ACCEPTED
14-15-00378-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
5/20/2015 5:11:06 PM
CHRISTOPHER PRINE
CLERK
No. 14-15-00378-CV
FILED IN
14th COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOURTEENTH JUDICIAL DISTRICT 5/20/2015 5:11:06 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
KHYATI UNDAVIA, MINU RX, LTD., AND MINU GP, LLC,
Appellants,
vs.
AVANT MEDICAL GROUP, P.A. D/B/A INTERVENTIONAL SPINE ASSOCIATES AND
BRETT L. GARNER D/B/A ALLIED MEDICAL CENTERS,
Appellees.
On Application for Permissive Interlocutory Appeal from the
152nd Judicial District Court, Harris County, Texas
Cause No. 2014-22186, the Honorable Robert Schaffer Presiding
APPELLEES’ RESPONSE TO APPELLANTS’
MOTION TO CONSOLIDATE APPEALS
TO THE HONORABLE JUSTICES OF SAID COURT:
COME NOW, Appellees AVANT MEDICAL GROUP, P.A. D/B/A
INTERVENTIONAL SPINE ASSOCIATES AND BRETT L. GARNER D/B/A
ALLIED MEDICAL CENTERS (hereinafter “Appellees”) and submit this
Response to Appellants’ Motion to Consolidate Appeals, and in support thereof
would respectfully show the Court as follows:
I. BACKGROUND FACTS
1. Appellants are Khyati Undavia, Minu RX, Ltd. and Minu GP, LLC
(“Appellants”); Appellees are Avant Medical Group, P.A. d/b/a Interventional
Spine Associates and Brett L. Garner d/b/a Allied Medical Centers (“Appellees”).
2. On January 30, 2015 the Appellants filed a motion for summary judgment in
the trial court. Appellees responded to the motion for summary judgment and the
motion was argued at oral hearing. On March 3, 2015 the Honorable Robert
Schaffer of the 152nd Judicial District Court (“Trial Court”) signed an order
granting Appellants’ Motion only as to Nisal Corporation, a plaintiff in the Trial
Court, and denying the Appellants’ Motion as to all other plaintiffs. The March 3,
2015 order did not include any findings of fact, conclusions of law, or state an
explicit basis for the granting or denial of the motion. On March 13, 2015
Appellants filed a Motion for Permission to Appeal Interlocutory Summary
Judgment Order, Motion to Amend Order, and Request for Stay. After response
and oral hearing, the Trial Court granted Appellants’ Motion on March 20, 2015
and signed an amended summary partial summary judgment granting permissive
appeal and denying a stay of the trial court proceedings.
3. On April 3, 2015 the Appellants filed their first Petition for Permission to
Appeal Interlocutory Order, seeking permission to appeal the March 20, 2015
summary judgment order, in Case No. 14-15-00295-CV (“First Appeal”). On
April 16, 2015 the Appellees filed a Motion to Dismiss the First Appeal for lack of
jurisdiction. On April 20, 2015 the Appellees filed their Response to Appellants’
Petition for Permission to Appeal Interlocutory Order in the First Appeal.
4. On April 17, 2015 the Appellants filed a motion to amend the summary
judgment order with the Trial Court, which the Trial Court granted after oral
hearing on April 24, 2015.
5. Appellants filed their second Petition for Permission to Appeal Interlocutory
Order in the present case on April 27, 2015, seeking permissive appeal from the
Trial Court’s second amended summary judgment order dated April 24, 2015. On
May 4, 2015, the Appellants filed a Motion to Consolidate Appeals. For reasons
shown below, Appellees ask the Court to deny the Appellants’ Motion.
II. ARGUMENT & AUTHORITIES
6. In the present case, the Appellants have filed two separate petitions for
permissive appeal, under two separate case numbers, concerning the Trial Court’s
ruling on the same motion for summary judgment.
7. In the First Appeal, Case No. 14-15-00295-CV, Appellants attempted to
bring a permissive interlocutory appeal from an order which did not meet the
jurisdictional requirements for permissive appeal. Based on this fact, the
Appellees filed a motion to dismiss the First Appeal for lack of jurisdiction, a
motion which is still pending before the Court. In the present appeal, from the
Trial Court’s second amended order, Appellees have not challenged the Court’s
jurisdiction, Appellants have already filed a new petition for permissive appeal,
and Appellees have already filed their response to the petition.
8. Consolidating the two appeals is unnecessary. The only issue unique to the
First Appeal is whether the Court has jurisdiction based on the Trial Court’s first
amended order. However, the Trial Court has already amended the summary
judgment order which was challenged by the Appellees. Therefore, even if the
Court were to deny Appellees’ motion to dismiss the First Appeal, there would be
no need for the First Appeal to continue because the present appeal already
addresses the trial court’s newly amended order.
9. Appellants could have continued the First Appeal as though it was an appeal
from the trial court’s second amended summary judgment order dated April 24,
2015, pursuant to TEX. R. APP. P. 27.3. Alternatively, the Appellants can
voluntarily dismiss the First Appeal and continue solely in the present appeal. In
short, there is no reason to consolidate the two appeals because the First Appeal is
either (1) unnecessary due to the existence of the present appeal or (2) also an
appeal from the same second amended summary judgment order dated April 24,
2015 based on the provisions of TEX. R. APP. P. 27.3. For this reason, the Court
should deny Appellants’ Motion to Consolidate Appeals.
III. PRAYER
WHEREFORE, PREMISES CONSIDERED, and considering the foregoing,
Appellees, AVANT MEDICAL GROUP, P.A. D/B/A INTERVENTIONAL
SPINE ASSOCIATES AND BRETT L. GARNER D/B/A ALLIED MEDICAL
CENTERS, respectfully pray that this Court deny Appellants’ Motion to
Consolidate Appeals.
Respectfully submitted,
MATÍAS J. ADROGUÉ
PROFESSIONAL LIMITED LIABILITY COMPANY
By:
Matías J. Adrogué
Attorney at Law
TX State Bar No. 24012192
Robert Stephan Kaase
TX State Bar No. 24083287
1629 W. Alabama St.
Houston, Texas 77006
713-425-7270 Telephone
713-425-7271 Facsimile
service@mjalawyer.com
ATTORNEY FOR APPELLEES
CERTIFICATE OF SERVICE
I certify that on May 20, 2015, a true and correct copy of Appellees’
Response to Appellants’ Motion to Consolidate Appeals was served via electronic
filing, email, or facsimile as follows:
Ashish Mahendru
State Bar No. 00786980
Darren A. Braun
State Bar No. 24082267
Mahendru, P.C.
639 Heights Blvd.
Houston, Texas 77007
713-571-1519 telephone
713-651-0776 facsimile
amahendru@thelitigationgroup.com
dbraun@thelitigaitongroup.com
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 telephone
713-223-9319 facsimile
Matías J. Adrogué
CERTIFICATE OF COMPLIANCE
I, Matías J. Adrogué, certify that this Appellees’ Response to Appellants’
Motion to Consolidate Appeals was electronically prepared and that according to
the program’s word count function the portions of this Response subject to the
restrictions of Tex. R. App. P. 9.4(i)(1) contain a total of 779 words.
Matías J. Adrogué
Minu RX, Ltd. D/B/A Memorial Compounding Pharmacy Minu GP, LLC v. Avant Medical Group, P.A. D/B/A Interventional Spine Associates, and Brett L. Garner D/B/A Allied Medical Centers
Combined Opinion