’s account. Plaintiffs immediately sued Defendants. Id.
C. Appellees And Appellants Are Inextricably Connected With The
Signatories Of The Mutual Release
Three parties signed the Mutual Release: Providian, Sterling, and Nisal.
(AR 86-90). Each Appellee is an agent, officer, employee, or servant of either
Sterling or Nisal. Likewise, each Appellant is an agent, officer, employee, and
servant of Providian.
3
(i) Appellee Garner is an agent and officer of both Sterling
and Nisal
Here, Garner is both the president and director of Nisal. (AR 106). Further,
he signed Nisal’s commercial lease with Providian as its “CEO.” (AR 54). He is
also an owner of Sterling. (AR 143). Garner also works as a chiropractor for
Nisal. Id.
(ii) Appellee Avant is an agent of Sterling
Avant is the agent of both Nisal and Sterling. During the lease, Avant paid
Sterling’s rent using Avant checks. (AR 95; AR 109). Similarly, Avant procured a
commercial general liability policy on behalf of Sterling. (AR 108).
Also, although not actually a party to the written lease, Avant nevertheless
operated in the office space leased by Nisal and Sterling. (AR 95; AR 01-10). In
fact, Sterling and Nisal had no operations in the Building; their leased premises
were occupied by Avant. (AR 95). Sterling and Nisal even negotiated for a lease
provision that prevented Providian from leasing space to any other “chiropractor”
or “pain management business” in order to protect Avant from competition. (AR
53).
(iii) Sterling is Appellee Avant’s agent
Sterling also acted as Avant’s agent. As admitted by Appellee Garner,
Sterling managed Avant’s non-medical business dealings. (AR 143).
4
(iv) Garner is Avant’s agent
Garner also had a management role at Avant during Avant’s tenancy in the
Building and worked for Avant as a chiropractor. (AR 95).
(v) Appellees connect themselves via a confusing web of D/B/As
In their case caption, Plaintiffs state that “Allied” is the d/b/a of Avant. (AR
1). Allied, in turn, is also the d/b/a of Garner. (Id; AR 143). Allied is again listed
as a d/b/a of Avant in the Proof-of-Insurance certificate that Sterling provided to
Providian at the outset of the Commercial Leases. (AR 108). Garner also admits
that Allied is the d/b/a of Avant. (AR 143).
Simply put, Avant, Sterling, and Nisal were inextricably linked and were all
representatives and agents of each other with respect to the lease between
Providian, on one hand, and Nisal and Sterling, on the other.
(vi) Appellant Undavia is the owner, director, and agent of
Providian
As mentioned above, Providian is a signatory to the Mutual Release.
Undavia is Providian’s owner and sole employee. (AR 93; AR 107). Undavia
even signed the Mutual Release on behalf of Providian. (AR 90).
(vii) Appellant Minu is Providian’s property manager
Minu was Providian’s agent and representative and was expressly authorized
to act on behalf of Providian for any matters, especially matters related to
5
Providian’s lease with Plaintiffs. (AR 93-95). In fact, Providian has no physical
office space or employees; its physical address is actually that of Minu’s. (AR 93).
Minu handled a variety of matters for Providian, including collecting rent,
obtaining insurance for the Building, arranging and paying for the Building’s
security, arranging and paying for grounds, facilities, and common area
maintenance, and arranging and paying for the Building’s elevator inspections and
servicing. (AR 93-95; AR 97-101; AR 102-105).
Thus, although Providian owned the building, Minu was the management
company and was authorized to act on behalf of Providian for any matters with
respect to the Plaintiffs’ tenancy at the building. (AR 93-95).
6
SUMMARY OF THE ARGUMENT
This appeal involves a controlling question of law as to which there exist
substantial grounds for disagreement. The trial court held that the Mutual Release
binds only the specifically-named signatories, without consideration of whether the
release extended to the signatories’ officers, directors, agents, and servants.
Indeed, each of the Appellees is an officer, director, agent, or servant of a Mutual
Release signatory.
Further, each of the Appellees had an intimate connection not only to the
signatories of the Mutual Release, but also to the dispute giving rise to the Mutual
Release. Texas case law is clear: an unnamed defendant can claim the protection
of a release when its connection with the dispute is not in doubt. But no court has
ever considered whether this rule applies to an unnamed plaintiff whose connection
to the underlying dispute is not in doubt. Thus, there exist substantial grounds for
disagreement.
Similarly, no Texas court has considered the level of inquiry necessary to
determine whether a plaintiff is an “agent” of a signatory and therefore bound by a
release. Appellees argued to the trial court that the inquiry is a fact question for
the jury to decide. However, such a rule would undermine the purpose of release
because it requires parties to fully litigate a case simply to determine whether the
claim is barred.
7
Finally, an immediate appeal will materially advance the ultimate
termination of this litigation. If Appellants and Appellees are subject to the Mutual
Release, then Appellee’s claims are barred and Appellants will be entitled to a full
and final summary judgment.
Accordingly, this Court should grant Appellants’ request for a permissive
interlocutory appeal.
8
ARGUMENT AND AUTHORITIES
This Court has discretionary jurisdiction to accept this appeal. TEX. CIV.
PRAC. REM. CODE §51.014(d) establishes the standard for permissive appeals:
On a party's motion or on its own initiative, a trial court in a civil
action may, by written order, permit an appeal from an order that is
not otherwise appealable if:
(1) the order to be appealed involves a controlling question
of law as to which there is a substantial ground for
difference of opinion; and
(2) an immediate appeal from the order may materially
advance the ultimate termination of the litigation.
In conjunction with this statute, the legislature enacted TEX. R. CIV. P. 168:
On a party's motion or on its own initiative, a trial court may permit
an appeal from an interlocutory order that is not otherwise appealable,
as provided by statute. Permission must be stated in the order to be
appealed. An order previously issued may be amended to include such
permission. The permission must identify the controlling question of
law as to which there is a substantial ground for difference of opinion,
and must state why an immediate appeal may materially advance the
ultimate termination of the litigation.
TEX. R. CIV. P. 168. Appellants easily establish that this appeal involves a
controlling issue of law as to which there is substantial grounds for disagreement,
and also establish that an immediate appeal would materially advance the ultimate
termination of the litigation. Accordingly, Appellants’ petition for permissive
interlocutory appeal should be granted.
9
I. THE ORDER TO BE APPEALED INVOLVES A CONTROLLING
ISSUE OF LAW AS TO WHICH THERE IS SUBSTANTIAL GROUNDS
FOR DISAGREEMENT.
On March 20, 2015, the trial court amended its original order, and granted
Appellants’ request for permissive interlocutory appeal. The order further granted
in-part and denied in-part Appellants’ motion for summary judgment.
Texas courts have little guidance as to what constitutes a controlling legal
issue as to which there is a difference of opinion. In Gulf Coast Asphalt Company,
LLC v. Lloyd, the Houston Court of Appeals recognized this absence, and it cited
to a Texas commentator's suggestion of looking to federal cases in interpreting the
federal counterpart to section 51.014:
[A] controlling question of law is one that deeply affects the ongoing
process of litigation. If resolution of the question will considerably
shorten the time, effort, and expense of fully litigating the case, the
question is controlling. Generally, if the viability of a claim rests upon
the court's determination of a question of law, the question is
controlling[.] Substantial grounds for disagreement exist when the
question presented to the court is novel or difficult, when controlling
circuit law is doubtful, when controlling circuit law is in disagreement
with other courts of appeals, and when there simply is little authority
upon which the district court can rely[.] Generally, a district court
will make [a finding that the appeal will facilitate final resolution of
the case] when resolution of the legal question dramatically affects
recovery in a lawsuit.
Gulf Coast Asphalt Company, LLC v. Lloyd , 2015 WL 393407, at *5 (Tex. App.—
Houston [14th Dist.] Jan. 29, 2015, no. pet. h.).
10
Thus, the commentator not only suggests a test for defining a “controlling
question of law,” but also sets forth factors for determining whether there are
“substantial grounds for disagreement”: (1) when the question presented to the
court is novel or difficult; (2) when controlling circuit law is doubtful; and (3)
when there is little authority on which the trial court can rely. Id. Appellants
conclusively establish that there is a controlling question of law, and establish
substantial grounds for disagreement.
A. This Appeal Involves A Controlling Issue Of Law Because, If Mutual
Release Encompasses Appellee’s Claims, Then Those Claims Are Barred,
And Appellants Are Entitled To Summary Judgment.
Here, the first sub-element of obtaining a permissive interlocutory appeal is
met. There is little doubt that Appellants’ position, if adopted, will “considerably
shorten the time, effort and expense of litigating the case” and affect “the viability
of” Appellees’ claims. Id. If the Mutual Release encompasses the claims in this
lawsuit, then those claims are barred, and the case is over. This fact is further
evidenced by the trial court’s order, which granted Defendants’ a full and final
summary judgment with respect to Nisal Corp.’s claims.
Appellants have thus established that this case involves a “controlling
question of law.”
B. Substantial Grounds For Disagreement Exist Because The Issue Before
The Court Is Novel And There Is Little Or No Authority Upon Which
The Trial Court Can Rely.
11
Appellants also establish the second sub-element for obtaining a permissive
interlocutory appeal, because the controlling issue of law is subject to “substantial
grounds for disagreement.”
“Substantial grounds for disagreement” exist when the issue before the court
is novel, or when there is little or no authority upon which the trial court can rely.
Id. Here, the issue before the court is novel: whether a plaintiff not specifically
named, but nonetheless encapsulated by the categories of defined persons or
parties in a release, is so connected to the subject matter giving rise to a release and
to the signatories of a release that it, too, is bound by the release. Additionally,
there is no controlling law upon which the trial court can rely.
(i) The issue before the Court is novel because no Texas court appears to
have considered to what extent, and under what circumstances, an
unnamed plaintiff is bound by a release
Appellants’ position is that Appellees, who are not specifically named by the
Mutual Release, are so connected to the signatories of the Mutual Release and to
the dispute that spawned the lawsuit that they, too, are bound by the Mutual
Release. Unquestionably, Appellees were tenants of Appellants, and that landlord-
tenant relationship engendered the County Court Lawsuit and Mutual Release.
Appellees are also agents, principals, owners, and employees of the Mutual
Release signatories. Unquestionably, the Mutual Release should bind them.
However, no Texas case appears to have addressed the extent, and under
12
what circumstances, a release can bind an unnamed plaintiff. There is an extensive
body of case law on the inverse situation: the extent to which an unnamed
defendant can claim the protection of a release. This case law supports Appellants’
position that Appellees’ claims are barred by the Mutual Release.
a. Texas courts broadly apply the protection of releases to
unnamed defendants that are intimately connected to the facts
giving rise to the release
Generally, “unless a party is named in a release, he is not released.”
McMillen v. Klingensmith, 467 S.W.2d 193, 197 (Tex. 1971). “Mentioning does
not require particularized enumeration or detailed description, only that the claim
being released come within the express contemplation of the release provision
when viewed in context of the contract in which the release provision is
contained.” Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 254 (5th Cir.
2000); Mem'l Med. Ctr. of E. Tex. v. Keszler, 943 S.W.2d 433, 435 (Tex.1997).
“A tortfeasor can claim the protection of a release if he is referred to with
such descriptive particularity that his connection with the tortious event is not in
doubt.” Winkler v. Kirkwood Atrium Office Park, 816 S.W.2d 111, 113-14 (Tex.
App.—Houston [14th Dist.] 1991, writ denied). “Indeed, Texas courts have
consistently rejected the argument that defendants cannot avail themselves of the
protection of a release just because they were not specifically identified as parties
13
to that release.” Michael Lee Andrews Trust v. Licari, CIV.A.3:02-CV-1076-N,
2004 WL 524941, at *2 (N.D. Tex. Mar. 17, 2004).
In Winkler, a health club member signed the following release at the outset
of his club membership:
Buyer does hereby for his or herself, heirs, executors, legatees,
administrators, or assigns, waive, release and forever discharge any
and all claims the Buyer may now or in the future have against the
Club for injuries suffered by the Buyer while participating in any
programs of the Club.
Id. at 113. While exercising at the club, the member suffered a fatal heart attack.
Id. at 112. His estate and next of kin filed suit against the club as well as several
individuals associated with the club. Id. at 113. All defendants, including the
individual defendants, moved for summary judgment on the basis that the decedent
had released his claims against them. Id. Plaintiffs argued in response that the
“[defendants] cannot avail themselves of the protection of the release because they
were not specifically identified as parties to the release.” Id. The court rejected
that argument, holding that “[i]n releasing ‘the Club’ from any injuries suffered
while participating in the center’s programs, it is clear that Winkler intended to
release any claim against all individuals and entities involved in the operation,
maintenance, and administration of the center.” Id. at 114.
Likewise, the court in Vera v. North Star Dodge Sales, Inc. interpreted a
contract between a consumer and a corporation that included a release that
14
“release[d] North Star Dodge from any and all liability regarding the purchase of a
1993 Mazda Protg[.]” 989 S.W.2d 13, 16 (Tex. App.—San Antonio, 1998, no
pet.) Although the release enumerated only the car dealership with particularity,
the court held that the broad release of “all liability regarding the [vehicle]
purchase” barred claims against the sales manager and the employee who handled
the financing:
In this case, it is clear that the release of “North Star Dodge” from any
liability associated with the sale of the Mazda, also released the North
Star Dodge employees associated with that sale. Under the
circumstances, the connection of Powers and Hall with North Star
Dodge and the sale of the Mazda is apparent. Therefore, the release
encompasses Higinio’s claims against North Star Dodge as well as his
claims against North Star Dodge employees involved in the sale of the
Mazda.
Id. at 18.
In Dyrcz v. Longview Enterprise, Ltd., the court reached the same
conclusion. There, the plaintiff signed a release prior to participating in a
dodgeball game that released:
Grand Central Station Longview, its partners, agents, and employees
from any responsibility or liability for personal injury . . . [that] may
[occur] from participating in the Dodge Ball contest.
Dyrcz v. Longview Enter., Ltd., 2:05-CV-476 (TJW), 2006 WL 3289046, at *1
(E.D. Tex. Nov. 13, 2006), aff'd sub nom. Dyrcz v. Graham Bros. of Longview,
LLC, 234 Fed. Appx. 236 (5th Cir. 2007). Plaintiff thereafter sued Longview
15
Enterprises—the employer of the management and staff at Grand Central Station
Longview—for injuries sustained in a dodgeball match. Id. Longview Enterprise
moved for summary judgment pursuant to the release even though it was not
mentioned by the release. Id. In evaluating Longview Enterprise’s argument, the
court noted that “[i]n Texas, in order to claim the protection of a release, the claim
being released must come within ‘the express contemplation of the release
provision when viewed in context of the contract.” Id., citing Stinnett, 227 F.3d at
255. Further, the court recognized that “a tortfeasor can claim the protection of a
release as long as he is referred to “with such descriptive particularity that his
identity or his connection with the tortious event is not in doubt,” and therefore,
that “a defendant may still avail himself of the protection of a release even though
he has not been specifically identified as a party to the release.” Dyrcz, 2006 WL
3289046, at *1, citing Winkler, 816 S.W.2d at 111.
Applying these rules, the court concluded that:
[T]he claims against Defendant Longview Enterprises fit within the
release signed by Plaintiff. There is no dispute that Plaintiff’s claims
resulted from participating in a dodgeball game at Graham Central
Station.
....
Although the release does not specifically name Longview Enterprise,
the release does cover “partners, agents, and employees” of Graham
Central Station . . . [t]herefore, by releasing Graham Central Station, it
is clear that Plaintiff intended to release any claim against all
individuals and entities involved in the operations and activities of
16
Graham Central Station, which would include . . . . Longview
Enterprise.
Dyrcz, 2006 WL 3289046, at *2. Accordingly, the court granted the defendant
summary judgment. Id.
In sum, the rule in Texas is well-established: an unnamed defendant can
claim the protection of a release provided that his connection to the event giving
rise to the release is unmistakable.
b. The policy reasons for applying releases to unnamed
defendants apply with equal force to unnamed plaintiffs
Despite the well-established case law discussing the application of a release
to unnamed defendants, Appellants’ counsel have found no case law that discusses
the application of a release to unnamed plaintiffs. Despite this absence, there is no
policy or legal reason why the rule applicable to unnamed defendants should not
also be applicable to unnamed plaintiffs.
In this case, the failure of the trial court to extend the Mutual Release to the
unnamed Appellees produces a starkly absurd result. Appellee Garner is the
owner, director, and president of Nisal Corp. Nisal Corp., as well as its agents,
officers, and servants—including Garner—agreed to release any and all claims,
whether known or unknown, that they had against the Appellants, whether arising
out of the lease or not. Although the trial court granted Appellants’s summary
17
judgment as to Nisal Corp.’s claims, it denied the motion with respect to Garner’s
claims. In doing so, the trial court wholly ignored the language in the release
extending the release to the agents, officers, and servants of Nisal Corp.
The trial court’s ruling highlights Appellants’ point: the Mutual Release is
not so narrow that it applies only to the specifically identified signatories.
Otherwise, the language that extends the Mutual Release to the signatories’
“officers, directors, shareholders, successors, agents, assigns, employees, servants,
partners, heirs, and attorneys” is rendered meaningless. However, “[c]ourts should
. . . give effect to all the provisions of the contract so that none will be rendered
meaningless.” See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).
Because no Texas court has considered the issue to what extent an unnamed
plaintiff is bound by a release, it is a novel issue. Accordingly, there exist
substantial grounds for disagreement. Appellants’ petition for permissive
interlocutory appeal should be granted.
c. The interpretation of “agent” in the context of a release is also
a novel issue
As discussed above, the Mutual Release extends not only to the named
signatories, but also to their “agents.” A novel question thus arises: how does a
court determine whether a party qualifies as an agent of a signatory such that they
are bound by a release?
18
In the trial court, the Appellees offered a simple, but untenable solution:
whether a party is an agent of a signatory is a question of fact for the jury to
decide. Indeed, Appellees cited the trial court to the rule that “a question of agency
is one of fact.” AR 186-192 (citing Jorgensen v. Stuart Place Water Supply Corp.,
676 S.W.2d 191, 194 (Tex. App.—Corpus Christi 1984, no writ).
In furtherance of public policy, this cannot be the rule. The purpose of a
release is to buy peace and bring finality to a dispute. If a plaintiff sues on a claim
that is within the scope of the release, the defendant claiming the protection of the
release should not have to fully litigate the matter through trial in order to obtain a
ruling that the claims in the lawsuit are within the scope of the release and
therefore barred as a matter of law. The application of fact-driven inquiries will
thwart every release, prevent finality, and will force parties to contemplate and
actually and specifically name each party subject to the release. In the context of a
large multinational corporation, it would force the corporation to specifically list
out by name each one of their employees, contractors, and other agents they want
encompassed by the release or else face repeated litigation. But worst of all, it
would force parties to reject settlement and continue litigation to obtain a final
judgment that is not subject to a subsequent lawsuit brought by parties attempting
to thwart the effect of the release. This untenable situation cannot be the law in
Texas.
19
(ii) There are grounds for substantial difference of opinion with regard to
the controlling issue of law because there is an absence of case law on
the issue.
As discussed above, the controlling issues of law in this case are novel
because no Texas court appears to have addressed them. Consequently, there is an
utter absence of case law discussing the extent to which an unnamed plaintiff is
bound by a release. Likewise, Appellants have found no case law discussing the
proper interpretation of “agents” in the context of a release.
Accordingly, because there is an absence of controlling law, there are
grounds for substantial difference of opinion. Appellants’ petition for permissive
interlocutory appeal should be granted.
II. AN IMMEDIATE APPEAL MATERIALLY ADAVANCES THE
ULTIMATE TERMINATION OF THIS LITIGATION.
Appellants’ summary judgment sought complete and total dismissal of all
Appellees’ claims. That is, the granting of Appellants’ motion disposes of all of
Appellees’ claims against Appellants. When the trial court granted judgment in
favor of Appellants as to Nisal Corp.’s claim, it fully acknowledged that this case
is subject to immediate termination.
It can be no other way. If the release applies to all parties, then Appellees
have no extant claims. The case is over and terminated.
Accordingly, Appellants have shown that an immediate appeal will
20
materially advance the ultimate termination of this case. This Court should grant
Appellants’ petition for permissive interlocutory appeal.
21
CONCLUSION
Without doubt, this appeal presents a controlling question of law. If
Appellants are correct, then the Mutual Release bars Appellees’ claims, and
Appellants are entitled to summary judgment.
Without doubt, the controlling question of law is subject to substantial
grounds for disagreement. Despite the well-developed and well-reasoned case law
applying the protections of releases to unnamed defendants, no Texas court has
considered the extent to which an unnamed plaintiff is bound by a release.
Likewise, no court has considered the factual intrusion necessary to determine
whether a plaintiff is an “agent” of a release signatory and therefore bound as well.
Without any law to guide the parties or court, the controlling question of law is
subject to substantial grounds for disagreement.
Finally, an immediate appeal from the trial court’s order will materially
advance the ultimate termination of this case. If the Mutual Release bars
Appellees’ claims, then this case is over.
For the foregoing reasons, Appellants respectfully request the Court to grant
their petition for permissive interlocutory appeal and for all other relief to which
they may show themselves justly and equitably entitled.
22
Date: April 3, 2015 Respectfully submitted,
MAHENDRU, P.C.
By:
Ashish Mahendru
Texas Bar No. 00796980
Darren A. Braun
Texas Bar No. 24082267
639 Heights Boulevard
Houston, Texas 77007
(713) 571-1519 (Telephone)
(713) 651-0776 (Facsimile)
amahendru@thelitigationgroup.com
dbraun@thelitigationgroup.com
ATTORNEYS FOR
DEFENDANTS—APPELLANTS
23
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Texas Rule of
Appellate Procedure 9.4(e) because it has been prepared in a conventional typeface
no smaller than 14-point for text and 12-point for footnotes. This document also
complies with the word-count limitations of Rule 9.4(i)(2)(B) because it contains
4,812 words, excluding any parts exempted by Rule 9.4(i)(1).
Ashish Mahendru
24
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing of Appellants’
Petition for Permission for Interlocutory Appeal was served on the following
counsel of record on the 3rd day of April, 2015 via email:
Matias J. Adrogué via email: mja@mjalawyer.com
Robert Stephan Kaase
1629 West Alabama St.
Houston, Texas 77006
1629 West Alabama St.
Houston, Texas 77006
713-425-7270 (p)
713-425-7271 (f)
Counsel for Plaintiffs/Appellees
William P. Huttenbach via email: whuttenback@hirschwest.com
State Bar No. 24002330
Jacob M. Stephens
State Bar No. 24066143
Hirsch & Westheimer
1415 Louisiana, 36th Floor
Houston, Texas 77002
(713) 223-5181 (Main)
(713) 223-9319 (Fax)
Counsel for Defendant Compass Bank
Ashish Mahendru
25
APPENDIX
1. Plaintiffs' Second Amended Original Petition AR 1-10
2. Defendants' Third Amended Answer, Verified Denial,
and Counterclaim AR 11-16
3. Defendants' Motion for Summary Judgment AR 17-40
Ex. A: Commercial Lease with Nisal Corp AR 41-70
Ex. B: Commercial Lease Sterling Practice AR 71-85
Ex. C: Mutual Release AR 86-90
Ex. D: Non-Suit with Prejudice AR 91-92
Ex. E: Declaration of Khyati Undavia AR 93-96
Ex. F: Elevator Invoices AR 97-101
Ex. G: Minu Rx’s Quickbooks AR 102-105
Ex. H: Officers and Directors of Nisal Corp. AR 106
Ex. I: Officers and Directors of Providian Holdings, Inc. AR 107
Ex. J: Proof of Insurance for Avant Medical Group AR 108
Ex. K: Copy of Avant Rent Check AR 109
Ex. L: County Court Lawsuit Petition AR 110-112
Ex. M: Officers and Directors of Sterling
Practice Management AR 113
Ex. N: Lease Termination Letter AR 114-115
Ex. O: Declaration of Ashish Mahendru AR 116-119
26
Ex. P: Avant Medical Group Account Status AR 120
4. Plaintiffs' Response to Defendants'
Motion for Summary Judgment AR 121-142
Ex. 1: Affidavit of Brett Garner AR 143-145
Ex. 2: Affidavit of Carmen Manzo AR 146-147
Ex. 3: Cancelled Check AR 148-155
Ex. 4: Original Petition from Cause No. 1036848 AR 156-160
Ex. 5: Mutual Release AR 161-165
Ex. 6: Assumed Name Filing for Allied Medical
Centers AR 166
Ex. 7: Public Information Report for
Avant Medical Group AR 167-169
5. Defendants' Reply to Plaintiffs' Response to Motion for
Summary Judgment AR 170-185
6. Defendants' Response to Plaintiffs’ Objections to Defendants’
Summary Judgment Evidence AR 186-192
7. Order on Defendants' Motion
for Summary Judgment—March 3, 2015 AR 193
8. Defendants' Motion for Permission to Appeal Interlocutory
Summary Judgment Order, Motion to Amend Order, and
Request for Stay AR 194-201
9. Plaintiffs' Response to Defendants' Motion for Permission
to Appeal Interlocutory Summary Judgment AR 202-206
10. Order Granting Defendants' Motion for Summary Judgment
27
And Permissive Appeal--March 20, 2015 AR 207-208
28
CAUSE NO. 2014-22186
AVANT MEDICAL GROUP, P.A. d/b/a § IN THE DISTRICT COURT OF
ALLIED MEDICAL CENTERS and §
INTERVENTIONAL SPINE §
ASSOCIATES, §
§
Plaintiffs § HARRIS COUNTY, TEXAS
§
VS. §
§
KHYATI MOHAMED UNDA VIA and §
MINU RX, LTD. § 152nd JUDICIAL DISTRICT
PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE
ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL
CORP. d/b/a QUALCARE REHABILITATION ("Plaintiffs") and file this Second Amended
Original Petition complaining of KHY ATI MOHAMED UNDAVIA, MINU RX, LTD. d/b/a
MEMORIAL COMPOUNDING PHARMACY, MINU GP, LLC, and COMPASS BANK, and
for cause of action would respectfully show the Court as follows:
I. DISCOVERY CONTROL PLAN
1. Pursuant to Rules 190.1 and 190.3 of the Texas Rules of Civil Procedure, discovery in
this matter is intended to be conducted under Discovery Control Plan Level 2.
II. PARTIES
2. Plaintiff, AV ANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE
ASSOCIATES, is a Texas Professional Association.
3. Plaintiff, NISAL CORP. d/b/a QUALCARE REHABILITATION is a Texas Corporation.
4. Plaintiff, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS is an individual
residing and doing business in Texas.
1
AR 000001
PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGE
5. Defendant, KHY ATI MOHAMED UNDAVIA, is an individual residing in Texas.
Defendant KHY ATI MOHAMED UNDA VIA has been served with process and has appeared in
this lawsuit.
6. Defendant, MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY is a
Texas Limited Partnership. MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING
PHARMACY has been served with process and has appeared in this lawsuit.
7. Defendant, MINU GP, LLC is a Texas Limited Liability Company. MINU GP, LLC has
been served with process and has appeared in this lawsuit.
8. Defendant, COMPASS BANK, is a Foreign Financial Institution doing business in the
State of Texas, and may be served through its registered agent for service of process, C T
Corporation System, 1999 Bryan St., Suite 900, Dallas, Texas 75201-3136. Citation is
requested.
III. JURISDICTION AND VENUE
9. This Court has subject matter jurisdiction over this controversy because all events or
occurrences giving rise to this lawsuit occurred within the State of Texas.
10. This court has personal jurisdiction over the parties because they are all residents of
Texas or are doing business in the State of Texas.
11. Venue is proper in Harris County under the Texas Civil Practice & Remedies Code,
§ 15.002.
IV. FACTS
12. Plaintiffs are former tenants in a commercial building which is owned and/or managed by
Defendant KHYATI MOHAMED UNDA VIA or an entity for which Defendant KHYA TI
MOHAMED UNDAVIA is a principal, agent, representative, or employee (the "Building").
PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION 2
AR 000002
PAGE
While Plaintiffs were tenants in the Building, all mail was delivered to the Building's main
address, where it would be collected by Defendant KHYATI MOHAMED UNDA VIA and
distributed by her to the other tenants. Because the checks were delivered to Plaintiffs' mailing
address, Plaintiffs were in possession of the checks and have a possessory interest in them.
13. Plaintiffs recently discovered that during their tenancy at the building, Defendant
KHYATI MOHAMED UNDAVIA would frequently take letters containing checks, from the
mail, endorse the checks with the name and bank account information for MINU RX, LTD. d/b/a
MEMORIAL COMPOUNDING PHARMACY, and deposit them into at least two bank accounts
of MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY. The checks were
presented for deposit to Defendant COMPASS BANK, who presented the checks without the
payee's endorsement to the various drawee banks. Plaintiffs were only able to discover this
recently because Plaintiffs frequently provide medical services to personal injury victims and
often have agreements to suspend collection efforts for extended periods of time while the
patients attempt to obtain compensation for the third parties responsible for their injuries. Thus
far, Plaintiffs have identified over $40,000.00 in checks that were stolen by the Defendants in the
above-described manner, and expects to discover more as investigation and discovery in this case
progresses. It is uncertain at this time if additional checks were endorsed and deposited or
cashed by other entities.
V. CASUSES OF ACTION AGAINST
KHYATI MOHAMED UNDAVIA AND
MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY
CONVERSION & THEFT
14. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged
herein. Defendants KHY ATI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a
PAGE 3
AR 000003
PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION
MEMORIAL COMPOUNDING PHARMACY have exercised dominion and control over
Plaintiffs' property interest in the checks, their proceeds, and all interest earned on their
proceeds, inconsistent with, and in denial of, Plaintiffs' right to possession.
TEXAS THEFT LIABILITY ACT
15. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged
herein. The Texas Theft Liability Act provides civil liability for certain acts proscribed by the
Texas Penal Code, including unlawfully appropriating a trade secret. See id. § 134.002(2); IBP,
Inc. v. Klumpe, 101 S.W.3d 461, 472 (Tex. App.-Amarillo 2001, pet. denied). The Texas Theft
Liability Act provides that a person "who commits theft is liable for the damages resulting from
the theft." Tex. Civ. Prac & Rem. Code. § 134.003(a). In addition, under the Texas Theft
Liability Act a person "who has sustained damages" may recover the amount of actual damages
found by the trier of fact. Id. § 134.005(a)(1). Finally, a "person who prevails" in a suit under the
Act " shall be awarded court costs and reasonable and necessary attorney's fees." Id. §
134.005(b).
16. Defendants KHY ATI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a MEMORIAL
COMPOUNDING PHARMACY violated the Texas Theft Liability Act, when, without
authorization, consent or approval, they cashed and/or deposited checks payable to Plaintiff.
Defendants appropriated of the checks and the proceeds of the checks with the intent to deprive
Plaintiffs of that interest. The appropriation of Plaintiffs' property interest in the checks and the
proceeds of the checks was without Plaintiffs' consent and constituted theft under the Texas
Penal Code. Plaintiffs therefore bring suit against Defendants KHY ATI MOHAMED
UNDAVIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY for all
4
AR 000004
PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGE
all actual damages, exemplary damages and attorney's fees recoverable under the Texas Theft
Liability Act.
FRAUD - COMMON LAW
17. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged
herein. Defendants KHY ATI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a
MEMORIAL COMPOUNDING PHARMACY knowingly made numerous fraudulent
representations to Plaintiffs regarding the delivery of mail to Plaintiffs. Plaintiffs reasonably
relied on the misrepresentations, causing significant injury. Plaintiffs hereby bring suit for
fraudulent misrepresentation against Defendant KHY ATI MOHAMED UNDAVIA and MINU
RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY, and hereby seek to recover
actual damages incurred as a proximate cause of said fraud, as well as exemplary damages.
CONSTRUCTIVE TRUST & EQUITABLE LIEN
18. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged
herein. Under Texas common law the checks, their proceeds, and all interest earned on the
proceeds are impressed with a constructive trust for the benefit of the Plaintiffs and Plaintiffs
request a judicial declaration that the checks, their proceeds, and all interest earned on the
proceeds, are impressed with a constructive trust. The checks, their proceeds, and all interest
earned on the funds are further impressed with an equitable lien in favor of the Plaintiffs.
MONEY HAD AND RECEIVED
19. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged
herein. Defendants KHYATI MOHAMED UNDAVIA and MINU RX, LTD. d/b/a
MEMORIAL COMPOUNDING PHARMACY hold money that in equity and good conscience
belong to the Plaintiff, namely, the proceeds of the checks and all interest earned on the
AR 000005
PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGES
proceeds. Plaintiffs therefore bring suit against Defendants KHY ATI MOHAMED UNDAVIA
and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY for all damages and
attorney's fees recoverable under a cause of action for Money had and Received.
BREACH OF CONTRACT
20. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged
herein. Defendants KHYATI MOHAMED UNDAVIA and MINU RX, LTD. d/b/a
MEMORIAL COMPOUNDING PHARMACY had an oral agreement with Plaintiffs to collect
all mail received at the Building and deliver the same to Plaintiffs. Defendants KHY ATI
MOHAMED UNDA VIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING
PHARMACY committed a material breach of this agreement by withholding mail items
addressed to Plaintiffs and converting the checks contained therein, causing injury to Plaintiffs.
Plaintiffs therefore bring suit against Defendants KHY ATI MOHAMED UNDAVIA and MINU
RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY for all damages and attorney's
fees recoverable as a result of Defendants' breach.
BREACH OF FIDUCIARY DUTY
21. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged
herein. Plaintiffs allege that Defendant KHY ATI MOHAMED UNDAVIA acted as an agent of
Plaintiffs with respect to collecting and delivering mail, and therefore owed fiduciary duties to
Plaintiffs. Defendant KHYATI MOHAMED UNDAVIA and MINU RX, LTD. d/b/a
MEMORIAL COMPOUNDING PHARMACY committed a material breach her duties by
withholding mail items addressed to Plaintiffs and converting the checks contained therein,
causing injury to Plaintiffs. Plaintiffs therefore bring suit against Defendants KHYATI
6
AR 000006
PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGE
MOHAMED UNDAVIA for all damages and attorney's fees recoverable as a result of
Defendant's breach.
CONVERSION - STATUTORY
22. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged
herein. In the alternative, Plaintiffs allege that Defendants KHY ATI MOHAMED UNDAVIA
and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY are liable to
Plaintiffs for conversion as defined in Tex. Bus. & Com. Code. § 3.420. Plaintiffs therefore
bring suit against Defendants KHYATI MOHAMED UNDAVIA and MINU RX, LTD. d/b/a
MEMORIAL COMPOUNDING PHARMACY for all damages recoverable as a result of
Defendants' actions.
VI. CAUSES OF ACTION AGAINST MINU GP, LLC
VICARIOUS LIABILITY - PARTNERSHIP
23. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged
herein. Because Defendant MINU GP, LLC is the active general partner of Defendant MINU
RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY and is therefore jointly and
severally liable for all obligations of Defendant MINU RX, LTD. d/b/a MEMORIAL
COMPOUNDING PHARMACY. Tex. Bus. Orgs Code § 152.304.
VII. CAUSES OF ACTION AGAINST COMPASS BANK
CONVERSION - STATUTORY
24. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged
herein. Plaintiffs allege that Defendant COMPASS BANK is liable to Plaintiffs for conversion
as defined in Tex. Bus. & Com. Code. § 3.420. Plaintiffs therefore bring suit against Defendant
COMPASS BANK for all damages recoverable as a result of Defendant's actions.
7
AR 000007
PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGE
MONEY HAD AND RECEIVED
25. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged
herein. Plaintiffs allege that Defendant COMPASS BANK held or currently hold money that in
equity and good conscience belong to the Plaintiffs, namely, the proceeds of the checks and all
interest earned on the proceeds. Plaintiffs therefore bring suit against Defendant COMPASS
BANK for all damages and attorney's fees recoverable under a cause of action for Money had
and Received.
NEGLIGENCE
26. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged
herein. Plaintiffs allege that Defendant COMPASS BANK was negligent in accepting for
deposit and presenting for payment checks which did not bear the payee's endorsement. In
accepting checks for deposit from a person not entitled to enforce the checks and presenting
them for payment, Defendant COMPASS BANK failed to observe reasonable banking standards,
causing harm to the Plaintiffs. Plaintiffs therefore bring suit against Defendant COMPASS
BANK for all damages and attorney's fees recoverable under a cause of action for Money had
and Received.
VIII. ATTORNEY'S FEES
27. Request is made for all costs and reasonable and necessary attorney's fees incurred by or
on behalf of Plaintiffs herein, induding all fees necessary in the event of an appeal of this cause
to the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and just,
as provided by; (a) Section 134.005 of the Texas Civil Practice and Remedies Code; (b) Section
38.001 of the Texas Civil Practice and Remedies Code; and (c) the common law.
IX. DAMAGES
AR 000008
PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGES
28. As a direct and proximate result of the actions of Defendants described herein, Plaintiffs
have incurred damages in excess of the minimum jurisdictional limits of this Court and will in all
likelihood continue to incur damages in the future. Plaintiffs seek all legally recoverable
damages, including:
a. Actual damages including economic, loss of use & consequential damages;
b. Attorney's fees;
c. Exemplary damages;
d. Prejudgment & post judgment interest at the maximum legal rate;
e. Court costs; and
f. Other monetary & equitable relief as the Court deems appropriate.
29. Pursuant to Rule 47 of the Texas Rules of Civil Procedure, each claimant seeks monetary
reliefless over $200,000.00 but not more than $1,000,000.00.
X. CONDITIONS PRECEDENT
30. All conditions precedent have been performed or have occurred. Tex. R. Civ P. 54.
XI. DEMAND FOR JURY
31. Plaintiff demands a jury trial and tenders the appropriate fee with this petition.
XII. PRAYER
32. WHEREFORE, PREMISES CONSIDERED, Plaintiffs, AVANT MEDICAL GROUP,
P.A. d/b/a INTERVENTIONAL SPINE ASSOCIATES, BRETT L. GARNER d/b/a ALLIED
MEDICAL CENTERS, and NISAL CORP. d/b/a QUALCARE REHABILITATION, ask that
the Defendants be cited to appear and answer and that Plaintiffs have judgment against the
Defendants for damages, including monetary compensation and any other damages within the
jurisdictional limits of this Court, pre-judgment and post-judgment interest as allowed by law,
9
AR 000009
PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGE
costs of suit, and all other relief the Court deems necessary and appropriate and to which
Plaintiffs are justly entitled.
Respectfully submitted,
Robert Stephan Kaase
State Bar No. 24083287
1629 West Alabama St.
Houston, Texas 77006
713-425-7270 Telephone
713-425-7271 Facsimile
service@mjalawyer.com
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has been se~ to all
counsel of record in accordance with the Texas Rules of Civil Procedure, 0 this the _l_~aay of
February, 2015.
10
AR 000010
PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGE
CAUSE NO. 2014-22186
AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF
d/b/a ALLIED MEDICAL CENTERS §
and INTERVENTIONAL SPINE §
ASSOCIATES, §
Plaintiffs §
§
VS. § HARRIS COUNTY, TEXAS
§
KHYATI MOHAMED UNDAVIA and §
MINU RX, LTD., §
Defendants § 152ND JUDICIAL DISTRICT
DEFENDANTS’ THIRD AMENDED ANSWER AND
VERIFIED DENIAL AND ORIGINAL COUNTERCLAIMS
TO THE HONORABLE JUDGE ROBERT SCHAFFER:
Defendants, Khyati Undavia,Minu RX, Ltd., and MINU GP, LLC, file this Third
Amended Answer and Verified Denial and Original Counterclaims and would respectfully
show the Court as follows:
I.
GENERAL DENIAL
1. Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants file this
General Denial of the claims and allegations contained in Plaintiffs’ Second Amended
Original Petition, and Defendants request that the Court require Plaintiffs to prove their
claims and allegations by a preponderance of the evidence as required by the Constitution
and the laws of the State of Texas. Defendants hereby reserve their right to amend this
answer and assert other and further defenses and claims as the facts of this case warrant.
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II.
VERIFIED DENIAL
2. Pursuant to Rule 93 of the Texas Rules of Civil Procedure, Defendant, Khyati
Mohamed Undavia (“Undavia”), files this verified denial to Plaintiffs’ claims against her.
Specifically, Defendant Undavia denies that she is liable in her individual capacity for
Plaintiffs’ claims. (See Declaration of Undavia; Ex. A).
III.
AFFIRMATIVE DEFENSES
3. Subject to and without waiving the foregoing, Defendants assert and raise the
following affirmative defenses to Plaintiffs’ claims:
a. Plaintiffs’ claims are barred in whole or in part because Plaintiffs
come into the Court with unclean hands.
b. Plaintiffs’ claims are barred in whole or in part by the doctrine of
estoppel, including, but not limited to, collateral estoppel.
c. Plaintiffs’ claims are barred in whole or in part by the doctrine of res
judicata.
d. Plaintiffs’ claims are barred in whole or in part by the statute of
repose.
e. Plaintiffs’ claims are barred in whole or in part because Plaintiffs
failed to perform all conditions precedent.
f. Plaintiffs’ claims are barred in whole or in part because Plaintiffs
intentionally relinquished Plaintiffs’ known rights or engaged in
intentional conduct inconsistent with claiming those rights.
g. Plaintiffs’ claims are barred in whole or in part by the statute of
frauds.
h. Plaintiffs’ claims are barred in whole or in part by the doctrine of
waiver.
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i. Plaintiffs’ claims are barred in whole or in part by abandonment of
opportunity.
j. Plaintiffs’ claims are barred because they are unreasonable, frivolous,
vexatious and brought to harass Defendants.
k. Plaintiffs’ claims are barred because there is a defect in the parties.
l. Plaintiffs’ claims are barred in whole or in part because Defendants
acted at all times in good faith and in a reasonable manner.
m. Plaintiffs’ claims are barred in whole or in part because Plaintiffs
failed to mitigate their damages.
n. Plaintiffs’ claims are barred in whole or in part because of laches.
o. Plaintiffs have no claims based on release and settlement.
p. Plaintiffs’ claims are barred in whole or in part by the statute of
limitations.
q. Plaintiffs’ claims are barred by accord and satisfaction.
IV.
DEFENDANTS' ORIGINAL COUNTERCLAIMS
4. Counter-plaintiffs Khyati Undavia, Minu RX, Ltd., and MINU GP, LLC have made
an appearance through counsel.
5. Counter-defendants Avant Medical Group, P.A. d/b/a Interventional Spine
Associates, Nisal Corp. d/b/a Qualcare Rehabilitation, and Brett L. Garner d/b/a Allied
Medical Centers have made an appearance through counsel.
A. VENUE AND JURISDICTION
6. This court has jurisdiction over the claims because the amount in controversy
exceeds the jurisdictional requirements of the court. Venue is proper in Harris County
because all or a substantial part of the events or omissions giving rise to the claim
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occurred in Harris County. This court has personal jurisdiction over the parties because
they are all Texas residents and have all made an appearance in this lawsuit.
B. BACKGROUND
7. Defendants Minu Rx (“Minu”) is a pharmacy. Defendant Khyati Undavia
(“Undavia”), a pharmacist, owns Minu.
8. Undavia also owns Providian Holding, Inc. (“Providian”). As a holding
company, Providian, in turn, owns 2918 San Jacinto St., Houston, Texas 77004 (the
“Building”). Minu operates on the lower floor of the Building.
9. Beginning in 2009, Plaintiff Nisal Corp. (“Nisal”) and Sterling Practice
Management (“Sterling”) rented the second floor of the Building from Providian under
two separate leases.
10. In 2013, Nisal and Sterling ended their leases with Providian. Nisal and
Sterling then sued Providian over a breach of the lease agreements in County Court of
Harris County. The parties entered into a settlement agreement and executed a broad-
form mutual release (“Mutual Release”) in which they released “any and all claims . . .
whether known or unknown” that they may have had against each other. Sterling and
Nisal then nonsuited their claims against with prejudice.
11. Because the Mutual Release and Nonsuit with Prejudice bar all claims
between the parties, this lawsuit is in direct breach of the Mutual Release.
V.
CLAIMS
A. Declaratory Judgment
12. Counter-Plaintiffs request this Court to declare their rights, status, and legal
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relations with respect to the Mutual Release. Counter-defendants contend that Counter-
Defendants released all of their claims in this matter through the Mutual Release and
dismissal with prejudice of the County Court lawsuit.
13. Counter-Plaintiffs are entitled to recover attorney’s fees incurred in the
prosecution of this matter. TEX. CIV. PRAC. & REM. Code §37.009.
B. Breach of Contract
14. Counter-Plaintiffs and Counter-Defendants entered into a Mutual Release.
Counter-Defendants breached that Mutual Release by filing claims in this lawsuit directly
released in that Mutual Release. Counter-Plaintiffs are, therefore, damaged as a result and
sue for their attorney's fees under Chapter 38 of the Civil Practices and Remedies Code.
VI.
CONCLUSION
15. For the foregoing reasons, Defendants ask the Court to order that Plaintiffs
take nothing on their claims, that costs be assessed against Plaintiffs, and that
Additionally, Counter-Plaintiffs ask the Court to award damages as a result of Counter-
Defendants' breach of the Mutual Release, including, but not limited to attorney's fees
and expenses. Counter-Plaintiffs further seek a declaratory judgment from this Court that
all claims asserted in this lawsuit are released and dismissed as a matter of law. Counter-
Plaintiffs also seek their attorney's fees under the Declaratory Judgment Act.
16. Defendants and Counter-Plaintiffs request all other relief to which they are
entitled at law or equity.
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Dated: February 16, 2015 Respectfully submitted,
MAHENDRU, P.C.
By:
Ashish Mahendru
State Bar No. 00796980
Darren A. Braun
State Bar No. 24082267
639 Heights Blvd.
Houston, Texas 77007
Telephone: 713-571-1519
Facsimile: 713-651-0776
amahendru@thelitigationgroup.com
dbraun @thelitigationgroup.com
ATTORNEYS FOR DEFENDANTS
AND COUNTER-PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
provided to all counsel of record in accordance with the applicable Texas Rules of Civil
Procedure on this 16th day of February, 2015.
Matias J. Adrogué Email:mja@mjalawyer.com
Robert Stephan Kaase Email: rsk@mjalawyer.com
1629 West Alabama St. Facsimile: 713.425.7271
Houston, Texas 77006
Ashish Mahendru
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CAUSE NO. 2014-22186
AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF
d/b/a ALLIED MEDICAL CENTERS §
and INTERVENTIONAL SPINE §
ASSOCIATES, §
§
Plaintiffs §
§
VS. § HARRIS COUNTY, TEXAS
§
KHYATI MOHAMED UNDAVIA and §
MINU RX, LTD., §
§
Defendants § 152ND JUDICIAL DISTRICT
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE ROBERT SCHAFFER:
Defendants Khyati Mohamed Undavia, Minu RX, Ltd., and Minu GP, L.L.C. file
this Motion for Summary Judgment and would respectfully show the Court as follows:
I.
SUMMARY
1. Plaintiffs entered into a Mutual Release with all Defendants; therefore, Plaintiffs
have no extant claims. All Defendants are named in the Mutual Release. Not only that, the
law on releases captures all Defendants and Plaintiffs even if Plaintiff somehow convinces
this Court that only some of the parties are named in the Mutual Release.
2. Beyond the application of the Mutual Release and release law, the claims are barred
because Plaintiffs dismissed their claims against Defendants in an underlying lawsuit with
prejudice. Res judicata, therefore, bars the claims.
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3. With respect to the conversion claim, Plaintiffs are mere payees of the converted
checks and, according to the plain language of the Texas Business and Commerce Code,
have no cause of action against Defendants.
4. Finally, several of Plaintiffs claims are barred by the statute of limitations.
II.
ISSUES PRESENTED
5. In this motion, Defendants present the following issues for this Court’s decision as
a matter of law:
a. By executing a full, unqualified release in a related lawsuit, did Plaintiffs
release their claims in the instant lawsuit?
b. Are Plaintiffs’ claims barred by the doctrine of res judicata because they
nonsuited with prejudice their claims against Defendants in a related
lawsuit?
c. Are Plaintiffs foreclosed from bringing a conversion claim for the checks
where Plaintiffs never actually received delivery of the checks?
d. Are Plaintiffs’ claims barred in-part by the statute of limitations?
As a matter of law, the answer to the foregoing question is a resounding "Yes."
III.
SUMMARY JUDGMENT EVIDENCE
6. This motion is based on the following evidence:
• Commercial Leases (Exhibits A and B)
• Mutual Release (Exhibit C)
• Non-Suit with Prejudice (Exhibit D)
• Declaration of Khyati Undavia (Exhibit E)
• Elevator Invoices (Exhibit F)
• Minu Rx’s Quickbooks (Exhibit G )
• Officers and Directors of Nisal Corp. (Exhibit H)
• Officers and Directors of Providian Holdings, Inc. (Exhibit I)
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• Proof of Insurance Coverage for Avant Medical Group (Exhibit J)
• Copy of Rent Check (Exhibit K)
• County Court Lawsuit Petition (Exhibit L)
• Officers and Directors of Sterling (Exhibit M)
• Lease Termination Letter (Exhibit N)
• Declaration of Ashish Mahendru (Exhibit O)
• Avant Medical Group Account Status (Exhibit P)
IV.
BACKGROUND FACTS
7. The facts below are supported by the Declaration of Khyati Undavia, which
declaration is incorporated by reference as if fully stated herein. (See Undavia Declaration;
Ex. E).
8. Defendant Minu Rx (“Minu”) is a pharmacy. Defendant Khyati Undavia
(“Undavia”), a pharmacist, owns Minu.
9. Undavia also owns Providian Holding, Inc. (“Providian”). As a holding company,
Providian, in turn, owns 2918 San Jacinto St., Houston, Texas 77004 (the “Building”).
Outside of that, Providian does not conduct regular business. Minu operates on the lower
floor of the Building. Providian has no physical office space, nor does it have any
employees aside from Undavia. Instead, Providian simply uses Minu’s offices and
employees for its needs.
10. Beginning in 2009, Plaintiff Nisal Corp. (“Nisal”) and Sterling Practice Management
(“Sterling”) rented the second floor of the Building from Providian under two separate
leases. (See Commercial Leases; Exs. A and B).
11. In 2013, Nisal and Sterling ended their leases with Providian. Nisal and Sterling
then sued Providian over a breach of the lease agreements. (See County Court Petition; Ex.
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L). The parties entered into a settlement agreement and executed a broad-form mutual
release (“Mutual Release”) in which they released “any and all claims . . . whether known or
unknown” that they may have had against each other. (See Mutual Release; Ex. C).
Sterling and Nisal then nonsuited their claims against with prejudice. (See Nonsuit With
Prejudice; Ex. D).
12. During the pendency of the leases, the postal service, when delivering mail to the
Building, intermingled the mail. It did not make separate deliveries to each of the
Building’s tenants. Instead, it simply dumped all of the Building’s mail in Minu’s offices.
Because Minu is a pharmacy, it received hundreds of checks per month as payment for
dispensed medications. There was no formal system of mail sorting or separation, and each
tenant of Providian took an ad hoc approach to the mail handling.
13. Allegedly, through this process, a few checks dated from 2011 to 2013 made payable
to Plaintiffs that arrived via the mail were accidently sorted into Minu’s mail pile and then
deposited into Minu’s account.
14. Because the Mutual Release and Nonsuit with Prejudice bar all claims between the
parties, this Court must grant summary judgment.
V.
SUMMARY JUDGMENT STANDARD
9. Rule 166a provides a method of summarily terminating a case when it clearly
appears that only a question of law is involved and that there is no genuine fact issue.
See Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972). The party moving for summary
judgment carries the burden of establishing that no material fact issue exists and that it is
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entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Wornick Co. v.
Casas, 856 S.W.2d 732, 733 (Tex. 1993); Nixon v. Mr. Property Mgt. Co., 690 S.W.2d
546, 548 (Tex. 1985); Calvillo v. Gonzalez, 922 S.W.2d 928, 929 (Tex. 1966). The
nonmovant has a burden to respond after the movant conclusively establishes its cause of
action or defense. See Oram v. General Am. Oil Co., 513 S.W.2d 533, 534 (Tex. 1974);
Swilley, 488 S.W.2d at 67-68. The movant must establish its right to summary judgment
on the issues expressly presented to the trial court by conclusively proving all elements of
the movant’s cause of action or defense as a matter of law. See Walker v. Harris, 924
S.W.2d 375, 377 (Tex. 1996); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.
1995); City of Houston, 589 S.W.2d at 678.
10. As shown below, Defendants conclusively prove each element of their affirmative
defenses of release and res judicata as a matter of law. Cathey v. Booth, 900 S.W.2d 339,
341 (Tex. 1995); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Defendants are
therefore entitled to summary judgment.
VI.
L EGAL STANDARD FOR R ELEASES
11. Generally, “unless a party is named in a release, he is not released.” McMillen v.
Klingensmith, 467 S.W.2d 193, 197 (Tex. 1971). In order to release a claim, the
releasing document must “mention it.” Victoria Bank and Trust Co. v. Brady, 811
S.W.2d 931, 938 (Tex.1991). However, “a tortfeasor can claim the protection of a
release if he is referred to with such descriptive particularity that his connection with the
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tortious event is not in doubt.” Winkler v. Kirkwood Atrium Office Park, 816 S.W.2d
111, 113-14 (Tex. App.—Houston [14th Dist.] 1991, writ denied).
12. “Mentioning does not require particularized enumeration or detailed description,
only that the claim being released come within the express contemplation of the release
provision when viewed in context of the contract in which the release provision is
contained.” Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 254 (5th Cir.2000); Mem'l
Med. Ctr. of E. Tex. v. Keszler, 943 S.W.2d 433, 435 (Tex.1997). “Indeed, Texas courts
have consistently rejected the argument that defendants cannot avail themselves of the
protection of a release just because they were not specifically identified as parties to that
release.” Michael Lee Andrews Trust v. Licari, CIV.A.3:02-CV-1076-N, 2004 WL
524941, at *2 (N.D. Tex. Mar. 17, 2004).
13. Releases “[do] not require that the parties anticipate and identify each potential
cause of action relating to the releases subject matter,” and a “valid release may
encompass unknown claims and damages[.] Keck, Mahin & Cate v. National Union Fire
Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 698 (Tex. 2000).
VII.
MOTION FOR SUMMARY JUDGMENT
14. Whether by the plain language of the Mutual Release, or by Texas courts’ liberal
application of releases to unnamed parties, the Mutual Release bars Plaintiffs’ claims in
this lawsuit as to all Defendants.
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A. BY THE PLAIN TERMS OF THE RELEASE, PLAINTIFFS HAVE RELEASED
DEFENDANTS.
15. The Mutual Release specifically names each Defendant, each Plaintiff, and each
claim in this lawsuit. Plaintiffs’ claims are entirely barred.
(i) Each Plaintiff and Defendant in this lawsuit is specifically mentioned in the
Mutual Release
16. The Mutual Release states, in relevant part, that:
NISAL [and STERLING] . . . [their] officers, directors,
shareholders, partners, successors, agents, assigns, employees,
servants, and attorneys . . . . hereby RELEASE, ACQUIT, and
FOREVER DISCHARGE PROVIDIAN, its officers, directors,
shareholders, successors, agents, assigns, employees, servants,
partners, heirs, and attorneys from any and all liabilities, claims,
demands, causes of action, judgments, liens, liabilities or potential
claims or causes of action which . . . NISAL [and STERLING] . . .
have ever had or could have had, whether now known or unknown,
which have arisen or may arise from the beginning of time to the
date of this release[.]
(See Mutual Release, p. 1-2; Ex. C) (emphasis in original). In this case, each party is
either a signatory to the Mutual Release or an agent of a signatory.
a. Plaintiff Nisal is bound by the Mutual Release because it is
a signatory.
17. This is a no-brainer. Nisal is both a Plaintiff and a signatory to the Mutual
Release. Accordingly, it is bound by the Mutual Release, and its claims are barred.
b. Plaintiff Garner is bound by the Mutual Release because he
is an agent of Nisal.
18. In addition to Nisal, Garner is also bound by the Mutual Release.
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19. The Mutual Release extends not only to the named parties, but also to their
“agents” and “employees.” Id. Accordingly, any agent or employee of Nisal is bound by
the release.
20. Here, Garner is both the president and director of Nisal. (See Officers and
Directors of Nisal Corp.; Ex. H). Further, he signed Nisal’s commercial lease with
Providian as its “CEO.” (See Nisal Commercial Lease, p. 14; Ex. A). Likewise, he is
designated as Nisal’s representative for any official notice required by the lease. Id. at p.
13.
21. Accordingly, Garner is Nisal’s agent as a matter of law, and is bound by the
Mutual Release. His claims are barred.
c. Plaintiff Avant is bound by the Mutual Release because it is
an agent of both Sterling and Nisal
22. Rounding out the Plaintiffs, Avant is the agent of both Nisal and Sterling, and is
bound by the Mutual Release.
23. First, even Plaintiffs admit that Avant is Allied, and that Allied is Garner, and
thus, Avant is Garner. In their case caption, Plaintiffs state that Allied is the d/b/a of
Avant. (See Plaintiffs’ First Amended Petition). Allied, in turn, is the d/b/a of Garner.
Id. at ¶4. Allied is again listed as a d/b/a of Avant in the Proof-of-Insurance certificate
that Sterling provided to Providian at the outset of the Commercial Leases. (See Proof of
Insurance Coverage for Avant Medical Group; Ex. J). Because Avant is simply a d/b/a
for entities bound by the Mutual Release, it too is bound by the Mutual Release.
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24. Second, Avant paid Sterling’s rent out of its own account. (See Avant Rent
Check; Ex. K); (See Declaration of Khyati Undavia, ¶15; Ex. E). Similarly, Avant
procured a CGL policy on behalf of Sterling. (See Proof of Insurance Coverage for
Avant Medical Group; Ex. J).
25. Third, although not actually a party to the written lease, Avant nevertheless
operated in the office space leased by Nisal and Sterling. (See Declaration of Khyati
Undavia; Ex. E); (See Plaintiff’s First Amended Petition; ¶11). In fact, Sterling and Nisal
had no operations in the Building; their leased premises were occupied by Avant. Id.
Sterling and Nisal even negotiated for a lease provision that prevented Providian from
leasing space to any other “chiropractor” or “pain management business” in order to
protect Avant from competition. (See Nisal Commercial Lease, p. 13; Ex. A).
26. Finally, Plaintiff Garner is the president and director of Nisal and the member-
manager and registered agent of Sterling. (See Officers and Directors of Nisal; Ex. H);
(See Officers and Directors of Sterling; Ex. M). Sterling, in turn, serves as Avant’s
registered agent. (See Avant Medical Group Account Status; Ex. P). Garner also had a
management role at Avant during Avant’s tenancy in the Building and worked for Avant
as a chiropractor. (See Declaration of Khyati Undavia, ¶13; Ex. E).
27. Avant, Sterling, and Nisal were inextricably linked and were all representatives
and agents of each other with respect to the lease between Providian, on one hand, and
Nisal and Sterling, on the other. Having signed a Mutual Release of all claims, these
Plaintiffs are forever barred from bringing claims for anything related to Defendants.
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d. Defendant Undavia is subject to the Mutual Release
because she is an agent of Providian
28. Just like the Plaintiffs, Undavia is bound by—and protected by—the Mutual
Release.
29. Providian is a signatory to the Mutual Release. Undavia is Providian’s owner and
sole employee. (See Declaration of Khyati Undavia; Ex. E); (See Officers and Directors
of Providian Holdings, Inc.; Ex. I). Undavia even signed the Mutual Release on behalf of
Providian. (See Mutual Release; Ex. C). Accordingly, Undavia is Providian’s agent and
is specifically mentioned in the Mutual Release. Therefore, all claims against her as an
individual are barred.
e. Defendant Minu is bound by the Mutual Release because it is an
agent of Providian.
30. Like Undavia, Minu was Providian’s agent and representative and was expressly
authorized to act on behalf of Providian for any matters, including matters related to
Providian’s lease with Plaintiffs. (See Declaration of Khyati Undavia; Ex. E). In fact,
Providian has no physical office space or employees; its physical address is actually that
of Minu’s. Id. at ¶13. Minu handled a variety of matters for Providian, including
collecting rent, obtaining insurance for the Building, arranging and paying for the
Building’s security, arranging and paying for grounds, facilities, and common area
maintenance, and arranging and paying for the Building’s elevator inspections and
servicing. Id. at ¶5-12; (See Minu Rx's Quickbook; Ex. G); (See Elevator Invoices; Ex.
F). The Commercial Leases made many of these tasks Providian’s responsibilities. (See
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Commercial Lease, p. 8; Exs. A and B) (Stating that “grounds maintenance” and
“common area” maintenance are Provdian’s obligations).
31. That Minu was Providian’s agent with regard to the lease is further evidenced by
the Plaintiffs’ own allegations. Plaintiffs allege that:
Defendants . . . had an oral agreement with Plaintiffs to collect all mail
received at the Building and deliver the same to Plaintiffs.
(Plaintiffs’ First Amended Petition, ¶19). Plaintiffs allege that Minu was responsible for
receiving and sorting the Building’s mail—a task of the Landlord—and certainly one that
would not arise in the absence of an agency relationship between Providian and Minu.
Moreover, despite only having a lease with Providian, Minu was so involved in the
management of the Building as alleged by Plaintiffs that Plaintiffs characterize their
agreement as being with Minu and not Providian. In fact, Plaintiffs failed mention
Providian once in their amended petition. Following that logic, Minu is the "landlord" of
Plaintiffs.
32. Although Providian owned the building, Minu was the management company and
was authorized to act on behalf of Providian for any matters with respect to the Plaintiffs’
tenancy at the building. (See Declaration of Khyati Undavia, ¶4; Ex. E). It is therefore
subject to, and protected by, the Mutual Release.
33. Plaintiffs’ claims against Minu GP fail for the same reasons specified above.
Further, Plaintiffs’ have alleged vicarious liability on Minu GP because of its relationship
to Minu. Because Minu is not liable for Plaintiffs’ claims, Plaintiffs’ claims against Minu
GP likewise fail.
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(ii) The Mutual Release specifically mentions each claim in this lawsuit
34. The Mutual Release, aside from specifically mentioning each party in this lawsuit,
also specifically mentions each claim in this lawsuit. These claims are, therefore, barred.
35. In settling the Original Lawsuit, the parties executed the Mutual Release in which
Nisal and Sterling, as well as their officers, directors, shareholders, successors, agents,
assigns, employees, servants, partners, heirs and attorneys” released Providian, as well as
its officers, directors, shareholders, partners, successors, agents, assigns, heirs,
employees, servants, and attorneys, from “all liabilities, claims, demands, causes of
actions, judgments, liens, liabilities or potential causes of action which Sterling and
Nisal have ever had or could have had, whether now known or unknown, which
have arisen or may arise from the beginning of time to the date of this release[.]”
(See Mutual Release; Ex. C). In this release, the parties no doubt contemplated the
claims in this current lawsuit because they released not only those claims actually alleged
in the original lawsuit, but also all claims “whether known or unknown, which have
arisen or may arise.” Id.
36. This Mutual Release was signed on October 3, 2013. In this instant lawsuit, all
allegedly-converted checks are dated prior to this time. (See Plaintiffs' Original Petition).
Indeed, releases “[do] not require that the parties anticipate and identify each potential
cause of action relating to the releases subject matter,” and a “valid release may
encompass unknown claims and damages[.] Keck, Mahin & Cate v. National Union Fire
Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 698 (Tex. 2000). The parties’ broad,
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unqualified release language encompasses the Plaintiffs’ unknown claims against
Defendants as a matter of law. Defendants are entitled to summary judgment.
B. T HE P ARTIES ARE SO I NTIMATELY C ONNECTED T O T HE M UTUAL R ELEASE
T HAT T HEY ARE BOUND BY I T .
37. Even if certain Plaintiffs and Defendants are not specifically mentioned in the
Mutual Release, each party is so intimately connected to the other parties and claims
involved in the Mutual Release that they are bound by the Mutual Release. Indeed,
Texas courts readily extend releases to unnamed, but related, parties.
38. In Winkler, a health club member signed the following release at the outset of his
club membership:
Buyer does hereby for his or herself, heirs, executors, legatees,
administrators, or assigns, waive, release and forever discharge any and all
claims the Buyer may now or in the future have against the Club for
injuries suffered by the Buyer while participating in any programs of the
Club.
Id. at 113. While exercising at the club, the member suffered a fatal heart attack. Id. at
112. His estate and next of kin filed suit against the club as well as several individuals
associated with the club. Id. at 113. All defendants, including the individual defendants,
moved for summary judgment on the basis that the decedent had released his claims
against them. Id. Plaintiffs argued in response that the “[defendants] cannot avail
themselves of the protection of the release because they were not specifically identified
as parties to the release.” Id. The court rejected that argument, holding that “[i]n
releasing ‘the Club’ from any injuries suffered while participating in the center’s
programs, it is clear that Winkler intended to release any claim against all individuals and
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entities involved in the operation, maintenance, and administration of the center.” Id. at
114.
39. Likewise, the court in Vera v. North Star Dodge Sales, Inc. interpreted a contract
between a consumer and a corporation that including a release that “release[d] North Star
Dodge from any and all liability regarding the purchase of a 1993 Mazda Protg[.]” 989
S.W.2d 13, 16 (Tex. App.—San Antonio, 1998, no pet.) Although the release
enumerated only the car dealership with particularity, the court held that the broad release
of “all liability regarding the [vehicle] purchase” barred claims against the sales manager
and the employee who handled the financing:
In this case, it is clear that the release of “North Star Dodge” from any
liability associated with the sale of the Mazda, also released the North Star
Dodge employees associated with that sale. Under the circumstances, the
connection of Powers and Hall with North Star Dodge and the sale of the
Mazda is apparent. Therefore, the release encompasses Higinio’s claims
against North Star Dodge as well as his claims against North Star Dodge
employees involved in the sale of the Mazda.
Id. at 18.
40. In Dyrcz v. Longview Enterprise, Ltd., the court reached the same conclusion.
There, the plaintiff signed a release prior to participating in a dodgeball game that
released:
Grand Central Station Longview, its partners, agents, and employees from
any responsibility or liability for personal injury . . . [that] may [occur]
from participating in the Dodge Ball contest.
Dyrcz v. Longview Enter., Ltd., 2:05-CV-476 (TJW), 2006 WL 3289046, at *1 (E.D. Tex.
Nov. 13, 2006), aff'd sub nom. Dyrcz v. Graham Bros. of Longview, LLC, 234 Fed. Appx.
236 (5th Cir. 2007). Plaintiff thereafter sued Longview Enterprises—the employer of the
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management and staff at Grand Central Station Longview—for injuries sustained in a
dodgeball match. Id. Longview Enterprise moved for summary judgment pursuant to the
release even though it was not mentioned by the release. Id. In evaluating Longview
Enterprise’s argument, the court noted that “[i]n Texas, in order to claim the protection of
a release, the claim being released must come within ‘the express contemplation of the
release provision when viewed in context of the contract.” Id., citing Stinnett, 227 F.3d at
255. Further, the court recognized that “a tortfeasor can claim the protection of a release
as long as he is referred to “with such descriptive particularity that his identity or his
connection with the tortious event is not in doubt,” and therefore, that “a defendant may
still avail himself of the protection of a release even though he has not been specifically
identified as a party to the release.” Id., citing Winkler, 816 S.W.2d at 111.
41. Applying these rules, the court concluded that:
[T]he claims against Defendant Longview Enterprises fit within the release
signed by Plaintiff. There is no dispute that Plaintiff’s claims resulted from
participating in a dodgeball game at Graham Central Station.
....
Although the release does not specifically name Longview Enterprise, the
release does cover “partners, agents, and employees” of Graham Central
Station . . . [t]herefore, by releasing Graham Central Station, it is clear that
Plaintiff intended to release any claim against all individuals and entities
involved in the operations and activities of Graham Central Station, which
would include . . . . Longview Enterprise.
Id. at 2. Accordingly, the court granted the defendant summary judgment. Id.
42. In Memorial Medical Center, the Texas Supreme Court applied these same
concepts in finding that a physician, in releasing a hospital from “all claims” arising out
of the parties’ employer-employee relationship, also released the physician’s unknown
15
AR 000031
claims for exposure to toxic chemicals. Memorial Medical Center of East Texas, 943
S.W.2d at 434.
43. All of the foregoing cases lead to only one conclusion in the case at hand--
Plaintiffs Nisal, Avant, Garner, as well as Defendants Minu and Undavia, are bound by
the Mutual Release because of their intimate connection to the underlying subject
matter—the Commercial Leases.
(i) The parties were all intimately involved in the Commercial Leases
44. First, Providian—a company owned by Undavia—leased office space to Nisal
and Sterling. Although not actually parties to the lease, Avant and Garner nevertheless
operated in the office space leased by Nisal and Sterling. In fact, Nisal and Sterling had
no operations in the building. Plaintiff Garner is a principal of Avant and is the president
and director of Nisal and the member-manager and registered agent of Sterling. (See
Officers and Directors of Nisal; Ex. H); (See Officers and Directors of Sterling; Ex. M).
45. Sterling, in turn, serves as the registered agent of Avant. Sterling, Nisal, and
Avant were inextricably linked and were all representatives and agents of each other with
respect to the lease between Providian, on one hand, and Nisal and Sterling, on the other.
46. This notion is cemented by Plaintiffs’ own allegations. They allege:
Plaintiffs are former tenants in a commercial building which is owned
and/or managed by Defendant Khyati Mohamed Undavia or an entity for
which Defendant Khyati Mohamed Undavia is a principal, agent,
representative, or employee (the “Building”).
....
While Plaintiffs were tenants in the Building, all mail was delivered to
the Building’s main address, where it would be collected by Defendant
Khyatia Mohamed Undavia and distributed by her to her other tenants.
....
16
AR 000032
Plaintiffs recently discovered during their tenancy at the building,
Defendant Khyati Mohamed Undavia would frequently take letters
containing checks, from the mail, endorse the checks with the name and
bank account information for Minu Rx, LTD. d/b/a Memorial
Compounding Pharmacy, and deposit them into at least two bank
accounts of Minu RX, LTD. d/b/a Memorial Compounding Pharmacy.
....
Defendants . . . had an oral agreement with Plaintiffs to collect all mail
received at the Building and deliver the same to Plaintiffs.
....
Plaintiffs allege that Defendant Khyati Mohamed Undavia acted as an
agent of Plaintiffs with respect to collecting and delivering mail, and
therefore owed fiduciary duties to Plaintiff.
(See Plaintiff’s Amended Petition, ¶ 11, 12, 19, 20). Through these statements, Plaintiffs
acknowledge they were all tenants under the leases. If they were all tenants under the
lease, then surely they were parties to the Mutual Release.
(ii) The Original Lawsuit—which spawned the Mutual Release—arose out of
Plaintiffs’ tenancy with Defendants
47. Aside from being inextricably connected to each other, the parties in this lawsuit
were also all involved in the lawsuit that gave rise to the Mutual Release.
48. The Original Lawsuit arose out of a dispute concerning the commercial leases
between Providian and Nisal/Sterling. The Plaintiffs’ original petition in that lawsuit
alleged:
Sterling entered into a lease agreement with [Providian] . . . upon
termination of the lease and sixty days after Sterling provided a forwarding
address, [Providian] has refused to refund the security deposit to Sterling.
[Providian] has acted in bad faith.
.....
Nisal entered into a lease agreement with [Providian] . . . upon termination
of the lease and sixty days after Sterling provided a forwarding address,
[Providian] has refused to refund the security deposit to Nisal. [Providian]
has acted in bad faith.
17
AR 000033
(See Original Petition in Original Lawsuit; Ex. L).
49. In settling the Original Lawsuit, the parties executed a Mutual Release in which
Nisal and Sterling, as well as their officers, directors, shareholders, successors, agents,
assigns, employees, servants, partners, heirs and attorneys” released Providian, as well as
its officers, directors, shareholders, partners, successors, agents, assigns, heirs,
employees, servants, and attorneys, from “all liabilities, claims, demands, causes of
actions, judgments, liens, liabilities or potential causes of action which Sterling and
Nisal have ever had or could have had, whether now known or unknown, which
have arisen or may arise from the beginning of time to the date of this release[.]”
(See Mutual Release; Ex. C).
50. In other words, this lawsuit involves the same parties, the same subject matter, and
the same claims that were captured in the Mutual Release. The inescapable conclusion is
that each Plaintiff, each Defendant, and each claim in this lawsuit—whether or not
specifically mentioned in the Mutual Release—is so intimately connected to that release
that it is unequivocally encompassed in the Mutual Release.
C. PLAINTIFFS’ CLAIMS ARE BARRED BY THE DOCTRINE OF RES
JUDICATA
51. The Mutual Release is not the only bar to Plaintiffs’ claims in this lawsuit.
Plaintiffs’ claims are also barred by the doctrine of res judicata.
52. “Res Judicata bars litigation of all issues and defenses which, with the use of
diligence, might have been tried in the prior suit.” Bell v. Morris, 832 S.W.2d 749, 754
(Tex. App.—Houston [14th Dist.] 1992, writ denied). “When there has been a prior
18
AR 000034
judgment in a subsequent suit in which there is identity of the parties, issues, and subject
matter, such judgment is treated as an absolute bar to retrial of claims pertaining to the
same cause of action on the theory that they have merged into the judgment.” Id.
“Summary judgment may be granted upon a proper plea of res judicata.” Id.
53. “In general, if [a] dismissal is with prejudice, res judicata applies.” Id. at 755.
“Also, if the dismissal is entered by agreement of the parties in pursuance of the
compromise or settlement of a controversy, res judicata applies.” Id.
54. Here, the doctrine of res judicata bars’ Plaintiffs’ claims. In the Original Lawsuit,
Plaintiffs contended that:
Sterling entered into a lease agreement with [Providian] . . . upon
termination of the lease and sixty days after Sterling provided a
forwarding address, [Providian] has refused to refund the security
deposit to Sterling. [Providian] has acted in bad faith.
.....
Nisal entered into a lease agreement with [Providian] . . . upon
termination of the lease and sixty days after Sterling provided a
forwarding address, [Providian] has refused to refund the security
deposit to Nisal. [Providian] has acted in bad faith.
(See Original Petition in Original Lawsuit; Ex. L). Plaintiffs’ allegations in this lawsuit
are for a claim for breach of contract. (See §5 of the Nisal Commercial Lease; Ex. A)
(“Within 60 days after tenant surrenders the leased premises . . . Landlord will refund the
security deposit[.]”). Included are various torts including breach of duty of good faith and
fair dealing, conversion, theft liability act, and breach of fiduciary duty. These torts are
in play because Plaintiffs’ alleged “bad faith”.
19
AR 000035
55. The claims in the Original Lawsuit are the exact same claims that Plaintiffs now
assert against Defendants. Further, these current claims and the prior claims all arise out
of the exact same subject matter: the parties’ lease agreements.
56. Of course, res judicata only bars those claims that a party could have asserted in
the underlying lawsuit “with the use of diligence.” Bell, 832 S.W.2d at 754. Here,
Plaintiffs could have asserted their current claims in the Original Lawsuit had they used
any diligence at all. Defendants allegedly deposited Plaintiffs’ checks as early as August
2011. (See Plaintiffs' Original Petition); (See First Amended Petition). Plaintiffs did not
file the Original Lawsuit until September 5, 2013, meaning that Plaintiffs had over two
years to discover the fact that Defendants had deposited their checks. As a matter of law,
two years is not due diligence.
57. Accordingly, Plaintiffs claims are barred by the doctrine of res judicata.
Defendants are entitled to summary judgment as a matter of law.
D. P LAINTIFFS NEVER R ECEIVED DELIVERY O F T HE C HECKS AND T HEREFORE
H AVE NO ACTION FOR C ONVERSION AGAINST DEFENDANTS
58. Here, Plaintiffs allege that Defendants took the checks intended for Plaintiffs and
deposited them into Defendants’ own bank accounts. Under the Texas Business and
Commerce Code, Plaintiffs have no claims against Defendants.
59. “An action for conversion of an instrument may not be brought by . . . a payee or
indorsee who did not receive delivery of the instrument either directly or through delivery
to an agent or a co-payee.” Tex. Bus. & Com. Code § 3.420(b). The policy behind this
rule is that:
20
AR 000036
Until delivery, the payee does not have any interest in the check. The payee
never became the holder of the check nor a person entitled to enforce the
check. Section 3-301. Nor is the payee injured by the fraud. Normally the
drawer of a check intends to pay an obligation owed to the payee. But if the
check is never delivered to the payee, the obligation owed to the payee is
not affected. If the check falls into the hands of a thief who obtains
payment after forging the signature of the payee as an indorsement, the
obligation owed to the payee continues to exist after the thief receives
payment. Since the payee's right to enforce the underlying obligation is
unaffected by the fraud of the thief, there is no reason to give any additional
remedy to the payee.
Tex. Bus. & Com. Code Ann. § 3.420, cmt 3.
60. Here, Plaintiffs contend that Defendants “stole” Plaintiffs’ checks before the
checks were delivered to Plaintiffs’ offices. Thus, Plaintiffs never received “delivery” of
the checks and cannot maintain a conversion action against Defendants.
61. Further, there is no basis for holding that Defendants were Plaintiffs’ agents. First,
Plaintiffs terminated their tenancy on or about March 31, 2013. (See Original Lawsuit;
Ex. L) (Lease Termination Letter; Ex. N). Any agency relationship between the
Defendants and Plaintiffs, assuming arguendo that one existed, ended on that date. Yet
several of the checks allegedly converted by Defendants are dated well after the end of
Plaintiffs’ tenancy. (See Exhibit 1 to Plaintiffs' Motion to Compel) (four checks totaling
$11,387.15 dated September 25, 2013).
62. Even during the Plaintiffs’ tenancy, there was no agency relationship between
Plaintiffs and Defendants regarding the mail, and Plaintiffs’ contention that Defendants
21
AR 000037
“orally agreed” to accept Plaintiffs’ mail is untenable. The leases between Plaintiffs and
Defendants contained standard merger and no-oral modification clauses:
The lease contains the entire agreement between the Landlord and Tenant
and may not be changed except by written agreement.
(See Nisal Commercial Lease, § 38(A); Ex. A). The alleged “contract” regarding the
mail is not mentioned by the lease agreements. In fact, there is no mention of mail
anywhere. Accordingly, Plaintiffs’ reliance on the alleged oral agreement violates either
the parol-evidence rule or the no-oral modification clause. See Robbins v. Warren, 782
S.W.2d 509, 511 (Tex. App.—Houston [1st Dist.] 1989, no writ) (in a contract required
by law to be written, a no-oral modification clause is valid and enforceable); see Tex.
Bus. & Com. Code §26.01(b)(5) (providing that a lease of real estate for more than one
year must be in writing to be enforceable); (See Nisal Commercial Lease; Ex. A)
(providing for a three-year lease).
E. P LAINTIFFS’ C LAIMS ARE BARRED I N P ART BY T HE STATUTE O F L IMITATIONS.
63. Plaintiffs’ claims are also barred in part by the applicable statute of limitations
period.
64. Conversion is subject to a two-year statute of limitations. Tex. Civ. Prac. & Rem.
Code §16.003. Unjust enrichment and money had and received claims are also subject to
a two-year limitations period. Elledge v. Friberg-Cooper Water Sup., 240 S.W.3d 869,
870 (Tex. 2007).
65. Here, Plaintiffs seek recovery for checks that Defendants allegedly took as early as
2011. Yet Plaintiffs did not file suit until April 22, 2014, and they allege no basis
22
AR 000038
sufficient to toll the statute of limitations. Accordingly, based on the allegations
Plaintiffs have asserted, their claims pre-date April 22, 2012; therefore, claims for
conversion, unjust enrichment, and money had and received are barred as a matter of law.
F. DEFENDANTS/C OUNTER -P LAINTIFFS ARE E NTITLED T O T HEIR ATTORNEY’S
F EES
66. Pursuant to Tex. Civ. Prac. Rem. Code §37.009 and §38.001, Counter-Plaintiffs
are entitled to their reasonable attorney’s fees in prosecuting their affirmative claims. To
date, Counter-Plaintiffs have incurred $11,257.50 in reasonable and necessary attorney's
fees. (See Declaration of Ashish Mahendru, ¶13; Ex. O).
VIII.
CONCLUSION
67. Plaintiffs entered into a Mutual Release in which they released any known or
unknown claims that they had against all Defendants. By operation of law and by
application of the Mutual Release, Plaintiffs’ claims are barred as to all Defendants.
Additionally, Plaintiffs’ claims are barred by res judicata because Plaintiffs nonsuited
their prior lease claims against Defendants with prejudice. Because Plaintiffs never
received delivery of the checks, they have no claim for conversion. Plaintiffs’ claims are
also barred in part by the applicable limitations periods.
68. Defendants respectfully request that this Court grant them summary
judgment, dismiss Plaintiffs’ claims with prejudice, grant them their reasonable
attorney’s fees, and grant Defendants all further relief to which they are entitled at law or
equity.
23
AR 000039
Date: January 30, 2015 Respectfully submitted,
MAHENDRU, P.C.
By:
Ashish Mahendru
Texas Bar No. 00796980
Darren A. Braun
Texas Bar No. 24082267
639 Heights Boulevard
Houston, Texas 77007
(713) 571-1519 (Telephone)
(713) 651-0776 (Facsimile)
amahendru@thelitigationgroup.com
dbraun@thelitigationgroup.com
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
provided to all counsel of record in accordance with the applicable Texas Rules of Civil
Procedure on this 30th day of January 2015.
Matias J. Adrogué
Robert Stephan Kaase
1629 West Alabama St.
Houston, Texas 77006
Ashish Mahendru
24
AR 000040
TEXAS ASSOCIATION OF REALTORS'
REALTORS
~~
COMMERCIAL LEASE
USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS Of OF THE TEXAS ASSOCIATION
ASSOCI.o.TlONOFOF REALTORS® IS NOT AUTHORIZED
REALTQRS®IS AUTHORIZED..
«exu ASsOCiation
.;rr.~ .. A. .""llIIlon of REALTORS®. Inc.
ofREALTOR$e>, 2006
(Qt;. 20GEI
Table of Contents
No.
M2: Paragraph Description Pg.
f9:. H2:.
No. Paragraph Description E9:.
E!b
1. Parties 2 22. Holdover 10
2. Leased Premises 2 & Security Interest
23. Landlord's Lien & 10
3. Term 2 24. Assignment and Subletting 10
A. Term 25. Relocation 11
B. Delay of Occupancy 26. Subordination 11
4. Rent and Expenses 3 27. Estoppel Certificates 11
A. Base Monthly Rent 28. Casualty Loss 11
B. First Full Month's Rent 29. Condemnation 12
C. Prorated Rent 30. Attorney's Fees 12
D.
O. Additional Rent 31. Representations 12
E. Place of Payment. 32. Brokers 12
F. Method of Payment 33. Addenda 13
G. Late Charges 34. Notices 13
H. Returned Checks 35. Special Provisions 13
5. Security Deposit 4 36. Agreement of the Parties 14
6. Taxes 4
7. Utilities 4
8. Insurance 5 ADDENDA & {check all that a~el~l
& EXHIBITS (check aQQ1:t}
9. Use and Hours 5
10. Legal Compliance 6 on
l1li Exhibit AA
11. Signs 6 0 Exhibit
12. Access By Landlord 7 0 Commercial Lease Addendum for Broker's Fee
13. Move-In Condition 7 0 Commercial Lease Expense Reimbursement
14. Move-Out Condition 7 Addendum
15. Maintenance and Repairs 7 I»
l1li Commercial Lease Addendum for Extension
A. Cleaning Option
B. Conditions Caused by a Party 0 Commercial Lease Addendum for Percentage
c. Repair && Maintenance Responsibility
C. Rent
D. Repair Persons ~
OJ Commercial Lease Parking Addendum
E. HVAC Service Contract 0lI
l1li Commercial Landlord's Rules and Regulations
F. Common Areas l1li
0lI Guar~nty
Commercial Lease Guaranty
G. Notice of Repairs l1li
0lI Commercial Lease Right of First Refusal to Lease
H. Failure to Repair Addendum
16. Alterations 9 0 Commercial Lease Addendum for Optional
17. Liens 9 Space
18. Liability
Uability 9 I»
IliI Commercial Leasehold Construction Addendum
19. Indemnity 9 ~ Acceptance Eor:m
Eorm
20. Default 9 ii
~ Rjgbt
IU gbt of Eh:st
Ehst Befllsa]
Refusal to EIlJ.:cbase
Em::cbase
21. Abandonment,
Abandonment. Interruption of Utilities,
Removal of Property & & Lockout 10
(TAR-2101) 5-26-06 Tenant:~
Initialed for Identification by Tenant:&_.
_ _,• aod Laod'Ol&:Tenant Properly: Unil Number 200 containing approximately 44 7 nn
700
square feet of rentable area in MemorJ.al Compounding Pharmacy Building (prOject
Memorial Compoundlng (project name)
m
at 2918 San Jacinto Street street
(address) in Houston
(address] 77004 (city), Harris (county),
Texas, which is legally
Texas. IegaIy described on attached Exhibit A A or as follows:
The premises are being leased "AS IS". Tenant has insl?ected inspected the premjses and
accepts the premises "AS IS".
a(] (2) Single-Tenant
S!!gle-Tenant Properly: Prope!Iy: The real property at: _ _ _ _ _ _ _ _ _ _ _ _--:-___--:-:-
_____________________________________________________ ~(~)in
(adcress) in
(city),, _ _ _ _ _ _ _ _ (county),
(city1,----------------:-c-::(county), Texas, which
Texas, which
-is-:IegaDy---descri----:"bed--on-attached~-:---:-:Exh~"::'ibit-:':'-=--=-____________
~is-;Iega8y:---=--;descri:--~·c.-bed-;--on-a\lached;:--:-:--.-:=Exh""""'ibiI'"'·;-_-
_ _ _ _ _ _ _ _ _ _ _ or as follows: _ ________
_ _ ___
B. If Paragraph 2A(1) applies:
~ means the building or complex in which the leased premises are located, incIusiw
(1) "Property" inclusive of any
common areas, drives, parking areas, and walks; and
thai the
(2) the parties agree that \he rentable area of the leased premises may not equal the actual or useable
at common areas in the Property.
area within the leased premises and may include an allocation of Property,
3. TERM:
A Term: The term of this lease is __ 3_6_ _ _ months and _-,,0,-_
_::.3,,6 0 days. commencing on:
days,
March 1, 2009 (Commencement
(Commeocement Date) and ending on
Februarv ?q. 201?
2Q, 2011 Date).
(Expiration Date),
(TAR-21 01) 5-26-06
(TAR-2101) Initialed for Identification by T enant:~- - ' and Lan~v. Page2of14
Page2af14
AR 000042
Commercial Lease conceming:,_ _
Commercialleaseconceming: ____
____
____
____
____
___________
____
____
____
____
____ _ _ _
___
8.
B. Delay of Occupancy: If Tenant is unable to occupy the leased premises on the Commencement Date
because of construction on the leased premises to be completed by Landlord that is not substantially
complete or a prior tenant's holding over of the leased premises, landlord
Landlord will not be liable to Tenant
for such delay and this lease will remain enforceable. In the event of such a delay, the Commencement
Date will automatically be extended to the date Tenant is able to occupy the Property and the
Expiration Date will also be extended by a like number of days, so that the length of this lease remains
1h
unchanged. If Tenant is unable to occupy the leased premises after the 90th day after the
Commencement Date because of construction on the teased leased premises to be completed by Landlord
that is not substantially complete or a prior tenant's holding over of the leased premises, Tenant may
terminate this lease by giving written notice to Landlord before the leased
leased. premises become available
to be occupied by Tenant and Landlord will refund to Tenant any amounts paid to Landlord by Tenant.
This Paragraph 3B does not apply to any delay in occupancy caused by cleaning or repairs.
C. Unless the parties agree otherwise, Tenant is responsible for obtaining a certificate of occupancy for
the leased premises if required by a governmental body.
4. RENT AND EXPENSES:
A. Base Monthly Rent: On or before the first day of each month during this lease, Tenant will pay
aB:stI:IiI':.t!l.EI~&&&&&&&&&&&&&&&&8Jif;as follOWS:
Landlord base monthly rent as described .B:atllilr::D8g~zzzzzzzzzzzZzzzzt:lgas follows:
from I, 2009
March 1, to 31 t 2009
August 31, $ 0.00
from SeEtember I, 2009 to Februar2 28, 2010
February $ 3,600 .0'OLmonth
.OO/month
from March I, 2010 to February 28, 2011 $ '3,90'0. OOLmonth
3 ,900. OO/month ,,
from "
March I, 2011
2'011 to February 29, 2012 $$~4 ,200.
,200.00Lmonth
aD/month
from " to $
B. First Full Month's Rent: The first full base monthly rent is due on or before September 1. 2'0'09
J. 2009
C. Prorated Rent
Rent: If the Commencement Date is on a day other than the first day of a month, Tenant will
pay Landlord as prorated rent, an amount equal to the base monthly rent multiplied by the following
fraction: the number of days from the Commencement Date to the first day of the following month
divided by the number of days in the month in which this lease commences. The prorated rent is due
on or before the Commencement Date.
D. Additional Rent: In addition to the base monthly rent and prorated rent, Tenant will pay Landlord all
aU
other amounts, as provided by the attached (Check all
a/l that apply.):
oa(1) Commercial Expense Reimbursement Addendum N/A
Cl (2) Commercial Percentage Rent Addendum N/A
(J
(J (3) Commercial Parking Addendum N/A
o (4)~N~!A~~~~~~~~~~~~~~~~==~~~~~~~~~~~~~
(J(4)~N~/A=___~--~~~--~~--~~--~~--~--~--~--------------
All amounts payable under the applicable addenda are deemed to be "rent" for the purposes of this
lease.
E. Place of Payment: Tenant will remit all amounts due Landlord under this lease to the following person
at the place stated or to such other person or place as Landlord may later designate in writing:
Name: Providian Holdings, Inc.
Address: 2918 San Jacinto Street,
Street. Suite 100
Houston,
Houston. Texas 77004 .
F. Method of Payment: Tenant must pay all rent timely without demand, deduction, or offset, except as
permitted by law or this lease. If Tenant fails to timely pay any amO~due
amo~due. under this lease or if any
returned to Landlord bY~~7'jnstitutjOn
check of Tenant is retumed bY~~7Anstitution on w Ich
Ich, i was drawn, Landlord after
(TAR-2101) 5-26-06 Tenant~, ___, and landlord:
Initialed for Identification by Tenantrz-r' Landlord: ..' __
_' _
_ Page 3 of 14
AR 000043
Commercial Lease conceming: _ _ _
____
____
____
____
_ _
_ ______
____
____
____
____
__ __
____
____
___
providing written notice to Tenant may require Tenant to pay subsequent amounts that become due
under this lease in certified funds. This paragraph does not limit Landlord from seeking other remedies
under this lease for Tenant's failure to make timely payments with good funds.
G. Late Charges: If Landlord does not actually receive a rent payment at the designated place of payment
within 5 days after the date it is due.
due, Tenant will pay Landlord a late charge equal to 5% of the amount
due. In this paragraph.
paragraph, the mailbox is not the agent for receipt for Landlord. The late charge is a cost
associated with the collection of rent and Landlord's acceptance of a late charge does not waive
Landlord's right to exercise remedies under Paragraph 20.
$25. Be (not to exceed $25) for each check Tenant tenders to
H. Returned Checks: Tenant will pay $25098
Landlord which is returned by the institution on which it is drawn for any reason, plus any late charges
until Landlord receives payment.
5. SECURITY DEPOSIT:
A. Upon execution of this lease,
lease. Tenant will pay $_3
$_3_,...
___ 0...
6"..0
.6_ 0_._0_0
_0_
0
_ _ _ _ _ _ _ to Landlord as a security
_0_0________
deposit.
B. Landlord may apply the security deposit to any amounts owed by Tenant under this lease. If Landlord
applies any part of the security deposit during any time this lease is in effect to amounts owed by
Tenant, Tenant must, within 10 days after receipt of notice from Landlord, restore the security deposit
to the amount stated.
C. Within 60 days after Tenant surrenders the leased premises and provides Landlord written notice of
Tenant's forwarding address, Landlord will refund the security deposit less any amounts applied toward
amounts owed by Tenant or other charges authorized by this lease.
lease.
.personal
nal
6. TAXES: Unless otherwise agreed by the parties, Landlord will pay air,PnfUio
t@tJf property ad valorem taxes
assessed against the leased premises.
7. UTILITIES:
A. The party designated below will pay for the following utility charges to the leased premises and any
connection charges for the utilities. (Check aI/
all that apply.)
N/A Landlord Tenant
(1) Water 0 ~
i9 0
(2) Sewer 0 Qg
i9 0
(3) Electric 0 ~
Ill! 0
(4) Gas 0 ~
IllI 0
(5) Telephone 0 0 QII
III
(6) Trash, Cleaning 0 0 QlI
IllI
(7) Cable 0 0 il
IllI
(8) 0 0 0
AU other utilities
(9) All 0 0 W
III
B. The party responsible for the charges under Paragraph 7 A will pay the charges directly to the utility
7A
service
selVice provider. The responsible party may select the utility service provider, except that if Tenant
selects the provider, any access or alterations to the Property or leased premises necessary for the
utilities may be made only with Landlord's prior consent, which Landlord will not unreasonably withhold.
If Landlord incurs any liability for utility or connection charges for which Tenant is responsible to pay
and Landlord pays such amount, Tenant will immediately upon written notice from Landlord reimburse
Landlord such amount.
ITAR-21 01) 5-26-,.;~-=...J~~ Printed Name ;,J ~ )
J1-b
/~9'
<~kb/09
-i.6~cv'"''--''''------------------
Title,_ _ _ _ _ _ _ _ _ _ _ _ _ __
b-!..::...~ Title.
Title'_ _ _
__ __
____
____
____
____
____ _ ___ _
__
Trtle' _____
Tenant Landlord
By
By By/_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
By ~-
Date Date
Printed Name Printed Name'
Printed Name_ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Title Title
,------------------------
(TAR-2101)
(TAR~2101) 5-26-06 Page 14 of 14
AR 000054
~".
~
TEXAS ASSOCIATION OF REALTORS
COMMERCIAL LEASE EXHIBIT
USE OF THIS
USE THIS FORM
fOOM BY
ElY PERSONS ME NOT
PEFlSQtIS WHO ARE NOT MEMBERS
MEMBERS OF THETHE TEXAS ASSOC",TlON
I'SSOCI.I.TlON OF REAI.TORS®
REALTOOS$IS NOT AUTHORIZEU
IS NOT AUTHORIZE[.;
OT.u.
OTe _",,""on of REAl.
.... AoaoclaKon of T'OR.Se.lne. :zoIHI
1tEJ\l.l'1;lRS&.1noc:.:root
EXHIBIT_A
EXHIBIT-.::A_
____
____
____
____
____
_____________
____
___ _
TO COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING THE LEASED
PREMISES AT 2918 San Jacinto Street, Houston!
Houston ( Texas
o
1-
Z
U
«-.
z
<
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NOT TO SCALE. DIMENSIONS AND SIZE SUBJECT TO MEASUREMENT.
PARTITIONS MAY NOT EXIST AS SHOWN.
AR 000055
~~
TEXAS ASSOCIATION OF
Of REALTORS"
REALTORS'
COMMERCIAL LEASE ACCEPTANCE FORM
us~ OF THIS FORM flY
USE ?~RSONS WHO ARE NOT MEMBERS OF THE
BY PERSONS REAlTOf!~ IS NOT AUTHORIZED.
TIlE TEXAS ASSOCIATION OF REALTORS® AUTHORIZED,
CT_
. Inc. 2006
ACCEPTANCE OF THE LEASED PREMISES AT 2918 San Jacinto Street, Houston, Texas'
Texas. Suite 200
REGARDING THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES.
A. The parties have inspected the leased premises. The parties acknowledge that any improvements,
construction, repairs, or other items required by the lease have been substantially completed. The
condition of the leased premises is acceptable to Tenant for the purposes of the lease. On or before
_ _ _ _ _ _ _ _ _ _ , 0 Landlord 0 CI Tenant will complete the following (punch list):
B_
8. The parties ratify the lease and confirm the following:
(1) The term of the lease is for 36 months and 00 days.
(2) The Commencement Date of the lease is ;:Ma""'r"c"'h'-"'-f:,-;!'2"OO,,9":,,-_
"",M:;;;:a.=.rc.;;;.;h",-,l;;;;.L...!. .;:2;;.. ;0;.. :0-"9_ _ __ _______ __
___
(3) The Expiration Date of the lease is February 29! 29, 2012
C.
c. Special Provisions:
Tenant has inspected the premises and accepts the premises "AS IS".
NISAL CORPORATI PROVIDIAN HOLDINGS, INC.
Tenant
B'-_L-'='--""'-"-=--=
By___~~~-~~~____________.....:..L:rc,~
~~~~
Date
Tenant
~~ __----__--____--__-2~/-~6Io1
~~-------------------2~/~GI6r
Landlord
B"_______________
~
~~
B'----__________
~ -.cc""
Date
Date ------------------------=Da--:-te Date
(TAR-2113) 5-26-06 Page 1 of
Page 1 of 1
1
AR 000056
TEXAS ASSOCIATION OF REALTORS"
REALTORS'
~~
COMMERCIAL LEASE ADDENDUM FOR EXTENSION OPTION
USE OF THIS
THiS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS® IS NOT AUTHORIZED.
REI\lTORS®IS AUTHORIZED
Clnn_ Mooc:latlon ot
C>Tex.. AsSOClRIon TORSCI. Inc:.
of REALTORS®, Inc. 2006
ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING
THE LEASED PREMISES AT 2918 San Jacinto Street
Street,c Houston, Texas Suite 200
A. At Tenant's option, Tenant may extend the term of above-referenced lease for 1 additional term(s) of
36
36.. months each. The first additional term commences upon the expiration of the term stated in the
lease and any subsequent additional term commences upon the expiration of the then applicable extended
term.
B. Tenant may exercise Tenant's option(s) to extend under Paragraph A only by providing written notice to
Landlord at least 90 days before the end of the then current term of the lease.
C. Tenant may not exercise Tenant's option(s) to extend under Paragraph A if the lease is terminated before
Tenant exercises its option to extend or Tenant is in breach of the lease at the time Tenant exercises its
option to extend.
D. During the additional term(s), all provisions of the lease will continue as in effect immediately before the
extension(s) commences except the base monthly rent during the additional term(s) will be:
QI
III (1) $ 4,400.00
4,400_00 from March 1, 2012 to February 28, 2013
10
$ 4,600.00 from March 1, 2013 10 February 28, 2014
to
$ 4,800.00 from March 1, 2014 10 February 28, 2015
to
$ from to
$ from to
o ~AII Urban Consumers, U.S. City Average,
(2) adjusted to reflect increases in the Consumer Price Index for "All
Items~, issued by the Bureau of Labor Statistics of the U.S. Department of Labor. The adjustment
All Items",
will be determined by multiplying the base monthly rent for the last month of the lease by the following
fraction: (i) the numerator will be the published index number for January in the year the additional term
commences; and (ii) (il) the denominator will be the published index number for January in the year in
which the original lease term commences. (Notice: This paragraph is appropriate for use only when the
rent in the lease remained constant through the term of the lease.)
o (3) the prevailing rental rate on the 45thth
day before the additional term commences for premises of
comparable size, quality, condition, improvements, utility, location, and length of term for tenant's of
similar credit standing as Tenant.
Tenant
E. If Paragraph 0(3) applies and the parties do not agree on the amount of the prevailing rental rate for the
th
additional term before the 30th day before the additional term commences, each party will employ a state-
certified appraiser and deliver the appraiser's written opinion of the prevailing rental rate to the other party
ttl
1Sth
not later than the 15 day before the additional term commences. If the appraisers' opinions do not vary
by more than 10%, 0
10 /0, the prevailing rental rate will be the average of the two opinions. If the appraisers'
opinions vary by more than 10%, the appraisers will jointly select a t~praiser whose fees will be
(TAR-2104) 5-26-06 Initialed (0<
lornaled for Ide_Do Tenaot~ ~~, land!Or.lnc.
of R£ALl'ORS*, Inc. 2006
20IMI
ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING
THE LEASED PREMISES AT 2918 San Jacinto Street,
street, Houston, Texas Suite 200
A "Additional space" means all or part of the following areas along with all its improvements;
A. improvements:
o
CJ (1) the following floors in the Property: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___.
~ (2) the following suites in the Property, presently identified, as: the first floor vacant office
!XI off ice space
o
CJ ___________________________________________________________
(3) __________________________________________________ ___
The parties agree that the rentable area of the additional space may not equal the actual or useable area
within the additional space and may include an allocation of common areas in the Property.
B. If Landlord receives an acceptable written offer from another person to lease the additional space at a time
when the above-referenced lease is in effect, Landlord will notify Tenant of the offer. Not later than 7 days
after T enanl receives Landlord's notice of the offer, Tenant may notify Landlord that Tenant will lease the
Tenant
additional space identified in the offer under the same terms and conditions in the offer. If Tenant notifies
Landlord that Tenant will lease the additional space identified in the after,
offer, Tenant must execute a written
lease for the additional space identified in the offer or amend the above-referenced lease, as Landlord may
require, not later than 10 days after Tenant receives Landlord's notice. If Tenant fails to timely
comply with this paragraph, Landlord may lease the additional space identified in the offer to the person
who made the offer. If Tenant does not exercise its right to lease the additional space identified in the offer
and Landlord does not lease the additional space identified in the offer to the person who made the offer,
Tenant [J 0 does [J 0 does not relain
retain the right of refusal under this addendum for any subsequent offers
Landlord receives for the additional space identified in the offer.
C. An offer for part of the additional space affects the parties' rights and obligations only to the part of the
additional space identified in the offer. Rights and obligations to parts of the additional space not identified
in the offer are not affected. An offer to renew a lease for the additional space from a tenant occupying the
additional space is not an offer to lease the additional space for the purposes of this addendum.
D. Special Provisions:
Vacant space occupied or used by Landlord is excluded from the provisions
of this Addendum.
NISAL CORPORATION PROVIDIAN HOLDINGS, INC.
4
,4'
Tenant Landlord
By________________________________
________________________________ ~
~~ By _____________________________________
By,______________________________ ~~
Date Date
(TAR-2i05)
(TAR-2105) 5-26-06 Page 1 of 1
AR 000059
TEXAS ASSOCIATION OF REALTORS'
REALTORS"
~~
COMMERCIAL LEASEHOLD CONSTRUCTION ADDENDUM
(Tenant to Complete Construction)
USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS® IS NOT AUTHORIZED.
REALTORS@ISNOTAUTHORIZED
cre
QT. ... AssocIatIon tlfREALTOR$IP, Inc.
. . ~_tlan<>fREAL~ Inc. 2ODOI
_
ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING
THE LEASED PREMISES AT 2918 San Jacinto Street
Street« Houston,
Houston. Texas Sui
511; te 700
200 r
A Execution and License to Enter:
A.
o
o above~referenced lease commenced. Landlord authorizes Tenant
(1) This addendum is executed after the above-referenced
to construct the improvements described in this addendum provided that Tenant complies with all of the
terms of this addendum
129 (2) This addendum is executed before the above-referenced lease commences. Effective February 20,
IZI
2009 , Landlord grants Tenant a license to enter into the Property and the leased
premises for the purposes of preparing the leased premises for occupancy and constructing the
improvements described under this addendum and in accordance with this addendum. This license is
made under all the terms and provisions in the lease, except as to the covenant to pay rent.
B. Construction Costs: Tenant will pay the full cost to construct the improvements that Tenant is to construct
under this addendum, including but not limited to the cost of material, engineering studies, environmental
studies, contractors, permits, plans, architects, inspectors, subcontractors, and materialmen. Not later than
10 days after the construction is complete and Tenant has satisfied al\ all of Tenant's obligations under this
addendum, Landlord will reimburse Tenant the cost of the improvements
exceed __________________________________________________________________ in an amount that does __ not
exceed
C.
c. Approval of Plans:
(1) Not later than ,Tenant will submit to Landlord plans and specifications
speCifications
detailing the improvements Tenant desires to complete to the leased premises. The plans must detail
all arChitectural,
architectural, mechanical, electrical, and plumbing requirements for the improvements and must
describe the proposed improvements along with the materials to be used and the interior floor plan of
the leased premises. The plans must be drawn by a professional architect in accordance with generally
accepted architectural standards and must be suffiCient
sufficient for a contractor to use to construct the desired
improvements.
(2) Within days after Landlord receives the plans in accordance with Paragraph C(1), Landlord will
notify Tenant whether the plans are "approved" or "disapproved" by marking such on the plans and
delivering the plans back to Tenant. Landlord will not unreasonably withhold approval of the plans. If
Landlord does not notify Tenant of a disapproval within the time specified, the plans will be deemed
approved.
(3) If the plans are disapproved, Landlord will detail the reasons for the disapproval either on the plans or
in a separate notice to Tenant. Ifthe
If the plans are disapproved, Tenant will, within _ _ days after receipt
of the disapproval notice from Landlord, submit amended plans to Landlord that incorporate revisions
necessary to satisfy Landlord's reasons for the disapproval. Landlord will not unreasonably withhold
(TAR-2112) 5-26-00
5-26-06 Inmaled
Initialed for Identification
_ by Tena...,-¥
Tenant~~ Landlo~, _ , and Landlo,(@2 _ _ Page 1 of 4
AR 000060
Leasehold Construction Addendum concerning _
____
____
_________
____
____ _
____
____
_________
____
___
approval of any amended plans. If Tenant is unable or unwilling to satisfy Landlord's reasons for
disapproval by , and:
jf this addendum is executed after the lease commenced, then Tenant will not construct the
(a) if
improvements and this Addendum will have no further effect; or
(b) if this addendum is executed before the lease commences the lease will terminate and Landlord will
refund any security deposit and advanced rent paid by Tenant.
(4) ~Final
"Final plans" means the plans that Landlord approves under this Paragraph C.
D. Change Orders: Tenant must obtain Landlord's advanced written approval of any proposed changes to the
final plans. Landlord will approve or disapprove any proposed change within days after Landlord
receives a copy of the proposed change order from Tenant. Landlord will not unreasonably withhold
approval of any proposed change order. If Landlord does not notify Tenant of a disapproval of a proposed
change order within the time specified, the proposed change order is deemed approved.
E. Contractor: Before construction begins Tenant will enter into a written construction contract with a
contractor(s} acceptable to Landlord to construct the improvements in accordance with the final plans. Any
contractor(s)
subcontractors employed by Tenant or Tenant's contractors must be acceptable to Landlord. Landlord will
not unreasonably withhold approval of contractors and subcontractors.
F. Construction:
(1 ) Tenant will diligently complete the improvements in accordance with the final plans and will satisfy any
requirements of any governmental authorities having jurisdiction over the improvements. The
construction of the improvements must be performed in a good workmanlike manner and must comply
with all applicable laws, ordinances, rules, and governmental orders and regulations. Construction of
the improvements may not:
(a) damage the Property except as specifically permitted by the final plans, including but not limited to
damage to or interference with any structural component, system, or part of the Property;
(b) interfere with the rights or operations of any other tenant in the Property or with Landlord's
management of the Property; and
(c) not obstruct any common area, walk, or drive except as Landlord permits.
(2) Landlord and Landlord's designees may inspect the construction of the improvements from time to
time. If Landlord notifies Tenant of any construction defect or non-compliance with the final plans,
Tenant must promptly correct the defect or non·compliance.
non-compliance.
G. Completion:
(1) Tenant must substantially complete the construction of the improvements to the leased premises in
accordance with this addendum on or before . Except
as provided in this paragraph, the failure to complete construction of the improvements by the date
specified does not relieve Tenant of Tenant's obligations to pay rent or satisfy other terms and
conditions of the lease. The time by which Tenant must complete construction may be extended only if:
(a) Landlord causes the delay; (b) Landlord delays in granting any applicable license under Paragraph
A(2); or (c) a construction delay is caused by strike, lock-out, shortage of material, governmental
restriction, riot, flood, or a cause outside Tenant's control. Any extension under this paragraph may be
exercised by Tenant only if Tenant promptly notifies Landlord in writing of the extension after Tenant
knows or has reason to know of any applicable delay which is cause for an extension. Any extension
under this paragraph may not exceed the lesser of: the number of days of the delay caused by the
specified cause for the delay or days. If Paragraph A(2) applies and a delay
authorized by this Paragraph applies, the Commencement Date and Expiration Date of the lease shall
likewise be extended along with an appropriate adjustment in the rent due dates. If a delay is caused
by Landlord and the delay exceeds the time for which an extension is permitted under this paragraph,
Tenant may exercise its remedies under the default provision of the lea~,
(TAR-2112J
(TAR""2) 5-26-06 Inffialed Tenant~
'o"'.'ed "ddentification
ro, Ideo'mcatiao by Teo.ot-¥_ _ ,. and l
L a
annd
dlo
or@@.._
,___p
pa g e2of4
age2of4
AR 000061
Leasehold
leasehold Construction Addendum concerning __
conceming _ _ __
____
____
____
___________
____
____
____
____ _ _
___
accofda~c~ with the
(2) Construction is complete when all the improvements are constructed in accordance t~e final plans
supervIsing architect;
and Tenant provides Landlord with: (a) a final certificate executed by the supervising archItect; and (b)
if required by a governmental body, a certificate of occupancy permitting Tenant to occupy the leased
premises for the purposes set forth in the lease.
(3)
(3) ",,--=---,.--;-c-;:-:---,-,===::-:===-====:===:;-;;;::::;:< is the supervising
is the architect.
supervising architect.
The certificate of the supervising architect is conclusive in any dispute involving the construction
performed or required to be performed under this addendum.
H. No Liens:
(1) Tenant guarantees that Tenant will pay all costs of any liability related to the construction of the
improvements described in this addendum and further guarantees the lien-free completion of the
improvements against the leased premises and Property. Tenant may not create or place any lien or
encumbrance, of any kind, upon the leased premises or Property that encumbers Landlord's interest in
the leased premises or Property.
(2) Before Landlord reimburses Tenant for the cost of the improvements, Tenant must deliver to Landlord a
waiver of liens in recordable form acceptable to Landlord from each contractor, subcontractor, and
materialman, The waivers must specify that: (a) the contractor, subcontractor, Of
materialman. or materialman waive
any and all claims against Landlord and waive any and all lien rights against Landlord's interest in the
leased premises and Property; and (b) the contractor or subcontractor agree to hold Landlord harmless
all claims arising from or in connection with its work or materials.
from any and aI/
(3) If any lien is filed or asserted against any portion of the leased premises or Property as a result of the
acts of Tenant or Tenant's contractors, subcontractors, Of or materialmen, Tenant must remove any such
lien or lien claim within 20 days after receipt of notice from Landlord.
damages, costs,
(4) Tenant will indemnify and keep Landlord harmless from all damages. costs. expenses, and attorney's
fees that may arise from any lien or claim that may be filed or threatened as a result of the
improvements to be constructed under this addendum.
I. Bonds: Before commencement of any construction, Tenant and Tenant's contractors, at no cost to
Landlord, must post the following bonds in favor of the Landlord in the amounts specified: ~
____
____
___
J. Insurance:
(1) Before any construction commences, Tenant must deliver to Landlord evidence that the insurance
required by Paragraph 8A of
ofthe
the lease will be in effect not later than the day construction begins.
insurance, from
(2) Before any construction commences, Tenant must deliver to Landlord certificates of insurance
insurers acceptable to Landlord, evidencing that any contractor maintains insurance to protect
Landlord, Tenant, and the contractor from:
o (a) workman compensation claims and other employee benefit acts in an amount not less than
$ per occurrence;
o (b) claims for damages from bodily injury or death to employees and others in an amount not less than
$ per person and $ per occurrence; and
o (c) property damage in an amount not less than $
$,_ _ _ _ _ _ _ _ _ _ _ per occurrence.
(TAR-2112)
(T AR-2112) 5-26..Q6
5-26-06 Tenant~
Initialed for Identification by Tenant4.._ _ ,• aod
and Umd~
LandlO"'~' __ Page 3 of4
AR 000062
Leasehold Construction Addendum concerning _ _
____
____
____
____
____
_ ________
____
____
____
____
_ __
(3) The insurance required by this Paragraph J must cover any and all claims that may arise out of or as a
result of the operations of the contractor or the contractor's subcontracor(s).
(4) The coverage required by this Paragraph J must be maintained by Tenant or Tenant's contractors, at
Tenant's or the contractors' sole expense, during all times of any construction period. If Tenant fails or
if any of Tenant's contractors fail to maintain the required insurance in full force and effect at all
required times, Landlord may:
(a) purchase such insurance on behalf of Tenant or the contractor(s) and Tenant must immediately
reimburse Landlord for such expense; or
(b) exercise Landlord's remedies for Tenant's default under the lease.
K. Tenant's Assumption of Liability;
K Liability: Tenant must promptly pay and discharge all costs, expenses, claims for
damages, liens, lien claims, and any other liabilities which may arise from or in connection with the
construction of the improvements described in this addendum. Tenant agrees to hold Landlord harmless
from all costs, expenses, damages, liens, lien claims, and any other liabilities, which may arise from or in
connection with the construction of the improvements described in this addendum.
L. Special Provisions: (If applicable, include any business details, factual statements, or any requirements
the parties must satisfy [for example, Landlord's obligation to complete shell construction by a certain date
dale
or by the time the license under Paragraph A(2) commences].)
NISAL CORPORATION PRQVIDIAN HOLDINGS, INC.
PROVIDIAN
Tenant
2 landlordL / ~ JI #J / __.~2
By-_~_~ _¥_~ d~~~
-;(/ ...,.,< ;
__-· _ _ _=_+_.::_-..r..t.t1BY ;Z/z-£/07
Date ~ Date
Tenant Landlord
landlord
By
By,_______________________________
____________________________ _ By _____________________________
~~
By,________________________ ~----
~~-
Date Date
(TAR-2112) 5-26-06 Page 4 of4
of 4
AR 000063
TEXAS ASSOCIATION Of
~
~~
REALTORS"
OF REALTORS*
COMMERCIAL LEASE PARKING ADDENDUM
USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS
"'EMBERS OFTHE ASSOCIATION OF REALTORS®IS
TEXilS ASSOCIATIONOF REALTORSe IS NOT AUTHORIZED.
AUTHORIZEO.
, inc.
of REALTORS®, 2GOII
lAC. 200G
REGARDING THE COMMERCIAL LEASE CONCERNING THE LEASED PREMISES AT _ _ _ _ _
___
2918 San Jacinto Street. Houston, Texas,
Texas. Suite 200
NOTICE: These rules and regulations are adopted to maintain and enhance the safety and appearance of the
Property. From time to time Landlord, at its discretion, may amend these rules and regulations for the
purposes for which they were adopted. Under the above-referenced
above.-referenced lease, Tenant agrees to comply with
these rules and regulations as they may be amended. Exceptions or waivers must be authorized by Landlord
in writing. "Property" means the building or complex in which the leased premises are located, inclusive of any
common areas, drives, parking areas, and walks.
A. Goods, merchandise, equipment, or any personal property may not be stored on the Property, except for
inventory within the leased premises necessary for Tenanfs
Tenant's normal business operations.
B.
8. Food is not permitted on the Property, except as inventory for sale and for a small amount of food for
Tenant's personal consumption.
c. Other than those provided by Landlord or specifically authorized by Landlord, no vending machines are
C.
permitted on the Property.
D. The Property may not be used for lodging or sleeping quarters in any manner.
E. Unless authorized by law or the lease, no animals may be brought or kept on the Property.
F. No obstruction or interference that impedes use of the common areas, walks, drives, loading areas, parking
areas, corridors, hallways, vestibules, and stairs is permitted on the Property.
G. Persons parking on the Property must comply with all posted signs and directions regulating the parking
areas.
H. No flammable, toxic, noxious, or hazardous materials may be kept on'the
on the Property except for over-the-
counter cleaning materials kept in enclosed storage closets or cabinets.
I. Tenants moving in or out of the Property must use only the service entrances and service elevators during
the move. All moves must be made at times that do not cause inconvenience in the normal use of the
Property.
J. Deliveries and shipping of goods and merchandise in or out of the Property must be made only through the
service entrances, service elevators, loading docks, or other deSignated
designated shipping and receiving areas.
Shipments and deliveries must be made at times that do not cause inconvenience to tenants or patrons on
the Property.
K. Leased premises must be kept clean and free of debris. Trash must be deposited into appropriate
receptacles.
(TAR-210B) 5-26-06
(TAR-2108) 5-26.06 Initialed for Identification by Tenant: K--. LardIard:Q__
B-_, and Landlord:(@?_ _ Page 1 of2
AR 000066
landlord's Rules and Regulations concerning _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
L. Repair requests must be submitted to Landlord in writing in compliance with the lease.
M. No modification to the Property and leased premises may be made unless authorized by Landlord, in
writing, or permitted by the lease.
N. No illegal or offensive activity is permitted on the Property nor is any activity that constitutes a nuisance or
interferes with the rights of other tenants.
O. Unless specifically authorized by Landlord, no solicitation or business operations are permitted in the
common areas.
P. Other:
(TAR-2108)
(TAR-21 08) 5-26-06 Initialed for Identification by Tenant ~
_ _•. and Landlo",
"d L"dlo"" ~ __ Page 20f2
2 of 2
AR 000067
~..,
~~
REALTORS"
TEXAS ASSOCIATION OF REALTORS"
~
COMMERCIAL LEASE GUARANTY
USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS®
REAlTOR&!lO IS NOT AUTHORIZED.
AUTl-f()RIZED.
or••••
ItlTex n Association
_ .. Of
of REAl.TORs., Inc.
R£ALTORS®, Inc. 2006
ZOO8
GUARANTY TO COMMERCIAL LEASE CONCERNING THE LEASED PREMISES AT _ _ _-;===_
_ _ __
-"2~9~1~8~S~a~n~J~a~c~i~n~t~o-"S~t~r~ee~t~,~H~o~u~s~t~o~n~,~T~e~x~a~s~.-"s~u~i~t~e~2~Q~Q"-__________________~~~bebNeen
~2~9~1~8~S~a~n~J2a~c~illn~tO~Set~r~e~e~t~,~H~o~u~s~t~o~nw,~T~e~x~a~s~,~Su~it~e~2~O~O~ ~--~betHeen
_____________________________________________(Landlord)
~P~r~o~y~i~d~i~a~n~H~o~l~dAilln~g£s.!~In~c~.
Proyidian Holdings « Inc. (Landlord) and
and
_
____
____
____
_ ____
____
__ _____ __ ____ ____ ___ ________ _______ _ (Tenant).
A. In consideration for Landlord leasing the leased premises to Tenant, the undersigned Guarantors
guarantee Tenant's performance under the above-referenced lease.
B. If Tenant fails to timely make any payment under the lease, Guarantors will promptly make such payment
to Landlord at the place of payment specified in the lease. Guarantor is also responsible for any property
damage to the leased premises or Property (as defined in the lease) for which Tenant is responsible under
the lease. If Tenant breaches the lease, Guarantor will:
will; (i) cure the breach as may be required of Tenant
by the lease; or (ii) compensate Landlord for Landlord's loss resulting from the breach.
amendment.
C. Guarantors guarantee Tenant's obligations under the lease regardless of any modification, amendment,
renewal, extension, or breach of the lease. Guarantors waive any rights to notices of acceptance,
modification, amendment, extension, or breach of the lease. All Guarantors are jointly and severally liable
for all provisions of this guaranty. Filing for bankruptcy by Tenant will not diminish Guarantors
GUarantors obligations
under this guaranty.
D. The laws of the State of Texas govern the interpretation, validity, performance, and enforcement of this
guaranty. Any person who is a prevailing party in any legal proceeding brought under or related to this
guaranty is entitled to recover attorney's fees from the nonprevailing party.
E. Guarantors authorize Landlord to obtain a copy of any consumer or credit report of Guarantors from any
consumer reporting agency and to verify relevant information related to Guarantors' creditworthiness from
other persons such as banks, creditors, employers, existing and previous landlords, and other persons.
F. Special Provisions;
Provisions:
Guarantor's Signature
~(¢-1p101
Date Guarantor's Signature Date
Brett L. Garner
Guarantor's Name Printed Guarantor's Name Printed
Guarantor's Address Guarantor's Address
Phone SS#orTaxID# Phone SS#orTaxID#
SS # or Tax 10 #
(TAR-2109) 5-26-06
Page 1 of 1
AR 000068
RIGHT OF FIRST REFUSAL TO PURCHASE ADDENDUM
A. Provided that both at the date of exercising the right of first refusal to
purchase set out below and at the date of closing of the agreement of purchase
and sale constituted by the exercise of soch such right, T eoant bas duly and
Tenant
punctually performed each and every of its obligations under·
punctua1ly under the Lease and
has not made an assignment for oot taken the
fOT the benefit of creditors and bas not
benefit of any statute in force for fur bankrupt or insolvent debtors and if a
receiving order has
bas not been made against the Tenant, and if no receiver or
has taken control of the assets or business of the Tenant
other similar person bas
or a substantial thereo~ and if the Tenant
sobstantial portion thereo( T enan! bas not assigned the lease or
soblet sobstantial part of the
sublet or parted or shared possession of all or any substantial tbe
premises, Tenant shall have a right of first refusal to purchase the Building
including the premises in accordance with the following procedure. If at any
tenn or extended term of the lease Landlord receives a bona
time during the term
fide arm~s
arm's length offer to purchase the Building (whether alone or together
together-
parking lot tract; but not the patking
with the parlOng parlring lot tract alone), which Landlord
is willing to accept ("Third Party Offer") then Landlord shall give Tenant
("Landlord'. Notice") of receipt of such
written notice ("Landlord's soch Third Party Offer
accompanied by a 1ruetrue copy of same. Tenant shall thereupon have the right
either:
L to elect to purchase the Building (together with the patking
parking lot tract if
included in the Third Party Offer in addition to the Building) for the
purchase price~
price, with the deposit and upon all of the exact other terms
tenus and
conditions contained in the Third Party Offer. Such right must be
exercised by Tenant within ten (10) days after receipt from Landlord of
Landlord's Notice and copyeopy of the Third Party Offer, by delivery to
Landlord of written notice (the "First Right Acceptance
Aceeptance Notice") electing
to purchase the Building on the same such
soch terms and conditions, together
with a deposit in the amount set out in the Third Party Offer. If
IfTenan!
Tenant so
elects to purchase the premises, such election shall constitute a binding
agreement of purchase and sale between Landlord as vendor and Tenant as
antomatically substituting
purchaser automatically sobstinrting Tenant in place of the Third Party
shaD be completed in
Offeror and the transaction of purchase and sale shall
conditions~ or
accordance with the said terms and conditions;
2. to elect not to purchase the Building by not responding within ten (10)
days of receipt of Landlord's Notice, in which event Tenant's rights to
purchase expire and Landlord may proceed without Tenant under the tbe
Third Party Offer.
B. Provided however, that this right of
offirst
first refusal to purchase shall not apply to
parlOng lot tract by Landlord to any person,
any sale of the Building and parking
corporation or legal entity which is affiliated with, controlled by, or otherwise
arm'. length with, Landlord, Khyati Undavia, her husband,
oot at arm's
not hnshand, children,
AR 000069
futhe<, mother,
father. mothe.-, former spouse or any other family member, provided that any
such purchaser sbaD
shall be bound by the provisions of this right of first
lim refusal in
respect of any subsequent Third Party Offer received by it; and provided
fiuther, that this right of first
further. shall not apply to any deed in lieu of
lim refusal sbaJJ
foreclosw-e or any foreclosure proceedings
foreclosure proceedinwt or trustees' deeds or other action
by any creditor of Landlord; and provided fiuther further that, this right of first
refusal shall not apply in the event that the owner of the Building or parking
lot tract is acting pursuant court order or judgment_
pursuant: to a comt judgment. This right of first
refusal to porcbase
purchase sball
shall not apply to the parking lot tract alone.
C. If Tenant fails to exercise the afuresaid
aforesaid first right of refusal within the time
and in the manner as set out above then Landlord shall be he entitled to accept
accept:
OtTer and complete the sale of the premises porsuant
the Third Party 0Irer pursuant thereto,
tbereto,
provided that if such sale is not completed, Tenant's first right of refusal sball
ifsuch shall
continue to apply in respect of any subsequent Third Party Offer in to
accordance with the preceding provisions of this right of first refusal
refusal.
D. The right offirst refusal is a right of Tenant only during the time oftbe
of the lease
not in default,
while oot default,. bankruptcy or receivership and is not severable :from
from the
lease and it is not assignable.
NISAL CORPORATION PROVIDIAN HOLDING, INC.
By:
AR 000070
. TEXAS ASSOCIATION OF
~~
4~
~.
Of REALTORS'
REALTORS£
.
COMMERCIAL LEASE
M~M8ERS OF THE TEMS
USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS REA~TORS® IS NOT AUTHORIZED
TEXAS ASSOCIATION OF R.EALTORS® AUTHORIZED.
©Texa.s Ao3""iallon
©T""a. Association of REAL mRS®, Ine. 2006
REAl..TORS®,lnc.2006
Table of Contents
No. Paragraph Description Pg.
e!l No. Paragraph Description Pg.
e!l
1. Parties 2 22. Holdover 10
2. Leased Premises 2 23. Landlord's Lien && Security Interest 10
3. Term 2 24. Assignment and Subletting
Subletting 10
A. Term 25. Relocation 11
's.
B. Delay of Occupancy 26. Subordination 11
4. Rent and Expenses 3 27,
27. Estoppel Certificates 11
A. Base Monthly Rent 28. Casualty Loss 11
8.
B. First Full Month's Rent 29. Condemnation 12
C. Prorated Rent 30. Attorney's Fees 12
D. Additional Rent 31. Representations 12
E. Place of Payment 32. Brokers 12
F... Method of Payment
F 33. Addenda 13
G. Late Charges 34. Notices 13
H. Returned Checks 35. Special Provisions 13
5. Security Deposit 4 36. Agreement of the Patties
Patties 14
6. Taxes 4
7. UtiJities
Utilities 4
8. Insurance 5 ADDENDA & a~~I~}
& EXHIBITS {check all that aeel:tl
9. Use and Hours
Hours 5
10. Legal Compliance 6 0Exhibit
11. Signs 6 0Exhibit.
Exhibit
12. Access By Landlord 7 0Commercial Lease Addendum for Broker's Fee
13. Move-In Condition
Move'-In 77 0CommerCial Lease Expense
Commercial Exp'ense Reimbursement
14. Move-Out Condition 7 Addendum
15. Maintenance and Repairs 7 0 Commercial Lease Addendum for Extension
A. Cleaning Option .
B. Conditions Caused by a Party 0 Commercial Lease Addendum for Percentage
C. Repair & & Maintenance Responsibility Rent
D. Repair Persons 0 Commercial Lease Parking Addendum
E. HVAC Service Contract 0 Commercia!
Commercial Landlord's Rules and Regulations
F. Common Areas 0 Commercial Lease Guaranty
G. Notice of Repairs 0 Commercial Lease RigHt
Right of First Refusal
H. Failure to Repair Addendum
16. Alterations 9 0 Commercial Lease Addendum for Optional
17. Liens '9
9 Space
18. liability
Liability 9 0 Commercial Leasehold Construction Addendum
19. Indemnity 9 0
20. Default 9 0
21. Abandonment, Interruption of Utilities,
& Lockout
Removal of Property & 10
(TAR-2101)
(TAR-21 01) 5-26-06 Initialed for Identification by Tenant _ _ ., _ _ , and Landlord: _ _ ., _ _ Page 1 of 14
AR 000071
EXHIBIT B
~~
REALTORS"
TEXAS ASSOCIATION OF REALTORS«·
COMMERCIAL LEASE
USE OF THIS FORM BY PERSONS WHO ARE MEMa~RS OF THE TEXAS ASSOCIATION OF REALTORS®
AilE NOT MEMBERS REALTORS®IS AIJTHORIZED.
IS NOT .AUTHORIZED.
©Texas ~&<>CI~llon of REAL
©T@.u Association REAl.TOR$II!I,lno.
TORS®, Inc. 2006
1. PARTIES: The parties to this lease are:
Tenant
Tenant: Sterling Practice Management LLC
__________________________________________ ~ ____________;and
------------------------------------------; and
Landlord: Providian Holdings,
Holdings Inc. f
2. LEASED PREMISES:
A. Landlord leases to Tenant the following described real property, known as the "·leased
"leased premises," along
with all its improvements (Check only one box):
aa
~ (1 ) Multiple-Tenant Property: Suite or Unit Number
(1) ;-:-:::-;-:-,.,.---,c:c:-:
containing approximately __ -:-_ _--:-
square feet of rentable area in Memorial Compounding Pharmacy Bun di nq
Pharrnacy13uilding (project name)
at 2918 San Jacinto Streetstreet
(address) in Houston 77024 (city), Hard s
Harris (county),
Texas, which is legally described on attached Exhibit A or as follows:
The premises are being leased "AS IS". Tenant has inspected the premises
and accepts the premises "AS IS".
o (2) Single-Tenant Property;
Property: The real property at:
at __________
_ _ _ _ _ _ _ _ _-'-__________
_ _ _ _ _-===~ _
_________ _____________________________________ (address) in
~
in (addres~
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (city), (city), __________.-., (county),
(county), Texas,
Texas, which
which
legally described on attached Exhibit __________________
is legaJly _ _ _ _ _ _ _ _ _ _ _ _ or Gis
as follows: _____
_ _ _ __
B. If Paragraph 2A(1) applies:
(1) "Property" means the building or complex in which the leased premises are located, inclusive of any
common areas, drives, parking areas, and walks; and
(2) the parties agree that the rentable area of the leased premises may not equal the actual or useable
area within the leased premises and may include an allocation of common areas in the Property.
3. TERM:
A. Term: The term of this lease is ___77___
_ _ months and __ 0__ days, commencing on:
_.::0
_J_U_n_e_l_,'-2_0'-O'-9_ _ _ _ _ _ _ _ _ (Commencement Date) and ending on
_J_u_n_e-.-.;.1_,_2_0_0_9
_J_a_n_u_a_r_y_3 __1_,_2_0_1_0_ _ _ _ _ _ _ (Expiration Date).
_J_a_n_u_a_r-'y'-3_1-',_2_0_1_0
(TAR·2101) 5-26-06
(TAR-2101) Initialed for Identification by Tenant _ _, _ _ , and Landlord: _ _, _ _ Page 2 of 14
AR 000072
Lease conceming:. __
Commercial lease ____
conceming:.~____
____
____
_ _
_ __________
____
____
___----,....
__ __
____
__ _ _
_____
8. Delay
B. Deiay of Occupancy: If Tenant is unable to occupy the leased premises on the Commencement Date
because of construction on the leased premises to be completed by Landlord that is not substantially
complete or a prior tenant's holding over of the leased premises, Landlord w'ill
will not be liable to Tenant
for such delay and this lease will remain enforceable. In the event of such a delay, the Commencement
Date will automatically be extended to the date Tenant is able to occupy the Property and the
Expiration Date will also be extended by a like number of days, so that the length of this lease remains
unchanged. If Tenant is unable to occupy the leased premises after the 90th th day after the
Commencement Date because of construction on the leased premises to be completed by Landlord
that is not substantially complete or a prior tenant's holding over of the leased premises, Tenant may
terminate this lease by giving written notice to Landlord before the leased premises become available
to be occupied by Tenant and Landlord will refund to Tenant any amounts paid to Landlord by Tenant.
This Paragraph 383B does not apply
appiy to any delay c!eaning or repairs.
deiay in occupancy caused by cleaning repairs,
C. Unless the parties agree otherwise, Tenant is responsible for obtaining a certificate of occupancy for
the leased premises if required by a governmental body.
4. RENT AND EXPENSES:
A. Base Monthly Rent: On or before the first day of each month during this lease, Tenant will pay
Landlord base monthly rent as described on attached Exhibit > - - or as follows:
from l[ 2009
June 1, to June 30[
30, 2009 $0.00
from l[ 2009
July: 1,
July to January 31
31[! 2010 $$22 ,000 .OO/month
[OOO.OO/month
from to $
from to $
from to $
B. First Full Month's Rent: The first full base monthly rent is due on or before July 1,
I, 2009
C. Prorated Rent: If the Commencement Date is on a day other than the first day of a month, Tenant will
pay Landlord as prorated rent, an amount equal to the base monthly rent multiplied by the following
fraction: the number of days from the Commencement Date to the first day of the following month
divided by the number of days in the month in which this lease commences. The prorated rent is due
on or before the Commencement Date.
D. Additional Rent: In addition to the base monthly rent and prorated rent, Tenant will pay Landlord all
other amounts, as provided by the attached (Check aI/
all that apply.):
o (1) Commercial Expense Reimbursement Addendum
o (2) Commercial Percentage Rent Addendum
o (3) Commercial Parking Addendum
(4)~~~~~~~~~~~~~~~~~~~~~~~~~~~
o (4}~~--~--~~--~~--~~--~----~~--~~--------~
All amounts payable under the applicable addenda are deemed to be "rent"
"rent"for
for the purposes of this
lease.
E. Place of Payment: Tenant will remit allaU amounts due Landlord under this lease to the following person
at the place stated or to such other person or place as Landlord may later designate
deSignate in writing:
Name: Providian Holdings, . Inc.
Address: 2918 San Jacinto Street, Suite 100
Houston,
Houston [ Texas 77004
F. Method of Payment:
Payment Tenant must pay all rent timely without demand, deduction, or offset, except as
permitted by law or this lease. If Tenant fails to timely pay any amounts due under this lease or if any
check of Tenant is returned to Landlord by the institution on which it was drawn, Landlord after
(TAR-2101 ) 5·26·06
(TAR·2101) 5-26-06 Initialed for Identification by Tenant-,
Tenant _ _, _ _ , and landlord:
Landlord: _ _,. _ _ Page 3 of 14
AR 000073
Commercial lease
Lease conceming: _ _
____
____
_ ______
____
____ _
____
____
_ _
_ ____
____
____
__ __
__ __
_ _
providing written notice to Tenant may require Tenant to pay subsequent amounts
arrtounts that become due
under this lease in certified funds. This paragraph does not limit landlord
Landlord from seeking other remedies
under this lease for Tenant's failure to make timely payments with good funds.
Late Charges: If Landlord
G. late landlord does not actually receive a rent payment at the designated place of payment
within 5 days after the date it is due, Tenant will pay Landlord
landlord a late charge equal to 5% of the amount
due. In this paragraph, the mailbox is not the agent for receipt for Landlord.
landlord. The late charge is a cost
associated with the collection of rent and landlord's
Landlord's acceptance of a late charge does not waive
landlord's
Landlord's right to exercise remedies under Paragraph 20.
H. Returned Checks: Tenant will pay $ 25.00 (not to exceed $25) for each check Tenant tenders to
Landlord
landlord which is returned by the institution on which it is drawn for any reason, plus any late charges
Landlord receives payment.
until landlord
5. SECURITY DEPOSIT:
A. Upon execution of
ofthis wilt pay $~
this lease, Tenant will $'---_
____
____
_ __
____
__ to landlord
__ 10 Landlord as a security
deposit.
B. Landlord
landlord may apply the security deposit to any amounts owed by Tenant under this lease. If landlord
Landlord
applies any part of the security deposit during any time this lease is in effect to amounts owed by
Tenant, Tenant must, within 10 days after receipt of notice from landlord,
Landlord, restore the security deposit
to the amount stated.
c. Within 60 days after Tenant surrenders the leased premises and provides l~ndlord
C. Landlord written notice of
Tenant's forwarding address, Landlord
landlord will refund the security deposit less any amounts applied toward
amounts owed by Tenant or other charges authorized by this lease.
6, TAXES: Unless otherwise agreed by the parties, landlord
6. Landlord will pay all real property ad valorem taxes
assessed against the leased premises.
7. UTILITIES:
A. The party designated below will pay for the following utility charges to the leased premises and any
connection charges for the utilities. (Check all that apply.)
N/A Landlord
landlord Tenant
(1) Water 0 o 121
III 0 o
(2) Sewer 0CJ lit
III 0 o
(3) Electric CJ
0 III
QJ 0 o
(4) Gas For HVAC only 0
CJ '[21
I.!I 0 o
(5) Telephone 0CJ 0CJ at
III
q.nclud.:!-ng ~ommon
(6) Trash, Cleaning (including
if desired)
common area CJ
0 o
0 at
III
(7)
(7) Cable
Cable ~f des~red) CJ
0 0 o III
GI
(8)
(8) _ _ _ _ _ _ _ _ _ _ __ o0 o
0 o
0
(9) All other utilities o0 o
0 III
GI
B. The party responsible for the charges under Paragraph 7A 7A will pay the charges directly to the utility
service provider. The responsible party may select the utility service provider, except that if Tenant
selects the provider, any access or alterations to the Property or leased premises necessary for the
utifities may be made only with landlord's
utilities Landlord's prior consent, which Landlord
landlord will not unreasonably withhold.
If Landlord
landlord incurs any liability for utility or connection charges for which Tenant is responsible to pay
and landlord
Landlord pays such amount, Tenant will immediately upon written notice from Landlord reimburse
landlord such amount.
Landlord
(TAR-21 01) 5-26-06
(TAR-2101) Initialed for Identification by Tenant_ _ ,• _ _ , and Landlord: _ _,. _ _ of 14
Page 4 of14
AR 000074
Commercial Lease conceming: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
C. Notice: Tenant should determine if all necessary utilities are available to the leased premises
C
and are adequate for Tenant's intended use.
O.
D. After-Hours HVAC Charges: "HVAC services" mean heating, ventilating, and air conditioning of the
leased premises. (Check one box only.)
1:81 (1) Landlord is obligated to provide the HVAC
1» HVAC services to the leased premises only during the
Property's operating hours specified under Paragraph 9C.
I» (2) Landlord will provide the HVAC services to the leased premises during
durIng the operating hours
specified under Paragraph 9C for no additional charge and will, at Tenant's request, provide HVAC
services to the leased premises during other hours for an additional charge of $ 20.00 per
hour. Tenant will pay Landlord the charges under this paragraph immediately upon receipt of
Landlord's invoice. Hourly charges are charged on a half-hour basis. Any partial hour will be
rounded up to the next half hour. Tenant will comply with Landlord's procedures to make a request
to provide the additional HVAC services under this paragraph.
o (3) Tenant will
wilt pay for the HVAC services under this lease.
8. INSURANCE:
A. During all times this lease is in effect, Tenant must, at Tenant's expense, maintain in full force and
effect from an insurer authorized to operate in Texas: $2 ,000,000.00
$2,000 1000.00
(1) public liabifity
liability insurance in an amount not less than $1,000,000.00.6n
$1,OOO,000.00.6n an oCcurrence basis naming
Landlord as an additional insured; and
(2) personal property damage insurance for Tenant's business operations and contents on the leased
premises in an amount sufficient to replace such contents after a casualty loss.
B. Before the Commencement Date, Tenant must provide Landlord with a copy of insurance certificates
evidencing the required coverage. If the insurance coverage is renewed or cMnges
changes in any manner or
days after the renewal or
degree at any time this lease is in effect, Tenant must, not later than 10 daYs
change, provide Landlord a copy of an insurance certificate evidencing the renewal or change.
C. If Tenant fails to maintain the required insurance in full force and effect at all
ail times this lease is in
effect, Landlord may:
landlord the same coverage as the required insurance and
(1) purchase insurance that will provide Landlord
Tenant must immediately reimburse Landlord for such expense; or
(2) exercise Landlord's remedies under Paragraph 20.
D. Unless the parties agree otherwise, Landlord will maintain in full force and effect insurance for:
for; (1) fire
and extended coverage in an amount to cover the reasonable replacement cost of the improvements of
the Property; and (2) any public liability insurance in an amount that Landlord determines reasonable
and appropriate.
E. If there is an increase in Landlord's insurance premiums for the leased premises or Property or its
teased premises, or any improvements made by
contents that is caused by Tenant, Tenant's use of the leased
or for Tenant, Tenant will, for each year this lease is in effect, pay Landlord the increase immediately
after Landlord notifies Tenant of the increase. Any charge to Tenant under this Paragraph BE 8E wilt
will be
equal to the actual amount of the increase in Landlord's
landlord's insurance premium.
9. USE AND HOURS:
A. Tenant may use the leased premises for the following purpose and no other: general office
off ice use
(TAR-21 01) 5-26-06
(TAR·2101) Initialed for Identification by Tenant: _ _ ., _ _ , and Landlord: _ _ ., _ _
Initraled Page 5 of 14
AR 000075
Commercial Lease conceming:. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _-<-_ _ _ _ _ _ _ __
Commerda! lease concerning:~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
B, Unless othePNise
B. otherwise specified in this lease, Tenant will operate and conduct itsits, business in the leased
premises during business hours that are typical of the industry in which Tenant represents it operates.
C. The Property maintains operating hours of (specify hours, days of week, and if inclusive or exclusive of
weekends and holidays): 8;30am
8:30am - 7:00pm,
7 ;OOpm, Monday thru Friday exclusive of
MemQrial Day,
holidays which includes Memorial Day. Independence Day. pay. Labor Day.Day, Thanksgjvi
Tbanksgjyjng ng
Day. Christmas Day and New Year's Day. Also Saturday 8:30am
Pay. 8:30am..,..2:00pm hol;i.days.
2;OOpm except holidays.
10. LEGAL COMPLIANCE:
A. Tenant may not use or permit any part of the leased premises or the Property to :be 'be used for:
(1) any activity which is a nuisance or is offensive,
offenSive, noisy, or dangerous;
(2) any activity that interferes with any other tenant's normal business operations or Landlord's landlord's
management of the Property;
(3) any activity that violates any applicable law, regulation, zoning ordinance, restrictive covenant,
governmental order, owners' association rules, tenants' association rules, rul~s, Landlord's
landlord's rules or
regulations, or this lease;
(4) any hazardous activity that would require any insurance premium on the Property or leased
premises to increase or that would void any such insurance;
(5) any activity that violates any applicable federal, state, or local law, including but not limited to those
laws related to air quality, water quality, hazardous materials, wastewater, waste disposal, air
emissions, or other environmental matters;
(6) the permanent or temporary storage of any hazardous material; or
(7) ____________________________________________________
__________________________________________ ~ _____________ ~
B. "Hazardous material" means any pollutant, toxic substance, hazardous waste, hazardous material,
hazardous substance, solvent, or oil as defined by any federal, state, or loCal loca! environmental law,
regulation, ordinance, or rule existing as of the date of this lease or later enacted.
C. Landlord
landlord does not represent or warrant that the leased premises or Property conform to applicable
restrictions, zoning ordinances,
ordinances. setback lines,
tines, parking requirements, impervious ground cover ratio
requirements, and other matters that may relate to Tenant's intended use. Tenant must satisfy itself
~nvestigating all matters
that the leased premises may be used as Tenant intends by independently investigating
related to the use of the leased premises or Property. Tenant agrees that it is not relying on any
warranty or representation made by Landlord,
landlord, Landlord's
landlord's agent. or any broker concerning the use of
the leased premises or Property.
11. SIGNS:
A. Tenant may not post or paint any signs at, on, or about the leased premises or Property without
Landlord's
landlord's written consent. Landlord
landlord may remove any unauthorized sign, and
aOd Tenant will promptly
reimburse Landlord
landlord for its cost to remove any unauthorized sign.
8.
B. Any authorized sign must comply with all laws, restrictions, zoning ordinances,
aI/laws, ordinancesj and any governmental
landlord may temporarily remove any
order relating to signs on the leased premises or Property. Landlord
authorized sign to complete repairs or alterations to the leased premises or the Property.
C. By providing written notice to Tenant before this lease ends, Landlord
landlord may require Tenant, upon move-
out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all
signs that were placed on the Property or leased premises by or at the request of Tenant. Any signs
that Landlord become the property of the
landlord does not require Tenant to remove and that are fixtures, becotne
landlord and must be surrendered to Landlord
Landlord landlord at the time this lease ends.
(TAR·2101) 5-26·06
(TAR-2101) 5-26-06 Initialed for Identification by T
Tenant _ _, ~_,
enant:~~. _ _, and landlord'
landlord: ~~.
_ _, _
~__ Page 6 of 14
Gof
AR 000076
Commercial lease
Lease conceming: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~
_ _ _ _ _ _ _ _ __
12. ACCESS BY LANDLORD:
A. During Tenant's normal business hours Landlord may enter the leased prel'nises
A premises for any reasonable
purpose, including but not limited to purposes for repairs, maintenance, alterations, and showing the
leased premises to prospective tenants or purchasers. Landlord may access the leased premises after
Tenant's normal business hours if: (1) entry is made with Tenant's permission; or (2) entry is necessary
to complete emergency repairs. Landlord will not unreasonably interfere with Tenant's business
operations when accessing the leased premises.
8.
B. During the last 90 days of this lease, Landlord may place a "For Lease" or similarly worded sign in
the leased premises.
13. MOVE-IN
MOVE.IN CONDITION: Tenant has inspected the leased premises and accepts it in its present (as-is)
condition unless expressly noted otherwise in this lease. Landlord and any agent have made no express
or implied warranties as to the condition or permitted use of the leased premises or Property.
14. MOVE-OUT CONDITION AND FORFEITURE OF TENANT"S
TENANT'S PERSONAL PROPERTY:
PROPE:RTY:
A. At the time this lease ends, Tenant will surrender the leased premises in the same condition as when
received, except for normal wear and tear. Tenant will leave the leased premises in a clean condition
free of all trash, debris, personal property, hazardous materials, and environmental contaminants.
8.
B. If Tenant leaves any personal property in the leased premises after Tenant surrenders possession of
the leased premises, Landlord may: (1) require Tenant, at Tenant's expense, to remove the personal
property by providing written notice to Tenant; or (2) retain such personal property as forfeited property
to Landlord.
C. "Surrender" means vacating the leased premises and returning all keys and access devices to
Landlord. "Nonnal
"Normal wear and tear" means deterioration that occurs without negligence, carelessness,
accident, or abuse.
re~uire Tenant, upon move-
D. By providing written notice to Tenant before this lease ends, Landlord may require
out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all
fixtures that were placed on the Property or leased premises by or at the request of Tenant. Any
fixtures that Landlord does not require Tenant to remove become the property of the Landlord and must
be surrendered to Landlord at the time this lease ends.
15. MAINTENANCE AND REPAIRS:
A. Cleaning: Tenant must keep the leased premises clean and sanitary and promptly dispose of all
garbage in appropriate receptacles. CI 0 Landlord CI
0 Tenant will provide, at its expense, janitorial
services to the leased premises that are customary and ordinary for the property type. Tenant will
maintain any grease trap on the Property which Tenant uses, including but bot not limited to periodic
emptying and cleaning, as well as making any modification to the grease trap that may be necessary to
comoly;
com DIy, with any aoolicable
al2Dlicable law. Tenant $hall be respoI].sible
respol)sible for all a1l cleOil B. Landlord may not require Tenant to relocate to another location in the Property without Tenant's prior
>til
consent
consent.
lION:
26. SUBORDINAnoN:
A This lease and Tenant's leasehold
JeasehoJd interest are and will be subject, subordinate, and inreriorto:
inferior to:
(1) any lien,
lien. encumbrance, or ground lease now or hereafter placed on the leased premises or the
thai landlord
Property that Landlord authorizes;
authorizes:
(2) al advances made under any such lien, )ten, encumbrance, or ground lease;
(3) the interest payable on any such fien
lien or
Of encumbrance;
(4) any and all renewals and extensions of any such lien, encumbrance, or ground lease;
Jease;
Property; and
(5) any restrictive covenant affecting the leased premises or the Properly;
(6) the rights of any owners' association affecting the leased premises or Property.
8_ Tenant must, on demand, execute a subordination, attornment, and non-di$turbance
8. non--diSturbance agreement that
Landlord may request that Tenant execute, provided that such agreement is made on the condition that
th~ lease and Tenant's rights under this 'ease
this lease are recognized by the lien-holOOr.
lien-hokler.
27. ESTOPPEL CERTIFICATES: Within 10 days after receipt of a written request from enant w~1
Tenant
1lom Landlord, T
delrver to landlord
execute and deliver Landlord an estoppel certificate that identifies the terms
teons and conditions of this lease.
28. CASUALlY
CASUALTV lOSS:
Landlord of any casualty
A Tenant must immediatety notify landlord casuaky loss
k>ss in the leased premises_ Within 20 days
5eased premises.
after receipt of TefI8nfs toss, Landlord
Tenant's notice of a casualty loss, landlord wit
will notify Tenantil ~ased premises are
Tenant if the leased
less unusabte, on a per square foot basis, and if landlord can substantially
Jess than or more than 50% unusable, substantialfy
restore the leased premises within 120 days after Tenant notifies landlord
Landlord of the casualty Joss.
k>ss.
B. If the leased premises are less than 50% unusable and Landlord can substantially restore the leased
premises within 120 days after Tenant notifies landlord of the casualty, LandkKti will restore the leased
casuatty, Landlord teased
premises to substantiaRy
substantially the same condition as before the casuafty.
casualty. If
ff landlord faits subslantialty
fails to substantialty
restore within the time required, Tenant may terminate this lease.
C. If the leased premises are more than 50% unusable and Landlord
landlord can substantialty restore the leased
premises within 120 days after Tenant notifies landlord
Landlord of the casualty,
casuaHy, landlord may: (1) terminate
tease; or (2) restore the leased premises to substantialty
this lease; substantially the same condition as before the casualty.
Landlord chooses to restore and does not
If landlord nol substantially
subsiantiaRy restore the leased premises
premiseS within the time
lime
required, Tenant may terminate this lease.
Landlon;l notifies Tenanlthat
D. If landlord Landlord cannot substantially restore the leased premises wiIlin
Tenant that landlord within 120
days after Tenant notifies landlord casually toss,
Landtord of the casualty not to restore and
loss, landlord may: (1) choose notto
tease; or (2) choose to restore, notify Tenant of the estimated time to restore, and give
terminate this lease;
Tenant the option to terminate this lease by notifying Landlord
landlord within 10 dayS.
(TAR-21 01 ) 5-26-06
5-26--06 ,----,
Initialed for Identification b Tenant---->
kJentification by Tenant _ _, and landk:m:J'
lancIord:. -
_-_-, _
' -_
- Page 11 of 14
AR 000081
Commercial Lease concerning::
concerning. _ _ _ _ _
____
____
____
____
____
____
____
____
____ _
---'__
_ _
_ __________
__
E. If this lease does not terminate because of a casualty loss, rent will be reduced from the date Tenant
notifies Landlord subst~ntially restored by an
landlord of the casualty loss to the date the leased premises are substantially
amount proportionate to the extent the leased premises are unusable.
29. CONDEMNATION: If after a condemnation or purchase in lieu of condemnation the leased premises are
totally unusable for the purposes stated in this lease, this lease
tease will terminate. If after a condemnation or
purchase in lieu of condemnation the leased premises or Property are partially unusable for the purposes
of this lease, this lease will continue and rent will be reduced in an amount proportionate to the extent the
leased premises are unusable. Any condemnation award or proceeds in lieu of condemnation are the
Landlord and Tenant has no claim to such proceeds or award. Tenant n'lay
property of landlord rriay seek compensation
from the condemning authority for its moving expenses and damages to Tenant's personal property.
30. ATTORNEY'S FEES: Any person who is a prevailing party in any legal proceeding brought under or
related to the transaction described in this lease is entitled to recover prejudgment interest, reasonable
attorney's fees, and all other costs of litigation from the non
nonprevailing
prevailing party.
31. REPRESENTATIONS:
A. Tenant's statements in this lease and any application for rental are material representations relied upon
Landlord. Each party signing this lease represents that he or she is of legal age to enter into a
by landlord.
binding contract and is authorized to sign the lease. If Tenant makes any misrepresentation in this
lease or in any application for rental, Tenant is in default.
B. Landlord is not aware of any material defect on the Property that would affect the health and safety of
an ordinary person or any environmental hazard on or affecting the Property that would affect the
health or safety of an ordinary person, except: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
C Each party and each signatory to this lease
C. tease represents that: (1) it is not a perso·n
person named as a Specially
Designated National and Blocked Person as defined in Presidential Executive Order 13224; (2) it is not
acting, indirectly, for or on behalf of a Specially
acting. directly or indirectly. Specia1!y Designated and Blocked Person; and (3) is
not arranging or facilitating this lease or any transaction related to this lease for'
for a Specially Designated
and Blocked Person. Any party or any signatory to this lease who is a Specially Designated and
Blocked person will indemnify and hold harmless any other person who relies on this representation
and who suffers any claim, damage, loss, liability or expense as a result of this representation.
32. BROKERS:
A
A. The brokers to this lease are: NONE
Cooperating Broker License No. Principal Broker License No.
No
Address Address
Phone Fax Phone Fax
E-mail E-mail
Cooperating Broker represents Tenant. Principal Broker: (Check only one box)
o represents Landlord
landlord only.
o represents Tenant only.
o is an intermediary between Landlord and Tenant.
(TAR-2101) 5-26-06 Initialed for Identification by Tenant
Tenant: _ _ , _ _ ., and landlord:
Landlord: _ _ ,_~
, __ Page 12 of 14
AR 000082
Commercial Lease concerning: _ _ _ _ _ _ _ _
Commerdallease ____
____
____
____
____
____
____
____
____
____
____
____
_____
B_
B. Fees:
oD (1) Principal Broker's fee will be paid according to: (Check only one box).
o (a) a separate written commission agreement between Principal Broker and:
o Landlord D0 TTenant.
[J enan!.
o (b) the attached Addendum for Broker's Fee.
D
D (2) Cooperating Broker's
Broker'S fee will be paid according to: (Check only one box).
D (a) a separate written commission agreement between Cooperating Broker and:
[)
o Principal Broker 0 Landlord 0 Tenant.
o (b) the attached Addendum for Broker's Fee.
33. ADDENDA: Incorporated into this lease are the addenda, exhibits and other information marked in the
Addenda and Exhibit section of the Table of Contents. If landlord's
Landlord's Rules and Regulations are made part
discretion,
of this lease, Tenant agrees to comply with the Rules and Regulations as Landlord may, at its discretion.
amend from time to time.
34. NOTICES: All notices under this lease must be in writing and are effective when hand-delivered, sent by
mail, or sent by facsimile transmission to:
Tenant at the leased premises,
to:
and a copy to: Sterling Practice Management LLC LLC
Address: 5718 Bellaire Blvd., Houston, Texas 77081
Phone: Fax: --,,-_ _ _ _ _.....:.-_ _ _ _ _ _ __
Phone: Fax: =c:-;-::=----------
f.3I
III Tenant also consents to receive notices by e-mail at:_b~g'-a_r_n_e_r_5_@_a_o_l_._c_o_m
at:"b~g~a~r~n~e~r~5~@~a~o""'~.~c~om"'-
____________
___"__ _ _ _ _ _ _ ___
Landlord at:Providian Holdings
Holdings, Inc. I
100 r Houston, . Texas 77004
Address: 2918 San Jacinto Street Suite lOa, II
Phone: 713 523-7847 Fax:
andacopyto: ______________________________________ ___________
-----------~------------ -------------------- ~
andaCOpYto:~~""'===========================;=================================
Address: ______________________________ ____________
Phone:
~ddress:
Fax:
~
landlord also conseccn~ls~l~o,..,.re~c~e~iv~e::-:n~o~li~c~e~s~b~y-e~-~m~a.",iI~a~t-;::k'h
Landlord also
ail
I]l consents to receive notices bye-mail at: khyat~-'
ya ti n""e·t----- '--;;u~n~d~a~v"i~a"@"5~b~c~gtl~o~b~a;c,r.
-u-n-d-:;-a-v-~.,...·a-C@r.I""s='Lb c':"'"g-7"'l'o='Lb a--l;--.n--e- :::-i:"t------
35. SPECIAL PROVISIONS:
A. Landlord shall not be obligated to install any facilities at the Property or in
A_
premises~ includinq any ADA SAmerican
the premises,. Di$abilities) ,or related facilities
(American With Disabilities)
Iederal, seate
requ~red by ~ederal, st:ate and city regulatlons or ordinances_
c~ty laws, regulations ordl.nances.
B. Tenant will turn off the liqhts in the premises and lock the doors to the building
B_
pre~l.ses are vacated
wt.en prem~ses
w~en vacat:ed each
eacfi evenlng.
evenlng.... .
C. Landlord shall have access at all times to the utility closet
c. close·t in the premises.
but shall not be obligated to perform any cleaning for Tenant in
D. Landlord may hut
common area, interior or exterior of the building.
the premises, cornmon
(TAR-2101) 5-26-06 Initialed for Identification by Tenant_ _ ,• _ _ , and Landlord'
Landlord: _ _ , _ _
> Page 13 of 14
AR 000083
Commercial Lease conceming: _
____
____
_ ____
____
_____
____
____
_ ____
____
____
____
____
_ ____
____
_____
36. AGREEMENT OF PARTIES:
A. Entire Agreement:
Agreement This lease contains the entire agreement between Landlord and Tenant and may
not be changed except by written agreement.
B. Binding Effect: This lease is binding upon and inures to the benefit of the parties and their respective
S.
heirs, executors, administrators, successors, and permitted assigns.
C. Joint and Several: All Tenants are jointly and severally liable for all provision$
provisions of this lease. Any act or
notice to, or refund to, or signature of, anyone or more of the Tenants regarding any term of this lease,
aU Tenants.
its renewal, or its termination is binding on all
D. Controlling Law: The laws of the State of Texas govern the interpretation, performance, and
enforcement of this lease.
E. Severable Clauses: If any clause in this lease is found invalid or unenforceable by a court of law, the
remainder of this lease will not be affected and all other provisions of this lease will remain valid and
enforceable.
non~enforcement of acceleration, contractual or statutory lien,
F. Waiver: Landlord's delay, waiver, or non-enforcement
rental due date, or any other right will not be deemed a waiver of any other or subsequent breach by
Tenant or any other term in this lease.
G. Quiet Enjoyment: Provided that Tenant is not in default of this lease, Landlord covenants that Tenant
will enjoy possession and use of the leased premises free from material interference.
H. Force Majeure: If Landlord's performance of a term in this lease is delayed by strike, lock-out, shortage
of material, governmental restriction, riot, flood, or any cause outside Landlord's control, the time for
of
Landlord's performance will be abated until after the delay.
I.\. Time: Time is of the essence. The parties require strict compliance with the times for performance.
studies,
Brokers are not qualified to render legal advice, property inspections, surveys, engineering stUdies,
environmental assessments, tax advice, or compliance inspections. The parti~s should seek experts
to render such services. READ THIS LEASE CAREFULLY. If you do not understand the effect of this
Lease, consult your attorney BEFORE signing.
S'l'ERLING
s'r-ERLING PRACTICE MANAGEMENT LLC PROVIDIAN HOLDINGS, INC.
Tenant Landlord
landlord
By By
Date Date
Printed Name Bxett Garner
BX'ett Printed Name Undavia
Khyati Und~via
Title Title
Tenant
Tenant ~L'::""d"lo="';---------~---------
Landlord
By_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
By ,,=
Date
By______________-------_~~
By
------------------O"'''',.-e
Date Date
Printed Name William Hicks Printed Name,
Name_ _ _ _ _ _->-_
_ __ __
____
____
_____
Title_
__ ____ __
_ ____ _____
____ __
__ ___
____
___ _ Title_ _ _ _ _ _ _ _ _.:.-_
_ _ _ _ _ _ _ _ __
(TAR-2101)
(TAR-21 01) 5-26-06 Page 14 of 14
AR 000084
Exhibit A
identified by and
The contiguous vacant space on the ground floor of the building, identi"fied
agreed to between Landlord and Tenant.
AR 000085
MUTUAL RELEASE
THE STATE OF TEXAS
. COUNTY OF HARRIS
WHEREAS, certain disputes, claims and causes of action existed by and between
STERLING PRACTICE MANAGEMENT, LLC, its officers, directors, shareholders, partners,
attorneys (hereinafter STERLING) and
successors, agents, assigns, employees, servants and ,1 /;:~~;~;;;\ _' ;, "
','
'f. ,,,.~,,
N01S~;!tl\j!i!in:) }.;t;
S3tHdX3 NOIS<;I\\V,it\')
I" S3!:lJdX3
;
~! 'l:lf' '~!J3~':
'NNllH'J 'HIT;
"l;lr 'NNnH') ~-iJ:t':,>-:--- ',_:
~--,- --,,='-;C; -.'-:"'c~-" , ~
AR 000090
",
~, ,.,--, ,-" ~ -:'.->'. U
c·'{:t .{)Sr~tl,
:"
~<;. .........
...~
Q'J NO. 1036848
() Q STERLING PRACTICE MANAGEMENT, llC IN COUNTY COURT AT LAW
I" ;,
NISAL CORPORATION
Plaintiff
;--:, vs.
VS. NO.4
PROVIDIAN HOLDINGS, INC.
: 1: Defendant HAJUUSCOUNTY,TEXAS
HARRIS COUNTY, TEXAS
PLAINTIFFS' NONSUIT
Sterling Practice Management, LLC and Nisal Corporation appear and file Plaintiffs'
Nonsuit, requesting that the Court dismiss this case with prejudice.
Respectfully submitted,
PHILLIP
PHilLIP BRANTLEY AND ASSOC., P.e.
P.c.
"c;,
"".
1'"
::>.::
"-
D'Jkbu..~
$YJLk~
~iJilip~nl1ltle~O
r- SBN 02899727
I
0- Arena Tower II
'-' 7324 Southwest Freeway, Suite 1020
0 ".,
~
Houston, Texas 77074
=
~
(713) 270-4053 phone
(713) 270-0682 facsimile
ATTORNEYFORPLNNTffP
'.
CERTIFICATE OF SERVICE
I certify that this pleading was served on Keith Chunn,
facsimile transmission on October 3, 2013.
facsimile transmission on October 3, 2013.
~ tls&
ChUIUl, Jr., attorney for Defendant, by
~R~',,~"'F'-~=_~I,-_______
~P-hi~ll~~~fFr-an--tle-~~Yr---------------
PhilI;{?rantlefe,
AR 000091
EXHIBIT D @ III
,e::. .
NO. 1036848
STERIlNG PRACTICE MANAGEMENT, lLC
STERLING LLC IN COUNTY COURT AT LAW
..~
NISAL CORPORATION
Plaintiff
.,
()
f] vs. NO.4
If. :::~.
.• ~ ..Ji
PROVIDIAN HOLDINGS, INC.
() Defendant HARRIS COUNTY, TEXAS
; ;
ORDER
Pending before the Court is Plaintiffs' Nonsuit. This case is dismissed with prejudice.
Signed lhis
this -b--
$- day of -+~;JL~~~~~~':;:=l
-+-~~-\r-~;£.--~~--J.
APPROVED AS TO FORM AND SUBSTANCE
AND ENTRY URGED:
PHIlLIP
PHILLIP BRANTLEY AND ASSOCIATES, P.C.
P.c.
Phillip Brantley
SBN 02899727
Arena Tower II
7324 Southwest Freeway, Suite 1020
Houston, Texas 77074
(713) 270-4053 phone
(713) 270-0682 facsimile
ATTORNEY FOR PLAINTIFFS
AR 000092
• at
CAUSE NO. 2014-22186
AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT
COOOT OF
d/b/a ALLIED MEDICAL CENTERS §
and INTERVENTIONAL SPINE §
ASSOCIATES, §
Plaintiffs §
§
VS. § HARRIS COUNTY, TEXAS
§
KHYATIlTNDAVIA,
KHYATI UNDAVIA, MIND MINlT RX, LTD., §
and MIND
MINlT GP, L.L.C. §
ND
Defendallls
Defendants §§ 152"" JUDICIAL DISTRICT
152
DECLARATION OF KHYA
KBYATI UNDAVIA
TI UNOAVIA
1. My name is Khyati Undavia. My date of birth is October 4, 196.5,
1965, and my address is
2918 San Jacit1to,
Jacinto, Houston)
Houston, Texas 77004. I swear under penalty
penaltY of perjury that the
below facts arc
are within my personal knowledge and are true and correct.
2. Providian
Providiwt Holdings, Inc. ("Providian") is a holding company. Its only asset is 2918
San Jacinto St., Houston,
Houston. Texas 77004 (the "Building"). Providian Provulian bashas no
employees, and it ba.s
has no operations
operatioll.'!r aside from leasi~~g out the building to tenants. I
fi'om leasillg
am the owner and president of Providian.
3. JI am also the owner and president of:\1inu Ltd. d/b/a Memorial Cornpound1ng
of Minu Rx, Ltd, Compounding
Pharmacy ("Minu").
Phannacy Minu is a pharmacy that operates on the first
("Minu"), Minll ftrst floor of the
Building.
Building, Minu has an approximately 12-person staff that includes pharmacists,
ph.nnacy technicians, clerks, and bookkeepers.
pharmacy
Mum has a
4. Because Minu has a physical presence in the building, and because Minu
tum-key staff available, Providian has
bas used Minu as its property
propeliy manager since
provides Providial1 with operational management,
tbis role, Minu provit-les
2004. In this management) risk
management, and administrative services.
5. Building. It
5, Regarding operational management, Minu manages and maintains the BUilding.
1
AR 000093
EXHIBIT E
janitoriaJ and facilities maintenance personneL It
interviews and hires security, janitorial,j
also pays for items like elevator maintenance, repairs for the Building,
Building. and
security equipment.
6. Regarding risk management, Miml
6, Minu procures and maintains
maintams. insurance
insw-ance policies on
Providian's behalf.
7. Regarding administrative services, Minu collects rent from the Building's tenants,
pays for the Building's utilities and common
conunon area !l1aintenance,
l)1aintenance, and oversees
Providian's compliance with accounting standards, as well as federal and state
reporting requirements.
8. Attached as Exhibit G to Defendants' motion for summary judgment is a true and
correct copy of a portion of Minu's Quickbooks for the time period of 2012
through 2013. These records demonstrate that Minu paid numerous expenses on
Providian's behalf.
9. For example, in April 2012, a break-in occurred overnight at the Building, causing
Building. Minu paid a total of $17,524.89 to repair the
significant damage to the BUilding.
damage caused to the Building. These payments were made on April 18,2012,
June 8, 2012,
2012 and July 25.
j 25, 2012, as indicated on the Quickbooks statement.
10. Similarly, MimI
Millu made periodic
periodiC payments to "ABC Pest Pool & Lawn" throughout
2012 and 2013. These charges represented compensation that Millu
Minu paid to ABC
Pest Pool & Lawn for the Building's grounds
grollnds maintenance.
maintenance,
Quickbooks records also demonstrate the Minu paid for
11. Among other things, these QUlckbooks
(vi. payments dated July 31, 2012 and
the Buildings' elevator maintenance (via
December 15, 2013) and for repairs to the Building's
Building', front door (via a payment
dated March 27, 2012). Also attached as Exhibit F to Defendants'
Derendants' Motion for
Summary Judgment are truenue and correct copies of invoices
invoices received by Minu that
demonstrate that Minu d'b/adJb/a Memorial Compounding Pharmacy Phannacy was billed
directly for these expenses by the servic.e
service provider.
provid<:L
12. In additional the above, 'Minu
12.In Minu also paid for the Building's security systems and
personnel. 111
In 2012 alone, Minu paid $49,415.73 to provide security personnel,
2.2
AR 000094
alann
alarm systems, and security cameras to the Building,
Building.
13, With regard to Providian's leases with Nisal COl]), Corp. and Sterling Practice
Management,
Managementl those entities did not have any ac,mal
actual operations in the office space
they leased.
leased, Instead, Allied Medical Centers and Avant Medical Group were the
entities that had operations in the
the leased space. Brett Garner
Gamer is a doctor of
chiropractic and was a chjropractor
chiropractor for· both entities,
entities. For all matters concerning
the lease, I communicated with Brett Gamer
Garner in his capacity has a representative of
not only Sterling and Nisal, but also Avant and Allied,
Allied.
14, In fact, as a condition of leasing office space to Nisal and Sterling, I required those
14.ln
lUe with proof that they had obtained COL
entities to provide Ine CGL insurance policies.
policies,
Garner provided a proof-Of-coverage
Gamer proof-of-coverage document naming "Avant Medical Group,
P,A,
P.A. d/b/a Allied Medical Centers"
CenterS" as the insured.
insured, Exhibit J to Defendants'
Motion for Summary Judgment is a true and correct copy of the proof-of-coverage
document Avant provided to me, me.
Add.ition~lly, Avant paid for Sterlillg
l
15. Additionally,
15, Sterling's s rent out of its own bank account.
account Attached
as Exhibit K to Defendants' Motion for Summary Judgment is a true and correct
copy of a rental check that Avant sent Providian with respect to Providian's lease
with Sterling.
16,
16. The Commercial Leases attached as Exhibits A and B to Defendants' Motion for tor
Summary Judgment are true
t:I"Ue and correct copies of the leases that Providiuo
Providian entered
into with Nisal Corp,
Corp. and Sterling Practice Managen1ent.
Management.
17, I am the person ill
17. Minu_ Exhibits A, B, F, G,
ill charge of records for Providian and Minu.
J, and K to Defendants' Motion for Summary Judgment are kept by me in the
regular course of business, and it was waS in the regular course of business of
Providiall and Minu that the information
Providian infonnat1on contained in this exhibits was transmitted
to me by an employee or agent of Providian or Minu who had knowledge of the
act, event, condition, opinion, or diagnosis recorded to make the records ree-ords Dr
01' to
transmit information thereof to be included in such records; and the records were
mad~ at or near the time or reasonably soon after the time that the servic.e
made service was
provided,
provided. The records 0l1ginal or all
recordg are the oligjnal an exact duplicate
dtlplicate of the original
original.
3
AR 000095
Executed in Harris County, Texas, on this the 11th day of January, 2015.
thezt;th
4
AR 000096
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INVOICE • ~ CONfRAC1"CIIA_-
DUPLlGATli
IIIJPLICATB
.
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ro o2/~J/ll
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;. :" ~!UVire
~ service aedit
credit ( (174.56)
(174.$)
_~ ..,..;'" ered!t /
serviM era1ft (174.$)
~ ....-vlceered!t
service credit // ' ~174.55)
{174.55)
REVISED INVOICE AMOUNT NOW PUE,
DUE: $523.65
B JOR Mft' QWji'l'WllS O!'JIIJCBRllJlIQ -mza nMllel. ~ ~ ~I 1-11~-n3-'2Iil
(Ill '*-f.m NfnOI BJ.InA"rOa. 3.-1J1' IIf .os-:r 0fU[ ,9'l';l 3.QQ ~ 'CI: 1'Josg.
I'MI:IIIBIlIl" 1lO2I vr(ai' UCS1H
AR 000097
EXHIBIT F
AMTECH ELEVATOR
AMTECH ELEVATOR SERVICES
SERVICES
11 Farm
F;:lrm Springs Rd
Rd
cr
Farmington, cr 06032
Farmington, NO.
CUstomer NO.
customer Statement
Statentli!nt Date
Date AmQI,mtOue
Amount Due
,55336,2
553362 21712012
2/7/2012 1,047.30
1,047.30
STATEMENT
Mail payment
Mail payment to:
tQ:
Amtech Elevator
Amtech 5~rvices
Elevatrlr Services Memorial
Memorial Compounding
Compounding Pharmacy
Pharmacy
PO Box
PO Box 730437
730437 2918
2918 San
San Jacinto
Jacinto 5t
St
Oallas, TX
Dallas, TX 75373-0437 HOUSTON, T)( 77004
HOU5TON,TX 71004
PI;;!ase
Ple provlde your
••e provide your name.
name.. phone number
number andlor ern~il address
and/or ernaij·~ddress
$hOuld we have
SMull:! we have any
any questions
questions on
on how
how to applyyour
\(J apply payment:
your payment:
STATEMENT cam:ef'nirg this
For any questions concerning lilts statement. plea~ contact:
stat9rJW,nt, please 0011t$Cl: Page 1 of 1
404-605-8421 or danil.marvin@otis.com
404-605-842.1 Ollrlil.mllrvirl@otis.com
Buldlng Reference:
Building Refemn.:e: 2918
:2918 san $t
SaO Jacinto St CU IfIQr No. Statement Date ArnountDu0
" . ". ,
553362 21712012
217'2012 , ,047.30
1,047.30
Invoice
InVOice Number Documem
Document Type Irrv~oate Gl'oSS Amount
Gross Open ArnOlJm
Amount
J
DTH06ZQ2911
DTH062£)2 911 Invoice 1,047.30 1.047.30
/ ., 2/2011
2/2011
/ .
,/
//
.I
/
Abffile, please find
Above, ftnd your Iate!!t
Ja!e!;t,)lamment
matement of or account. Thl. statement does
accoum. Tills dOBS not Inclide in\IQiCllS turned over to •a tllir<:l
Inc.i.Jde invoicm third part)'
party for coIIect1on.
fOr collect1on.
ChargebackS are
Chargebackll a~e disputes
dlspuleS under Investigation,
InvestigatIOn, Plell5e ~menl ID
PI••s. remit payment to the addr aDov.. If you have already paid. lIl.nk
... l'l1lQve.
address Ihank you.
you,
d~ta 1$
Colloctlon data
Colklctlon ;$ reported 10
to Dun &&: Bradstreet.
Bredstteet.
AR 000098
,~ ,
AMI_::::' N·P""I
1289 N
HvUl!itOfI
Oak SIO 100
Post OakSte
Houston TX 71055
77055
-
~
INVOICE
CUSTOMER NO.
553362
DArE
02/20/12
I
~1DIl'"
~ncl08eThis caupon
Thi!S
Mak~ CheCk
Make
Oaupon WIth
INVOICE NO.
DTH06202312
AMOUNT Due ON S~RVICE CONTRACT;
1,099.74
Wit'"' Yollr
PllyabJo;> To:
CMo<: payable Tf):
p..~ment.
Your payment.
AMTECH ELEVA
AMTECHELEV TOR SERVICES
ATOR.
Masl plJyomint to:
AT 01 006604 340576 Au 3DGT
340578 26 A"SOOT
HEMORlAL COMPOUNOING PHARMACY
H.EMORIAl
,.1.111111111111,1111-,1111111111'
.I,lillll'IIII"III" 11.111,1/1.111"" 11111'11'1I1I
'111.11 ••• 11 '11'1111"111,111"11"11111,1_11' 2g18 SAN JACINTO ST
2918
AHTECH ELEVATOR SERVICES
AMTECH HOUSTON TX 77004-2708
P.O. BOX 730437 .
DALlAS
DALLAS TX
75373·0437
~l..EA$E SEND
PLEASE $ENO CQRm!$PONDENCE
eORRI!$POjr,lIJENCE TO YOuR L.OCAL. OFFICI!
YOUA. LOCAL OFFiCe AS -SMOWN
$HOWN BIlLOW
ilEt.OW
ODTHOb202312 OOll0109974
IlDTHDb2D2312 0000109974 1
.~ ____________ ~ ___ w ______ . ~_~_~"M*~_~"-W~*_";"'~~ __ ~~~M""'~_
.
..... ___________________ ...... __ ... ~ _*~~~~~~~_~~_~~ __ ___ __
~ ~~ ~_~--~-----~
....
... DETACH RETURN DOCUMENT ALONG PERFORATION ..
E;LE;VATOR SERVICES
AMTECH ELEVATOR
INVOICE ~ SERVICE CONTRACT CHARGES ..
... -
CUSTOMER NO,
CUSTOMEA NO. l!AIIi
.MIIi: INYOICENO.
INVOICENQ,
553362 02/20/12 DTH06202312
BUILDING DTH800681
DTK8006S1 MEMORIAL CONPOONDZHG
COMPOUNDING P.KAR
PHAR
co»rRACT
coir.rRACT DTB06202
D'rH06202
SERVICE FROM 03/01/12 TO
03/01./12 TOOa/31/12
08/31/12 1,099.74
1,099,74
'l'O'.l'AL CORRmI'l'
'l'O'l'AL CORIU3l!I'l' CHARGES! PtJE
ClIAMES DOE 1,099.74
PRICE ADJUSTMENT
AOJUSTMllN'l' • •- •
IN ACCORDANCE WlrR FROVISION Faa
WIrE THE FROV~SlON ~HE ADJUSTMENT OP
FOR rH! OF PRICE AS SET FORTH PORTH IN THE CONTRAC~
CONTRACT
1!NiTERlll:l INTO BETWEEN US FOR Tm:
BNTERBD J!:QtlnMl!:m':
THE SERVICE OF ELEVATOR }!:QtJII?~:
THliI PRICE. Of'
THli FORMER Pft~CE O!i' HAS Sl!l~
174.55 11M BEEN ADJUl':TED
ADJUSTED AS INDICATED BELoW UP@ THlil
BELOW BASED UPON Tat CIIJU\I(>IilS
CIUUilGl!:S
THAT RAVEHAvE OCCURED
OCCORED IN THE ELBVATOR EXAMlNERS'
EXAMINERS' COS1COS~ ~~ IN iN ~~ER"~
~1E~I~ INDEX BETWEEN BBTWEEN J~Aay,201"
JANUAaY, 2011
AND
.!\NIl JAMUAaY,2012.
JANUARY,2012.
IN EFPIi:CT
~HE AlJJUSTl!:O
'l,'H,g
EFFECT UNTIL 1'I!;BRUAaY
Anj~ST~D PRICE
lIlBRUARl!' ~8, 20·13
GI,'APSE 1j - BASED ON CHANGES IN PRODUC'ER
CLAUSE
~R!eE BECOMES
201a WHEN IT
~ECdMES I!:FFEC'TIVE
EPFECTIVE
WU.L 8l!:
l'l' HILL BlI: SUBJECT
~ 01, 2012
SUBJlI:CT TO ADJUSTMENT.
METALS AND :METALI
PRODUCER METALjj1
2012: AND SHAL~
ADJUSTMEN.l'.
Mi:l'#U.< ;ElROD1;JC'l'S c~Dtl''t IMtlElX:
;E>ROVUCTS COD@fOot't'Y rblDEjt:
~'[N
SHAI.!. EEMAIN
-
IA) (6)
(Ii) (e)
Ie) "'6/14
='S/A (D)
(0) IE) "'c"'o
(E: =C*D
I!'ORWER
FORMllR INDEX CURRENI' INDEX
CURREN'!' INDIIX !\ATIO OF CRANGE
ltA'I'IO CllANGE FORMER lI.IATERIA!.
FOIlDiIER MATERIAL CURREN!'
CURREN'!' lI.IA'l'liRIAL
MATERIAL
215.0000
21~.OOOO 212.7000
nJ.7000 103.58140
lO~ • .5aliO
CLAUSE 2 -• BASED
!'llIS!!lP ON
Olq CBANGES
CIUl1ilG~$ !N ELtVATOR t~a6t
Ilq ELEVAtOR HOURLY oosr:
tll:At>llHlillt$' 1I0!lRl.Y CO$~,
(~)
(JI,.) (9)
(B) Ic)mB/A
(C)"'B/A ID)
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_.•. -p'ORMP.a,"~ ....._. ____..
_.... C!ll7
730437 . MAKE ALL CHECKS PAYABLE TO
TX~ 75::;'73-0437
DALL0S, TX.
DALLflS, 75~73-0437 AMTECH ELEVATOR SERVICES
AR 000100
FOAM~AMT
L 01 C:I\~C en, n /l.lI.ln cnc'MAon TUE:
.J
D=ltjITT4h.1r-~ ('nCV\AJIT~ DAVl.llCI\.Ii' Tn TI-I~ 4nn~~~~ ARn\/I=
! CU5TOMiOR NO. DATE Il"IIvt,.ln... t;, I '......
AiR=:;
AU,. WlrYfSltIIMttH
ARP..;-=01 ~
55.1362
-- 02-21/11
02121/11
AMOIJNT DUE ON SERV(CE C:ONl'RACT:
nUI06102311
DTH0620231!
1289
1289N P~t Dall
N POI;lt
WoustonTX
Houston
Oak StI!
TX 17055
S1e 100
77055
INVOICE 1,(147.30
EnclO&~ This
Em::IO;;/1 c.oupDf1 With '{t)~r
Tills coupon ~t1)IfIlerTi,
YO\.lT I'llIYrnerrt,
Ma~ Check:
M8l\'e P~yablij To:
Cl'teok ~ysOI~ TO:
AMl'ECH ELE\'
AM:rECH llLEVATOR SERVICES
006201 '196236 26 A"SDGT
AT 01 00620179623826 A"'"$bGT
MEMORIAL
M~MORIAL CO"POUHDING PHARMACY
COMPOUNDING PHARHACY
'1111 II '1 111 111 1111111'11,11111' ,IIII' 1111111111111'111111111,111
'l"III'IIIIIIIIII"II'II'''"HIII'iIlI''I''IIII'I'IIIIIII''111 2918 SAN JACINTO
JACINtO 5T
ST
SERVICES
AMTECH ELEVATOR SERVICfS HOUSTON
HOIlSTON TX
IX 77004-2108
P,O. BOX 730437
P.O. 7304'31
DALLAS
DALlAS TX ,,11111,111111'111111111"111,1111,,111'111'11,1111"1111 1'1,11,1
15373"0437
75373-0431
PL.EA,SE S(;lHP COMREIiPONOENCE 10 YOUR.LOCAL OFFICE A$ $HOWN BEI.OW
ODTH062D2311 5
DDTHOb202311 0000104730 S
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... DETACH RETUrlN
.... RETURN DOCUMENT ALONG PERFORATION ...
AlONG PERf/oRATION ..
ELEVATO~ SERVICES
AMTECH ELEVATOR
IINVOICE
NVOIC E ..
~ SERVICE CONTFtACT
CONTRACT CHARGES ,",••
~"COMER NO,
~TOMeRNO, . INVOICE
WYQICENO.
NO,
553362 02121/11
02/21111 DTH062023) 1J
DTEl062023I
aUIwIN(l
BUIWm¢ D'rHII00681
DTHS()0681 MEMORIAL COMPO'l.TN'Di:NG PJiAR.
MBMoRI}!.L COMPOtJm)l:NG PHAR
CONTRACT
·COl'l'l'RAC'r ~H06202
DTB06202
SERVICE FROM 03/01/11 TO 08/31/11 1,047,30
1.047.30
TOTAL CORRE.N'l' CHARGBS DUB
COltR:EN1' CllARQB.S 1,047.30
I/RI Clil lIDJUSTMEN'l' - • -
IN ACCORPANCE WITH MITIl 1'1IE
THE PItOVISION
PROVISION FOI!
FOF- THE JillJOSTMEll."'l:
JillJOSTf>iENT OF F'R;tC.E
PRleE AS SET FORTH IN THE CONTRACT CON'rRACr
EN'rERED INtO BE~WEEN
ENTj;:R~D IN'rO BE'rWEEN O. OS POR SERVIC~ OF ELEVATOR EQOIPMEN'r,
FOR THE SERVICE EQOIPMEm:':
THE FORMER
WRM&R PRICE OF 01' 165.77
US. 77 IfaAS E~EN ADJOST~b
AS B:EmN I~ICATEb BELOW 'B~D
ADU'OST,"ED AS U®ICA"l'E:tJ ~SED U;<'ON Tll-},: C~ES
UPON THE CE"~ES
THAT !lAVE
TIIAT ffAVE OCCv:R.ED
OCC~ IN THE TIIE ELEVATOR EXANI~S'
l1iXAI1 MATERtAL II>1DEX
I~ JI1ATBRXAL BETWEEN
~NDEX BETWEBW JWU"AftY,2010
J~AAY,2010
AND JANUARY • . PRODO'C1.1le COI!4MODlT"i
METAJ... PRODOC'.I'8 GOMMODlT't INP'ltX;
INPEX;
(A)
(AI IS)
(Il) (C)=:f,I(A
(C)=li/A (P)
()JJ (E)=C"D
(E)=C*D
FORMER'INJ;lEX
PQ~ lNOEX CURlUl1NT I!ilDElX
CURll$NT INIlEX OF~GI!:
RATIO OF CW under
-_..._._. SPECIAl. PROVISIONS below E.L. DISEASE -POlICY UMIT $;
OrnER
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDEO BY EfftJORSe/lENT I SPECIAL PROVISIONS
Sterling Practice Management Inc. is Named Additional Insured as respects General liability.
CERTIFICATE HOLDER CANCELLATION
SIIQlJl..O ANY OFnIE A8OWOESCRl8ED POlICIES BE CANCELLED tmFORE THE ~PlRATIOH ,
DATE
011. TE THEREOF.
THEReOF, THEtsSUlNG
TIlE ISSUING INSURER WIlL
WILL ENDeAVOR MAll ~ DAYS WRITTEN
ENDEAOJOR TO MAIL
NonCE TO THE CERTIRCATE
NOTICE GERT1FtCi\TE 1I0LOER
HOLOER NAMED
NMlEO TO TilE
THE LEFT.
LEFT, BUT FAlLURI'; TO 00 so
BUTFAILURE SO SHALL
IMPOSE. NO OBLIGATION OR UABIUTV
UAPOS£tlOOBUQAltOK UA81UTY OF fJN(
/IN{ KIND
KINO UPON TtlE
THE INSURER. ITS AGENTS OR
Sterling Practice Management Inc. REPRESENTATIVES.
5718 Bellaire Blvd.,
Blvd •• Suite 100 AI1fKORIZED REPRESENTAtIVE
Ho~ston, TX 77004 20-1B/SUSANA ~11Lu./
ACORD 26 (2009/01) @ 198'S-ZOGe ACORD CORPORATION. All rfgl1ts reserved.
The ACORD name and
~nd logo are registered martls
marks of ACORD
AR 000108
EXHIBIT J
AR 000109
. AVANT MEDICAL GROUP ,P.A. WHITNEY NATIONAL BANK
HOUSTON, TEXAS
~
.114301·10 EAST FREEWAY
HOUSTON, TX 77029 35·96·1130
'6(3/01
I .0
i5
~~YD~6~E eIlDid100tlv.w~I'~C-·
~ . I"
$f;l.poo. £:<) !
.tw D -tb0 \1M
/~., tU - \5t.
ck"d X«--
-~ ~
<
. ,.;,~ /.~ :z
-----'
."
:J:
.'"".,';-.......;:; ~"rt m
.'"..
TO THE HONORABLE JUDGE: ~; ~.
~: ~. 0
o r· ."
Managemen~ u.c
Sterling Practice Management. ILC (hereinafter Sterling) and Nisal Corporation'l'
Corporation\'
(hereinafter Nisal) appear and file Plaintiffs' Original Petition against Defendant Providian
Holdings. Inc., and in support would show the court the following:
Holdings,
1. This is a level
Level One Discovery Control Plan case.
2. Plaintiffs are entities doing business in the State of Texas. Defendant Providian
Holdings. Inc. is a corporation doing business in Ibe
Holdings, the State of Texas and can be served
through its agent for service of process, Khyati Undavia, 2918 San Jaeinto,
1hrougb Jacinto, Houston.
Houston,
seek: damages wilhin
Texas 77004. Plaintiffs seek within the jurisdietional Court. The
jurisdictional limits of the Court
Court has subject matter jurisdiction and venue is proper.
FACTUAL BACKGROUND
FACfUALBACKGROUND
with Defendant. Pursuant to the tenns of the
3. Sterling entered into a lease agreement wilb
lease, Sterling made a security deposit in the amount of$2000.oo.
lease. of $2000.00. Upon tennination of
forwarding address. Defendant has
the lease and sixty days after Sterling provided a fOlwarding
Ibe bas
refused to refund the seeutity
security deposit to Sterling. Defendant has acted in bad failb.
faith.
Sterling for the full seeutity
Defendant is liable to Srerling security deposit of $2000.00, plus a statutory
AR 000110
EXHIBIT L
penalty of $100.00, plus an additional statutory penalty of $4000.00, plus reasonable
of$4OOO.oo,
has acted in bad faith by not providing a written description
attorney's fees. Defendant bas
charges, if any, and thus has forfeited its right to
and itemized list of damages and charges.
withhold a portion of the security deposit for such damages and charges.
4. Nisal entered into a lease agreement with Defendant. Pursuant to the terms of the lease,
Sterling made a security deposit in the amount of $3600.00. Upon termination of the
UpOn tennination
lease and sixty daya _ Nisal provided a forwarding address, Defendant
days after bas refused to
Defendaot has
refund the security deposit to
toNisaI. has acted in bad faith. Defendant is
Nisal. Defendant bas
mn security deposit of $3600.00.
liable to Sterling for the full $3600.00, plus a statntory
statutory penalty of
$100.00, plus an additional statntory
statutory penalty of $7200.00,
$7200.00. plus reasonable attoruey's
attomey's
bas acted in bad faith by not providing a written description and
fees. Defendant has
charges, if any,
itemized list of damages and charges. aoy, and thus has forfeited its right to withhold
a portion of the security deposit for such damages and charges.
for.ncb
WHBREFORE PREMISES CONSIDERED, Plaintiffs pray that Defendant Providian
WHEREFORE Proviclian
Holdings, Inc. be cited to appear and that judgment be taken against it for all damages
soffered by Sterling in the amount of$6loo.oo
suffered of$6100.00 (consisting of the security deposit due
dne and
owing and all statutory penalties), attomey's fees, and that judgment be
penalties). plus reasonable attorney's
soffered by Nisal in the amount of $10,900.00 (consisting of
taken against it for all damages suffered
and owing and all statutory penalties), plus reasonable attorney's
the security deposit due and. attoruey's
fees, plus all costs of court, plus and any all further relief Plaintiffs may be entitled
eotitled to.
AR 000111
Respectfully submitted,
BRANTIEY AND ASSOC., P.C.
PHIT.LIP BRANTLEY
PHILLIP
(}·jjbe~
~.~~%
illiP~rantley--o
Al'ill; rantley
SBN 00899727
02899727
Arena Tower n II
7324 Southwest Freeway, Suite 1020
Houston, Texas 77074
(713) 270-4053 pbone
phone
(713) 270-0682 facsimile
ATIORNEYFOR
ATTORNEY FOR PLAlNTlFF
PLAINTIFF
AR 000112
1/30/2015 Franchise Tax Account Status - Officers and Directors
Wmdow on State Government
Taxable Entity Search Results
Taxable
Taxa ble Entity Sea
Search
rch
Officers and Directors
STERLING PRACTICE MANAGEMENT, L.L.C.
Report Year: 2014
Retum
Return to: Taxable Entity Search Results
Officer and director infonnation
information on this site is obtained from the most recent Public Infonnation
Information Report (PIR)
processed by the Secretary of State (SOS). PIRs filed with annual franchise tax reports are forwarded to the SOS.
After processing, the SOS sends the Comptroller an electronic copy of the infonnation,
information, which is displayed on
information will be updated as changes are received from the SOS.
this web site. The infonnation
You may order a copy ofa
of a Public Infonnation
Information Report from open.recordsca),cpa.state.tx.us
open.recordsCakpa.state.tx.us or Comptroller of
Public Accounts, Open Government
Govemment Division, PO Box 13528, Austin, Texas 78711.
Title N arne and Address
Name
MANAGER BRETT L GARNER
5903 SOLAR POINT LN
HOUSTON, TX 77041
MEMBER SHAHID H SYED
MANAGER WILLIAM H HICKS
5718 BELLAIRE BLVD
HOUSTON, TX 77081
texas.gov I Statewide Search from the Texas State Library I State Link Policy I Texas Homeland
Security
Glenn Hegar, Texas Comptroller • Window on State Government • Contact Us
0111 0111
Privacy and Security Policy Accessibility Policy I Link Policy I Public Information Act I Compact
I I I I
with Texans
AR 000113
https:!lmycpa.cpa.state.tx.us/coalservleVcpa.app.coa.CoaOfficer
https:llmycpa.cpa.state.tx.us/coaiservleVcpa.app.coa.CoaOfficer EXHIBIT M
KEITH CHUNN, JR.
Attorney at Law
1535 West Loop South, Suite 365
Houston, Texas 77027
Tel: 713-621-6616
Fax: 713-621-5553
Cell: 713-824-6860
Email: kchunn@msn.com
SENT CERTIFIED MAIL RETURN RECEIPT REQUESTED
February 25, 2013
25,2013
.,
Nisal Corporation
2918 San Jacinto St., Suite 200
2918
Houston, Texas 77004
Attention: Brett Garner: bgarner5@aol.com
RE: Lease of Suite 200 containing 4,700 rentable square feet in the building as 2918
San Jacinto Street in Houston, Texas, which expired February 29, 2012; and Lease
of Suite 200A containing 2,154 rentable square feet in the building at 2918 San Jacinto
Street in Houston, Texas, which expired January 31, 2012
31,2012
Gentlemen:
Your lease of Suite 200 referred to above expired on February 29,2012 and your lease of Suite
200A referred to above expired on January 31,2012. Since the leases expired, the rental of the spaces
200A" have been on a month to month basis and cancelable by you or
known as "Suite 200" and "Suite 200A:.'
the landlord on thirty (30) days notice:
NOTICE is hereby given that Providian Holdings, Inc., your landlord, and Lessor of both Suite
200 and Suite 200A in the building at 2918 San Jacinto Street in Houston, Texas, has elected to
terminate both the lease of Suite 200 and the lease of Suite 200A effective March 31,2013.,.
. ', , . ..
-
DEMAND is hereby made that, on or before midnight March 31,2013, you vacate the premises
S~t, Houston, Texas, and also
known as Suite 200 and Suite 200A in the building at 2918 San Jacinto Street,
all other parts of the building and parking lot where you may have stored property or used on an
occasional basis. The Landlord wants the premises for its own use and benefit.
Sincerely, (fJJi/"",n
fIJI/.-n
If!f~,;,'''rr
If!!~~'''(f' I
AR 000114
EXHIBIT N
SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY
, • Complete items
Items 1, 2, and 3. Also complete A. Signature
Item 4 if
If Restricted Delivery Is
is desired. X [J Agent
0 Agent
• Print your name and address on the reverse x 0 Addressee '
,
that we can retum the card to
so that you.
to you.
, • Attach this card to the back of the mallplece,
B. Received by
by (Printed
( Printed Name) IIC. Dato of Dollvory i '
mailplece.
, or on the front if space permits.
~-------~--------I
I----------.
O. Is
. . . --=-~--l
/s delivery address different from Item 11 Yes
17 DYes
: 1. Article Addressed
1. Article Addressed to:
to: If YES. enter delivery address below: D No
oNo
.' JY'e1T G-o.rhee (' t'.
J:ye:tr (;.-0."1)
Ni C.:CI
;,;,cdI
Ni::"'C\ ·fC"'ro.. IU h
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2- q \ '3 .:k,c Iff 0 J)
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$t.t.'Te 20CJ
5L\' Te. 2,00 3. i3~ce Type
~iceType
Hau~'
,HDU rel, ,Ix 77i"t)((
'?>,(Cr1 77i.~'o(f 1fCertified
KCertlfled Mall
oD Registered
0 Express Mall
[J
0 Retum
Mail
Return Receipt for Merchandise
o Insured Mail 0 C.O.D.
4. Restricted Delivery? (Extra Fee) 0 Yes
[J
, 2. Article Number rl 0 n "".>.
(Ttansfer flOm service labe~ I C j.., 4 0 0 ooD'1
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CAUSE NO. 2014-22186
AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF
d/b/a ALLIED MEDICAL CENTERS §
and INTERVENTIONAL SPINE §
ASSOCIATES, §
§
Plaintiffs §
§
VS. § HARRIS COUNTY, TEXAS
§
KHYATI MOHAMED UNDAVIA and §
MINU RX, LTD., §
§
Defendants § 152ND JUDICIAL DISTRICT
DECLARATION OF ASHISH MAHENDRU
IN SUPPORT OF ATTORNEY'S FEES
1. I, Ashish Mahendru, am of sound mind and am over the age of twenty-one.
My date of birth is September 1, 1971, and my address is 639 Heights
Blvd., Houston, Texas. I declare under penalty of perjury that the
foregoing is within my personal knowledge and is true and correct.
2. I am one of the attorneys of record for Defendants and Counter-Plaintiffs.
3. I am licensed to practice in the State of Texas and Commonwealth of
Massachusetts. I am admitted to practice before the Western District of
Texas, Southern District of Texas, and the United States District Court for
the District of Massachusetts along with the state courts of Texas and
Massachusetts.
4. I am a 1996 graduate from the University of Texas School of Law. I am
1993 graduate from the University of Texas at Austin with a major in Plan
II, the Honors Liberal Arts Program.
5. I currently practice law in Houston, Texas where I founded my firm in
2001. Prior to the establishment of Mahendru, PC, I was an associate trial
attorney in Boston, Massachusetts with the law firm of Lucash, Gesmer &
Updegrove. Prior to my time in Boston, I was an associate trial attorney
1
AR 000116
EXHIBIT O
with the firms of Thompson, Coe, Cousins & Irons and Davis & Wilkerson
(1996-2000), which are both located in Austin, Texas.
6. I have previously been qualified as an attorney's fees expert and have
testified on the subject in jury trial multiple times.
7. My opinions on the fees incurred by Defendants and Counter-Plaintiffs by
the work performed by members of my firm is based on the relevant case
law and on the eight factors courts look to in determining the appropriate
amount of fee:
a. the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;
b. the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the
lawyer;
c. the fee customarily charged in the locality for similar legal services;
d. the amount involved and the results obtained;
e. the time limitations imposed by the client or by the circumstances;
f. the nature and length of the professional relationship with the client;
g. the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
h. whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been
rendered.
8. Members of my firm and I have performed legal services in preparing a
Motion for Summary Judgment on Plaintiffs’ affirmative claims and
Counter-Plaintiffs Counter-Claims. This includes researching, drafting,
conferring with the client, and time to attend the hearing on the motion.
9. The billing rate for members of my firm is as follows:
2
AR 000117
a. Ashish Mahendru $450/hr
b. Darren Braun $225/hr
c. Susan Farer $175/hr
Based on the education, experience, and background of these individuals
and my experience and knowledge of the rates charged by professionals in
the Houston, Harris County, Texas geographic region, the rates charged by
members of my firm are reasonable and customary in the Houston, Harris
County, Texas region.
10. Darren Braun received his bachelor of arts degree from Pennsylvania State
University in 2008. In 2010, he began law school at South Texas College
of Law where he attained a ranking within the top 5% of the class. In 2011,
he transferred to University of Houston Law School, where he finished with
a 3.73 GPA (top 4%) and received the Houston Real Estate Bar Scholarship
award for outstanding academic achievement in real estate law
coursework. He received dean’s list honors every semester of law school.
He has been a licensed attorney in Texas since 2013. His practice includes,
but it not limited to, commercial litigation matters, temporary restraining
orders, injunctions, trade secrets, breach of contract, fraud, fiduciary duty,
and related practice areas.
11. Susan Farber is a legal assistant that worked on this matter for my firm. She
is an experienced legal assistant with over seventeen years of practice in her
field of commercial litigation matters.
12. The following is time associated with each attorney and legal assistant
working on this matter in preparing the motion for summary judgment:
a. Ashish Mahendru 6.70 hours $3,015.00
b. Darren Braun 32.90 hours $7,402.50
c. Susan Farber 4.80 hours $840.00
13. The total attorney's fees incurred in responding, therefore, are $11,257.50.
14. Based on the factors courts consider in awarding fees, my experience
litigating similar cases, and my knowledge of the usual and customary rates
charged by other attorneys and legal professionals in Houston, Harris
County, Texas, it is my opinion that my firm's attorney's fees in the amount
of $11,257.50 are reasonable and necessary.
3
AR 000118
Signed on this 30th day of January, 2015, in Harris County, Texas.
Ashish Mahendru
4
AR 000119
1/30/2015 Franchise Tax Account Status
Franchise Tax Account Status
As of: 01130/2015 04:20:01 PM
This Page is Not Sufficient for Filings with the Secretary of State
AVANT MEDICAL GROUP, P.A. =m$'-~'.;o;~=~r~~,".,,_·_i!F$Wliii"Miiiiii'~§iil:\~ "<;"-iiWW7W',~XMN'7"<
11"\- """"7".
CAUSE NO. 2014-22186
AVANT MEDICAL GROUP, P.A. d/b/a § IN THE DISTRICT COURT OF
ALLIED MEDICAL CENTERS and §
INTERVENTIONAL SPINE §
ASSOCIATES, §
§
Plaintiffs § HARRIS COUNTY, TEXAS
§
VS. §
§
KHY ATI MOHAMED UNDA VIA and §
MINU RX, LTD. § 152nd JUDICIAL DISTRICT
PLAINTIFFS' RESPONSE TO
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE
ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL
CORP. d/b/a QUALCARE REHABILITATION ("Plaintiffs"), and file this Response to
Defendant's Motion for Summary Judgment, and in support thereof would respectfully show the
Court as follows:
I. PARTIES
Plaintiffs are AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE
ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL
CORP. d/b/a QUALCARE REHABILITATIO.
1. Defendants are KHYATI MOHAMED UNDA VIA, MINU RX, LTD. d/b/a MEMORIAL
COMPOUNDING PHARMACY, MINU GP, LLC, and COMPASS BANK.
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
1
AR 000121
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE
II. FACTUAL BACKGROUND
2. PlaintiffNisal Corp. ("Nisal") entered into a commercial lease agreement with Providian
Holdings, LLC (Providian) to rent the top floor of a building owned by Providian. The
commercial lease was in effect from 2009 through March 2013. See Exhibit 1.
3. While Plaintiffs were occupants of the Building, all mail was delivered to the Building's
main address, where it would be collected by Defendant KHY ATI MOHAMED UNDA VIA
("Undavia") and distributed by her to the other tenants. See Exhibit 1. Defendant Undavia
prohibited the Plaintiffs from keeping their own mailboxes at the building. See Exhibit 1.
Because the checks were delivered to Plaintiffs' mailing address, Plaintiffs were in possession of
the checks and have a possessory interest in them. See Exhibit 1.
4. In 2013, Providian Holdings, LLC terminated the lease with Nisal. Nisal and Sterling
then sued Providian for failing to return a security deposit in Cause No. 1036848, Sterling
Practice Management, LLC and Nisal Corporation v. Providian Holdings, Inc., in the County
Civil Court at Law No.4, Harris County, Texas (the "Prior Lawsuit"), filed on September 5,
2013. See Exhibit 4. That lawsuit ended in a settlement release pertaining to the claims asserted
in the Prior Lawsuit by Nisal and Sterling (the "Release"). See Exhibit 5. The only parties to the
settlement agreement were Nisal, Sterling, and Providian. See Exhibit 5.
5. Plaintiffs recently discovered that during their occupancy at the building, Defendant
Undavia would frequently open the Plaintiffs' mail, take checks made payable to the Plaintiffs,
endorse the checks with the name and Compass Bank account information for MINU RX, LTD.
d/b/a MEMORIAL COMPOUNDING PHARMACY, (Minu RX) and deposit them into at least
two bank accounts at Compass Bank belonging to Minu RX. See Exhibits 1 & 3. Plaintiffs were
only able to discover this in July 2012 because Plaintiffs frequently provide medical services to
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
2
AR 000122
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE
personal injury victims and often have agreements to suspend collection efforts for extended
periods of time while the patients attempt to obtain compensation for the third parties responsible
for their injuries. See Exhibit 1. Thus far, Plaintiffs have identified over $40,000.00 in checks
that were stolen by the Defendants in the above-described manner, and expects to discover more
as investigation and discovery in this case progresses. See Exhibit 3. It is uncertain at this time
if additional checks were endorsed and deposited or cashed by other entities.
III. OBJECTION TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
6. Plaintiffs object to Exhibit B to Defendants' Motion for Summary Judgment on the basis
that the lease agreement is unsigned, and is therefore not relevant and is not evidence that
Sterling actually entered into the agreement. Alternatively, Plaintiffs object on the basis that the
lease is not the best evidence of any lease agreement that may have existed between Providian
and Sterling.
7. Plaintiffs object to Exhibits F, J, and K to Defendants' Motion for Summary Judgment
because they contain hearsay. Although Defendant Undavia attempts to lay the predicate for
these documents under the business records exception, these documents are clearly not created
by Defendant Undavia or her employees or representatives, and are therefore not based on the
employees or representatives' knowledge of the statements contained therein. See In re EAK,
192 S.W.3d 133, 142 (Tex. App.-Houston[14 1h Dist.] 2006). Under Texas law, a document
authored or created by a third party may be admissible as business records of a different business
if: (a) the document is incorporated and kept in the course of the testifying witness's business;
(b) that business typically relies upon the accuracy of the contents of the document; and (c) the
circumstances otherwise indicate the trustworthiness of the document. Simien v. Unifund CCR
Partners, 321 S.W.3d 235,240-41 (Tex. App.-Houston[lst Dist.] 2010, no pet.) (citing Bell v.
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
AR 000123
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE 3
State, 176 S.W.3d 90, 92 (Tex. App.-Houston[1st Dist.] 2004, no pet.)). Defendant Undavia
failed to include such testimony, and as such Defendant Undavia's predicate with respect to
Exhibits F, J, and K to Defendants' Motion for Summary Judgment in defective and not
sufficient to prove the documents fall under the business records exception of Tex. R. Evid.
803(6). For this reason, Exhibits F, J, and K to Defendants' Motion for Summary Judgment
should be struck.
8. Plaintiffs object to Exhibit E to Defendants' Motion for Summary Judgment. The court
should deny Defendants' Motion for Summary Judgment because the Declaration of Khayati
Undavia attached as Exhibit E to Defendants' Motion is defective and does not present
competent summary judgment evidence. Tex. R. Civ. P. 166a(f). More specifically, Plaintiffs
object to the Declaration of Khayati Undavia on the following bases:
9. The Declaration of Khayati Undavia contains statements that are not based on
personal knowledge. Tex. R. Civ. P. 166a(f); Ryland Group, Inc. v. Hood, 924 S.W.2d 120,
122 (Tex. 1996); see Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761-62 (Tex. 1988);
Rizkallah v. Conner, 952 S.W.2d 580, 584-85 (Tex. App. -Houston[1st Dist.] 1997, no writ).
In paragraph 13 of the Declaration of Khayati Undavia, she states that Plaintiffs Nisal Corp. and
Sterling Practice Management, LLC "did not have any actual operations in the office space," and
that "Allied Medical Centers and Avant Medical Group were the entities that had operations in
the leased space." She does not any factual bases for this conclusion. Defendant Undavia does
not claim that she was involved in the operation of or has any familiarity with the operations of
those entities. Because Defendant Undavia does not offer any support for these statements, they
are merely factual conclusions with no underlying facts to support the conclusions and
unsubstantiated opinions of the affiant. Haynes v. City of Beaumont, 35 S.W.3d 166, 178
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
ARPAGE
000124
4
(Tex. App. -Texarkana 2000, no pet.); Rizkallah v. Conner, 952 S.W.2d 580,587 (Tex. App.-
Houston[lst Dist.] 1997, no writ); Harley-Davidson Motor Co. v. Young, 720 S.W.2d 211, 216
(Tex. App. -Houston[ 14th Dist.] 1986, no writ). Because those statements are not competent
summary judgment evidence, paragraph 13 of the Declaration of Khayati Undavia should be
struck.
10. The Declaration of Khayati Undavia contains statements that are merely legal
conclusions. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Rizkallah v. Conner,
952 S.W.2d 580, 587 (Tex. App. -Houston[lst Dist.] 1997, no writ). Defendant Undavia states
in paragraph 14 of her Declaration that "[f]or all matters concerning the lease, I communicated
with Brett Gamer in his capacity has [sic] a representative of not only Sterling and Nisal, but also
Avant and Allied." The capacity in which Dr. Gamer was acting at any specific time is a legal
conclusion, and Defendant Undavia does not state any facts which would support this
conclusion. Because Defendant Undavia does not offer any facts to support these conclusions,
the statements are also merely unsubstantiated opinions of the affiant. See Rizkallah v.
Conner, 952 S.W.2d 580, 586 (Tex. App. -Houston[lst Dist.] 1997, no writ); Harley-Davidson
Motor Co. v. Young, 720 S.W.2d 211, 216 (Tex. App. -Houston[14th Dist.] 1986, no writ).
Because those statements are not competent summary judgment evidence, paragraph 14 of the
Declaration of Khayati Undavia should be struck.
11. The Declaration of Khayati Undavia contains statements that are based on hearsay.
Fidelity & Cas. Co. v. Burts Bros., 744 S.W.2d 219,224 (Tex. App.-Houston[lst Dist.] 1987,
writ denied); see In re JA.M, 945 S.W.2d 320, 322 (Tex. App.-San Antonio 1997, no writ).
Paragraphs 11 and 14 contain statements about the contents of documents which are inadmissible
hearsay because Defendant Undavia has failed to prove the documents fall under the business
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
AR 000125
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGES
records exception of Tex. R. Evid. 803(6). Because those statements are not competent summary
judgment evidence, paragraphs 11 and 14 of the Declaration of Khayati Undavia should be
struck.
IV. SUMMARY JUDGMENT EVIDENCE
12. Plaintiffs provide all parties with the notice to use and attach the following summary
judgment evidence and incorporate all such evidence herein for all purposes in accordance with
Tex. R. Civ. P. 166a(d):
a. Affidavit of Brett Gamer, attached hereto as Exhibit 1;
b. Affidavit of Carmen Manzo, attached hereto as Exhibit 2;
c. Cancelled Checks, attached hereto as Exhibit 3;
d. Original Petition from Cause No. 1036848, Sterling Practice Management, LLC and
Nisal Corporation v. Providian Holdings, Inc., in the County Civil Court at Law No.
4, Harris County, Texas, attached hereto as Exhibit 4;
e. Mutual Release, attached hereto as Exhibit 5;
f. Assumed name filing for Allied Medical Centers, attached hereto as Exhibit 6; and
g. Public Information Report for Avant Medical group, P.A., attached hereto as Exhibit
7.
V. STANDARD OF REVIEW
13. Defendants have asserted a motion for summary judgment under Tex. R. Civ. P. 166a.
Under Tex. R. Civ. P. 166a, a summary judgment is only proper for a defendant if its summary
judgment proof establishes, as a matter of law, there is no genuine issue of material fact
concerning one or more of the essential elements of the plaintiff s cause of action. See Goldberg
v. United States Shoe Corp., 775 S.W.2d 751, 752 (Tex. App.-Houston [1 st Dist.] 1989, writ
denied). A defendant is entitled to summary judgment on a plaintiffs cause of action only if the
defendant can disprove at least one element of the cause of action as a matter of law. Sw. Elec.
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
ARPAGE
000126
6
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see Tello v. Bank One, NA., 218 S.W.3d
109, 113 (Tex. App.-Houston [14th Dist.] 2007, no pet.). In reviewing the granting of a motion
for summary judgment, the court should consider that all proof which is favorable to the non-
movant is true. SeeMMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986); see also Goldberg, 775
S.W.2d at 752.
VI. SUMMARY OF THE ARGUMENT
14. Defendants are not entitled to summary judgment for the following reasons:
a. The Release cited by Defendants does not concern the subject matter or claims
asserted in this lawsuit and therefore does not serve to bar Plaintiffs' claims (see pgs.
8-10);
b. The parties to the Release are not the same as the parties to this action, and
Defendants' "agency" theory lacks legal basis and factual support (see pgs. 11-16);
c. As the claims and parties to this lawsuit are different than in the previous lawsuit, the
doctrine of res judicata does not apply and does not bar Plaintiffs' claims (see pgs.
16-17);
d. Plaintiffs have pled a viable cause of action for conversion (see pg. 18);
e. Plaintiffs' claims are not barred by the applicable statutes of limitations or,
alternatively, Plaintiffs' inability to discover the Defendants' wrongful actions tolls
any applicable statute of limitations and because Defendants' fraudulent actions
concealed the wrongful actions from the Plaintiffs (see pgs. 18-20);
f. Defendants are not entitled to an award of attorney's fees (see pgs. 20-21).
15. For the above reasons, the Court must deny Defendants' Motion for Summary Judgment.
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
AR 000127
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE 7
VII. ARGUMENTS & AUTHORITIES
A. THE PLAINTIFFS' CLAIMS ARE NOT WITHIN
THE SUBJECT MATTER OF THE RELEASE
16. Because the scope of the claims covered by the Release is a threshold issue-i.e. if the
claims in the present case were not subject to the Release then the identity of the parties is
irrelevant-Plaintiffs address this issue first.
i. Texas law requires narrow construction of the Release.
17. "In order to effectively release a claim in Texas, the releasing instrument must 'mention'
the claim to be released. Even if the claims exist when the release is executed, any claims not
clearly within the subject matter of the release are not discharged." Victoria Bank & Trust
Co. v. Brady, 811 S.W.2d 931 (Tex. 1991) (emphasis added); see also Keck, Mahin & Cate v.
Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 697-98 (Tex. 2000); Baty v.
ProTech Ins. Agency, 63 S.W.3d 841, 850 n.7 (Tex. App.-Houston [14th Dist.] 2001, pet.
denied). Further, the Texas Supreme Court has explicitly stated that "general categorical
release clauses are narrowly construed." Brady, 811 S.W.2d at 938; Duncan v. Cessna
Aircraft Co., 665 S.W.2d 414,422 (Tex. 1984).
ii. The Release does not mention Plaintiffs' claims.
18. The Release which Defendants seek protection under reads, in relevant part:
WHEREAS, S'rnRLINO and NfSAL ff1ed IImt agltinllf. PROVIOlAN, No, 1036848,
CQUl'l.ty Civil CQUrt,.t Lftw No.4. HIn'iIJ County. 'l~ lind
WHEUM. tbt partlt$ dNire to eompromillO. Jfttk! And provide for the full and final
termluatiou of all of the !lAid eJalm4. deman4s. CA\*S 01 aet10n and di.putoI between (hem .risiui
out of or rolatod to Illwh claims wmfolh either Pllrty IllII)' Ilt'W have or lmve bad qainlJt oaob other, III
without admittinl any of the aUeptionll set forth;
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
ARPAGES
000128
19. The Release clearly states that its subject matter is the Prior Lawsuit, and that the parties
to the Release intended to discharge "said claims"-the claims asserted in the Prior Lawsuit,
which pertained only to the security deposit under the commercial lease. See Exhibit 5. This
unquestionably shows that when the parties entered into the Release, they were contemplating
discharge of the claims asserted in the Prior Lawsuit. The Release has no mention of tort claims,
conversion, fraud, or any of the other claims asserted in the present lawsuit. See Exhibit 5. The
Release, therefore, does not "mention" the claims in the present lawsuit, and therefore the
Release did not discharge the Plaintiffs' claims.
20. The Texas Supreme Court has held that releases are to be construes in light of the facts
and circumstances surrounding the release. Brady, 811 S.W.2d at 939. The Prior Lawsuit did
not depend on the same set of facts as the present lawsuit, which was an action solely for the
return of a security deposit. Narrowly construing the Release, as Texas law requires, demands
that the claims in the present lawsuit not be held within the scope of the Release.
iii. Defendants have failed to meet their burden on summary judgment.
21. Defendants, for their part, claim that the Release "specifically mentions each claim in this
lawsuit." Negation of this claim requires no more than a quick look at any dictionary.
"Specific" denotes something that is "precise; definite; [or] explicit." WEBSTER'S NEW WORLD
COLLEGE DICTIONARY, 4TH ED. 1376 (2001). Again, the release makes no reference to any claim
based on tort, fraud, conversion, theft, breach of fiduciary duty, or any other claim contained in
Plaintiffs' live pleading. See Exhibit 5. The pleadings in the Prior Lawsuit, which gave rise to
the Release, do not contain any mention or reference to any of the factual or legal disputes which
for the basis of the present lawsuit. See Exhibit 4. Even the case law quoted by the Defendants
themselves states that for a claim to be discharged it must be mentioned, and that mentioning
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
9
AR 000129
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE
requires "that the claim being released come within the express contemplation of the release
provision when viewed in context of the contract in which the release provision is
contained." Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 254 (5 th Cir. 2000) (emphasis
added); Mem 'I Med. Ctr. Of E. Tex. v. Keszler, 943 S.W.2d 433,435 (Tex. 1997).
22. Defendants further attempt to support their argument by claiming that the commercial
leases form the basis of all of the claims in the present lawsuit. This assertion seems to be based
on nothing more than the fact that leases existed. None of the Defendants to this action were
signatories to the lease. Additionally, and most importantly, none of Plaintiffs' claims require
proof of the existence of a lease contract, of a landlord-tenant relationship between the parties, of
a breach of the terms of any lease, or any other fact germane to the claims in the Prior Lawsuit.
The subject matter of the present lawsuit and the Prior Lawsuit are wholly detached from one
another. Plaintiffs' claims would require the same pleading and proof whether or not a landlord-
tenant relationship existed. Because the Plaintiffs' claims in the present lawsuit do not concern
the same subject matter as the Prior lawsuit, they are not encompassed by the Release and
summary judgment must be denied.
iv. Defendants have failed to meet their burden for summary judgment.
23. Defendants' assertions that the parties "no doubt contemplated the claims in the present
lawsuit" is not supported either by a plain reading of the Release or any evidence presented in
Defendants' Motion. Because the Release does not mention any of the claims in the present
lawsuit, and because the Court must narrowly construe the Release, the Court must find that the
Release is not binding on any of the parties with respect to the present lawsuit and summary
judgment must be denied.
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
AR 000130
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE 10
B. PLAINTIFFS WHO ARE NOT SIGNATORIES
TO THE RELEASE ARE NOT BOUND BY IT
24. Defendants' arguments as to why all parties to the present action are included in the
release are somewhat convoluted. It seems, however, that the gist of the argument is as follows:
1) the Release includes a provision mutually discharging agents of the signatories; 2) various
agency relationships exist between the parties; and therefore 3) all Plaintiffs have released all
Defendants with respect to all claims in this lawsuit. Of course, as shown above, the claims in
this lawsuit are not within the scope of the Release, so the question of what parties are bound by
the Release does is effectively meaningless. However, even if this were not the case Defendants
have failed to show as a matter of law that the parties to this action are all bound by the Release.
25. The only party to this action that was also a party to the Release is Nisal Corp. d/b/a
Qua1care Rehabilitation. See Exhibit 5. However, because the claims in this action are not
within the scope of the Release, and because the Defendants are not protected by the Release,
Nisal is a proper party to this lawsuit and is not barred from asserting its claims. Even if any of
Nisal's claims were within the scope of the Release, however, Defendants' wrongful
concealment of material facts fraudulently induced Nisal into signing the Release. Defendants'
only legal theories as to why the other parties to this action should be bound are based on
agency, and based on these theories Defendants' Motion must fail.
i. Agents are not individually bound by the Release.
26. The first issue is to what extent agents of the signatories to the release are bound. The
general rule in Texas is that "signing a contract in a representative capacity does not bind the
agent personally to the contract." Elgohary v. Herrera, 405 S.W.3d 785, 790-91 (Tex. App.-
Houston[1 st Dist.] 2013); see RESTATEMENT (SECOND) OF AGENCY § 320 ("Unless otherwise
agreed, a person making or purporting to make a contract with another as agent for a disclosed
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
AR 000131
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGEtt
principal does not become a party to the contract. "). Assuming an agency relationship exists,
Plaintiffs would assert that agents of the signatories to the Release are only bound to its terms to
the extent that 1) the claims asserted are within the scope of the release and 2) the claims are the
signatory's claims asserted on behalf of the signatory. Defendants cite no authority to support
their implicit position that the signatories to the Release had the authority to settle claims
belonging to their alleged agents on their behalf. Undersigned counsel can find no authority in
Texas law to suggest that a principal may release an agent's independent claims without being
granted the authority to do so. Therefore, to the extent the claims in the present lawsuit 1) are
not within the scope of the Release, and 2) do not belong to the signatories of the Release, the
claims are not barred by the Release.
ii. Plaintiffs have not asserted claims against Defendants in their capacity as agents of
Providian.
27. Similarly, Defendants claim they are protected by the Release because they are agents of
Providian Holdings, LLC. However, the only claims against Defendants that could have
possibly been released are those against the Defendants in their capacity as agents for Providian.
Defendants seem to assert that by virtue of their supposed roles as agents for Providian, they
should be free from all liability for of their wrongful actions, whether or not those actions are
taken in their individual capacity or their capacity as an agent. In other words, under
Defendants' theory the Release encompasses all claims any agent of a signatory may have had
against any other agent of any other signatory, irrespective of whether the claims are connected
to their duties as agents or the subject matter of the Release. This is contrary to the general rule
in Texas that an agent is liable for his own torts. See, e.g., Williams v. Olivo, 912 S.W.2d 319
(Tex. App.-San Antonio 1995). Therefore, the Release cannot be said to offer protection to
agents of the signatories for wrongful acts performed outside of their capacity as an agent.
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
AR 000132
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE 12
iii. Defendants have failed to prove all parties are bound by the Release.
28. Even the case law cited by Defendants betrays their own argument. Defendants concede
that "unless a party is named in a release, he is not released." McMillen v. Klingensmith, 467
S.W.2d 193, 197 (Tex. 1971). Defendants further concede that "a tortfeasor can claim the
protection of a release if he is referred to with such descriptive particularity that his
connection with the tortious event is not in doubt." Winkler v. Kirkwood Atrium Office Park,
816 S.W.2d 111, 113-14 (Tex. App.-Houston[14 th Dist.] 1991, writ denied). In spite of this,
however, Defendants argue that the release applies to all parties to the present case, only one of
which is actually named in the Release. See Exhibit 5. Again, Defendant tries to claim that all
parties to the present lawsuit are "specifically named" in the Release, even though a plain
reading of the release shows that this is not the case. See Exhibit 5. Thus, the Defendants are not
"named with specific particularity," as is required before they can claim protection under the
Release. Further, the Release concerns claims entirely different than the claims in the present
lawsuit. See Exhibit2 4 & 5. For this reason, the Defendants fail the second prong of the test as
well---even if they have a connection to the conduct which formed the basis of the Prior Lawsuit,
this lawsuit alleges claims based on wholly different conduct. Similarly, Defendants cannot
claim protection under the Release based on their allegation that all of the parties are "intimately
connected" to the lease agreements (a legal standard for which Defendants offer no authority).
As previously shown, the existence of a landlord-tenant relationship is not a prerequisite to any
of Plaintiffs' claims in this lawsuit, and therefore not relevant to this analysis. For these reasons,
Defendants may not claim protection under the Release.
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
AR 000133
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE 13
iv. Defendants have failed to prove that all of the alleged agency relationships exist.
29. The second hurdle Defendants have to clear is proving that the agency relationships they
claim actually exist. Under Texas law, agency will not be presumed. Schultz v. Rural/Metro
Corp., 956 S.W.2d 757, 760 (Tex. App.-Houston [14th Dist.] 1997, no writ). An agent is one
authorized by another to transact some business for the principal; the relationship is a consensual
one between two parties, by which one party acts on behalf of the other, subject to the other's
control. Jamison v. Nat 'I Loan Investors, L.P., 4 S.W.3d 465, 468 (Tex. App.-Houston [1st
Dist.] 1999, pet. denied). Authorization to act and control of the action are the two essential
elements of agency. Gonzales v. Am. Title Co., 104 S.W.3d 588, 593 (Tex. App.-Houston [1st
Dist.] 2003, pet. denied). A question of agency is one of fact. See Jorgensen v. Stuart Place
Water Supply Corp., 676 S.W.2d 191, 194 (Tex. App.-Corpus Christi 1984, no writ).
Therefore, Defendants have the burden to show as a matter of law that the claimed relationships
exist. As will be shown, Defendants have failed to meet that burden.
30. With respect to the Plaintiffs, Defendants allege multiple, and sometimes conflicting,
agency relationships. Defendants allege that Dr. Gamer is an agent ofNisal, Avant, and Sterling.
Plaintiffs would remind the Court that, as previously shown, although an agent may bind the
principal, the reverse is not necessarily true, and Defendants have failed to show that this has
occurred as a matter of law in this case.
31. Next, Defendants allege that Avant is an agent of both Nisal and Sterling. Defendants
base this assertion on what can only be described as a staggering feat of mental gymnastics.
Defendants allege that Allied is a fictitious business name of Avant, Allied is also a fictitious
business name of Dr. Gamer, so therefore Avant is a fictitious business name of Both Allied and
Dr. Gamer, and is bound by the Release. Undersigned counsel is at a loss to understand how this
conclusion is reached. Avant Medical Group, P.A. is a professional organization organized
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
14
AR 000134
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE
under the laws of the state of Texas-a legal entity independent from the other parties to this
lawsuit. See Exhibit 7. It cannot be a fictitious business name of its own fictitious business
name. Dr. Garner owns the assumed name Allied Medical Centers, which he licenses to Avant
Medical Group, P.A. See Exhibits 1 & 6. Further, even if Both Dr. Garner and Avant have done
business under the name Allied Medical Centers, it does not follow that there is any kind of unity
between the two entities. Defendants further allege that Avant paid Sterling's rent, that Avant
procured an insurance policy for Avant. The offer no evidence for this other than a single check
from 2009 and insurance certificate from 2009 as the basis for this theory. Whether or not these
allegations are true, they do not address the two prongs of the agency test-whether Avant had
authority to act on behalf of Sterling, and whether Sterling had the right to control Avant's
actions. Gonzales, 104 S.W.3d at 593. Defendants do not cite any evidence to support their
claim that Avant is an agent of Nisal-the claim appears only in a section heading of their
Motion. In fact, Defendants also allege the opposite-that Sterling is the registered agent for
Avant. Therefore, Defendants have failed to prove that Avant was an agent for either Sterling or
Nisal.
iv. Whether Defendants are agents of Providian is not relevant.
32. Finally, the claim is made that Defendants Undavia and Minu RX, Ltd. are both agents of
Providian. So committed are the Defendants to this assertion that they admit that Providian is a
sham corporation and nothing more than the alter-ego of Minu RX, Ltd. However, Plaintiffs
cannot identify a reason why the existence of such a relationship is in any way relevant.
Plaintiffs have not sued Defendants for their actions as agents of Providian. Similarly,
Defendants have not pled or otherwise claimed that the wrongful acts at issue in this case were
performed in the course of their duties as an agent for Providian. The checks were taken by
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
AR 000135
PAGE 15
Defendant Undavia, at Minu's place of business, and deposited into accounts owned by Minu.
See Exhibit 3. Therefore, even if Defendants are agents for Providian, they are not protected by
the Release because the claims in this lawsuit are based on Defendants' independent conduct and
not on the subject matter of the Release.
33. For the above reasons, Defendants have failed to show as a matter of law that all parties
to this lawsuit are bound by the terms of the Release, and have failed to show that the claims in
this lawsuit were discharged by the Release. Therefore, summary judgment must be denied.
C. PLAINTIFFS' CLAIMS ARE NOT BARRED BY RES JUDICATA
i. The present lawsuit does not include the same issues as the Prior Lawsuit.
34. Defendants also ask the Court to grant summary judgment on the basis that the Plaintiffs'
claims are barred by the doctrine of res judicata. The Texas Supreme Court has adopted a
"transactional" approach to res judicata, under which a subsequent suit will be barred if it arises
out of the same subject matter of a previous suit and which through the exercise of diligence,
could have been litigated in a prior suit. Barr v. Resolution trust Corp., 837 S.W.2d 627 (Tex.
1992). In Barr, the Supreme Court stated that this transactional test "is substantially similar to
the [transaction or occurrence] rule of compulsory counterclaims." Id The main concern in the
transactional test is whether the cases share the same nucleus of operative facts. Samuel v.
Federal Home Loan Mortg. Corp., 434 SW 3d 230 (Tex. App.-Houston[l st Dist.] 2014). To
determine whether a prior suit and one under review involve the same basic subject matter, we
focus on the factual basis of the complaint. Espeche v. Ritzell, 123 SW 3d 657 (Tex. App.-
Houston[14 th Dist.] 2003). In determining whether the facts arose out of a single transaction,
courts consider whether the facts are related in time, space, origin, or motivation, and whether
they form a convenient unit for trial. Federal Home Loan Mortg. Corp., 434 SW 3d at 230.
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
AR 000136
PAGE 16
That test is not satisfied here. The prior lawsuit concerned itself with one set of facts-the
termination of the lease agreements and whether security deposits were improperly withheld.
None of the facts necessary to prove the claims in the Prior Lawsuit are necessary to prove the
claims in the present lawsuit. See Exhibit 4. The wrongful acts forming the basis of this suit
occurred on multiple occasions, as opposed to the single event (refusal to return a security
deposit) that formed the basis of the Prior lawsuit. See Exhibit 4. Therefore the two lawsuits do
not share the same operative facts and res judicata does not apply. For this reason, summary
judgment must be denied.
ii. The present lawsuit does not involve the same parties as the Prior Lawsuit.
35. The doctrine of res judicata also requires identity between the parties of the prior and
subsequent lawsuits. Espeche v. Ritzel!, 123 SW 3d at 665. A party appearing in an action in
one capacity, individual or representative, is not thereby bound by or entitled to the benefits of
the rules of res judicata in a subsequent action in which he appears in another capacity. Lesikar v.
Moon, No. 14-05-01246-CV, 2014 Tex. App. LEXIS 10041 (Tex. App.-Houston[lst Dist.]
Sept. 4, 2014). The only party to this action from the Prior lawsuit is Nisal Corp. All of the
other parties, including the Defendants, were not named in the Prior Lawsuit. Further, Plaintiffs
have not pleaded any claims which could have been brought against Providian in the Prior
Lawsuit, and the Defendants cannot claim that the legal rights being asserted are the same
between the two lawsuits. This lawsuit is clearly a different set of claims brought against a
different set of Defendants, and res judicata cannot apply. Therefore, Defendants' Motion must
be denied.
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
AR 000137
PAGE 17
D. PLAINTIFFS ARE ENTITLED TO BRING A CLAIM FOR CONVERSION
36. In the present case, various persons and entities wrote checks payable to Plaintiffs, sent
the checks by mail to Plaintiffs, and the checks were actually delivered to Plaintiffs' mailing
address. See Exhibit 1. Because the Defendants obtained the checks at the same location where
they were mailed to Plaintiffs, the checks were stolen by the Defendants only after they had been
delivered to Plaintiffs' business address by the US Postal Service. See Exhibit 3. Therefore,
Plaintiffs received delivery of the checks and had, at the very least, constructive possession of
the checks and were holders of the checks. Under Texas law, even constructive possession is
sufficient to allow the Plaintiffs to prosecute their claim for conversion. See McAllen Hasp. v.
State Farm Mut. Ins. Co., 433 S.W.2d 535 (Tex. 2014). Therefore, Plaintiffs are entitled to bring
a claim for conversion of the checks.
37. Alternatively, because Plaintiffs were not allowed a separate mailbox, Defendant
Undavia agreed to accept the mail and deliver it to the Plaintiffs. See Exhibit 1. This is not, as
Defendant claims, a modification of the commercial lease, which is silent on the issue of mail
collection. This was a separate agreement with Undavia individually and as a representative of
Minu RX, which occupied the lower level of the building and received delivery of the mail on
behalf of all of the occupants. See Exhibit 1. For this reason, Defendant Undavia acted as an
agent of the Plaintiffs for the purpose of accepting the mail on their behalf. Thus, Defendants
have failed to show that they are entitled to summary judgment as a matter of law, and a fact
issue remains to be decided by the jury.
E. PLAINTIFFS' CLAIMS ARE NOT BARRED
BY THE STATUTE OF LIMITATIONS
38. Under Texas law, an action for conversion does not accrue, and the statute does not begin
to run, until 1) the return of the property has been demanded and refused, or 2) facts supporting
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
AR 000138
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE 18
the cause of action are discovered. E.g. Burns v. Rochon, 190 S.W. 3d 263, 271 (Tex. App.-
Houston[1 st Dist.] 2006, no pet.). This is because, as shown above, Defendants' possession was
initially lawful; Defendants were charged with collecting the mail and delivering it to the
Plaintiffs. Because Plaintiffs did not discover the facts supporting their cause of action until
shortly before suit was filed, the statute did not begin to run until that time. Thus, summary
judgment with respect to Plaintiffs' conversion claim must be denied.
39. Additionally, Plaintiffs frequently provide medical services to personal injury victims and
often have agreements to suspend collection efforts for extended periods of time while the
patients attempt to obtain compensation for the third parties responsible for their injuries.
Plaintiffs are diligent in requesting status updates from their patients and patients' attorneys,
however many such requests go unanswered. Therefore, despite their diligence Plaintiffs were
not able to discover Defendants' theft until shortly before suit was filed in this case. Under the
discovery rule, a plaintiff s cause of action is deferred until it knows, or by exercise of diligence
should know, that of facts giving rise to the claim. See Barker v. Eckman, 213 S.W.3d 306, 311-
312 (Tex. 2006). Because Plaintiff exercised diligence and was not able to discover
Defendants' wrongful acts until recently, the statute of limitations on Plaintiffs' claims is tolled
and summary judgment should be denied.
40. Finally, the accrual of Plaintiffs' causes of action is deferred by the fact that Defendants
fraudulently concealed their theft. Fraudulent concealment occurs when 1) the defendant has
knowledge of the wrong, 2) the defendant conceals the wrong through misrepresentation or
silence when there is a duty to speak, 3) the defendant has a fixed purpose to conceal the wrong,
and 4) the plaintiff reasonably relied on the misrepresentation or silence. See Shah v. Moss, 67
S.W.3d 836, 841 (Tex. 2001). In the present case there is an obvious fact issue on all four of
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
PAGE 19
AR 000139
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
these elements. The evidence clearly shows that Defendants received, stole, and deposited the
checks into Minu RX bank accounts. Therefore Defendants had knowledge of the wrongful acts
and their purpose was to conceal the theft. Defendants had a duty to speak based on their
obligation to deliver all of Plaintiffs' mail to the Plaintiffs, yet the Defendants remained silent.
Lastly, Plaintiffs relied on the silence because they were still receiving some checks and because
their business practice often includes delayed payment for services. Thus, the statute of
limitations is tolled by Defendants fraudulent concealment and summary judgment must be
denied.
F. DEFENDANTS ARE NOT ENTITLED TO ATTORNEY'S FEES
41. Defendants have requested attorney's fees under Tex. Civ. Prac. & Rem. Code §§ 37.009
& 38.001. First, Texas law is clear that Chapter 38 does not provide for the recovery of
attorney's fees by a defendant who only defends against a plaintiffs contract claim and presents
no contract claim of its own. American Airlines, Inc. v. Swest, Inc., 707 S.W.2d 545, 547 (Tex.
1986) (holding defendant could not recover attorney's fees under predecessor to section 38.001
when defendant presented no contract claim of its own); Garcia v. National Eligibility Exp., Inc.,
4 S.W.3d 887, 889 (Tex. App.-Houston [1st Dist.] 1999, no pet.). ; Energen res. MAQ, Inc. v.
Dalbosco, 23 S.W.3d 551, 558 (Tex. App.-Houston[lst Dist.] 2000). Therefore Defendants are
not entitled to attorney's fees under Chapter 38.
42. Defendants are also not entitled to attorney's fees on their Chapter 37 claim. First and
foremost, Defendants have not sought affirmative summary judgment on their declaratory claim.
Further, because they have not pleaded a valid declaratory judgment claim. Release is an
affirmative defense under the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 94; Henry v.
Mason 333 S.W.2d 825 (Tex. App.-Houston[l st Dist.] 2010). This amounts simply to a defense
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
AR 000140
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE 20
to Plaintiffs' allegations, and are therefore already properly before the Court. When a
counterclaim for declaratory relief presents issues that are already before the court as part of the
plaintiffs case, the declaratory judgment claim is not properly brought and the plaintiff has an
absolute right to a nonsuit. See BHP Petrol. Co., 800 S.W.2d at 838; General Land Office v. Oxy
US.A., Inc., 789 S.W.2d 569, 570 (Tex.l990)(quoting Weaver v. Jock, 717 S.W.2d 654, 657
(Tex. App.-Waco 1986, writ refd n.r.e.); Newman Oil Co. v. Alkek,614 S.W.2d 653, 655
(Tex.App.-Corpus Christi 1981, writ refd n.r.e.). Because Defendant's claim for declaratory
relief merely resists Plaintiffs' claims, Plaintiffs have an absolute right to nonsuit of this claim
and Defendants are not entitled to an award of attorney's fees. For these reasons, the Court
should deny Defendants' request for attorneys' fees.
VIII. CONCLUSION & PRAYER
Defendants have not and cannot show that they are entitled to judgment as a matter of
law. Further, Plaintiffs have easily shown that there is a genuine issue of material fact as to all of
Plaintiffs' claims and Defendants' affirmative defenses. For these reasons, Plaintiffs respectfully
request that the Court deny Defendants' Motion for Summary Judgment, and grant Plaintiffs
such other and further relief as the Court deems appropriate.
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
AR 000141
PAGE 21
Respectfully submitted,
./
Matias J. Adrogue
Attorney at Law
State BarNo. 24012192
Robert Stephan Kaase
State Bar No. 24083287
1629 West Alabama St.
Houston, Texas 77006
713-425-7270 Telephone
713-425-7271 Facsimile
service@mjalawyer.com
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has been serv~ to all
counsel of record in accordance with the Texas Rules of Civil Procedure, on this the ll.-~ay of
February, 2015.
PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
22
AR 000142
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE
CAUSE NO. 2014-22186
AVANT MEDICAL GROUP, P.A. d/b/a § IN THE DISTRICT COURT OF
ALLIED MEDICAL CENTERS and §
INTERVENTIONAL SPINE §
ASSOCIATES, §
§
Plaintiffs § HARRIS COUNTY, TEXAS
§
VS. §
§
KHYATI MOHAMED UNDAVIA and §
MINU RX, LTD. § 152nd JUDICIAL DISTRICT
AFFIDAVIT OF BRETT L. GARNER
BEFORE ME, the undersigned authority, personally appeared Brett L. Gamer, known to me
to be the person whose name is subscribed herein, and acknowledged to me that:
1. "My name is Brett L. Gamer. I am over 18 years of age, of sound mind, and capable of
making this affidavit. I have never been convicted of a felony or crime involving moral
turpitude. The facts stated in this affidavit are within my personal knowledge and are true and
correct.
2. "I am a chiropractor licensed to practice in the State of Texas since 1997. I primarily
practice as a chiropractor with Nisal Corp. d/b/a Qualcare Rehabilitation, a Texas Corporation
which does business as Qualcare Rehabilitation. In 2006, I filed an assumed business name with
the Harris County Clerk's office for Allied Medical Centers. The Allied Medical Centers name
is licensed by me to Avant Medical Group, P.A. Avant Medical Group, P.A., is a Texas
professional association which does business as Allied Medical Centers and Interventional Spine
Associates. I am also one of the owners of Sterling Practice Management, LLC, a management
service organization which manages the non-medical business dealings of Avant Medical Group,
P.A. Avant Medical Group, P.A., d/b/a Allied Medical Centers and d/b/a Interventional Spine
Associates provides medical doctor services and is separate from Nisal Corp. d/b/a Qualcare
Rehabilitation, which provides chiropractic and rehabilitation services.
EXHI~IT
1 .1-1
AR 000143
3. "Avant Medical Group, P.A. was not a party to any lease agreement with Providian
Holdings, LLC, was not a party to Cause No. 1036848, Sterling Practice Management, LLC and
Nisal Corporation v. Providian Holdings, Inc., in the County Civil Court at Law No.4, Harris
County, Texas, and was not involved in the negotiation or execution of any settlement agreement
in that case.
4. "From 2009 through March of2013, Nisal Corp. maintained its primary business location
III a building owned by Providian Holdings, LLC and located at 2918 San Jacinto Street,
Houston, Texas 77004 ("the Building"). Nisal Corp. occupied the upper level of the Building
and Avant Medical Group, P.A. regularly provided medical services at the location. Sterling
Practice Management, LLC performed the billing and collection functions for and Avant
Medical Group, P.A. from its location at the Building. Memorial Compounding Pharmacy
occupied the lower level. Khyati Undavia was the person with whom I interacted for matters
concerning the space leased in the Building.
5. While the Nisal Corp. and Avant Medical Group, P.A. occupied the Building, Ms.
Undavia informed me that Nisal Corp. and Avant Medical Group, P.A. were not permitted to
have a separate mailbox in the Building. Instead, Ms. Undavia accepted all of the mail for all
occupants of the building, separate Nisal Corp. and Avant Medical Group, P.A.'s mail from mail
addressed to others in the Building, and deliver Nisal Corp. and Avant Medical Group, P .A. 's
mail to the upper level. Nisal Corp. and Avant Medical Group, P.A. permitted Ms. Undavia to
perform this function and allowed Ms. Undavia to receive and deliver the mail. Ms. Undavia
expressly agreed to properly separate and deliver all ofthe mail.
6. "As part of my practice, I frequently treat patients who have been injured in accidents and
who do not have health insurance. When treating these types of patients, I will often defer
collection efforts until the patient is able to recover payment from the person or entity
responsible for their injuries. For this reason, my practice will often receive payment from the
patient or the patient's attorney several months or years after the patient has completed treatment
and been discharged. When treating these types of patients, I send regular requests for status of
payment to the patient or the patient's attorney.
2
AR 000144
7. "I was first infonned that checks addressed and made payable to Avant Medical Group,
P.A. d/b/a Allied Medical Centers and d/b/a 1nterventional Spine Associates had been mailed to
the Building and gone missing in July 2012 when I requested status from patients' attorneys and
learned that payment had been issued but not received. The copies of checks attached as Exhibit
3 to Plaintiffs' Response to Defendants' Motion for Summary Judgment were received from the
attorneys for patients on Nisal Corp. and Avant Medical Group, P.A."
Further affiant sayeth not.
Brett L. Gamer
SUBSCRIBED AND SWORN to before me on this the 13th day of February, 2015, to
certify which witness my hand and seal of office. ~
/ ' _\/
~M~ - *c~oLCm~mt- UiS"-S~lO"'nl- -e- 'X-:-l-~-lsr:~o~ ~ ~ ~ ~ ~L~ ~ J
,~~~"::t:".. JENNIFER RODRIGUEZ
ll~'" "'~t>\ Notary Public. State of Texas
I !
'~'.
J.J My Commission2016 Expires
";.~~''''<~''
• .. 11
June 15, \".
"" ....'v-
3
AR 000145
CAUSE NO. 2014-22186
AVANT MEDICAL GROUP, P.A. d/b/a § IN THE DISTRICT COURT OF
ALLIED MEDICAL CENTERS and §
INTERVENTIONAL SPINE §
ASSOCIATES, §
§
Plaintiffs § HARRIS COUNTY, TEXAS
§
VS. §
§
KHYATI MOHAMED UNDA VIA and §
MINU RX, LTD. § 152nd JUDICIAL DISTRICT
AFFIDAVIT OF CARMEN MANZO
BEFORE ME, the undersigned authority, personally appeared Carmen Manzo, known to me
to be the person whose name is subscribed herein, and acknowledged to me that:
1. "My name is Carmen Manzo. I am over 18 years of age, of sound mind, and capable of
making this affidavit. I have never been convicted of a felony or crime involving moral
turpitude. The facts stated in this affidavit are within my personal knowledge and are true and
correct.
2. I am the person in charge of maintaining billing and collection records for Sterling
Practice Management, LLC. As part of my duties with Sterling Practice Management, LLC, I
am the person in charge of maintaining billing and collection records for Avant Medical Group,
P.A. d/b/a Allied Medical Centers and d/b/a Interventional Spine Associates. Exhibit 3 to
Plaintiffs' Response to Defendants' Motion for Summary Judgment are checks payable to Avant
Medical Group, P.A. or to its assumed business names Allied Medical Centers and Interventional
Spine Associates. Checks received from patients and their attorneys are incorporated into the
records of Avant Medical Group, P.A. and kept in the course of Avant Medical Group, P.A.'s
business, Avant Medical Group, P.A. typically relies upon the accuracy of the contents of such
documents, and the documents were placed into Avant Medical Group, P.A.' s business records
at or near the time or reasonably soon after the time that they were received. The checks attached
as Exhibit 3 to Plaintiffs' Response to Defendants' Motion for Summary Judgment are the
originals or exact duplicates of the originals."
PLAINTIFF'S
EXHIBIT
I 2,
AR 000146
Further affiant sayeth not.
SUBSCRIBED AND SWORN to before me on this the 13th day of February, 2015, to
certify which witness my hand and seal of office.
~,'111",~
.l'''~~'!.:
!:':~'Io'lo JENNIFER RODRIGUEZ
'''':' Y'i Notary Public. State of Texas
\~. {~i My Commission Expires
~'~;:'I~~"~ June 15. 2016
AR 000147
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4505 CAROLINE
Address:
4505 CAROLINE
HOUSTON, TX 78701
The image shown below represents an official copy ofthe original document as processed by our institution
THE au.( LAW fiRM, PLLC
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4/812014
Page 1 ofl
-- CADENCE
BANK
04/08114
Account:
Name: THE DUNK LAW FIRM PLLC
IOLTA
4505 CAROLINE
Address:
4505 CAROLINE
HOUSTON, TX 78701
The image shown below represents an official copy of the original document as processed by our institution
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1ME DUNK LAW R .... PL.l.e
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HOU8TOH, 1X 1'7OOt
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PAYlOl11E_ _
ORDER ()F_._
Inb3_IVe_ntlona_I_SP_ine_A_ISSOO_._ _ _ _ _ _ _ _- -_ _ _ _ -,J $ "5,816.89
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4/8/2014
BRIAN LONCAR, P.C. 914006
ATTORNEY AT LAW
P.I. TRUST ACCOUNT
424 SOUTH CESAR CHAVEZ BOULEVARD 8/30/2011
DALLAS, TEXAS 75201 1&
(214) 747-0422
PAY TO THE Allied Medical Center
$
**783 33
. I
ORDER OF
Seven Hundred Eighty~Three and 33/100 .... ****-..···. ····_-_·_-***-_·**·_-******·....·· DOLLARS IJ
Allied Medical Center
tt~DAVS
2918 San Jacinto t?J
Ste#200
Houston, Tx 77004
MEMO
AUTHORIZED SIGNATURE
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CHECKAMT: 783.33
TRANSCODE:36L_
ACCOUNTNUM:~
TRROUTNUM: 11400009
SERIALNUM:914006
ITEMSEQNUM:91420607
CAPTURDATE:09/21/2011
ITEMID1 :808fe1 c2
SETID:00000000071 04041 d4ceOOOO
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ACCOUNTNUM
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SERIALNUM:914006
ITEMSEQNUM:91420607
CAPTU RDATE:09/21/2011
ITEMID1 :808fe1 c2
SETID:0000000007104041d4ceOOOO
AR 000152
~
BRIAN LONCAR. P.C. 913801
ATTORNEY AT LAW
P.1. TRUST ACCOUNT
424 SOUTH CESAR CHAVEZ BOULEVARD 8130/2011
DALLAS, TEXAS 75201 1Ii
(214) 747-0422
PAY TO THE
ORDER or Allied Medical Center $ -1,781.73 I
J
One Thousand Seven Hundred Ei9ilty-one and 731100--..........· _...__ ....••...•••....•••.....• .....•............••...· -
DOLLARS I
Allied Medical Center
2070 FM 1960 W tn
Houston, Tx 77090
I).OOMYS
MEMO . . . - - - - .
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CHECKAMT: 1781.730Rii f FEAiUAES MiGRVPFUNi IOraBO' iQNi &JROeRSWlOREUMI lEAN NiCHCPFHiNi SklNAiUAEUN2 MEED • "ROUGh NOMSEAii4Q WS$riG FEAiURE.tcOiCAiESACOP,
TRANSCODE:36.4. . - ....-- - - -
ACCOUNTNUM
TRROUTNUM: 11400009
SERIALNUM:913801
ITEMSEQNUM:91420610
CAPTURDATE:09/21/2011
ITEMID1 :808fe2af
SETID:00000000071 04041 d4ceOOOO
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TRANSCODE:364._ -- .-~
ACCOUNTNUM
TRROUTNUM: 11400009
SERIALNUM:913801
ITEMSEQNUM:91420610
CAPTURDATE:09/21/2011
ITEMID1 :808fe2af
SETID:0000000007104041d4ceOOOO
ITEMVI EWID:808fe2b 1
AR 000153
BRIAN LONCAR, P.C.
AlTORNEY AT LAW
P.1. TRUST ACCOUNT
424 SOUTH CESAR CHAVEZ BOULEVARD
813012011
DALLAS, TEXAS 75201
(214) 741-0422
1I '
PAY TO THE
ORDER OF Allied Medical Center $ "'821.75
I !
Eight Hundred Twenty-One and 151100.....······*****1'*****''**_.................._**-**-******* ....**_·............**..*
DOLLARS
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Allied Medical Center
2918 San Jacinto IS}
8te200
Houston, Tx 77004
MEMO
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ITEMSEQNUM:91420609
CAPTURDATE:09/21/2011
ITEMID1 :808fe2ac
SETID:00000000071 04041 d4ceOOOO
ITEMVIEWID:808fe2ae
AR 000155
".036848 e.C.C.l. # 4
o
NO. _______________
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[)
!:-) STERLING PRACTICE MANAGEMENT, LLC IN COUNTY COURT AT LAW
oc; NISAL CORPORATION
u Plaintiff
vs. NO. _________________
PROVIDIAN HOLDINGS, INC.
Defendant HAJUUSCOUNTY,TEXAS
PLAINTIFFS' ORIGINAL PETITION
TO THE HONORABLE JUDGE:
Sterling Practice Management, LLC (hereinafter Sterling) and Nisal Corporation
(hereinafter Nisal) appear and file Plaintiffs' Original Petition against Defendant Providian
Holdings, Inc., and in support would show the court the following:
1. This is a Level One Discovery Control Plan case.
2. Plaintiffs are entities doing business in the State of Texas. Defendant Providian
Holdings, Inc. is a corporation doing business in the State of Texas and can be served
through its agent for service of process, Khyati Undavia, 2918 San Jacinto, Houston,
Texas 77004. Plaintiffs seek damages within the jurisdictional limits of the Court. The
Court has subject matter jurisdiction and venue is proper.
FACTUAL BACKGROUND
3. Sterling entered into a lease agreement with Defendant. Pursuant to the terms of the
lease, Sterling made a security deposit in the amount of $2000.00. Upon termination of
the lease and sixty days after Sterling provided a forwarding address, Defendant has
refused to refund the security deposit to Sterling. Defendant has acted in bad faith.
Defendant is liable to Sterling for the full security deposit of $2000.00, plus a statutory
~ PLAINTIFF'S
~ EXHIBIT
~
~
4:
AR 000156
..
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penalty of $100.00, plus an additional statutory penalty of $4000.00, plus reasonable
':l
'1. ...;
()
D attorney's fees. Defendant has acted in bad faith by not providing a written description
0
E and itemized list of damages and charges, if any, and thus has forfeited its right to
I
"? withhold a portion of the security deposit for such damages and charges.
":{
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4. Nisal entered into a lease agreement with Defendant. Pursuant to the terms of the lease,
()
C) Sterling made a security deposit in the amount of $3600.00. Upon termination of the
if
4 lease and sixty days after Nisal provided a forwarding address, Defendant has refused to
refund the security deposit to Nisal. Defendant has acted in bad faith. Defendant is
liable to Sterling for the full security deposit of $3600.00, plus a statutory penalty of
$100.00, plus an additional statutory penalty of $7200.00, plus reasonable attorney's
fees. Defendant has acted in bad faith by not providing a written description and
itemized list of damages and charges, if any, and thus has forfeited its right to withhold
a portion of the security deposit for such damages and charges.
WHEREFORE PREMISES CONSIDERED, Plaintiffs pray that Defendant Providian
Holdings, Inc. be cited to appear and that judgment be taken against it for all damages
suffered by Sterling in the amount of $6100.00 (consisting of the security deposit due and
owing and all statutory penalties), plus reasonable attorney's fees, and that judgment be
taken against it for all damages suffered by Nisal in the amount of $10,900.00 (consisting of
the security deposit due and owing and all statutory penalties), plus reasonable attorney's
fees, plus all costs of court, plus and any all further relief Plaintiffs may be entitled to.
AR 000157
,
Respectfully submitted,
PHILLIP BRANTLEY AND ASSOC., P.C.
o
6 D'Jk~~
~iJilip~raIltle~O
SBN 02899727
Arena Tower II
7324 Southwest Freeway, Suite 1020
o Houston, Texas 77074
o (713) 270-4053 phone
4 (713) 270-0682 facsimile
ATTORNEYFORP~ITP
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AR 000158
Law Office of
Phillip Brantley and Associates, P.C.
Arena Tower II
7324 Southwest Freeway, Suite 1020 Tel (713) 270-4053
Houston, Texas 77074 Fax(713)270~2
phiUipbrantley.com
September 3, 2013
Stan Stanart
o County Clerk
o Civil Courts Building
4 201 Caroline, Suite 300
~
'-' Houston, Texas 77002
RE: Sterling Practice Management, LLC, et al. vs. Providian Holdings, Inc.
Dear Mr. Stanart:
Enclosed are an original and two copies of Plaintiff's Original Petition. Please return one
copy to me in the self-addressed stamped envelope and stamp the other copy and return it
to me with the citation attached. Also enclosed is my check for $221.00.
htiUprantley
AR 000159
:.- ~) L-d C> l:.~ ., 1..3'1 c..w ~\.1 ---""; ~ , en () iIi C) !~:; =.,-: ::':,; f\1
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PHIlip Erantley ami Associates, PC
Arera Tower II
7324 Sout!lwest Freeway, Suite 1020
. tl~POS~- .
Houston, Texas 77074
. fi1{t'/ di ,-
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Stan S~anarl
.. -----~
County Gerl{
Ci-, il Courtft£.';iiding
20~ Caroline, Suite 300
t Houston. TX 77002
i
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AR 000160
MUTUAL RELEASE
THE STA1E OF TEXAS
. COUNTY OF HARRIS
WHEREAS, certain disputes, claims and causes of action existed by and between
STERLING PRACTICE MANAGEMENT, LLC, its officers, directors, shareholders, partners,
successors, agents, assigns, employees, servants andattomeys (hereinafter STERLING) and
PROVIDIAN HOLDINGS, INC., its officers, directors, shareholders, partners, successors, agents,
assigns, heirs, employees, servants and attorneys (hereinafter PROVIDlAN), arising from a
commercial lease; and
WHEREAS, certain disputes, claims and causes of action existed by and between
NISAL CORPORATION, its officers, directors, shareholders, partners, successors, agents,
assigns, employees, servants and attorneys (hereinafter NISAL) and PROVIDIAN HOLDINGS,
INC., its officers, directors, shareholders, partners, successors, agents, assigns, heirs, employees,
servants and attomeys (hereinafter PROVIDIAN), arising from a commercial lease; and
WHEREAS, STERLING and NISAL filed suit against PROVIDIAN, No. 1036848,
County Civil Court at Law No.4, Harris County, Texas; and
WHEREAS, the parties desire to compromise, settle and provide for the full and final
termination of all of the said claims, demands. causes of action and disputes between them arising
out of or related to such claims which either party may now have or have had against each other. all
without admitting any of the allegations set forth;
NOW, THEREFORE, for and in consideration of a check written by PROVIDIAN to
STERLING AND NISAL and Phillip Brantley and Associates, PC in the amount of $7600.00, the
mutual releases contained herein, and other good and valuable consideration, the receipt and
~ PLAINTIFF'S
...I EXHIBIT
~ 5
EXHIBIT C
~ AR 000161
sufficiency ofwbich is hereby acknowledged, STERLING AND NISAL, their officers, directors,
shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys
hereby RELEASE, ACQUIT and FOREVER DISCHARGE PROVIDIAN, its officers,
directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and
attorneys from any and all liabilities. claims, demands, causes of action, judgments, liens,
liabilities or potential claims or causes of action which STERLING AND NISAL have ever had or
could have had, whether now known or unknown, which have arisen or may arise from the
beginning of time to the date of this release, including, without limitation;
NOW, THEREFORE, for and in consideration of the acceptance of the aforesaid check
written by PROVIDlAN to STERLING AND NISAL and Phillip Brantley and Associates, PC in
the amount of $7600.00, the mutual releases contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, PROVIDlAN, its
officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs
and attorneys hereby RELEASE, ACQUIT and FOREVER DISCHARGE STERLING AND
NISAL, their officers, directors, shareholders, successors, agents, assigns, employees, servants,
partners, heirs and attorneys from any and all liabilities, claims, demands, causes of action,
judgments, liens, liabilities or potential claims or causes of action which PROVIDAN has ever had
or could have had, whether now known or unknown, which have arisen or may arise from the
beginning of time to the date of this release, including, without limitation.
Upon signature of all parties, STERLING AND NISAL shall file a nonsuit with prejudice.
The parties hereto represent and warrant that the persons executing this Mutual Release on
their behalf as shown on this instrument is authorized to bind same.
AR 000162
It is understood and agreed that this is a final Mutual Release, that no further consideration
is to be paid by any of the parties. and that this settlement is in compromise of disputed claims and
is not to be construed as an admission of liability.
STERLING PRACTICE MANAGEMENT, LLC
THE STATE OF TEXAS
COUNTY OF HARRIS'
BEFORE ME, on this day personally appeared, Wi {1l{( m +h
of STERLING PRACTICE MANAGEMENT, LLC, whose name is subscribed to the foregoing
t.,,[S!,
Mutual Release, and who, acknowledged to me that he/she executed the Mutual Release as the act
and deed of said entity, for the purposes and consideration therein expressed, and in the capacity
therein stated.
GNEN W1der my hand and seal of office D~in hrA ,2013.
NOTARYP LICIN AND FOR
THE STATE OF TEXAS
MARIA PATRICIA MUNIZ
My Commlssloll Expires
May 14.2016
AR 000163
NISAL CORPORATION
MARIA PATRICIA MUNIZ
My Commission Expires
May 14.2016
AR 000164
PROVIDIAN HOLDINGS, INC.
THE STATE OF TEXAS
COUNTY OF HARRIS
BEFORE ME, on this day personally appeared, elf( ,
of PROVIDIAN HOLDINGS, INC., whose name is subscn to the foregoin Mutual Release,
and who, acknowledged to me that he/she executed the Mutual Release as the act and deed of said
entity, for the purposes and consideration therein expressed, and in the capacity therein stated.
OG.r~
GIVEN under my hand and seal of office, thi. ,2013.
NOTARY Ie IN AND FOR
KEIl1i CHUNN. JR. THE STATE OF TEXAS
~
.
~. . i MY COMMlSSION EXPIA'eS
\.~.:.'$J November 14. 2016
.
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AR 000165
FILED
omCEOFBEVERLYB KAUFMAN,COUNTYCLERK,HARRISCCUNTY,TEXA&,OOCHAR -2O
AH 9: 50
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P,O,BOXlS2S-HOUSTON,lEXAS772SJ-IS2S L B 3948:13
03102/fJ6 600H36N $16.00
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ASSUMED NAME RECORDS /1 I ;;'It", Assuned Ilalle
CERTIFICATE OF OWNERSHIP FOR .11 Je,;;t ~ .1:541) ~
(I
UNINCORPORATED BUSINESS OR PROFESSION 'Id'-" (j ~
COUllTY CLERI{
Ht IlRI< rl'I'mY, TFXAS
[A beginning cbaracterotber than a letter or a number, or the last portion ora name tbat exceeds 57 cbaracters, will not be reflected in tbe indices,
Pleas. print legibly,)
NAME IN WHICH BUSINESS IS OR WILL BE CONDUCTED: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
ALLIED MEDICAL CENTERS
BUSINESS ADDRESS 5718 BELLAIRE BLVD
CITY HOUSTON STATE_T_X_ _ _ _ _ _ _ ZIP 77081
PER(OD{~ot to exceed 10 years) DURING WHICH ASSUMED NAME WILL BE USED: _1_0_ _ _ _ _ _ _ _ _ _ _ _ _ __
BUSINASS IS TO BE CONDUCTED AS (Check One): :KJ Sole Proprietorship 0 Sole Practitioner 0 Other_ _ _ _ _ _ _ _ _ __
o Gen~ral Partnership 0 Joint Venture 0 Joint Stock Company 0 Real Eslate Investment Trust
l!We, the underStgnc.J,.amlarc ih!JQW\ler(s) of the above business and my/ourname(s) and addressees) given is/are true and correct, and there is/are no
ownership(s) in seid businew other than those listed below,
SIGNATURE'lL~Lg~
-NAMES OF OWNERS-
NAME GARNER,BRETT LEWIS
(prUtlD#'rypc1 ...
Rllsidence Address 5903 SOLAR POfi\IT
..
1\
City: HOUSTON ... State: TX Zip: 77041
NAME SIGNATURE
(pri4lfJl''1P'J
Residence Address
City: State: Zip:
NAME SIGNATURE
(pNtltWt;JIp';
Residence Address
City: ••• Staie: Zip:
,.
If this instrument is executed by an attorney-in-fact, the attorney-in-factlterebysllItes tbat slhe/they baslbave been duly authorized in writing by hislher
principal to execute and acknowledge the same.
THE STATE OF TEXAS
COUNTY OF HARRIS
BEFORE ME, THE UNDERSIGNED AUTHORlTY, on this day persOl\UIIy JlPPClared _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
GARNER,BRETTLE~S
SHARON B, STEWART
!. PLAINTIFF'S
~ EXHIBIT
~~ Is>
AR 000166
FIL,EO
In ttl. OffIce of l1e
SeCl'lt.ry of .... ofT.,.,
JUL 1 4 20lrfi
Oofporationa 8e6IJ
. .......
Office of the Corporations Section
Secretary of State P.O. Box 13697
Form 204 Austin, Texas 78711-3697
(Revised 01/06) 512-463-5555
Fax: 512-463-5709
Filing Fee: $750
, ,
CERTIFICATE OF FORMATION
PROFESSIONAL ASSOCIATION
Artide-l- Entity Name and Type
The filing entity being fonned is a professional association. The name of the entity is Avant
Medical Group. P .A.
Article 1 - Registered A&eat and Registered Office
(Select and complete ~ A or B and complete C)
lID A. The initial registered agent is an organization (cannot be entity named above) by the
name of: Sterling Practice ManagemenL L.P.
or
o B. The initial registered agcnt is an individual resident of the state whose name is set
forth below:
First Name MI Last Name SUffIX
C. The business address of.the registered agent and the registered office address is:
5718 Bellaire Blvd Houston Texas 77081
Street Address City Slale Zip
Artiele 3 - Governing Penon.
Select ~ A or B. (A minimum of 1 individual is required.)
A. 00 The professional association is to be managed by a board of directors. The names and
addresses of the members who are to serve as initial directors are set forth below: ~ ii,; 1~ it I'
l' I " it ~d:
~ PLAINTIFF'S
RECEIVED ~ EXHIBIT
.~', " , . '1'
, '::: A /:
,. :' .
~ 7
~ AR 000167
Secretary of State
/
OR
B. 0 The professional association is to be managed by an executive committee. The names and
addresses of the members who are to serve on the executive committee are set forth below:
Anteneh T. Roba
First Name MI Last Name Sulfa
223 Westheimer Road Houston Texas USA 77006
Strut Address City State COlin I')' Zip
Article .of - Purpose .
The type of professional service to be provided by the professional entity is (use space provided. below):
Medical services. .!
SupplemeDtal ProvisioasllnformadoD
Text Area: [The atfa(;hed addendum, ifany, ifineorporated herein by refctence.]
Origblal Members
A member of the association may not dissolve the association independently of other members of
the association. The name and address of each .original J?1ember of the association is:
Anten¢h T. Roba
First Name MI Last Name Suffix
223 Westbeimer Road Houston Texas USA 77006
Street Address City State Country Zip
Efreedveness of FillDg
(Select either A, S or C)
A. £8J This document becomes effective when the document is tiled by the Secretary of State. '.'
B. 0 This document becomes effective at a later date. which is not more than ninety (90) days
from the date of signing. The delayed.effective date is: _-::--_ _ _ _~--:----:-_"':'
C. 0 This document takes effect upon the occurrence of the future event or fact, other than the
passage of time. The 90111 day after the day of signing is: _ _ _ _ _ _ _ _ _ _ __
The following event or fact will cause the docwnent to take effect in the manner descnbed
below: .
AR 000168
Exeeution
'The undersigned signs this document subject to the penalties imposed by law for the submission of
a materially false or fraudulent instrument. ~
Date: I 113} a :2)
~R~~~~ofJo~n~~~~~I~m~em~N~r=:~----------
L
AUS:2681595.i
53:124.1
AR 000169
CAUSE NO. 2014-22186
AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF
d/b/a ALLIED MEDICAL CENTERS §
and INTERVENTIONAL SPINE §
ASSOCIATES, §
§
Plaintiffs §
§
VS. § HARRIS COUNTY, TEXAS
§
KHYATI MOHAMED UNDAVIA, §
MINU RX, LTD., and MINU GP, §
L.L.C., §
§ 152ND JUDICIAL DISTRICT
Defendants
DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE ROBERT SCHAFFER:
Defendants Khyati Mohamed Undavia, Minu RX, Ltd., and Minu GP, L.L.C. file
this Reply to Plaintiffs’ Response to Defendants’ Motion for Summary Judgment and would
respectfully show the Court as follows:
I.
SUMMARY
1. Without doubt or dispute, Nisal and Garner released Defendants in the Mutual
Release. They are out. So to retain any modicum of credibility, Plaintiffs should have
jettisoned Nisal and Garner from this lawsuit.
2. Instead, Plaintiffs double down on their bet and contend that the “scope” of the
release is controlling. Defendants’ readily agree. The scope of the Mutual Release is so
1
AR 000170
broad and all-encompassing that it covers any known or unknown claims, whether or not
they were actually asserted in the underlying lawsuit. Nothing could be broader than that.
All of Plaintiffs’ current claims are captured and released.
3. Finally, Plaintiffs make minute, ticky-tack arguments to throw the kitchen sink at the
Court. Yet Plaintiffs go to no pains to discuss or distinguish the insurmountable case law
cited in Defendants’ motion for summary judgment. If ignoring the law is the approach
Plaintiffs chose to defeat summary judgment, then the outcome for this Court is simple—
Defendants are entitled to judgment as a matter of law.
II.
REPLY
A. THE MUTUAL RELEASE INCLUDED “ALL” CLAIMS, WHETHER “KNOWN OR
UNKNOWN,” AND THEREFORE SPECIFICALLY MENTIONED PLAINTIFFS’ CLAIMS
IN THIS LAWSUIT.
9. In paragraph 16 of their response, Plaintiffs contend that the scope of the release is
a threshold issue. Defendants will take Plaintiffs' cue on that point and show this Court
how that threshold issue is dispositive of all of Plaintiffs' claims in this current lawsuit.
10. As to scope, Plaintiffs argue that they executed the Mutual Release to resolve only
the County Court Lawsuit. Therefore, only the claims in that lawsuit have been released.
11. This argument ignores the broad, all-encompassing language of the Mutual
Release, which extends to “any and all liabilities, claims, demands, causes of action,
judgments, liens, liabilities or potential claims or causes of action which . . . [the parties
and their agents] . . . have ever had or could have had, whether now known or unknown,
which have arisen or may arise from the beginning of time to the date of this release[.]”
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AR 000171
(See Mutual Release, p. 2) (emphasis added). This language is not limited by or tailored
to the claims in the underlying County Court Lawsuit. No claims are reserved for future
litigation. The Mutual Release extends to all claims, including those currently asserted
by Plaintiffs in this lawsuit.
12. Plaintiffs rely heavily on Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931
(Tex. 1991) for the incorrect proposition that a release only extends to extant, pending
claims in a lawsuit. However, Brady dealt with far different facts. There, the parties
entered into a settlement agreement that released the bank “from any and all claims and
causes of action . . . directly or indirectly attributable to the above described loan
transaction.” Id. at 938 (emphasis added). The original plaintiffs then filed a new suit
against the bank that did not involve the “above described loan transaction.” Id. The
court held that the only claims the settlement agreement released were those dealing with
the “above described loan transaction,” and thus, did not bar the plaintiffs’ current claims
against the bank. Id.
13. The Texas Supreme Court acknowledges the narrow holding of Brady. In Keck,
Mahin & Cate v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 698 (Tex.
2000), the court states:
[In Brady], we noted that the parties’ agreement plainly limited itself to the
specific loan and thus did not cover [the] other transaction. The present
release is clearly broader than the one in Brady. It is not expressly limited
to a specific claim or transaction but rather purports to cover “all demands,
claims, or causes of action of any kind whatsoever.” Nothing in Brady
forbids such a broad-form release.
....
3
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Although Releases often consider claims existing at the time of execution, a
valid release may encompass unknown claims and damages that
develop in the future.
Id. at 698 (emphasis added).
14. Unlike the release in Brady, and exactly like the release in Keck, the Mutual
Release in this case is not limited to claims arising out of a particular transaction.
Instead, the Mutual Release extends to “all” claims whether “known or unknown,” and
without regard to whether they were actually asserted in the County Court Lawsuit. (See
Mutual Release, p. 2).
15. Keck similarly disposes of Plaintiffs’ reliance on the Mutual Release’s recital
paragraph. In Keck, the court held that the specific mention of a pending claim in a
recital paragraph did not otherwise reduce or narrow the scope of the broad-form release
language that followed. See Keck, 20 S.W.3d at 698.
16. When the parties signed the Mutual Release, the claims asserted in this lawsuit
were existing claims. Thus, they were specifically mentioned by the Mutual Release and
released.
B. THE MUTUAL RELEASE PLAINLY EXTENDS TO THE PARTIES’ “AGENTS,” AND
THEREFORE INCLUDES GARNER, AVANT, ALLIED, UNDAVIA, AND MINU
(i) Garner, Allied, and Avant, as agents of Sterling and Nisal, are bound by the
plain language of the Mutual Release.
17. Plaintiffs argue that Sterling and Nisal had no authority to release claims
belonging to their agents, Garner, Avant, and Allied. Unable to find any support for
their untenable position, Plaintiffs simply point the finger back at Defendants:
“Defendants cite no authority to support their implicit position that the signatories to the
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AR 000173
Release had the authority to settle claims belonging to their alleged agents on their
behalf.” (See Plaintiffs’ Response; ¶26).
18. Defendants, however, rely on the plain, unequivocal language of the Mutual
Release. This language provides that Sterling and Nisal’s agents are also releasing any
claims they may have against Defendants.
19. Further, Plaintiffs contend that Sterling and Nisal lacked “authority” to release
claims on behalf of the other Plaintiffs. Garner—the individual that signed the release—
is a principal for each of the Plaintiffs. Broken down, Plaintiffs argue that Garner, in his
capacity with Nisal, did not have authority to release claims belonging to Garner
personally or to his other companies. That argument makes no factual or legal sense. Is
Garner somehow divorced from the knowledge of the Mutual Release just because he
signed the document in a corporate capacity? That he signed the document in any
capacity eliminates any doubt that he is a party releasing Defendants.
20. Plaintiffs provide no support to counteract the plain language of the Mutual
Release. Garner, Allied, and Avant—as agents of Nisal and Sterling—have released their
claims against Defendants.
(ii) Defendants are agents of Providian and therefore fall under the protection
of the Mutual Release.
21. Plaintiffs then argue that although they may have released Defendants in their
capacity as agents of Providian, they did not release Defendants in their “individual
capacity.” After all, Plaintiffs argue, “an agent is liable for his own torts.” Williams v.
Olivo, 912 S.W.2d 319 (Tex. App.—San Antonio 1995).
5
AR 000174
22. Once again, this argument is disposed of by the plain language of the Mutual
Release, which extends not simply to Providian but also to Undavia and Minu as
Providian’s agents. Plaintiffs categorically released Undavia and Minu from “all claims,”
regardless of whether those claims arose in their individual or agency capacities, or in tort
or otherwise.
(iii) By specifically mentioning “agents,” the Mutual Release specifically
mentioned Garner, Avant, Allied, Undavia, and Minu.
23. Plaintiffs next argue that Defendants belied their own argument by citing to
McMillen v. Klingensmith, 467 S.W.2d 193, 197 (Tex. 1971) for the proposition that
“unless a party is named in a release, his not released.” Plaintiffs argue that because they
were not identified by name in the Mutual Release, they are not bound by it.
24. Once again, Plaintiffs ignore the plain terms of the Mutual Release, which extends
to Sterling, Nisal, and Providian’s “agents.” There is no requirement that a release
specify a party by their legal name. Garner, Avant, and Allied are agents of Nisal and
Sterling. Undavia and Minu are agents of Providian. Therefore, they were specifically
mentioned by the Mutual Release.
C. DEFENDANTS ESTABLISHED, AS A MATTER OF LAW, THAT PLAINTIFFS
GARNER, ALLIED, AND AVANT ARE AGENTS OF STERLING AND NISAL, AND
THAT UNDAVIA AND MINU ARE THE AGENTS OF PROVIDIAN
(i) Avant Is the agent of Sterling, and Garner and Allied are the agents of
Nisal.
25. Plaintiffs next contend that Defendants failed to prove that Avant, Garner, and
Allied are agents of either Nisal or Sterling.
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AR 000175
26. First, Garner is plainly an agent of Nisal—he is Nisal’s director, president, and
registered agent. Plaintiffs don’t even bother contesting this point. Second, Plaintiffs
themselves admit in their pleadings that Allied is simply a d/b/a for Garner. In other
words, Garner and Allied are legally the same. Allied is, therefore, also an agent of
Nisal.
27. Regarding Avant, Defendants introduced evidence showing that although Sterling
was the actual lessee, Avant paid Sterling’s rent and procured a rental insurance policy on
Sterling’s behalf. (See Exhibits J and K to Defendants’ Motion for Summary Judgment).
Defendants further testified that Avant was the entity that actually operated in the
building. (See Declaration of Khyati Undavia, ¶13; Ex. E to Defendants’ Motion for
Summary Judgment). Plaintiff Garner confirmed this fact, testifying in his affidavit that
“Avant Medical Group, P.A. regularly provided medical services [in the Building].” (See
Affidavit of Brett Garner, §4). Finally, there is no testimony to controvert Khyati
Undavia’s clear, unequivocal testimony that Avant acted as Sterling and Nisal’s agent
with respect to the lease. (See Declaration of Khyati Undavia; §13;Ex. E to Defendants’
Motion for Summary Judgment).
28. Finally, there is ample, uncontroverted evidence that Garner is also an agent of
Avant. Garner himself testifies: “I am also one of the owners of Sterling Practice
Management, LLC, a management service organization which manages the non-medical
business dealings of Avant Medical Group, P.A.” (See Affidavit of Brett Garner; ¶2;
Ex. 1 to Plaintiffs’ Response) (emphasis added). Undavia further testified that “For all
matters concerning the lease, I communicated with Brett Garner in his capacity [as] a
7
AR 000176
representative of not only Sterling and Nisal, but also Avant and Allied.” (See
Declaration of Khyati Undavia; ¶13; Ex. E to Defendants’ Motion for Summary
Judgment). Undavia further testified that Garner is a chiropractor for Avant. Id.
29. As a matter of law, Defendants established that an agency relationship existed
between Sterling and Nisal on one hand, and Garner, Allied, and Avant, on the other.
(ii) As a matter of law, Undavia and Minu are the agents of Providian
30. Unable to controvert Undavia and Minu's clear-cut agency relationship with
Providian, Plaintiffs instead formulate an arbitrary and legally insignificant distinction:
Plaintiffs have not sued Undavia and Minu in their capacities as Providian’s agents and
thus, have not released them.
31. Once again, Plaintiffs’ argument ignores the plain language of the Mutual Release.
Plaintiffs released Minu and Undavia from “all” claims, whether “known or unknown,”
whether or not they arose out of their agency capacities with Providian. Further, there is
simply no authority for Plaintiff’s proposition that an agent—when specifically identified
in a release—is not released for claims arising in his or her individual capacity.
32. As a matter of law, Undavia and Minu are Providian’s agents and are protected by
the Mutual Release.
D. RES JUDICATA APPLIES BECAUSE THE PARTIES ARE THE SAME AS IN THE
ORIGINAL LAWSUIT AND BECAUSE THE CLAIMS ARISE OUT OF THE SAME
NUCLEUS OF FACTS
33. Plaintiffs argue that res judicata does not apply because their current claims and
their previous claims “do not share the same operative facts,” and further, that the parties
8
AR 000177
in this lawsuit are nominally different than in the County Court Lawsuit. (See Plaintiffs’
Response; ¶ 34). Plaintiffs’ argument fails.
34. First, it is of no consequence that this lawsuit and the County Court Lawsuit do not
involve precisely the same issues. Res judicata “prevents the relitigation of a claim or
cause of action that has been finally adjudicated, as well as related matters that, with the
use of diligence, should have been litigated in the prior suit.” Barr v. Resolution Trust
Corp., 837 S.W.2d 627 (Tex. 1992) (emphasis added). Here, the same “nucleus of
operative facts” between this lawsuit and the former lawsuit are in play: Garner and his
companies are suing Undavia and her company for something that arose out of their
landlord-tenant relationship. This landlord-tenant relationship forms the nucleus out of
which all of Plaintiffs’ claims arose, whether in this lawsuit or in the County Court
Lawsuit. Thus, Plaintiffs’ current claims are related to their former claims and are
subject to res judicata.
35. As proof positive of this notion, consider the factors enunciated in Plaintiffs’ cited
case, Samuel v. Federal Home Loan Mortg. Corp., 434 S.W.3d 230 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (“In considering whether the facts arose out of a single
transaction [thus giving rise to res judicata], courts consider whether the facts are related
in time, space, origin, or motivation, and whether they form a convenient unit for trial.”).
Here, Plaintiffs’ current claims arose around the same time as the claims in the County
Court Lawsuit (between 2011-2013), they involved the same commercial office space,
they arose out of the same landlord-tenant relationship and, because they involve all the
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AR 000178
same parties and relationships, would have formed a convenient unit for trial. The factors
weigh heavily in favor of res judicata.
36. Plaintiffs next argue that res judicata does not apply because the two lawsuits do
not involve the same parties. Once again, Plaintiffs’ argument fails.
37. “The doctrine of res judicata, or claim preclusion, bars a second action by parties,
and those in privity with them, on matters actually litigated in a previous suit, as well as
claims that could have been litigated in the prior suit through the exercise of diligence.”
Samuel, 434 S.W.3d at 233 (emphasis added). “Privity connotes those who are so
connected with a party to the judgment in the law such that the party to the judgment
represented the same legal right.” Id. at 234. “A party can be in privity in at least three
ways: (1) it can control an action even if it is not a party to it; (2) its interests can be
represented by a party to the action; or (3) it can be a successor-in-interest, deriving its
claim through a party to the prior action. Id. at 234-35.
38. Plaintiffs cite to Lesikar v. Moon, 2014 WL 4374117 (Tex. App.—Houston [1st
Dist.] no pet.) as support for their argument that the parties in the two suits are nominally
different, and thus, res judicata does not apply. Yet Lesikar holds:
[A] person’s appearance in a difference capacity does not dictate whether a
prior judgment bars the subsequent suit. Comment (c) to section 36 [of the
Restatement (Second) of Judgments] explains that the analysis focuses on
shared interests, not nominal capacity[.]
Id. at 7 (emphasis added).
39. Here, as demonstrated above, Nisal, Sterling, Garner, Allied, and Avant are so
interconnected that they are, as a matter of law, in privity with each other and shared a
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AR 000179
common interest. All of these Plaintiffs occupied the Building, and are now suing
Defendants based on this single fact. But for their tenancy, none of the Plaintiffs would
have any claims against Defendants. Garner, as Nisal’s president, director, and registered
agent, and as Sterling’s owners, clearly could have controlled the litigation. Further,
were Avant's interests—as the real party in interest to the parties’ lease—not shared and
represented by Garner, Sterling, and Nisal in the County Court Lawsuit? Even Plaintiff
Garner admits that he owns Sterling and that Sterling manages the non-medical business
dealings of Avant.
40. Although nominally different, the parties are the same as they were in the County
Court Lawsuit. Res Judicata applies.
E. PLAINTIFFS’ CONVERSION CLAIMS FAILS AS A MATTER OF LAW.
41. Plaintiffs argue that Defendants had “constructive possession” of their checks and
therefore, Plaintiffs can maintain a cause of action for conversion.
42. Plaintiffs’ argument completely ignores the issues raised in Defendants’ Motion
for Summary Judgment. First, Plaintiffs ignore the fact that any “agency” relationship
between Plaintiffs and Defendants necessarily terminated with the underlying lease, and
thus did not exist when Defendants allegedly deposited at least a portion of the checks.
43. Second, Plaintiffs argue that their side-agreement with Defendants was not a
modification to the lease; rather, it was a stand-alone agreement even though it was
clearly within the scope of the parties landlord-tenant relationship. This puts the
agreement squarely in conflict with the lease’s integration and no oral-modification
clauses. Thus, evidence of this agreement is legally inadmissible.
11
AR 000180
F. PLAINTIFFS’ ARGUMENTS FOR TOLLING THE STATUTE OF LIMITATIONS FAIL
AS A MATTER OF LAW.
44. Plaintiffs contend that none of their claims are barred by the statute of limitations.
45. First, Plaintiffs argue that their claims are barred by the discovery rule, which is
wholly inapplicable in this case. “The discovery rule is a very limited exception to
statutes of limitations, and applies only when the nature of the plaintiff's injury is
inherently undiscoverable and the evidence of injury is objectively verifiable.” BP Am.
Prod. Co. v. Marshall, 342 S.W.3d 59, 65–66 (Tex. 2011); Computer Assoc. Int'l, Inc. v.
Altai, Inc., 918 S.W.2d 453, 455–56 (Tex. 1996). “An injury is inherently
undiscoverable if, by its nature, it is unlikely to be discovered during the applicable
limitation period despite the exercise of due diligence.” Marshall, 342 S.W.3d at 66; S.V.
v. R.V., 933 S.W.2d 1, 7 (Tex.1996). “The question is not whether the particular injury
was actually discovered by the claimant within the limitation period, but whether “it was
the type of injury that is generally discoverable by the exercise of reasonable diligence.””
HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998).
46. Thus, the relevant inquiry in this case is whether the taking and depositing of a
check is, by its nature, “inherently undiscoverable.” For example, making a defamatory
entry on a credit report is inherently undiscoverable because “a person will not ordinarily
have any reason to suspect that he has been defamed by the publication of a false credit
report to a credit agency until he makes application for credit.” Computer Associates
Intern, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996). Nor can someone who
undergoes a vasectomy “know that he is still fertile, if that be the case, until either his
12
AR 000181
wife becomes pregnant or he is shown to be fertile by further testing.” Id. Likewise, “it
is a virtual certainty that [a] patient has no knowledge on the day following surgery—nor
for a long time thereafter—that a foreign object was left in the incision.” Id.
47. Here, the alleged conversion of the checks is not inherently undiscoverable and is
not subject to the discovery rule. In the exercise of due diligence, a business should
discover, at or around the time that it is to receive payment—and not three years later—
that payment has not been received. The fact that Plaintiffs may have had special terms
with their payees that “suspended collection efforts” is irrelevant because the focus is
objective and not subjective. Most problematic for Plaintiffs, though, is Garner's
admission that he routinely checks on the status of his payments from the patients’
attorneys. (See Declaration of Brett Garner, ¶6; Ex. 1 to Plaintiffs’ Response). If Garner
routinely checks on the status of payment from his patients’ attorneys, how did
Defendants’ alleged wrongful acts go undiscovered for years?
48. As their second argument for why their claims are not barred, Plaintiffs argue that
the limitations period was tolled due to Defendants’ “fraudulent concealment.” (See
Plaintiffs’ Response, ¶ 39). However, “a party asserting fraudulent concealment as an
affirmative defense to the statute of limitations has the burden to raise it in response to
the summary judgment motion and to come forward with summary judgment evidence
raising a fact issue on each element of the fraudulent concealment defense.” KPMG Peat
Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 749 (Tex. 1999)
(emphasis added). “A mere pleading does not satisfy either burden.” Id. at 749-50.
13
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49. Here, Plaintiffs have neither pled fraudulent concealment nor adduced any
evidence in support of their fraudulent inducement claim. Plaintiffs’ fraudulent
concealment argument fails as a matter of law.
G. DEFENDANTS ARE ENTITLED TO ATTORNEY’S FEES
50. Finally, Plaintiffs assert that Defendants are not entitled to their attorneys’ fees.
First, they claim that Defendants are not entitled to attorney’s fees because they have not
presented a breach of contract claim. However, Defendants pled a breach of contract
claim in their second and third amended answers.
51. Second, Plaintiffs claim that Defendants have not moved for summary judgment
on their declaratory judgment claim and thus are not entitled to fees. However,
Defendants are not required to use magic words to move for summary judgment on their
declaratory judgment claim. Defendants are seeking a judicial declaration, as a matter of
law, of their rights, status, and other legal relations with respect to the release they
entered into with Plaintiffs. “A release is a contract,” and is therefore subject to a judicial
declaration. Schlumberger Technology Corp., v. Swanson, 959 S.W.2d 171, 178 (Tex.
1997). Defendants have, therefore, moved for summary judgment on their declaratory
judgment claim.
52. Plaintiffs also claim that Defendants’ declaratory judgment claim is improper
because it is simply a denial of Plaintiffs’ breach of contract claim. Nothing could be
farther from the truth. “A counterclaim for declaratory judgment is improper if it is
nothing more than a mere denial of the plaintiff’s claims and the counterclaim fails to
have greater ramifications than the original suit.” Sanchez v. AmeriCredit Fin. Services,
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AR 000183
Inc., 308 S.W.3d 521, 524 (Tex. App.—Dallas 2010, no pet.). Here, Plaintiffs’ breach of
contract claim is premised on an alleged oral contract between Undavia and Plaintiffs for
the collection and distribution of mail. In contrast, Defendants seek a judicial declaration
that Plaintiffs have categorically released Defendants from any and all claims, whether
known or unknown, that existed when the Mutual Release was signed. If Defendants
succeed, then all of Plaintiffs claims—not simply their breach of contract—are defeated.
Accordingly, Defendants declaratory judgment counterclaim is not simply a “denial” of
Plaintiffs’ breach of contract claim. It has greater ramifications than that claim, and is fair
game for a declaratory judgment action.
53. Defendants are entitled to their attorney’s fees.
III.
CONCLUSION
54. Defendants respectfully request that this Court grant them summary
judgment, dismiss Plaintiffs’ claims with prejudice, grant them their reasonable
attorney’s fees, and grant Defendants all further relief to which they are entitled at law or
equity.
Date: February 17, 2015 Respectfully submitted,
MAHENDRU, P.C.
By:
Ashish Mahendru
Texas Bar No. 00796980
Darren A. Braun
Texas Bar No. 24082267
639 Heights Boulevard
Houston, Texas 77007
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AR 000184
(713) 571-1519 (Telephone)
(713) 651-0776 (Facsimile)
amahendru@thelitigationgroup.com
dbraun@thelitigationgroup.com
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
provided to all counsel of record in accordance with the applicable Texas Rules of Civil
Procedure on this 16th day of February, 2015.
Matias J. Adrogué Email:mja@mjalawyer.com
Robert Stephan Kaase Email: rsk@mjalawyer.com
1629 West Alabama St. Facsimile: 713.425.7271
Houston, Texas 77006
Ashish Mahendru
16
AR 000185
CAUSE NO. 2014-22186
AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF
d/b/a ALLIED MEDICAL CENTERS §
and INTERVENTIONAL SPINE §
ASSOCIATES, §
§
Plaintiffs §
§
VS. § HARRIS COUNTY, TEXAS
§
KHYATI MOHAMED UNDAVIA, §
MINU RX, LTD., and MINU GP, §
L.L.C., §
§ 152ND JUDICIAL DISTRICT
Defendants
DEFENDANTS' RESPONSE TO PLAINTIFFS' OBJECTIONS TO
DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
TO THE HONORABLE JUDGE ROBERT SCHAFFER:
Defendants Khyati Mohamed Undavia, Minu RX, Ltd., and Minu OP, L.L.C. file
this Response to Plaintiffs' Objections to Defendants' Summary Judgment Evidence and
would respectfully show the Court as follows:
I.
RESPONSE
A. DEFENDANTS' EXHIBITS B, F, J, AND K ARE ADMISSmLE SUMMARY JUDGMENT
EVIDENCE.
1. Exhibit B-Sterling Practice Management's Lease With Providian. Plaintiffs object
to this Lease because it is unsigned, and is thus (a) irrelevant and (b) violates the best
evidence rule. However, Khyati Undavia testified that this lease was a true and correct copy
of the lease that Providian entered into with Sterling. Whether signed or not, the document
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AR 000186
is still relevant as to the terms of the lease between Sterling and Providian. Further, the best
evidence rule does not apply when "the document and its contents are only collaterally
related to the issues in the case[.]" White v. Bath, 825 S.W.2d 227, 331 (Tex. App.-
Houston [14th Dist.] 1992, writ denied). Here, Defendants are not presenting the lease to the
Court in the motion for summary judgment to establish a breach of the lease. There is no
dispute that Providian and Sterling actually entered into a lease agreement that contained the
same terms and provisions as Exhibit B. Defendants simply attached Exhibit B to show that
there as a written lease between the parties. Accordingly, it is not barred by the best
evidence rule.
2. Exhibit F-Elevator Invoices. Defendant objects because the invoices are hearsay.
However, these invoices are not hearsay. Defendants are not introducing them to prove the
truth of a matter asserted therein-for example, the price on the invoices or the services
performed. Instead, Defendants offer the invoices to show that they were addressed to
Minu and not Providian. Accordingly, they are not hearsay and Defendants are not required
to prove them up as business records.
3. Exhibit J-Proof of Insurance. Plaintiffs object because the Proof of Insurance is
hearsay. However, the Proof of Insurance is not hearsay. Defendants are not offering it to
show the truth of a matter asserted therein-for example, the amount of coverage or that
Avant actually was insured by the insurance company. Instead, Defendants are offering the
Proof of Insurance to show the agency relationship between Avant, who purportedly
procured the policy, and Sterling, who was listed as an additional insured by Avant. Even if
Defendants were offering the Exhibit .for the truth of the matter asserted, it is still not
2
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hearsay: this document was given to Defendants by Plaintiffs and thus constitutes the
admission of a party opponent. Accordingly, the Proof of Insurance is not hearsay and
Defendants are not required to prove it up as a business record.
4. Exhibit K-Rent Check. Again, Plaintiffs object because the check is hearsay, when
it is in fact not hearsay. Defendants are not offering the check to prove the truth of the
matter asserted-for example, that rent was paid or what the amount of the payment was.
Instead, Defendants offer the check to show the agency relationship that existed between
Sterling, who was the actual lessee, and Avant, because Avant paid the rent on Sterling's
behalf. Why else would Avant pay rent on behalf of Sterling? Finally, the check is not
hearsay because it is the admission of a party opponent.
B. EACH STATEMENT IN KHYATI UNDAVIA'S DECLARATION Is ADMISSIBLE
5. Plaintiffs make a variety of objections to Undavia's declaration. Defendants refute
each of these objections below.
6. "The Declaration of Khyati Undavia contains statements that are not based on
personal knowledge." Plaintiffs point to inadmissibility of Undavia's statements that
Plaintiffs Nisal Corp. and Sterling Practice Management, LLC "did not have any actual
operations in the office space," and that "Allied Medical Centers and Avant Medical Group
were the entities that had operations in the leased space." (See Declaration of Khyati
Undavia; ,-r 13; Ex. E to Defendants' Motion for Summary Judgment). Incredibly, Plaintiffs
claim that Undavia couldn't possibly have personal knowledge of these facts. However,
Undavia, as Providian's owner, was the Plaintiffs' landlord. Based on her ownership and
execution of the lease, she has personal knowledge of what transpired on her property. She
3
AR 000188
also worked in the pharmacy directly below Plaintiffs' office space and regularly
communicated with Garner. Undoubtedly, she has personal knowledge as to the entities
that operated in her building.
7. Further, Plaintiffs readily admit that Avant operated in the office space: "Avant
Medical Group, P.A. regularly provided medical services at the [leased premises]." (See
Affidavit of Brett Garner, ~4; Ex. A to Plaintiffs' Response). Why then would Undavia not
know this fact?
8. Accordingly, Undavia's statement as to which entity operated in the leased space is
admissible summary judgment evidence.
9. "The Declaration of Khyati Undavia contains statements that are merely legal
conclusions." Plaintiffs then complain of Undavia's statement that "for all matters
concerning the lease, I communicated with Brett Garner in his capacity [as] a representative
of not only Sterling and Nisal, but also Avant and Allied." (See Declaration of Khyati
Undavia; ~13; Ex. E to Defendants' Motion for Summary Judgment). Plaintiffs argue that
this statement is an unsubstantiated legal opinion and therefore inadmissible.
10. However, Defendants introduced evidence that Avant paid for Sterling's rent (and
introduced a copy of such check), and introduced a Proof of Insurance document that was
procured by Avant on behalf of Sterling. This is documentary support for Undavia's
statement that she communicated with Garner in his capacity as Avant's agent. Further,
Undavia testified that she was the Plaintiffs' landlord, that she owned the leased premises,
that she worked in the pharmacy directly below Plaintiffs' office space, and that Garner was
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AR 000189
Avant's employee and agent. Of course she knows the capacity of the individuals with
which she is communicating with respect to the lease.
11. Further, Undavia's statement was easily controvertible yet remains uncontroverted.
Plaintiffs could have simply testified, "No, Avant didn't pay Sterling's rent," or that "No,
Avant did not procure an insurance policy on behalf of Sterling." They could have testified,
"No, Gamer was not Avant's agent" or that "No, Garner never communicated with Undavia
in his capacity as Avant's agent." By failing to controvert the agency relationship, Plaintiffs
admit it, thereby sinking their position with this Court and only leaving themselves a
threadbare attempt to object to Undavia's statement. That attempt, however, fails.
12. Instead of controverting Undavia's testimony, Plaintiffs corifirmed it. Garner
testified that "I am also one of the owners for Sterling Practice Management, LLC, a
management company which manages the non-medical business dealings of Avant Medical
Group." (See Affidavit of Brett Garner, ~2; Ex. 2 to Plaintiffs' Response). This testimony
clearly establishes Garner's agency relationship with Avant. Further, Garner testified that
"Avant Medical Group, P.A. regularly provided medical services" in Undavia's building.
Id. at ~4. What is there left to contest?
13. Accordingly, Undavia's statements regarding Garner's agency relationship with
Avant are admissible.
14. "The Declaration of Khyati Undavia Undavia contains statements that are based
on hearsay." Plaintiffs contend that because exhibits F, J, and K are hearsay, and because
Undavia testified regarding those exhibits in paragraphs 11 and 14 of her declaration, then
those statements are likewise inadmissible.
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AR 000190
15. As discussed in Section A above, exhibits F, J, and K are not hearsay. Accordingly,
Defendants' testimony regarding these exhibits is admissible.
II.
CONCLUSION
9. Defendants respectfully request that this Court to overrule Plaintiffs'
objections to Defendants' summary judgment evidence and grant Defendants all further
relief to which they are entitled.
Date: February 17, 2015 Respectfully submitted,
MAHENDRU, P.C.
BY:~ Ashish Mahendru
Texas Bar No. 00796980
Darren A. Braun
Texas Bar No. 24082267
639 Heights Boulevard
Houston, Texas 77007
(713) 571-1519 (Telephone)
(713) 651-0776 (Facsimile)
amahendru@thelitigationgroup.com
dbraun@thelitigationgroup.com
ATTORNEYS FOR PLAINTIFFS
6
AR 000191
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
provided to all counsel of record in accordance with the applicable Texas Rules of Civil
Procedure on this 16th day of February, 2015.
Matias 1. Adrogue Email:mja@mjalawyer.com
Robert Stephan Kaase Email: rsk@mjalawyer.com
1629 West Alabama St. Facsimile: 713.425.7271
Houston, Texas 77006
Ashish Mahendru
7
AR 000192
CAUSE NO. 2014-22186
AVANT MEDICAL GROUP, P.A., § IN THE DISTRICT COURT OF
ET.AL. §
§
vs. § HARRIS COUNTY, TEXAS
KHYATI MOHAMED UNDAVIA , ~ WLEJI)
ET. AL. § 152nd JUDIC~~~M7!~k
U MAR 032015
ORDER ON DEFENDANTS' MOTION~e:
Harris County, Texas
FOR SUMMARY JUDGMENT ~BY._ _---=~_ __
¢ ~ Deputy
On this day came on to be considered Defendants' Mot~r Summary Judgment and
~
this court, after considering the pleadings and arguments ~~Sel, finds that this motion should
be granted in part and denied in part. Q~
It is, therefore, ordered that the Motion fOr~ary Judgment as to claims brought by
~
Plaintiff, Nisal Corp. is granted. ~Q
It is further ordered that the Moti~~r Summary Judgment as to claims brought by all
other plaintiffs is denied. ~
0)
Signed March 3, 2015. ~
~
~U Presiding Judge
¢~
~
~©
~
~\
AR 000193
CAUSE NO. 2014-22186
AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF
d/b/a ALLIED MEDICAL CENTERS §
and INTERVENTIONAL SPINE §
ASSOCIATES, §
Plaintiffs §
§
VS. § HARRIS COUNTY, TEXAS
§
KHYATI MOHAMED UNDAVIA and §
MINU RX, LTD., §
Defendants § 152ND JUDICIAL DISTRICT
DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL
INTERLOCUTORY SUMMARY JUDGMENT ORDER,
MOTION TO AMEND ORDER, AND REQUEST FOR STAY
TO THE HONORABLE JUDGE ROBERT SCHAFFER:
Defendants, Khyati Undavia, Minu RX, Ltd., and MINU GP, LLC, file this Motion
for Permission to Appeal Interlocutory Summary Judgment Order, Motion to Amend Order,
and Request for Stay and would respectfully show the Court as follows:
I.
INTRODUCTION
1. Based on a release and dismissal with prejudice between the parties arising out of
a prior lawsuit, Defendants sought dismissal of this case by summary judgment,
requesting this Court to apply the release to the parties in this lawsuit. Agreeing in part,
this Court granted judgment as a matter of law only as to Plaintiff Nisal Corp.
2. Without doubt, the controlling question of law in this case is the applicability of
the release as to all parties. If, as Defendants contend, the release applies to all parties and
1
AR 000194
all claims in this lawsuit, Defendants should not be subjected to a trial, having bargained
for and bought peace. Without doubt an immediate appeal from the order denying
judgment as a matter of law as to all Defendants advances the ultimate termination of the
litigation. These two elemental requirements of a permissive appeal and front and center
before this Court, and Defendants easily hurdle them to establish the need for an
immediate appeal.
3. Defendants, therefore, request this Court to grant a permissive appeal of this
Court's Order dated March 3, 2015, requesting this Court to amend its order, and in
granting such relief, Defendants further request a stay of this lawsuit pending resolution
of the appeal of the interlocutory order.
II.
MOTION FOR PERMISSIVE APPEAL
4. Texas Civil Practices and Remedies Code §51.014(d) establishes the standard for a
permissive appeals:
On a party's motion or on its own initiative, a trial court in a civil action may, by
written order, permit an appeal from an order that is not otherwise appealable if:
(1) the order to be appealed involves a controlling question of law as to
which there is a substantial ground for difference of opinion; and
(2) an immediate appeal from the order may materially advance the
ultimate termination of the litigation.
5. In conjunction with this statute, the legislature enacted Texas Rules of Civil
Procedure 168 as a new rule:
On a party's motion or on its own initiative, a trial court may permit an appeal
from an interlocutory order that is not otherwise appealable, as provided by
statute. Permission must be stated in the order to be appealed. An order previously
2
AR 000195
issued may be amended to include such permission. The permission must identify
the controlling question of law as to which there is a substantial ground for
difference of opinion, and must state why an immediate appeal may materially
advance the ultimate termination of the litigation.
a. The Order to be Appealed Involves a Controlling Question of Law
6. Texas courts have little guidance as to what constitutes a controlling legal issue
about where there is a difference of opinion and the resolution of which disposes of the
primary issues in the case. In Gulf Coast Asphalt Company, LLC v. Lloyd, the Houston
Court of Appeals recently recognized this absence, and it cited to a Texas commentator's
suggestion of looking to federal cases in interpreting the federal counterpart to section
51.014:
a controlling question of law is one that deeply affects the ongoing process of
litigation. If resolution of the question will considerably shorten the time, effort,
and expense of fully litigating the case, the question is controlling. Generally, if
the viability of a claim rests upon the court's determination of a question of law,
the question is controlling.... Substantial grounds for disagreement exist when the
question presented to the court is novel or difficult, when controlling circuit law is
doubtful, when controlling circuit law is in disagreement with other courts of
appeals, and when there simply is little authority upon which the district court can
rely.... Generally, a district court will make [a finding that the appeal will facilitate
final resolution of the case] when resolution of the legal question dramatically
affects recovery in a lawsuit.
2015 WL 393407, at *5 (Tex. App.—Houston [14th Dist.] Jan. 29, 2015, no. pet. h.).
7. The commentator suggests three or four avenues for meeting this element for a
permissive appeal. With the exception of disagreement between controlling circuits since
that is not Defendants' contention, Defendants easily hurdle the standard set forth above.
8. First, is there any doubt that Defendants' legal postulation that the application of
the release from the underlying lawsuit will "considerably shorten the time, effort and
expense of litigating the case"? No, there is no doubt. The release controls the current
3
AR 000196
case, and if applicable to the claims asserted by Plaintiffs, then this case is over, as this
Court partially found in dismissing Nisal Corp's claims.
9. Second, the viability of this lawsuit is fully dependant on the Court's interpretation
of the release. That legal interpretation, therefore, is controlling.
10. Third, substantial disagreement exists when the question presented to the Court is
novel or difficult. As evidenced by the lengthy and detailed presentation by Defendants
and as evidenced by the numerous questions propounded by the Court during the
summary judgment hearing, the issues confronting this Court are difficult, novel, and
outcome determinative. Defendants, therefore, meet this requirement.
11. Fourth, there is little authority for this Court to rely on in deciding the novel and
difficult issues. A prime example of that is based on the Court's contention that an agent
in one context may not necessarily release a claim brought in the future or different
context if not cloaked in the original agency. Specifically, as discussed with the Court
during the hearing, a committed tort by an agent that was unknown at the time of the
release is still captured by the very terms releasing the parties. This Court was unsure of
that application of the release in such a broad context. However, neither Plaintiffs nor
Defendants provided this Court with any controlling law on the subject of the scope of
the agency and/or the underlying scope of the release when applying that release in a
future series of claims that still refer back and relate to the underlying dispute
engendering the release in the first place.
12. Additionally, Plaintiffs contended that the principal-agent relationship is a
question of fact for the jury. Defendants' vociferously argued that there is simply no
4
AR 000197
space for a principal-agent analysis in the construction of a release. Principal-agent
delves into actual and apparent authority, i.e., whether a third party has the right to charge
the principal based on the agent's conduct vis-a-vis the third party.
13. In the context of a release, however, the word "agent" as a releasing or released
party does not require any interpretation of the principal-agent relationship in the context
of actual or apparent authority. There is no authority that Plaintiffs cited this Court for
this proposition that the Court must labor into questions of fact based on principal-agent
analysis, and certainly there is no case law Defendants put forth for the Court's counter-
consideration. With little or no binding or persuasive authority, this issue is controlling,
necessitating a permissive appeal.
b. An Immediate Appeal from the Order Shall Materially Advance the
Ultimate Termination of the Litigation
14. Defendants' summary judgment sought complete and total dismissal of all claims
Plaintiffs asserted against Defendants Khyati Undavia, Minu RX, Ltd., and MINU GP,
LLC. That is, the granting of Defendants’ motion would dispose of all of Plaintiffs’
claims against Defendants. When this Court granted judgment in favor of Defendants as
to Plaintiff Nisal Corp., this Court fully acknowledged that this case is subject to
immediate termination--at least as to one party.
15. It can be no other way. If the release applies to all Plaintiffs, then they have no
claims against Defendants. The case is over and terminated. The second element of a
permissive appeal is readily present.
III.
MOTION TO AMEND ORDER
5
AR 000198
16. Under Rule 168, there is a requirement that the permission to appeal the
interlocutory order be granted in the order to appealed and not in a separate order.
On a party's motion or on its own initiative, a trial court may permit an
appeal from an interlocutory order that is not otherwise appealable, as
provided by statute. Permission must be stated in the order to be
appealed. An order previously issued may be amended to include such
permission. The permission must identify the controlling question of law
as to which there is a substantial ground for difference of opinion, and must
state why an immediate appeal may materially advance the ultimate
termination of the litigation.
17. Therefore, Defendants respectfully request this Court to enter the attached
amended order, granting Defendants permission to appeal.
IV.
REQUEST FOR STAY
18. Defendants also request a stay of further proceedings in this Court pending the
resolution of a permissive appeal. Tex. Civ. Prac. & Rem. Code §51.014(e)(2). Such a
stay is warranted because, until the controlling issues are resolved by the court of appeals,
any further trial in this Court may be for naught and result in a tremendous waste of
judicial resources, the parties' time, energy, attorney's fees.
V.
CONCLUSION
19. Defendants request this Court to (i) grant them permission to appeal this Court's
interlocutory summary judgment order dated March 3, 2015, (ii) amend the Court’s Order
dated March 3, 2015, and (iii) request this Court to stay the proceedings pending
appellate outcome.
20. Defendants further pray for any such other and further relief to which they are
6
AR 000199
entitled to at law or in equity.
Dated: March 13, 2015 Respectfully submitted,
MAHENDRU, P.C.
By:
Ashish Mahendru
State Bar No. 00796980
Darren A. Braun
State Bar No. 24082267
639 Heights Blvd.
Houston, Texas 77007
Telephone: 713-571-1519
Facsimile: 713-651-0776
amahendru@thelitigationgroup.com
dbraun @thelitigationgroup.com
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
provided to all counsel of record in accordance with the applicable Texas Rules of Civil
Procedure on this 13th day of March, 2015.
Matias J. Adrogué Email:mja@mjalawyer.com
Robert Stephan Kaase Email: rsk@mjalawyer.com
1629 West Alabama St.
Houston, Texas 77006
William P. Huttenbach Email: phuttenbach@hirschwest.com
Hirsch & Westheimer, PC
1415 Louisiana, 36th Floor
Houston, Texas 77002
7
AR 000200
Ashish Mahendru
8
AR 000201
CAUSE NO. 2014-22186
AVANT MEDICAL GROUP, P.A. d/b/a § IN THE DISTRICT COURT OF
ALLIED MEDICAL CENTERS and §
INTERVENTIONAL SPINE §
ASSOCIATES, §
§
Plaintiffs § HARRIS COUNTY, TEXAS
§
VS. §
§
KHYATI MOHAMED UNDAVIA and §
MINU RX, LTD. § 152nd JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO
APPEAL INTERLOCUTORY SUMMARY JUDGMENT ORDER,
MOTION TO AMEND ORDER, AND REQUEST FOR STAY
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE
ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS (hereinafter
referred to as “Plaintiffs”) and files this response to Defendants’ Motion for Permission to
Appeal Interlocutory Summary Judgment Order, Motion to Amend Order, and Request for Stay
and in support thereof would respectfully show the Court as follows:
I. INTRODUCTION
1. Plaintiffs are AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE
ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL
CORP. d/b/a QUALCARE REHABILITATION.
2. Defendants are KHYATI MOHAMED UNDAVIA, MINU RX, LTD. d/b/a MEMORIAL
COMPOUNDING PHARMACY, MINU GP, LLC, and COMPASS BANK.
3. On January 30, 2015 the Defendants in this case filed a Motion for Summary Judgment
based on a release signed relating to a security deposit of a commercial lease. Plaintiffs filed
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL
INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY PAGE 1
AR 000202
their Response on February 13, 2015 and the Court heard oral argument on the Motion on
February 20, 2015. After taking the matter under consideration, the Court signed an order
granting the Defendant’s Motion for Summary Judgment as to Plaintiff Nisal Corp. and denying
the Defendants’ Motion as to all other parties.
4. Defendant now seeks to appeal the Court’s interlocutory summary judgment order.
Plaintiffs ask the Court to deny Defendants’ Motion because Defendants have not met the burden
for a permissive appeal and because an appeal from the interlocutory summary judgment is
unnecessary at this time.
I. ARGUMENT & AUTHORITIES
5. Tex. Civ. Prac. & rem. Code § 54.014(d) provides that “On a party's motion or on its own
initiative, a trial court in a civil action may, by written order, permit an appeal from an order that
is not otherwise appealable if: (1) the order to be appealed involves a controlling question of
law as to which there is a substantial ground for difference of opinion; and (2) an immediate
appeal from the order may materially advance the ultimate termination of the litigation.”
Further, Texas courts have ruled that permissive appeal is “premised on the trial court having
first made a substantive ruling on the controlling legal issue being appealed.” See, e.g. Gulley v.
State Farm Lloyds, 350 S.W.3d 204 (Tex. App.—San Antonio 2011, no pet.).
6. The Court’s March 3, 2015 Order does not contain an explicit ruling on the Question
presented by Defendants in their Motion. Defendants now ask the Court not only to amend its
Order to permit appeal, but to also provide an explicit ruling on a specific question of law. The
Court was not required to make specific conclusions of law on the issue, and did not opt to do so
in this case. Therefore, the Court’s interlocutory order is not a candidate for permissive appeal.
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL
INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY PAGE 2
AR 000203
7. Plaintiffs additionally contend that this case does not present a controlling question of
law “as to which there is a substantial ground for difference of opinion.” In their Motion for
Summary Judgment, Defendants claimed that Nisal Corp.’s signing of the release bound all of its
agents to the terms of the release, regardless of in what capacity a future suit might be brought.
Plaintiffs contended that agents of the signatory are not bound to the release because a principal
does not have authority to act on the agent’s behalf. However, at oral hearing Plaintiffs cited
case law which clearly states that “An agent acts on behalf of its principal rather than the
principal acting on behalf of the agent, and no Texas case has held that a principal owes a
fiduciary duty to an agent.” Casteel v. Crown Life Ins. Co., 3 S.W.3d 582, 590 (Tex. App—
Austin 1999), rev’d in part on other grounds 22 S.W. 3d 378 (Tex. 2000). Defendants admit in
their Motion that they have no authority to support their claim that the nonsignatory Plaintiffs are
bound by the release from asserting claims against other nonsignatories for actions not related to
either’s alleged role as an agent for any signatory. Because Defendants’ legal claims have no
basis in law, they seem to abandon their agency theory altogether and claim that the nonsignatory
Plaintiffs should be bound because they are “intimately related” to the signatories. As far as
Plaintiffs’ counsel can determine, this “intimately related” standard for determining who is
bound to a contract is heretofore unseen in Texas contract jurisprudence. Further, Defendants’
faulty assertion that Plaintiffs did not bring sufficient legal authority to support their claims is
irrelevant—is it Defendants who must prove their entitlement to judgment as a matter of law.
Therefore, the question of law on which Defendants seek review is not one for which there is a
substantial ground for difference of opinion, and Defendants’ Motion should be denied.
8. Defendants further assert that the Court may not inquire into questions of fact as to
whether the agency relationships alleged by the Defendants themselves actually exist.
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL
INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY PAGE 3
AR 000204
Defendants’ entire theory surrounding the release rests on the existence of agency relationships.
Plaintiffs’ counsel can only assume that Defendants believe the Court must take on faith that the
relationships exist based on nothing more than the argument of Defense counsel. This is simply
an attempt by Defendant to paint the issues in this case as issues of law only. However, even if
an appellate court were to decide that in some cases nonsignatories could be bound to a release
by an agency relationship, a factual inquiry would still be necessary to determine whether such
relationships exist in this case, and to what extent the parties are bound by virtue of those
relationships. Therefore, a ruling from the court of appeals would not immediately terminate the
litigation as Defendants claim. Because the Defendants cannot show that a permissive appeal
would materially advance termination of the litigation, and because their claims in the Motion
for Permissive Appeal are so inconsistent with Texas law, the Defendants’ Motion should be
denied.
9. In essence, Defendants claim that because they have no legal authority to support their
Motion for Summary Judgment, there must be a controlling question of law as to which there is a
substantial ground for difference of opinion. As shown above, there is no reasonable ground for
difference of opinion in this case. Defendants have attempted to craft new legal standards out of
whole cloth and sell them to the Court as a reasonable interpretation of nonexistent law. The
Court has already determined, when it signed the March 3, 2015 Order, that the facts of the case,
and the law as applied to those facts, is sufficient to allow this lawsuit to proceed to trial.
Therefore, Defendants have not shown adequate grounds for a permissive appeal of the Court’s
interlocutory order. For this reason, the Defendants’ Motion should be denied.
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL
INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY PAGE 4
AR 000205
III. PRAYER
For the above reasons, Plaintiffs ask the court to deny Defendants’ Motion for Permission
to Appeal Interlocutory Summary Judgment Order, Motion to Amend Order, and Request for
Stay.
Respectfully submitted,
MATÍAS J. ADROGUÉ
PROFESSIONAL LIMITED LIABILITY COMPANY
By:
Matías J. Adrogué
Attorney at Law
State Bar No. 24012192
Robert Stephan Kaase
State Bar No. 24083287
1629 West Alabama St.
Houston, Texas 77006
713-425-7270 Telephone
713-425-7271 Facsimile
service@mjalawyer.com
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has been served to all
counsel of record in accordance with the Texas Rules of Civil Procedure, on this the 17th day of
March, 2015.
Matías J. Adrogué
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL
INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY PAGE 5
AR 000206
CAUSE NO. 2014-22186
AVANT MEDICAL GROUP, P.A. § IN THE DIFIJ~~ate termination of the litigation because if the
controlling issue. of law is res~ in the Defendants' favor, then Defendants Khyati
Undavia, Minu RX, Ltd., an..1~TTT
~~U
GP, LLC will be granted final summary judgment and
Plaintiffs claims againS~ will be dismissed.
o@p
l'f I~ fi~ QiW,li1l,li1ii, JrliJJUf)B~, 1'ft IB '8Pi~ aas case Is stay;s<1
~eneiH~ 6atcm~ff5ettiIdMlts' dwell:.
~
MAR 2 0 2015
SIGNED this _ _ day of ,2015.
HO~ER~
JUDGE PRESIDING
2
AR 000208