ACCEPTED
01-13-00963-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/4/2015 5:47:47 PM
CHRISTOPHER PRINE
CLERK
No. 01-13-00963-CV
FILED IN
IN THE FIRST COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
HOUSTON, TEXAS
9/4/2015 5:47:47 PM
CHRISTOPHER A. PRINE
Clerk
MEDICAL DISCOUNT PHARMACY, L.P.,
LIFECHEK ROSENBERG GP, INC., LIFECHEK, INC., AND
BRUCE V. GINGRICH, INDIVIDUALLY,
Appellants
v.
STATE OF TEXAS,
Appellee
On Appeal from
Cause No. 12-DCV-196841
In the 434th District Court of Fort Bend County, Texas
APPELLANTS’ RESPONSE TO APPELLEE’S
MOTION FOR REHEARING
Bruce E. Ramage
State Bar No. 16492500
ramage@mdjwlaw.com
Levon G. Hovnatanian
State Bar No. 10059825
hovnatanian@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Phone
(713) 222-0101 – Facsimile
TO THE HONORABLE COURT OF APPEALS:
In its motion for rehearing, the department seeks an alteration of the
judgment that is improper because it has not filed a notice of appeal. The
department asserts the following:
The judgment of the Court of Appeals erroneously renders judgment that
the State of Texas take nothing on its claims against Lifechek Rosenberg
GP, Inc. The judgment of the Court of Appeals should be corrected to state
that Lifechek Rosenberg GP, Inc., as general partner of Medical
Discount Pharmacy, L.P., is jointly and severally liable for the judgment
rendered against the limited partnership, Medical Discount Pharmacy, L.P.
Mot. at 2. However, the judgment the Court rendered is not erroneous: The
department has never previously asked, here or in the trial court, that Lifechek
Rosenberg GP, Inc. be held jointly and severally liable for the violations MDP
supposedly committed, and it is too late to do so now.
“A party who seeks to alter the trial court’s judgment . . . must file a notice
of appeal.” TEX. R. APP. P. 25.1(c). “Unless a party seeking to alter a trial court's
judgment files a notice of appeal of its own, the appellate court is not permitted to
grant more favorable relief than the trial court except for just cause.” New York
Party Shuttle, LLC v. Bilello, 414 S.W.3d 206, 218 (Tex. App.—Houston [1st
Dist.] 2013, pet. denied). “If an appellee is satisfied with the relief granted by the
trial court, but merely wants to present additional, independent grounds for
affirming the trial court's judgment, no notice of appeal is required. The
independent grounds for affirmance can be raised in a cross-point as long as the
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appellee is not requesting greater relief than that awarded by the trial court.” Dean
v. Lafayette Place (Section One) Council of Co-Owners, Inc., 999 S.W.2d 814, 818
(Tex. App.—Houston [1st Dist.] 1999, no pet.).
In Small v. Specialty Contractors, Inc., 310 S.W.3d 639, 641 (Tex. App.—
Dallas 2010, no pet.), the trial court dismissed the litigation after the disputes had
been arbitrated. The appellants challenged the order compelling arbitration. Id. at
644. The appellee contended that trial court should have stayed the litigation, not
dismissed it. Id. at 642. The court held the appellee could not make that argument
because “appellees have not cross-appealed based on a claim the trial court erred in
dismissing, rather than staying the case.” Id. at 643.
In State Farm Mutual Automobile Insurance Co. v. Bowen, 406 S.W.3d 182,
(Tex. App.--Eastland 2013, no pet.), the trial court rendered judgment on a jury
verdict against State Farm for $20,000 under underinsured motorist coverage.
State Farm successfully argued that the trial court should have rendered a take
nothing judgment because the motorists were not uninsured or underinsured
drivers. Id. at 183, 184.
The appellee asserted that the trial court should have also rendered judgment
based on the verdict against another insurer. Id. at 185. The court held that the
appellee was improperly seeking alteration of the judgment without filing a notice
of appeal: “Any party seeking to alter a trial court's judgment or other appealable
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order must file a notice of appeal. Tex. R. App. P. 25.1(c). Unless a party seeking
to alter a trial court's judgment files a notice of appeal of its own, the appellate
court is not permitted to grant more favorable relief than the trial court except for
just cause.” Id. See also Reich & Binstock, L.L.P. v. Scates, 455 S.W.3d 178, 188
(Tex. App.—Houston [14th Dist.] 2014, pet. denied) (appellee who sought remand
for a determination of appellate attorney’s fees after affirmance was seeking more
relief than the trial court granted because it had not filed a notice of appeal).
Here, the trial court never rendered judgment that Lifechek Rosenberg GP
was jointly and severally liable for the penalties assessed against MDP based on
MDP’s conduct. CR 962. Nor did the department ever request that relief in the
trial court. The trial court rendered judgment only that Lifechek Rosenberg GP
was liable for penalties assessed against Lifechek Rosenberg GP based on Lifechek
Rosenberg GP’s supposed conduct. Thus, the department is asking for relief
greater than what the trial court granted, but has not filed a notice of appeal.
Consequently, the Court is not authorized to grant the relief the department
requests. See Bilello, 414 S.W.3d at 218.
Nor is rendering judgment that Lifechek Rosenberg GP is jointly and
severally liable for penalties assessed against MDP an independent basis for
affirming the judgment. As shown above, the judgment granted the department
relief in the form of penalties assessed against Lifechek Rosenberg GP for its own
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supposed conduct that violated the act. The rendition of judgment that Lifechek
Rosenberg GP is jointly and severally liable for penalties assessed against MDP
based on MDP’s conduct is not an independent basis for affirmance of the
judgment that held Lifechek Rosenberg GP liable for penalties based on Lifechek
Rosenberg GP’s conduct. The department makes no attempt to show that it is.
The department’s motion for rehearing should be denied.
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Respectfully submitted,
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
By: /s/ Bruce E. Ramage
Bruce E. Ramage
State Bar No. 16492500
ramage@mdjwlaw.com
Levon G. Hovnatanian
State Bar No. 10059825
hovnatanian@mdjwlaw.com
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
ATTORNEYS FOR APPELLANTS MEDICAL
DISCOUNT PHARMACY, L.P., LIFECHEK
ROSENBERG GP, INC., LIFECHEK, INC.,
AND BRUCE V. GINGRICH, INDIVIDUALLY
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CERTIFICATE OF COMPLIANCE
This is to certify that this computer-generated appellants’ response to
appellee’s motion for rehearing contains 846 words.
/s/ Bruce E. Ramage
Bruce E. Ramage
Dated: September 4, 2015
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing
appellants’ response to appellee’s motion for rehearing has been forwarded to all
counsel listed below on this 4th day of September, 2015, by the methods indicated
below:
Ms. Rosemarie M. Donnelly
OFFICE OF THE ATTORNEY GENERAL
Consumer Protection and Public Health Division
808 Travis, Suite 1520
Houston, TX 77002
rosemarie.donnelly@texasattorneygeneral.gov
(Attorneys for appellee the State of Texas)
(via e-filing and e-mail )
/s/ Bruce E. Ramage
Bruce E. Ramage
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