Sandeep Patel v. Harbor Hospice of Beaumont, LP

ACCEPTED
13-15-00452-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
10/13/2015 10:43:12 AM
Dorian E. Ramirez
CLERK

NO. 13-15-00452- CV

IN THE THIRTEENTH COURT OF APPEALS FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI-EDINBURG, TEXAS
CORPUS CHRISTI/EDINBURG, TEXAS
__________________________________________________________________
10/13/2015 10:43:12 AM
DORIAN E. RAMIREZ
SANDEEP PATEL, Clerk
Appellant

v.

HARBOR HOSPICE OF BEAUMONT, L.P., ET AL,
Appellees
__________________________________________________________________

172nd Judicial District Court of Jefferson County, Texas
On Appeal from the 172nd
Trial Court Cause No. E-192,576
The Honorable Donald J. Floyd, Presiding
__________________________________________________________________

BRIEF OF APPELLANT
__________________________________________________________________

PORTNER ♦
PORTNER ♦BBoND, PLLC
OND, PLLC
Chris M. Portner
State Bar No. 24007858
cportner@portnerbond.com
J. Trenton Bond
State Bar No. 00785707
tbond@portnerbond.com
1905 Calder Avenue
Beaumont, Texas 77701
Telephone: (409) 838-4444
(409) 554-0240
Facsimile: (409)

COUNSEL
COUNSEL FOR AAPPELLANT,
PPELLANT,
SANDEEP
S PATEL
ANDEEP PATEL

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

APPELLANT
Sandeep Patel

APPELLANT’S COUNSEL(S)
APPELLANT'S
Chris M. Portner
State Bar No.: 24007858
cportner@portnerbond.com
J. Trenton Bond
State Bar No.: 00785707
tbond@portnerbond.com
P ORTNER ♦
PORTNER ♦ BOND,
BOND, PLLC
PLLC
1905 Calder Avenue
Beaumont, Texas 77701
Telephone: (409) 838-4444
(409) 554-0240
Facsimile: (409) 554-0240

Anthony Malley, III
State Bar No.: 24041382
tony@mallaw.com
MALLEY LLAW
MALLEY AW FFIRM,
IRM, PLLC
PLLC
905 Orleans, Suite 110
Beaumont, Texas 77701
Telephone: (409) 212-8888
(409) 212-8002
Facsimile: (409) 212-8002

Jamie Matuska
MATUSKA L
MATUSKA AW F
LAW FIRM
IRM
State Bar No.: 24051062
jamie@matuskalaw.com
2809 Highway 69 North
Nederland, Texas 77627
Telephone: (409) 722-5600
(409) 727-1290
Facsimile: (409) 727-1290

ii
APPELLEE(S)
Beaumont, L.P.
Harbor Hospice of Beaumont, L.P.
Harbor Hospice Managers, LLC
Arfeen Properties, L.P.
Qamar Arfeen

APPELLEES COUNSEL(S)
David Gaultney
State Bar No.: 07765300
davidgaultney@mehaffyweber.com
MEHAFFYWEBER, P.C.
MEHAFFYWEBER, P.C.
823 Congress Avenue, Suite 200
Austin, Texas 78701
Telephone: (512) 394-3840
(512) 394-3860
Facsimile: (512)

David E. Bernsen
State Bar No.: 02217500
dbernsen@bernsenlaw.com
Christine L. Stetson
State Bar No.: 00785047
cstetson@bernsenlaw.com
BERNSEN L
BERNSEN AW F
LAW FIRM
IRM
420 North MLK, Jr., Pkwy
Beaumont, Texas 77701
Telephone: (409) 212-9994
(409) 212-9411
Facsimile: (409) 212-9411

Glen W. Morgan
State Bar No.: 14438900
gmorgan@rmqlawfirm.com
John Werner
State Bar No.: 00789720
jwerner@rmqlawfirrn.com
jwerner@rmqlawfirm.com
REAUD,
R MORGAN
EAUD, M ORGAN & &QQUINN, LLP
UINN, LLP
P.O. Box 26005
Beaumont, Texas 77720-6005
Telephone: (409) 838-1000
(409) 833-8236
Facsimile: (409)
ii
TRIAL COURT
Honorable Donald J. Floyd
Judge Presiding
172nd Civil District Court
Jefferson County Courthouse
1001 Pearl Street
Beaumont, Texas 77701
Telephone: (409) 835-8485

iii
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ..............................................................ii

TABLE OF CONTENTS...........................................................................................iv
CONTENTS iv

INDEX OF AUTHORITIES.....................................................................................vii
AUTHORITIES vii

CASE
STATEMENT OF THE CASE................................................................................... x

PRESENTED...............................................................................................xi
ISSUES PRESENTED xi

STATEMENT OF FACTS ......................................................................................... 1

SUMMARY OF ARGUMENT ................................................................................ 12

ARGUMENT ............................................................................................................ 15

I. The
TheTrial
TrialCourt
CourtErred
ErredininGranting
GrantingAppellees'
Appellees’Amended Amended
Motion for Summary Judgment ................................................................
……...15 ..15

ISSUE ONE:
A. ISSUE ONE: Appellees
Appellees Did
Did Not
Not Establish a Statute
of Limitations Defense as a Matter of Law ............................... 16

1. Summary
1. Judgment Evidence
Summary Judgment Evidence Establishes
Establishes Patel Patel
Partner in Harbor
Was a Partner Harbor Hospice
Hospice After June 15,
2008 .........................................................................................
……...18 ..18

2. Appellees Failed to Establish As a Matter of Law
That Patel
That Patel Was
Was No Longer
Longer a Partner
Partner inin Harbor
Harbor
Hospice On or Before June 15, 2008
2008................................
……...20 ..20

a. The
a. The Parker
Parker Letter
Letter does
does not
not terminate
terminate
Patel’s limited
Patel's limited partnership interest
interest..............................
……...20 20

b. Amendment 4 to the partnership agreement
was executed on November 10, 2011...........................
2011 ……...22 ..22

c.
c. Undated Amendment 4 No. 4 ................................... 22

iv
iv
 Appellees failed
d. Appellees failed to
to establish
establish as
as a Matter of
Law that Patel knew or should have known
of any injury on or before June 15, 2008
2008.....................
…..….23 23

e.
e. Patel never testified
Patel never testified that that his his limited
limited
partnership interest
partnership interest was was terminated,
terminated,
redeemed or
redeemed transferred to
or transferred to Defendant
Defendant
Arfeen
Arfeen................................................................ .24
……...24

3. Appellees
3. Appellees Failed
Failed to to Establish
Establish as as aa Matter
Matter of
Law that Patel's
Law that Patel’s Cause Cause of of Action
Action for for
Conversion
Conversionand and Under
Under the the Texas
Texas Theft Theft
Liability
Liability Act
Act Accrued
Accrued on on or Before
Before June 15,
2010 ...................................................................................
……...24 ..24

Appellees Failed
4. Appellees Failed to
to Conclusively
Conclusively Establish
Establish
Discovery Rule that Patel Knew or
Under the Discovery
Reasonably
Reasonably Should
Should Have
Have Known That His
Known That His
Interest Was Terminated by June 15, 2008........................
2008 …...…26
........26

5. Appellees Failed
5. Appellees Failed to to Conclusively
Conclusively Negate Negate
Patel’s Affirmative Defense
Patel's Affirmative Defense of of Fraudulent
Fraudulent
Concealment ................................................................
……...31 ..31

ISSUE TWO:
B. ISSUE TWO: The Trial
Trial Court
Court Erred
Erred in in Concluding
Concluding
that No Genuine
that Genuine Issue
Issue of Material
Material Fact Exists Exists on on
Any of Patel’s Claims...................................................
Patel's Asserted Claims ……...32 ..32

1. The
1. trial court
The trial court erred
erred iningranting
granting summary
summary
judgment regarding
judgment regarding Patel’s breach of
Patel's breach of fiduciary
fiduciary
duty claims
duty claims because
because the
the summary
summary judgment
judgment
evidence raises questions of material fact ...............…..….33
33

2. The trial court
The trial court erred
erred iningranting
granting summary
summary
judgment regarding
judgment regarding Patel’s breach of
Patel's breach of contract
contract
claim because the
claim because the summary
summary judgment
judgment evidence
evidence
raises questions of material fact................................
fact ……...36
..36

v
 3. The
3. trial court
The trial court erred
erred iningranting
granting summarysummary
judgment regarding
judgment regarding Patel's
Patel’s conversion
conversion claim claim
because the summary
because summary judgment
judgment evidence
evidence raises raises
questions of material fact................................
fact ........................
……...37 ..37

4. The trial court
The trial court errederred iningranting granting summarysummary
judgment regarding
regarding Patel’sPatel's claim for Texas Theft
Liability
Liability Act violations because
Act violations because the the summary
summary
judgment evidence
judgment evidence raises raises questions
questions of material material
fact ..........................................................................................
……...38 38

5.
5. The trial court
The trial court erred
erred iningranting
granting summary
summary
judgment regarding
judgment regardingPatel’s
Patel's claim for fraud
claim for fraud
because Appellees
because Appellees did not seek
did not seek summary
summary
judgment regarding Patel’s claim................................
Patel's fraud claim ……...40 40

C.
C. ISSUE THREE: The Trial Court Erred in Concluding
Appellees Conclusively
Appellees Conclusively Established
Established that that Patel
Patel Did Did
Not Suffer Damages ................................................................
……...40 40

D. ISSUE
ISSUE FOUR:
FOUR: The The Trial
Trial Court
Court ErredErred in in Granting
Granting
Summary
Summary Judgment
Judgment Because Because Appellee’s
Appellee's Failed Failed to
Authenticate Any
Authenticate Any of Their Their Summary
Summary Judgment Judgment
Evidence................................................................
Evidence .......................
……...43 43

E. CONCLUSION and PRAYER for RELIEF ....................................................... 44

CERTIFICATE OF SERVICE ................................................................................. 46

CERTIFICATE OF COMPLIANCE, TEX. R. APP. PROC. 9.4(1)(3) ................... 47

APPENDIX

June 18, 2015 Order on Defendants’
Defendants' Amended Motion for Summary
Judgment..................................................................................................
Judgment 1AB
TAB A

vi
vi
 INDEX OF AUTHORITIES

CASES

Alaniz v. Hoyt,
330, 344
105 S.W.3d 330, 344 (Tex.
(Tex. App.
App.—– Corpus
Corpus Christi
Christi 2003,
2003, not pet.)...............15
pet.) 15

Aquaplex, Inc. v. Rancho La Valencia, Inc.,
42
297 S.W.3d 768, 775-776 (Tex. 2009)..........................................................42
2009)

Blanche v. First Nationwide Mortg. Corp.
74 S.W.3d 444, 451 (Tex. App. Dallas 2002) ..............................................44
44

Bliss v. NRG Industries,
S.W.3d 434
162 S.W.3d 434 (Tex.
(Tex. App.
App.—– Dallas
Dallas 2005,
2005, pet.
pet. denied) ..............................15
15

BP America Prod. Co. v. Marshall,
342 S.W.3d 59, 67-69 (Tex. 2011) ................................................................31
31

Dernick Resources, Inc. v. Wilstein,
st
312 S.W.3d 864, 878 (Tex. App.—Houston [1
[1St Dist.] 2009, no pet.)..........31
pet.) 31

Doe v. Boys Club of Greater Dallas, Inc.,
907 S.W.2d 472, 476-77 (Tex. 1995)............................................................16
1995) 16

Friendswood Dev. Co. v. McDade & Co.,
926 S.W.2d 280, 282 (Tex. 1996) .................................................................15
15

Gaddis v. Smith,
417 S.W.2d 577, 578 (Tex. 1977) .................................................................26
26

G&H Towing Co. v. Magee,
347 S.W.3d 293, 297 (Tex. 2011) .................................................................40
40

Graham Morg.
Morg. Corp.
Corp. v.
v. Hall,
Hag
307 S.W.3d 472, 479 (Tex. App. - Dallas 2010, no pet)...............................33
pet) 33

Groves v. Hanks,
546 S.W.2d 638, 647 (Tex. Civ. App. Corpus Christi 1976)........................42
1976) 42

vii
vii
Haas v. George,
71 S.W.3d 904, 913 (Tex. App.—Texarkana 2002, no pet.) ........................32
32

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009) .................................................................15
15

Messner v. Boon,
2015 Tex. App. LEXIS 747, *30 (Tex. App. Texarkana Jan. 28, 2015) ......17
17

Moreno v. Sterling Drug, Inc.,
787 S.W.2d 348, 351 (Tex. 1990) .................................................................26
26

Nautilus Training Center No. 2, Inc. v. Seafirst Leasing Corp.,
647 S.W.2d 344,
344, 346-47
346-47 (Tex.
(Tex. App.
App.—– Corpus
Corpus Christi
Christi 1982,
1982, no writ)..........16
writ) 16

Qaddura v. Indo-European Foods, Inc.
Inc,,
141 S.W.3d 882, 888-890 (Tex. App. Dallas 2004)......................................41
2004) 41

Punts v. Wilson,
137 S.W.3d 889, 891 (Tex. App. Texarkana 2004) ......................................42
42

Rhone-Poulenc, Inc. v. Steel,
997 S.W.2d 217, 223 (1999)..........................................................................16
(1999) 16

Santanna Natural Gas v. Hamon Operations,
954 S.W.2d 885, 890-891 (Tex. App.—Austin 1997, pet. denied).........17,
denied) 17, 31

Schneider Nat’l Carriers, Inc. v. Bates,
Nat'l Carriers,
147 S.W.3d 264, 279 (Tex. 2004) .................................................................21
21

Shell Oil Co. v. Ross,
356 S.W.3d 924, 927 (Tex. 2011) .................................................................31
31

S.V. v. R.V.,
26, 27
933 S.W.2d 1, 4 (Tex. 1996) ...................................................................26,

Willis v. Maverick,
760 S.W.2d 642, 646 (Tex. 1988) .................................................................26
26

viii
viii
RULES

Tex. R. Civ. P. 166a .................................................................................................15
15

Tex. R. Civ. P. 166a(c) ............................................................................................15
15

ix
ix
 STATEMENT OF THE CASE

This is an
This an appeal
appeal by
by Plaintiff
Plaintiff Sandeep
Sandeep Patel ("Patel")
("Patel") from motion for
from a motion

summary judgment granted in favor of Appellees, disposing of all of Patel's claims

against Appellees
against Appellees in
in a lawsuit for fraud,
fraud, breach
breach of contract,
contract, breach
breach of
of fiduciary
fiduciary

duty, conversion,
duty, conversion, for
for violations
violationsofof the Texas Theft
the Texas Theft Liability
Liability Act, and for
Act, and for

declaratory relief.

xx
 ISSUES PRESENTED

1.
1. Issue One: The
Thetrial
trialcourt
courterred
erredin
ingranting
granting summary
summary judgment
judgment based upon
Appellees’ affirmative
Appellees' affirmative defense
defense of statute of limitations because the summary
judgment evidence raises questions of material fact.

2. Issue Two:
Two: TheThetrial
trialcourt
courterred
errediningranting
grantingsummary
summary judgment
judgment upon all
Appellees’ alleged
Appellees' alleged causes
causes of
of action
action because the summary judgment evidence
raises questions of material fact regarding the merits of each alleged claim.

a.
a. The trial court erred in granting
granting summary
summary judgment
judgment regarding Patel's
breach of fiduciary
breach fiduciary duty
duty claim
claim because
because the
the summary
summary judgment
judgment
evidence raises questions of material fact.

b. The trial court erred in granting
granting summary
summary judgment
judgment regarding Patel's
breach of contract
breach contract claim
claim because
because the
the summary
summary judgment
judgment evidence
evidence
raises questions of material fact.

c.
c. The trial court erred in granting
granting summary
summary judgment
judgment regarding Patel's
conversion
conversion claim because the summary
claim because summary judgment
judgment evidence
evidence raises
raises
questions of material fact.

d. The trial court erred in granting
granting summary
summary judgment
judgment regarding Patel's
violations of the Texas Theft Liability Act claim because the summary
judgment evidence raises questions of material fact.

e.
e. The trial court erred in granting
granting summary
summary judgment
judgment regarding Patel's
claim fraud because
claim for fraud because Appellees
Appellees did not
not seek
seek summary
summary judgment
judgment
regarding Patel’s
Patel's fraud claim.

6. Issue Three:
Three: The
Thetrial
trialcourt
courterred
errediningranting
grantingsummary
summary judgment
judgment and
and
finding
finding that
that Patel did not
not suffer
suffer damages
damages because
because the
the summary
summary judgment
judgment
evidence raises questions of material fact.

7. Issue Four: TheThetrial
trialcourt
courterred
errediningranting
grantingsummary
summary judgment
judgment because
because
Appellees' failed to authenticate any of their summary judgment evidence.

xi
xi
 STATEMENT OF FACTS

Patel and Qamar Arfeen ("Arfeen") were limited partners in Harbor Hospice

of Beaumont, LP
of Beaumont, LP ("Harbor
("HarborHospice").
Hospice"). (C.R.
(C.R. 42-88). The general
42-88). The general partner
partner of

Harbor Hospice
Harbor Hospice is
is Harbor
Harbor Hospice
Hospice Managers,
Managers,LLC. 87, 126-129,
LLC. (C.R. 84, 87, 126-129, 135-

140, 171-203).

Patel received a 3% Class A Limited Partnership Interest in Harbor Hospice

of Beaumont,
Beaumont, LP
LP in
in 2005. 83). Several
2005. (C.R. 79, 83) Severalamendments
amendments were
were allegedly
allegedly then

made to the
made the Harbor
Harbor Hospice
Hospice Limited
Limited Partnership
Partnership Agreement
Agreement (the
(the "Partnership
“Partnership

Agreement”). (C.R.
Agreement"). (C.R. 126
126 - 129, 135-
135- 140,
140, 171
171 - 203).
203). Patel's
Patel's Class
Class A
A Limited
Limited

Partnership
Partnership Interest
Interest in Harbor Hospice
Hospice was increased
increased to 6% in Amendment No. 2

to Agreement of Limited Partnership
Partnership of
of Harbor
Harbor Hospice.
Hospice. (C.R. 176-180).

Appellees' decided
At some point, the Appellees' decided to implement aa plan
to implement Arfeen to
plan for Arfeen

improperly take
improperly possession of
take possession Patel's limited
of Patel's limited partnership
partnership interest
interest in Harbor
Harbor

Hospice. Appellees'
Hospice. Appellees' had
had several
several options
options about
about how
how to try to take
take possession
possession of

Patel's
Patel's limited
limited partnership
partnership interest. First of
interest. First of all,
all, Harbor
Harbor Hospice
Hospice could
could attempt to

terminate Patel’s
terminate limited partnership
Patel's limited partnership interest
interest for alleged
alleged wrongful
wrongful conduct
conduct and

forfeit
forfeit the limited partnership
the limited partnership interest
interestback
backto
to the
the partnership. If this
partnership. If this occurred,
occurred,

Patel's limited
limited partnership
partnership interest
interest would
would be
be returned
returned to
to the
the partnership
partnership and
and all
all of

partners would
the partners would benefit
benefit on
on a pro-rata
pro-rata basis. Secondly, Harbor
basis. Secondly, Harbor Hospice
Hospice could
could

attempt to
attempt redeem Patel’s
to redeem Patel's interest.
interest. IfIfthis
thisoccurred,
occurred, Patel's
Patel's interest
interest would
would be

1
1
returned to the partnership and all of the partners would benefit on a pro-rata basis.

Finally, Arfeen
Finally, Arfeen could
could seek
seek to acquire Patel's
to acquire Patel’s interest
interest directly
directly from
from Patel
Patel and
and

transfer the
transfer shares to
the shares Arfeen. However,
to Arfeen. However, ififArfeen
Arfeen acquired
acquired Patel's
Patel’s limited
limited

partnership interest
partnership interestdirectly,
directly,he
hewould
wouldhave
havetoto pay
pay Patel
Patel the
the fair value for the
fair value

shares.

Apparently, none
Apparently, none of
of these
these options
options were
were appealing
appealing to
to Arfeen. Therefore,
Arfeen. Therefore,

instead of complying the terms of the Partnership Agreement, Appellees decided to

wrongfully transfer
wrongfully transfer Patel’s
Patel's limited
limited partnership
partnership interest
interest to
to Arfeen,
Arfeen, to Patel
to pay Patel

nothing, to not inform Patel that the transfer occurred, and to ultimately create false

documents in an effort to conceal this improper transaction.

Arfeen Wrongfully Took Possession of Patel’s
Patel's Limited Partnership Interest

Appellees’ Amended
In Appellees' Amended Motion
Motion for
for Summary
Summary Judgment,
Judgment, Appellees'
Appellees' assert
assert

Patel’s Limited
that Patel's Limited Partnership
Partnership Interest was terminated
terminated or redeemed
redeemed by Harbor
Harbor

Hospice. However,
Hospice. However, in
in reality,
reality, Patel's
Patel’s Limited
Limited Partnership
Partnership Interest
Interest was
was not
not

redeemed, terminated
redeemed, terminated or
or otherwise
otherwise returned
returnedto
to Harbor
HarborHospice
Hospiceininany
anymanner.
manner. It

was improperly
improperly transferred
transferred directly
directly to
to Arfeen. This improper
Arfeen. This improper transfer
transfer was made
made

without consideration
without considerationand
and without
withoutever
ever informing
informingPatel. Appellees failed
Patel. Appellees failed to

produce summary judgment evidence demonstrating
demonstrating that
that Patel was ever informed

limited partnership
that his limited partnership interest in Harbor Hospice was transferred directly to

Arfeen.

22
 The Harbor
The Harbor Hospice
Hospice General
General Ledger
Ledger for the year
for the year 2009
2009conclusively
conclusively

establishes
establishes that Patel’s limited
that Patel's limited partnership
partnership interest
interest was transferred
transferred directly
directly to

(C.R. 204
Arfeen. (C.R. 204 -- 206). The
The2009
2009 General
General Ledger
Ledger states:

01/01/09 “Transfer of
"Transfer 2008 partnership
of 2008 partnership interest
interest from
from
Chaudhury &
Chaudhury Patel to
& Patel to Arfeed'.
Arfeen”. (C.R.
(C.R. 204
204 -- 205)
205)
(“emphasis added”).
("emphasis added').

Clearly,
Clearly, if Patel's
Patel’s limited
limited partnership
partnership interest
interest was
was transferred
transferred directly
directly to

Arfeen, then Patel's
Arfeen, Patel’s limited
limited partnership
partnership interest could not have
have been
been terminated,
terminated,

forfeited, or redeemed.

The transfer of Patel's
Patel’s limited
limited partnership
partnership interest is explained in an e-mail

dated April 6, 2009 from Harbor Hospice’s
Hospice's accountant, Monica Surratt:

Paul pointed out
Paul pointed out that
that Sandeep
Sandeep Patel
Patel && Trip
Trip Chaudhury
Chaudhury were
were
included in the Due from
from Partners
Partners account.
account. Since both of them are
out as of 1/1/08, what should I do with these balances?

Since partnership did
Since the partnership did not interest back
not buy their interest back (it was
transferred to Qamar instead of re-allocated among the other
transferred
then any
partners), then anypurchase/payment
purchase/payment should
should have
have happened
happened
outside of the
the partnership.
partnership. (C.R. 207)(“emphasis
207)("emphasis added”).
added').

After the direct
After direct transfer
transfer of Patel's
Patel’s limited
limited partnership
partnership interest
interest to
to Arfeen,
Arfeen,

Harbor Hospice
Harbor Hospice filed
filed Form
Form 8308,
8308, Report
Report of
of aa Sale
Sale or
or Exchange
Exchange of
of Certain
Certain

Partnership
Partnership Interests
Interests(“Form
("Form8308”)
8308")with
with the
the Internal
Internal Revenue
RevenueService. (C.R.
Service. (C.R.

208). Form
208). Form 8308
8308 was
was filed
filed with
with the
the Internal
Internal Revenue
Revenue Service
Service on April 7, 2009.
2009.

(C.R. 209). In
InForm
Form 8308,
8308, Harbor
Harbor Hospice
Hospice informed
informed the Internal
Internal Revenue Service,

3
3
under penalty of perjury, that Patel’s
Patel's limited partnership interest in Harbor Hospice

was transferred directly
directly to
to Arfeen. 208).
Arfeen. (C.R. 208)

These documents
These documents clearly
clearly establish
establish that Patel’s limited
that Patel's limited partnership
partnership interest
interest

transferred directly
was transferred directly from
from Patel
Patel to
to Arfeen. Unfortunately, the Appellees
Arfeen. Unfortunately, Appellees never

informed Patel
informed Patel that
that his
his interest
interest was
was transferred
transferredtoto Arfeen. This is
Arfeen. This is not
not disputed.
disputed.

Ultimately, Arfeen
Ultimately, Arfeen transferred
transferred Patel's
Patel's limited partnership interest
limited partnership interest in Harbor
Harbor

Hospice to Arfeen
Arfeen Properties,
Properties, LP.
LP. (C.R. 193-198). There
There is
is no
no summary
summary judgment

evidence
evidence suggesting
suggesting that
that Patel
Patel was informed that
was ever informed that his
his limited
limited partnership
partnership

interest was transferred to Arfeen and then to Arfeen Properties, LP.

Patel's Limited Partnership Interest in Harbor Hospice Was Never Terminated

Section 10.2 of the Harbor Hospice Partnership Agreement provides:

All
All ofof the
thegeneral
generalpartners
partners maymayunanimously
unanimously terminate
terminate the the
interest of a limited partner and expel him(a) for interfering in the
management of
management the partnership
of the partnership affairs
affairs or otherwise
otherwise engaging
engaging in
conduct which could result in the partnership losing losing its tax status as a
partnership, (b)
partnership, (b)ifif the conduct of
the conduct of aa limited
limited partner
partner brings
brings the the
partnership into disrepute, or (c) for failing to meet any commitment
the partnership
to the partnership or manager
manager in in accordance
accordance with any any written
written
undertaking signed
undertaking signed by by such limited partner,
such limited partner, butbut thethe general
general
partners shall
partners shall not
not be required
required to so so terminate.
terminate. In In each
each of of the
the
foregoing
foregoing events,
events, the
the expulsion
expulsion andand termination
termination may,may, in the sole
in the sole
discretion of
discretion of the general partners
the general partners in order to
in order to compensate
compensate for for any
any
damages caused
damages causedto to the partnership, result
the partnership, resultinin aa forfeiture
forfeiture to the
to the
partnership of
partnership of all or a portion
portion of the
the value
value of
of the
the partnership
partnership interest
interest
of the expelled
expelled partner at the timetime ofof such
such expulsion
expulsion or or termination.
termination.
(C.R. 62)(“emphasis
62)("emphasis added”).
added").

4
4
 There is no
There no summary
summary judgment
judgment evidence
evidence to establish
establish that the
the general
general

partners of Harbor Hospice unanimously
unanimously terminated
terminated Patel’s
Patel's interest as required by

Section 10.2 of the Harbor
Harbor Hospice
Hospice Partnership
Partnership Agreement.
Agreement. The general partner of

Harbor Hospice
Harbor Hospice is
is Harbor
Harbor Hospice
Hospice Managers,
Managers,LLC. 87, 126-129,
LLC. (C.R. 84, 87, 126-129, 135-

140, 171-203).
140, 171-203). There
There isisno
nosummary
summaryjudgment
judgment evidence
evidence that
that Harbor
Harbor Hospice
Hospice

Managers, LLC ever took any action to terminate the interest of Patel.

Furthermore, there
Furthermore, there is summary judgment
is no summary judgment evidence
evidence to establish
establish that
that

Patel’s Limited Partnership
Patel's Limited Partnership Interest
Interest in
in Harbor
Harbor Hospice
Hospice was
was ever
ever terminated.
terminated. No

witness testimony
witness testimony alleges
alleges Patel’s limited partnership
Patel's limited partnership interest
interest in Harbor
Harbor Hospice
Hospice

was ever terminated.
was terminated. No
Nodocument
document establishes
establishes that
that Patel's
Patel’s limited
limited partnership
partnership

interest in
interest Harbor Hospice
in Harbor Hospice was ever terminated.
was ever terminated. The
The only
only summary
summary judgment
judgment

evidence
evidence that
that even
even mentions
mentions termination
termination isis aa letter
letter dated
dated March
March 4, 2008 to Patel

from Maggie Parker (the “Parker
"Parker Letter”). 121-125).1
(C.R. 121-125)1
Letter"). (C.R.

When presented with a copy of this letter in his deposition and a copy of the

green card
green card showing
showing his wife’s signature
his wife's signature evidencing
evidencing receipt
receipt of letter, Patel
of the letter, Patel

acknowledged his
acknowledged his wife’s signature and
wife's signature receipt as evidenced
and receipt evidenced by the
the documents.
documents.

(C.R. 94-95). However, Patel
94-95). However, Patel did
did not
not recall
recall seeing
seeing the
the letter
letter or whether
whether his wife

brought the letter to his
brought his attention;
attention; he further
further testified
testified that his wife
wife handled
handled their

'1 The Parker Letter attached to Defendants' Amended Motion for Summary Judgment is missing
second page.
the second However, the
page. However, the full
full letter
letter isis in
inthe
theDefendant's
Defendant’s original
original motion
motion for
for summary
summary
judgment filed as a supplemental clerk’s
clerk's record in this Court.
55
financials and that he was certain that his wife or his accountant would have taken

care
care of after receiving
of it after receiving the
the letter. (C.R. 97,
letter. (C.R. 97, 98).
98). Appellees
Appellees presented
presented no
no

summary judgment evidence conclusively
conclusively establishing
establishing that
that Patel
Patel failed to comply

with Parker’s financials.2
request for financials
Parker's request

Additionally, Appellees
Additionally, Appellees presented
presented no summary judgment
no summary judgment evidence
evidence that
that

Harbor Hospice’s
Hospice's general partner took any action against Patel’s
Patel's interest as a result

of any alleged noncompliance
noncompliance with
with the
the letter. Although the
letter. Although the Parker
Parker Letter
Letter clearly
clearly

threatens termination
threatens terminationifif certain
certain conduct
conductdid
did not
not occur,
occur, itit does
does not provide
provide any

evidence
evidence whatsoever
whatsoever that
that the termination actually
the termination actually occurred. Furthermore, the
occurred. Furthermore,

Parker
Parker letter
letter does provide any evidence
does not provide evidence that the general
general partner
partner of Harbor
Harbor

Hospice unanimously
Hospice unanimouslyterminated
terminatedthe
theinterest
interestofofPatel
Pateland
andexpelled
expelledhim. The
him. The

Parker
Parker Letter
Letter was
was aa threat
threat and
and nothing
nothing more. There isisno
more. There nosummary
summary judgment
judgment

evidence
evidence that
that the general partner
the general partner took
took any
any action
action to
to terminate
terminate Patel's
Patel's limited
limited

partnership interest and expel him after the Parker Letter.

Patels' Limited Partnership Interest in Harbor Hospice Was Never Redeemed

Section 8.5 provides:

(a) The partnership
partnership interests
interests of
of all limited
limited partners
partners are subject
subject to
redemption
redemption by the partnership
by the partnership at at the
the election
election of
of the
the general
general
partners. In the event
In the event the
the general
general partners
partners make
make such
such an
an

2
2 only arguably
The only arguably controverting
controverting evidence
evidence that Appellees
Appellees submitted
submitted was
was the
the inconclusive
inconclusive
deposition testimony
deposition testimony of
of Joe
Joe Chapman
Chapman wherein
wherein hehe testified
testified that
that he
he was aware there were some
issues with
issues getting partners
with getting partners to provide financials
to provide financialstoto the bank prior
the bank prior to the
the refinance,
refinance, and
and
speculated, but could not say for certain,
certain, that
that Patel
Patel failed
failed to
to provide
provide financials.
financials. (C.R. 117)
6
6
 election, the general partners shall provide the limited partner
partnership interest
whose partnership interest is to be
be redeemed
redeemed (the
(the "Redeemed
“Redeemed
Partner”) with
Partner") with aa least
least sixty days’ prior written
sixty days' written notice
notice of the
redemption.

(b) The purchase price of the Redeemed
(b)The Redeemed Partner’s
Partner's LPI shall equal the
balance of the
balance the Redeemed
Redeemed Partner's
Partner’s capital
capital account
account established
established
under Section 5.1 hereof, determined
determined as of the end of the calendar
month
month immediately preceding the
immediately preceding the month
month inin which
which the
the closing
closing of
redemption transaction
the redemption transactiontakes
takesplace. (C.R. 57-58)(“
place. (C.R. emphasis
57-58)(tmphasis
added”).
added").

The summary
The summary judgment
judgment record
record establishes
establishes that
that the general partners
the general partners failed
failed to

provide sixty days
days prior written
written notice
notice of
of redemption
redemption to
to Patel. Therefore, Section
Patel. Therefore,

8.5 of
8.5 of the
the Harbor
Harbor Hospice
Hospice Partnership
Partnership Agreement
Agreementdoes
doesnot
notapply. The only
apply. The only

summary judgment
summary judgment evidence
evidence that
that was
was ever
ever allegedly
allegedly sent
sent to Patel was the Parker

Letter. The
The Parker
Parker Letter
Letter (i)
(i) does
does not
not address
address redemption,
redemption, (ii) does not provide 60

days notice of anything (the deadline in the letter actually passed before the letter

was received),
was received), (iii) threatens termination,
(iii) threatens termination,and
and (iv)
(iv) does not even
does not even mention
mention the
the

general partner,
general partner, Harbor
Harbor Hospice
HospiceManagers,
Managers,LLC. Patel's interest
LLC. Patel's interest was
was not
not

redeemed in
redeemed compliance with
in compliance Section 8.5
with Section of the
8.5 of the Harbor
Harbor Hospice
Hospice Partnership
Partnership

Agreement. Most
Agreement. Most importantly,
importantly, Appellees
Appellees have failed to establish
have failed establish that
that Patel's
Patel's

limited partnership interest was actually redeemed by the partnership
partnership or the date of

the alleged redemption. Instead
Instead of
of redeeming
redeeming Patel's
Patel's limited
limited partnership interest to

partnership, Appellees
the partnership, Appellees decided
decided to transfer
transfer Patel's
Patel's limited
limited partnership
partnership interest
interest

directly to Arfeen.

77
The Coverup

Though Appellees
Though Appellees contend
contend Patel’s partnership interest
Patel's partnership interest was
was "forfeited"
“forfeited”

15, 2008,
before June 15, 2008, several
several significant
significant documents
documents contradict
contradict their
their contentions.
contentions.

A Harbor Hospice Balance Sheet dated December 31, 2008 establishes that Patel

was still a limited
limited partner
partner as
as of
of that
that date.
date. (C.R. 217). AAHarbor
Harbor Hospice
Hospice General
General

Ledger establishes that Arfeen
Ledger from 2009 establishes Arfeen wrongfully
wrongfully took possession
possession of Patel's
Patel's

limited partnership interest
interest in
in 2009.
2009. (C.R. 204-206).

Hospice’s accountant,
An email from Harbor Hospice's accountant, Monica Surratt, from April of

2009 confirms
2009 confirms Arfeen’s improper direct
Arfeen's improper direct transfer
transfer stating,
stating, “[s]ince the partnership
"[Once the partnership

interest back (it was
did not buy their interest was transferred
transferred to Qamar
Qamar instead of reallocated
reallocated

among the other
among other partners),
partners), then
then any
any purchase/payment
purchase/payment should
should have
have happened
happened

outside
outside of the partnership.”3 (C.R.
the partnership.° (C.R. 207).
207). Arfeen's
Arfeen’simproper
impropertransfer
transfer is
is further
further

evidenced by Harbor Hospice’s
Hospice's 8309 Form filed with the Internal Revenue Service

Patel’s limited
stating that Patel's limited partnership
partnership interest
interest in Harbor
Harbor Hospice
Hospice was
was transferred
transferred

directly to
directly to Arfeen. (C.R. 208).
Arfeen. (C.R. 208). Though
Thoughthe
theform
formstates
statesthe
thelimited
limited partnership
partnership

interest was transferred as of 1/1/08 that date is inconsistent with the balance sheet

3
3 Arfeen’s improper
Arfeen's improper transfer is further confirmed by Harbor Hospice’s
Hospice's 8309 Form filed with the
Internal Revenue
Revenue Service
Service stating
stating that
that Patel’s limited partnership
Patel's limited partnership interest in Harbor Hospice was
transferred directly to
to Arfeen.
Arfeen. (C.R. 208).
88
and general ledger, and the form does not appear to have been prepared until April

of 2009. (C.R.
(C.R. 207, 209).

2011, apparently
In 2011, apparently Appellees
Appellees realized
realized that
that they had not
they had not completed
completed an
an

appropriate paper
appropriate paper trail regarding this
trail regarding improper transaction.
this improper The Partnership
transaction. The Partnership

Agreement had
Agreement never been amended
had never amended to reflect
reflect Arfeen's
Arfeen's wrongful
wrongful acquisition
acquisition of

Patel's limited partnership
Patel's limited partnership interest. Therefore, Appellees
interest. Therefore, Appellees created
created two
two different
different

Amendment No.
Amendment No. 4’s to Agreement
4's to Agreement of
of Limited
Limited Partnership
Partnership of
of Harbor
Harbor Hospice.
Hospice.

(C.R. 126-129,
126-129, 135-140). One of
135-140). One of the
the Amendment
Amendment No. 4's is
is dated
dated November
November 10,

2011 (the "Dated
2011 "Dated Amendment
AmendmentNo.
No.4"). (C.R. 135-140).
4"). (C.R. 135-140). The
The Dated
Dated Amendment
Amendment

No. 4 states:

(1)Section 12.2(a) of the Partnership Agreement provides that each limited
partner authorizes
partner authorizes and
and empowers
empowers the
the general
general partners
partners to amend the
to amend the
Partnership Agreement;

(2)The General Partner has elected to redeem the limited partner interests of
Triptesh Chaudhury and Sandeep Patel in accordance with Section 8.5 of
the Partnership Agreement;

The General
(3)The General Partner
Partner desires
desires to amend
amend the
the Partnership
Partnership Agreement
Agreement to
adjust the limited partnership percentages
percentages following
following the effective
effective date of
the redemption;

(4) The effective
(4)The effective date of the redemption shall be January 1, 2008;

(5)Exhibit “A” Partnership is hereby amended so that from and after
"A" to the Partnership
the effective date, the limited partners and their respective interest in the
partnership shall be as set forth in such exhibit; and

(6)Exhibit “A”
"A" appears to reflect all Class C Limited Partners.

9
9
 Amendment No.
The other Amendment No. 4 (the "Undated
"Undated Amendment
Amendment No.
No. 4") states an

effective
effective date
date but
but does
does not
not state
statethe
the date
dateitit was
was executed.
executed. (C.R.
(C.R. 126-129). The
126-129). The

Undated Amendment No. 4 states:

(1) The same
(1)The same information
information set
set forth
forth in
in (1)
(1)—
– (5) from the Dated Amendment
Amendment
No. 4 above;

(2)The
The document
documentisis not
not dated
dated but
but states
states that was "EXECUTED
that it was “EXECUTED to
to be
st
effective as of the 1st
1 day of January, 2008”;
2008"; and

(3) Exhibit “A”
(3)Exhibit does not
"A" does not reflect
reflect the
the Class
Class C Limited Partners.
C Limited (C.R. 126-
Partners. (C.R.
129).

The inconsistencies
The inconsistencies inin the
the two amendment No.
two amendment No. 4’s evidence a blatant
4's evidence blatant

attempt to cover up the improper
attempt improper transfer. The second
transfer. The second Amendment
Amendment No. 4 deletes

November 10, 2011 date of
the November of execution
execution and
and deceptively
deceptively attempts
attempts to make the

amendment effective
amendment effectiveas
as of January 1, 2008,
of January 2008, nearly
nearly four
four years
years earlier,
earlier, without
without

stating that the document was actually executed in 2011. (C.R. 126-129, 135-140).

Regardless
Regardless of Appellees’ futile attempt
of Appellees' attempt to legally
legally effectuate
effectuate Arfeen's
Arfeen’s improper
improper

transfer, there
transfer, no summary
there is no summary judgment
judgment evidence
evidence indicating
indicating that
that the
the Limited
Limited

Partnership
Partnership Agreement
Agreement of
of Harbor
Harbor Hospice
Hospice was amended to remove Patel before
was amended before

November 10, 2011. (C.R. 135 - 140).
2011. (C.R.

Both Amendment
Both Amendment 4's
4's state
state that
that Patel's
Patel's interest
interest was
was redeemed. (C.R. 126-
redeemed. (C.R.

129, 135-140).
129, 135-140). Both
Both Amendment
Amendment 4's
4's are
are inconsistent
inconsistent with
with the
the 2009
2009 General
General

Ledger
Ledger of Harbor
Harbor Hospice,
Hospice, the 2008
2008 Tax
Tax Return
Return of
of Harbor
Harbor Hospice
Hospice (including
(including

Form 8308), and
and the notes
notes of
of the accountant
accountant of
of Harbor
Harbor Hospice.
Hospice. (C.R. 204 - 206,
10
10
C.R.
C.R. 208,
208, and
and C.R. 207). TheDated
207). The Dated Amendment
Amendment No.
No. 44 was
was created
created nearly
nearly four

years after the alleged transfer.
transfer. ItIt isis unclear
unclear when
when the
the Undated
Undated Amendment
Amendment 4 was

created. When confronted
created. When confronted with
with the
the conflicting
conflicting Amendment
Amendment 4’s, the Harbor
4's, the Harbor

Hospice representative
Hospice representative designated
designated to
to testify
testify regarding
regarding the alleged termination
the alleged termination of

Patel’s ownership interest
Patel's ownership interest in Harbor
Harbor Hospice
Hospice stated
stated that was concerned
that he was concerned that

someone might
someone might have
have done
done something
something unethical,
unethical,immoral
immoralororillegal.
illegal. (C.R. 212-

213).

Appellees persuade the trial court to grant summary judgment

Appellees' Amended Motion for Summary Judgment did not seek summary

judgment on
judgment no-evidence grounds.
on no-evidence Instead, Appellees
grounds. Instead, Appellees sought
sought to establish as
to establish as a

matter of law that (i) Patel's claims are barred by the statute of limitations, (ii) there

was no genuine issue of material fact as to Patel's claims for breach of partnership,

breach of fiduciary duty, conversion, or Texas Theft Liability Act violations, and

(iii) there
(iii) there was
was no genuine
genuine issue
issue of material fact
of material fact as
as to damages.
damages. (C.R.
(C.R. 26-141).
26-141).

Patel responded with
Patel responded evidence establishing
with evidence establishing that
that Appellees
Appellees did
did not meet their
not meet their

burden of proof under any of these
burden these theories
theories and
and by
by establishing
establishing that fact
fact issues
issues

existed
existed that
that precluded
precluded summary
summaryjudgment.
judgment. (C.R.
(C.R. 145-238
145-238 and
and C.R.
C.R. 248-254).
248-254). On

April 29, 2015, a hearing
hearing was
was held
held on
on Appellees'
Appellees' Amended
Amended Motion for Summary
Summary

Judgment. (C.R. 291).
Judgment. (C.R. 291). The
Thesummary
summaryjudgment
judgment motion
motion was
was taken
taken under
under

advisement. (C.R.
advisement. (C.R. 291).
291). On
OnJune
June18,
18,2015,
2015,the
thetrial
trialcourt
courtgranted
granted Appellees'
Appellees'

11
11
Amended Motion
Amended Motionfor
for Summary
SummaryJudgment.
Judgment. (C.R.
(C.R. 255). Patel then
255). Patel then submitted
submitted a

Motion for
Motion for New
New Trial
Trial that
that was
was denied. (C.R. 256-282,
denied. (C.R. 256-282, C.R.
C.R. 283). This appeal
283). This appeal

followed. (C . R. 287-288).
(C.R.

SUMMARY OF THE ARGUMENT

Appellees have not established
Appellees established that they are entitled
entitled to summary
summary judgment
judgment

as a matter of law on any ground. Appellees sought
ground. Appellees sought to establish as a matter of law

that (i) Patel's
that Patel's claims
claims are barred
barred by the
the statute
statute of
of limitations,
limitations, (ii) there was no
(ii) there

genuine issue of material fact as to Patel's claims for breach of partnership, breach

of fiduciary
fiduciary duty,
duty, conversion,
conversion, or Texas Theft Liability
or Texas Liability Act violations,
violations, and
and (iii)

genuine issue
there was no genuine issue of material
material fact
fact as
as to
to damages. However, facts
damages. However, facts issues

exist regarding each
exist regarding which Appellees
each and every ground on which Appellees moved for summary
summary

judgment.

support of their
In support their affirmative
affirmative defense
defense of
of statute
statute of
of limitations,
limitations, Appellees
Appellees

claimed
claimed they
they could
could prove
prove as
as aa matter
matter of
of law
law that
that Patel’s claims for (i) breach
Patel's claims breach of

fiduciary
fiduciary duty,
duty, breach
breach of partnership,
partnership, fraud
fraud and declaratory relief
and declaratory relief accrued
accrued on
on or

before June 15, 2008 (4 years before suit was filed), and (ii) conversion and Texas

Theft Liability
Theft Liability Act
Act violations
violations accrued
accrued before
before June
June 15,
15, 2010
2010 (2 years before suit

However, Appellees
was filed). However, Appellees failed to meet their burden
burden of
of proof. Furthermore,
proof. Furthermore,

Patel presented summary judgment
judgment evidence
evidence that
that establishes
establishes that
that Patel’s
Patel's claims for

breach of fiduciary duty, breach of partnership, fraud and declaratory relief accrued

12
12
after June
after June 15, 2008
2008 and
and that
that Patel's
Patel’s claims
claims for
for conversion
conversion and
and Texas
Texas Theft
Theft

Liability Act violations accrued
accrued after
after June
June 15,
15, 2010.
2010. Accordingly, Appellees failed

limitations defense
to prove their statute of limitations defense as
as a matter
matter of law and the trial court

should have denied Appellees'
should Appellees’ Amended
Amended Motion
Motion for
for Summary
Summary Judgment
Judgment based
based

upon Appellees’ statute of limitations defense.
Appellees' statute

Appellees also claimed that their conduct was proper under the Partnership
Appellees Partnership

Agreement and
Agreement and Texas
Texas law and therefore no genuine issue of material fact existed

regarding Patel's claims for breach of fiduciary duty, breach of contract, conversion

or violations
violations of Liability Act.
of the Texas Theft Liability Appellees argument
Act. Appellees argument is
is premised
premised

solely on the claim that Patel's partnership interest was terminated or redeemed by

Harbor Hospice. However, the
Hospice. However, the summary
summary judgment
judgment evidence
evidence clearly
clearly demonstrates
demonstrates

Patel's interest
that Patel's interest was terminated or redeemed.
was not terminated redeemed. Patel's
Patel's limited
limited partnership
partnership

interest was
interest improperly transferred
was improperly transferreddirectly
directlytotoArfeen. Not only
Arfeen. Not only did
did Appellees
Appellees

improperly transfer
improperly transfer Patel's
Patel's limited
limited partnership
partnershipinterest
interesttoto Arfeen,
Arfeen, they
they did
did so

without informing
without informing Patel,
Patel, without
without complying
complying with
with the terms of the
the terms the Partnership
Partnership

Agreement, and
Agreement, and did not provide
did not provide Patel
Patel any
any compensation
compensation for
for this
this limited
limited

partnership interest.
partnership Accordingly, Appellees failed to establish
interest. Accordingly, establish as a matter of law

that no genuine issue of material fact existed regarding Patel's claims for breach of

fiduciary
fiduciary duty,
duty, breach
breach of contract, conversion
of contract, conversion or violations of
or violations Texas Theft
of the Texas Theft

Liability Act.

13
13
 Additionally, Appellees
Additionally, Appelleesclaimed
claimedthat
thatno
no genuine
genuine issue
issue of material
material fact
fact

existed
existed regarding
regarding Patel's
Patel's claim
claimfor
for damages
damagesfor
for any
any cause
cause of
of action. Appellees
action. Appellees

allege that
allege that pursuant
pursuant to the
the Partnership
Partnership Agreement,
Agreement, aa partner
partner that
that leaves
leaves the
the

partnership either voluntarily
voluntarily or through expulsion
expulsion leaves with nothing more than

his capital account. However,
However, the
the provisions
provisions cited
cited by Appellees do not apply to an

improper transfer
improper transferfrom
fromPatel
Pateldirectly
directlytotoArfeen. Moreover, a fact
Arfeen. Moreover, fact issue
issue exists
exists

regarding Patel's capital account
account balance. Therefore, Appellees failed to prove that
balance. Therefore,

material fact existed
no genuine issue of material existed regarding
regarding Patel's claim for damages for

any cause of action.

Finally, Appellees
Finally, Appellees failed
failed to authenticate
authenticate any their summary
any of their summary judgment
judgment

evidence. No affidavit
evidence. No affidavit was
was attached
attached to
to Appelles'
Appelles' Amended
Amended Motion
Motion for
for Summary
Summary

Judgment
Judgment attempting
attempting to authenticate any
to authenticate the summary
any of the summary judgment
judgment evidence.
evidence.

Accordingly, Appellees'
Accordingly, Appellees' summary
summary judgment
judgment evidence
evidence was authenticated and
was not authenticated

should not have been admissible as summary judgment evidence.

For all of these reasons, the trial court’s
court's judgment should be reversed.

14
14
 ARGUMENT

I. The Court Erred
The Trial Court Erred in
in Granting
Granting Appellees'
Appellees' Amended
Amended Motion
Motion for
Summary Judgment.

function of summary judgment
The function judgment procedure
procedure is
is not
not to deprive litigants
litigants of

their right to a full hearing on the merits of fact issues or their right to a jury trial.

See Tex. R. Civ. P. 166a; see also Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App.

– Corpus
— CorpusChristi
Christi2003,
2003,not
notpet.).
pet.). The
The goal of the summary judgment procedure is

the elimination of patently unmeritorious claims or unmeritorious defenses and the

summary termination
termination of
of a case when it clearly appears
appears there
there are no issues of fact.

Bliss v.
See Bliss v. NRG
NRG Industries,
Industries, 162 S.W.3d 434
162 S.W.3d 434 (Tex.
(Tex. App.
App. —
– Dallas 2005, pet.
Dallas 2005,

denied).

Appellate courts
Appellate courts review
review aa trial
trial court’s grant of
court's grant of summary
summary judgment under a

novo standard
de novo standard of
of review.
review. Mann
Mann Frankfort
Frankfort Stein
Stein & Advisors, Inc.
& Lipp Advisors, Inc. v.
v.

Fielding, 289 S.W.3d 844, 848 (Tex.
(Tex. 2009). To prevail
2009). To prevail on
on aa traditional
traditional motion for

summary judgment,
summary judgment, the
the movant
movant must
must prove
prove that
that “there
"there is
is no genuine
genuine issue
issue as to

any material
any material fact
fact and
and the moving party
the moving party is entitled to
is entitled judgment as
to judgment as aa matter
matter of

law[.]” Tex.
law[.]" Tex. R.
R. Civ. P. 166a(c). Therefore,
Therefore, when
when aa defendant
defendant moves for summary

judgment, he must either disprove
disprove at least one essential element
element of each theory of

recovery pleaded
recovery pleaded by
by the plaintiff,
plaintiff, or he must
must plead
plead and
and conclusively
conclusively prove each

essential element of an affirmative defense. See Friendswood Dev. Co. v. McDade

15
15
 Co., 926 S.W.2d 280, 282 (Tex.
& Co., (Tex. 1996);
1996); Doe v. Boys
Boys Club
Club of
of Greater
Greater Dallas,
Dallas,

Inc., 907 S.W.2d 472, 476-77 (Tex. 1995).

“If there
"If there is
is any
any genuine
genuine issue
issue of
of material
material fact,
fact, aa motion
motion for
for summary
summary

judgment must
judgment denied.” Nautilus
must be denied." Nautilus Training
Training Center
Center No.
No. 2, Inc. v.
2, Inc. v. Seafirst
Seafirst

Corp., 647 S.W.2d 344,
Leasing Corp., 344, 346-47
346-47 (Tex.
(Tex. App.
App. —
– Corpus
Corpus Christi
Christi 1982,
1982, no

writ). InIndetermining
writ). determining whether
whether Appellee
Appellee met
met its
its summary
summary judgment
judgment burden,
burden, this

Court must resolve every reasonable inference in favor of Patel, resolve all doubts

in favor of Patel, and take all evidence favorable to Patel as true. Rhone-Poulenc,

Inc. v. Steel, 997 S.W.2d at 223 (1999).

A. ISSUE
A. ISSUE ONE:Appellees
ONE: AppelleesDid
DidNot
NotEstablish
Establish aaStatute
StatuteofofLimitations
Limitations
Defense as a Matter of Law.

Appellees did not establish their statute of limitations
limitations defense
defense as
as a matter of

Intheir
law. In theirAmended
AmendedMotion
Motionfor
forSummary
SummaryJudgment,
Judgment,Appellees
Appellees relied upon the

affirmative defense
affirmative defense of
of statute
statute of
of limitations.
limitations. (C.R.
(C.R. 31-33). Appellees alleged that
31-33). Appellees

uncontroverted evidence
they had uncontroverted evidence that
that Patel
Patel knew
knew or
or should
should have
have known
known of any

alleged injuries
alleged injuries before
before June
June 15,
15, 2008
2008 (4 years
years before
before suit
suit was filed) for breach
breach of

fiduciary duty, breach of partnership, and fraud claims and before June 15, 2010 (2

years before suit was filed)
filed) for
for the
the alleged
alleged conversion
conversion and Texas
Texas Theft
Theft Liability
Liability

Act violations.
Act violations. (C.R.
(C.R. 31-33).
31-33). Appellees
Appellees failed
failed to
to address
address Patel's
Patel's claim
claim for
for

declaratory relief
declaratory relief in their Amended
Amended Motion for Summary
Summary Judgment
Judgment based upon

16
16
statute of limitations or any other theory. Therefore, summary
theory. Therefore, summary judgment disposing

of the declaratory judgment action was improper.

prevail on aa statute
In order to prevail statute of
of limitations
limitations claim,
claim, Appellees
Appellees had
had to (1)

conclusively
conclusively prove
prove that Patel's cause of action accrued
accrued before
before the
the commencement
commencement

of the statute of limitations period, and (2) negate the discovery rule by proving as

there was no
a matter of law that there no genuine
genuine issue of material
material fact about when Patel

discovered, or in the exercise
discovered, exercise of reasonable
reasonable diligence
diligence should have discovered the

injury. See Messner
See Messner v. Boon,
Boon, 2015
2015 Tex.
Tex. App.
App. LEXIS
LEXIS 747,
747, *30
*30 (Tex.
(Tex. App.
App.

Texarkana Jan.
Texarkana Jan. 28,
28, 2015). Furthermore, Appellees had to negate Patel's claim of
2015). Furthermore,

fraudulent concealment. See Santanna Natural Gas v.
v. Hamon
Hamon Operations,
Operations, 954

S.W.2d
S.W.2d 885,
885, 890-891
890-891 (Tex.
(Tex. App.--Austin
App.--Austin 1997,
1997, pet.
pet. denied). Appellees failed to
denied). Appellees

establish any of these points as a matter of law.

Appellees failed
Appellees failedtoto establish
establishasas aa matter
matter of
of law
law that
that Patel's
Patel's limited
limited

partnership interest
partnership interest was terminated
terminated or otherwise
otherwise transferred
transferred on
on or before June 15,

2008. Significantly,
2008. Significantly, Appellees
Appellees have
have not
not conclusively
conclusively established
established when
when Patel's
Patel’s

limited partnership
limited partnership interest
interest was taken from
was taken from him,
him, whether
whether by
bytermination,
termination,

redemption, forfeiture, or improper
improper transfer. Viewing all evidence in the light most
transfer. Viewing

favorable
favorable to the non-movant,
non-movant, Patel, and resolving all reasonable inferences
inferences in his

favor,
favor, the improper
improper transfer
transfer does
does not appear to have
have occurred
occurred until sometime
sometime in

have been
2009 and does not appear to have been legally
legally effectuated
effectuated through amendment
amendment of

17
17
 Partnership Agreement
the Partnership Agreement until
until 2011. Further, Appellees
2011. Further, Appellees failed to establish
establish as a

matter of law
matter law that
that Patel
Patel discovered
discovered or
or in
in the
theexercise
exercise of
ofreasonable
reasonable diligence
diligence

should have
should have discovered
discoveredthe
theinjury
injuryon
onor
or before
beforeJune
June15,
15,2008. In addition
2008. In addition to

having failed
having failed to conclusively
conclusively establish
establish that Patel’s interest
that Patel's interest was
was terminated
terminated or

otherwise
otherwise transferred
transferred before
before June
June 15, 2008, Appellees likewise failed to establish
establish

their statute of limitations defense as a matter of law because of the discovery rule

and because of Appellees’
Appellees' fraudulent concealment.

Summary Judgment
1. Summary Judgment Evidence
Evidence Establishes
Establishes Patel
Patel Was
Was aa Partner
Partner in
Harbor Hospice After June 15, 2008

The following
The following chart clearly demonstrates
chart clearly demonstratesthe
the timeline
timeline of
of events
events in this
in this

matter:

DATE Description of Document

March 4, 2008 Maggie Parker
Maggie Parker Threatening
Threatening Letter (does not
Letter (does not
establish
establish anything
anything for statute of
for statute of limitations
limitations
purposes)(C.R. 121-125)

******* 4 year
year statute
statute—– June
June 15,
15, 2008 *******

December 31, 2008 Harbor Hospice
Harbor Hospice Balance
Balance Sheet
Sheet (C.R.
(C.R. 217-219).
217-219).
This balance sheet establishes
establishes that as of 12/31/08,
12/31/08,
Patel was still a limited partner in Harbor Hospice.

January 1, 2009 2009 General
2009 General Ledger
Ledger of Harbor
Harbor Hospice
Hospice (C.R.
(C.R.
204-206). The
204-206). The 2009
2009General
General Ledger
Ledger establishes
establishes
limited partner on January 1,
that Patel was still a limited
2009.

18
18
 ******* 22year
yearstatute
statute—
– June
June15,
15,2010
2010 *******

November 10, 2011 Amendment 4 to the Partnership
Amendment Partnership Agreement (C.R.
135-140). This
135-140). This document
document establishes
establishes that Patel
Patel
limited partner
was still a limited partner in Harbor
Harbor Hospice
Hospice until
November 10, 2011.

As set forth above, the following documents demonstrate that Patel was still

a partner after June 15, 2008:

(a) Dated Amendment No. 4 dated November 10, 2011 (C.R. 135-140).
This document
This document establishes
establishesthat
that Patel
Patel was
was still
still a limited
limited partner
partner in
Harbor Hospice until November 10, 2011.

(b) Harbor Hospice Balance Sheet as of December 31, 2008 (C.R. 217
219). This
- 219). Thisbalance
balancesheet
sheet establishes
establishes that
that as
as of
of December
December 31,
31, 2008,
2008,
Patel was still a limited partner in Harbor Hospice.

2009 General
(c) 2009 General Ledger
Ledger of
of Harbor
Harbor Hospice
Hospice(C.R.
(C.R.204 204--206). The
206). The
2009 General Ledger establishes that Patel was still a limited partner on
January 1, 2009.

There are multiple documents in the summary judgment record that indicate Patel

was still a Limited Partner as of June 15, 2008 and remained a Limited Partner for

a period of time after that date. Therefore,
Therefore, Appellees
Appellees failed
failed to establish as a matter

of law that they are entitled to judgment on Patel's
Patel’s claims
claims for breach
breach of fiduciary
fiduciary

duty, breach
duty, breach of the
the Partnership
Partnership Agreement
Agreement and
and Fraud,
Fraud, under
under their statute of
their statute

limitations defense.
limitations The trial
defense. The trial court
court should
should have
have denied
denied summary
summary judgment
judgment on

limitations grounds
limitations grounds based on these
based on these documents
documents alone.
alone. Nevertheless,
Nevertheless, even
even

considering
considering the
the remainder
remainder of
of Appellees’ arguments and
Appellees' arguments evidence on
and evidence issue,
on this issue,

Appellees’ failed
Appellees' failed to
to establish
establish their limitations defense as a matter of law.
19
19
 Appellees Failed
2. Appellees Failed To
To Establish
Establish As
As aa Matter
Matter of
of Law That Patel Was No
Longer a Partner in Harbor Hospice On Or Before June 15, 2008

The evidence relied upon by Appellees was insufficient to justify summary

Appellees relied
judgment. Appellees relied upon
upon the
the following
following exhibits to establish their statute of

limitations defense (i)
limitations defense (i) the
the Parker
Parker Letter
Letter (C.R.
(C.R. 121
121 - 125), (ii) the
the Certified
Certified Mail

Receipt
Receipt for
for the Parker
Parker Letter
Letter dated
dated March
March 29, 2008 (C.R.
29, 2008 (C.R. 134),
134), (iii) the Dated
Dated

Amendment No. 4 (C.R. 135 - 140), (iv) the Undated Amendment No. 4 (C.R. 126

- 129), and (v) deposition excerpts from Patel (C.R. 89 - 100).

a. The Parker
a. The Parker Letter
Letter does
does not
not terminate
terminate Patel's
Patel's limited
limited
partnership interest

The Parker
The Parker Letter
Letter does
does not
not terminate
terminate Patel's
Patel's limited
limited partnership
partnership interest.
interest.

Therefore, the
Therefore, the Parker
Parker Letter
Letter is of no
is of no significance
significance for
for statute
statute of
oflimitations
limitations

The letter
purposes. The letter isis dated
dated March
March 4,
4, 2008
2008 and
and was
was signed
signed for by Patel's wife on

March 29,
March 29, 2008. (C.R. 134).
2008. (C.R. 134). The
TheParker
ParkerLetter
Letter was
was aathreat
threat and
and nothing
nothing more.
more.

Further, in order to terminate Patel's limited partnership interest pursuant to

Section
Section 10.2 the Partnership
10.2 of the Partnership Agreement
Agreement of Harbor
Harbor Hospice,
Hospice, the general
general

partners had to
partners to unanimously
unanimously terminate
terminate Patel's
Patel's limited
limited partnership
partnership interest
interest

and
and expel
expel him. (C.R. 62).
him. (C.R. 62). The
Thesummary
summaryjudgment
judgment record
record does
does not
not contain
contain

any evidence that
any evidence that the
the general
general partner
partner ever
ever terminated
terminated Patel's
Patel's interest
interest in

Harbor Hospice.

20
20
 The Parker
The Parker Letter
Letter is not
not sufficient
sufficient to trigger
trigger the statute
statute of
of limitations
limitations to

"Generally, aa cause
begin to run. "Generally, cause of
of action
action accrues
accrues when
when facts
facts exist
exist that authorize

a plaintiff to seek judicial relief.”
relief." See Schneider Nat’l
Nat'l Carriers, Inc. v. Bates
Bates, 147

S.W.3d
S.W.3d 264,
264, 279
279 (Tex.
(Tex. 2004). The Parker
2004). The Parker Letter,
Letter, without
without further
further action
action by the

general partner
general partner of Harbor Hospice,
of Harbor Hospice, was
was not sufficient
sufficient to authorize
authorize a plaintiff to

seek judicial relief. Therefore,
Therefore, for
for statute
statute of
of limitations
limitations purposes,
purposes, the Parker Letter

is meaningless.

Appellees' Amended
In Appellees' Amended Motion for Summary
Summary Judgment,
Judgment, Appellees
Appellees assert
assert

that the Parker
that Parker Letter
Letter was
was aa "notice
"notice of forfeiture". (C.R.
of forfeiture". (C.R. 31).
31). However,
However, this
this

statement is clearly incorrect and demonstrates why Appellees failed to meet their

summary judgment burden to establish that Patel was on actual notice of the loss of

states that
his interest. The Parker Letter never states that Patel's
Patel's limited
limited partnership
partnership

been forfeited.
interest had been forfeited. Because
Becausethe
theParker
Parker Letter
Letter was
was nothing
nothing but a threat,
threat,

an additional act had to occur to put Patel on notice of his alleged loss before June

15, 2008. Clearly,
Clearly, this
this additional
additional act did not occur.

Additionally, Appellees
Additionally, Appelleesargue
argue in their Amended
in their Amended Motion
Motion for
for Summary
Summary

Judgment
Judgment that
that Patel
Patel ignored
ignoredthe
theletter.
letter. (C.R. 29). However,
However, Appellees
Appellees failed to

establish as a matter of law
law that
that Patel
Patel did
did not
not comply
comply with
with the
the letter.
letter. Patel testified

deposition that
in his deposition that he did not recall
recall whether his wife brought
brought the letter
letter to his

attention, that
attention, that his wife handled the financials, and that whatever was required he

21
21
 certain his
was certain his wife,
wife, or
or his accountant, would
his accountant, wouldhave
havetaken
takencare
careofofit. (C.R. 97).
it. (C.R.

Chapman
Chapman was
was only
only able to speculate
able to speculate that Patel had
that Patel had not
not complied
complied with
with this
this

obligation,
obligation,but
but admitted
admittedthat
thathe
hecould
couldnot
notsay
sayfor
forsure. (C.R. 117).
sure. (C.R. Appellees
117). Appellees

argument that
argument that the
the Parker
Parker letter
letter put
put Patel
Patel on notice that
on notice that his interest
interest may
may be
be

terminated, oror aa duty
terminated, duty to
to investigate,
investigate, is based
based on
on the
theinconclusive
inconclusive and
and

undocumented assumption
undocumented assumption that
that he
he did
did not
not comply
comply with
withits
itsrequest.
request. Finally, even if

was sufficient
the Parker letter was sufficient to
to give
give rise
rise to
toaaduty
dutytotoinvestigate
investigatefurther
further—
– and it

was not —
was – had
had Patel
Patel obtained
obtained aa copy the partnership
copy of the partnership agreement
agreement and
and all
all its

amendments at that time, it would not have evidenced a termination of his interest.

Thus, the Parker Letter is of no consequence.

Amendment 44 to the
b. Amendment the partnership
partnership agreement
agreement was executed on
November 10, 2011

According to the Dated Amendment No. 4, the Appellees had not taken any

action to take Patel's limited
limited partnership
partnership interest
interest until
until November
November10,
10,2011.
2011. (C.R.

135-140). This
135-140). This is
is less
less than
than one
one year
year before
before Patel
Patel filed
filed his
his lawsuit. The Dated
lawsuit. The Dated

Amendment No. 4 was enough to create a fact issue by itself regarding
regarding Appellees'

statute of limitations claim.

c. Undated Amendment 4 No. 4.

Undated Amendment
The Undated Amendment No.
No. 44 that
that is effective
effective January
January 1, 2008 does not

establish
establishaa date
date that
that Patel's
Patel'scause
causeofofaction
actionaccrued.
accrued. (C.R.
(C.R.126
126-- 129). The
129). The

Undated Amendment
Undated AmendmentNo.
No.44 gives
gives no indication of
no indication when it
of when it was
was prepared.
prepared.
22
22
Furthermore, the
Furthermore, the Undated
Undated Amendment
AmendmentNo.
No.44 is inconsistent with
is inconsistent Dated
with the Dated

Amendment No.
Amendment No. 4. Finally,
Finally, there
there isis no
no summary
summary judgment
judgment evidence
evidence that Undated

Amendment No.
Amendment No.44 was
was ever provided to
ever provided to Patel. Clearly Appellees
Patel. Clearly Appellees failed
failed to

establish
establish as
as a matter of law that Patel's cause of action accrued
accrued prior to June 15,

2008.

d. Appellees
Appellees failed
failed to
to establish
establish as
as aa Matter
Matter of Law
Law that
that Patel
Patel
knew or should
knew should have
have known
known of any injury on or before
before June
June
15, 2008
15,2008

Harbor Hospice
If Harbor Hospice Managers,
Managers, LLC
LLC terminated,
terminated, forfeited,
forfeited, redeemed
redeemed or

otherwise
otherwise transferred
transferredPatel's
Patel'sinterest
interestinin Harbor
Harbor Hospice,
Hospice, itit would
would have
have been
been

required to
required notify Patel
to notify Patel pursuant
pursuant to Section
Section 12.2(b)
12.2(b) of
of the
the Harbor
Harbor Hospice
Hospice

Partnership
Partnership Agreement. 66-67). Harbor
Agreement. (C.R. 66-67). Harbor Hospice
Hospice Managers,
Managers, LLC failed to

Furthermore, Section
do so. Furthermore, Section 3.4
3.4ofofthe
theHarbor
HarborHospice
HospicePartnership
Partnership Agreement
Agreement

required Harbor Hospice to secure Patel's initials on Exhibit "A" to the Partnership

Agreement if
Agreement if his
his partnership
partnership interest
interestwas
waschanged
changedorordeleted.
deleted. (C.R.
(C.R. 45). Finally,
45). Finally,

Section 13.4 of the Harbor Hospice Partnership Agreement clearly provides that no

modification, waiver
modification, waiver of
of termination
termination of Agreement shall
of the Agreement shall be effective
effective unless
unless

made in a writing signed by parties
parties sought
sought to
to be
be bound
bound thereby.
thereby. (C.R. 68).

Appellees failed
Appellees failed to
to take
take any
any of these actions.
of these actions. These
These safeguards
safeguards were
were in

limited partner would be placed on notice if his interest
place to make sure that a limited

was changed or deleted. Patel
Patel could
could reasonably
reasonably rely upon the Appellees to comply

23
23
with the partnership agreement and provide him with the notice required under the

partnership agreement
partnership agreementififhis
his interest
interest was
was taken
taken from
from him any manner.
him in any manner.

Furthermore, Patel
Furthermore, Patel could
could reasonably
reasonably rely
rely upon
upon the Appellees to comply
the Appellees comply with the

Partnership
Partnership Agreement
Agreement and
and secure
secure Patel's
Patel's signature
signature before
before any effort was made to

modify the Partnership Agreement.

e. Patel
Patel never
never testified
testified that
that his
his limited
limited partnership
partnership interest
interest was
was
terminated, redeemed or transferred to Defendant Arfeen

Appellees' claim
Appellees' claim that
that Patel
Patel was on notice
notice of
of his
his impending
impending expulsion
expulsion and

that Patel
that Patel simply
simply choose
choose to ignore the
to ignore the notification
notification and
and warning. (C.R. 32).
warning. (C.R. 32).

However, these
However, assertions are not supported by the
these assertions the summary
summary judgment
judgment evidence
evidence

and are certainly not supported
supported by
by the
the testimony
testimony of
of Patel.
Patel. (C.R. 89 - 100).

Appellees Failed
3. Appellees Failed to
to Establish
Establish as aa Matter
Matter of
of Law
Law that
that Patel's
Patel's Cause
Cause
of Action for Conversion
Conversion and Under the Texas
Texas Theft
Theft Liability
Liability Act
Accrued on or Before June 15, 2010

Appellees' claim
Appellees' claim that
that Patel's
Patel's causes
causes of action for
of action for conversion
conversion and
and for
for

violations of the Texas Theft Liability Act accrued
violations accrued before
before June
June 15, 2010 and that

Patel knew or should have known that his cause of action for conversion and under

Liability Act accrued
the Theft Liability accrued before
before June
June 15,
15, 2010. However, Appellees
2010. However, Appellees failed

that Patel's
to establish as a matter of law that Patel's cause of action
action for conversion
conversion or under

the Theft Liability Act accrued
accrued on
on or
or before
before June
June 15,
15, 2010.
2010. As set forth above, the

Dated Amendment 4 to the partnership agreement dated November 10, 2011 (C.R.

24
24
135-140) is summary
135-140) summary judgment
judgment evidence
evidence that
that Patel
Patel was
was still
still a limited partner in

Harbor Hospice until November 10, 2011.

Appellees alleged that simple due diligence would have revealed the alleged

harm after
harm after Patel's
Patel's receipt
receiptof
of the
the Parker
ParkerLetter.
Letter. (C.R.
(C.R. 32). However, if Patel
32). However, Patel had

reviewed that Partnership
reviewed Partnership Agreement
Agreement and amendments thereto between 2008
and all amendments

November 20,
and November 20, 2011,
2011, itit appears
appears he
he would
would have
have been
been listed
listedas
as aa partner.
partner. (C.R.

135-140, 171-185).
42 -88, 135-140, Appellees have failed to establish
171-185). Appellees establish as a matter of law

that Patel could have discovered he was not a partner by reviewing the Partnership

Agreement and amendments thereto.

Furthermore, ifif Harbor
Furthermore, Harbor Hospice
Hospice Managers,
Managers, LLC
LLC terminated,
terminated, forfeited,
forfeited,

redeemed, or
redeemed, otherwise transferred
or otherwise transferred Patel's
Patel's interest
interest in Harbor Hospice,
in Harbor Hospice, it would
would

have been
have been required
required to notify Patel
to notify Patel pursuant
pursuant to Section
Section 12.2(b)
12.2(b) of the
the Harbor
Harbor

Hospice Partnership
Hospice Partnership Agreement. 66-67). Harbor
Agreement. (C.R. 66-67). Harbor Hospice
Hospice Managers,
Managers, LLC
LLC

failed to do so. Section
Section 3.4
3.4 of
of the
the Harbor
Harbor Hospice
Hospice Partnership
Partnership Agreement required

Harbor Hospice
Harbor Hospice to secure Patel's
to secure Patel's initials
initials on Exhibit "A"
on Exhibit "A" to
to the
thePartnership
Partnership

Agreement if
Agreement if his
his partnership
partnership interest
interestwas
waschanged
changedorordeleted.
deleted. (C.R.
(C.R. 45).
45). This did

not occur.
occur. Section
Section13.4
13.4ofofthe
theHarbor
HarborHospice
HospicePartnership
Partnership Agreement
Agreement clearly
clearly

provides that
provides modification, waiver
that no modification, waiver of termination
termination of Agreement shall
of the Agreement shall be

effective
effective unless
unless made
made in
in a writing signed by parties sought to be bound
bound thereby.
thereby.

(C.R. 68). This
This also
also did not occur.

25
25
 Appelleees failed
Appelleees failed to
to take
take any
any of
of these
these actions. These safeguards
actions. These safeguards were in

limited partner would be placed on notice if his interest
place to make sure that a limited

was changed or deleted. Patel
Patel could
could reasonably
reasonably rely upon the Appellees to comply

with the partnership agreement and provide him with the notice required under the

Partnership
Partnership Agreement
Agreement and
and secure
secure his signature
signature if his interest was taken from him

in any manner.

Appellees Failed
4. Appellees Failed to
to Conclusively
Conclusively Establish
Establish Under the Discovery Rule
that Patel
that Patel Knew
Knew or or Reasonably
Reasonably Should
Should Have
Have Known
Known That
That His
His
Interest Was Terminated by June 15, 2008.

The discovery
The discovery rule
rule defers
defers the
the time
time aa cause
cause of
of action
action accrues,
accrues, and
and the
the

limitation period
limitation period begins,
begins, for
for certain
certain types
types of tort cases. This deferral of accrual is

exception to
an exception general rule
to the general rule under
under which
which a cause of action
action accrues
accrues when
when a

wrongful act causes some
wrongful some legal
legal injury,
injury, even
even if the fact of injury is not discovered
discovered

all resulting
until later, and even if all resulting damages
damages have not
not yet
yet occurred.
occurred. See S.
S.V.
V. v.

R.V.,
R. V., 933 S.W.2d 1, 4 (Tex. 1996). Under
Under the
the discovery
discovery rule,
rule, the limitation period

starts running from the date the injury is actually discovered
discovered or the date when the

injury should
injury should have
have been
been discovered
discovered if the
the plaintiff
plaintiff had
hadexercised
exercised reasonable
reasonable

diligence, whichever
diligence, whichever is earlier. See Moreno v. Sterling
Sterling Drug,
Drug, Inc.,
Inc., 787 S.W.2d

348, 351 (Tex.
348, (Tex. 1990);
1990); Willis Maverick, 760
Willis v. Maverick, S.W.2d 642,
760 S.W.2d 642, 646 (Tex.
(Tex. 1988);
1988);

Gaddis v. Smith, 417 S.W.2d
S.W.2d 577,
577, 578
578 (Tex.
(Tex. 1977). The discovery
1977). The discovery rule
rule applies to

cases which the
cases in which the nature
nature of
of the
theinjury
injuryisisinherently
inherently undiscoverable
undiscoverable and
and the
the

26
26
evidence
evidence of
of injury
injury is objectively
objectively verifiable. Both of
verifiable. Both of these
these circumstances
circumstances exist in

Injuries arising
this case. Injuries arising from
from aa breach
breach of
of fiduciary
fiduciary duty are considered inherently

S.V.,
undiscoverable. S. V., 933
933 S.W.2d
S.W.2d at 8.

Appellees failed
Appellees failed to
to establish
establish as
as a matter
matter of law that there
there was
was no
no genuine
genuine

issue of material
issue material fact
fact that
that Patel
Patel discovered,
discovered, or in
in the
the exercise
exercise of
of reasonable
reasonable

diligence should
diligence should have
have discovered
discovered the
the injury
injury before
before June
June 15,
15, 2008. Appellees also
2008. Appellees

failed
failed to establish
establish as
as a matter of law that
that there
there was
was no
no genuine
genuine issue
issue of
of material
material

fact that Patel discovered,
discovered, or in the
the exercise
exercise of
of reasonable
reasonable diligence
diligence should have

discovered the injury before
before June
June 15,
15, 2010. Significantly, Appellees have failed to
2010. Significantly,

conclusively
conclusively establish
establish the
the date should defeat
date the injury accrued, which should defeat summary
summary

judgment on limitations in and of itself.

document that Appellees
The only document Appellees are relying
relying upon
upon to establish
establish that Patel
Patel

discovered or should
discovered should have or in the
the exercise
exercise of
of reasonable
reasonable diligence
diligence should have

discovered the
discovered the injury
injury before
beforeJune
June15,
15, 2008
2008 isis the
the Parker
Parker Letter. As explained
Letter. As explained

above, the
above, the Parker
Parker Letter
Letter was
was a threat
threat and nothing
nothing more
more and
and did
did not put Patel on

notice that his interest was terminated.

Moreover, generally,
generally, a party who is owed a fiduciary duty is relieved of the

responsibility ofof diligent
responsibility diligentinquiry
inquiryinto
intothe
the fiduciary’s
fiduciary's conduct
conductas
as long
long as the
as the

relationship exists. Id. Patel reasonably entitled
Patel was reasonably entitled to Sections 3.4,
to rely upon Sections

12.2(b), and
12.2(b), the Partnership
and 13.4 of the Partnership Agreement
Agreement and should have
and (i) he should have received
received

27
27
notice promptly
notice promptly after Appellees allegedly
after Appellees allegedly terminated
terminatedhis
his interest,
interest, and
and (ii) his
(ii) his

written signature
written signature was required before
was required before the
the Partnership
Partnership Agreement
Agreement could
could be
be

modified to transfer
modified transfer his
his interest. Since Appellees
interest. Since Appellees failed
failed to
to comply
comply with
with Sections
Sections

12.2(b), and 13.4
3.4, 12.2(b), 13.4 of
of the
the Partnership
Partnership Agreement,
Agreement, the injury
injury was
was inherently
inherently

undiscoverable (the transfer may also be void).

Finally, there
Finally, there is clearly a fact
is clearly fact issue
issue based
based upon
upon the
thesummary
summary judgment
judgment

record that
record that well
well after
after June 15, 2008,
June 15, 2008, Patel
Patel was
was still
still the
the owner
owner of
of his
his limited
limited

partnership interest. See 2009 General Ledger
Ledger (C.R. 204 - 206),
206), Harbor
Harbor Hospice
Hospice

Balance Sheet as of December 31, 2008 (C.R. 217 - 219),
219), and
and Dated
Dated Amendment
Amendment

No.
No. 4 dated
dated November 10, 2011(C.R.
November 10, 2011(C.R.135
135 -- 140).
140). Appellees
Appellees have
have failed
failed to

establish
establish as
as a matter of law
law that
that Patel's
Patel's cause
cause of
of action
action accrued
accrued before June 15,

2008 or that
2008 that Patel
Patel discovered,
discovered, or in
in the
the exercise
exercise of
of reasonable
reasonable diligence
diligence should
should

have discovered the injury before June 15, 2008.

Apparently, the only additional document Appellees relied upon to establish

that Patel
that Patel discovered
discovered or should have
or should have in
in the
the exercise
exercise ofofreasonable
reasonable diligence
diligence

discovered the injury before
before June
June 15,
15, 2010
2010 is
is Patel's
Patel's 2008
2008 K-1.
K-1. Appellees assert in

the Amended
Amended Motion
Motion for Summary
Summary Judgment
Judgment that
that since Patel received
since Patel received his K-1
K-1

sometime in
sometime in 2009,
2009, his
his claims
claims for
for conversion
conversion and
and theft
theft are
are time
time barred.
barred. (C.R. 33).

However, Appellees
However, Appellees have
have failed
failed to
to establish
establish as
as aa matter
matter of law that Patel
Patel should
should

28
28
have known
have known that
that his interest
interest in Harbor
Harbor Hospice
Hospice was
was being
being taken
taken from
from him
him as
as a

result of a K-1.

Patel testified that:

Arfeen took
(i) he was shocked that Dr. Arfeen took his
his ownership
ownership interest away
(C.R. 222); and

(ii) he discovered he was no longer a partner in Harbor Hospice right
before he retained his attorney (C.R. 96).

Furthermore, as
Furthermore, explained above,
as explained Harbor Hospice
above, if Harbor Hospice Managers,
Managers, LLC
LLC

terminated, forfeited or redeemed Patel's interest in Harbor Hospice, it would have

required to notify Patel pursuant
been required pursuant to Section
Section 12.2(b) of the
the Harbor
Harbor Hospice
Hospice

Partnership
Partnership Agreement. Harbor Hospice
Agreement. (C.R. 66 - 67). Harbor Hospice Managers,
Managers, LLC failed to

Furthermore, Section
do so. Furthermore, Section 3.4
3.4ofofthe
theHarbor
HarborHospice
HospicePartnership
Partnership Agreement
Agreement

required Harbor Hospice to secure Patel's initials on Exhibit "A" to the Partnership

Agreement ifif his
Agreement his partnership
partnership interest
interestwas
waschanged
changedorordeleted.
deleted. (C.R.
(C.R. 45). Section
45). Section

13.4 of
13.4 of the
the Harbor
Harbor Hospice
Hospice Partnership
Partnership Agreement
Agreement clearly
clearly provides
provides that
that no

modification, waiver
modification, waiver of
of termination
termination of Agreement shall
of the Agreement shall be effective
effective unless
unless

made in a writing signed by parties
parties sought
sought to
to be
be bound
bound thereby.
thereby. (C.R. 68).

Defendants failed
Defendants failed to
to take
take any
any of
of these
these actions. These safeguards
actions. These safeguards were in

limited partner would be placed on notice if his interest
place to make sure that a limited

was changed or deleted. Patel
Patel could
could reasonably
reasonably rely upon the Appellees to comply

with the Partnership Agreement and provide him with the notice required under the

29
29
Partnership
PartnershipAgreement
Agreementififhis
his interest
interestwas
was taken
taken from
from him any manner.
him in any manner.

Attempting to slide information past Patel in a K-1 is certainly not sufficient under

the Partnership
the Partnership Agreement
Agreementororinin light
light of fiduciary nature
of the fiduciary nature of the parties'
of the parties’

relationship.

It would have been reasonable for Patel to believe that unless he received the

notice required
notice required under
under the
the Partnership
Partnership Agreement
Agreement and
and signed
signed documents
documents

terminating or
terminating otherwise transferring
or otherwise transferring his
his partnership
partnership interest,
interest,that
that he
he was
was still
still a

limited partner
limited partner and
and that
that no
no cause
cause of
of action
action had
had yet
yet accrued.
accrued. After all, there is no

summary judgment
summary judgment evidence
evidence suggesting
suggestingthat
that Patel
Patel ever signed aa document
ever signed document

transferring his interest in Harbor Hospice.

Finally, according
Finally, according to Amendment 4 to
to Dated Amendment to the
the Partnership
Partnership Agreement,
Agreement,

executed
executed November
November 10,
10, 2011,
2011, the
the Appellees
Appellees had
had not
not taken
taken any
any action
action to
to take or

transfer Patel's
transfer Patel's limited
limited partnership
partnership interest
interestuntil
untilNovember
November10,
10,2011.
2011. This is less

than one year before Patel filed his lawsuit.

When one considers
When considers the requirements
requirements of the
the Harbor
Harbor Hospice
Hospice Partnership
Partnership

Agreement, the
Agreement, the fiduciary
fiduciary nature
nature of
of the parties’ relationship, and Amendment
parties' relationship, Amendment 4 to

the Partnership
Partnership Agreement
Agreement dated
dated November
November 10,
10, 2011,
2011, aa fact issue clearly
clearly exists

regarding whether
regarding whetheror
or not
not Patel
Patel discovered
discoveredor
or should
should have
have in the exercise
in the exercise of

reasonable diligence
reasonable diligencediscovered
discoveredthe
theinjury
injurybefore
beforeJune
June15,
15,2010. Patel never
2010. Patel never

received the notification he was required to receive from the general partner, Patel

30
30
 Partnership Agreement,
never received an amended Partnership Agreement, and
and Patel
Patel was never asked to

sign a document stating that his partnership interest was taken away.

5. Appellees
Appellees Failed
Failed to
to Conclusively
Conclusively Negate
Negate Patel's
Patel’s Affirmative
Affirmative Defense
of Fraudulent Concealment.

The fraudulent
The fraudulent concealment
concealment doctrine
doctrine applies
applies when defendant makes
when a defendant makes

fraudulent
fraudulent misrepresentations
misrepresentationsor,
or, ifif under
under aa duty to disclose, conceals facts from

the plaintiff and thereby prevents the plaintiff from discovering the cause of action

against the defendant.
against defendant. See Santanna
Santanna Natural
Natural Gas v.
v. Hamon
Hamon Operations,
Operations, 954

S.W.2d
S.W.2d 885,
885, 890-891
890-891 (Tex.
(Tex. App.--Austin
App.--Austin1997,
1997,pet.
pet.denied).
denied). As with the
As with the

discovery rule,
discovery rule, this
this doctrine
doctrine tolls
tolls the
the statute
statute of limitation until
of limitation until the fraud is
the fraud

discovered or could have been discovered with reasonable diligence. See Shell Oil

Co. Ross, 356
Co. v. Ross, 356 S.W.3d
S.W.3d 924,
924, 927 (Tex. 2011).
927 (Tex. 2011). The
Theelements
elements of
of fraudulent
fraudulent

concealment include the following: (1) the existence of the underlying tort; (2) the

defendant's knowledge
defendant's knowledge of
of the
the tort; (3) the defendant's use of deception to conceal

the tort;
the tort; and
and (4)
(4) the
the plaintiffs
plaintiff'sreasonable
reasonable reliance
reliance on
on the
the deception.
deception. See
See BP

America Prod. Co. v. Marshall,
Marshall 342 S.W.3d
S.W.3d 59,
59, 67-69
67-69 (Tex.
(Tex. 2011).
2011). A breach of a

fiduciary
fiduciary duty
duty of disclosure is tantamount
of disclosure tantamount to concealment
concealment for purposes of
for purposes of the

doctrine. See Dernick
Dernick Resources,
Resources, Inc. v.
v. Wilstein,
Wilstein, 312
312 S.W.3d
S.W.3d 864, 878 (Tex.
(Tex.

App.--Houston [1st
App.--Houston [1st Dist.]
Dist.] 2009,
2009, no
no pet.). Stateddifferently,
pet.). Stated differently, silence
silence constitutes
constitutes

fraudulent
fraudulent concealment
concealmentwhen
whenaa defendant
defendanthas
has aa duty
duty to disclose
disclose and its silence
silence

31
31
prevents the plaintiff from discovering the injury. See Haas v. George, 71 S.W.3d

904, 913 (Tex. App.—Texarkana 2002, no pet.).

summary judgment evidence demonstrating that
Appellees failed to present summary

they ever informed Patel that his partnership interest was taken from him, or even

conclusively
conclusivelydemonstrating
demonstratingwhen
whenit itwas
wastaken
takenaway
awayfrom
from him. Appellees
him. Appellees

concealed
concealed the
the fact
fact that
that Patel’s interest was
Patel's interest was transferred
transferred directly
directlyto
to Arfeen. (C.R.
Arfeen. (C.R.

Appelleeswere
126 - 129, 1353 - 140). Appellees were required
required pursuant
pursuant to
to the
the Harbor
Harbor Hospice
Hospice

Partnership
Partnership Agreement
Agreementtoto disclose
disclosethis
thisto
to Patel
Patel and
and did
did not
not do so. See Section

12.2(b) the
12.2(b) Partnership Agreement
the Partnership Agreement(C.R.
(C.R.66
66-- 67). Appellees were
67). Appellees were required
required to

secure Patel's
secure Patel's signature
signature on document transferring
on any document transferring his
his interest
interest to Arfeen but

failed to do so (C.R. 45 and 68). This
This conduct
conduct violated
violated the
the Partnership
Partnership Agreement

and was a breach of fiduciary duty. Instead, Appellees
duty. Instead, Appellees created two Amendment 4's

in an effort to conceal
conceal the
the improper
improper transfer
transfer to
to Arfeen.
Arfeen. (C.R. 135 - 140 and 126 -

Thedocumentary
129). The documentary evidence
evidence in
in the
the record,
record, coupled
coupled with
with Appellees
Appellees failure to

comply with the notice provisions of the Partnership
Partnership Agreement, constitutes some

evidence of fraudulent
fraudulent concealment.
concealment. Appellees did not conclusively negate
negate Patel’s
Patel's

affirmative defense of fraudulent concealment as a matter of law.

B. ISSUE
B. ISSUE TWO:
TWO: TheThe Trial
Trial Court
Court Erred
Erred in
in Concluding
Concluding that
that No
No
Genuine Issue
Genuine Issue of Material
Material Fact
Fact Exists
Exists on Any of Patel's
Patel’s Asserted
Asserted
Claims.

32
32
 Thetrial
1. The trialcourt
court erred
erred in
in granting
granting summary
summary judgment regarding
Patel's breach
Patel's breach of fiduciary
fiduciary duty claims
claims because
because the summary
summary
judgment evidence raises questions of material fact.

Appellees allege that their actions in wrongfully taking possession of Patel's

limited partnership
limited partnership interest
interest were appropriate under
were appropriate that Harbor
under that Harbor Hospice
Hospice

Partnership
Partnership Agreement. Appellees also allege
Agreement. Appellees allege that since their conduct
conduct was proper

under the Partnership Agreement and under Texas law, there cannot
cannot be a breach of

fiduciary
fiduciary duty
duty claim. However, in
claim. However, in order
order totosupport
supportthis
thisargument,
argument, Appellees
Appellees

assume that
assume partnership interest
that Patel's partnership interest was terminated or redeemed
was terminated redeemed by Harbor
Harbor

(C.R. 33
Hospice. (C.R. 33 -36).
-36). As
Asexplained
explainedabove,
above,aafact
fact issue
issue exists
exists regarding
regarding whether

Patel's partnership interest
Patel's partnership interest was redeemed, terminated,
was redeemed, terminated, or transferred directly
or transferred directly to

Arfeen. (C.R.
(C.R. 204
204 -- 206,
206, 207, 208).

Appellees assert that the elements of a breach of fiduciary duty claim are (i)

plaintiff and defendant
plaintiff defendant had a fiduciary
fiduciary relationship,
relationship, (ii) defendant
defendant breached
breached this

duty, (iii) this breach
duty, breach resulted
resulted in harm to plaintiff
plaintiff or
or benefit
benefit to
to defendant.
defendant. See

Graham
Graham Morg.
Morg. Corp.
Corp. v.
v. Hall,
Hag 307 S.W.3d 472, 479 (Tex. App. - Dallas 2010, no

pet). (C.R.
pet). (C.R. 33).
33). Appellees
Appelleesallege
allege that
that there
there is
is no
no requirement
requirement in law or in the
in law the

Partnership
Partnership Agreement
Agreement that
that prevents
prevents them
them from
from rejecting
rejecting Patel
Patel as their
their partner.
partner.

(C.R. 35).
(C.R. 35). Relying
Relying upon Section 10.2
upon Section 10.2 of
of the
thePartnership
Partnership Agreement
Agreement

(Expulsion/Termination Provision),
(Expulsion/Termination Provision), Appellees
Appellees assert
assert that
that exercising
exercising aa right under

the Partnership
the Partnership Agreement
Agreementis isnot
notaa breach
breach of
of fiduciary
fiduciaryduty. (C.R. 30).
duty. (C.R. 30).

33
33
Apparently, Appellees
Apparently, Appelleesasserted
assertedthat
thatthere
therewas
was no
no breach
breach of
of fiduciary
fiduciary duty
duty as
as a

matter of law.
matter law. However,
However,the
thesummary
summaryjudgment
judgmentevidence
evidence clearly
clearly demonstrates
demonstrates

that Patel's partnership interest was not terminated in accordance
accordance with
with the terms of

the Partnership Agreement, rather
rather itit was
was transferred
transferred directly
directly to
to Arfeen.
Arfeen. (C.R. 204 -

206, 207, 208). InInlight
lightofofthis
thissummary
summaryjudgment
judgmentevidence,
evidence, Appellees'
Appellees' reliance
reliance

the Partnership
upon Section 10.2 of the Partnership Agreement
Agreement is misplaced
misplaced and cannot support

summary judgment.

Appellees assertion
Appellees assertion that
that they
they did
did not violate
violate the terms
terms of
of the
the Partnership
Partnership

Agreement isis also
Agreement incorrect. AAcursory
also incorrect. cursory review
review of
ofthe
thePartnership
Partnership Agreement
Agreement

shows that Appellees violated the following provisions:

(a) Section
Section 3.4 requires
requires all general
general partners
partners and limited
limited partners
partners whose
whose
interest has
interest has changed
changedtotoinitial
initialExhibit
Exhibit"A".
"A". (C.R.
(C.R. 45). This did not
45). This
occur. Section 3.4 is in place to protect a limited partner such as Patel
to prevent his interest from being taken without his knowledge.

(b) Section
Section 7.2(iii)
7.2(iii) prevents
prevents the general partner
the general partner from
from amending
amending thethe
Harbor Hospice
Harbor Hospice Partnership
Partnership Agreement
Agreement without
without the
the approval
approval of
of the
limited partners
limited partners owning
owning moremore than 50% of the
than 50% the aggregate
aggregate limited
limited
partnership interest.
partnership (C.R. 51). Appellees
interest. (C.R. Appellees wrongful
wrongful transfer
transfer of Patel's
Limited
LimitedPartnership
Partnership Interest to Arfeen
Interest to Arfeenviolates
violatesthis provision.
this provision.
Furthermore, the wrongful transfer was committed without informing
Patel.

(c) Section
Section 7.2(iv) prevents the
7.2(iv) prevents general partner
the general partner from
from permitting
permitting any
any
assignment or
assignment transfer of any
or transfer any portion
portion of
of the
the partnership
partnership agreement
agreement
without the approval of the limited partners owning more than 50% of
the aggregate
the aggregate limited
limited partnership
partnershipinterest.
interest. (C.R.
(C.R. 51). Appellees
51). Appellees
Limited Partnership Interest violates this
wrongful transfer of Patel's Limited
Furthermore, the
provision. Furthermore, the wrongful
wrongful transfer
transfer was
was committed
committed without
informing Patel.
34
34
 (d) Section 8.1 prevents any limited partner from assigning any portion of
his limited partnership interest without the prior written consent of all
of the
thegeneral
generalpartners.
partners. (C.R.
(C.R. 53
53 - 54).
54). Furthermore,
Furthermore, section
section 8.1
8.1
provides that
provides thatany attempted assignment
any attempted assignment which
which is permitted by
is not permitted
Section
Section 8.1 shall be automatically void and ineffective, except
except to the
extent
extent otherwise
otherwise required
requiredbyby law. Appellees wrongful
law. Appellees wrongful transfer
transfer of
Patel's Limited Partnership
Partnership Interest
Interest to Arfeen violates this provision.
provision.
Furthermore, the wrongful transfer was committed without informing
Patel.

(g) Defendants
Defendantsfailed
failedtoto satisfy
satisfySection
Section8.5
8.5 and
and 10.2
10.2 as has been
as has been
explained above.

(h) Section 12.2(a)(iv)
12.2(a)(iv) provides
provides that the general partners shall not reduce
the rights
the rights or
or interests,
interests, or
or enlarge
enlarge the
the obligations,
obligations, or the
the limited
limited
partners without the prior written consent of all of the limited partners.
Appellees wrongful
(C.R. 66). Appellees wrongful transfer
transfer of
of Patel's
Patel's Limited
Limited Partnership
Partnership
Interest violates
Interest violates this provision. Furthermore,
this provision. Furthermore, the
the wrongful
wrongful transfer
transfer
was committed without informing Patel.

(i)
(i) Section 12.2(b) provides that the general partner shall promptly notify
limited partners
the limited partners of
of any
any such
such amendments.
amendments. (C.R.
(C.R. 66). Appellees
66). Appellees
wrongful transfer
wrongful transfer of Patel's
Patel's Limited
Limited Partnership
Partnership Interest
Interest to Arfeen
Arfeen
violates this
violates provision. Furthermore,
this provision. Furthermore, the
the wrongful
wrongful transfer
transfer was
was
committed without informing Patel.

(j) Section
Section 13.4 the Harbor
13.4 of the Harbor Hospice
Hospice Partnership
Partnership Agreement
Agreement clearly
clearly
provides that no modification, waiver of termination of the Agreement
beeffective
shall be effectiveunless
unlessmade
madeininaa writing
writing signed
signed by
by parties sought to
be bound
bound thereby.
thereby. (C.R. 68). Clearly,this
68). Clearly, this did
did not
not occur.

Appellees have
Appellees have failed
failed to establish
establish that their conduct
conduct was proper under the

Harbor Hospice Partnership Agreement.

Appellees concede
Appellees concedethat
that aa partner’s
partner's fiduciary
fiduciary duty
duty includes:
includes:(i)
(i) aa duty
duty of

loyalty to the concern,
loyalty concern, (ii) a duty
duty of
of good
good faith,
faith, fairness
fairness and
and honesty
honesty in
in dealing
dealing

with each other on matters pertaining to the partnership, (iii) duty of full disclosure
35
35
on all matters,
on all matters, (iv)
(iv) accounting
accounting for
for partnership
partnership profits
profits and
and property,
property, and (v)
and (v)

refraining from
refraining from competing
competing or
or dealing
dealing with
with the partnership
partnership in a manner adverse to

partnership. (C.R.
the partnership. (C.R. 34
34 at
at paragraph
paragraph 28). Appellees
Appellees violated
violated their
their fiduciary
fiduciary duty

to Patel by improperly transferring Patel's limited partnership interest to Arfeen, by

failing
failing to inform Patel
Patel of the same, and by failing
failing to
to pay
pay Patel
Patel any
any consideration
consideration

for the limited
limited partnership
partnership interest.
interest. (C.R. 96, 222,
222, 223
223 and
and 235). Appellees have
235). Appellees

failed to establish
establish as a matter of law that
that Appellees
Appellees did not breach
breach their fiduciary
fiduciary

duty to Patel.

Appellees did
Appellees even suggest
did not even suggest in
in their
theirAmended
Amended Summary
Summary Judgment
Judgment

Motion that
Motion they were
that they were entitled
entitled to
to summary
summary judgment
judgment if Patel's
Patel's interest
interest was
was

transferred directly
transferred directlyto
to Arfeen. On the
Arfeen. On the record
record before
before court,
court, Appellees
Appellees failed
failed to

establish
establish as
as a matter of law that
that Appellees
Appellees did not breach
breach their fiduciary duty to

Patel.

Thetrial
2. The trialcourt
court erred
erred in
in granting
granting summary
summary judgment regarding
Patel's breach
Patel's breach of breach of
of breach of contract
contract claim
claim because
because the
the
summary judgment evidence raises questions of material fact.

Appellees sought
Appellees sought summary
summary judgment
judgment regarding
regarding Patel's
Patel's claim
claim for
for breach
breach of

contract by asserting that Patel could not establish a genuine issue of material fact

regarding the
regarding the element
element of
of breach. Appellees again
breach. (C.R. 36). Appellees again asserted
asserted that (i) they

were entitled to terminate or expel Patel from Harbor Hospice pursuant to Section

Partnership Agreement
10.2 of the Partnership Agreement(C.R.
(C.R.36),
36),and
and(ii) no provision
(ii) no provision of the Texas
Texas

36
36
Business Organizations
Business Organizations Code
Code prohibits
prohibits partners
partners from agreeing to
from agreeing to expulsion
expulsion

provisions in a partnership
provisions partnership agreement
agreement (C.R.
(C.R. 37). However, as explained
37). However, explained above, a

fact issue exists
fact issue exists regarding
regarding whether
whether Patel's
Patel's partnership
partnership interest
interest was
was redeemed,
redeemed,

terminated, or transferred directly
directly to
to Arfeen.
Arfeen. (C.R. 204 - 206, 207, 208).

Clearly,
Clearly, if Patel's partnership interest was transferred
transferred directly
directly to Arfeen, as

evidenced
evidenced by the documents in the summary
summary judgment record, Appellees violated

Sections
Sections 3.4,
3.4, 7.2(iii),
7.2(iii), 7.2(iv),
7.2(iv), 8.1,
8.1, 8.5, 12.2(a)(iv), 12.2(b),
8.5, 10.2, 12.2(a)(iv), 12.2(b), and
and 13.4
13.4 of the

Partnership
PartnershipAgreement.
Agreement. (C.R.
(C.R. 45,
45, 51,
51, 53-54,
53-54,66,
66,and
and68).
68). It is also clear that
that if

Patel's partnership
partnership interest
interest was
was transferred
transferred directly
directly to
to Arfeen,
Arfeen, Section
Section 10.2
10.2 of the

Partnership
Partnership Agreement
Agreement does
does not
not apply. Substantial summary
apply. Substantial summary judgment
judgment evidence
evidence

exists demonstrating
demonstrating that
that Patel's
Patel's interest
interest was
was transferred
transferreddirectly
directlyto
toArfeen.
Arfeen. (C.R.

204 -- 206,
204 206, 207,
207, 208).
208). Substantial
Substantialsummary
summaryjudgment
judgment evidence
evidence also
also exists
exists

indicating that
indicating that Appellees
Appellees failed
failed to
to inform
inform Patel
Patel of
of the transfer and
the transfer and failed
failed to pay

Patel any consideration for the limited partnership interest. (C.R. 96, 222, 223 and

Therefore, aa fact
235). Therefore, fact issue
issue exists
exists regarding
regarding Patel's
Patel's claim for breach of contract.

3. The
Thetrial
trialcourt
court erred
erred in
in granting
granting summary
summary judgment regarding
Patel's conversion
Patel's conversion claim
claim because
because the
the summary
summary judgment
judgment
evidence raises questions of material fact.

Appellees sought summary judgment regarding Patel's claim for conversion

asserting that
by asserting Patel could
that Patel could not establish
establish aa genuine
genuine issue
issue of material fact
of material fact as to

expulsion was justified under Section 10.2 of the
whether expulsion the Partnership
Partnership Agreement
Agreement

37
37
and therefore termination of Patel's interest cannot constitute conversion (C.R. 38).

In support of this Argument, Appellees claimed that Patel violated the Partnership

Agreement and
Agreement and triggered
triggered Section
Section 10.2
10.2 of
of the
the Partnership
Partnership Agreement.
Agreement. (C.R. 38).

Appellees also
Appellees also allege
allege that
that they
they had every right
had every right to take
take control
control of
of Patel's
Patel's shares.
shares.

(C.R. 38).
(C.R. 38). However,
However, as
asexplained
explained above,
above, aa fact
fact issue
issue exists
exists regarding
regarding whether
whether

Patel's partnership interest
Patel's partnership interest was redeemed, terminated,
was redeemed, terminated, or transferred directly
or transferred directly to

(C.R. 204
Arfeen. (C.R. 204 -- 206,
206, 207, 208).

partnership interest was transferred
If Patel's partnership transferred directly to Arfeen,
Arfeen, Appellees
Appellees

violated Sections 3.4, 7.2(iii), 7.2(iv), 8.1, 8.5, 10.2, 12.2(a)(iv), 12.2(b), and 13.4

of the Partnership
Partnership Agreement.
Agreement. (C.R. 45, 51, 53-54,
53-54, 66,
66, and
and 68). Further, if Patel's
68). Further,

partnership interest
partnership interestwas
was transferred
transferreddirectly
directlytoto Arfeen,
Arfeen, Section
Section 10.2
10.2 of the
of the

Partnership Agreement does not apply.

Substantial
Substantial summary
summary judgment
judgment evidence exists demonstrating
evidence exists demonstrating that Patel's
Patel's

interest was transferred
transferred directly
directlyto
to Arfeen.
Arfeen. (C.R. 204 - 206,
206, 207,
207, 208).
208). Substantial

summary judgment evidence
evidence also exists indicating that Appellees failed to inform

Patel
Patel of the
the transfer
transfer and
and failed
failed to
to pay
pay Patel
Patel any
any consideration
consideration for the
the limited
limited

partnership interest.
partnership interest. (C.R. 96, 222, 223
223 and 235). Therefore,
and 235). Therefore, aa fact
fact issue
issue exists
exists

regarding Patel's claim for conversion.

The trial
4. The trial court
court erred
erred iningranting
grantingsummary
summary judgment
judgment regarding
regarding
Patel's claim
Patel's claim for Texas
Texas Theft
Theft Liability
Liability Act
Act violations
violations because
because the
summary judgment evidence raises questions of material fact.

38
38
 Appellees sought summary
Appellees summary judgment
judgment regarding
regarding Patel's violations
Patel's claim for violations

of the
the Texas
Texas Theft
Theft Liability
Liability Act
Act by asserting
asserting that
that Patel
Patel could
could not
not establish
establish a

genuine issue of material fact as to whether
whether expulsion
expulsion was justified under Section

10.2 of the
10.2 the Partnership
Partnership Agreement
Agreement and
and therefore
therefore termination
termination of Patel's
Patel's interest
interest

cannot constitute
constitute theft
theft (C.R.
(C.R. 38). In support
38). In support of
of this
this Argument,
Argument, Appellees
Appellees claimed

violated the Partnership
that Patel violated Partnership Agreement
Agreement and
and triggered
triggered Section
Section 10.2
10.2 of the

Partnership
Partnership Agreement.
Agreement. (C.R.
(C.R. 38). Appellees also
38). Appellees also allege
allege that had every
every right to

take control of Patel's
Patel's shares. However, as
shares. (C.R. 38). However, as explained
explained above,
above, a fact issue

exists regarding whether Patel's partnership interest was redeemed, terminated, or

transferred directly to
to Arfeen. (C.R. 204 - 206, 207, 208).
Arfeen. (C.R.

As is set forth above, if Patel's partnership interest was transferred directly to

Arfeen, Appellees violated Sections 3.4, 7.2(iii), 7.2(iv), 8.1, 8.5, 10.2, 12.2(a)(iv),

12.2(b), and 13.4
13.4 of the Partnership
Partnership Agreement.
Agreement. (C.R. 45, 51, 53-54, 66, and 68).

Additionally, ifif Patel's
Additionally, Patel's partnership
partnership interest was transferred
interest was transferred directly
directly to Arfeen,
Arfeen,

Section 10.2 of the Partnership Agreement does not apply.

Substantial
Substantial summary
summary judgment
judgment evidence exists demonstrating
evidence exists demonstrating that Patel's
Patel's

interest was transferred
transferred directly
directlyto
to Arfeen.
Arfeen. (C.R. 204 - 206,
206, 207,
207, 208).
208). Substantial

summary judgment evidence also exists that Appellees failed to inform Patel of the

transfer and
transfer failed to pay
and failed pay Patel
Patel any
anyconsideration
consideration for
for the
the limited
limited partnership
partnership

39
39
interest. (C.R.
interest. (C.R. 96,
96, 222,
222, 223
223 and
and 235).
235). Therefore,
Therefore, aafact
factissue
issue clearly
clearly exists
exists

regarding Patel's claim for violations of the Texas Theft Liability Act.

5. The
Thetrial
trialcourt
court erred
erred in
in granting
granting summary
summary judgment regarding
Patel's claim
Patel's claim for fraud because
for fraud because Appellees
Appellees did not seek
did not seek
summary judgment regarding Patel’s
Patel's fraud claim.

Appellees did not independently
Appellees independently seek summary
summary judgment
judgment regarding
regarding Patel’s
Patel's

claim
claim for fraud by
by non-disclosure
non-disclosure in Appellees'
Appellees’ Amended
Amended Motion
Motion for
for Summary
Summary

Judgment. (C.R. 26-141).
Judgment. (C.R. 26-141). Appellees
Appelleesonly
onlysought
soughtsummary
summary judgment
judgment regarding
regarding

Patel’s fraud claim
Patel's fraud claim in
in the
the Amended
Amended Motion for Summary Judgment based upon the

theory that (i) the fraud claim is barred by statute of limitations, and (ii) Patel did

not suffer damages
damages as
as aa result
result of
of Patel’s
Patel's fraud claim. These arguments
claim. These arguments are without

merit and are discussed elsewhere
elsewhere in
in this
this brief. It would
brief. It would be
be reversible
reversible error for the

trial court
trial court to
to grant
grantAppellees'
Appellees’Amended
Amended Motion
Motion for
forSummary
Summary Judgment
Judgment

independently regarding
independently regarding Patel’s
Patel's fraud claim because this relief was not requested
requested

in the Amended Motion for Summary Judgment. See G&H Towing Co. v. Magee,
Mage4

347 S.W.3d 293, 297 (Tex. 2011).

C. ISSUE
ISSUETHREE:
THREE: The TheTrial
TrialCourt
CourtErred
ErredininConcluding
Concluding Appellees
Appellees
Conclusively Established that Patel Did Not Suffer Damages.

Appellees alleged
Appellees alleged that
that Patel could not establish
Patel could establish injury
injury from any
any alleged
alleged

cause
cause of
of action. (C.R. 38
action. (C.R. 38 at
at paragraph
paragraph 37). In
Infact,
fact,Appellees
Appellees alleged
alleged that"[i]t
that"[i]t is

clear that the
clear that the partnership
partnership agreement,
agreement, the
the terms which Plaintiff
terms of which Plaintiff agreed
agreed to,
to,

provides that any partner who leaves the partnership, either voluntarily or through
40
40
expulsion,
expulsion,leaves
leaveswith
withnothing
nothingmore
morethan
thanhis
his capital
capital account." (C.R. 39).
account." (C.R. 39).

However, Patel
However, Patel did not leave
did not leave the
the partnership
partnership voluntarily
voluntarily or
or though
though expulsion.
expulsion.

There is no provision in the Partnership Agreement that provides Patel was entitled

capital account if his
to nothing more than his capital his shares
shares were
were improperly
improperly transferred
transferred

directly to
directly Arfeen. Pursuant
to Arfeen. Pursuant to
to Sections
Sections 3.4,
3.4, 8.1,
8.1, and
and 13.4
13.4 of
of the
thePartnership
Partnership

Agreement of Harbor Hospice, the alleged transfer to Arfeen is void and that Patel

is entitled to retain
retain his
his limited
limited partnership
partnershipinterest.
interest. (C.R.
(C.R. 42-88). Therefore, under
42-88). Therefore,

the Partnership Agreement
Agreement Patel
Patel is entitled to the return of his limited
limited partnership
partnership

interest in Harbor Hospice. Furthermore,
Furthermore, since
since Arfeen
Arfeen and
and Arfeen
Arfeen Properties have

wrongfully taken the distributions that Patel was entitled to, Patel is entitled a pro-

rata share of the distributions made to Arfeen and/or Arfeen Properties since 2008
th
(financial amounts
(financial amounts redacted
redacted pursuant
pursuant to
to Order from the 58
Order from District Court
5g1i District Court in

Chapman
Chapman v. Arfeen, et.
v. Arfeen, et. al.)(C.R.
al.)(C.R. 227
227 -- 233).
233). Arfeen
Arfeen wrongfully
wrongfully received
received a

substantial amount of distributions and Arfeen Properties, LP wrongfully received

amount of distributions
an even greater amount distributions that
that clearly
clearly belonged
belonged to
to Patel. Appellees
Patel. Appellees

Amended Motion for Summary Judgment did not address these claims at all.

Patel
Patel is also
also entitled
entitled to the
the value
value of
of his
hislimited
limited partnership
partnership interest
interest under
under

Texas law on the date it was improperly acquired by Arfeen.See Qaddura v. Indo-

European Foods,
European Foods, Inc.,
Inc., 141
141 S.W.3d
S.W.3d 882,
882, 888-890
888-890 (Tex.
(Tex. App.
App. Dallas
Dallas 2004);
2004);

Aquaplex, Inc. v. Rancho La Valencia, Inc.
Inc,, 297 S.W.3d 768, 775-776 (Tex. 2009);

41
41
 Wilson, 137
Punts v. Wilson, 137 S.W.3d
S.W.3d 889, 891 (Tex.
(Tex. App.
App. Texarkana
Texarkana 2004);
2004); Groves
Groves v.

Hanks, 546 S.W.2d 638, 647 (Tex. Civ. App. Corpus Christi 1976); e.g. Business

Organization’s
Organization's Code
Code Section
Section 152.602.. There is
152.602.. There is no
no provision
provision in
in the
the Partnership
Partnership

Agreement ofofHarbor
Agreement HarborHospice
Hospicetotothe
thecontrary.
contrary. (C.R.
(C.R.42
42 -- 88).
88). Appellees
Appellees

Amended Motion for Summary Judgment likewise did not address this claim at all.

Appellees also
Appellees argued that
also argued that if
if Patel's
Patel's limited
limited partnership
partnership interest
interest was
was

redeemed then the purchase price of his redeemed interest is limited to his capital
redeemed

account. First
account. First of
of all,
all, Patel's
Patel's interest
interest was not redeemed
redeemed (see
(see above). Secondly, the
above). Secondly,

Business Organization Code provides:

. .. .. aapartnership
partnership agreement
agreement governs
governs the relations
relations of the partners
partners and
between the partners
between partners and the
the partnership.
partnership. To the extent
To the extent that
that the
the
partnership agreement
partnership agreementdoesdoesnot otherwise
not otherwiseprovide,
provide,this chapter
this chapter
and the other partnership provisions govern the relationship of the
partners and between the partners and the
partners the partnership
partnership. Business
Business
Organization’s
Organization's Code Section 152.002(a)("emphasis
152.002(a)('emphasis added").
added').

. . . the redemption price of a withdrawn partner’s
partner's partnership interest is
the fair
the fair value
value of the
the interest
interest on the
the date
date of
of withdrawal.
withdrawal. Business
Business
Organization’s
Organization's Code Section 152.602(a).

Therefore, if Patel's limited partnership interest was redeemed, Section 8.5
Therefore,

of the Partnership Agreement would not apply because Appellees failed to provide

Patel with
with 60 days notice
notice as required.
required. Since
Since Appellees
Appellees failed
failed to comply
comply with the

terms of the partnership agreement, Texas law applies and Patel would be entitled

to the fair value of his limited partnership interest pursuant to section 152.602(a) of

the Business Organization's Code.
42
42
 Finally, even
Finally, even if Section 8.5 of
of the
the Partnership
Partnership Agreement
Agreement applied,
applied, Patel is

entitled
entitled to
to damages. Patel's K-1
damages. Patel's K-1 for
for the
the year
year 2008
2008 states
states that
that Patel
Patel received
received a

distribution from
distribution from Harbor
HarborHospice
Hospiceinin the
the amount
amount of
of $28,575.00. (C.R. 141).
$28,575.00. (C.R. 141).

However, the Harbor Hospice general ledger for the year 2008 does not reflect any

distributions totoPatel.
distributions (C.R. 234).
Patel. (C.R. 234). Patel
Pateltestified
testifiedthat
thathe
henever
never received
received any
any

money. (C.R.
money. (C.R. 223
223 and
and 235).
235). Therefore,
Therefore,Appellees
Appelleeshave
have wrongfully
wrongfully asserted
asserted that

$28,575
$28,575 was
was paid
paid to
to Patel
Patel even
even though
though itit was
was not. Clearly, this
not. Clearly, this would
would increase
increase

Patel's capital account
account by
by $28,575. Once this
$28,575. Once this inaccurate
inaccurate entry is removed from the

account balance
K-1 of Patel, Patel's capital account balance would
would be
be $28,575. Therefore, even
$28,575. Therefore,

under Appellees' theory
theory of damages,
damages, Patel
Patel would
would be entitled to at least $28,575 in

damages. Appellees
damages. Appellees are
are unable
unable to establish
establish that
that there
there is no genuine
is no genuine issue
issue of

material fact regarding Patel's claim for damages.

D. ISSUE
D. ISSUE FOUR:
FOUR: The
The Trial
Trial Court
Court Erred
Erred ininGranting
Granting Summary
Summary
Judgment Because
Judgment Because Appellees'
Appellees' Failed
Failed to Authenticate
Authenticate Any
Any of Their
Summary Judgment Evidence.

Appellees failed
Appellees authenticate any of their
failed to authenticate their summary
summary judgment
judgment evidence.
evidence.

(C.R. 26
(C.R. 26 - 141).
141). No
Noaffidavit
affidavitwas
wasattached
attachedtotoAppelles'
Appelles' Amended
Amended Motion
Motion for

Summary
Summary Judgment
Judgment attempting
attempting to
to authenticate
authenticate any
any of the
the summary
summary judgment
judgment

evidence. (C.R. 26
evidence. (C.R. 26 -- 141).
141). Accordingly,
Accordingly,Appellees'
Appellees'summary
summary judgment
judgment evidence
evidence

admissible as summary judgment
was not authenticated and should not have been admissible

evidence. See Blanche
Blanche v. First
First Nationwide
Nationwide Mortg. Corp,
Corp., 74 S.W.3d
S.W.3d 444, 451

43
43
(Tex. App.--Dallas
(Tex. App.--Dallas 2002,
2002, no
no pet.). Accordingly, the trial court
pet.). Accordingly, court erred in granting
granting

Appellees' Amended Motion for Summary Judgment.

Conclusion
E. Conclusion

It is clear that fact issues exist regarding Patel's claims
claims for fraud, breach of

contract,
contract, breach
breach of fiduciary
fiduciary duty, conversion, for
duty, conversion, for violations
violations of Theft
of the Texas Theft

Liability
Liability Act,
Act, and for declaratory
and for declaratory relief.
relief. The
Thesummary
summaryjudgment
judgment evidence
evidence

establishes
establishes fact
fact issues
issues regarding
regarding each
each of Patel's claims,
of Patel's claims, Appellees'
Appellees' statute
statute of

limitations defense,
limitations defense, Patel’s fraudulent concealment
Patel's fraudulent concealment defense,
defense, and
and Patel’s
Patel's claim for

damages. The
damages. Thetrial
trialcourt's
court'ssummary
summary judgment
judgment ruling
ruling was
was unwarranted,
unwarranted, improper
improper

and constitutes reversible error.

PRAYER

forth herein,
For the reasons set forth herein, Appellant,
Appellant, Patel, respectfully requests pray

that this Honorable Court reverse the summary judgment granted by the trial court

in its entirety and remand this case to the trial court for a trial on the merits.

44
44
Respectfully submitted,

/s/ Chris M. 7)
/4/ &4414711, Portner
oftea et

Chris M. Portner
State Bar No.: 24007858
cportner@portnerbond.com
cportner@portnerbond. corn
J. Trenton Bond
State Bar No.: 00785707
tbond@portnerbond.com
P ORTNER ♦. B
PORTNER OND, PLLC
BOND, PLLC
1905 Calder Avenue
Beaumont, Texas 77701
Telephone: (409) 838-4444
(409) 554-0240
Facsimile: (409)

Anthony Malley, III
State Bar No.: 24041382
tony@mallaw.com
MALLEY LLAW
MALLEY AW FFIRM,
IRM, PLLC
PLLC
905 Orleans, Suite 110
Beaumont, Texas 77701
Telephone: (409) 212-8888
(409) 212-8002
Facsimile: (409) 212-8002

Jamie Matuska
MATUSKA L
MATUSKA AW F
LAW FIRM
IRM
State Bar No.: 24051062
jjamie@matuskalaw.com
amie@matuskalaw. corn
2809 Highway 69 North
Nederland, Texas 77627
Telephone: (409) 722-5600
(409) 727-1290
Facsimile: (409)

45
 CERTIFICATE OF SERVICE

correct copy of the
I certify that on October 12, 2015, a true and correct the foregoing
foregoing

instrument was
instrument was provided
provided to
to all known
known counsel
counsel of record in accordance
accordance with the

Texas Rules of Civil Procedure.

David Gaultney
MehaffyWeber, P.C.
823 Congress Avenue, Suite 200
Austin, Texas 78701

David E. Bernsen
Christine L. Stetson
Bernsen Law Firm
420 North MLK, Jr., Pkwy
Beaumont, Texas 77701

Glen W. Morgan
John Werner
Reaud, Morgan & Quinn, LLP
P.O. Box 26005
Beaumont, Texas 77720-6005

/s/ Chris 712,
/4/ &wad M. Peewit
Portner
Chris M. Portner

46
46
 CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of TEX. R. APP. P.

9.4(e), it has been prepared in a conventional typeface no smaller than 14-point for

text and no smaller than 12-point for footnotes. This document
footnotes. This document also complies with

the word-count limitations
limitations of TEX. R. APP. P. 9.4(i)(3) because it contains 7,034

words.

/s/ Chris M. 7)
/4/ &4414711, Portner
oftea et
Chris M. Portner

47
47
 NO. 13-15-00452- CV

IN THE THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI-EDINBURG, TEXAS
__________________________________________________________________

SANDEEP PATEL,
Appellant

v.

HARBOR HOSPICE OF BEAUMONT, L.P., ET AL,
Appellees
__________________________________________________________________

172nd Judicial District Court of Jefferson County, Texas
On Appeal from the 172nd
Trial Court Cause No. E-192,576
The Honorable Donald J. Floyd, Presiding
__________________________________________________________________

APPENDIX TO BRIEF OF APPELLANT
__________________________________________________________________

TAB

A June 2015 Order
June 18, 2015 Order on
onDefendants'
Defendants’ Amended
Amended Motion
Motion for
for Summary
Summary
Judgment
 FILED
DISTRICT CLERK OF
TAB A JEFFERSON CO TEXAS
6/18/2015 2:29:33 PM
JAMIE SMITH
DISTRICT CLERK
CAUSE NO.
CAUSE E-192, 576
NO. E-192, E-192576

SANDEEP PATEL § IN THE DISTRICT COURT OF
§
vs.
VS. § JEFFERSON COUNTY, TEXAS
§
HARBOR HOSPICE OF §
BEAUMONT, L.P., ET AL § 172nd nJDICIAL
JUDICIAL DISTRICT COURT

ORDER ON
DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT
1"'#

On ---¥~~-___:1:.......::8::._.
i 8_______, 2015 the Court
Court considered
considered Qamar

Arfeen, Harbor H
H pice
piceofofBeaumont
BeaumontLP,
LP,Harbor
HarborHospice
HospiceManagers,
Managers, LLC
LLC and
and Arfeen
Arfeen Properties,

for Summary Judgment, and ORDERS that Defendants' Motion is in all
LLP's Amended Motion for

things GRANTED.
GRANTED. Plaintiff's
Plaintiff'sclaims
claimsare
aredismissed in their entirety
dismissed in

All other relief not herein
herein granted
granted isis expressly
expresslydenied.
denied. This
ThisOrder
Order is
is final
final and
and appealable.
,.i(

SIGNED /8
on this 18 day
SIGNEDonthis ~d
of C:
dayof ~
)