Khyati Undavia, Minu RX LTF and Minu GP, LLC v. Avant Medical Group, P.A., D/B/A Interventional Spine Associates, and Brett L. Garner, D/B/A Allied Medical Centers

• Court: Court of Appeals of Texas
• Decided: April 3, 2015
• Docket: 14-15-00295-CV
• Status: Published

Opinion

ACCEPTED 14-15-00295-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 4/3/2015 11:45:08 AM CHRISTOPHER PRINE CLERK 14-15-00295-CV NO. __________________________

FILED IN 14th COURT OF APPEALS In the ______________ District Court of AppealsHOUSTON, TEXAS Houston, Texas 4/3/2015 11:45:08 AM CHRISTOPHER A. PRINE Clerk

KHYATI UNDAVIA, MINU RX, LTD., AND MINU GP, LLC Appellants,

v.

AVANT MEDICAL GROUP, P.A., D/B/A INTERVENTIONAL SPINE ASSOCIATES, AND BRETT L. GARNER, D/B/A ALLIED MEDICAL CENTERS Appellees.

On Appeal from the 152nd Judicial District Court, Harris County, Texas Trial Court Cause No. 2014-22186

PETITION FOR PERMISSION TO APPEAL INTERLOCUTORY ORDER

Ashish Mahendru State Bar No. 00796980 amahendru@thelitigationgroup.com Darren A. Braun State Bar No. 24082267 dbraun@thelitigationgroup.com MAHENDRU, PC 639 Heights Boulevard Houston, Texas 77007 713-571-1519 713-651-0776 fax

APPELLATE COUNSEL FOR APPELLANTS IDENTITY OF PARTIES AND COUNSEL

The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made so that the Judges in this Court may evaluate possible disqualification issues.

Appellants/Defendants: Minu RX, Ltd. d/b/a Memorial Compounding Pharmacy Minu GP, LLC

Khyati Undavia

Counsel for Appellants Ashish Mahendru State Bar No. 00796980 Darren A. Braun State Bar No. 24082267 Mahendru, P.C. 639 Heights Blvd. Houston, Texas 77007 amahendru@thelitigationgroup.com dbraun@thelitigationgroup.com

Appellees/Plaintiffs: Brett Garner Brett Garner, P.A. Avant Medical Group, P.A d/b/a Allied Medical Centers. Interventional Spine Associates Nisal Corp. Qualcare Rehabilitation

Counsel for Appellees/ Plaintiffs: Matias Adrogue State Bar No. 24012192 Robert Stephan Kaase State Bar No. 24083287 1629 West Alabama St. Houston, Texas 77006 713-425-7270 (Telephone) 713-425-7571 (Facsimile)

ii service@mjalawyer.com

Co-Defendant: Compass Bank

Counsel for Co-Defendants Compass Bank: William P. Huttenbach State Bar No. 24002330 Jacob M. Stephens State Bar No. 24066143 Hirsch & Westheimer 1415 Louisiana, 36th Floor Houston, Texas 77002 (713) 223-5181 (Main) (713) 223-9319 (Fax)

iii TABLE OF CONTENTS

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

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

TABLE OF AUTHORITIES ................................................................................... vi

STATEMENT OF THE CASE ................................................................................ ix

ISSUES PRESENTED...............................................................................................x

SUMMARY ............................................................................................................. xi

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

A. The Underlying Lawsuit And Mutual Release .......................................2

B. The Current Lawsuit ...............................................................................2

C. Appellees And Appellants Are Inextricably Connected With The Signatories Of The Mutual Release .......................................3

SUMMARY OF THE ARGUMENT ........................................................................7

ARGUMENT AND AUTHORITIES ........................................................................9

I. THE ORDER TO BE APPEALED INVOLVES A CONTROLLING ISSUE OF LAW AS TO WHICH THERE IS SUBSTANTIAL GROUNDS FOR DISAGREEMENT. .......................................................................................10

A. This Appeal Involves A Controlling Issue Of Law Because, If Mutual Release Encompasses Appellee’s Claims, Then Those Claims Are Barred, And Appellants Are Entitled To Summary Judgment. ..........11

iv B. Substantial Grounds For Disagreement Exist Because The Issue Before The Court Is Novel And There Is Little Or No Authority Upon Which The Trial Court Can Rely. .......................................................11

(i) The issue before the Court is novel because no Texas court appears to have considered to what extent, and under what circumstances, an unnamed plaintiff is bound by a release ......12

a. Texas courts broadly apply the protection of releases to unnamed defendants that are intimately connected to the facts giving rise to the release . . . . . . . . . . . . . . . . . . . .13

b. Despite the absence of case law, there are no policy reasons for not applying the law applicable to unnamed defendants to unnamed plaintiffs . . . . . . . . . . . . . . . . .17

c. The interpretation of "agent" in the context of a release is also a novel issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

(ii) There are grounds for substantial difference of opinion with regard to the controlling issue of law because there is an absence of case law on the issue ...............................................20

II. AN IMMEDIATE APPEAL MATERIALLY ADAVANCES THE ULTIMATE TERMINATION OF THIS LITIGATION. ..............................20

CONCLUSION ........................................................................................................22

CERTIFICATE OF COMPLIANCE .......................................................................24

CERTIFICATE OF SERVICE ................................................................................25

APPENDIX ..............................................................................................................26

v TABLE OF AUTHORITIES

Cases

Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) .................................................28

Dyrcz v. Longview Enter., Ltd., 2:05-CV-476 (TJW), 2006 WL 3289046, at *1 (E.D. Tex. Nov. 13, 2006), aff'd sub nom. Dyrcz v. Graham Bros. of Longview, LLC, 234 Fed. Appx. 236 (5th Cir. 2007) ............................................................ 25, 26, 27

Gulf Coast Asphalt Company, LLC v. Lloyd , 2015 WL 393407, at *5 (Tex. App.—Houston [14th Dist.] Jan. 29, 2015, no. pet. h.). .......... 20, 21, 22

Jorgensen v. Stuart Place Water Supply Corp., 676 S.W.2d 191, 194 (Tex. App.—Corpus Christi 1984, no writ) .............................................................29

McMillen v. Klingensmith, 467 S.W.2d 193, 197 (Tex. 1971) ................................23

Mem'l Med. Ctr. of E. Tex. v. Keszler, 943 S.W.2d 433, 435 (Tex.1997) ...............23

Michael Lee Andrews Trust v. Licari, CIV.A.3:02-CV-1076-N, 2004 WL 524941, at *2 (N.D. Tex. Mar. 17, 2004) ................................................24

Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 254 (5th Cir. 2000) .......... 23, 26

Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13, 16 (Tex. App.—San Antonio, 1998, no pet.) ................................................................25

Winkler v. Kirkwood Atrium Office Park, 816 S.W.2d 111, 113-14 (Tex. App.—Houston [14th Dist.] 1991, writ denied)................................. 23, 24, 26 Statutes

TEX. CIV. PRAC. REM. CODE §51.014(d) ..................................................................19 TEX. R. CIV. P. 168 ...................................................................................................19

vi NO. _______________________

In the ________ District Court of Appeals Houston, Texas

AVANT MEDICAL GROUP, P.A., D/B/A INTERVENTIONAL SPINE ASSOCIATES, AND BRETT L. GARNER, D/B/A ALLIED MEDICAL CENTERS Appellees.

On Appeal from the 152nd Judicial District Court, Harris County, Texas Trial Court Cause No. 2014-22186

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Appellants, Khyati Undavia, Minu RX, Ltd., and MINU GP, LLC, file this

Petition for Permission to Appeal Interlocutory Order issued by the Honorable

Robert Schaffer, Judge in the 152nd Judicial District Court, on March 20, 2015,

granting in-part and denying in-part Appellants’ Motion for Summary Judgment on

vii the basis of a prior release agreement and non-suit with prejudice between the

parties. Because the release applies to all claims asserted by all Appellees in a

manner which presents a controlling issue of law, which if resolved by this Court

unquestionably materially advances the ultimate termination of the litigation, as

validated by the trial court in applying the release to Nisal Corp. and dismissing all

its claims in this lawsuit. If the release applies to Nisal Corp. in this series of

transactions as articulated by Appellees in this lawsuit, then it equally applies to all

parties.

The attached appendix will be referred to as "AR001-208".

viii STATEMENT OF THE CASE

NATURE OF THE CASE: Appellees, former tenants of a landlord, filed suit against the landlord’s agents for various claims arising out of the parties’ landlord-tenant relationship. Previously, one of the Appellees sued the landlord regarding a lease dispute, settled the case, and entered into a broad-form mutual release. Although there are multiple parties here, this case—like the previous case— is a dispute between the landlord and tenants, which was fully resolved, released, and dismissed with prejudice. Appellants contend that the mutual release bars Appellees’ claims in this lawsuit, because the Appellee and Appellants are all agents of the parties to the underlying lawsuit and release.

TRIAL COURT: The Honorable Judge Robert Schaffer, 152nd Judicial District Court, Harris County, Texas

TRIAL COURT’S DISPOSITION: After a hearing, the trial court granted in part and denied in part Appellants’ Motion for Summary Judgment, amended its original order and granted permission to appeal by stating the controlling issue of law and that an immediate appeal will materially advance a termination of this lawsuit.

ix ISSUES PRESENTED

The trial court granted Appellants’ motion to present the interlocutory order

granting in-part and denying in-part their summary judgment for an immediate

appeal to this Court. In doing so, the trial court set forth the following controlling

issues of law:

Issue No. 1: Whether the broad-form release signed in a prior lawsuit by parties intimately related to parties in the current lawsuit encompasses the claims asserted in this lawsuit. The scope of the release, therefore, is controlling. Further, the controlling question involves the extent to which principal-agent analysis applies in the construction of a release.

Issue No. 2: Whether Appellants’ sought relief will materially advance the ultimate termination of the litigation.

x SUMMARY

Appellees consist of a chiropractor and the various companies through

which he carries out his chiropractic business. Appellants are the owner and

property manager of Providian, a landlord that leased office space to Appellees.

In 2013, after the lease ended, one of the Appellees and another company

owned by the chiropractor sued Providian for breach of the lease agreement. The

parties settled that lawsuit and entered into a broad-form mutual release (“Mutual

Release”) in which the parties released any claims against each other, whether

known or unknown.

One year later, the chiropractor discovered that the landlord’s property

manager—in a mail mix-up—had accidently indorsed and deposited checks

belonging to the chiropractor during the term of the lease. He and his companies

brought suit against the property manager and the owner of landlord for the

alleged-conversion.

Appellants moved for summary judgment, arguing that Appellee’s claims

fell squarely within the broad scope of the Mutual Release. The trial court agreed

in-part, and granted summary judgment with respect to Nisal Corp.—one of the

companies that actually signed the Mutual Release. The trial court refused to

extend the Mutual Release to the other remaining Appellees, who are intimately

xi connected with both Nisal Corp. and Sterling Practice Management, the other

signatory of the Mutual Release.

Without doubt, the broad language of the Mutual Release bars any and all

claims that Appellees have against Appellants, because they all arise out of the

landlord-tenant relationship between the parties. That relationship was squarely at

issue in the original lawsuit that engendered the Mutual Release.

xii STATEMENT OF FACTS

Appellant Minu Rx (“Minu”) is a pharmacy. (AR 93). Appellant Khyati

Undavia (“Undavia”), a pharmacist, owns Minu. Id.

Undavia also owns Providian Holding, Inc. (“Providian”). Id. Providian, in

turn, owns one asset: the building located at 2918 San Jacinto St., Houston, Texas

77004 (the “Building”). Id. Minu operates on the lower floor of the Building. Id.

Providian has no physical office space and its only employee is Undavia. Id.

Instead, Providian simply uses Minu’s offices and employees for its needs. Id.

From 2009 through 2013, Nisal Corp. (“Nisal”) and Sterling Practice

Management, L.L.C. (“Sterling”) rented the second floor of the Building from

Providian to provide Avant Medical Group P.A. and Qualcare Rehabilitation

(Nisal’s d/b/a) with medical offices. (AR 41-85, 94). Sterling “managed” Avant’s

non-medical business dealings. (AR 143). Likewise, Avant managed some of

Sterling’s business as well: the summary judgment evidence established that

Avant paid Sterling’s rent from its accounts and also procured the lease-required

insurance policy on Sterling’s behalf. (AR 108; AR 109). Additionally, all of these

entities—Sterling, Nisal, Avant, and Qualcare—are owned, at least in part, by

Appellee Brett Garner, who is also a chiropractor for Avant and Qualcare. AR

106; AR 107; AR 113.

1 A. The Underlying Lawsuit

In 2013, Providian ended its leases with Nisal and Sterling. (AR 114). Nisal

and Sterling then sued Providian over a breach of the lease agreements. (AR 110-

112). The parties settled the case and executed a broad-form mutual release

(“Mutual Release”):

NISAL [and STERLING] . . . [their] officers, directors, shareholders, partners, successors, agents, assigns, employees, servants, and attorneys . . . . hereby RELEASE, ACQUIT, and FOREVER DISCHARGE PROVIDIAN, its officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs, and attorneys from any and all liabilities, claims, demands, causes of action, judgments, liens, liabilities or potential claims or causes of action which . . . NISAL [and STERLING] . . . have ever had or could have had, whether now known or unknown, which have arisen or may arise from the beginning of time to the date of this release[.]

(AR 86-90). Importantly, the Mutual Release extends not only to Nisal, Sterling,

and Providian but also to their officers, directors, agents, employees, and servants.

Id. After the parties executed the Mutual Release, Sterling and Nisal nonsuited

their claims against Providian with prejudice. (AR 91-92).

B. The Current Lawsuit

Between 2009 and 2013, the postal service, when delivering mail to the

Building, intermingled the mail. (AR 20). It did not make separate deliveries to

each of the Building’s tenants. Id. Instead, it simply dumped all of the Building’s

2 mail in a reception area. Because Minu is a pharmacy, it received hundreds of

checks per month as payment for dispensed medications. Id. There was no formal

system of mail sorting or separation; each of Providian’s tenants took an ad hoc

approach to the mail handling. Id.

Through this clumsy process, a few checks dated between 2011 to 2013

made payable to Avant that arrived via the mail were accidentally sorted into

Minu’s large mail pile, stamped with Minu’s endorsement stamp, and then

deposited in Minu’s account. Id.

In 2014, more than one year after Providian, Sterling, and Nisal entered into

the Mutual Release in the underlying lawsuit, Avant realized that they had not

received payment for some of their outstanding accounts receivable. (AR 1-10).

They then learned that some checks intended for Avant had been received by Minu

and deposited into Minu’s account. Plaintiffs immediately sued Defendants. Id.

C. Appellees And Appellants Are Inextricably Connected With The Signatories Of The Mutual Release

Three parties signed the Mutual Release: Providian, Sterling, and Nisal.

(AR 86-90). Each Appellee is an agent, officer, employee, or servant of either

Sterling or Nisal. Likewise, each Appellant is an agent, officer, employee, and

servant of Providian.

3 (i) Appellee Garner is an agent and officer of both Sterling and Nisal

Here, Garner is both the president and director of Nisal. (AR 106). Further,

he signed Nisal’s commercial lease with Providian as its “CEO.” (AR 54). He is

also an owner of Sterling. (AR 143). Garner also works as a chiropractor for

Nisal. Id.

(ii) Appellee Avant is an agent of Sterling

Avant is the agent of both Nisal and Sterling. During the lease, Avant paid

Sterling’s rent using Avant checks. (AR 95; AR 109). Similarly, Avant procured a

commercial general liability policy on behalf of Sterling. (AR 108).

Also, although not actually a party to the written lease, Avant nevertheless

operated in the office space leased by Nisal and Sterling. (AR 95; AR 01-10). In

fact, Sterling and Nisal had no operations in the Building; their leased premises

were occupied by Avant. (AR 95). Sterling and Nisal even negotiated for a lease

provision that prevented Providian from leasing space to any other “chiropractor”

or “pain management business” in order to protect Avant from competition. (AR

53).

(iii) Sterling is Appellee Avant’s agent

Sterling also acted as Avant’s agent. As admitted by Appellee Garner,

Sterling managed Avant’s non-medical business dealings. (AR 143).

4 (iv) Garner is Avant’s agent

Garner also had a management role at Avant during Avant’s tenancy in the

Building and worked for Avant as a chiropractor. (AR 95).

(v) Appellees connect themselves via a confusing web of D/B/As

In their case caption, Plaintiffs state that “Allied” is the d/b/a of Avant. (AR

1). Allied, in turn, is also the d/b/a of Garner. (Id; AR 143). Allied is again listed

as a d/b/a of Avant in the Proof-of-Insurance certificate that Sterling provided to

Providian at the outset of the Commercial Leases. (AR 108). Garner also admits

that Allied is the d/b/a of Avant. (AR 143).

Simply put, Avant, Sterling, and Nisal were inextricably linked and were all

representatives and agents of each other with respect to the lease between

Providian, on one hand, and Nisal and Sterling, on the other.

(vi) Appellant Undavia is the owner, director, and agent of Providian

As mentioned above, Providian is a signatory to the Mutual Release.

Undavia is Providian’s owner and sole employee. (AR 93; AR 107). Undavia

even signed the Mutual Release on behalf of Providian. (AR 90).

(vii) Appellant Minu is Providian’s property manager

Minu was Providian’s agent and representative and was expressly authorized

to act on behalf of Providian for any matters, especially matters related to

5 Providian’s lease with Plaintiffs. (AR 93-95). In fact, Providian has no physical

office space or employees; its physical address is actually that of Minu’s. (AR 93).

Minu handled a variety of matters for Providian, including collecting rent,

obtaining insurance for the Building, arranging and paying for the Building’s

security, arranging and paying for grounds, facilities, and common area

maintenance, and arranging and paying for the Building’s elevator inspections and

servicing. (AR 93-95; AR 97-101; AR 102-105).

Thus, although Providian owned the building, Minu was the management

company and was authorized to act on behalf of Providian for any matters with

respect to the Plaintiffs’ tenancy at the building. (AR 93-95).

6 SUMMARY OF THE ARGUMENT

This appeal involves a controlling question of law as to which there exist

substantial grounds for disagreement. The trial court held that the Mutual Release

binds only the specifically-named signatories, without consideration of whether the

release extended to the signatories’ officers, directors, agents, and servants.

Indeed, each of the Appellees is an officer, director, agent, or servant of a Mutual

Release signatory.

Further, each of the Appellees had an intimate connection not only to the

signatories of the Mutual Release, but also to the dispute giving rise to the Mutual

Release. Texas case law is clear: an unnamed defendant can claim the protection

of a release when its connection with the dispute is not in doubt. But no court has

ever considered whether this rule applies to an unnamed plaintiff whose connection

to the underlying dispute is not in doubt. Thus, there exist substantial grounds for

disagreement.

Similarly, no Texas court has considered the level of inquiry necessary to

determine whether a plaintiff is an “agent” of a signatory and therefore bound by a

release. Appellees argued to the trial court that the inquiry is a fact question for

the jury to decide. However, such a rule would undermine the purpose of release

because it requires parties to fully litigate a case simply to determine whether the

claim is barred.

7 Finally, an immediate appeal will materially advance the ultimate

termination of this litigation. If Appellants and Appellees are subject to the Mutual

Release, then Appellee’s claims are barred and Appellants will be entitled to a full

and final summary judgment.

Accordingly, this Court should grant Appellants’ request for a permissive

interlocutory appeal.

8 ARGUMENT AND AUTHORITIES

This Court has discretionary jurisdiction to accept this appeal. TEX. CIV.

PRAC. REM. CODE §51.014(d) establishes the standard for permissive appeals:

On a party's motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if:

(1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and

(2) an immediate appeal from the order may materially advance the ultimate termination of the litigation.

In conjunction with this statute, the legislature enacted TEX. R. CIV. P. 168:

On a party's motion or on its own initiative, a trial court may permit an appeal from an interlocutory order that is not otherwise appealable, as provided by statute. Permission must be stated in the order to be appealed. An order previously issued may be amended to include such permission. The permission must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation.

TEX. R. CIV. P. 168. Appellants easily establish that this appeal involves a

controlling issue of law as to which there is substantial grounds for disagreement,

and also establish that an immediate appeal would materially advance the ultimate

termination of the litigation. Accordingly, Appellants’ petition for permissive

interlocutory appeal should be granted.

9 I. THE ORDER TO BE APPEALED INVOLVES A CONTROLLING ISSUE OF LAW AS TO WHICH THERE IS SUBSTANTIAL GROUNDS FOR DISAGREEMENT.

On March 20, 2015, the trial court amended its original order, and granted

Appellants’ request for permissive interlocutory appeal. The order further granted

in-part and denied in-part Appellants’ motion for summary judgment.

Texas courts have little guidance as to what constitutes a controlling legal

issue as to which there is a difference of opinion. In Gulf Coast Asphalt Company,

LLC v. Lloyd, the Houston Court of Appeals recognized this absence, and it cited

to a Texas commentator's suggestion of looking to federal cases in interpreting the

federal counterpart to section 51.014:

[A] controlling question of law is one that deeply affects the ongoing process of litigation. If resolution of the question will considerably shorten the time, effort, and expense of fully litigating the case, the question is controlling. Generally, if the viability of a claim rests upon the court's determination of a question of law, the question is controlling[.] Substantial grounds for disagreement exist when the question presented to the court is novel or difficult, when controlling circuit law is doubtful, when controlling circuit law is in disagreement with other courts of appeals, and when there simply is little authority upon which the district court can rely[.] Generally, a district court will make [a finding that the appeal will facilitate final resolution of the case] when resolution of the legal question dramatically affects recovery in a lawsuit.

Gulf Coast Asphalt Company, LLC v. Lloyd , 2015 WL 393407, at *5 (Tex. App.—

Houston [14th Dist.] Jan. 29, 2015, no. pet. h.).

10 Thus, the commentator not only suggests a test for defining a “controlling

question of law,” but also sets forth factors for determining whether there are

“substantial grounds for disagreement”: (1) when the question presented to the

court is novel or difficult; (2) when controlling circuit law is doubtful; and (3)

when there is little authority on which the trial court can rely. Id. Appellants

conclusively establish that there is a controlling question of law, and establish

substantial grounds for disagreement.

A. This Appeal Involves A Controlling Issue Of Law Because, If Mutual Release Encompasses Appellee’s Claims, Then Those Claims Are Barred, And Appellants Are Entitled To Summary Judgment.

Here, the first sub-element of obtaining a permissive interlocutory appeal is

met. There is little doubt that Appellants’ position, if adopted, will “considerably

shorten the time, effort and expense of litigating the case” and affect “the viability

of” Appellees’ claims. Id. If the Mutual Release encompasses the claims in this

lawsuit, then those claims are barred, and the case is over. This fact is further

evidenced by the trial court’s order, which granted Defendants’ a full and final

summary judgment with respect to Nisal Corp.’s claims.

Appellants have thus established that this case involves a “controlling

question of law.”

B. Substantial Grounds For Disagreement Exist Because The Issue Before The Court Is Novel And There Is Little Or No Authority Upon Which The Trial Court Can Rely.

11 Appellants also establish the second sub-element for obtaining a permissive

interlocutory appeal, because the controlling issue of law is subject to “substantial

grounds for disagreement.”

“Substantial grounds for disagreement” exist when the issue before the court

is novel, or when there is little or no authority upon which the trial court can rely.

Id. Here, the issue before the court is novel: whether a plaintiff not specifically

named, but nonetheless encapsulated by the categories of defined persons or

parties in a release, is so connected to the subject matter giving rise to a release and

to the signatories of a release that it, too, is bound by the release. Additionally,

there is no controlling law upon which the trial court can rely.

(i) The issue before the Court is novel because no Texas court appears to have considered to what extent, and under what circumstances, an unnamed plaintiff is bound by a release

Appellants’ position is that Appellees, who are not specifically named by the

Mutual Release, are so connected to the signatories of the Mutual Release and to

the dispute that spawned the lawsuit that they, too, are bound by the Mutual

Release. Unquestionably, Appellees were tenants of Appellants, and that landlord-

tenant relationship engendered the County Court Lawsuit and Mutual Release.

Appellees are also agents, principals, owners, and employees of the Mutual

Release signatories. Unquestionably, the Mutual Release should bind them.

However, no Texas case appears to have addressed the extent, and under

12 what circumstances, a release can bind an unnamed plaintiff. There is an extensive

body of case law on the inverse situation: the extent to which an unnamed

defendant can claim the protection of a release. This case law supports Appellants’

position that Appellees’ claims are barred by the Mutual Release.

a. Texas courts broadly apply the protection of releases to unnamed defendants that are intimately connected to the facts giving rise to the release

Generally, “unless a party is named in a release, he is not released.”

McMillen v. Klingensmith, 467 S.W.2d 193, 197 (Tex. 1971). “Mentioning does

not require particularized enumeration or detailed description, only that the claim

being released come within the express contemplation of the release provision

when viewed in context of the contract in which the release provision is

contained.” Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 254 (5th Cir.

2000); Mem'l Med. Ctr. of E. Tex. v. Keszler, 943 S.W.2d 433, 435 (Tex.1997).

“A tortfeasor can claim the protection of a release if he is referred to with

such descriptive particularity that his connection with the tortious event is not in

doubt.” Winkler v. Kirkwood Atrium Office Park, 816 S.W.2d 111, 113-14 (Tex.

App.—Houston [14th Dist.] 1991, writ denied). “Indeed, Texas courts have

consistently rejected the argument that defendants cannot avail themselves of the

protection of a release just because they were not specifically identified as parties

13 to that release.” Michael Lee Andrews Trust v. Licari, CIV.A.3:02-CV-1076-N,

2004 WL 524941, at *2 (N.D. Tex. Mar. 17, 2004).

In Winkler, a health club member signed the following release at the outset

of his club membership:

Buyer does hereby for his or herself, heirs, executors, legatees, administrators, or assigns, waive, release and forever discharge any and all claims the Buyer may now or in the future have against the Club for injuries suffered by the Buyer while participating in any programs of the Club.

Id. at 113. While exercising at the club, the member suffered a fatal heart attack.

Id. at 112. His estate and next of kin filed suit against the club as well as several

individuals associated with the club. Id. at 113. All defendants, including the

individual defendants, moved for summary judgment on the basis that the decedent

had released his claims against them. Id. Plaintiffs argued in response that the

“[defendants] cannot avail themselves of the protection of the release because they

were not specifically identified as parties to the release.” Id. The court rejected

that argument, holding that “[i]n releasing ‘the Club’ from any injuries suffered

while participating in the center’s programs, it is clear that Winkler intended to

release any claim against all individuals and entities involved in the operation,

maintenance, and administration of the center.” Id. at 114.

Likewise, the court in Vera v. North Star Dodge Sales, Inc. interpreted a

contract between a consumer and a corporation that included a release that

14 “release[d] North Star Dodge from any and all liability regarding the purchase of a

1993 Mazda Protg[.]” 989 S.W.2d 13, 16 (Tex. App.—San Antonio, 1998, no

pet.) Although the release enumerated only the car dealership with particularity,

the court held that the broad release of “all liability regarding the [vehicle]

purchase” barred claims against the sales manager and the employee who handled

the financing:

In this case, it is clear that the release of “North Star Dodge” from any liability associated with the sale of the Mazda, also released the North Star Dodge employees associated with that sale. Under the circumstances, the connection of Powers and Hall with North Star Dodge and the sale of the Mazda is apparent. Therefore, the release encompasses Higinio’s claims against North Star Dodge as well as his claims against North Star Dodge employees involved in the sale of the Mazda.

Id. at 18.

In Dyrcz v. Longview Enterprise, Ltd., the court reached the same

conclusion. There, the plaintiff signed a release prior to participating in a

dodgeball game that released:

Grand Central Station Longview, its partners, agents, and employees from any responsibility or liability for personal injury . . . [that] may [occur] from participating in the Dodge Ball contest.

Dyrcz v. Longview Enter., Ltd., 2:05-CV-476 (TJW), 2006 WL 3289046, at *1

(E.D. Tex. Nov. 13, 2006), aff'd sub nom. Dyrcz v. Graham Bros. of Longview,

LLC, 234 Fed. Appx. 236 (5th Cir. 2007). Plaintiff thereafter sued Longview

15 Enterprises—the employer of the management and staff at Grand Central Station

Longview—for injuries sustained in a dodgeball match. Id. Longview Enterprise

moved for summary judgment pursuant to the release even though it was not

mentioned by the release. Id. In evaluating Longview Enterprise’s argument, the

court noted that “[i]n Texas, in order to claim the protection of a release, the claim

being released must come within ‘the express contemplation of the release

provision when viewed in context of the contract.” Id., citing Stinnett, 227 F.3d at

255. Further, the court recognized that “a tortfeasor can claim the protection of a

release as long as he is referred to “with such descriptive particularity that his

identity or his connection with the tortious event is not in doubt,” and therefore,

that “a defendant may still avail himself of the protection of a release even though

he has not been specifically identified as a party to the release.” Dyrcz, 2006 WL

3289046, at *1, citing Winkler, 816 S.W.2d at 111.

Applying these rules, the court concluded that:

[T]he claims against Defendant Longview Enterprises fit within the release signed by Plaintiff. There is no dispute that Plaintiff’s claims resulted from participating in a dodgeball game at Graham Central Station. ....

Although the release does not specifically name Longview Enterprise, the release does cover “partners, agents, and employees” of Graham Central Station . . . [t]herefore, by releasing Graham Central Station, it is clear that Plaintiff intended to release any claim against all individuals and entities involved in the operations and activities of

16 Graham Central Station, which would include . . . . Longview Enterprise.

Dyrcz, 2006 WL 3289046, at *2. Accordingly, the court granted the defendant

summary judgment. Id.

In sum, the rule in Texas is well-established: an unnamed defendant can

claim the protection of a release provided that his connection to the event giving

rise to the release is unmistakable.

b. The policy reasons for applying releases to unnamed defendants apply with equal force to unnamed plaintiffs

Despite the well-established case law discussing the application of a release

to unnamed defendants, Appellants’ counsel have found no case law that discusses

the application of a release to unnamed plaintiffs. Despite this absence, there is no

policy or legal reason why the rule applicable to unnamed defendants should not

also be applicable to unnamed plaintiffs.

In this case, the failure of the trial court to extend the Mutual Release to the

unnamed Appellees produces a starkly absurd result. Appellee Garner is the

owner, director, and president of Nisal Corp. Nisal Corp., as well as its agents,

officers, and servants—including Garner—agreed to release any and all claims,

whether known or unknown, that they had against the Appellants, whether arising

out of the lease or not. Although the trial court granted Appellants’s summary

17 judgment as to Nisal Corp.’s claims, it denied the motion with respect to Garner’s

claims. In doing so, the trial court wholly ignored the language in the release

extending the release to the agents, officers, and servants of Nisal Corp.

The trial court’s ruling highlights Appellants’ point: the Mutual Release is

not so narrow that it applies only to the specifically identified signatories.

Otherwise, the language that extends the Mutual Release to the signatories’

“officers, directors, shareholders, successors, agents, assigns, employees, servants,

partners, heirs, and attorneys” is rendered meaningless. However, “[c]ourts should

. . . give effect to all the provisions of the contract so that none will be rendered

meaningless.” See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).

Because no Texas court has considered the issue to what extent an unnamed

plaintiff is bound by a release, it is a novel issue. Accordingly, there exist

substantial grounds for disagreement. Appellants’ petition for permissive

c. The interpretation of “agent” in the context of a release is also a novel issue

As discussed above, the Mutual Release extends not only to the named

signatories, but also to their “agents.” A novel question thus arises: how does a

court determine whether a party qualifies as an agent of a signatory such that they

are bound by a release?

18 In the trial court, the Appellees offered a simple, but untenable solution:

whether a party is an agent of a signatory is a question of fact for the jury to

decide. Indeed, Appellees cited the trial court to the rule that “a question of agency

is one of fact.” AR 186-192 (citing Jorgensen v. Stuart Place Water Supply Corp.,

676 S.W.2d 191, 194 (Tex. App.—Corpus Christi 1984, no writ).

In furtherance of public policy, this cannot be the rule. The purpose of a

release is to buy peace and bring finality to a dispute. If a plaintiff sues on a claim

that is within the scope of the release, the defendant claiming the protection of the

release should not have to fully litigate the matter through trial in order to obtain a

ruling that the claims in the lawsuit are within the scope of the release and

therefore barred as a matter of law. The application of fact-driven inquiries will

thwart every release, prevent finality, and will force parties to contemplate and

actually and specifically name each party subject to the release. In the context of a

large multinational corporation, it would force the corporation to specifically list

out by name each one of their employees, contractors, and other agents they want

encompassed by the release or else face repeated litigation. But worst of all, it

would force parties to reject settlement and continue litigation to obtain a final

judgment that is not subject to a subsequent lawsuit brought by parties attempting

to thwart the effect of the release. This untenable situation cannot be the law in

Texas.

19 (ii) There are grounds for substantial difference of opinion with regard to the controlling issue of law because there is an absence of case law on the issue.

As discussed above, the controlling issues of law in this case are novel

because no Texas court appears to have addressed them. Consequently, there is an

utter absence of case law discussing the extent to which an unnamed plaintiff is

bound by a release. Likewise, Appellants have found no case law discussing the

proper interpretation of “agents” in the context of a release.

Accordingly, because there is an absence of controlling law, there are

grounds for substantial difference of opinion. Appellants’ petition for permissive

II. AN IMMEDIATE APPEAL MATERIALLY ADAVANCES THE ULTIMATE TERMINATION OF THIS LITIGATION.

Appellants’ summary judgment sought complete and total dismissal of all

Appellees’ claims. That is, the granting of Appellants’ motion disposes of all of

Appellees’ claims against Appellants. When the trial court granted judgment in

favor of Appellants as to Nisal Corp.’s claim, it fully acknowledged that this case

is subject to immediate termination.

It can be no other way. If the release applies to all parties, then Appellees

have no extant claims. The case is over and terminated.

Accordingly, Appellants have shown that an immediate appeal will

20 materially advance the ultimate termination of this case. This Court should grant

Appellants’ petition for permissive interlocutory appeal.

21 CONCLUSION

Without doubt, this appeal presents a controlling question of law. If

Appellants are correct, then the Mutual Release bars Appellees’ claims, and

Appellants are entitled to summary judgment.

Without doubt, the controlling question of law is subject to substantial

grounds for disagreement. Despite the well-developed and well-reasoned case law

applying the protections of releases to unnamed defendants, no Texas court has

considered the extent to which an unnamed plaintiff is bound by a release.

Likewise, no court has considered the factual intrusion necessary to determine

whether a plaintiff is an “agent” of a release signatory and therefore bound as well.

Without any law to guide the parties or court, the controlling question of law is

subject to substantial grounds for disagreement.

Finally, an immediate appeal from the trial court’s order will materially

advance the ultimate termination of this case. If the Mutual Release bars

Appellees’ claims, then this case is over.

For the foregoing reasons, Appellants respectfully request the Court to grant

their petition for permissive interlocutory appeal and for all other relief to which

they may show themselves justly and equitably entitled.

22 Date: April 3, 2015 Respectfully submitted,

MAHENDRU, P.C.

By: Ashish Mahendru Texas Bar No. 00796980 Darren A. Braun Texas Bar No. 24082267 639 Heights Boulevard Houston, Texas 77007 (713) 571-1519 (Telephone) (713) 651-0776 (Facsimile) amahendru@thelitigationgroup.com dbraun@thelitigationgroup.com

ATTORNEYS FOR DEFENDANTS—APPELLANTS

23 CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of Texas Rule of Appellate Procedure 9.4(e) because it has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes. This document also complies with the word-count limitations of Rule 9.4(i)(2)(B) because it contains 4,812 words, excluding any parts exempted by Rule 9.4(i)(1).

Ashish Mahendru

24 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing of Appellants’ Petition for Permission for Interlocutory Appeal was served on the following counsel of record on the 3rd day of April, 2015 via email:

Matias J. Adrogué via email: mja@mjalawyer.com Robert Stephan Kaase 1629 West Alabama St. Houston, Texas 77006 1629 West Alabama St. Houston, Texas 77006 713-425-7270 (p) 713-425-7271 (f) Counsel for Plaintiffs/Appellees

William P. Huttenbach via email: whuttenback@hirschwest.com State Bar No. 24002330 Jacob M. Stephens State Bar No. 24066143 Hirsch & Westheimer 1415 Louisiana, 36th Floor Houston, Texas 77002 (713) 223-5181 (Main) (713) 223-9319 (Fax) Counsel for Defendant Compass Bank

25 APPENDIX

1. Plaintiffs' Second Amended Original Petition AR 1-10

2. Defendants' Third Amended Answer, Verified Denial, and Counterclaim AR 11-16

3. Defendants' Motion for Summary Judgment AR 17-40

Ex. A: Commercial Lease with Nisal Corp AR 41-70

Ex. B: Commercial Lease Sterling Practice AR 71-85

Ex. C: Mutual Release AR 86-90

Ex. D: Non-Suit with Prejudice AR 91-92

Ex. E: Declaration of Khyati Undavia AR 93-96

Ex. F: Elevator Invoices AR 97-101

Ex. G: Minu Rx’s Quickbooks AR 102-105

Ex. H: Officers and Directors of Nisal Corp. AR 106

Ex. I: Officers and Directors of Providian Holdings, Inc. AR 107

Ex. J: Proof of Insurance for Avant Medical Group AR 108

Ex. K: Copy of Avant Rent Check AR 109

Ex. L: County Court Lawsuit Petition AR 110-112

Ex. M: Officers and Directors of Sterling Practice Management AR 113

Ex. N: Lease Termination Letter AR 114-115

Ex. O: Declaration of Ashish Mahendru AR 116-119

26 Ex. P: Avant Medical Group Account Status AR 120

4. Plaintiffs' Response to Defendants' Motion for Summary Judgment AR 121-142

Ex. 1: Affidavit of Brett Garner AR 143-145

Ex. 2: Affidavit of Carmen Manzo AR 146-147

Ex. 3: Cancelled Check AR 148-155

Ex. 4: Original Petition from Cause No. 1036848 AR 156-160

Ex. 5: Mutual Release AR 161-165

Ex. 6: Assumed Name Filing for Allied Medical Centers AR 166

Ex. 7: Public Information Report for Avant Medical Group AR 167-169

5. Defendants' Reply to Plaintiffs' Response to Motion for Summary Judgment AR 170-185

6. Defendants' Response to Plaintiffs’ Objections to Defendants’ Summary Judgment Evidence AR 186-192

7. Order on Defendants' Motion for Summary Judgment—March 3, 2015 AR 193

8. Defendants' Motion for Permission to Appeal Interlocutory Summary Judgment Order, Motion to Amend Order, and Request for Stay AR 194-201

9. Plaintiffs' Response to Defendants' Motion for Permission to Appeal Interlocutory Summary Judgment AR 202-206

10. Order Granting Defendants' Motion for Summary Judgment

27 And Permissive Appeal--March 20, 2015 AR 207-208

28 CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. d/b/a § IN THE DISTRICT COURT OF ALLIED MEDICAL CENTERS and § INTERVENTIONAL SPINE § ASSOCIATES, § § Plaintiffs § HARRIS COUNTY, TEXAS § VS. § § KHYATI MOHAMED UNDA VIA and § MINU RX, LTD. § 152nd JUDICIAL DISTRICT

PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE

ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL

CORP. d/b/a QUALCARE REHABILITATION ("Plaintiffs") and file this Second Amended

Original Petition complaining of KHY ATI MOHAMED UNDAVIA, MINU RX, LTD. d/b/a

MEMORIAL COMPOUNDING PHARMACY, MINU GP, LLC, and COMPASS BANK, and

for cause of action would respectfully show the Court as follows:

I. DISCOVERY CONTROL PLAN

1. Pursuant to Rules 190.1 and 190.3 of the Texas Rules of Civil Procedure, discovery in

this matter is intended to be conducted under Discovery Control Plan Level 2.

II. PARTIES

2. Plaintiff, AV ANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE

ASSOCIATES, is a Texas Professional Association.

3. Plaintiff, NISAL CORP. d/b/a QUALCARE REHABILITATION is a Texas Corporation.

4. Plaintiff, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS is an individual

residing and doing business in Texas.

1 AR 000001 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGE 5. Defendant, KHY ATI MOHAMED UNDAVIA, is an individual residing in Texas.

Defendant KHY ATI MOHAMED UNDA VIA has been served with process and has appeared in

this lawsuit.

6. Defendant, MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY is a

Texas Limited Partnership. MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING

PHARMACY has been served with process and has appeared in this lawsuit.

7. Defendant, MINU GP, LLC is a Texas Limited Liability Company. MINU GP, LLC has

been served with process and has appeared in this lawsuit.

8. Defendant, COMPASS BANK, is a Foreign Financial Institution doing business in the

State of Texas, and may be served through its registered agent for service of process, C T

Corporation System, 1999 Bryan St., Suite 900, Dallas, Texas 75201-3136. Citation is

requested.

III. JURISDICTION AND VENUE

9. This Court has subject matter jurisdiction over this controversy because all events or

occurrences giving rise to this lawsuit occurred within the State of Texas.

10. This court has personal jurisdiction over the parties because they are all residents of

Texas or are doing business in the State of Texas.

11. Venue is proper in Harris County under the Texas Civil Practice & Remedies Code,

§ 15.002.

IV. FACTS

12. Plaintiffs are former tenants in a commercial building which is owned and/or managed by

Defendant KHYATI MOHAMED UNDA VIA or an entity for which Defendant KHYA TI

MOHAMED UNDAVIA is a principal, agent, representative, or employee (the "Building").

PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION 2 AR 000002 PAGE While Plaintiffs were tenants in the Building, all mail was delivered to the Building's main

address, where it would be collected by Defendant KHYATI MOHAMED UNDA VIA and

distributed by her to the other tenants. Because the checks were delivered to Plaintiffs' mailing

address, Plaintiffs were in possession of the checks and have a possessory interest in them.

13. Plaintiffs recently discovered that during their tenancy at the building, Defendant

KHYATI MOHAMED UNDAVIA would frequently take letters containing checks, from the

mail, endorse the checks with the name and bank account information for MINU RX, LTD. d/b/a

MEMORIAL COMPOUNDING PHARMACY, and deposit them into at least two bank accounts

of MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY. The checks were

presented for deposit to Defendant COMPASS BANK, who presented the checks without the

payee's endorsement to the various drawee banks. Plaintiffs were only able to discover this

recently because Plaintiffs frequently provide medical services to personal injury victims and

often have agreements to suspend collection efforts for extended periods of time while the

patients attempt to obtain compensation for the third parties responsible for their injuries. Thus

far, Plaintiffs have identified over $40,000.00 in checks that were stolen by the Defendants in the

above-described manner, and expects to discover more as investigation and discovery in this case

progresses. It is uncertain at this time if additional checks were endorsed and deposited or

cashed by other entities.

V. CASUSES OF ACTION AGAINST KHYATI MOHAMED UNDAVIA AND MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY

CONVERSION & THEFT

14. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged

herein. Defendants KHY ATI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a

PAGE 3 AR 000003 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION MEMORIAL COMPOUNDING PHARMACY have exercised dominion and control over

Plaintiffs' property interest in the checks, their proceeds, and all interest earned on their

proceeds, inconsistent with, and in denial of, Plaintiffs' right to possession.

TEXAS THEFT LIABILITY ACT

15. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged

herein. The Texas Theft Liability Act provides civil liability for certain acts proscribed by the

Texas Penal Code, including unlawfully appropriating a trade secret. See id. § 134.002(2); IBP,

Inc. v. Klumpe, 101 S.W.3d 461, 472 (Tex. App.-Amarillo 2001, pet. denied). The Texas Theft

Liability Act provides that a person "who commits theft is liable for the damages resulting from

the theft." Tex. Civ. Prac & Rem. Code. § 134.003(a). In addition, under the Texas Theft

Liability Act a person "who has sustained damages" may recover the amount of actual damages

found by the trier of fact. Id. § 134.005(a)(1). Finally, a "person who prevails" in a suit under the

Act " shall be awarded court costs and reasonable and necessary attorney's fees." Id. §

134.005(b).

16. Defendants KHY ATI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a MEMORIAL

COMPOUNDING PHARMACY violated the Texas Theft Liability Act, when, without

authorization, consent or approval, they cashed and/or deposited checks payable to Plaintiff.

Defendants appropriated of the checks and the proceeds of the checks with the intent to deprive

Plaintiffs of that interest. The appropriation of Plaintiffs' property interest in the checks and the

proceeds of the checks was without Plaintiffs' consent and constituted theft under the Texas

Penal Code. Plaintiffs therefore bring suit against Defendants KHY ATI MOHAMED

UNDAVIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY for all

4 AR 000004 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGE all actual damages, exemplary damages and attorney's fees recoverable under the Texas Theft

Liability Act.

FRAUD - COMMON LAW

17. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged

herein. Defendants KHY ATI MOHAMED UNDA VIA and MINU RX, LTD. d/b/a

MEMORIAL COMPOUNDING PHARMACY knowingly made numerous fraudulent

representations to Plaintiffs regarding the delivery of mail to Plaintiffs. Plaintiffs reasonably

relied on the misrepresentations, causing significant injury. Plaintiffs hereby bring suit for

fraudulent misrepresentation against Defendant KHY ATI MOHAMED UNDAVIA and MINU

RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY, and hereby seek to recover

actual damages incurred as a proximate cause of said fraud, as well as exemplary damages.

CONSTRUCTIVE TRUST & EQUITABLE LIEN

18. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged

herein. Under Texas common law the checks, their proceeds, and all interest earned on the

proceeds are impressed with a constructive trust for the benefit of the Plaintiffs and Plaintiffs

request a judicial declaration that the checks, their proceeds, and all interest earned on the

proceeds, are impressed with a constructive trust. The checks, their proceeds, and all interest

earned on the funds are further impressed with an equitable lien in favor of the Plaintiffs.

MONEY HAD AND RECEIVED

19. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged

herein. Defendants KHYATI MOHAMED UNDAVIA and MINU RX, LTD. d/b/a

MEMORIAL COMPOUNDING PHARMACY hold money that in equity and good conscience

belong to the Plaintiff, namely, the proceeds of the checks and all interest earned on the

AR 000005 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGES proceeds. Plaintiffs therefore bring suit against Defendants KHY ATI MOHAMED UNDAVIA

and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY for all damages and

attorney's fees recoverable under a cause of action for Money had and Received.

BREACH OF CONTRACT

20. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged

herein. Defendants KHYATI MOHAMED UNDAVIA and MINU RX, LTD. d/b/a

MEMORIAL COMPOUNDING PHARMACY had an oral agreement with Plaintiffs to collect

all mail received at the Building and deliver the same to Plaintiffs. Defendants KHY ATI

MOHAMED UNDA VIA and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING

PHARMACY committed a material breach of this agreement by withholding mail items

addressed to Plaintiffs and converting the checks contained therein, causing injury to Plaintiffs.

Plaintiffs therefore bring suit against Defendants KHY ATI MOHAMED UNDAVIA and MINU

RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY for all damages and attorney's

fees recoverable as a result of Defendants' breach.

BREACH OF FIDUCIARY DUTY

21. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged

herein. Plaintiffs allege that Defendant KHY ATI MOHAMED UNDAVIA acted as an agent of

Plaintiffs with respect to collecting and delivering mail, and therefore owed fiduciary duties to

Plaintiffs. Defendant KHYATI MOHAMED UNDAVIA and MINU RX, LTD. d/b/a

MEMORIAL COMPOUNDING PHARMACY committed a material breach her duties by

withholding mail items addressed to Plaintiffs and converting the checks contained therein,

causing injury to Plaintiffs. Plaintiffs therefore bring suit against Defendants KHYATI

6 AR 000006 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGE MOHAMED UNDAVIA for all damages and attorney's fees recoverable as a result of

Defendant's breach.

CONVERSION - STATUTORY

22. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged

herein. In the alternative, Plaintiffs allege that Defendants KHY ATI MOHAMED UNDAVIA

and MINU RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY are liable to

Plaintiffs for conversion as defined in Tex. Bus. & Com. Code. § 3.420. Plaintiffs therefore

bring suit against Defendants KHYATI MOHAMED UNDAVIA and MINU RX, LTD. d/b/a

MEMORIAL COMPOUNDING PHARMACY for all damages recoverable as a result of

Defendants' actions.

VI. CAUSES OF ACTION AGAINST MINU GP, LLC

VICARIOUS LIABILITY - PARTNERSHIP

23. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged

herein. Because Defendant MINU GP, LLC is the active general partner of Defendant MINU

RX, LTD. d/b/a MEMORIAL COMPOUNDING PHARMACY and is therefore jointly and

severally liable for all obligations of Defendant MINU RX, LTD. d/b/a MEMORIAL

COMPOUNDING PHARMACY. Tex. Bus. Orgs Code § 152.304.

VII. CAUSES OF ACTION AGAINST COMPASS BANK

24. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged

herein. Plaintiffs allege that Defendant COMPASS BANK is liable to Plaintiffs for conversion

as defined in Tex. Bus. & Com. Code. § 3.420. Plaintiffs therefore bring suit against Defendant

COMPASS BANK for all damages recoverable as a result of Defendant's actions.

7 AR 000007 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGE MONEY HAD AND RECEIVED

25. Plaintiffs incorporate and adopt all of the facts setforth above, as though fully alleged

herein. Plaintiffs allege that Defendant COMPASS BANK held or currently hold money that in

equity and good conscience belong to the Plaintiffs, namely, the proceeds of the checks and all

interest earned on the proceeds. Plaintiffs therefore bring suit against Defendant COMPASS

BANK for all damages and attorney's fees recoverable under a cause of action for Money had

and Received.

NEGLIGENCE

26. Plaintiffs incorporate and adopt all of the facts set forth above, as though fully alleged

herein. Plaintiffs allege that Defendant COMPASS BANK was negligent in accepting for

deposit and presenting for payment checks which did not bear the payee's endorsement. In

accepting checks for deposit from a person not entitled to enforce the checks and presenting

them for payment, Defendant COMPASS BANK failed to observe reasonable banking standards,

causing harm to the Plaintiffs. Plaintiffs therefore bring suit against Defendant COMPASS

BANK for all damages and attorney's fees recoverable under a cause of action for Money had

VIII. ATTORNEY'S FEES

27. Request is made for all costs and reasonable and necessary attorney's fees incurred by or

on behalf of Plaintiffs herein, induding all fees necessary in the event of an appeal of this cause

to the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and just,

as provided by; (a) Section 134.005 of the Texas Civil Practice and Remedies Code; (b) Section

38.001 of the Texas Civil Practice and Remedies Code; and (c) the common law.

IX. DAMAGES

AR 000008 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGES 28. As a direct and proximate result of the actions of Defendants described herein, Plaintiffs

have incurred damages in excess of the minimum jurisdictional limits of this Court and will in all

likelihood continue to incur damages in the future. Plaintiffs seek all legally recoverable

damages, including:

a. Actual damages including economic, loss of use & consequential damages;

b. Attorney's fees;

c. Exemplary damages;

d. Prejudgment & post judgment interest at the maximum legal rate;

e. Court costs; and

f. Other monetary & equitable relief as the Court deems appropriate.

29. Pursuant to Rule 47 of the Texas Rules of Civil Procedure, each claimant seeks monetary

reliefless over $200,000.00 but not more than $1,000,000.00.

X. CONDITIONS PRECEDENT

30. All conditions precedent have been performed or have occurred. Tex. R. Civ P. 54.

XI. DEMAND FOR JURY

31. Plaintiff demands a jury trial and tenders the appropriate fee with this petition.

XII. PRAYER

32. WHEREFORE, PREMISES CONSIDERED, Plaintiffs, AVANT MEDICAL GROUP,

P.A. d/b/a INTERVENTIONAL SPINE ASSOCIATES, BRETT L. GARNER d/b/a ALLIED

MEDICAL CENTERS, and NISAL CORP. d/b/a QUALCARE REHABILITATION, ask that

the Defendants be cited to appear and answer and that Plaintiffs have judgment against the

Defendants for damages, including monetary compensation and any other damages within the

jurisdictional limits of this Court, pre-judgment and post-judgment interest as allowed by law,

9 AR 000009 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGE costs of suit, and all other relief the Court deems necessary and appropriate and to which

Plaintiffs are justly entitled.

Respectfully submitted,

Robert Stephan Kaase State Bar No. 24083287 1629 West Alabama St. Houston, Texas 77006 713-425-7270 Telephone 713-425-7271 Facsimile service@mjalawyer.com

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing has been se~ to all counsel of record in accordance with the Texas Rules of Civil Procedure, 0 this the _l_~aay of February, 2015.

10 AR 000010 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION PAGE CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF d/b/a ALLIED MEDICAL CENTERS § and INTERVENTIONAL SPINE § ASSOCIATES, § Plaintiffs § § VS. § HARRIS COUNTY, TEXAS § KHYATI MOHAMED UNDAVIA and § MINU RX, LTD., § Defendants § 152ND JUDICIAL DISTRICT

DEFENDANTS’ THIRD AMENDED ANSWER AND VERIFIED DENIAL AND ORIGINAL COUNTERCLAIMS

TO THE HONORABLE JUDGE ROBERT SCHAFFER:

Defendants, Khyati Undavia,Minu RX, Ltd., and MINU GP, LLC, file this Third

Amended Answer and Verified Denial and Original Counterclaims and would respectfully

show the Court as follows:

I. GENERAL DENIAL

1. Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants file this

General Denial of the claims and allegations contained in Plaintiffs’ Second Amended

Original Petition, and Defendants request that the Court require Plaintiffs to prove their

claims and allegations by a preponderance of the evidence as required by the Constitution

and the laws of the State of Texas. Defendants hereby reserve their right to amend this

answer and assert other and further defenses and claims as the facts of this case warrant.

1 AR 000011 II. VERIFIED DENIAL

2. Pursuant to Rule 93 of the Texas Rules of Civil Procedure, Defendant, Khyati

Mohamed Undavia (“Undavia”), files this verified denial to Plaintiffs’ claims against her.

Specifically, Defendant Undavia denies that she is liable in her individual capacity for

Plaintiffs’ claims. (See Declaration of Undavia; Ex. A).

III. AFFIRMATIVE DEFENSES

3. Subject to and without waiving the foregoing, Defendants assert and raise the

following affirmative defenses to Plaintiffs’ claims:

a. Plaintiffs’ claims are barred in whole or in part because Plaintiffs come into the Court with unclean hands.

b. Plaintiffs’ claims are barred in whole or in part by the doctrine of estoppel, including, but not limited to, collateral estoppel.

c. Plaintiffs’ claims are barred in whole or in part by the doctrine of res judicata.

d. Plaintiffs’ claims are barred in whole or in part by the statute of repose.

e. Plaintiffs’ claims are barred in whole or in part because Plaintiffs failed to perform all conditions precedent.

f. Plaintiffs’ claims are barred in whole or in part because Plaintiffs intentionally relinquished Plaintiffs’ known rights or engaged in intentional conduct inconsistent with claiming those rights.

g. Plaintiffs’ claims are barred in whole or in part by the statute of frauds.

h. Plaintiffs’ claims are barred in whole or in part by the doctrine of waiver.

2 AR 000012 i. Plaintiffs’ claims are barred in whole or in part by abandonment of opportunity.

j. Plaintiffs’ claims are barred because they are unreasonable, frivolous, vexatious and brought to harass Defendants.

k. Plaintiffs’ claims are barred because there is a defect in the parties.

l. Plaintiffs’ claims are barred in whole or in part because Defendants acted at all times in good faith and in a reasonable manner.

m. Plaintiffs’ claims are barred in whole or in part because Plaintiffs failed to mitigate their damages.

n. Plaintiffs’ claims are barred in whole or in part because of laches.

o. Plaintiffs have no claims based on release and settlement.

p. Plaintiffs’ claims are barred in whole or in part by the statute of limitations.

q. Plaintiffs’ claims are barred by accord and satisfaction.

IV. DEFENDANTS' ORIGINAL COUNTERCLAIMS

4. Counter-plaintiffs Khyati Undavia, Minu RX, Ltd., and MINU GP, LLC have made

an appearance through counsel.

5. Counter-defendants Avant Medical Group, P.A. d/b/a Interventional Spine

Associates, Nisal Corp. d/b/a Qualcare Rehabilitation, and Brett L. Garner d/b/a Allied

Medical Centers have made an appearance through counsel.

A. VENUE AND JURISDICTION

6. This court has jurisdiction over the claims because the amount in controversy

exceeds the jurisdictional requirements of the court. Venue is proper in Harris County

because all or a substantial part of the events or omissions giving rise to the claim

3 AR 000013 occurred in Harris County. This court has personal jurisdiction over the parties because

they are all Texas residents and have all made an appearance in this lawsuit.

B. BACKGROUND

7. Defendants Minu Rx (“Minu”) is a pharmacy. Defendant Khyati Undavia

(“Undavia”), a pharmacist, owns Minu.

8. Undavia also owns Providian Holding, Inc. (“Providian”). As a holding

company, Providian, in turn, owns 2918 San Jacinto St., Houston, Texas 77004 (the

“Building”). Minu operates on the lower floor of the Building.

9. Beginning in 2009, Plaintiff Nisal Corp. (“Nisal”) and Sterling Practice

Management (“Sterling”) rented the second floor of the Building from Providian under

two separate leases.

10. In 2013, Nisal and Sterling ended their leases with Providian. Nisal and

Sterling then sued Providian over a breach of the lease agreements in County Court of

Harris County. The parties entered into a settlement agreement and executed a broad-

form mutual release (“Mutual Release”) in which they released “any and all claims . . .

whether known or unknown” that they may have had against each other. Sterling and

Nisal then nonsuited their claims against with prejudice.

11. Because the Mutual Release and Nonsuit with Prejudice bar all claims

between the parties, this lawsuit is in direct breach of the Mutual Release.

V. CLAIMS

A. Declaratory Judgment

12. Counter-Plaintiffs request this Court to declare their rights, status, and legal 4 AR 000014 relations with respect to the Mutual Release. Counter-defendants contend that Counter-

Defendants released all of their claims in this matter through the Mutual Release and

dismissal with prejudice of the County Court lawsuit.

13. Counter-Plaintiffs are entitled to recover attorney’s fees incurred in the

prosecution of this matter. TEX. CIV. PRAC. & REM. Code §37.009.

B. Breach of Contract

14. Counter-Plaintiffs and Counter-Defendants entered into a Mutual Release.

Counter-Defendants breached that Mutual Release by filing claims in this lawsuit directly

released in that Mutual Release. Counter-Plaintiffs are, therefore, damaged as a result and

sue for their attorney's fees under Chapter 38 of the Civil Practices and Remedies Code.

VI. CONCLUSION

15. For the foregoing reasons, Defendants ask the Court to order that Plaintiffs

take nothing on their claims, that costs be assessed against Plaintiffs, and that

Additionally, Counter-Plaintiffs ask the Court to award damages as a result of Counter-

Defendants' breach of the Mutual Release, including, but not limited to attorney's fees

and expenses. Counter-Plaintiffs further seek a declaratory judgment from this Court that

all claims asserted in this lawsuit are released and dismissed as a matter of law. Counter-

Plaintiffs also seek their attorney's fees under the Declaratory Judgment Act.

16. Defendants and Counter-Plaintiffs request all other relief to which they are

entitled at law or equity.

5 AR 000015 Dated: February 16, 2015 Respectfully submitted,

By: Ashish Mahendru State Bar No. 00796980 Darren A. Braun State Bar No. 24082267 639 Heights Blvd. Houston, Texas 77007 Telephone: 713-571-1519 Facsimile: 713-651-0776 amahendru@thelitigationgroup.com dbraun @thelitigationgroup.com

ATTORNEYS FOR DEFENDANTS AND COUNTER-PLAINTIFFS

I hereby certify that a true and correct copy of the foregoing instrument has been provided to all counsel of record in accordance with the applicable Texas Rules of Civil Procedure on this 16th day of February, 2015.

Matias J. Adrogué Email:mja@mjalawyer.com Robert Stephan Kaase Email: rsk@mjalawyer.com 1629 West Alabama St. Facsimile: 713.425.7271 Houston, Texas 77006

6 AR 000016 CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF d/b/a ALLIED MEDICAL CENTERS § and INTERVENTIONAL SPINE § ASSOCIATES, § § Plaintiffs § § VS. § HARRIS COUNTY, TEXAS § KHYATI MOHAMED UNDAVIA and § MINU RX, LTD., § § Defendants § 152ND JUDICIAL DISTRICT

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Defendants Khyati Mohamed Undavia, Minu RX, Ltd., and Minu GP, L.L.C. file

this Motion for Summary Judgment and would respectfully show the Court as follows:

I. SUMMARY

1. Plaintiffs entered into a Mutual Release with all Defendants; therefore, Plaintiffs

have no extant claims. All Defendants are named in the Mutual Release. Not only that, the

law on releases captures all Defendants and Plaintiffs even if Plaintiff somehow convinces

this Court that only some of the parties are named in the Mutual Release.

2. Beyond the application of the Mutual Release and release law, the claims are barred

because Plaintiffs dismissed their claims against Defendants in an underlying lawsuit with

prejudice. Res judicata, therefore, bars the claims.

1 AR 000017 3. With respect to the conversion claim, Plaintiffs are mere payees of the converted

checks and, according to the plain language of the Texas Business and Commerce Code,

have no cause of action against Defendants.

4. Finally, several of Plaintiffs claims are barred by the statute of limitations.

II. ISSUES PRESENTED

5. In this motion, Defendants present the following issues for this Court’s decision as

a matter of law:

a. By executing a full, unqualified release in a related lawsuit, did Plaintiffs release their claims in the instant lawsuit?

b. Are Plaintiffs’ claims barred by the doctrine of res judicata because they nonsuited with prejudice their claims against Defendants in a related lawsuit?

c. Are Plaintiffs foreclosed from bringing a conversion claim for the checks where Plaintiffs never actually received delivery of the checks?

d. Are Plaintiffs’ claims barred in-part by the statute of limitations?

As a matter of law, the answer to the foregoing question is a resounding "Yes."

III. SUMMARY JUDGMENT EVIDENCE

6. This motion is based on the following evidence:

• Commercial Leases (Exhibits A and B) • Mutual Release (Exhibit C) • Non-Suit with Prejudice (Exhibit D) • Declaration of Khyati Undavia (Exhibit E) • Elevator Invoices (Exhibit F) • Minu Rx’s Quickbooks (Exhibit G ) • Officers and Directors of Nisal Corp. (Exhibit H) • Officers and Directors of Providian Holdings, Inc. (Exhibit I)

2 AR 000018 • Proof of Insurance Coverage for Avant Medical Group (Exhibit J) • Copy of Rent Check (Exhibit K) • County Court Lawsuit Petition (Exhibit L) • Officers and Directors of Sterling (Exhibit M) • Lease Termination Letter (Exhibit N) • Declaration of Ashish Mahendru (Exhibit O) • Avant Medical Group Account Status (Exhibit P)

IV. BACKGROUND FACTS

7. The facts below are supported by the Declaration of Khyati Undavia, which

declaration is incorporated by reference as if fully stated herein. (See Undavia Declaration;

Ex. E).

8. Defendant Minu Rx (“Minu”) is a pharmacy. Defendant Khyati Undavia

9. Undavia also owns Providian Holding, Inc. (“Providian”). As a holding company,

Providian, in turn, owns 2918 San Jacinto St., Houston, Texas 77004 (the “Building”).

Outside of that, Providian does not conduct regular business. Minu operates on the lower

floor of the Building. Providian has no physical office space, nor does it have any

employees aside from Undavia. Instead, Providian simply uses Minu’s offices and

employees for its needs.

10. Beginning in 2009, Plaintiff Nisal Corp. (“Nisal”) and Sterling Practice Management

(“Sterling”) rented the second floor of the Building from Providian under two separate

leases. (See Commercial Leases; Exs. A and B).

11. In 2013, Nisal and Sterling ended their leases with Providian. Nisal and Sterling

then sued Providian over a breach of the lease agreements. (See County Court Petition; Ex.

3 AR 000019 L). The parties entered into a settlement agreement and executed a broad-form mutual

release (“Mutual Release”) in which they released “any and all claims . . . whether known or

unknown” that they may have had against each other. (See Mutual Release; Ex. C).

Sterling and Nisal then nonsuited their claims against with prejudice. (See Nonsuit With

Prejudice; Ex. D).

12. During the pendency of the leases, the postal service, when delivering mail to the

Building, intermingled the mail. It did not make separate deliveries to each of the

Building’s tenants. Instead, it simply dumped all of the Building’s mail in Minu’s offices.

Because Minu is a pharmacy, it received hundreds of checks per month as payment for

dispensed medications. There was no formal system of mail sorting or separation, and each

tenant of Providian took an ad hoc approach to the mail handling.

13. Allegedly, through this process, a few checks dated from 2011 to 2013 made payable

to Plaintiffs that arrived via the mail were accidently sorted into Minu’s mail pile and then

deposited into Minu’s account.

14. Because the Mutual Release and Nonsuit with Prejudice bar all claims between the

parties, this Court must grant summary judgment.

V. SUMMARY JUDGMENT STANDARD

9. Rule 166a provides a method of summarily terminating a case when it clearly

appears that only a question of law is involved and that there is no genuine fact issue.

See Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972). The party moving for summary

judgment carries the burden of establishing that no material fact issue exists and that it is

4 AR 000020 entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Wornick Co. v.

Casas, 856 S.W.2d 732, 733 (Tex. 1993); Nixon v. Mr. Property Mgt. Co., 690 S.W.2d

546, 548 (Tex. 1985); Calvillo v. Gonzalez, 922 S.W.2d 928, 929 (Tex. 1966). The

nonmovant has a burden to respond after the movant conclusively establishes its cause of

action or defense. See Oram v. General Am. Oil Co., 513 S.W.2d 533, 534 (Tex. 1974);

Swilley, 488 S.W.2d at 67-68. The movant must establish its right to summary judgment

on the issues expressly presented to the trial court by conclusively proving all elements of

the movant’s cause of action or defense as a matter of law. See Walker v. Harris, 924

S.W.2d 375, 377 (Tex. 1996); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.

1995); City of Houston, 589 S.W.2d at 678.

10. As shown below, Defendants conclusively prove each element of their affirmative

defenses of release and res judicata as a matter of law. Cathey v. Booth, 900 S.W.2d 339,

341 (Tex. 1995); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Defendants are

therefore entitled to summary judgment.

VI. L EGAL STANDARD FOR R ELEASES

11. Generally, “unless a party is named in a release, he is not released.” McMillen v.

Klingensmith, 467 S.W.2d 193, 197 (Tex. 1971). In order to release a claim, the

releasing document must “mention it.” Victoria Bank and Trust Co. v. Brady, 811

S.W.2d 931, 938 (Tex.1991). However, “a tortfeasor can claim the protection of a

release if he is referred to with such descriptive particularity that his connection with the

5 AR 000021 tortious event is not in doubt.” Winkler v. Kirkwood Atrium Office Park, 816 S.W.2d

111, 113-14 (Tex. App.—Houston [14th Dist.] 1991, writ denied).

12. “Mentioning does not require particularized enumeration or detailed description,

only that the claim being released come within the express contemplation of the release

provision when viewed in context of the contract in which the release provision is

contained.” Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 254 (5th Cir.2000); Mem'l

Med. Ctr. of E. Tex. v. Keszler, 943 S.W.2d 433, 435 (Tex.1997). “Indeed, Texas courts

have consistently rejected the argument that defendants cannot avail themselves of the

protection of a release just because they were not specifically identified as parties to that

release.” Michael Lee Andrews Trust v. Licari, CIV.A.3:02-CV-1076-N, 2004 WL

524941, at *2 (N.D. Tex. Mar. 17, 2004).

13. Releases “[do] not require that the parties anticipate and identify each potential

cause of action relating to the releases subject matter,” and a “valid release may

encompass unknown claims and damages[.] Keck, Mahin & Cate v. National Union Fire

Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 698 (Tex. 2000).

VII. MOTION FOR SUMMARY JUDGMENT

14. Whether by the plain language of the Mutual Release, or by Texas courts’ liberal

application of releases to unnamed parties, the Mutual Release bars Plaintiffs’ claims in

this lawsuit as to all Defendants.

6 AR 000022 A. BY THE PLAIN TERMS OF THE RELEASE, PLAINTIFFS HAVE RELEASED DEFENDANTS.

15. The Mutual Release specifically names each Defendant, each Plaintiff, and each

claim in this lawsuit. Plaintiffs’ claims are entirely barred.

(i) Each Plaintiff and Defendant in this lawsuit is specifically mentioned in the Mutual Release

16. The Mutual Release states, in relevant part, that:

NISAL [and STERLING] . . . [their] officers, directors, shareholders, partners, successors, agents, assigns, employees, servants, and attorneys . . . . hereby RELEASE, ACQUIT, and FOREVER DISCHARGE PROVIDIAN, its officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs, and attorneys from any and all liabilities, claims, demands, causes of action, judgments, liens, liabilities or potential claims or causes of action which . . . NISAL [and STERLING] . . . have ever had or could have had, whether now known or unknown, which have arisen or may arise from the beginning of time to the date of this release[.]

(See Mutual Release, p. 1-2; Ex. C) (emphasis in original). In this case, each party is

either a signatory to the Mutual Release or an agent of a signatory.

a. Plaintiff Nisal is bound by the Mutual Release because it is a signatory.

17. This is a no-brainer. Nisal is both a Plaintiff and a signatory to the Mutual

Release. Accordingly, it is bound by the Mutual Release, and its claims are barred.

b. Plaintiff Garner is bound by the Mutual Release because he is an agent of Nisal.

18. In addition to Nisal, Garner is also bound by the Mutual Release.

7 AR 000023 19. The Mutual Release extends not only to the named parties, but also to their

“agents” and “employees.” Id. Accordingly, any agent or employee of Nisal is bound by

the release.

20. Here, Garner is both the president and director of Nisal. (See Officers and

Directors of Nisal Corp.; Ex. H). Further, he signed Nisal’s commercial lease with

Providian as its “CEO.” (See Nisal Commercial Lease, p. 14; Ex. A). Likewise, he is

designated as Nisal’s representative for any official notice required by the lease. Id. at p.

13.

21. Accordingly, Garner is Nisal’s agent as a matter of law, and is bound by the

Mutual Release. His claims are barred.

c. Plaintiff Avant is bound by the Mutual Release because it is an agent of both Sterling and Nisal

22. Rounding out the Plaintiffs, Avant is the agent of both Nisal and Sterling, and is

bound by the Mutual Release.

23. First, even Plaintiffs admit that Avant is Allied, and that Allied is Garner, and

thus, Avant is Garner. In their case caption, Plaintiffs state that Allied is the d/b/a of

Avant. (See Plaintiffs’ First Amended Petition). Allied, in turn, is the d/b/a of Garner.

Id. at ¶4. Allied is again listed as a d/b/a of Avant in the Proof-of-Insurance certificate

that Sterling provided to Providian at the outset of the Commercial Leases. (See Proof of

Insurance Coverage for Avant Medical Group; Ex. J). Because Avant is simply a d/b/a

for entities bound by the Mutual Release, it too is bound by the Mutual Release.

8 AR 000024 24. Second, Avant paid Sterling’s rent out of its own account. (See Avant Rent

Check; Ex. K); (See Declaration of Khyati Undavia, ¶15; Ex. E). Similarly, Avant

procured a CGL policy on behalf of Sterling. (See Proof of Insurance Coverage for

Avant Medical Group; Ex. J).

25. Third, although not actually a party to the written lease, Avant nevertheless

operated in the office space leased by Nisal and Sterling. (See Declaration of Khyati

Undavia; Ex. E); (See Plaintiff’s First Amended Petition; ¶11). In fact, Sterling and Nisal

had no operations in the Building; their leased premises were occupied by Avant. Id.

Sterling and Nisal even negotiated for a lease provision that prevented Providian from

leasing space to any other “chiropractor” or “pain management business” in order to

protect Avant from competition. (See Nisal Commercial Lease, p. 13; Ex. A).

26. Finally, Plaintiff Garner is the president and director of Nisal and the member-

manager and registered agent of Sterling. (See Officers and Directors of Nisal; Ex. H);

(See Officers and Directors of Sterling; Ex. M). Sterling, in turn, serves as Avant’s

registered agent. (See Avant Medical Group Account Status; Ex. P). Garner also had a

management role at Avant during Avant’s tenancy in the Building and worked for Avant

as a chiropractor. (See Declaration of Khyati Undavia, ¶13; Ex. E).

27. Avant, Sterling, and Nisal were inextricably linked and were all representatives

and agents of each other with respect to the lease between Providian, on one hand, and

Nisal and Sterling, on the other. Having signed a Mutual Release of all claims, these

Plaintiffs are forever barred from bringing claims for anything related to Defendants.

9 AR 000025 d. Defendant Undavia is subject to the Mutual Release because she is an agent of Providian

28. Just like the Plaintiffs, Undavia is bound by—and protected by—the Mutual

Release.

29. Providian is a signatory to the Mutual Release. Undavia is Providian’s owner and

sole employee. (See Declaration of Khyati Undavia; Ex. E); (See Officers and Directors

of Providian Holdings, Inc.; Ex. I). Undavia even signed the Mutual Release on behalf of

Providian. (See Mutual Release; Ex. C). Accordingly, Undavia is Providian’s agent and

is specifically mentioned in the Mutual Release. Therefore, all claims against her as an

individual are barred.

e. Defendant Minu is bound by the Mutual Release because it is an agent of Providian.

30. Like Undavia, Minu was Providian’s agent and representative and was expressly

authorized to act on behalf of Providian for any matters, including matters related to

Providian’s lease with Plaintiffs. (See Declaration of Khyati Undavia; Ex. E). In fact,

Providian has no physical office space or employees; its physical address is actually that

of Minu’s. Id. at ¶13. Minu handled a variety of matters for Providian, including

collecting rent, obtaining insurance for the Building, arranging and paying for the

Building’s security, arranging and paying for grounds, facilities, and common area

maintenance, and arranging and paying for the Building’s elevator inspections and

servicing. Id. at ¶5-12; (See Minu Rx's Quickbook; Ex. G); (See Elevator Invoices; Ex.

F). The Commercial Leases made many of these tasks Providian’s responsibilities. (See

10 AR 000026 Commercial Lease, p. 8; Exs. A and B) (Stating that “grounds maintenance” and

“common area” maintenance are Provdian’s obligations).

31. That Minu was Providian’s agent with regard to the lease is further evidenced by

the Plaintiffs’ own allegations. Plaintiffs allege that:

Defendants . . . had an oral agreement with Plaintiffs to collect all mail received at the Building and deliver the same to Plaintiffs.

(Plaintiffs’ First Amended Petition, ¶19). Plaintiffs allege that Minu was responsible for

receiving and sorting the Building’s mail—a task of the Landlord—and certainly one that

would not arise in the absence of an agency relationship between Providian and Minu.

Moreover, despite only having a lease with Providian, Minu was so involved in the

management of the Building as alleged by Plaintiffs that Plaintiffs characterize their

agreement as being with Minu and not Providian. In fact, Plaintiffs failed mention

Providian once in their amended petition. Following that logic, Minu is the "landlord" of

Plaintiffs.

32. Although Providian owned the building, Minu was the management company and

was authorized to act on behalf of Providian for any matters with respect to the Plaintiffs’

tenancy at the building. (See Declaration of Khyati Undavia, ¶4; Ex. E). It is therefore

subject to, and protected by, the Mutual Release.

33. Plaintiffs’ claims against Minu GP fail for the same reasons specified above.

Further, Plaintiffs’ have alleged vicarious liability on Minu GP because of its relationship

to Minu. Because Minu is not liable for Plaintiffs’ claims, Plaintiffs’ claims against Minu

GP likewise fail.

11 AR 000027 (ii) The Mutual Release specifically mentions each claim in this lawsuit

34. The Mutual Release, aside from specifically mentioning each party in this lawsuit,

also specifically mentions each claim in this lawsuit. These claims are, therefore, barred.

35. In settling the Original Lawsuit, the parties executed the Mutual Release in which

Nisal and Sterling, as well as their officers, directors, shareholders, successors, agents,

assigns, employees, servants, partners, heirs and attorneys” released Providian, as well as

its officers, directors, shareholders, partners, successors, agents, assigns, heirs,

employees, servants, and attorneys, from “all liabilities, claims, demands, causes of

actions, judgments, liens, liabilities or potential causes of action which Sterling and

Nisal have ever had or could have had, whether now known or unknown, which

have arisen or may arise from the beginning of time to the date of this release[.]”

(See Mutual Release; Ex. C). In this release, the parties no doubt contemplated the

claims in this current lawsuit because they released not only those claims actually alleged

in the original lawsuit, but also all claims “whether known or unknown, which have

arisen or may arise.” Id.

36. This Mutual Release was signed on October 3, 2013. In this instant lawsuit, all

allegedly-converted checks are dated prior to this time. (See Plaintiffs' Original Petition).

Indeed, releases “[do] not require that the parties anticipate and identify each potential

cause of action relating to the releases subject matter,” and a “valid release may

encompass unknown claims and damages[.] Keck, Mahin & Cate v. National Union Fire

Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 698 (Tex. 2000). The parties’ broad,

12 AR 000028 unqualified release language encompasses the Plaintiffs’ unknown claims against

Defendants as a matter of law. Defendants are entitled to summary judgment.

B. T HE P ARTIES ARE SO I NTIMATELY C ONNECTED T O T HE M UTUAL R ELEASE T HAT T HEY ARE BOUND BY I T .

37. Even if certain Plaintiffs and Defendants are not specifically mentioned in the

Mutual Release, each party is so intimately connected to the other parties and claims

involved in the Mutual Release that they are bound by the Mutual Release. Indeed,

Texas courts readily extend releases to unnamed, but related, parties.

38. In Winkler, a health club member signed the following release at the outset of his

club membership:

Buyer does hereby for his or herself, heirs, executors, legatees, administrators, or assigns, waive, release and forever discharge any and all claims the Buyer may now or in the future have against the Club for injuries suffered by the Buyer while participating in any programs of the Club.

Id. at 113. While exercising at the club, the member suffered a fatal heart attack. Id. at

112. His estate and next of kin filed suit against the club as well as several individuals

associated with the club. Id. at 113. All defendants, including the individual defendants,

moved for summary judgment on the basis that the decedent had released his claims

against them. Id. Plaintiffs argued in response that the “[defendants] cannot avail

themselves of the protection of the release because they were not specifically identified

as parties to the release.” Id. The court rejected that argument, holding that “[i]n

releasing ‘the Club’ from any injuries suffered while participating in the center’s

programs, it is clear that Winkler intended to release any claim against all individuals and

13 AR 000029 entities involved in the operation, maintenance, and administration of the center.” Id. at

114.

39. Likewise, the court in Vera v. North Star Dodge Sales, Inc. interpreted a contract

between a consumer and a corporation that including a release that “release[d] North Star

Dodge from any and all liability regarding the purchase of a 1993 Mazda Protg[.]” 989

S.W.2d 13, 16 (Tex. App.—San Antonio, 1998, no pet.) Although the release

enumerated only the car dealership with particularity, the court held that the broad release

of “all liability regarding the [vehicle] purchase” barred claims against the sales manager

and the employee who handled the financing:

In this case, it is clear that the release of “North Star Dodge” from any liability associated with the sale of the Mazda, also released the North Star Dodge employees associated with that sale. Under the circumstances, the connection of Powers and Hall with North Star Dodge and the sale of the Mazda is apparent. Therefore, the release encompasses Higinio’s claims against North Star Dodge as well as his claims against North Star Dodge employees involved in the sale of the Mazda.

40. In Dyrcz v. Longview Enterprise, Ltd., the court reached the same conclusion.

There, the plaintiff signed a release prior to participating in a dodgeball game that

released:

Grand Central Station Longview, its partners, agents, and employees from any responsibility or liability for personal injury . . . [that] may [occur] from participating in the Dodge Ball contest.

Dyrcz v. Longview Enter., Ltd., 2:05-CV-476 (TJW), 2006 WL 3289046, at *1 (E.D. Tex.

Nov. 13, 2006), aff'd sub nom. Dyrcz v. Graham Bros. of Longview, LLC, 234 Fed. Appx.

236 (5th Cir. 2007). Plaintiff thereafter sued Longview Enterprises—the employer of the

14 AR 000030 management and staff at Grand Central Station Longview—for injuries sustained in a

dodgeball match. Id. Longview Enterprise moved for summary judgment pursuant to the

release even though it was not mentioned by the release. Id. In evaluating Longview

Enterprise’s argument, the court noted that “[i]n Texas, in order to claim the protection of

a release, the claim being released must come within ‘the express contemplation of the

release provision when viewed in context of the contract.” Id., citing Stinnett, 227 F.3d at

255. Further, the court recognized that “a tortfeasor can claim the protection of a release

as long as he is referred to “with such descriptive particularity that his identity or his

connection with the tortious event is not in doubt,” and therefore, that “a defendant may

still avail himself of the protection of a release even though he has not been specifically

identified as a party to the release.” Id., citing Winkler, 816 S.W.2d at 111.

41. Applying these rules, the court concluded that:

[T]he claims against Defendant Longview Enterprises fit within the release signed by Plaintiff. There is no dispute that Plaintiff’s claims resulted from participating in a dodgeball game at Graham Central Station. ....

Although the release does not specifically name Longview Enterprise, the release does cover “partners, agents, and employees” of Graham Central Station . . . [t]herefore, by releasing Graham Central Station, it is clear that Plaintiff intended to release any claim against all individuals and entities involved in the operations and activities of Graham Central Station, which would include . . . . Longview Enterprise.

Id. at 2. Accordingly, the court granted the defendant summary judgment. Id.

42. In Memorial Medical Center, the Texas Supreme Court applied these same

concepts in finding that a physician, in releasing a hospital from “all claims” arising out

of the parties’ employer-employee relationship, also released the physician’s unknown

15 AR 000031 claims for exposure to toxic chemicals. Memorial Medical Center of East Texas, 943

S.W.2d at 434.

43. All of the foregoing cases lead to only one conclusion in the case at hand--

Plaintiffs Nisal, Avant, Garner, as well as Defendants Minu and Undavia, are bound by

the Mutual Release because of their intimate connection to the underlying subject

matter—the Commercial Leases.

(i) The parties were all intimately involved in the Commercial Leases

44. First, Providian—a company owned by Undavia—leased office space to Nisal

and Sterling. Although not actually parties to the lease, Avant and Garner nevertheless

operated in the office space leased by Nisal and Sterling. In fact, Nisal and Sterling had

no operations in the building. Plaintiff Garner is a principal of Avant and is the president

and director of Nisal and the member-manager and registered agent of Sterling. (See

Officers and Directors of Nisal; Ex. H); (See Officers and Directors of Sterling; Ex. M).

45. Sterling, in turn, serves as the registered agent of Avant. Sterling, Nisal, and

Avant were inextricably linked and were all representatives and agents of each other with

respect to the lease between Providian, on one hand, and Nisal and Sterling, on the other.

46. This notion is cemented by Plaintiffs’ own allegations. They allege:

Plaintiffs are former tenants in a commercial building which is owned and/or managed by Defendant Khyati Mohamed Undavia or an entity for which Defendant Khyati Mohamed Undavia is a principal, agent, representative, or employee (the “Building”). .... While Plaintiffs were tenants in the Building, all mail was delivered to the Building’s main address, where it would be collected by Defendant Khyatia Mohamed Undavia and distributed by her to her other tenants. ....

16 AR 000032 Plaintiffs recently discovered during their tenancy at the building, Defendant Khyati Mohamed Undavia would frequently take letters containing checks, from the mail, endorse the checks with the name and bank account information for Minu Rx, LTD. d/b/a Memorial Compounding Pharmacy, and deposit them into at least two bank accounts of Minu RX, LTD. d/b/a Memorial Compounding Pharmacy. .... Defendants . . . had an oral agreement with Plaintiffs to collect all mail received at the Building and deliver the same to Plaintiffs. .... Plaintiffs allege that Defendant Khyati Mohamed Undavia acted as an agent of Plaintiffs with respect to collecting and delivering mail, and therefore owed fiduciary duties to Plaintiff.

(See Plaintiff’s Amended Petition, ¶ 11, 12, 19, 20). Through these statements, Plaintiffs

acknowledge they were all tenants under the leases. If they were all tenants under the

lease, then surely they were parties to the Mutual Release.

(ii) The Original Lawsuit—which spawned the Mutual Release—arose out of Plaintiffs’ tenancy with Defendants

47. Aside from being inextricably connected to each other, the parties in this lawsuit

were also all involved in the lawsuit that gave rise to the Mutual Release.

48. The Original Lawsuit arose out of a dispute concerning the commercial leases

between Providian and Nisal/Sterling. The Plaintiffs’ original petition in that lawsuit

alleged:

Sterling entered into a lease agreement with [Providian] . . . upon termination of the lease and sixty days after Sterling provided a forwarding address, [Providian] has refused to refund the security deposit to Sterling. [Providian] has acted in bad faith. ..... Nisal entered into a lease agreement with [Providian] . . . upon termination of the lease and sixty days after Sterling provided a forwarding address, [Providian] has refused to refund the security deposit to Nisal. [Providian] has acted in bad faith.

17 AR 000033 (See Original Petition in Original Lawsuit; Ex. L).

49. In settling the Original Lawsuit, the parties executed a Mutual Release in which

Nisal and Sterling, as well as their officers, directors, shareholders, successors, agents,

assigns, employees, servants, partners, heirs and attorneys” released Providian, as well as

its officers, directors, shareholders, partners, successors, agents, assigns, heirs,

employees, servants, and attorneys, from “all liabilities, claims, demands, causes of

actions, judgments, liens, liabilities or potential causes of action which Sterling and

Nisal have ever had or could have had, whether now known or unknown, which

have arisen or may arise from the beginning of time to the date of this release[.]”

(See Mutual Release; Ex. C).

50. In other words, this lawsuit involves the same parties, the same subject matter, and

the same claims that were captured in the Mutual Release. The inescapable conclusion is

that each Plaintiff, each Defendant, and each claim in this lawsuit—whether or not

specifically mentioned in the Mutual Release—is so intimately connected to that release

that it is unequivocally encompassed in the Mutual Release.

C. PLAINTIFFS’ CLAIMS ARE BARRED BY THE DOCTRINE OF RES JUDICATA

51. The Mutual Release is not the only bar to Plaintiffs’ claims in this lawsuit.

Plaintiffs’ claims are also barred by the doctrine of res judicata.

52. “Res Judicata bars litigation of all issues and defenses which, with the use of

diligence, might have been tried in the prior suit.” Bell v. Morris, 832 S.W.2d 749, 754

(Tex. App.—Houston [14th Dist.] 1992, writ denied). “When there has been a prior

18 AR 000034 judgment in a subsequent suit in which there is identity of the parties, issues, and subject

matter, such judgment is treated as an absolute bar to retrial of claims pertaining to the

same cause of action on the theory that they have merged into the judgment.” Id.

“Summary judgment may be granted upon a proper plea of res judicata.” Id.

53. “In general, if [a] dismissal is with prejudice, res judicata applies.” Id. at 755.

“Also, if the dismissal is entered by agreement of the parties in pursuance of the

compromise or settlement of a controversy, res judicata applies.” Id.

54. Here, the doctrine of res judicata bars’ Plaintiffs’ claims. In the Original Lawsuit,

Plaintiffs contended that:

Sterling entered into a lease agreement with [Providian] . . . upon termination of the lease and sixty days after Sterling provided a forwarding address, [Providian] has refused to refund the security deposit to Sterling. [Providian] has acted in bad faith. ..... Nisal entered into a lease agreement with [Providian] . . . upon termination of the lease and sixty days after Sterling provided a forwarding address, [Providian] has refused to refund the security deposit to Nisal. [Providian] has acted in bad faith.

(See Original Petition in Original Lawsuit; Ex. L). Plaintiffs’ allegations in this lawsuit

are for a claim for breach of contract. (See §5 of the Nisal Commercial Lease; Ex. A)

(“Within 60 days after tenant surrenders the leased premises . . . Landlord will refund the

security deposit[.]”). Included are various torts including breach of duty of good faith and

fair dealing, conversion, theft liability act, and breach of fiduciary duty. These torts are

in play because Plaintiffs’ alleged “bad faith”.

19 AR 000035 55. The claims in the Original Lawsuit are the exact same claims that Plaintiffs now

assert against Defendants. Further, these current claims and the prior claims all arise out

of the exact same subject matter: the parties’ lease agreements.

56. Of course, res judicata only bars those claims that a party could have asserted in

the underlying lawsuit “with the use of diligence.” Bell, 832 S.W.2d at 754. Here,

Plaintiffs could have asserted their current claims in the Original Lawsuit had they used

any diligence at all. Defendants allegedly deposited Plaintiffs’ checks as early as August

2011. (See Plaintiffs' Original Petition); (See First Amended Petition). Plaintiffs did not

file the Original Lawsuit until September 5, 2013, meaning that Plaintiffs had over two

years to discover the fact that Defendants had deposited their checks. As a matter of law,

two years is not due diligence.

57. Accordingly, Plaintiffs claims are barred by the doctrine of res judicata.

Defendants are entitled to summary judgment as a matter of law.

D. P LAINTIFFS NEVER R ECEIVED DELIVERY O F T HE C HECKS AND T HEREFORE H AVE NO ACTION FOR C ONVERSION AGAINST DEFENDANTS

58. Here, Plaintiffs allege that Defendants took the checks intended for Plaintiffs and

deposited them into Defendants’ own bank accounts. Under the Texas Business and

Commerce Code, Plaintiffs have no claims against Defendants.

59. “An action for conversion of an instrument may not be brought by . . . a payee or

indorsee who did not receive delivery of the instrument either directly or through delivery

to an agent or a co-payee.” Tex. Bus. & Com. Code § 3.420(b). The policy behind this

rule is that:

20 AR 000036 Until delivery, the payee does not have any interest in the check. The payee never became the holder of the check nor a person entitled to enforce the check. Section 3-301. Nor is the payee injured by the fraud. Normally the drawer of a check intends to pay an obligation owed to the payee. But if the check is never delivered to the payee, the obligation owed to the payee is not affected. If the check falls into the hands of a thief who obtains payment after forging the signature of the payee as an indorsement, the obligation owed to the payee continues to exist after the thief receives payment. Since the payee's right to enforce the underlying obligation is unaffected by the fraud of the thief, there is no reason to give any additional remedy to the payee.

Tex. Bus. & Com. Code Ann. § 3.420, cmt 3.

60. Here, Plaintiffs contend that Defendants “stole” Plaintiffs’ checks before the

checks were delivered to Plaintiffs’ offices. Thus, Plaintiffs never received “delivery” of

the checks and cannot maintain a conversion action against Defendants.

61. Further, there is no basis for holding that Defendants were Plaintiffs’ agents. First,

Plaintiffs terminated their tenancy on or about March 31, 2013. (See Original Lawsuit;

Ex. L) (Lease Termination Letter; Ex. N). Any agency relationship between the

Defendants and Plaintiffs, assuming arguendo that one existed, ended on that date. Yet

several of the checks allegedly converted by Defendants are dated well after the end of

Plaintiffs’ tenancy. (See Exhibit 1 to Plaintiffs' Motion to Compel) (four checks totaling

$11,387.15 dated September 25, 2013).

62. Even during the Plaintiffs’ tenancy, there was no agency relationship between

Plaintiffs and Defendants regarding the mail, and Plaintiffs’ contention that Defendants

21 AR 000037 “orally agreed” to accept Plaintiffs’ mail is untenable. The leases between Plaintiffs and

Defendants contained standard merger and no-oral modification clauses:

The lease contains the entire agreement between the Landlord and Tenant and may not be changed except by written agreement.

(See Nisal Commercial Lease, § 38(A); Ex. A). The alleged “contract” regarding the

mail is not mentioned by the lease agreements. In fact, there is no mention of mail

anywhere. Accordingly, Plaintiffs’ reliance on the alleged oral agreement violates either

the parol-evidence rule or the no-oral modification clause. See Robbins v. Warren, 782

S.W.2d 509, 511 (Tex. App.—Houston [1st Dist.] 1989, no writ) (in a contract required

by law to be written, a no-oral modification clause is valid and enforceable); see Tex.

Bus. & Com. Code §26.01(b)(5) (providing that a lease of real estate for more than one

year must be in writing to be enforceable); (See Nisal Commercial Lease; Ex. A)

(providing for a three-year lease).

E. P LAINTIFFS’ C LAIMS ARE BARRED I N P ART BY T HE STATUTE O F L IMITATIONS.

63. Plaintiffs’ claims are also barred in part by the applicable statute of limitations

period.

64. Conversion is subject to a two-year statute of limitations. Tex. Civ. Prac. & Rem.

Code §16.003. Unjust enrichment and money had and received claims are also subject to

a two-year limitations period. Elledge v. Friberg-Cooper Water Sup., 240 S.W.3d 869,

870 (Tex. 2007).

65. Here, Plaintiffs seek recovery for checks that Defendants allegedly took as early as

2011. Yet Plaintiffs did not file suit until April 22, 2014, and they allege no basis

22 AR 000038 sufficient to toll the statute of limitations. Accordingly, based on the allegations

Plaintiffs have asserted, their claims pre-date April 22, 2012; therefore, claims for

conversion, unjust enrichment, and money had and received are barred as a matter of law.

F. DEFENDANTS/C OUNTER -P LAINTIFFS ARE E NTITLED T O T HEIR ATTORNEY’S F EES

66. Pursuant to Tex. Civ. Prac. Rem. Code §37.009 and §38.001, Counter-Plaintiffs

are entitled to their reasonable attorney’s fees in prosecuting their affirmative claims. To

date, Counter-Plaintiffs have incurred $11,257.50 in reasonable and necessary attorney's

fees. (See Declaration of Ashish Mahendru, ¶13; Ex. O).

VIII. CONCLUSION

67. Plaintiffs entered into a Mutual Release in which they released any known or

unknown claims that they had against all Defendants. By operation of law and by

application of the Mutual Release, Plaintiffs’ claims are barred as to all Defendants.

Additionally, Plaintiffs’ claims are barred by res judicata because Plaintiffs nonsuited

their prior lease claims against Defendants with prejudice. Because Plaintiffs never

received delivery of the checks, they have no claim for conversion. Plaintiffs’ claims are

also barred in part by the applicable limitations periods.

68. Defendants respectfully request that this Court grant them summary

judgment, dismiss Plaintiffs’ claims with prejudice, grant them their reasonable

attorney’s fees, and grant Defendants all further relief to which they are entitled at law or

equity.

23 AR 000039 Date: January 30, 2015 Respectfully submitted,

By: Ashish Mahendru Texas Bar No. 00796980 Darren A. Braun Texas Bar No. 24082267 639 Heights Boulevard Houston, Texas 77007 (713) 571-1519 (Telephone) (713) 651-0776 (Facsimile) amahendru@thelitigationgroup.com dbraun@thelitigationgroup.com

I hereby certify that a true and correct copy of the foregoing instrument has been provided to all counsel of record in accordance with the applicable Texas Rules of Civil Procedure on this 30th day of January 2015.

Matias J. Adrogué Robert Stephan Kaase 1629 West Alabama St. Houston, Texas 77006

24 AR 000040 TEXAS ASSOCIATION OF REALTORS' REALTORS ~~ COMMERCIAL LEASE USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS Of OF THE TEXAS ASSOCIATION ASSOCI.o.TlONOFOF REALTORS® IS NOT AUTHORIZED REALTQRS®IS AUTHORIZED.. «exu ASsOCiation .;rr.~ .. A. .""llIIlon of REALTORS®. Inc. ofREALTOR$e>, 2006 (Qt;. 20GEI

Table of Contents

No. M2: Paragraph Description Pg. f9:. H2:. No. Paragraph Description E9:. E!b 1. Parties 2 22. Holdover 10 2. Leased Premises 2 & Security Interest 23. Landlord's Lien & 10 3. Term 2 24. Assignment and Subletting 10 A. Term 25. Relocation 11 B. Delay of Occupancy 26. Subordination 11 4. Rent and Expenses 3 27. Estoppel Certificates 11 A. Base Monthly Rent 28. Casualty Loss 11 B. First Full Month's Rent 29. Condemnation 12 C. Prorated Rent 30. Attorney's Fees 12 D. O. Additional Rent 31. Representations 12 E. Place of Payment. 32. Brokers 12 F. Method of Payment 33. Addenda 13 G. Late Charges 34. Notices 13 H. Returned Checks 35. Special Provisions 13 5. Security Deposit 4 36. Agreement of the Parties 14 6. Taxes 4 7. Utilities 4 8. Insurance 5 ADDENDA & {check all that a~el~l & EXHIBITS (check aQQ1:t} 9. Use and Hours 5 10. Legal Compliance 6 on l1li Exhibit AA 11. Signs 6 0 Exhibit 12. Access By Landlord 7 0 Commercial Lease Addendum for Broker's Fee 13. Move-In Condition 7 0 Commercial Lease Expense Reimbursement 14. Move-Out Condition 7 Addendum 15. Maintenance and Repairs 7 I» l1li Commercial Lease Addendum for Extension A. Cleaning Option B. Conditions Caused by a Party 0 Commercial Lease Addendum for Percentage c. Repair && Maintenance Responsibility C. Rent D. Repair Persons ~ OJ Commercial Lease Parking Addendum E. HVAC Service Contract 0lI l1li Commercial Landlord's Rules and Regulations F. Common Areas l1li 0lI Guar~nty Commercial Lease Guaranty G. Notice of Repairs l1li 0lI Commercial Lease Right of First Refusal to Lease H. Failure to Repair Addendum 16. Alterations 9 0 Commercial Lease Addendum for Optional 17. Liens 9 Space 18. Liability Uability 9 I» IliI Commercial Leasehold Construction Addendum 19. Indemnity 9 ~ Acceptance Eor:m Eorm 20. Default 9 ii ~ Rjgbt IU gbt of Eh:st Ehst Befllsa] Refusal to EIlJ.:cbase Em::cbase 21. Abandonment, Abandonment. Interruption of Utilities, Removal of Property & & Lockout 10

(TAR-2101) 5-26-06 Tenant:~ Initialed for Identification by Tenant:&_. _ _,• aod Laod'O

AR 000041 EXHIBIT A ~~ use USE OF THIS fORU CFlHS ASSOCIATION OF REALTORS"' TEXAS AsSOCIATION

RlRII BY PERSONSWHOARE PERSalSWHOARE NOT REALTORS" COMMERCIAL LEASE IIaII!ERS UEIII!ERS I'CJT ' ...._ fi_'ta,c 7 • r • OFntETEXASASSOCIAllCW • CF TlETEXllSASSOCIATJa\I OF .. __ __ _ _lIaIU~IDc._ ~ REALT~ IS NOT AlITHORIZED. CF REALTORSIIIS A1.ITHORIZED_

1. PARTIES: The parties\olhis parties to this lease are: N~sa.l N~"iil Corporation Tenant: __________________________________________________________ ___________________________________________________--",and ~;and

Landkxd: LandkKd: Providian Holdings, Inc.

2. LEASED PREMISES:

A Landlonlleases A LandkKd _ leases to Tenant the following described ~n as the -leased real property, known premises: along "leased premises," willi al its with i!s improvements (Check only one box):

ag (1) Multiple-Tenant Property: Suite or Un~ MuIi!>l&:Tenant Properly: Unil Number 200 containing approximately 44 7 nn 700 square feet of rentable area in MemorJ.al Compounding Pharmacy Building (prOject Memorial Compoundlng (project name) m at 2918 San Jacinto Street street (address) in Houston (address] 77004 (city), Harris (county), Texas, which is legally Texas. IegaIy described on attached Exhibit A A or as follows: The premises are being leased "AS IS". Tenant has insl?ected inspected the premjses and accepts the premises "AS IS".

a(] (2) Single-Tenant S!!gle-Tenant Properly: Prope!Iy: The real property at: _ _ _ _ _ _ _ _ _ _ _ _--:-___--:-:- _____________________________________________________ ~(~)in

(adcress) in (city),, _ _ _ _ _ _ _ _ (county), (city1,----------------:-c-::(county), Texas, which Texas, which -is-:IegaDy---descri----:"bed--on-attached~-:---:-:Exh~"::'ibit-:':'-=--=-____________ ~is-;Iega8y:---=--;descri:--~·c.-bed-;--on-a\lached;:--:-:--.-:=Exh""""'ibiI'"'·;-_- _ _ _ _ _ _ _ _ _ _ _ or as follows: _ ________ _ _ ___

B. If Paragraph 2A(1) applies: ~ means the building or complex in which the leased premises are located, incIusiw (1) "Property" inclusive of any common areas, drives, parking areas, and walks; and thai the (2) the parties agree that \he rentable area of the leased premises may not equal the actual or useable at common areas in the Property. area within the leased premises and may include an allocation of Property,

3. TERM:

A Term: The term of this lease is __ 3_6_ _ _ months and _-,,0,-_ _::.3,,6 0 days. commencing on: days,

March 1, 2009 (Commencement (Commeocement Date) and ending on

Februarv ?q. 201? 2Q, 2011 Date). (Expiration Date),

(TAR-21 01) 5-26-06 (TAR-2101) Initialed for Identification by T enant:~- - ' and Lan~v. Page2of14 Page2af14

AR 000042 Commercial Lease conceming:,_ _ Commercialleaseconceming: ____ ____ ____ ____ ____ ___________ ____ ____ ____ ____ ____ _ _ _ ___

8. B. Delay of Occupancy: If Tenant is unable to occupy the leased premises on the Commencement Date because of construction on the leased premises to be completed by Landlord that is not substantially complete or a prior tenant's holding over of the leased premises, landlord Landlord will not be liable to Tenant for such delay and this lease will remain enforceable. In the event of such a delay, the Commencement Date will automatically be extended to the date Tenant is able to occupy the Property and the Expiration Date will also be extended by a like number of days, so that the length of this lease remains 1h unchanged. If Tenant is unable to occupy the leased premises after the 90th day after the Commencement Date because of construction on the teased leased premises to be completed by Landlord that is not substantially complete or a prior tenant's holding over of the leased premises, Tenant may terminate this lease by giving written notice to Landlord before the leased leased. premises become available to be occupied by Tenant and Landlord will refund to Tenant any amounts paid to Landlord by Tenant. This Paragraph 3B does not apply to any delay in occupancy caused by cleaning or repairs.

C. Unless the parties agree otherwise, Tenant is responsible for obtaining a certificate of occupancy for the leased premises if required by a governmental body.

4. RENT AND EXPENSES:

A. Base Monthly Rent: On or before the first day of each month during this lease, Tenant will pay aB:stI:IiI':.t!l.EI~&&&&&&&&&&&&&&&&8Jif;as follOWS: Landlord base monthly rent as described .B:atllilr::D8g~zzzzzzzzzzzZzzzzt:lgas follows:

from I, 2009 March 1, to 31 t 2009 August 31, $ 0.00 from SeEtember I, 2009 to Februar2 28, 2010 February $ 3,600 .0'OLmonth .OO/month from March I, 2010 to February 28, 2011 $ '3,90'0. OOLmonth 3 ,900. OO/month ,, from " March I, 2011 2'011 to February 29, 2012 $$~4 ,200. ,200.00Lmonth aD/month from " to $ B. First Full Month's Rent: The first full base monthly rent is due on or before September 1. 2'0'09 J. 2009

C. Prorated Rent Rent: If the Commencement Date is on a day other than the first day of a month, Tenant will pay Landlord as prorated rent, an amount equal to the base monthly rent multiplied by the following fraction: the number of days from the Commencement Date to the first day of the following month divided by the number of days in the month in which this lease commences. The prorated rent is due on or before the Commencement Date.

D. Additional Rent: In addition to the base monthly rent and prorated rent, Tenant will pay Landlord all aU other amounts, as provided by the attached (Check all a/l that apply.): oa(1) Commercial Expense Reimbursement Addendum N/A Cl (2) Commercial Percentage Rent Addendum N/A (J (J (3) Commercial Parking Addendum N/A

o (4)~N~!A~~~~~~~~~~~~~~~~==~~~~~~~~~~~~~ (J(4)~N~/A=___~--~~~--~~--~~--~~--~--~--~-------------- All amounts payable under the applicable addenda are deemed to be "rent" for the purposes of this lease.

E. Place of Payment: Tenant will remit all amounts due Landlord under this lease to the following person at the place stated or to such other person or place as Landlord may later designate in writing:

Name: Providian Holdings, Inc. Address: 2918 San Jacinto Street, Street. Suite 100 Houston, Houston. Texas 77004 .

F. Method of Payment: Tenant must pay all rent timely without demand, deduction, or offset, except as permitted by law or this lease. If Tenant fails to timely pay any amO~due amo~due. under this lease or if any returned to Landlord bY~~7'jnstitutjOn check of Tenant is retumed bY~~7Anstitution on w Ich Ich, i was drawn, Landlord after (TAR-2101) 5-26-06 Tenant~, ___, and landlord: Initialed for Identification by Tenantrz-r' Landlord: ..' __ _' _ _ Page 3 of 14

AR 000043 Commercial Lease conceming: _ _ _ ____ ____ ____ ____ _ _ _ ______ ____ ____ ____ ____ __ __ ____ ____ ___

providing written notice to Tenant may require Tenant to pay subsequent amounts that become due under this lease in certified funds. This paragraph does not limit Landlord from seeking other remedies under this lease for Tenant's failure to make timely payments with good funds.

G. Late Charges: If Landlord does not actually receive a rent payment at the designated place of payment within 5 days after the date it is due. due, Tenant will pay Landlord a late charge equal to 5% of the amount due. In this paragraph. paragraph, the mailbox is not the agent for receipt for Landlord. The late charge is a cost associated with the collection of rent and Landlord's acceptance of a late charge does not waive Landlord's right to exercise remedies under Paragraph 20.

$25. Be (not to exceed $25) for each check Tenant tenders to H. Returned Checks: Tenant will pay $25098 Landlord which is returned by the institution on which it is drawn for any reason, plus any late charges until Landlord receives payment.

5. SECURITY DEPOSIT: A. Upon execution of this lease, lease. Tenant will pay $_3 $_3_,... ___ 0... 6"..0 .6_ 0_._0_0 _0_ 0 _ _ _ _ _ _ _ to Landlord as a security _0_0________ deposit.

B. Landlord may apply the security deposit to any amounts owed by Tenant under this lease. If Landlord applies any part of the security deposit during any time this lease is in effect to amounts owed by Tenant, Tenant must, within 10 days after receipt of notice from Landlord, restore the security deposit to the amount stated.

C. Within 60 days after Tenant surrenders the leased premises and provides Landlord written notice of Tenant's forwarding address, Landlord will refund the security deposit less any amounts applied toward amounts owed by Tenant or other charges authorized by this lease. lease. .personal nal 6. TAXES: Unless otherwise agreed by the parties, Landlord will pay air,PnfUio t@tJf property ad valorem taxes assessed against the leased premises.

7. UTILITIES:

A. The party designated below will pay for the following utility charges to the leased premises and any connection charges for the utilities. (Check aI/ all that apply.) N/A Landlord Tenant (1) Water 0 ~ i9 0 (2) Sewer 0 Qg i9 0 (3) Electric 0 ~ Ill! 0 (4) Gas 0 ~ IllI 0 (5) Telephone 0 0 QII III (6) Trash, Cleaning 0 0 QlI IllI (7) Cable 0 0 il IllI (8) 0 0 0 AU other utilities (9) All 0 0 W III

B. The party responsible for the charges under Paragraph 7 A will pay the charges directly to the utility 7A service selVice provider. The responsible party may select the utility service provider, except that if Tenant selects the provider, any access or alterations to the Property or leased premises necessary for the utilities may be made only with Landlord's prior consent, which Landlord will not unreasonably withhold. If Landlord incurs any liability for utility or connection charges for which Tenant is responsible to pay and Landlord pays such amount, Tenant will immediately upon written notice from Landlord reimburse Landlord such amount.

ITAR-21 01) 5-26-

AR 000044 Commercial Lease lease concerning", concerning::_ _ ____ ____ ____ _ _ _ ______ ____ ____ __ _ _ ____ ____ ____ _ _____-_-_-_-

C. Notice: Tenant should determine if all necessary utilities are available to the leased premises and are adequate for Tenant's intended use. ~HVAC services" D. After-Hours HVAC Charges: "HVAC servicesn mean heating. heating, ventilating, ventilating. and air conditioning of the leased premises. (Check one box only.) ~ (81 (1) Landlord is obligated to provide the HVAC services to the leased premises only during the Property's operating hours specified under Paragraph 9C.

I.XI (2) Landlord will provide the HVAC services to the leased premises during the operating hours UlI specified under Paragraph 9C for no additional charge and will, at Tenant's request, provide HVAC services to the leased premises during other hours for an additional charge of $ 2 O. 00 20. per hour. Tenant will pay Landlord the charges under this paragraph immediately upon receipt of Landlord's invoice. Hourly charges are charged on a half-hour basis. Any partial hour will be rounded up to the next half hour. Tenant will comply with Landlord's procedures to make a request to provide the additional HVAC services under this paragraph.

o (3) Tenant will pay for the HVAC services under this lease.

8. INSURANCE:

A. During all times this lease is in effect, Tenant must, at Tenant's expense, maintain in full force and effect from an insurer authorized to operate in Texas: 000 ,f 000 •_00 $2 ,fOOD (1) public liability insurance in an amount not less than $1,000,000.00 $1,000,000.00.on iSn an occurrence basis naming Landlord as an additional insured; and (2) personal propertY damage ins~or insi:ii'anCe1or Tenant's business operations and contents on the leased premises in an amount sufficient to replace such contents after a casualty loss.

B. Before the Commencement Date, Tenant must provide Landlord with a copy of insurance certificates evidencing the required coverage. If the insurance coverage is renewed or changes in any manner or degree at any time this lease is in effect, Tenant must, not later than 10 days after the renewal or change, provide Landlord a copy of an insurance certificate evidencing the renewal or change. C. If Tenant fails to maintain the required insurance in full force and effect at all times this lease is in effect, Landlord may: (1) purchase insurance that will witl provide Landlord the same coverage as the required insurance and Tenant must immediately reimburse Landlord for such expense; or (2) exercise Landlord's remedies under Paragraph 20.

D. Unless the parties agree otherwise, Landlord will maintain in full force and effect insurance for: (1) fire and extended coverage in an amount to cover the reasonable replacement cost of the improvements of the Property; and (2) any public liability insurance in an amount that Landlord determines reasonable and appropriate.

E. If there is an increase in Landlord's insurance premiums for the leased premises or Property or its contents that is caused by Tenant, Tenant's use of the leased premises, or any improvements made by or for Tenant, Tenant will, for each year this lease is in effect, pay Landlord the increase immediately after Landlord notifies Tenant of the increase. Any charge to Tenant under this Paragraph 8E will be equal to the actual amount of the increase in Landlord's insurance premium.

9. USE AND HOURS:

other; general office use A. Tenant may use the leased premises for the following purpose and no other:

(TAR-2101) (TAR-21 01) 5-26-06 initiaied for Identification Initialed identification by Tenant: •. - __ landlord:.~~.y._ _ ', and Landlord:.p'-"'-;"'. Page 5 of 14

AR 000045 lease concerning:: Commercial Lease concerning:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

B. Unless otherwise specified in this lease, Tenant will operate and conduct its business i~ [~ the leased premises during business hours that are typical of the industry in which Tenant represents It operates.

C. The Property maintains operating hours of (specify hours, days of ~eek, and if incll!sive or exclusive of weekends and holidays): 8: OOpm, Monday thru Fr~day exclus~ve 30am - 77::OOpm, 8 ;30am excluslve of Thanksgjvin~ holidays which includes Memorial Day. Independence Day. Labor Day. Thanks9]vjn~ Da¥. Also Saturday 8:30am-2:00pm Day. Christmas Day and New Year's Da¥ 8:30am 2:00pm except hol+days.

10. LEGAL COMPLIANCE:

A. Tenant may not use or permit any part of the leased premises or the Property to be used for: (1) any activity which is a nuisance or is offensive, noisy, or dangerous; (2) any activity that interferes with any other tenant's normal business operations or Landlord's management of the Property; (3) any activity that violates any applicable law, regulation, zoning ordinance, restrictive covenant, governmental order, owners' association rules, tenants' association rules, Landlord's rules or regulations, or this lease; tease; (4) any hazardous activity that would require any insurance premium on the Property or leased premises to increase or that would void any such insurance; (5) any activity that violates any applicable federal, state, or local law, including but not limited to those laws related to air quality, water quality, hazardous materials, wastewater, waste disposal, air emissions, or other environmental matters; (6) the permanent or temporary storage of any hazardous material; or (7) _________________________________________________________

(7)=================== ~Hazardous material" means any pollutant, toxic substance, hazardous waste, hazardous material, B. "Hazardous hazardous substance, solvent, or oil as defined by any federal, state, or local environmental law, regulation, ordinance, or rule existing as of the date of this lease or later enacted.

C. Landlord does not represent or warrant that the leased premises or Property conform to applicable restrictions, zoning ordinances, setback lines, parking requirements, impervious ground cover ratio requirements, and other matters that may retate relate to Tenant's intended use. Tenant must satisfy itself that the leased premises may be used as Tenant intends by independently investigating all matters related to the use of the leased premises or Property. Tenant agrees that it is not relving relying on any warranty or representation made by Landlord, Landlord's agent. agent or any broker concerning the use of the leased premises or Property.

11. SIGNS:

A. Tenant may not post or paint any signs at, on, or about the leased premises or Property without Landlord's written consent. Landlord may remove any unauthorized sign, and Tenant will promptly reimburse Landlord for its cost to remove any unauthorized sign.

B. Any authorized sign must comply with all laws, restrictions, zoning ordinances, and any governmental order relating to signs on the leased premises or Property. Landlord may temporarily remove any authorized sign to complete repairs or alterations to the leased premises or the Property.

C. By providing prOViding written notice to Tenant before this lease ends, Landlord may require Tenant, upon move- out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all signs that were placed on the Property or leased premises by or at the request of Tenant. Any signs that Landlord does not require Tenant to remove and that are fixtures, become the property of the Landlord at the time this lease ~, Landlord and must be surrendered to landlord ~.'1

(TAR-2101) 5-26-06 bYTenant:~ Initialed for Identification by LandIOrd(~::~jl_l_ Tenant:~_ _•, and LandIOrd~/__ Page 6 of 14 (S/ C::::/

AR 000046 CommeroDl~~ ___________________________________________________________ ~I~~--------------------------------------------------------- lANDLORD: 12. ACCESS BY LANDLORD:

A A. During Tenant's normal business hours Landlord may enter the leased premises for any reasonable purpose, purpose. including but not limited to purposes for repairs, maintenance, aHerations, alterations. and showing the leased premises to prospective tenants or purchasers. Umdlord Landlord may access the leased premises premiseS after Tenant's nonnaI normal business hours if: (1) entry is made with Tenant's permission; or (2) entry is necessary to comptete landlord wit complete emergency repairs. Landlord wil not unreasonably unreasonabty intelfere interfere with Tenant's business operations when accessing the leased teased premises.

B. During the last 90 days of this tease, lease, Umdlord Landlord may place a "For -For Lease" or similar1y similarly worded sign in the leased premises.

13. MOVE-W MOVE-IN CONDIllON: CONDITION: Tenant has inspected the leased premises and accepts it ~ in ~s its present (as-is) condition unless expressly noted otherwise in this tease. lease. Landlord landlord and any agent have made no express pennitled use of the leased premises or Property. or implied warranties as to the condition or permitted

14. MOVE-OUT CONDITION AND FORFEITURE OF TENANT'S TENANTS PERSONAL PROPERTY:

A M the time this lease A. At tease ends, Tenant wi. win surrender the leased premises in the same conditiOn condition as when received, except for normal wear and tear. Tenant wiD leave the leased premises in a clean condition received. free of all trash, trash. debris, debris. personal property, property. hazardous materials, and environmental contaminants.

B. If B pen;onal property in the leased premises _ ~ Tenant leaves any per.;onal r Tenant surrenders possession after possessiOn of the leased premises, landlord may: (1) require Tenant, at Tenant's expense, 10 to remove the per.;onal personal property by providing written notice to Tenant; or (2) retain such suCh personal property as foJfeJted forfeited property to Landlord.

C. ·Surrender" means vacating the leased premises and returning all keys and access deyjces devices to Landlord. -Normal wear and tea" landlord. "Normal tear" means deterioration that occurs wMJout without negligence, carelessness. carefessness, accident, or abuse.

D. By providing wlitten Landlord may require Tenant, written notice to Tenant before this lease ends, landlord Tenant. upon move- remove, without damage to the Property or leased premises, any or aU out and at Tenant's expense, to remove. that were placed on the Properly or leased premises by or at the requesl fixtures thai request of Tenant. Any landlord does not require Tenant to remove become the property of the landlord and must fixtures that Landlord be surrendered to Landlord at the time this lease ends.

15. MAINTENANCE AND REPAIRS:

A A. Cteaning: Cleaning: Tenant must keep the leased premises ctean promptly dispose of all clean and sanitary and prompUy garbage in appropriale receptacles. 0 appropriate receplacJes. Q landlonl ~ Tenant will provide, at its landlord I\J( ~ expense, jan~ofial janitorial services to the leased premises that are customary and ordinary for the property type. Tenant Will will maintain any grease trap on the Property mairtain Properly which Tenant uses, including but not limited to periodtc periodic grea~ hap emptying and cleaning, as well as making any modification to the grease trap thai that may be necessary to comptywith taw. comply with any appficable law. Tenant shall clean the premises premJ.ses and the restrooms on the second floor at its expense. S. Repairs of Conditions Caused by a Party: Each party must promptly repair a condition in need of repair B. that is caused, e-.- thai intentionally or negligently, by thai either inleniionally that party or thai that party's guests, patrons, invitees, contractors or permitted subtenants.

C. Repair and Maintenance Responsibility: Except as otherwise provided by this Paragraph 15, the party below, at its expense, is responsible to maintain and repair the following specified items in designated below.

n the leased premises (if any). The specified items must be maintained in dean clean and good operable If a governmental regulation or order requires a modification to any of the specified items, the condition. if party designated to maintain the ~em {"'j" item must complete and pay the of the modification. The

(TAR-2101)5-26-00 (TAR-2101) 5-26-06 ........... _byTenant-o/~ Tenant~ _1.an

AR 000047 Commercial Lease lease conceming:: __ concerning:' _ __ ____ ____ ____ ____ _____________ ____ ____ ____ ____ _ _ ____ _____

specified items include and relate only to real property in the leased premises. Tenant is responsible for the repair and maintenance of its personal property. (Check all that apply.) N/A Landlord Tenant (1) walls, roof, and other structural components Foundation, exterior walls. 0 to III o (2) Glass and windows o tl D o (3) Fire protection equipment and fire sprinkler systems ill o o Cl (4) Exterior & overhead doors.doors, including closure devices. devices, molding. molding, III o Cl oCl locks, and hardware (5) Grounds maintenance, including landscaping and irrigation o Cl 19 oCl systems (6) Interior doors. doors, including closure devices. devices, frames, molding, locks. locks, o Cl o and hardware (7) Parking areas and walks ao oCl (8) Plumbing systems, systems, and systems. drainage systems, electrical systems. o Cl o Cl systems, except systems or items specifically mechanical systems. designated otherwise (9) Ballast and lamp replacement o a o Il!l (10) Heating, Ventilation and Air Conditioning (HVAC) systems o a III o (11) (11 ) Signs and lighting: Tenant shall pay for cost of new sign (a) Pylon (a )P I yon t~~dig~j Landlord ~~s£e~~~io~~d must approve a~~ig~;n~~~~ any new Sl.gn t~;re~. and cost of repair and maintena9ce there~. as oCl oCl (b) Facia as to design, location and size before 0 o ~ III (c) Monument any new sign is installed. Cl 0 ao o Cl OO~~~ (d) Door/Suite 0 Cl oCl ~ (12) Extermination and pest control, excluding wood-destroying insects 0 Cl 31 W o Cl (13) {13} Fences and Gates o Cl lin 01 o Cl (14) Storage yards and storage buildings o Cl m ill o Cl (15) Wood-destroying insect treatment and repairs o Cl m 01 o Cl (16) Cranes and related systems l(JI )QI o Cl o Cl (17) Repairs _R"esP"a'C",,""C""s,-,c"o"s"t~i",,,, costing less than $100.00 gLC1"e"s"s,-,:t"hc:a.:.:n-'.$"""O,,O,-"0:.0'--_ __ oCl ao ~ ill (18) o Cl oCl o Cl (19) All other items and systems oCl oCl D. Repair Persons: Repairs must be completed by trained, qualified, and insured repair persons.

E. , o is Cl is not maintain, at its expense, a regularly scheduled m required to maintain. nd service contract for the HVAC system. The maintenance and service e purchased from a HVAC maintenance company that regularly provide racts to similar properties. If Tenant fails to maintain a required HVAC' HVAC e and service contract in effect at all times during this lease, Landlord landlord n charge Tenant the expense of such a maintenance and service contract or

F. Common Areas: Landlord will maintain any common areas in the Property in a manner as Lanqlorq ng and,,§igns'lrl- ng determines to be in the best interest of the Property. Landlord will maintain any elevator and;§igMhl the common area. Landlord may change the size. size, dimension, and location of any common areas, provided that such change does not materially impair Tenant's use and access to the leased premises. Tenant has the non-exclusive license to use the common areas in compliance with Landlord's rules and restrictions. Tenant may not solicit any business in the common areas or interfere with any other person's right to use the common areas. This paragraph does not apply if Paragraph 2A(2) applies.

5~26-06 (TAR-2101) 5-26-06 Inffialed')r1 _ by renant:¥ ~ and U.-@. LaOdIO~__ loilialed roc Ideolificalioo by Teoao,¥-, _ _ , aod __ Page 8of14 8 of 14

AR 000048 Commercialleaseconcerning" Commercial lease concerning::_ _ _ ____ ____ ____ _ ____ ____ ____ ____ _ _ ____ ____ ____ _____ ____ ____

G. Notice of Repairs: Tenant must promptly notify Landlord of any item that is in need of repair and that is Landlord's responsibility to repair. All requests for repairs to Landlord must be in writing.

H. Failure to Repair: Landlord must make a repair for which Landlord is responsible within a reasonable period of time after Tenant provides Landlord written notice of the needed repair. If Tenant fails to repair or maintain an item for which Tenant is responsible within 10 days after Landlord provides Tenant written notice of the needed repair or maintenance, Landlord may: (1) repair or maintain the item, without liability for any damage or loss to Tenant, and Tenant must immediately reimburse Landlord for the cost to repair or maintain; or (2) exercise Landlord's remedies under Paragraph 20.

16. ALTERATIONS: A. Tenant may not alter, improve, or add to the Property or the leased premises without Landlord's written consent. Landlord will not unreasonably withhold consent for the Tenant to make reasonable non- consent structural alterations, modifications, or improvements to the leased premises.

B. Tenant may not alter any locks or any security devices on the Property or the leased premises without consent If Landlord authorizes the changing, addition, or rekeying of any locks or other Landlord's consent. security devices, Tenant must immediately deliver the new keys and access devices to Landlord.

C. If a governmental order requires alteration or modification to the leased premises, the party obligated to maintain and repair the item to be modified or altered as designated in Paragraph 15 will, wilt, at its expense, modify or alter the item in compliance with the order and in compliance with Paragraphs 16A and 17. Tenant must obtain at its expense all permits required for any improvements.

D. Any alterations, improvements, fixtures or additions to the Property or leased premises installed by either party during the term of this lease will become Landlord's property and must be surrendered to Landlord at the time this lease ends, except for those fixtures Landlord requires Tenant to remove under Paragraph 11 or 14 or if the parties agree otherwise in writing.

17. LIENS: Tenant may not do anything that will cause the title of the Property or leasE;KJ leas~d premises to be encumbered in any way. If Tenant causes a lien to be filed against the Property or leased premises, Tenant will within 20 days after receipt of Landlord's demand: (1) pay the lien and have the lien released of record; or (2) take action to discharge the lien. tien. Tenant will provide Landlord a copy of any release Tenant obtains pursuant to this paragraph. kt ~t all times 18. L1ABILlTY;tYQthe-extentpermitted LlABILlTY/JO the extent permitted by law. Landlord is NOT responsible to Tenant or Tenant's employees. employees, patrons. guests, or invitees for any damages. damages, injuries. or losses to person or property caused by: ' A. an act, act. omission, or neglect of: Tenant; Tenant's agent; agent: Tenant's guest: Tenant's employees; employees: Tenant's patrons; Tenant's invitees; or any other tenant on the Property; B. fire, flood, water leaks, ice, snow, hail. hail, winds, explosion, smoke, smoke. riot. strike. strike, interruption of utilities, theft, burglary, robbery. robbery, assault, vandalism, vandalism. other persons, environmental contaminants, or other occurrences or casualty losses.

19. INDEMNITY: Each party will indemnify and hold the other party harmless hannless from any property damage. damage, personal injury. injury, suits. suits, actions, liabilities. damages. damages, cost of repairs or service to the leased premises or Property. or any other loss caused, negligently or otherwise. Property, otherwise, by that party or that party's employees, patrons, guests, or invitees.

20. DEFAULT: A. If Landlord fails to comply with this lease within 30 days after Tenant notifies Landlord of Landlord's failure to comply, Landlord will be in default and Tenant may seek any remedy provided by law. If, however, Landlord's non-compliance reasonably requires more than 30 days to cure, Landlord will not be in default if the cure is commenced within the 30-day ~tlY 3D-day period and r t l Y pursued.

(TAR-2101) (TAR.2101) 5-26-06 5-26.(]6 'n"ale

AR 000049 Commercial Commerdal lease conceming:_ _ leaseconceming:' ____ ____ ____ ____ _ _ _ ________ ____ ____ ____ ____ _ _ _ ____ ____ _ _

B. If Landlord does not actually receive at the place designated for payment any rent due under this lease within 5 days after it is due, Tenant will be in default. If Tenant fails to comply with this lease for any other reason within 10 days after Landlord notifies Tenant of its failure to comply, Tenant will be in default.

C. If Tenant is in default, Landlord may: (i) terminate Tenant's right to occupy the leased premises by providing Tenant with at least 3 days written notice; and (ii) accelerate all rents which are payable during the remainder of this lease or any renewal period without notice or demand. Landlord will attempt to mitigate any damage or loss caused by Tenant's T enanfs breach by using commercially reasonable means. If Tenant is in default. default, Tenant will be liable for: ((1) 1) any lost rent; (2) Landlord's cost of reletting the leased premises, including brokerage fees, advertising fees, and other fees necessary to relet the leased premises; (3) repairs to the leased premises for use beyond normal wear and tear; (4) all Landlord's costs associated with eviction of Tenant, such as attorney's fees, court costs, and prejudgment interest; (5) all Landlord's costs associated with collection of rent such as collection fees, late charges, and returned check charges; (6) cost of removing any of Tenant's equipment or fixtures left on the leased premises or Property; (7) cost to remove any trash, debris, personal property, hazardous materials, or environmental contaminants left by Tenant or Tenant's employees, patrons, guests, or invitees in the leased premises or Property; (9) cost to replace any unreturned keys or access devices to the leased premises, parking areas, or Property; (10) any other recovery to which Landlord may be entitled under this lease or under law.

21. ABANDONMENT, INTERRUPTION OF UTILTIES, REMOVAL OF PROPERTY, AND LOCKOUT: Chapter 93 of the Texas Property Code governs the rights and obligations of the parties with regard to: (a) abandonment of the leased premises; (b) interruption of utilities; (c) removal of Tenant's property; and (d) ~lock-outH of Tenant. "lock-out"

22. HOLDOVER: If Tenant fails to vacate the leased premises at the time this lease ends, Tenant will become a tenant-at-will and must vacate the leased premises immediately upon receipt of demand from Landlord. No holding over by Tenant. Tenant, with or without the consent of Landlord, will extend this lease. Tenant will indemnify Landlord and any prospective tenants for any and all damages caused by the holdover. Rent for any holdover period will be 2 times the base monthly rent plus any additional rent calculated on a daily basis and will be immediately due and payable daily without notice or demand.

23. LANDLORD'S LIEN AND SECURITY INTEREST: To secure Tenant's performance under this lease, Tenant grants to Landlord a lien and security interest against all of Tenant's nonexempt personal property that is in the leased premises or Property, Property. This lease is a security agreement for the purposes of the Uniform Commercial Code. Landlord may file a copy of this Jease lease as a financing finanCing statement statement.

24. ASSIGNMENT AND SUBLETTING: Landlord may assign this lease to any subsequent owner of the Property. Tenant may not assign this lease or sublet any part of the leased premises without Landlord's written consent consent. An assignment of this lease or subletting of the leased premises without Landlord's written consent is voidable by Landlord. If Tenant assigns this lease or sublets SUblets any part of the leased premises, Tenant will remain liable for all of Tenant's obligations under this lease regardless if the assignment or sublease is i;3 made with or without the consent of ILandlord. andlord Tenant may not sublease sul?lease or assign this wlthout the consent of Landlora lease without LandlorawhlchwhLch' consent may be subject subJect to terms and conditions imposed imposed' by Landlord Lgndlord regarding any such sublease or assignment and the payment of rent ther~under.

(TAR-2101) 5-26-06 Initialed for Identification by Tenant¥_ _ .• and Tenant:¥ ~__ landia""@ ood Loodloo" __ Page 10 of 14

AR 000050 ~l~~: ~lu..~ ___________________________________________________________ ______________________________________________________ ___

25. RELOCATION:

to relocate to another location in the Property, provided that the other location is equal in arger than the leased premises then ocrupied occupied by Tenant and contains similar mprovements. improvements. landlonl will pay Tenant's reasonable ou\-Of-pOCkeI landlord wi. out-ot:-pocket moving expen e 'ng to the oIher ving oIber location. expenses'" means reasonable expenses pays "Moving expenses" paya . I movers, utility companies for connection and disconnection fees, wiring .• s for connecting and cflSCOOnecting disconnecting Tenant's office equipment required by the re '. printing companies for reprinting Tenant's stationary and business cards. A . Tenant wil not change or affecI oIber provision of this lease thai affect any oIher that is then in Ing rent and reimbursement amounts, except that the ~ description of the suite or unit ~~wu~mm~~~Bm~~\\

'1lI )ijI a. B. Landlord may not require Tenant to relocate to another location in the Property without Tenant's prior landlord consent consent. 26. SUBORDINATION:

A This Jease lease and Tenant's leasehold interest are and will be subject, subordinate. inferior to: subordinate, and inferiorto: encumbrance. or ground lease now or hereafter placed on the leased premises or the (1) any lien, encumbrance, Properly that landlord authorizes: Property lhallandlord authorizes; (2) aI advances made under any such lien, encumbrance, or groond ground lease; (3) the interest payable on any such ften lien or encumbrance; (4) any and all renewals and extensions of any such lien, encumbrance, or ground lease; affecting the leased premises or the Property; and (5) any restrictive covenant aIfecIing (6) the rights of any owners' association affecting affecIing the leased premises or Property.

non-disturbance agreement that B. Tenant must, on demand, execute a subordination, attornment, and non-distUrbance landlord may request that Tenant execute, provided that such agreement is made on the condition that Landlord Lease are recognized by the 1iefl..hoIder. this lease and Tenant's rights under this lease 1ien-hoIder.

'no 27. ESTOPPEL CERTFICATES: Within 10 days after receipt of a written wriUen request from Landlord, landlonl, Tenant will landford an estoppel certificate that identifies the tenns execute and deliver to Landlord terms and conditions of this lease.

28. CASUALTV LOSS: LOSS;

A Tenant must immediately notiIit notify landlord of any casualy loss in the leased premises. Wilhin ilthe VWhin 20 days after receipt of T casualy loss, landlord will notiIit enanI's notice of a casually Tenant's notify Tenant if K the leased premises are less than or more than 50% unusable, on a per square foot baSis, basis, and if landlord can substantially restore the leased premises within 120 days after Tenant notifies Landlord landlord of the casualty casually loss.

a. B. If the leased premises are less than 50% unusable and landlord can substantially restore the leased wilhin 120 days after Tenant_landlord premises wtilin casuaHy, landlord Tenant notifies landlord of the casualty, Landlord will reslore restore the leased premises to substantialy the same condition as before the casualty. If rr Landlord fails to subslantially substantiallY restore within the time required, Tenant may terminate tenninate this lease.

C. If the leased premises are more than 50% unusable and Landlord can substantially restore the ieasedleased premises within 120 days after Tenant notifies _ Landlord landlord of the casuaHy, landlonl may: casualty, Landlord may; (1) tenninate terminate substantially the same condition as before the casualty. this lease; or (2) restore the leased premises to substantialty landlortf chooses to restore and does not substantiaRy restore the leased premises within If landlord Within the time required, Tenant may terminate this lease.

D. If landlord notifies _ Tenant thai cannoI substantially reslore Landlord cannot that landlord restore the leased prenises premises within 120 days aIIer after Tenant notifies _ landlord of the casualy landlord may: (1) choose not to reslore casualty loss, landlon:l restore and tenninate terminate this lease; or (2) choose to restore, Tenant the option to Tenanllhe (TAR-2101)5-2600 (TAR-21m) 5-26-06 terminate this \0 lenninale fnitialed ,?-landIord byTenant~ for- Identification by Initialed forJdentificaIi:In Tenant Tenant of the estimated time to restore, and give restore. notify Tenanf lease by ~ landlord within \his lease - -----------' ~u:!'!r' willin ~~. andlandlon:f~___ - - ' andlardoRf~ ~__ Page 110(14 11 of 14

AR 000051 concerning:: _ _ Commercial Lease concerning,, ____ ____ ____ _ ______ ____ ____ ____ _ _ ____ ____ ____ _ ______ ____ _ _

E. If this lease does not terminate because of a casualty loss, rent will be reduced from the date Tenant notifies Landlord of the casualty loss to the date the leased premises are substantially restored by an amount proportionate to the extent the leased premises are unusable.

29. CONDEMNATION: If after a condemnation or purchase in lieu of condemnation the leased premises are totally unusable for the purposes stated in this lease, this lease will terminate. If after a condemnation or purchase in lieu of condemnation the leased premises or Property are partially unusable for the purposes of this lease, this lease will continue and rent will be reduced in an amount proportionate to the extent the leased premises are unusable. Any condemnation award or proceeds in lieu of condemnation are the property of Landlord and Tenant has no claim to such proceeds or award. Tenant may seek compensation from the condemning authority for its moving expenses and damages to Tenant's personal property.

30. ATTORNEY'S FEES: Any person who is a prevailing party in any legal proceeding brought under or related to the transaction described in this lease is entitled to recover prejudgment interest, reasonable attorney's fees, and all other costs of litigation from the nonprevailing party.

31. REPRESENTATIONS:

A. Tenant's statements in this lease and any application for rental are material representations relied upon by Landlord. Each party signing this lease represents that he or she is of legal age to enter into a binding contract and is authorized to sign the lease. If Tenant makes any misrepresentation in this lease or in any application for rental, rental. Tenant is in default.

B. landlord is not aware of any material defect on the Property that would affect the health and safety of 8. an ordinary person or any environmental hazard on or affecting the Property that would affect the health or safety of an ordinary person, except: _ _ ________ __ __ ____ ___ __ __ __ ____ __ ____ __

C. Each party and each signatory to this lease represents that: (1) it is not a person named as a Specially Designated National and Blocked Person as defined in Presidential Executive Order 13224; (2) it is not DeSignated acting, directly or indirectly, for or on behalf of a Specially Designated and Blocked Person; and (3) is not arranging or facilitating this lease or any transaction related to this lease for a Specially Designated DeSignated and Blocked Person. Any party or any signatory to this lease who is a Specially Designated and Blocked person will indemnify and hold harmless any other person who relies on this representation damage. loss, liability or expense as a result of this representation. and who suffers any claim, damage,

32. BROKERS:

A The brokers to this lease are: A. NONE

Cooperating Broker License No. Principal Broker License No.

Address Address

Phone Fax Phone Fax E-mail E-mail

Cooperating Broker represents Tenant. Principal Broker: (Check only one box) o (J represents Landlord only. o represents Tenant only. (J o is an r::J is intermedia~een an i n " ' 7 Landlord and Tenant. Landlord and Tenant.

(TAR-2' 0') 5-26-06 (TAR-2101) 5-2&00 ro, Inltialed byTena~ loltialed 10, Iden1ilication _ _ .• and lLandlo Ideoli'catioo by Teoao,¥- a n d:l/ /0 0-( 7_ ___ Page 12 of 14

AR 000052 Lease conceming: Commercial lease conceming::_ ____ ____ _______ ____ ____ _ ____ ____ _______ ____ _____ ____ ____ _ ____ ___

8. B. Fees: ao (1) Principal Broker's fee will be paid according to: (Check on/yone only one box). ar.J (a) a separate written commission agreement between Principal Broker and: a o Landlord 0 Tenant. a ar.J (b) the attached Addendum for Broker's Fee. ao (2) Cooperating Broker's fee will be paid according to: (Check only one box). oa (a) a separate written commission agreement between Cooperating Broker and: a o Plincipal Principal Broker Q Landlord 0 a (J Tenant. ao (b) the attached Addendum for Broker's Fee. 33. ADDENDA: Incorporated into this lease are the addenda, exhibits and other information marked in the Addenda and Exhibit section of the Table of Contents. If Landlord's Rules and Regulations are made part of this lease, Tenant agrees to comply with the Rules and Regulations as Landlord may, at its discretion, amend from time to time.

Jease must be in writing and are effective. 34. NOTICES: All notices under this lease effective when hand-delivered, sent by mail, or sent by facsimile transmission to:

Tenant at the leased premises, andacopyro;~~------------------------------------------------------------ andacopyro:~~~~------------------------------------------------------­ Address: _______________________~~----------------------------- Phone: ------------------------~F~ax-:----------------------------- Phone: Fax: tm Tenant also consents to receive ID rE;!ceive notices bye-mail ....a..r..n..e..rc:5~--------------------------- at:...;;bg~a;.;;r;;;;n;...;:e;.:;:r.:.5;.:;:@;.:;:a.:.o.=.l.:. by e-mail at-.bg ..@..a..o.. •c.:;.c.. 1-..... o.;:;m:;:.. ._ _ _ _ _ _ _ _ _ __ om...-__________

Landlord at at: Providian Holdings, Inc. Address: 2918 San Jacinto Street r Suite. :100, 100, Houstbn,.Texas Houston, .Texas 77004 I

Phone: 713 523-7847 Fax: andacopyto:~~~------------------------------------------_-_-_-___ -_-_-_-_-_-_-_-_-_- andacopyro:~~------------------------------------------------------------ ---------------------- Address: _ _ _ _ _ _ _ _ _ _ _ _~~----------------------------- Address: ________________________ -=,..-________________ Phone: -,-,-_ _,...._c--,_ _--c-,-....,..Fax: Fax:~__r_~~~~~~-~------­ !XI Landlord also consents to receive notices by C!I landlord bye-mail at:-"k~h~y~a~t~1c·~-~u"'n'::~d=~a::_v=~1=·~a=7c=@'::s~b'::c~g'!:"'::o'!:b'=a'="c::-.~n'::e':.t~_::._::._::._::._::._::._::._::._:: e-mail at:khyati_undavia@sbcglobal.net

35. SPECIAL PROVISIONS: A. Landlord shall not be obligated to install any facilities at the Property or in including any ADA !American the premises~ includinq Di$abilities) or related facilities ~American With Di~abilities) by rederal, seate and Clty requ~red by requlred regulat~ons or ordinances. c~ty laws, regulatlons thedliqhts in the premises and lock the doors to the building B. Tenant will turn off thedliqh~s WLen prem~ses w~en premlses are vacate vaca~e even1ng. each evenlng. C. As a fixture as part of the premises, Tenant may place aa sign on.the on the exterior of the building at 1tS lts sole cost and expense, the size and location of such sign to be approved by Landlord before being erected. . D. Landlord shall not lease any space in the building to a~ chiropr~ctor chiropractor no~ nOI lease any space in the building to any other medical profession In in the palD pain management business. Dentists are not considered part of the medical profession.

(TAR-2101) 5-26-06 Initialed for Identification by Tenant:~ Landlmd~ _ _ • and l.arnllo.. ~ __ Page 13 of 14

AR 000053 Commercialleaseconceming. Commercial Lease conceming:, _ ____ ____ ____ _ _ _ ______ ____ ____ _____ ____ ____ ____ _ _ _ ____ ____ ___ _

36. AGREEMENT OF PARTIES:

A. Entire Agreement: This lease contains the entire agreement between Landlord and Tenant and may not be changed except by written agreement.

S. B. Binding Effect: This lease is binding upon and inures to the benefit of the parties and their respective heirs, executors, administrators, successors, and permitted assigns.

C. Joint and Several: All Tenants are jointly and severally liable for all provisions of this lease. Any act or notice to, or refund to, or signature of, anyone or more of the Tenants regarding any term of this lease, renewal, or its termination is binding on all Tenants. its renewal.

D. Controlling Law: The laws of the State of Texas govern O. govem the interpretation, performance, and enforcement of this lease.

E. Severable Clauses: If any clause in this lease is found invalid or unenforceable by a court of law, the remainder of this lease will not be affected and all other provisions of this lease will remain valid and enforceable.

F. Waiver: Landlord's delay, waiver, or non-enforcement of acceleration, contractual or statutory lien, rental due date, or any other right will not be deemed a waiver of any other or subsequent breach by Tenant or any other term in this lease.

G. Quiet Enjoyment: Provided that Tenant is not in default of this lease, Landlord covenants that Tenant will enjoy possession and use of the leased premises free from material interference.

H. Force Majeure: If Landlord's performance of a term in this lease is delayed by strike, lock-out, shortage of material, governmental govemmental restriction, riot, flood, or any cause outside Landlord's control, the time for Landlord's performance will be abated until after the delay.

I. Time: Time is of the essence. The parties require strict compliance with the times for performance.

Brokers are not qualified to render legal advice, property inspections, surveys, engineering studies, environmental assessments, tax advice, or compliance inspections. The parties should seek experts to render such services. READ THIS LEASE CAREFULLY. If you do not understand the effect of this Lease, consult your attorney BEFORE signing.

NISAL CORPORATION PROVIDIAN HOLDINGS, INC. Tenant -L~~~2~~~~~/~~ landlord/ (ffl~/L~ crP"dtl:.er..c:.. BY/ ____ BY~CP/~ Date

Name'_-:t~~~'"----'~~~Gr~4,1t.~~{£;~::- Printed Name,_~~'--"='~l-I--~:::..L.--'=::::...>,.;~-=...J~~ Printed Name ;,J ~ ) J1-b /~9' <~kb/09 -i.6~cv'"''--''''------------------ Title,_ _ _ _ _ _ _ _ _ _ _ _ _ __ b-!..::...~ Title. Title'_ _ _ __ __ ____ ____ ____ ____ ____ _ ___ _ __ Trtle' _____

Tenant Landlord By By By/_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ By ~-

Date Date Printed Name Printed Name' Printed Name_ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Title Title ,------------------------ (TAR-2101) (TAR~2101) 5-26-06 Page 14 of 14

AR 000054 ~". ~ TEXAS ASSOCIATION OF REALTORS COMMERCIAL LEASE EXHIBIT USE OF THIS USE THIS FORM fOOM BY ElY PERSONS ME NOT PEFlSQtIS WHO ARE NOT MEMBERS MEMBERS OF THETHE TEXAS ASSOC",TlON I'SSOCI.I.TlON OF REAI.TORS® REALTOOS$IS NOT AUTHORIZEU IS NOT AUTHORIZE[.; OT.u. OTe _",,""on of REAl. .... AoaoclaKon of T'OR.Se.lne. :zoIHI 1tEJ\l.l'1;lRS&.1noc:.:root

EXHIBIT_A EXHIBIT-.::A_ ____ ____ ____ ____ ____ _____________ ____ ___ _

TO COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING THE LEASED PREMISES AT 2918 San Jacinto Street, Houston! Houston ( Texas

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NOT TO SCALE. DIMENSIONS AND SIZE SUBJECT TO MEASUREMENT. PARTITIONS MAY NOT EXIST AS SHOWN.

AR 000055 ~~ TEXAS ASSOCIATION OF Of REALTORS" REALTORS' COMMERCIAL LEASE ACCEPTANCE FORM us~ OF THIS FORM flY USE ?~RSONS WHO ARE NOT MEMBERS OF THE BY PERSONS REAlTOf!~ IS NOT AUTHORIZED. TIlE TEXAS ASSOCIATION OF REALTORS® AUTHORIZED, CT_ . Inc. 2006

ACCEPTANCE OF THE LEASED PREMISES AT 2918 San Jacinto Street, Houston, Texas' Texas. Suite 200

REGARDING THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES.

A. The parties have inspected the leased premises. The parties acknowledge that any improvements, construction, repairs, or other items required by the lease have been substantially completed. The condition of the leased premises is acceptable to Tenant for the purposes of the lease. On or before _ _ _ _ _ _ _ _ _ _ , 0 Landlord 0 CI Tenant will complete the following (punch list):

B_ 8. The parties ratify the lease and confirm the following: (1) The term of the lease is for 36 months and 00 days. (2) The Commencement Date of the lease is ;:Ma""'r"c"'h'-"'-f:,-;!'2"OO,,9":,,-_ "",M:;;;:a.=.rc.;;;.;h",-,l;;;;.L...!. .;:2;;.. ;0;.. :0-"9_ _ __ _______ __ ___ (3) The Expiration Date of the lease is February 29! 29, 2012

C. c. Special Provisions: Tenant has inspected the premises and accepts the premises "AS IS".

NISAL CORPORATI PROVIDIAN HOLDINGS, INC. Tenant

B'-_L-'='--""'-"-=--= By___~~~-~~~____________.....:..L:rc,~ ~~~~ Date

Tenant ~~ __----__--____--__-2~/-~6Io1 ~~-------------------2~/~GI6r Landlord B"_______________ ~ ~~

B'----__________ ~ -.cc"" Date Date ------------------------=Da--:-te Date

(TAR-2113) 5-26-06 Page 1 of Page 1 of 1 1

AR 000056 TEXAS ASSOCIATION OF REALTORS" REALTORS' ~~ COMMERCIAL LEASE ADDENDUM FOR EXTENSION OPTION USE OF THIS THiS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS® IS NOT AUTHORIZED. REI\lTORS®IS AUTHORIZED Clnn_ Mooc:latlon ot C>Tex.. AsSOClRIon TORSCI. Inc:. of REALTORS®, Inc. 2006

ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING THE LEASED PREMISES AT 2918 San Jacinto Street Street,c Houston, Texas Suite 200

A. At Tenant's option, Tenant may extend the term of above-referenced lease for 1 additional term(s) of 36 36.. months each. The first additional term commences upon the expiration of the term stated in the lease and any subsequent additional term commences upon the expiration of the then applicable extended term.

B. Tenant may exercise Tenant's option(s) to extend under Paragraph A only by providing written notice to Landlord at least 90 days before the end of the then current term of the lease.

C. Tenant may not exercise Tenant's option(s) to extend under Paragraph A if the lease is terminated before Tenant exercises its option to extend or Tenant is in breach of the lease at the time Tenant exercises its option to extend.

D. During the additional term(s), all provisions of the lease will continue as in effect immediately before the extension(s) commences except the base monthly rent during the additional term(s) will be:

QI III (1) $ 4,400.00 4,400_00 from March 1, 2012 to February 28, 2013 10 $ 4,600.00 from March 1, 2013 10 February 28, 2014 to $ 4,800.00 from March 1, 2014 10 February 28, 2015 to $ from to $ from to

o ~AII Urban Consumers, U.S. City Average, (2) adjusted to reflect increases in the Consumer Price Index for "All Items~, issued by the Bureau of Labor Statistics of the U.S. Department of Labor. The adjustment All Items", will be determined by multiplying the base monthly rent for the last month of the lease by the following fraction: (i) the numerator will be the published index number for January in the year the additional term commences; and (ii) (il) the denominator will be the published index number for January in the year in which the original lease term commences. (Notice: This paragraph is appropriate for use only when the rent in the lease remained constant through the term of the lease.)

o (3) the prevailing rental rate on the 45thth day before the additional term commences for premises of comparable size, quality, condition, improvements, utility, location, and length of term for tenant's of similar credit standing as Tenant. Tenant

E. If Paragraph 0(3) applies and the parties do not agree on the amount of the prevailing rental rate for the th additional term before the 30th day before the additional term commences, each party will employ a state- certified appraiser and deliver the appraiser's written opinion of the prevailing rental rate to the other party ttl 1Sth not later than the 15 day before the additional term commences. If the appraisers' opinions do not vary by more than 10%, 0 10 /0, the prevailing rental rate will be the average of the two opinions. If the appraisers' opinions vary by more than 10%, the appraisers will jointly select a t~praiser whose fees will be

(TAR-2104) 5-26-06 Initialed (0< lornaled for Ide_Do Tenaot~ ~~, land!Or

AR 000057 Addendum for Extension Option concerning _ _ ____ ____ ____ ____ _____________ ____ ____ ____ ____ _ _ __

shared equally by the parties. If a third appraiser is engaged, the prevailing rental rate will be the average of the two opinions that are closest in amount. If either party fails to employ or timely deliver an appraiser's opinion as required by this paragraph, the opinion rendered by the appraiser employed by the other party will determine the prevailing rental rate.

F. Special Provisions:

NISAL ORPORATION PROVIDIAN HOLDINGS, INC. Tenant

Tenant Landlord

By_ By __________________________________ _ _ _ _ _ _ _ _ _ _ _ _ _ __ By________________________________ __ ~~ B y ' - - - -______________~=c Date Date

(TAR-2104) 5-26-06 5--26-06 af2 Page 2 of2

AR 000058 ~.., ~~ ~ TEXAS ASSOCIATION OF REALTORS· REALTORS' COMMERCIAL LEASE RIGHT OF FIRST REFUSAL ADDENDUM USE OF THIS FORM 8Y WIiOAAE BY PERSONS WHO NOT MEMBERS Of ARE N(lTMEMBERS T!iE TEXAS OF THE T8(ASASSOCIATIONOF REAl-TORseIS ASSOCIATION OF REALTORS® IS NOT AUTHORIZED AUTHORIZED. .lnc. of R£ALl'ORS*, Inc. 2006 20IMI

ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING THE LEASED PREMISES AT 2918 San Jacinto Street, street, Houston, Texas Suite 200

A "Additional space" means all or part of the following areas along with all its improvements; A. improvements: o CJ (1) the following floors in the Property: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___.

~ (2) the following suites in the Property, presently identified, as: the first floor vacant office !XI off ice space

o CJ ___________________________________________________________ (3) __________________________________________________ ___

The parties agree that the rentable area of the additional space may not equal the actual or useable area within the additional space and may include an allocation of common areas in the Property.

B. If Landlord receives an acceptable written offer from another person to lease the additional space at a time when the above-referenced lease is in effect, Landlord will notify Tenant of the offer. Not later than 7 days after T enanl receives Landlord's notice of the offer, Tenant may notify Landlord that Tenant will lease the Tenant additional space identified in the offer under the same terms and conditions in the offer. If Tenant notifies Landlord that Tenant will lease the additional space identified in the after, offer, Tenant must execute a written lease for the additional space identified in the offer or amend the above-referenced lease, as Landlord may require, not later than 10 days after Tenant receives Landlord's notice. If Tenant fails to timely comply with this paragraph, Landlord may lease the additional space identified in the offer to the person who made the offer. If Tenant does not exercise its right to lease the additional space identified in the offer and Landlord does not lease the additional space identified in the offer to the person who made the offer, Tenant [J 0 does [J 0 does not relain retain the right of refusal under this addendum for any subsequent offers Landlord receives for the additional space identified in the offer.

C. An offer for part of the additional space affects the parties' rights and obligations only to the part of the additional space identified in the offer. Rights and obligations to parts of the additional space not identified in the offer are not affected. An offer to renew a lease for the additional space from a tenant occupying the additional space is not an offer to lease the additional space for the purposes of this addendum. D. Special Provisions: Vacant space occupied or used by Landlord is excluded from the provisions of this Addendum.

NISAL CORPORATION PROVIDIAN HOLDINGS, INC. 4 ,4'

Tenant Landlord By________________________________ ________________________________ ~ ~~ By _____________________________________ By,______________________________ ~~

Date Date (TAR-2i05) (TAR-2105) 5-26-06 Page 1 of 1

AR 000059 TEXAS ASSOCIATION OF REALTORS' REALTORS" ~~ COMMERCIAL LEASEHOLD CONSTRUCTION ADDENDUM (Tenant to Complete Construction) USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS® IS NOT AUTHORIZED. REALTORS@ISNOTAUTHORIZED cre QT. ... AssocIatIon tlfREALTOR$IP, Inc. . . ~_tlan<>fREAL~ Inc. 2ODOI _

ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING THE LEASED PREMISES AT 2918 San Jacinto Street Street« Houston, Houston. Texas Sui 511; te 700 200 r

A Execution and License to Enter: A.

o o above~referenced lease commenced. Landlord authorizes Tenant (1) This addendum is executed after the above-referenced to construct the improvements described in this addendum provided that Tenant complies with all of the terms of this addendum

129 (2) This addendum is executed before the above-referenced lease commences. Effective February 20, IZI 2009 , Landlord grants Tenant a license to enter into the Property and the leased premises for the purposes of preparing the leased premises for occupancy and constructing the improvements described under this addendum and in accordance with this addendum. This license is made under all the terms and provisions in the lease, except as to the covenant to pay rent.

B. Construction Costs: Tenant will pay the full cost to construct the improvements that Tenant is to construct under this addendum, including but not limited to the cost of material, engineering studies, environmental studies, contractors, permits, plans, architects, inspectors, subcontractors, and materialmen. Not later than 10 days after the construction is complete and Tenant has satisfied al\ all of Tenant's obligations under this addendum, Landlord will reimburse Tenant the cost of the improvements exceed __________________________________________________________________ in an amount that does __ not exceed

C. c. Approval of Plans:

(1) Not later than ,Tenant will submit to Landlord plans and specifications speCifications detailing the improvements Tenant desires to complete to the leased premises. The plans must detail all arChitectural, architectural, mechanical, electrical, and plumbing requirements for the improvements and must describe the proposed improvements along with the materials to be used and the interior floor plan of the leased premises. The plans must be drawn by a professional architect in accordance with generally accepted architectural standards and must be suffiCient sufficient for a contractor to use to construct the desired improvements.

(2) Within days after Landlord receives the plans in accordance with Paragraph C(1), Landlord will notify Tenant whether the plans are "approved" or "disapproved" by marking such on the plans and delivering the plans back to Tenant. Landlord will not unreasonably withhold approval of the plans. If Landlord does not notify Tenant of a disapproval within the time specified, the plans will be deemed approved.

(3) If the plans are disapproved, Landlord will detail the reasons for the disapproval either on the plans or in a separate notice to Tenant. Ifthe If the plans are disapproved, Tenant will, within _ _ days after receipt of the disapproval notice from Landlord, submit amended plans to Landlord that incorporate revisions necessary to satisfy Landlord's reasons for the disapproval. Landlord will not unreasonably withhold

(TAR-2112) 5-26-00 5-26-06 Inmaled Initialed for Identification _ by Tena...,-¥ Tenant~~ Landlo~, _ , and Landlo,(@2 _ _ Page 1 of 4

AR 000060 Leasehold Construction Addendum concerning _ ____ ____ _________ ____ ____ _ ____ ____ _________ ____ ___

approval of any amended plans. If Tenant is unable or unwilling to satisfy Landlord's reasons for disapproval by , and: jf this addendum is executed after the lease commenced, then Tenant will not construct the (a) if improvements and this Addendum will have no further effect; or (b) if this addendum is executed before the lease commences the lease will terminate and Landlord will refund any security deposit and advanced rent paid by Tenant.

(4) ~Final "Final plans" means the plans that Landlord approves under this Paragraph C.

D. Change Orders: Tenant must obtain Landlord's advanced written approval of any proposed changes to the final plans. Landlord will approve or disapprove any proposed change within days after Landlord receives a copy of the proposed change order from Tenant. Landlord will not unreasonably withhold approval of any proposed change order. If Landlord does not notify Tenant of a disapproval of a proposed change order within the time specified, the proposed change order is deemed approved.

E. Contractor: Before construction begins Tenant will enter into a written construction contract with a contractor(s} acceptable to Landlord to construct the improvements in accordance with the final plans. Any contractor(s) subcontractors employed by Tenant or Tenant's contractors must be acceptable to Landlord. Landlord will not unreasonably withhold approval of contractors and subcontractors.

F. Construction:

(1 ) Tenant will diligently complete the improvements in accordance with the final plans and will satisfy any requirements of any governmental authorities having jurisdiction over the improvements. The construction of the improvements must be performed in a good workmanlike manner and must comply with all applicable laws, ordinances, rules, and governmental orders and regulations. Construction of the improvements may not: (a) damage the Property except as specifically permitted by the final plans, including but not limited to damage to or interference with any structural component, system, or part of the Property; (b) interfere with the rights or operations of any other tenant in the Property or with Landlord's management of the Property; and (c) not obstruct any common area, walk, or drive except as Landlord permits.

(2) Landlord and Landlord's designees may inspect the construction of the improvements from time to time. If Landlord notifies Tenant of any construction defect or non-compliance with the final plans, Tenant must promptly correct the defect or non·compliance. non-compliance.

G. Completion:

(1) Tenant must substantially complete the construction of the improvements to the leased premises in accordance with this addendum on or before . Except as provided in this paragraph, the failure to complete construction of the improvements by the date specified does not relieve Tenant of Tenant's obligations to pay rent or satisfy other terms and conditions of the lease. The time by which Tenant must complete construction may be extended only if: (a) Landlord causes the delay; (b) Landlord delays in granting any applicable license under Paragraph A(2); or (c) a construction delay is caused by strike, lock-out, shortage of material, governmental restriction, riot, flood, or a cause outside Tenant's control. Any extension under this paragraph may be exercised by Tenant only if Tenant promptly notifies Landlord in writing of the extension after Tenant knows or has reason to know of any applicable delay which is cause for an extension. Any extension under this paragraph may not exceed the lesser of: the number of days of the delay caused by the specified cause for the delay or days. If Paragraph A(2) applies and a delay authorized by this Paragraph applies, the Commencement Date and Expiration Date of the lease shall likewise be extended along with an appropriate adjustment in the rent due dates. If a delay is caused by Landlord and the delay exceeds the time for which an extension is permitted under this paragraph, Tenant may exercise its remedies under the default provision of the lea~,

(TAR-2112J (TAR""2) 5-26-06 Inffialed Tenant~ 'o"'.'ed "ddentification ro, Ideo'mcatiao by Teo.ot-¥_ _ ,. and l L a annd dlo or@@.._ ,___p pa g e2of4 age2of4

AR 000061 Leasehold leasehold Construction Addendum concerning __ conceming _ _ __ ____ ____ ____ ___________ ____ ____ ____ ____ _ _ ___

accofda~c~ with the (2) Construction is complete when all the improvements are constructed in accordance t~e final plans supervIsing architect; and Tenant provides Landlord with: (a) a final certificate executed by the supervising archItect; and (b) if required by a governmental body, a certificate of occupancy permitting Tenant to occupy the leased premises for the purposes set forth in the lease. (3) (3) ",,--=---,.--;-c-;:-:---,-,===::-:===-====:===:;-;;;::::;:< is the supervising is the architect. supervising architect. The certificate of the supervising architect is conclusive in any dispute involving the construction performed or required to be performed under this addendum.

H. No Liens: (1) Tenant guarantees that Tenant will pay all costs of any liability related to the construction of the improvements described in this addendum and further guarantees the lien-free completion of the improvements against the leased premises and Property. Tenant may not create or place any lien or encumbrance, of any kind, upon the leased premises or Property that encumbers Landlord's interest in the leased premises or Property.

(2) Before Landlord reimburses Tenant for the cost of the improvements, Tenant must deliver to Landlord a waiver of liens in recordable form acceptable to Landlord from each contractor, subcontractor, and materialman, The waivers must specify that: (a) the contractor, subcontractor, Of materialman. or materialman waive any and all claims against Landlord and waive any and all lien rights against Landlord's interest in the leased premises and Property; and (b) the contractor or subcontractor agree to hold Landlord harmless all claims arising from or in connection with its work or materials. from any and aI/

(3) If any lien is filed or asserted against any portion of the leased premises or Property as a result of the acts of Tenant or Tenant's contractors, subcontractors, Of or materialmen, Tenant must remove any such lien or lien claim within 20 days after receipt of notice from Landlord.

damages, costs, (4) Tenant will indemnify and keep Landlord harmless from all damages. costs. expenses, and attorney's fees that may arise from any lien or claim that may be filed or threatened as a result of the improvements to be constructed under this addendum.

I. Bonds: Before commencement of any construction, Tenant and Tenant's contractors, at no cost to Landlord, must post the following bonds in favor of the Landlord in the amounts specified: ~ ____ ____ ___

J. Insurance:

(1) Before any construction commences, Tenant must deliver to Landlord evidence that the insurance required by Paragraph 8A of ofthe the lease will be in effect not later than the day construction begins.

insurance, from (2) Before any construction commences, Tenant must deliver to Landlord certificates of insurance insurers acceptable to Landlord, evidencing that any contractor maintains insurance to protect Landlord, Tenant, and the contractor from:

o (a) workman compensation claims and other employee benefit acts in an amount not less than $ per occurrence;

o (b) claims for damages from bodily injury or death to employees and others in an amount not less than $ per person and $ per occurrence; and o (c) property damage in an amount not less than $ $,_ _ _ _ _ _ _ _ _ _ _ per occurrence.

(TAR-2112) (T AR-2112) 5-26..Q6 5-26-06 Tenant~ Initialed for Identification by Tenant4.._ _ ,• aod and Umd~ LandlO"'~' __ Page 3 of4

AR 000062 Leasehold Construction Addendum concerning _ _ ____ ____ ____ ____ ____ _ ________ ____ ____ ____ ____ _ __

(3) The insurance required by this Paragraph J must cover any and all claims that may arise out of or as a result of the operations of the contractor or the contractor's subcontracor(s).

(4) The coverage required by this Paragraph J must be maintained by Tenant or Tenant's contractors, at Tenant's or the contractors' sole expense, during all times of any construction period. If Tenant fails or if any of Tenant's contractors fail to maintain the required insurance in full force and effect at all required times, Landlord may: (a) purchase such insurance on behalf of Tenant or the contractor(s) and Tenant must immediately reimburse Landlord for such expense; or (b) exercise Landlord's remedies for Tenant's default under the lease.

K. Tenant's Assumption of Liability; K Liability: Tenant must promptly pay and discharge all costs, expenses, claims for damages, liens, lien claims, and any other liabilities which may arise from or in connection with the construction of the improvements described in this addendum. Tenant agrees to hold Landlord harmless from all costs, expenses, damages, liens, lien claims, and any other liabilities, which may arise from or in connection with the construction of the improvements described in this addendum.

L. Special Provisions: (If applicable, include any business details, factual statements, or any requirements the parties must satisfy [for example, Landlord's obligation to complete shell construction by a certain date dale or by the time the license under Paragraph A(2) commences].)

NISAL CORPORATION PRQVIDIAN HOLDINGS, INC. PROVIDIAN Tenant 2 landlordL / ~ JI #J / __.~2 By-_~_~ _¥_~ d~~~ -;(/ ...,.,< ; __-· _ _ _=_+_.::_-..r..t.t1BY ;Z/z-£/07 Date ~ Date

Tenant Landlord landlord By By,_______________________________ ____________________________ _ By _____________________________ ~~ By,________________________ ~---- ~~-

Date Date (TAR-2112) 5-26-06 Page 4 of4 of 4

AR 000063 TEXAS ASSOCIATION Of ~ ~~ REALTORS" OF REALTORS* COMMERCIAL LEASE PARKING ADDENDUM USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS "'EMBERS OFTHE ASSOCIATION OF REALTORS®IS TEXilS ASSOCIATIONOF REALTORSe IS NOT AUTHORIZED. AUTHORIZEO.

ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING THE LEASED PREMISES AT 2918 San Jacinto Street, HOllston, Houston, Texas Suite 200

A A. Parking Type: Tvpe:

c:J (1) Common Parking: Tenant and Tenant's employees may park no more than _____ o _ _ _ _ vehicles on the Property in the common parking areas located on the Property.

c:J (2) Restricted Common Parking for Tenants: Tenant and Tenant's employees may park no more than. Ll ____ vehicles on the Property in the areas restricted for use by tenants of the Property.

c:J (3) Assigned Parking: Tenant's assigned parking areas are identified as follows: o oo (a) _________________________________________________________ (a) ____________________________________________________ __

oc:J (b) as shown on the attached Exhibit _ __-_ ____ ____ _______ _ __

B. In addition to any other rent, Tenant will pay, on or before the first day of each month during the term of the above~referenced lease, $ NONE above-referenced NONE as rent for the parking areas.

C. Tenant may not assign, sublet, or trade any parking space or parking area.

D. Tenant may not use any parking spaces or areas on the Property to store any vehicle, boats, trailers, or any other personal property.

E. Tenant's guests, patrons, or invitees may park only in those areas designated by Landlord for Tenant's patrons, or invitees. guests, patrons.

F. Landlord may, but is not obligated to, institute controlled-access controlfed¥access systems to the parking areas, including but not limited to systems such as vehicle identification stickers, license numbers, or controlled~access control/ed-access devices. At the time the [ease lease ends, Tenant must return all access devices to Landlord and pay the amounts in (2) and (3) below if Tenant fails to return an access device. If Landlord issues controlled- access devices to Tenant, Tenant will: (1) promptly report any lost device to landlord; Landlord; (2) reimburse Landlord landlord its cost to replace the lost access device; and (3) pay Landlord a service fee of $ for each lost access device.

(TAR-2107) 5-26-06 for ldent_ Initialed to.- Tenant~, ~ byTenant~ Identification by La_@ ___ ___ . and landlOCd@ ____ Page 1 of2 of 2

AR 000064 __ Parking Addendum conceming _ __ ____ _______ ____ ____ _ ____ ____ _ ______ ____ ___ __ ____ ____ _ ____ __

G. If Tenant fails to timely pay the rent stated in Paragraph B, Landlord may: (i) exercise Landlord's remedies under the default provisions of the lease; or (ii)Oi) terminate Tenant's access to the restricted or assigned parking areas by providing Tenant with not less than 5 days written notice of Landlord's intent to terminate Tenant's access. If Landlord terminates Tenant's access to the parking areas under this paragraph. paragraph, the parking areas will be deemed to be released by Tenant for all purposes and Landlord may assign or lease the parking areas to others.

H. Special Provisions: 1. first~come fi~st-serve Parking is currently on a first-come first-serve basis.

2. Employees of Landlord and Tenant are requested to park in the employee parking lot across Anita street from the building.

3. Landlord reserves the right to establish parking rules to accommodate I,andlord Landlord and Tenant and their customers and guests if the current first-come first-serve method is not working as deemed by Landlord.

NISALt;RPORAT~N NISAL ££)RPORAT~ Tenant .~....-?_L_.-..:-. / PROVIDIAN #. i BOLDINGS, INC. PROVIDIAN. HOLDINGS, .z ___-.:::..:d.~~e::6_.)i'd~:ndIOrdLdi~ ~6d:ay ~ ij~ _/ l ,,,dlo", INC .

Lt£v7!d<.~ ~ By By_ _//_ _ Dal4 Oat' 'f Date '2/ Z6/£/J L/Z6/Df Tenant landlord Landlord By____________________________________ By By__________________________________ _ _ _ _ _ _ _ _ _ _ _ _ _ _~~ _ By_ _ _ _ _ _ _ _ _ _ _ _ _ _~_ Date Date

(TAR-21 07) 5-26-06 (TAR-2107) Page 2of2 2 of2

AR 000065 TEXAS ASSOCIATION REALTORS' ~~ AsSOCIATION OF REALTORS" COMMERCIAL LANDLORD'S RULES AND REGULATIONS M~MB€RSOF USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORSe REJlLTORS® IS NOT AIJlHORIZED. AUTHORIZEO. err."". OT."" ......... _ _ til AssocIatIOn REALTORS&>, inc. of REALTORS®, 2GOII lAC. 200G

REGARDING THE COMMERCIAL LEASE CONCERNING THE LEASED PREMISES AT _ _ _ _ _ ___ 2918 San Jacinto Street. Houston, Texas, Texas. Suite 200

NOTICE: These rules and regulations are adopted to maintain and enhance the safety and appearance of the Property. From time to time Landlord, at its discretion, may amend these rules and regulations for the purposes for which they were adopted. Under the above-referenced above.-referenced lease, Tenant agrees to comply with these rules and regulations as they may be amended. Exceptions or waivers must be authorized by Landlord in writing. "Property" means the building or complex in which the leased premises are located, inclusive of any common areas, drives, parking areas, and walks.

A. Goods, merchandise, equipment, or any personal property may not be stored on the Property, except for inventory within the leased premises necessary for Tenanfs Tenant's normal business operations.

B. 8. Food is not permitted on the Property, except as inventory for sale and for a small amount of food for Tenant's personal consumption.

c. Other than those provided by Landlord or specifically authorized by Landlord, no vending machines are C. permitted on the Property.

D. The Property may not be used for lodging or sleeping quarters in any manner.

E. Unless authorized by law or the lease, no animals may be brought or kept on the Property.

F. No obstruction or interference that impedes use of the common areas, walks, drives, loading areas, parking areas, corridors, hallways, vestibules, and stairs is permitted on the Property.

G. Persons parking on the Property must comply with all posted signs and directions regulating the parking areas.

H. No flammable, toxic, noxious, or hazardous materials may be kept on'the on the Property except for over-the- counter cleaning materials kept in enclosed storage closets or cabinets.

I. Tenants moving in or out of the Property must use only the service entrances and service elevators during the move. All moves must be made at times that do not cause inconvenience in the normal use of the Property.

J. Deliveries and shipping of goods and merchandise in or out of the Property must be made only through the service entrances, service elevators, loading docks, or other deSignated designated shipping and receiving areas. Shipments and deliveries must be made at times that do not cause inconvenience to tenants or patrons on the Property.

K. Leased premises must be kept clean and free of debris. Trash must be deposited into appropriate receptacles.

(TAR-210B) 5-26-06 (TAR-2108) 5-26.06 Initialed for Identification by Tenant: K--. LardIard:Q__ B-_, and Landlord:(@?_ _ Page 1 of2

AR 000066 landlord's Rules and Regulations concerning _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

L. Repair requests must be submitted to Landlord in writing in compliance with the lease.

M. No modification to the Property and leased premises may be made unless authorized by Landlord, in writing, or permitted by the lease.

N. No illegal or offensive activity is permitted on the Property nor is any activity that constitutes a nuisance or interferes with the rights of other tenants.

O. Unless specifically authorized by Landlord, no solicitation or business operations are permitted in the common areas.

P. Other:

(TAR-2108) (TAR-21 08) 5-26-06 Initialed for Identification by Tenant ~ _ _•. and Landlo", "d L"dlo"" ~ __ Page 20f2 2 of 2

AR 000067 ~.., ~~ REALTORS" TEXAS ASSOCIATION OF REALTORS" ~ COMMERCIAL LEASE GUARANTY USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS® REAlTOR&!lO IS NOT AUTHORIZED. AUTl-f()RIZED. or•••• ItlTex n Association _ .. Of of REAl.TORs., Inc. R£ALTORS®, Inc. 2006 ZOO8

GUARANTY TO COMMERCIAL LEASE CONCERNING THE LEASED PREMISES AT _ _ _-;===_ _ _ __ -"2~9~1~8~S~a~n~J~a~c~i~n~t~o-"S~t~r~ee~t~,~H~o~u~s~t~o~n~,~T~e~x~a~s~.-"s~u~i~t~e~2~Q~Q"-__________________~~~bebNeen ~2~9~1~8~S~a~n~J2a~c~illn~tO~Set~r~e~e~t~,~H~o~u~s~t~o~nw,~T~e~x~a~s~,~Su~it~e~2~O~O~ ~--~betHeen _____________________________________________(Landlord) ~P~r~o~y~i~d~i~a~n~H~o~l~dAilln~g£s.!~In~c~. Proyidian Holdings « Inc. (Landlord) and and _ ____ ____ ____ _ ____ ____ __ _____ __ ____ ____ ___ ________ _______ _ (Tenant).

A. In consideration for Landlord leasing the leased premises to Tenant, the undersigned Guarantors guarantee Tenant's performance under the above-referenced lease.

B. If Tenant fails to timely make any payment under the lease, Guarantors will promptly make such payment to Landlord at the place of payment specified in the lease. Guarantor is also responsible for any property damage to the leased premises or Property (as defined in the lease) for which Tenant is responsible under the lease. If Tenant breaches the lease, Guarantor will: will; (i) cure the breach as may be required of Tenant by the lease; or (ii) compensate Landlord for Landlord's loss resulting from the breach.

amendment. C. Guarantors guarantee Tenant's obligations under the lease regardless of any modification, amendment, renewal, extension, or breach of the lease. Guarantors waive any rights to notices of acceptance, modification, amendment, extension, or breach of the lease. All Guarantors are jointly and severally liable for all provisions of this guaranty. Filing for bankruptcy by Tenant will not diminish Guarantors GUarantors obligations under this guaranty.

D. The laws of the State of Texas govern the interpretation, validity, performance, and enforcement of this guaranty. Any person who is a prevailing party in any legal proceeding brought under or related to this guaranty is entitled to recover attorney's fees from the nonprevailing party.

E. Guarantors authorize Landlord to obtain a copy of any consumer or credit report of Guarantors from any consumer reporting agency and to verify relevant information related to Guarantors' creditworthiness from other persons such as banks, creditors, employers, existing and previous landlords, and other persons. F. Special Provisions; Provisions:

Guarantor's Signature ~(¢-1p101 Date Guarantor's Signature Date

Brett L. Garner Guarantor's Name Printed Guarantor's Name Printed

Guarantor's Address Guarantor's Address

Phone SS#orTaxID# Phone SS#orTaxID# SS # or Tax 10 #

(TAR-2109) 5-26-06 Page 1 of 1

AR 000068 RIGHT OF FIRST REFUSAL TO PURCHASE ADDENDUM

A. Provided that both at the date of exercising the right of first refusal to purchase set out below and at the date of closing of the agreement of purchase and sale constituted by the exercise of soch such right, T eoant bas duly and Tenant punctually performed each and every of its obligations under· punctua1ly under the Lease and has not made an assignment for oot taken the fOT the benefit of creditors and bas not benefit of any statute in force for fur bankrupt or insolvent debtors and if a receiving order has bas not been made against the Tenant, and if no receiver or has taken control of the assets or business of the Tenant other similar person bas or a substantial thereo~ and if the Tenant sobstantial portion thereo( T enan! bas not assigned the lease or soblet sobstantial part of the sublet or parted or shared possession of all or any substantial tbe premises, Tenant shall have a right of first refusal to purchase the Building including the premises in accordance with the following procedure. If at any tenn or extended term of the lease Landlord receives a bona time during the term fide arm~s arm's length offer to purchase the Building (whether alone or together together- parking lot tract; but not the patking with the parlOng parlring lot tract alone), which Landlord is willing to accept ("Third Party Offer") then Landlord shall give Tenant ("Landlord'. Notice") of receipt of such written notice ("Landlord's soch Third Party Offer accompanied by a 1ruetrue copy of same. Tenant shall thereupon have the right either:

L to elect to purchase the Building (together with the patking parking lot tract if included in the Third Party Offer in addition to the Building) for the purchase price~ price, with the deposit and upon all of the exact other terms tenus and conditions contained in the Third Party Offer. Such right must be exercised by Tenant within ten (10) days after receipt from Landlord of Landlord's Notice and copyeopy of the Third Party Offer, by delivery to Landlord of written notice (the "First Right Acceptance Aceeptance Notice") electing to purchase the Building on the same such soch terms and conditions, together with a deposit in the amount set out in the Third Party Offer. If IfTenan! Tenant so elects to purchase the premises, such election shall constitute a binding agreement of purchase and sale between Landlord as vendor and Tenant as antomatically substituting purchaser automatically sobstinrting Tenant in place of the Third Party shaD be completed in Offeror and the transaction of purchase and sale shall conditions~ or accordance with the said terms and conditions;

2. to elect not to purchase the Building by not responding within ten (10) days of receipt of Landlord's Notice, in which event Tenant's rights to purchase expire and Landlord may proceed without Tenant under the tbe Third Party Offer.

B. Provided however, that this right of offirst first refusal to purchase shall not apply to parlOng lot tract by Landlord to any person, any sale of the Building and parking corporation or legal entity which is affiliated with, controlled by, or otherwise arm'. length with, Landlord, Khyati Undavia, her husband, oot at arm's not hnshand, children,

AR 000069 futhe<, mother, father. mothe.-, former spouse or any other family member, provided that any such purchaser sbaD shall be bound by the provisions of this right of first lim refusal in respect of any subsequent Third Party Offer received by it; and provided fiuther, that this right of first further. shall not apply to any deed in lieu of lim refusal sbaJJ foreclosw-e or any foreclosure proceedings foreclosure proceedinwt or trustees' deeds or other action by any creditor of Landlord; and provided fiuther further that, this right of first refusal shall not apply in the event that the owner of the Building or parking lot tract is acting pursuant court order or judgment_ pursuant: to a comt judgment. This right of first refusal to porcbase purchase sball shall not apply to the parking lot tract alone.

C. If Tenant fails to exercise the afuresaid aforesaid first right of refusal within the time and in the manner as set out above then Landlord shall be he entitled to accept accept: OtTer and complete the sale of the premises porsuant the Third Party 0Irer pursuant thereto, tbereto, provided that if such sale is not completed, Tenant's first right of refusal sball ifsuch shall continue to apply in respect of any subsequent Third Party Offer in to accordance with the preceding provisions of this right of first refusal refusal.

D. The right offirst refusal is a right of Tenant only during the time oftbe of the lease not in default, while oot default,. bankruptcy or receivership and is not severable :from from the lease and it is not assignable.

NISAL CORPORATION PROVIDIAN HOLDING, INC.

By:

AR 000070 . TEXAS ASSOCIATION OF ~~ 4~ ~. Of REALTORS' REALTORS£ .

COMMERCIAL LEASE M~M8ERS OF THE TEMS USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS REA~TORS® IS NOT AUTHORIZED TEXAS ASSOCIATION OF R.EALTORS® AUTHORIZED. ©Texa.s Ao3""iallon ©T""a. Association of REAL mRS®, Ine. 2006 REAl..TORS®,lnc.2006

No. Paragraph Description Pg. e!l No. Paragraph Description Pg. e!l 1. Parties 2 22. Holdover 10 2. Leased Premises 2 23. Landlord's Lien && Security Interest 10 3. Term 2 24. Assignment and Subletting Subletting 10 A. Term 25. Relocation 11 's. B. Delay of Occupancy 26. Subordination 11 4. Rent and Expenses 3 27, 27. Estoppel Certificates 11 A. Base Monthly Rent 28. Casualty Loss 11 8. B. First Full Month's Rent 29. Condemnation 12 C. Prorated Rent 30. Attorney's Fees 12 D. Additional Rent 31. Representations 12 E. Place of Payment 32. Brokers 12 F... Method of Payment F 33. Addenda 13 G. Late Charges 34. Notices 13 H. Returned Checks 35. Special Provisions 13 5. Security Deposit 4 36. Agreement of the Patties Patties 14 6. Taxes 4 7. UtiJities Utilities 4 8. Insurance 5 ADDENDA & a~~I~} & EXHIBITS {check all that aeel:tl 9. Use and Hours Hours 5 10. Legal Compliance 6 0Exhibit 11. Signs 6 0Exhibit. Exhibit 12. Access By Landlord 7 0Commercial Lease Addendum for Broker's Fee 13. Move-In Condition Move'-In 77 0CommerCial Lease Expense Commercial Exp'ense Reimbursement 14. Move-Out Condition 7 Addendum 15. Maintenance and Repairs 7 0 Commercial Lease Addendum for Extension A. Cleaning Option . B. Conditions Caused by a Party 0 Commercial Lease Addendum for Percentage C. Repair & & Maintenance Responsibility Rent D. Repair Persons 0 Commercial Lease Parking Addendum E. HVAC Service Contract 0 Commercia! Commercial Landlord's Rules and Regulations F. Common Areas 0 Commercial Lease Guaranty G. Notice of Repairs 0 Commercial Lease RigHt Right of First Refusal H. Failure to Repair Addendum 16. Alterations 9 0 Commercial Lease Addendum for Optional 17. Liens '9 9 Space 18. liability Liability 9 0 Commercial Leasehold Construction Addendum 19. Indemnity 9 0 20. Default 9 0 21. Abandonment, Interruption of Utilities, & Lockout Removal of Property & 10

(TAR-2101) (TAR-21 01) 5-26-06 Initialed for Identification by Tenant _ _ ., _ _ , and Landlord: _ _ ., _ _ Page 1 of 14

AR 000071 EXHIBIT B ~~ REALTORS" TEXAS ASSOCIATION OF REALTORS«· COMMERCIAL LEASE USE OF THIS FORM BY PERSONS WHO ARE MEMa~RS OF THE TEXAS ASSOCIATION OF REALTORS® AilE NOT MEMBERS REALTORS®IS AIJTHORIZED. IS NOT .AUTHORIZED. ©Texas ~&<>CI~llon of REAL ©T@.u Association REAl.TOR$II!I,lno. TORS®, Inc. 2006

1. PARTIES: The parties to this lease are:

Tenant Tenant: Sterling Practice Management LLC __________________________________________ ~ ____________;and ------------------------------------------; and Landlord: Providian Holdings, Holdings Inc. f

A. Landlord leases to Tenant the following described real property, known as the "·leased "leased premises," along with all its improvements (Check only one box):

aa ~ (1 ) Multiple-Tenant Property: Suite or Unit Number (1) ;-:-:::-;-:-,.,.---,c:c:-: containing approximately __ -:-_ _--:- square feet of rentable area in Memorial Compounding Pharmacy Bun di nq Pharrnacy13uilding (project name) at 2918 San Jacinto Streetstreet (address) in Houston 77024 (city), Hard s Harris (county), Texas, which is legally described on attached Exhibit A or as follows: The premises are being leased "AS IS". Tenant has inspected the premises and accepts the premises "AS IS".

o (2) Single-Tenant Property; Property: The real property at: at __________ _ _ _ _ _ _ _ _ _-'-__________ _ _ _ _ _-===~ _ _________ _____________________________________ (address) in ~ in (addres~

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (city), (city), __________.-., (county), (county), Texas, Texas, which which legally described on attached Exhibit __________________ is legaJly _ _ _ _ _ _ _ _ _ _ _ _ or Gis as follows: _____ _ _ _ __

B. If Paragraph 2A(1) applies: (1) "Property" means the building or complex in which the leased premises are located, inclusive of any common areas, drives, parking areas, and walks; and (2) the parties agree that the rentable area of the leased premises may not equal the actual or useable area within the leased premises and may include an allocation of common areas in the Property.

A. Term: The term of this lease is ___77___ _ _ months and __ 0__ days, commencing on: _.::0

_J_U_n_e_l_,'-2_0'-O'-9_ _ _ _ _ _ _ _ _ (Commencement Date) and ending on _J_u_n_e-.-.;.1_,_2_0_0_9

_J_a_n_u_a_r_y_3 __1_,_2_0_1_0_ _ _ _ _ _ _ (Expiration Date). _J_a_n_u_a_r-'y'-3_1-',_2_0_1_0

(TAR·2101) 5-26-06 (TAR-2101) Initialed for Identification by Tenant _ _, _ _ , and Landlord: _ _, _ _ Page 2 of 14

AR 000072 Lease conceming:. __ Commercial lease ____ conceming:.~____ ____ ____ _ _ _ __________ ____ ____ ___----,.... __ __ ____ __ _ _ _____

8. Delay B. Deiay of Occupancy: If Tenant is unable to occupy the leased premises on the Commencement Date because of construction on the leased premises to be completed by Landlord that is not substantially complete or a prior tenant's holding over of the leased premises, Landlord w'ill will not be liable to Tenant for such delay and this lease will remain enforceable. In the event of such a delay, the Commencement Date will automatically be extended to the date Tenant is able to occupy the Property and the Expiration Date will also be extended by a like number of days, so that the length of this lease remains unchanged. If Tenant is unable to occupy the leased premises after the 90th th day after the Commencement Date because of construction on the leased premises to be completed by Landlord that is not substantially complete or a prior tenant's holding over of the leased premises, Tenant may terminate this lease by giving written notice to Landlord before the leased premises become available to be occupied by Tenant and Landlord will refund to Tenant any amounts paid to Landlord by Tenant. This Paragraph 383B does not apply appiy to any delay c!eaning or repairs. deiay in occupancy caused by cleaning repairs,

C. Unless the parties agree otherwise, Tenant is responsible for obtaining a certificate of occupancy for the leased premises if required by a governmental body.

A. Base Monthly Rent: On or before the first day of each month during this lease, Tenant will pay Landlord base monthly rent as described on attached Exhibit > - - or as follows:

from l[ 2009 June 1, to June 30[ 30, 2009 $0.00 from l[ 2009 July: 1, July to January 31 31[! 2010 $$22 ,000 .OO/month [OOO.OO/month from to $ from to $ from to $ B. First Full Month's Rent: The first full base monthly rent is due on or before July 1, I, 2009

C. Prorated Rent: If the Commencement Date is on a day other than the first day of a month, Tenant will pay Landlord as prorated rent, an amount equal to the base monthly rent multiplied by the following fraction: the number of days from the Commencement Date to the first day of the following month divided by the number of days in the month in which this lease commences. The prorated rent is due on or before the Commencement Date.

D. Additional Rent: In addition to the base monthly rent and prorated rent, Tenant will pay Landlord all other amounts, as provided by the attached (Check aI/ all that apply.): o (1) Commercial Expense Reimbursement Addendum o (2) Commercial Percentage Rent Addendum o (3) Commercial Parking Addendum (4)~~~~~~~~~~~~~~~~~~~~~~~~~~~ o (4}~~--~--~~--~~--~~--~----~~--~~--------~ All amounts payable under the applicable addenda are deemed to be "rent" "rent"for for the purposes of this lease.

E. Place of Payment: Tenant will remit allaU amounts due Landlord under this lease to the following person at the place stated or to such other person or place as Landlord may later designate deSignate in writing:

Name: Providian Holdings, . Inc. Address: 2918 San Jacinto Street, Suite 100 Houston, Houston [ Texas 77004

F. Method of Payment: Payment Tenant must pay all rent timely without demand, deduction, or offset, except as permitted by law or this lease. If Tenant fails to timely pay any amounts due under this lease or if any check of Tenant is returned to Landlord by the institution on which it was drawn, Landlord after (TAR-2101 ) 5·26·06 (TAR·2101) 5-26-06 Initialed for Identification by Tenant-, Tenant _ _, _ _ , and landlord: Landlord: _ _,. _ _ Page 3 of 14

AR 000073 Commercial lease Lease conceming: _ _ ____ ____ _ ______ ____ ____ _ ____ ____ _ _ _ ____ ____ ____ __ __ __ __ _ _

providing written notice to Tenant may require Tenant to pay subsequent amounts arrtounts that become due under this lease in certified funds. This paragraph does not limit landlord Landlord from seeking other remedies under this lease for Tenant's failure to make timely payments with good funds.

Late Charges: If Landlord G. late landlord does not actually receive a rent payment at the designated place of payment within 5 days after the date it is due, Tenant will pay Landlord landlord a late charge equal to 5% of the amount due. In this paragraph, the mailbox is not the agent for receipt for Landlord. landlord. The late charge is a cost associated with the collection of rent and landlord's Landlord's acceptance of a late charge does not waive landlord's Landlord's right to exercise remedies under Paragraph 20.

H. Returned Checks: Tenant will pay $ 25.00 (not to exceed $25) for each check Tenant tenders to Landlord landlord which is returned by the institution on which it is drawn for any reason, plus any late charges Landlord receives payment. until landlord

5. SECURITY DEPOSIT: A. Upon execution of ofthis wilt pay $~ this lease, Tenant will $'---_ ____ ____ _ __ ____ __ to landlord __ 10 Landlord as a security deposit.

B. Landlord landlord may apply the security deposit to any amounts owed by Tenant under this lease. If landlord Landlord applies any part of the security deposit during any time this lease is in effect to amounts owed by Tenant, Tenant must, within 10 days after receipt of notice from landlord, Landlord, restore the security deposit to the amount stated.

c. Within 60 days after Tenant surrenders the leased premises and provides l~ndlord C. Landlord written notice of Tenant's forwarding address, Landlord landlord will refund the security deposit less any amounts applied toward amounts owed by Tenant or other charges authorized by this lease.

6, TAXES: Unless otherwise agreed by the parties, landlord 6. Landlord will pay all real property ad valorem taxes assessed against the leased premises.

7. UTILITIES: A. The party designated below will pay for the following utility charges to the leased premises and any connection charges for the utilities. (Check all that apply.) N/A Landlord landlord Tenant (1) Water 0 o 121 III 0 o (2) Sewer 0CJ lit III 0 o (3) Electric CJ 0 III QJ 0 o (4) Gas For HVAC only 0 CJ '[21 I.!I 0 o (5) Telephone 0CJ 0CJ at III q.nclud.:!-ng ~ommon (6) Trash, Cleaning (including if desired) common area CJ 0 o 0 at III (7) (7) Cable Cable ~f des~red) CJ 0 0 o III GI (8) (8) _ _ _ _ _ _ _ _ _ _ __ o0 o 0 o 0 (9) All other utilities o0 o 0 III GI

B. The party responsible for the charges under Paragraph 7A 7A will pay the charges directly to the utility service provider. The responsible party may select the utility service provider, except that if Tenant selects the provider, any access or alterations to the Property or leased premises necessary for the utifities may be made only with landlord's utilities Landlord's prior consent, which Landlord landlord will not unreasonably withhold. If Landlord landlord incurs any liability for utility or connection charges for which Tenant is responsible to pay and landlord Landlord pays such amount, Tenant will immediately upon written notice from Landlord reimburse landlord such amount. Landlord

(TAR-21 01) 5-26-06 (TAR-2101) Initialed for Identification by Tenant_ _ ,• _ _ , and Landlord: _ _,. _ _ of 14 Page 4 of14

AR 000074 Commercial Lease conceming: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

C. Notice: Tenant should determine if all necessary utilities are available to the leased premises C and are adequate for Tenant's intended use. O. D. After-Hours HVAC Charges: "HVAC services" mean heating, ventilating, and air conditioning of the leased premises. (Check one box only.)

1:81 (1) Landlord is obligated to provide the HVAC 1» HVAC services to the leased premises only during the Property's operating hours specified under Paragraph 9C.

I» (2) Landlord will provide the HVAC services to the leased premises during durIng the operating hours specified under Paragraph 9C for no additional charge and will, at Tenant's request, provide HVAC services to the leased premises during other hours for an additional charge of $ 20.00 per hour. Tenant will pay Landlord the charges under this paragraph immediately upon receipt of Landlord's invoice. Hourly charges are charged on a half-hour basis. Any partial hour will be rounded up to the next half hour. Tenant will comply with Landlord's procedures to make a request to provide the additional HVAC services under this paragraph.

o (3) Tenant will wilt pay for the HVAC services under this lease.

A. During all times this lease is in effect, Tenant must, at Tenant's expense, maintain in full force and effect from an insurer authorized to operate in Texas: $2 ,000,000.00 $2,000 1000.00 (1) public liabifity liability insurance in an amount not less than $1,000,000.00.6n $1,OOO,000.00.6n an oCcurrence basis naming Landlord as an additional insured; and (2) personal property damage insurance for Tenant's business operations and contents on the leased premises in an amount sufficient to replace such contents after a casualty loss.

B. Before the Commencement Date, Tenant must provide Landlord with a copy of insurance certificates evidencing the required coverage. If the insurance coverage is renewed or cMnges changes in any manner or days after the renewal or degree at any time this lease is in effect, Tenant must, not later than 10 daYs change, provide Landlord a copy of an insurance certificate evidencing the renewal or change.

C. If Tenant fails to maintain the required insurance in full force and effect at all ail times this lease is in effect, Landlord may: landlord the same coverage as the required insurance and (1) purchase insurance that will provide Landlord Tenant must immediately reimburse Landlord for such expense; or (2) exercise Landlord's remedies under Paragraph 20.

D. Unless the parties agree otherwise, Landlord will maintain in full force and effect insurance for: for; (1) fire and extended coverage in an amount to cover the reasonable replacement cost of the improvements of the Property; and (2) any public liability insurance in an amount that Landlord determines reasonable and appropriate.

E. If there is an increase in Landlord's insurance premiums for the leased premises or Property or its teased premises, or any improvements made by contents that is caused by Tenant, Tenant's use of the leased or for Tenant, Tenant will, for each year this lease is in effect, pay Landlord the increase immediately after Landlord notifies Tenant of the increase. Any charge to Tenant under this Paragraph BE 8E wilt will be equal to the actual amount of the increase in Landlord's landlord's insurance premium.

A. Tenant may use the leased premises for the following purpose and no other: general office off ice use

(TAR-21 01) 5-26-06 (TAR·2101) Initialed for Identification by Tenant: _ _ ., _ _ , and Landlord: _ _ ., _ _ Initraled Page 5 of 14

AR 000075 Commercial Lease conceming:. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _-<-_ _ _ _ _ _ _ __ Commerda! lease concerning:~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

B, Unless othePNise B. otherwise specified in this lease, Tenant will operate and conduct itsits, business in the leased premises during business hours that are typical of the industry in which Tenant represents it operates.

C. The Property maintains operating hours of (specify hours, days of week, and if inclusive or exclusive of weekends and holidays): 8;30am 8:30am - 7:00pm, 7 ;OOpm, Monday thru Friday exclusive of MemQrial Day, holidays which includes Memorial Day. Independence Day. pay. Labor Day.Day, Thanksgjvi Tbanksgjyjng ng Day. Christmas Day and New Year's Day. Also Saturday 8:30am Pay. 8:30am..,..2:00pm hol;i.days. 2;OOpm except holidays.

A. Tenant may not use or permit any part of the leased premises or the Property to :be 'be used for: (1) any activity which is a nuisance or is offensive, offenSive, noisy, or dangerous; (2) any activity that interferes with any other tenant's normal business operations or Landlord's landlord's management of the Property; (3) any activity that violates any applicable law, regulation, zoning ordinance, restrictive covenant, governmental order, owners' association rules, tenants' association rules, rul~s, Landlord's landlord's rules or regulations, or this lease; (4) any hazardous activity that would require any insurance premium on the Property or leased premises to increase or that would void any such insurance; (5) any activity that violates any applicable federal, state, or local law, including but not limited to those laws related to air quality, water quality, hazardous materials, wastewater, waste disposal, air emissions, or other environmental matters; (6) the permanent or temporary storage of any hazardous material; or (7) ____________________________________________________ __________________________________________ ~ _____________ ~

B. "Hazardous material" means any pollutant, toxic substance, hazardous waste, hazardous material, hazardous substance, solvent, or oil as defined by any federal, state, or loCal loca! environmental law, regulation, ordinance, or rule existing as of the date of this lease or later enacted.

C. Landlord landlord does not represent or warrant that the leased premises or Property conform to applicable restrictions, zoning ordinances, ordinances. setback lines, tines, parking requirements, impervious ground cover ratio requirements, and other matters that may relate to Tenant's intended use. Tenant must satisfy itself ~nvestigating all matters that the leased premises may be used as Tenant intends by independently investigating related to the use of the leased premises or Property. Tenant agrees that it is not relying on any warranty or representation made by Landlord, landlord, Landlord's landlord's agent. or any broker concerning the use of the leased premises or Property.

A. Tenant may not post or paint any signs at, on, or about the leased premises or Property without Landlord's landlord's written consent. Landlord landlord may remove any unauthorized sign, and aOd Tenant will promptly reimburse Landlord landlord for its cost to remove any unauthorized sign.

8. B. Any authorized sign must comply with all laws, restrictions, zoning ordinances, aI/laws, ordinancesj and any governmental landlord may temporarily remove any order relating to signs on the leased premises or Property. Landlord authorized sign to complete repairs or alterations to the leased premises or the Property.

C. By providing written notice to Tenant before this lease ends, Landlord landlord may require Tenant, upon move- out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all signs that were placed on the Property or leased premises by or at the request of Tenant. Any signs that Landlord become the property of the landlord does not require Tenant to remove and that are fixtures, becotne landlord and must be surrendered to Landlord Landlord landlord at the time this lease ends. (TAR·2101) 5-26·06 (TAR-2101) 5-26-06 Initialed for Identification by T Tenant _ _, ~_, enant:~~. _ _, and landlord' landlord: ~~. _ _, _ ~__ Page 6 of 14 Gof

AR 000076 Commercial lease Lease conceming: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~ _ _ _ _ _ _ _ _ __

12. ACCESS BY LANDLORD:

A. During Tenant's normal business hours Landlord may enter the leased prel'nises A premises for any reasonable purpose, including but not limited to purposes for repairs, maintenance, alterations, and showing the leased premises to prospective tenants or purchasers. Landlord may access the leased premises after Tenant's normal business hours if: (1) entry is made with Tenant's permission; or (2) entry is necessary to complete emergency repairs. Landlord will not unreasonably interfere with Tenant's business operations when accessing the leased premises.

8. B. During the last 90 days of this lease, Landlord may place a "For Lease" or similarly worded sign in the leased premises.

13. MOVE-IN MOVE.IN CONDITION: Tenant has inspected the leased premises and accepts it in its present (as-is) condition unless expressly noted otherwise in this lease. Landlord and any agent have made no express or implied warranties as to the condition or permitted use of the leased premises or Property.

14. MOVE-OUT CONDITION AND FORFEITURE OF TENANT"S TENANT'S PERSONAL PROPERTY: PROPE:RTY:

A. At the time this lease ends, Tenant will surrender the leased premises in the same condition as when received, except for normal wear and tear. Tenant will leave the leased premises in a clean condition free of all trash, debris, personal property, hazardous materials, and environmental contaminants.

8. B. If Tenant leaves any personal property in the leased premises after Tenant surrenders possession of the leased premises, Landlord may: (1) require Tenant, at Tenant's expense, to remove the personal property by providing written notice to Tenant; or (2) retain such personal property as forfeited property to Landlord.

C. "Surrender" means vacating the leased premises and returning all keys and access devices to Landlord. "Nonnal "Normal wear and tear" means deterioration that occurs without negligence, carelessness, accident, or abuse.

re~uire Tenant, upon move- D. By providing written notice to Tenant before this lease ends, Landlord may require out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all fixtures that were placed on the Property or leased premises by or at the request of Tenant. Any fixtures that Landlord does not require Tenant to remove become the property of the Landlord and must be surrendered to Landlord at the time this lease ends.

A. Cleaning: Tenant must keep the leased premises clean and sanitary and promptly dispose of all garbage in appropriate receptacles. CI 0 Landlord CI 0 Tenant will provide, at its expense, janitorial services to the leased premises that are customary and ordinary for the property type. Tenant will maintain any grease trap on the Property which Tenant uses, including but bot not limited to periodic emptying and cleaning, as well as making any modification to the grease trap that may be necessary to comoly; com DIy, with any aoolicable al2Dlicable law. Tenant $hall be respoI].sible respol)sible for all a1l cle

C. Repair and Maintenance Responsibility: Except as otherwise provided by this Paragraph 15, the party designated deSignated below, at its expense, is responsible to maintain and repair the following specified items in the leased premises (if any). The specified items must be maintained in clean and good operable condition. If a governmental regulation or order requires a modification to any of the specified items, the party designated to maintain the item must complete and pay the expense of the modification. The

(TAR-2101) 5-26-06 5-26-06 Initialed for Identification by Tenant _ _ , _ _ , and landlord: Landlord: _ _ ., _ _ Page 7 of 14

AR 000077 Commercial Lease concerning: _ _ ____ ____ ____ ____ _____________ ____ ____ ____ ____ __ _ _ _ __ __ ~--

specified items include and relate only to real property in the leased premises. Tenant r enant is responsible for the repair and maintenance of its personal property. (Check afl all that apply.)

Landlord Tenant (1) Foundation, exterior walts, walls, roof, and other structural components III (5) o (2) Glass and windows o Kl KI (3) Fire protection equipment and fire sprinkler systems o o (4) Exterior & overhead doors, including closure devices, molding, o o locks, and hardware (5) Grounds maintenance, including landscaping and irrigation o o systems (6) Interior doors, including closure devices, frames, molding, locks, o o and hardware (7) Parking areas and walks o o (8) Plumbing systems, drainage systems, electrical systems, and o o mechanical systems, except systems or items specifically designated othelWise otherwise (9) Ballast and lamp replacement o tJ o Xl XJ (10) Heating, Ventilation and Air Conditioning (HVAC) systems o Cl III o (11) Signs and lighting: (a) Pylon o o (b) Facia o o (c) Monument o o (d) Door/Suite o o (12) Extermination and pest control, excluding wood~destroyin9 wood-destroying insects o o (13) Fences and Gates o o (14) Storage yards and storage buildings o o (15) Wood-destroying insect treatment and repairs o o (16) Cranes and related systems o o (17) o o (18) o o (19) All other items and systems o o D. Repair Persons: Repairs must be completed by trained, qualified, and insured repair persons.

E. o is [J [J 0 is not required to maintain, at its expense, a regularly scheduled ce and selVice contract for the HVAC system. The maintenance and serviservic ust be purchased from a HVAC maintenance company that regularly provo contracts to similar properties. If Tenant fails to maintain a required HVA . nce and service contract in effect at aU nee ali times during this lease, Landlord and charge Tenant the expense of such a maintenance and service contract or

F. Common Areas: Landlord will maintain any common areas in the Property in a manner as Landlord determines to be in the best interest of the Property. Landlord will maintain any elevator and signs in the common area. Landlord may change the size, dimension, and location of any common areas, provided that such change does not materially impair Tenant's use and access to the leased premises. compliance with Landlord's rules and Tenant has the non-exclusive license to use the common areas in compliance restrictions. Tenant may not solicit any business in the common areas or interfere with any other person's right to use the common areas. This paragraph does not apply if Paragraph 2A(2) applies.

(TAR-2101) 5-26{J6 5-26-06 Tenant _ _ , ~_, Initialed for Identification by Tenant:~_. _ _ , and Landlord: _ _, _ ' _ ~_.~_ Page 8 of 14

AR 000078 _______________________________ Commercial lease conceming: _________________________________ __

G. Notice of Repairs: Tenant must promptly notify landlord Landlord of any item that is in need of repair and that is Landlord's landlord's responsibility to repair. All requests for repairs to Landlord must be be' in writing.

H. Failure to Repair: Landlord must make a repair for which Landlord is responsible within a reasonable period of time after Tenant provides Landlord written notice of the needed repair. If Tenant fails to repair or maintain an item for which Tenant is responsible within 10 days after Landlord provides Tenant written notice of the needed repair or maintenance, Landlord landlord may: (1) repair or maintain the item, without liability for any damage or loss to Tenant, and Tenant must immediately reimburse Landlord for the cost to repair or maintain; or (2) exercise Landlord's remedies under Paragraph 20.

ALTERATIONS; 16. ALTERATIONS:

A. Tenant may not alter, improve, or add to the Property or the leased premises without Landlord's written landlord will not unreasonably withhold consent for the Tenant t6 make reasonable non~ consent. Landlord non- structural alterations, modifications, or improvements to the leased premises.

B. Tenant may not alter any locks or any security devices on the Property or the leased premises without Landlord's consent. If Landlord authorizes the changing, changing. addition, or rekeying of any locks or other security devices, Tenant must immediately deliver the new keys and access devices to Landlord.

c. C. If a governmental order requires alteration or modlfication modification to the leased premises, the party obligated to maintain and repair the item to be modified or altered as designated in Paragraph 15 will, at its expense, modify or alter the item in compliance with the order and in compliance with Paragraphs 16A and 17. Tenant must obtain at its expense all permits required for any improvements.

D. Any alterations, improvements. improvements, fixtures or additions to the Property or leased premises installed by either party during the term of this lease will become Landlord's property and must be surrendered to Landlord at the time this lease ends, except for those fixtures Landlord requires reQ.uires Tenant to remove under Paragraph 11 or 14 or if the parties agree otherwise in writing.

17. LIENS: Tenant may not do anything thai that will cause the title of the Property or 01" leased premises to be encumbered in any way. If [fTenant Tenant causes a lien to be filed against the Property or leased premises, Tenant will within 20 days after receipt of Landlord's demand: (1) pay the lien and have the lien released of record; or (2) take action to discharge the lien. Tenant will provide Landlord a copy of any release Tenant obtains pursuant to this paragraph. paragraph . Jl.t all times . ~t . . . . 18. LlABILlTY;.tJQ ·!tle extent permitted by law. LlABILlTYi'!o··the·extenl' law, Landlord is IS NOT responsible to Tenant or Tenant's employees, employees. patrons, patrons. guests. or invitees for any damages, damages. injuries, injuries. or losses to person or property caused by: A. an actact, omission. omission, or neglect of: Tenant: Tenant; Tenant's agent; agent: Tenant's guest: Tenanrs Tenanfs employees: employees; Tenant's patrons; Tenant's invitees; or any other tenant on the Property; B. fire, fire. flood, flood. water leaks. ice, snow, snow. hail, winds, explosion, hail. winds. explosion. smoke, smoke. riot, riot. strike, interruption of utilities, utilities. theft, burglary, robbery, assault, assault. vandalism, other persons, environmental contaminants, contaminanfs, or other occurrences or casualty casualtv losses.

19. INDEMNITY: Each party will indemnify and hold the other Darty party harmless from any property damage, damage. personal injury, damages. cost of repairs or service to ttie injury. suits, actions, liabilities, damages, the leased premises or Property, or any other loss caused, negligently or otherwise, by that party or that party's employees, Property. patrons, guests. guests, or invitees.

20. DEFAULT:

A. If Landlord fails to comply with this lease within 30 days after Tenant notifies Landlord of Landlord's failure to comply, Landlord will be in default and Tenant may seek any remedy provided by law. If, however, Landlord's non-compliance reasonably requires more than 30 days td cure, Landlord will not be in default if the cure is commenced within the 30-day period and is diligently pursued.

(TAR-2101) 5-26-06 Initialed for Identification by Tenant: _ _ ,• - Tenant: __', and Landlord: _ _ , _ _ Page 9 of 14

AR 000079 Commercial Lease concerning: _ _ _ concerning:.~____ ____ ____ ____ _____________ ____ ____ _-,--_ _ __ __ _____ ____ _ ~

B. If Landlord does not actually receive at the place designated for payment any rent due under this lease within 5 days after it is due, Tenant will be in default. If Tenant fails to comply with this lease for any other reason within 10 days after Landlord notifies Tenant of its failure to comply, Tenant will be in default. default

C. If Tenant is in default, Landlord may: (i) terminate Tenant's right to occupy the leased premises by providing Tenant with at least 3 days written notice; and (ii) accelerate all rents which are payable during the remainder of this lease or any renewal period without notice Or dr demand. Landlord will attempt to mitigate any damage or loss caused by Tenant's breach by using commercially reasonable means. If Tenant is in default, Tenant wit1 will be liable for: (1 (1)) any lost rent; fe~s, advertising fees, and (2) Landlord's cost of reletting the leased premises, including brokerage fe.es, other fees necessary to relet the leased premises; (3) repairs to the leased premises for use beyond normal wear and tear; (4) aI/ all Landlord's costs associated with eviction of Tenant, such as attorney's fees, court costs, and prejudgment interest; . (5) all Landlord's costs associated with collection of rent such as collection fees, late charges, and returned check charges; (6) cost of removing any of Tenant's equipment or fixtures left on the leased premises or Property: Property; (7) cost to remove any trash, debris, personal property, hazardous materials, or environmental contaminants left by Tenant or Tenant's employees, patrons, guests, dr or invitees in the leased premises or Property; (9) cost to replace any unreturned keys or access devices to the leased premises, parking areas, or Property; (10) any other recovery to which Landlord may be entitled under this lease or under law_ law.

21. ABANDONMENT, INTERRUPTION OF UTILTIES, REMOVAL OF PROPERTY, AND LOCKOUT: Chapter 93 of the Texas Property Code governs the rights and obligations of the parties with regard to: (a) T~nant's property; and (d) abandonment of the leased premises; (b) interruption of utilities; (c) removal of Tenant's "lock-out" of Tenant.

22. HOLDOVER: If Tenant fails to vacate the leased premises at the time this lease ehds, ends, Tenant will become a tenant-at-will and must vacate the leased premises immediately upon receipt of demand from Landlord. Landlord No holding over by Tenant, with or without the consent of Landlord, will extend'this extend this lease. Tenant will indemnify Landlord and any prospective tenants for any and all aU damages caused by the holdover. Rent for any holdover period will be 2 times the base monthly rent plus any additional rent calculated on a daily basis and will be immediately due and payable daily without notice or demand.

23.l.ANDLORO'S 23. LANDLORD'S LIEN AND SECURITY INTEREST: To secure Tenant's perforrJlance performance under this lease, Tenant grants to Landlord a lien and security interest against all of Tenant's nonexempt personal property that is in the leased premises or Property. This lease is a security agreement for the purposes of the Uniform Commercial Code. Landlord may file a copy of this lease as a financing statement. sta·tement.

24. ASSIGNMENT AND SUBLETTING: Landlord may assign this lease to any subsequent st,lbsequent owner of the Property. Tenant may not assign this lease or sublet any part of the leased prerhises prernises without Landlord's written consent. An assignment of this lease or subletting of the leased premises without Landlord's written consent is voidable by Landlord. If Tenant assigns this lease or sublets any part of the leased premises, will remain liable for aI/ Tenant wiU all of Tenant's obligations under this lease regardless if the assignment or sublease is made with or without the consent of Landlord Tenant may not sublease or assign this. this Landlorawh1ch'consent may be subject to terms and lease without the consent of Landlorawh1cn'consent conditions imposed· by Lqndlord condition~ imposed- L~ndlord regarding any such sublease or assignment and the payment ot of rent ther~under. ther~uncter.

(TAR-2101) 5-26-06 Initialed for Identification Identificalion by Tenant _ _ , _ _, and Landlord: T enant:_~, Land!ord: _ _ ,. _ _~_ Page 10 of 14

AR 000080 ~I~~----------------------------------------------------------- ~I~~------------------------------------------------------- 25. RELOCATION: RELOCAnoN:

to relocate to another location in the Property, provided that the other location is equal in rger than the leased premises then occupied by Tenant and contains similar mprovements. improvements. landlord will pay Tenant's reasonable out-of-pocket moving e Landklrd expen ving to the other location. kJcation. "Moving expenses" reasonabte expenses paya expenses'" means reasonable movers, ssionaJ movers, utility companies companes for connection and disconnection fees, wiring co tor connecting and discOnnecting Tenant's office .- for equipment required by the re . ,• nd printing companies for reprinting Tenant's stationary and business cards. A . provision of this lease that is Tenant will not change or affect any other proVision then in JOg log rent and reimbursement amounts, except that the desdiption descOption of the suite su;te or unit \ ' m-8&~~mm~~am~~

>Oil B. Landlord may not require Tenant to relocate to another location in the Property without Tenant's prior >til consent consent.

lION: 26. SUBORDINAnoN:

A This lease and Tenant's leasehold JeasehoJd interest are and will be subject, subordinate, and inreriorto: inferior to: (1) any lien, lien. encumbrance, or ground lease now or hereafter placed on the leased premises or the thai landlord Property that Landlord authorizes; authorizes: (2) al advances made under any such lien, )ten, encumbrance, or ground lease; (3) the interest payable on any such fien lien or Of encumbrance; (4) any and all renewals and extensions of any such lien, encumbrance, or ground lease; Jease; Property; and (5) any restrictive covenant affecting the leased premises or the Properly; (6) the rights of any owners' association affecting the leased premises or Property.

8_ Tenant must, on demand, execute a subordination, attornment, and non-di$turbance 8. non--diSturbance agreement that Landlord may request that Tenant execute, provided that such agreement is made on the condition that th~ lease and Tenant's rights under this 'ease this lease are recognized by the lien-holOOr. lien-hokler.

27. ESTOPPEL CERTIFICATES: Within 10 days after receipt of a written request from enant w~1 Tenant 1lom Landlord, T delrver to landlord execute and deliver Landlord an estoppel certificate that identifies the terms teons and conditions of this lease.

28. CASUALlY CASUALTV lOSS:

Landlord of any casualty A Tenant must immediatety notify landlord casuaky loss k>ss in the leased premises_ Within 20 days 5eased premises. after receipt of TefI8nfs toss, Landlord Tenant's notice of a casualty loss, landlord wit will notify Tenantil ~ased premises are Tenant if the leased less unusabte, on a per square foot basis, and if landlord can substantially Jess than or more than 50% unusable, substantialfy restore the leased premises within 120 days after Tenant notifies landlord Landlord of the casualty Joss. k>ss.

B. If the leased premises are less than 50% unusable and Landlord can substantially restore the leased premises within 120 days after Tenant notifies landlord of the casualty, LandkKti will restore the leased casuatty, Landlord teased premises to substantiaRy substantially the same condition as before the casuafty. casualty. If ff landlord faits subslantialty fails to substantialty restore within the time required, Tenant may terminate this lease.

C. If the leased premises are more than 50% unusable and Landlord landlord can substantialty restore the leased premises within 120 days after Tenant notifies landlord Landlord of the casualty, casuaHy, landlord may: (1) terminate tease; or (2) restore the leased premises to substantialty this lease; substantially the same condition as before the casualty. Landlord chooses to restore and does not If landlord nol substantially subsiantiaRy restore the leased premises premiseS within the time lime required, Tenant may terminate this lease.

Landlon;l notifies Tenanlthat D. If landlord Landlord cannot substantially restore the leased premises wiIlin Tenant that landlord within 120 days after Tenant notifies landlord casually toss, Landtord of the casualty not to restore and loss, landlord may: (1) choose notto tease; or (2) choose to restore, notify Tenant of the estimated time to restore, and give terminate this lease; Tenant the option to terminate this lease by notifying Landlord landlord within 10 dayS. (TAR-21 01 ) 5-26-06 5-26--06 ,----, Initialed for Identification b Tenant----> kJentification by Tenant _ _, and landk:m:J' lancIord:. - _-_-, _ ' -_ - Page 11 of 14

AR 000081 Commercial Lease concerning:: concerning. _ _ _ _ _ ____ ____ ____ ____ ____ ____ ____ ____ ____ _ ---'__ _ _ _ __________ __

E. If this lease does not terminate because of a casualty loss, rent will be reduced from the date Tenant notifies Landlord subst~ntially restored by an landlord of the casualty loss to the date the leased premises are substantially amount proportionate to the extent the leased premises are unusable.

29. CONDEMNATION: If after a condemnation or purchase in lieu of condemnation the leased premises are totally unusable for the purposes stated in this lease, this lease tease will terminate. If after a condemnation or purchase in lieu of condemnation the leased premises or Property are partially unusable for the purposes of this lease, this lease will continue and rent will be reduced in an amount proportionate to the extent the leased premises are unusable. Any condemnation award or proceeds in lieu of condemnation are the Landlord and Tenant has no claim to such proceeds or award. Tenant n'lay property of landlord rriay seek compensation from the condemning authority for its moving expenses and damages to Tenant's personal property.

30. ATTORNEY'S FEES: Any person who is a prevailing party in any legal proceeding brought under or related to the transaction described in this lease is entitled to recover prejudgment interest, reasonable attorney's fees, and all other costs of litigation from the non nonprevailing prevailing party.

A. Tenant's statements in this lease and any application for rental are material representations relied upon Landlord. Each party signing this lease represents that he or she is of legal age to enter into a by landlord. binding contract and is authorized to sign the lease. If Tenant makes any misrepresentation in this lease or in any application for rental, Tenant is in default.

B. Landlord is not aware of any material defect on the Property that would affect the health and safety of an ordinary person or any environmental hazard on or affecting the Property that would affect the health or safety of an ordinary person, except: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

C Each party and each signatory to this lease C. tease represents that: (1) it is not a perso·n person named as a Specially Designated National and Blocked Person as defined in Presidential Executive Order 13224; (2) it is not acting, indirectly, for or on behalf of a Specially acting. directly or indirectly. Specia1!y Designated and Blocked Person; and (3) is not arranging or facilitating this lease or any transaction related to this lease for' for a Specially Designated and Blocked Person. Any party or any signatory to this lease who is a Specially Designated and Blocked person will indemnify and hold harmless any other person who relies on this representation and who suffers any claim, damage, loss, liability or expense as a result of this representation.

A A. The brokers to this lease are: NONE

Cooperating Broker License No. Principal Broker License No. No

Phone Fax Phone Fax

E-mail E-mail

Cooperating Broker represents Tenant. Principal Broker: (Check only one box) o represents Landlord landlord only. o represents Tenant only. o is an intermediary between Landlord and Tenant. (TAR-2101) 5-26-06 Initialed for Identification by Tenant Tenant: _ _ , _ _ ., and landlord: Landlord: _ _ ,_~ , __ Page 12 of 14

AR 000082 Commercial Lease concerning: _ _ _ _ _ _ _ _ Commerdallease ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ _____

B_ B. Fees: oD (1) Principal Broker's fee will be paid according to: (Check only one box). o (a) a separate written commission agreement between Principal Broker and: o Landlord D0 TTenant. [J enan!. o (b) the attached Addendum for Broker's Fee. D

D (2) Cooperating Broker's Broker'S fee will be paid according to: (Check only one box). D (a) a separate written commission agreement between Cooperating Broker and: [) o Principal Broker 0 Landlord 0 Tenant. o (b) the attached Addendum for Broker's Fee. 33. ADDENDA: Incorporated into this lease are the addenda, exhibits and other information marked in the Addenda and Exhibit section of the Table of Contents. If landlord's Landlord's Rules and Regulations are made part discretion, of this lease, Tenant agrees to comply with the Rules and Regulations as Landlord may, at its discretion. amend from time to time.

34. NOTICES: All notices under this lease must be in writing and are effective when hand-delivered, sent by mail, or sent by facsimile transmission to:

Tenant at the leased premises, to: and a copy to: Sterling Practice Management LLC LLC Address: 5718 Bellaire Blvd., Houston, Texas 77081 Phone: Fax: --,,-_ _ _ _ _.....:.-_ _ _ _ _ _ __ Phone: Fax: =c:-;-::=---------- f.3I III Tenant also consents to receive notices by e-mail at:_b~g'-a_r_n_e_r_5_@_a_o_l_._c_o_m at:"b~g~a~r~n~e~r~5~@~a~o""'~.~c~om"'- ____________ ___"__ _ _ _ _ _ _ ___

Landlord at:Providian Holdings Holdings, Inc. I

100 r Houston, . Texas 77004 Address: 2918 San Jacinto Street Suite lOa, II

Phone: 713 523-7847 Fax: andacopyto: ______________________________________ ___________ -----------~------------ -------------------- ~

andaCOpYto:~~""'===========================;================================= Address: ______________________________ ____________ Phone: ~ddress: Fax: ~

landlord also conseccn~ls~l~o,..,.re~c~e~iv~e::-:n~o~li~c~e~s~b~y-e~-~m~a.",iI~a~t-;::k'h Landlord also ail I]l consents to receive notices bye-mail at: khyat~-' ya ti n""e·t----- '--;;u~n~d~a~v"i~a"@"5~b~c~gtl~o~b~a;c,r. -u-n-d-:;-a-v-~.,...·a-C@r.I""s='Lb c':"'"g-7"'l'o='Lb a--l;--.n--e- :::-i:"t------

35. SPECIAL PROVISIONS: A. Landlord shall not be obligated to install any facilities at the Property or in A_ premises~ includinq any ADA SAmerican the premises,. Di$abilities) ,or related facilities (American With Disabilities) Iederal, seate requ~red by ~ederal, st:ate and city regulatlons or ordinances_ c~ty laws, regulations ordl.nances. B. Tenant will turn off the liqhts in the premises and lock the doors to the building B_ pre~l.ses are vacated wt.en prem~ses w~en vacat:ed each eacfi evenlng. evenlng.... . C. Landlord shall have access at all times to the utility closet c. close·t in the premises. but shall not be obligated to perform any cleaning for Tenant in D. Landlord may hut common area, interior or exterior of the building. the premises, cornmon

(TAR-2101) 5-26-06 Initialed for Identification by Tenant_ _ ,• _ _ , and Landlord' Landlord: _ _ , _ _ > Page 13 of 14

AR 000083 Commercial Lease conceming: _ ____ ____ _ ____ ____ _____ ____ ____ _ ____ ____ ____ ____ ____ _ ____ ____ _____

A. Entire Agreement: Agreement This lease contains the entire agreement between Landlord and Tenant and may not be changed except by written agreement.

B. Binding Effect: This lease is binding upon and inures to the benefit of the parties and their respective S. heirs, executors, administrators, successors, and permitted assigns.

C. Joint and Several: All Tenants are jointly and severally liable for all provision$ provisions of this lease. Any act or notice to, or refund to, or signature of, anyone or more of the Tenants regarding any term of this lease, aU Tenants. its renewal, or its termination is binding on all

D. Controlling Law: The laws of the State of Texas govern the interpretation, performance, and enforcement of this lease.

E. Severable Clauses: If any clause in this lease is found invalid or unenforceable by a court of law, the remainder of this lease will not be affected and all other provisions of this lease will remain valid and enforceable.

non~enforcement of acceleration, contractual or statutory lien, F. Waiver: Landlord's delay, waiver, or non-enforcement rental due date, or any other right will not be deemed a waiver of any other or subsequent breach by Tenant or any other term in this lease.

G. Quiet Enjoyment: Provided that Tenant is not in default of this lease, Landlord covenants that Tenant will enjoy possession and use of the leased premises free from material interference.

H. Force Majeure: If Landlord's performance of a term in this lease is delayed by strike, lock-out, shortage of material, governmental restriction, riot, flood, or any cause outside Landlord's control, the time for of Landlord's performance will be abated until after the delay.

I.\. Time: Time is of the essence. The parties require strict compliance with the times for performance.

studies, Brokers are not qualified to render legal advice, property inspections, surveys, engineering stUdies, environmental assessments, tax advice, or compliance inspections. The parti~s should seek experts to render such services. READ THIS LEASE CAREFULLY. If you do not understand the effect of this Lease, consult your attorney BEFORE signing.

S'l'ERLING s'r-ERLING PRACTICE MANAGEMENT LLC PROVIDIAN HOLDINGS, INC. Tenant Landlord landlord By By Date Date

Printed Name Bxett Garner BX'ett Printed Name Undavia Khyati Und~via Title Title

Tenant Tenant ~L'::""d"lo="';---------~--------- Landlord By_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ By ,,= Date By______________-------_~~ By ------------------O"'''',.-e Date Date

Printed Name William Hicks Printed Name, Name_ _ _ _ _ _->-_ _ __ __ ____ ____ _____ Title_ __ ____ __ _ ____ _____ ____ __ __ ___ ____ ___ _ Title_ _ _ _ _ _ _ _ _.:.-_ _ _ _ _ _ _ _ _ __

(TAR-2101) (TAR-21 01) 5-26-06 Page 14 of 14

AR 000084 Exhibit A

identified by and The contiguous vacant space on the ground floor of the building, identi"fied agreed to between Landlord and Tenant.

AR 000085 MUTUAL RELEASE

THE STATE OF TEXAS

. COUNTY OF HARRIS

WHEREAS, certain disputes, claims and causes of action existed by and between

STERLING PRACTICE MANAGEMENT, LLC, its officers, directors, shareholders, partners,

attorneys (hereinafter STERLING) and successors, agents, assigns, employees, servants and

PROVIDIAN HOLDINGS, INC., its officers, directors, shareholders, partners, successors, agents,

assigns, heirs, employees, servants and attorneys (hereinafter PROVIDrAN), PROVIDlAN), arising from a

commercial lease; and

WHEREAS, certain disputes, claims and causes of action existed by and between

NISAL CORPORATION, its officers, directors, shareholders, partners, successors, agents,

assigns, employees, servants and attorneys (hereinafter NlSAL) NISAL) and PROVIDIAN HOLDINGS,

INC., its officers, directors, shareholders, partners, successors, agents, assigns, heirs, employees,

servants and attomeys attorneys (hereinafter PROVIDIAN), arising from a commercial lease; and

WHEREAS, STERLING and NISAL filed suit against PROVIDIAN, No. 1036848,

County Civil Court at Law No.4, Harris County, Texas; and

WHEREAS, the parties desire to compromise, settle and provide for the full and final

tenmnation termination of all of the said claims, demands, causes of action and disputes between them arising

out of or related to such claims which either party may now have or have had against each other, all

without admitting any of the allegations set forth;

NOW, THEREFORE, for and in consideration of a check written by PROVlDIAN PROVIDIAN to

NISAL and Phillip Brantley and Associates, PC in the amount of STERLING AND NlSAL $7600.00, the of$7600.00,

mutual releases contained herein, and other good and valuable consideration, the receipt and

AR 000086 EXHIBIT C sufficiency ofwbich of which is hereby acknowledged, STERLING AND NISAL, their officers, directors,

shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys

hereby RELEASE, ACQUIT and FOREVER DISCHARGE PROVIDIAN, its officers,

directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and

attorneys from any and all liabilities, claims, demands, causes of action, judgments, liens,

liabilities or potential claims or causes of action which STERLING AND NISAL have ever had or

could have had, whether now known or unknown, which have arisen or may arise from the

beginning of time to the date of this release, including, without limitation;

NOW, THEREFORE, for and in consideration of the acceptance of the aforesaid check

written by PROVIDIAN to STERLING AND NISAL and Phillip Brantley and Associates, PC in

the amount of $7600.00, the mutual releases contained herein, and other good and valuable

consideration, the receipt and sufficiency of which is hereby acknowledged, PROVIDIAN, PROVIDlAN, its

officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs

and attorneys hereby RELEASE, ACQUIT and FOREVER DISCHARGE STERLING AND

NISAL, their officers, directors, shareholders, successors, agents, assigns, employees, servants,

partners, heirs and attorneys from any and all liabilities, claims, demands, causes of action,

judgments, liens, liabilities or potential claims or causes of action which PROVIDAN has ever had

or could have had, whether now known or unknown, which have arisen or may arise from the

beginning of time to the date of this release, including, without limitation.

Upon signature of all parties, STERLING AND NISAL shall file a nonsuit with prejudice.

The parties hereto represent and warrant that the persons executing this Mutual Release on

their behalf as shown on this instrument is authorized to bind same.

AR 000087 It is understood and agreed that this is a final fmal Mutual Release, that no further consideration

is to be paid by any of the parnes, parties, and that this settlement is in compromise of disputed claims and

is not to be construed as an admission of liability. ofliability.

STERLING PRACTICE MANAGEMENT, LLC

BY·._~-", BY: ....... -----~ N~: ______~~~~~~__~~__________ TITLE:_~---,,~~~~t-.~~~~_ _

THE STATE OF TEXAS COUNTY OF HARRIS'

BEFORE ME, on this day personally appeared, WI' /Ila of STERLING PRACTICE MANAGEMENT, LLC, whose name is subscribed to the foregoing t11 thL-l91, Mutual Release, and who. who, acknowledged to me that he/she executed the Mutual Release as the act and deed of said entity, for the purposes and consideration therein expressed, and in the capacity therein stated.

GNEN GIVEN under my hand and seal of office 3Jp{ day of 0c..-in b&t, 2013.

NOTARY NOTARYP P LIC IN AND FOR LICINANDFOR THE STATE OF TEXAS

MARIA PATRICIA MUNIZ My CommlsslDn Commission Expires expires May 14,2016 14.2016

AR 000088 NISAL CORPORATION

NOTARY P L NOTARYP AND FOR LANDFOR THE STATE OF TEXAS

MARIA PATRICIA MUNIZ My Commission Expires May 14, 14. 2016

AR 000089 PROVIDIAN HOLDINGS, INC.

BY: NAME: # L~'~ ~ f/ (...JN1)/bir'/!} TITLE: D (.A.!) I'JtZ,..,...,

THE STATE OF TEXAS COUNTY OF HARRIS

BEFORE ME, on this day personally appeared, E!If( , # , of PROVIDIAN HOLDINGS, INC., whose name is subscn to the foregoin Mutual Release, and who, acknowledged to me that helshe he/she executed the Mutual Release as the act and deed of said entity, for the purposes and consideration therein expressed, and in the capacity therein stated. Oc.r~ GIVEN under my hand and seal of office, thi. thi, day o' ,2013.

I NOTARY IC IN AND FOR KEIlH CHUNN, JR. KEmlCHUNN, THE STATE OF TEXAS MY COMMISSION EXPIRES _ _ 14,2016 November 14. 2016

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AR 000090 ",

~, ,.,--, ,-" ~ -:'.->'. U c·'{:t .{)Sr~tl, :" ~<;. ......... ...~ Q'J NO. 1036848

() Q STERLING PRACTICE MANAGEMENT, llC IN COUNTY COURT AT LAW I" ;, NISAL CORPORATION Plaintiff

;--:, vs. VS. NO.4

PROVIDIAN HOLDINGS, INC. : 1: Defendant HAJUUSCOUNTY,TEXAS HARRIS COUNTY, TEXAS

PLAINTIFFS' NONSUIT

Sterling Practice Management, LLC and Nisal Corporation appear and file Plaintiffs'

Nonsuit, requesting that the Court dismiss this case with prejudice.

PHILLIP PHilLIP BRANTLEY AND ASSOC., P.e. P.c. "c;, "". 1'"

::>.:: "- D'Jkbu..~ $YJLk~ ~iJilip~nl1ltle~O r- SBN 02899727 I 0- Arena Tower II '-' 7324 Southwest Freeway, Suite 1020 0 "., ~ Houston, Texas 77074 = ~ (713) 270-4053 phone (713) 270-0682 facsimile ATTORNEYFORPLNNTffP '.

I certify that this pleading was served on Keith Chunn, facsimile transmission on October 3, 2013. facsimile transmission on October 3, 2013. ~ tls& ChUIUl, Jr., attorney for Defendant, by

~R~',,~"'F'-~=_~I,-_______ ~P-hi~ll~~~fFr-an--tle-~~Yr--------------- PhilI;{?rantlefe,

AR 000091 EXHIBIT D @ III ,e::. .

NO. 1036848

STERIlNG PRACTICE MANAGEMENT, lLC STERLING LLC IN COUNTY COURT AT LAW ..~ NISAL CORPORATION Plaintiff ., () f] vs. NO.4 If. :::~. .• ~ ..Ji

PROVIDIAN HOLDINGS, INC. () Defendant HARRIS COUNTY, TEXAS ; ;

ORDER Pending before the Court is Plaintiffs' Nonsuit. This case is dismissed with prejudice.

Signed lhis this -b-- $- day of -+~;JL~~~~~~':;:=l -+-~~-\r-~;£.--~~--J.

APPROVED AS TO FORM AND SUBSTANCE AND ENTRY URGED:

PHIlLIP PHILLIP BRANTLEY AND ASSOCIATES, P.C. P.c.

Phillip Brantley SBN 02899727 Arena Tower II 7324 Southwest Freeway, Suite 1020 Houston, Texas 77074 (713) 270-4053 phone (713) 270-0682 facsimile ATTORNEY FOR PLAINTIFFS

AR 000092

• at CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT COOOT OF d/b/a ALLIED MEDICAL CENTERS § and INTERVENTIONAL SPINE § ASSOCIATES, § Plaintiffs § § VS. § HARRIS COUNTY, TEXAS § KHYATIlTNDAVIA, KHYATI UNDAVIA, MIND MINlT RX, LTD., § and MIND MINlT GP, L.L.C. § ND Defendallls Defendants §§ 152"" JUDICIAL DISTRICT 152

DECLARATION OF KHYA KBYATI UNDAVIA TI UNOAVIA

1. My name is Khyati Undavia. My date of birth is October 4, 196.5, 1965, and my address is 2918 San Jacit1to, Jacinto, Houston) Houston, Texas 77004. I swear under penalty penaltY of perjury that the below facts arc are within my personal knowledge and are true and correct.

2. Providian Providiwt Holdings, Inc. ("Providian") is a holding company. Its only asset is 2918 San Jacinto St., Houston, Houston. Texas 77004 (the "Building"). Providian Provulian bashas no employees, and it ba.s has no operations operatioll.'!r aside from leasi~~g out the building to tenants. I fi'om leasillg am the owner and president of Providian.

3. JI am also the owner and president of:\1inu Ltd. d/b/a Memorial Cornpound1ng of Minu Rx, Ltd, Compounding Pharmacy ("Minu"). Phannacy Minu is a pharmacy that operates on the first ("Minu"), Minll ftrst floor of the Building. Building, Minu has an approximately 12-person staff that includes pharmacists, ph.nnacy technicians, clerks, and bookkeepers. pharmacy

Mum has a 4. Because Minu has a physical presence in the building, and because Minu tum-key staff available, Providian has bas used Minu as its property propeliy manager since provides Providial1 with operational management, tbis role, Minu provit-les 2004. In this management) risk management, and administrative services.

5. Building. It 5, Regarding operational management, Minu manages and maintains the BUilding.

AR 000093 EXHIBIT E janitoriaJ and facilities maintenance personneL It interviews and hires security, janitorial,j

also pays for items like elevator maintenance, repairs for the Building, Building. and security equipment.

6. Regarding risk management, Miml 6, Minu procures and maintains maintams. insurance insw-ance policies on Providian's behalf.

7. Regarding administrative services, Minu collects rent from the Building's tenants, pays for the Building's utilities and common conunon area !l1aintenance, l)1aintenance, and oversees Providian's compliance with accounting standards, as well as federal and state reporting requirements.

8. Attached as Exhibit G to Defendants' motion for summary judgment is a true and correct copy of a portion of Minu's Quickbooks for the time period of 2012 through 2013. These records demonstrate that Minu paid numerous expenses on Providian's behalf.

9. For example, in April 2012, a break-in occurred overnight at the Building, causing Building. Minu paid a total of $17,524.89 to repair the significant damage to the BUilding. damage caused to the Building. These payments were made on April 18,2012, June 8, 2012, 2012 and July 25. j 25, 2012, as indicated on the Quickbooks statement.

10. Similarly, MimI Millu made periodic periodiC payments to "ABC Pest Pool & Lawn" throughout 2012 and 2013. These charges represented compensation that Millu Minu paid to ABC Pest Pool & Lawn for the Building's grounds grollnds maintenance. maintenance,

Quickbooks records also demonstrate the Minu paid for 11. Among other things, these QUlckbooks (vi. payments dated July 31, 2012 and the Buildings' elevator maintenance (via December 15, 2013) and for repairs to the Building's Building', front door (via a payment dated March 27, 2012). Also attached as Exhibit F to Defendants' Derendants' Motion for Summary Judgment are truenue and correct copies of invoices invoices received by Minu that demonstrate that Minu d'b/adJb/a Memorial Compounding Pharmacy Phannacy was billed directly for these expenses by the servic.e service provider. provid<:L

12. In additional the above, 'Minu 12.In Minu also paid for the Building's security systems and personnel. 111 In 2012 alone, Minu paid $49,415.73 to provide security personnel,

2.2

AR 000094 alann alarm systems, and security cameras to the Building, Building.

13, With regard to Providian's leases with Nisal COl]), Corp. and Sterling Practice Management, Managementl those entities did not have any ac,mal actual operations in the office space they leased. leased, Instead, Allied Medical Centers and Avant Medical Group were the entities that had operations in the the leased space. Brett Garner Gamer is a doctor of chiropractic and was a chjropractor chiropractor for· both entities, entities. For all matters concerning the lease, I communicated with Brett Gamer Garner in his capacity has a representative of not only Sterling and Nisal, but also Avant and Allied, Allied.

14, In fact, as a condition of leasing office space to Nisal and Sterling, I required those 14.ln lUe with proof that they had obtained COL entities to provide Ine CGL insurance policies. policies, Garner provided a proof-Of-coverage Gamer proof-of-coverage document naming "Avant Medical Group, P,A, P.A. d/b/a Allied Medical Centers" CenterS" as the insured. insured, Exhibit J to Defendants' Motion for Summary Judgment is a true and correct copy of the proof-of-coverage document Avant provided to me, me.

Add.ition~lly, Avant paid for Sterlillg l 15. Additionally, 15, Sterling's s rent out of its own bank account. account Attached as Exhibit K to Defendants' Motion for Summary Judgment is a true and correct copy of a rental check that Avant sent Providian with respect to Providian's lease with Sterling.

16, 16. The Commercial Leases attached as Exhibits A and B to Defendants' Motion for tor Summary Judgment are true t:I"Ue and correct copies of the leases that Providiuo Providian entered into with Nisal Corp, Corp. and Sterling Practice Managen1ent. Management.

17, I am the person ill 17. Minu_ Exhibits A, B, F, G, ill charge of records for Providian and Minu. J, and K to Defendants' Motion for Summary Judgment are kept by me in the regular course of business, and it was waS in the regular course of business of Providiall and Minu that the information Providian infonnat1on contained in this exhibits was transmitted to me by an employee or agent of Providian or Minu who had knowledge of the act, event, condition, opinion, or diagnosis recorded to make the records ree-ords Dr 01' to

transmit information thereof to be included in such records; and the records were mad~ at or near the time or reasonably soon after the time that the servic.e made service was provided, provided. The records 0l1ginal or all recordg are the oligjnal an exact duplicate dtlplicate of the original original.

AR 000095 Executed in Harris County, Texas, on this the 11th day of January, 2015. thezt;th

AR 000096 1_",.,08 .. .. .. at ,. ...,,,,, , 're I!ATIi PATh' ~8/22/11 -cUJ/::a:J/U INItDICe rM)Q;NO, NO • MHI)~II!;jI!'l'U ~~oa'~l 'dD" ....·0IiII.1oo "110 AMOUJIIT cUE eN SER\IIt8 c:or.I'1'MCr ....... _ ' I lnc:mta l ..... '1, . , ' .3.0

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_~ ..,..;'" ered!t / serviM era1ft (174.$)

~ ....-vlceered!t service credit // ' ~174.55) {174.55)

REVISED INVOICE AMOUNT NOW PUE, DUE: $523.65

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AR 000097 EXHIBIT F AMTECH ELEVATOR AMTECH ELEVATOR SERVICES SERVICES 11 Farm F;:lrm Springs Rd Rd cr Farmington, cr 06032 Farmington, NO. CUstomer NO. customer Statement Statentli!nt Date Date AmQI,mtOue Amount Due ,55336,2 553362 21712012 2/7/2012 1,047.30 1,047.30

STATEMENT Mail payment Mail payment to: tQ:

Amtech Elevator Amtech 5~rvices Elevatrlr Services Memorial Memorial Compounding Compounding Pharmacy Pharmacy PO Box PO Box 730437 730437 2918 2918 San San Jacinto Jacinto 5t St Oallas, TX Dallas, TX 75373-0437 HOUSTON, T)( 77004 HOU5TON,TX 71004

PI;;!ase Ple provlde your ••e provide your name. name.. phone number number andlor ern~il address and/or ernaij·~ddress $hOuld we have SMull:! we have any any questions questions on on how how to applyyour \(J apply payment: your payment:

STATEMENT cam:ef'nirg this For any questions concerning lilts statement. plea~ contact: stat9rJW,nt, please 0011t$Cl: Page 1 of 1 404-605-8421 or danil.marvin@otis.com 404-605-842.1 Ollrlil.mllrvirl@otis.com

Buldlng Reference: Building Refemn.:e: 2918 :2918 san $t SaO Jacinto St CU IfIQr No. Statement Date ArnountDu0

" . ". , 553362 21712012 217'2012 , ,047.30 1,047.30

Invoice InVOice Number Documem Document Type Irrv~oate Gl'oSS Amount Gross Open ArnOlJm Amount

J DTH06ZQ2911 DTH062£)2 911 Invoice 1,047.30 1.047.30 / ., 2/2011 2/2011

/ .

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/

Abffile, please find Above, ftnd your Iate!!t Ja!e!;t,)lamment matement of or account. Thl. statement does accoum. Tills dOBS not Inclide in\IQiCllS turned over to •a tllir<:l Inc.i.Jde invoicm third part)' party for coIIect1on. fOr collect1on. ChargebackS are Chargebackll a~e disputes dlspuleS under Investigation, InvestigatIOn, Plell5e ~menl ID PI••s. remit payment to the addr aDov.. If you have already paid. lIl.nk ... l'l1lQve. address Ihank you. you, d~ta 1$ Colloctlon data Colklctlon ;$ reported 10 to Dun &&: Bradstreet. Bredstteet.

AR 000098 ,~ , AMI_::::' N·P""I 1289 N HvUl!itOfI Oak SIO 100 Post OakSte Houston TX 71055 77055 - ~ INVOICE CUSTOMER NO.

553362 DArE 02/20/12 I

~1DIl'" ~ncl08eThis caupon Thi!S Mak~ CheCk Make Oaupon WIth INVOICE NO. DTH06202312 AMOUNT Due ON S~RVICE CONTRACT; 1,099.74 Wit'"' Yollr PllyabJo;> To: CMo<: payable Tf): p..~ment. Your payment.

AMTECH ELEVA AMTECHELEV TOR SERVICES ATOR.

Masl plJyomint to: AT 01 006604 340576 Au 3DGT 340578 26 A"SOOT HEMORlAL COMPOUNOING PHARMACY H.EMORIAl ,.1.111111111111,1111-,1111111111' .I,lillll'IIII"III" 11.111,1/1.111"" 11111'11'1I1I '111.11 ••• 11 '11'1111"111,111"11"11111,1_11' 2g18 SAN JACINTO ST 2918 AHTECH ELEVATOR SERVICES AMTECH HOUSTON TX 77004-2708 P.O. BOX 730437 . DALlAS DALLAS TX 75373·0437

~l..EA$E SEND PLEASE $ENO CQRm!$PONDENCE eORRI!$POjr,lIJENCE TO YOuR L.OCAL. OFFICI! YOUA. LOCAL OFFiCe AS -SMOWN $HOWN BIlLOW ilEt.OW

ODTHOb202312 OOll0109974 IlDTHDb2D2312 0000109974 1 .~ ____________ ~ ___ w ______ . ~_~_~"M*~_~"-W~*_";"'~~ __ ~~~M""'~_ . ..... ___________________ ...... __ ... ~ _*~~~~~~~_~~_~~ __ ___ __ ~ ~~ ~_~--~-----~

.... ... DETACH RETURN DOCUMENT ALONG PERFORATION .. E;LE;VATOR SERVICES AMTECH ELEVATOR INVOICE ~ SERVICE CONTRACT CHARGES .. ... - CUSTOMER NO, CUSTOMEA NO. l!AIIi .MIIi: INYOICENO. INVOICENQ,

553362 02/20/12 DTH06202312

BUILDING DTH800681 DTK8006S1 MEMORIAL CONPOONDZHG COMPOUNDING P.KAR PHAR co»rRACT coir.rRACT DTB06202 D'rH06202 SERVICE FROM 03/01/12 TO 03/01./12 TOOa/31/12 08/31/12 1,099.74 1,099,74 'l'O'.l'AL CORRmI'l' 'l'O'l'AL CORIU3l!I'l' CHARGES! PtJE ClIAMES DOE 1,099.74 PRICE ADJUSTMENT AOJUSTMllN'l' • •- • IN ACCORDANCE WlrR FROVISION Faa WIrE THE FROV~SlON ~HE ADJUSTMENT OP FOR rH! OF PRICE AS SET FORTH PORTH IN THE CONTRAC~ CONTRACT 1!NiTERlll:l INTO BETWEEN US FOR Tm: BNTERBD J!:QtlnMl!:m': THE SERVICE OF ELEVATOR }!:QtJII?~: THliI PRICE. Of' THli FORMER Pft~CE O!i' HAS Sl!l~ 174.55 11M BEEN ADJUl':TED ADJUSTED AS INDICATED BELoW UP@ THlil BELOW BASED UPON Tat CIIJU\I(>IilS CIUUilGl!:S THAT RAVEHAvE OCCURED OCCORED IN THE ELBVATOR EXAMlNERS' EXAMINERS' COS1COS~ ~~ IN iN ~~ER"~ ~1E~I~ INDEX BETWEEN BBTWEEN J~Aay,201" JANUAaY, 2011 AND .!\NIl JAMUAaY,2012. JANUARY,2012. IN EFPIi:CT ~HE AlJJUSTl!:O 'l,'H,g EFFECT UNTIL 1'I!;BRUAaY Anj~ST~D PRICE lIlBRUARl!' ~8, 20·13 GI,'APSE 1j - BASED ON CHANGES IN PRODUC'ER CLAUSE ~R!eE BECOMES 201a WHEN IT ~ECdMES I!:FFEC'TIVE EPFECTIVE WU.L 8l!: l'l' HILL BlI: SUBJECT ~ 01, 2012 SUBJlI:CT TO ADJUSTMENT. METALS AND :METALI PRODUCER METALjj1 2012: AND SHAL~ ADJUSTMEN.l'. Mi:l'#U.< ;ElROD1;JC'l'S c~Dtl''t IMtlElX: ;E>ROVUCTS COD@fOot't'Y rblDEjt: ~'[N SHAI.!. EEMAIN

- IA) (6) (Ii) (e) Ie) "'6/14 ='S/A (D) (0) IE) "'c"'o (E: =C*D I!'ORWER FORMllR INDEX CURRENI' INDEX CURREN'!' INDIIX !\ATIO OF CRANGE ltA'I'IO CllANGE FORMER lI.IATERIA!. FOIlDiIER MATERIAL CURREN!' CURREN'!' lI.IA'l'liRIAL MATERIAL 215.0000 21~.OOOO 212.7000 nJ.7000 103.58140 lO~ • .5aliO

CLAUSE 2 -• BASED !'llIS!!lP ON Olq CBANGES CIUl1ilG~$ !N ELtVATOR t~a6t Ilq ELEVAtOR HOURLY oosr: tll:At>llHlillt$' 1I0!lRl.Y CO$~, (~) (JI,.) (9) (B) Ic)mB/A (C)"'B/A ID) (D) (E)=C·D (E)=C"D .;p..0RMJi)!t.~_.. _.•. -p'ORMP.a,"~ ....._. ____.. _.... C!ll

YOUR NEW NnW INVOICE AKT ANT 1,099.74 l,09~.74 TOTAL

FOR ANY QUESTIONS CONCERNING THIS INVOICE,r PLEASE TELEPHONE 1"713-923-7251 !!'HIS INVOrCE 1~?13-923-7251 OR WRITE AMTECH EL~~ATCR ELEVATOR 1289 'N R POST OAK STE 100 HOUSTON TX 77055 PAY.NBNT Ii'AYMmI'I' DUB UPON RECEIPT-PLEASB RBCEIP'l'-PLBl\$B PAY PROMPTLY

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Pagel Fago) 1 of 1 CUSTOMER ORIGINAL Elevator CUSTOMER NO. CUSTOMEFINO. DATE INVOICE NO. SeI1lice!NVOICE 553362 02/28/11 DTH36570( DTH36;570(;

BILL TO SHIP TO

r- 2918 CDMPOUNDING PHARMACY~ MEMORIAL COMPOUNDING SAN JACU1TO JACINTO ST r-r- MEMORIAL COMPOUNDING PHAR 2918 SAN JACINTO JAC1NTO HOUSTON TX HOUSTON TX L L. 77004 .J -.J L 77004

- IF PAYING BY CREDIT CARD, PLEASE COMPLETE'rHE CARD,PLEASE COMPLETE THE FOLLOWING AND MAIL TO THE ADDRESS BELOW OR FAX TO TREASURY SERVICES AT (860) 676-645Cl. 676-6450. MYt PLEASE CHARGE MY: ( ) . AMERICAN EXPRESS ( ) MASTER CARD ( )) VlSA VISA NUI11lER _____________________________ EXPIRATION CARD NUI'1BER DATE EXPIRATION DATE SIGNATURE PHONE #~

FURNISH LABOR AND t1ATERIALS TO MAKE CODE REMEDIATION REPAIRS IN ACCORDANCE WITH QUOTE DATED OCTOBER 4, 2010. ANY QUESTIONS REGARDING THIS INVOICE, PLEASE P~EASE CONTACT YOUR ACCOUNT REPRESENTATIVE, NELSON F. BELLE;:SHEIM. BELL~SHEIM~ JR. AT 713-923-7251. PRICE 'AS PRIC'E AS QUOTED $5~812.26 $5,81:'2.26 LESS 10% DISCOUNT 581.23

ADJUSTED AMOUNT INCLUDING TAX $5,231.03 $5,231. 0::' LESS PREVIOUSLY BILLED 2,615.52 2~615.52

PAGE 1i WE CERTIFY THAT THE GOOOS WE:RE PROOUCED IN COMPUANCE INITH AU APPUOABl_~ FI~UIREWlENl'S OF SECl10NS 6, 1 AND 12 OF THE FAIR: STANDAROS ACT, AS AMENDED. AND OF' RE:QUl.AnONS AND ORDERS OF THE UNITS) STATES DEPARTMENT OF l.AElQR ISSUED UNDER SECTION 14 HEREOF. PAYME'NTS NOT !'IEl"':EIVEO WITHIN "THIRTY ((3{I) DAYS OF 'THE DATe: OF INVOICE. SHALl.. a'S DEEME:O OVERDUE 'AND St1ALL BEAR AN INTEREST CHARGE 0 OVERDUE AMOUNT,._ CALCULATED fROM THE DAlE OF INVOtC~ AT THE RATE OF ONE AND ONE HALF PERCE~Ui%1 PER t.10NTH OR. THE MAXIMU/J B~ENl1T~O FlEIMBY~EMENT FROtuI YOU FOR THE COST OF SUCH PROCEEDINGS, I A~~EY'S Ffi.lR. AI.L.OWED BY APPLtt,;ASLE LAW INHICH R IS lESS.. HOUI.O II BE. NEOESSARY TO COMMENCE COL.U::CTION P EED NGS A I S1 YOU F R ANY OVi PAYMENTS, WE SHAL.L. ALSQ CLUDING

QUESTIONS CONCERNING THIS INVOICE, CONTACT AMTECH ELEVATOR AT: AT; (713-923- r- AMTECH ELEVATOR SERVlCES . I~ E~EVATOR SERVICES ' TERMS-NET CASH UPON PRESENTATIO p. Q. SOX 1".0. BPX 7304;>7 730437 . MAKE ALL CHECKS PAYABLE TO TX~ 75::;'73-0437 DALL0S, TX. DALLflS, 75~73-0437 AMTECH ELEVATOR SERVICES AR 000100 FOAM~AMT L 01 C:I\~C en, n /l.lI.ln cnc'MAon TUE: .J D=ltjITT4h.1r-~ ('nCV\AJIT~ DAVl.llCI\.Ii' Tn TI-I~ 4nn~~~~ ARn\/I= ! CU5TOMiOR NO. DATE Il"IIvt,.ln... t;, I '......

AiR=:; AU,. WlrYfSltIIMttH ARP..;-=01 ~ 55.1362 -- 02-21/11 02121/11 AMOIJNT DUE ON SERV(CE C:ONl'RACT: nUI06102311 DTH0620231!

1289 1289N P~t Dall N POI;lt WoustonTX Houston Oak StI! TX 17055 S1e 100 77055 INVOICE 1,(147.30 EnclO&~ This Em::IO;;/1 c.oupDf1 With '{t)~r Tills coupon ~t1)IfIlerTi, YO\.lT I'llIYrnerrt, Ma~ Check: M8l\'e P~yablij To: Cl'teok ~ysOI~ TO: AMl'ECH ELE\' AM:rECH llLEVATOR SERVICES

006201 '196236 26 A"SDGT AT 01 00620179623826 A"'"$bGT MEMORIAL M~MORIAL CO"POUHDING PHARMACY COMPOUNDING PHARHACY '1111 II '1 111 111 1111111'11,11111' ,IIII' 1111111111111'111111111,111 'l"III'IIIIIIIIII"II'II'''"HIII'iIlI''I''IIII'I'IIIIIII''111 2918 SAN JACINTO JACINtO 5T ST SERVICES AMTECH ELEVATOR SERVICfS HOUSTON HOIlSTON TX IX 77004-2108 P,O. BOX 730437 P.O. 7304'31 DALLAS DALlAS TX ,,11111,111111'111111111"111,1111,,111'111'11,1111"1111 1'1,11,1 15373"0437 75373-0431

PL.EA,SE S(;lHP COMREIiPONOENCE 10 YOUR.LOCAL OFFICE A$ $HOWN BEI.OW

ODTH062D2311 5 DDTHOb202311 0000104730 S ____ .~:-_ ........... "':'~ ~ -,:"::",~~!",..;.:,,, ... -~:__r.___ i"" -: .... ,..~ _____ ........ .. -:0" -: ... "'!'''" ~!-r -:":' -:-..,;..,..""':-"':,..,"' -,~":"",!"""~ .+,'~'.';"':";':".~ ":'!'.;";r.".":,,,,:,~;''J'. ... -_-:'.,.~.:-."' .._-, ...~"!"_,:" .. "'!'.:"!'!'!'''' ,:",.':",~'r:".";'~~,':".~-. ":"".tI"e~;":':"~":",!"::~ ~ ~~ ~~ ~':"! "'f":~ ~ ~-"",,,,-,,!-,~--:-:':"--,..-r:,,,."!':-,":."7"!'''''''.'':"''!'.--":'--------- i:--":"__.,,,,',,,!,""~_~~':'."""-''''-'''!!''.''';~~:-'''':!'.'':'-:':"--~'''-''-'': l'!' ~ ~ -~ ~;': .. ~ ~ ~ ~ :"",- -t-:-: :-::-:,-: ,--;.-:~:-: :~:.,,:".~ ... ,~ ,...... ~ ,'" ,'" .....~.~

... DETACH RETUrlN .... RETURN DOCUMENT ALONG PERFORATION ... AlONG PERf/oRATION .. ELEVATO~ SERVICES AMTECH ELEVATOR IINVOICE NVOIC E .. ~ SERVICE CONTFtACT CONTRACT CHARGES ,",•• ~"COMER NO, ~TOMeRNO, . INVOICE WYQICENO. NO,

553362 02121/11 02/21111 DTH062023) 1J DTEl062023I aUIwIN(l BUIWm¢ D'rHII00681 DTHS()0681 MEMORIAL COMPO'l.TN'Di:NG PJiAR. MBMoRI}!.L COMPOtJm)l:NG PHAR CONTRACT ·COl'l'l'RAC'r ~H06202 DTB06202 SERVICE FROM 03/01/11 TO 08/31/11 1,047,30 1.047.30 TOTAL CORRE.N'l' CHARGBS DUB COltR:EN1' CllARQB.S 1,047.30 I/RI Clil lIDJUSTMEN'l' - • - IN ACCORPANCE WITH MITIl 1'1IE THE PItOVISION PROVISION FOI! FOF- THE JillJOSTMEll."'l: JillJOSTf>iENT OF F'R;tC.E PRleE AS SET FORTH IN THE CONTRACT CON'rRACr EN'rERED INtO BE~WEEN ENTj;:R~D IN'rO BE'rWEEN O. OS POR SERVIC~ OF ELEVATOR EQOIPMEN'r, FOR THE SERVICE EQOIPMEm:': THE FORMER WRM&R PRICE OF 01' 165.77 US. 77 IfaAS E~EN ADJOST~b AS B:EmN I~ICATEb BELOW 'B~D ADU'OST,"ED AS U®ICA"l'E:tJ ~SED U;<'ON Tll-},: C~ES UPON THE CE"~ES THAT !lAVE TIIAT ffAVE OCCv:R.ED OCC~ IN THE TIIE ELEVATOR EXANI~S' l1iXAI1 MATERtAL II>1DEX I~ JI1ATBRXAL BETWEEN ~NDEX BETWEBW JWU"AftY,2010 J~AAY,2010 AND JANUARY • . PRODO'C1.1le COI!4MODlT"i METAJ... PRODOC'.I'8 GOMMODlT't INP'ltX; INPEX;

(A) (AI IS) (Il) (C)=:f,I(A (C)=li/A (P) ()JJ (E)=C"D (E)=C*D FORMER'INJ;lEX PQ~ lNOEX CURlUl1NT I!ilDElX CURll$NT INIlEX OF~GI!: RATIO OF CW

cLAUSE -aASElf-ON"ciOOidESINELgVAT~El\'M1~Sr ci'.lli!SE '2'2 - -iiAsEri"o~fcmJGES IN EL.gVA'l'01{-·EXAM~8 i"nOtmt'rCOS'l': 116Dm;rcOST' \Al IA) (9) IE) (C) =a./A ICI ",B/A (!J) (n) (E) """e 1tWD (3}"'C Il PORMER FORMER CuRRENT CURR=. RATIO OF FORMBR FORMER CURRJ;lNT CllRRE'" EXAMINERS' COST EXAUIMERS' COS'T 59.647~ 59,6479 EXAMtNERS' COST EXAM1;MERS' ~2 .8059 62.8059 C~GE CH.i\.NGE 10S,2~440 10S:.29440 L~OR LAl30R ~65 .77 165.17 ""'OR L1C9OR 174.55 114.55 PSI!. 174.55 FIRw) 110

YOUR mil INVOICE AM'l' 1,047.30 TOT~ TOTAl.

FOR ANY QUEST.IONS QUESTTONS CONCERNING THIS INVOICE, PLEASE TELEPHONE 1·713·923·7251 1-713-923-7251 WRIT£ AMTECH OR WRITE ~CH ELEVATOR 128~ N POST OAK 12Sg OAR STE 100 HOUSTON TX 77055 PAYMENT DUI DUS UPON RBCEIPT-PLBASB RECEIPT'PLBASE PAY PROMPTL~ ~OMPTL~ WE CERTIFY THAT tHE (\0005_ .'C,Rr''''""" STANDARDS ST.r.NDAROS ACT, AS AMENDED. no, 0000. . . . . I'ItODUCED.1N ""'DO"'" IN COMPJJANCE ~ULATlON$ ANIl. AND OF REGULATIONS AMENDEP,Afm" AND, ORDERS AL~ APPLIOABLE WITH Ale cOMPllA""' W'llI ORI'IERS OF THE THE. UtllTED .....,."""'" OF AP'LI",",CO REQUIRE.!.mNTS S'fA.TEl; DEPARTMENT UMTEO STATES OF sECTIONS G. l.11ND 12 OF DEJlAlUMSIIT OF LAIlOR LABOA: ISSUED UNDER: UNOER seC110N THE FAIR !.AIlOR oF TH' 8&CT10H 1. HEREOF, LABOR 1-4lfERf,Of. """0" .' ....0" !lXf~'I!'O~t~}lW~.,sIt.e'tP~NfWf%l)Rm ~f~'lfol:fGlmrn:i'~,WcR~t~er~ ~,A.'lf8FP~HE~~~~'ltlt~eY~\f~M."1ifd&riW,'W',t,lM!\.~~9~tl:.r: '£~~Rq~HE"1Jlx.o:ilfrlk\ttt~affif~~Af~1V,'W'.tZI\r~R9~t8tJ:E OF TIEAR INVOIe!:. AT 000101 OF THIO THE INVOICE AT THE

\If 006201"1 VI , Pnge loft Page I Mt 1 :09 PM MINU RX LTD 01/21115 01121115 Account QuickReport Accrua l Basis January through December Dece mber 2012

Type Date Data Num Name Memo Mem o Split Amount

Security Securi ty Services Check. Check 01131112 01 /3111 2 7214 Armadillo Security Service 99425 AO COMPASS .. 1,606.20 Check 01131112 01131/12 7217 Security Nationwide Inc 1015 AOCOMPASS AO COMPASS .. 1,510.09 Check 02115112 02115/ 12 7245 Armadillo Security Service 99445 .. AO COMPASS ... 1,314.90 Check Check. 02/15112 02115/ 12 7254 Security Nationwic'e Nationwide Inc 1016 AO COMPASS .. AD 1.510.09 1,510.09 Check 03101 /12 03101/12 7279 Security Nationwide Inc 1017 AO COMPASS .. 1,510.09 Check 03115/12 OJJ15/12 7305 Armadillo Armadil!o Security Service 99465 AO COMPASS .. 1,606. 20 1,606.20 Check Check. 03115112 OJJ15/ 12 7309 Security Nationwide Inc 1018 AD AO COMPASS .. 1,812. tl 1,812.11 Check 03129112 03/29112 1021 Security Nationwide Inc 1019 Al A1 COMPASS .. 1,661.10 Credit Card Charge 04/02112 04102/12 041012 Digital Alarm Systems AMEX 76008 188.36 Check Check 04/1511 2 04115112 1047 Armadillo Security Service 99526 A1 COMPASS .. AI 1,602.15 Check 04115112 04/ 15/ 12 1050 Dig ital Alarm Systems Digital 176860 A1 COMPASS .. 138.02 Check 04115112 1054 Security Nationwide Inc 1020 A1 COMPASS ..... AI 1,929.56 1.929.56 Check 05115112 1126 Security Nationwide Inc 1021 • 1022 1021-1022 A1 COMPASS ..... AI 3,171.19 3,171 .19 Check 005115112 5/15112 1123 Armadillo Security Service A1 AI COMPASS ..... 1,468.64 Check 05/31112 1011 Security Nationwide Inc 1023 A1 .. AI COMPASS ... 1,661.10 1,661 .10 Credit Card Charge 06104112 06/04112 060812 Digital Alarm Systems AMEX AM EX 61001 321.51 Check 06115/12 06/15112 1041 Armadillo Security Service ArmadHio 99524 Al COMPASS .. A1 1,768.04 1.768.04 Check Check. 06115112 1045 Security Nationwide Inc 1024 Al COMPASS .. A1 1,661.10 1,661 .10 Credit Card Charge 07(02/ 07102112 12 071112 Digital Alarm Systems AMEX AM EX 76008 188.36 Check 07117(12 07/17112 1108 Security Nationwide Inc 1025& 1026 1025&1026 A1 COMPASS .. Al 3,171 .19 3,171.19 Credit Card Charge 07/26112 07/26(12 081012 Digital Alarm Systems AMEX 76008 238.16 Check Check. 08115/12 08/15112 1167 Security Nationwide Inc 1027-1028 1027 · 1028 A1 COMPASS .. AI 3,322.20 Credit Card Charge 10101112 10/01112 101112 Digital Dig ital Alarm Systems AMEX 76008 188.36 Check 10/02/12 10102112 1267 Security Nationwide tnc Inc 1029 & 1030 1029&1030 Al A1 COMPASS .. .. 3,473.21 Check 10/02112 10(02/ 12 1271 Security Nationwide Inc 1031 A1 COMPASS .. Al .. 1,510.09 Check 10115/12 1301 Security Nationwide Inc 1032 A1 COMPASS .. Al 1,510.09 Check 11101112 11/01 /12 1346 Security Nationwide Inc 1033 Al COMPASS ... A1 .. 1,661.10 1,661 .10 Check 11121/12 11/21 (12 1388 Security Nationwide Inc 1034&1035 1034 & 1035 A1 AI COMPASS ... .. 3,473.21 Check 12/12112 12112112 1468 Security Nationwide Inc In c 1036 AI COMPASS .. A1 1,370.14 Check Check. 12/29112 12129112 1486 Security Nationwide Inc 12103-12114. 12103·1211 4 . AI A1 COMPASS .. 2,869.17 Total Security Services 49,415.73

TOTAL TOTA L 49,415.73

Page 1 AR 000102 EXHIBIT G 1 1:09 :09 PM MINU RX LTD 01121115 01/21/15 Account QuickReport Acc r ual Bas Accrual Basis is January through Dece mber 2013 December

Type Date Num N"m Nam Namee Memo Split Sp lit Amount

Serv ices Security Services Credit Card Charge 01/01/13 01101/13 011113 Digital Alarm Systems AMEX 76008 188.36 Check 02115113 02/15/13 1583 Security Nationwide Inc 1036,1038 ,L.. 1036,1038,1 A1 COMPASS .. 3,160.13 Check 03/01113 03/01/13 1615 Security Nationwide Inc 1041 A1 COMPASS .... 1,661.10 1,661 .10 Check 03119113 03119/13 1665 Security Nationwide Inc 1042 A1 COMPASS .. Al 1,359.08 Check 04101113 04/01113 1707 Security Nationwide Inc 1043 A1 COMPASS .. Al 1,661 .10 1,661.10 Credit Card Charge 04/01113 04101113 041013 Digital Alarm Systems AMEX AM EX 76008 188.36 Check 04115113 04/15/13 1744 Security Nationwide Inc Iny Inv 1044 A1 At COMPASS .. 1,510.09 Check 04130/13 04130113 1771 Security Nationwide Inc Iny. 1045 Inv.1045 Al A1 COMPASS .. .. 1,661 .10 1,661.10 Check 05/20113 OS/20/13 1806 Security Nationwide Inc 1046 A1 AI COMPASS .. 1,661 .10 1,661.10 Check 05130/13 05130113 1820 Security Nationwide Inc 1047 AI COMPASS.,.. . A1 COMPASS 1,661.40 Check 06115113 1853 Security Nationwide Inc 1048 A1 COMPASS .. AI 1,661.10 1,661 .10 Credit Card Charge 07/01113 07101113 071113 Digital Alarm Systems AMEX 76008 188.36 Check 07/15/13 07115113 1883 Security Nationwide Inc 1049,1050 Al A1 COMPASS .. 3,020.18 Credit Card Charge 07122113 07/22/13 080913 Digital Alarm Systems Sys tems AM EX 61001 AMEX 92.01 92 .01 Check 07131113 07131/13 1904 Security Nationwide Inc Iny Inv 1051 Al A1 COMPASS._ COMPASS .. 1,661.10 Check 08/15t13 08115113 1937 Security Nationwide Inc Inyl0S2 Inv 1052 AI A1 COMPASS .. 1,812.11 Check 08131113 08131/13 1955 Security Nationwide Inc Iny 1053 Inv A1 COMPASS .. 1,661 .10 1,661.10 Check 09115113 09/15/ 13 1976 Security Nationwide Inc Iny 1054 Inv A1 COMPASS ... .. 1,661 .10 Credit Card Charge 09t30/13 09130113 100913 Digital Alarm Systems AMEX AM EX 61001 188.36 Check 10t01f13 10101113 1989 Security Nationwide Inc Iny 1055 Inv A1 At COMPASS .. 1,510 .09 1,5tO.09 Check 10fl5113 10115113 2012 Security Nationwide Inc Iny. 1056 Inv.1056 Al COMPASS ... A1 .. 1,561 .10 1,661.10 Check 10131113 10/31f13 2037 Security Nationwide Inc Iny Inv 1057 A1 AI COMPASS .. 1,812. tl 1,812.11 Check 11117113 11117/13 2058 Security Nationwide Inc tny. Inv. 1058 A1 .. At COMPASS ... 1,627.54 1,627 .54 Check 11130113 lt/30113 2080 Security Nationwide Inc Iny. Inv. 1059 Al COMPASS .. A1 1,661.10 Check 12115113 12f15/13 2116 Security Nationwide Inc 1060,1061 A1 COMPASS .. AI 2,718.16 Total Security Services 37,647.34

TOTAL 37 ,647.34 37,647. 34

Page 1 AR 000103 1:08 1 ;08 PM MINU RX LTD 01/21/15 01 /2 1t15 QuickReport Account Quick Report Accruall Basis Accrua December January through Dece mber 2012 201 2

Type Date Num N"m Name Memo Spli Splitt Amount Amou nt

Maint & Repairs/Bl Malnt dg & Grounds Repairs/B ldg G rounds Credit Ca rd Charge Card 01115/12 01/15/12 020512 Bering Home Center AM EX 340061.. AMEX 34006/ ... 202.89 Check 01126112 01/26/12 7213 Sam's Club supplies AO COMPASS ..... 204.87 Check 01/27/12 01/27112 WD AO COMPASS ... .. 1,500.00 Credit Card Charge 02/05112 02/05/12 030712 Home Depot AMEX 34006/ 34006J... .. . 228.12 Credit Card Charge 02115112 02/15/12 031112 OEC"NAESAQUISITIONC OEC'NAE SAQU ISITIONC AM EX 76008 AMEX 523.65 Check 02129/12 02/29/12 WD AO COMPASS .. 1,000.00 Credit Card Charge 02/29/12 02129/12 031112 ABC Pest Pool & Lawn AM EX 76008 AMEX 146.35 Credit Card Charge 02129/12 02/29/12 031112 ABC Pest Pool & Lawn AM EX 76008 AMEX 77.93 Check 03101 / 12 03/01/12 7283 Sam's Club maint supps AO COMPASS ..... 189.34 Credit Card Charge 03110/12 03/10/12 040612 Wal-Mart Wal·Mart AMEX 3340061.. 40061 .. 173.45 Check 03114f12 03/14/12 7304 Cash AO COMPASS ... .. 1,000.00 CrOOit Credit Card Charge 03127112 03/27/12 04101 2 041012 Crown Overhead Door building door repair AM EX 76008 AMEX 1,036.00 Credit Card Charge 03/30/12 03/30112 041012 OEC"NAESAQUISITIONC OEC'NAESAQUISITIONC Maint Main! AM EX 76008 AMEX 1,099.74 Check 04f04lt2 04/04/12 WD A1 COMPASS .... 2,000.00 Check 04/15112 04/ 15/12 1051 Robbie's Robbie Lock & Key Shop 's lock Al A1 COMPASS .... 234 .36 234.36 Check 04/15112 04/15/12 1053 Willowbrook AC 3323 A1 COMPASS .. 1,627.00 Check 04118/12 04/18/12 1070 Zeva Home Construction Break-in repairs A1 COMPASS ..... Al 1,681.31 1,681.31 Check 04118/12 04/18/12 1071 Zeva Home Construction break-in repairs Al A1 COMPASS .. 2,844.56 Check 04/25/12 1080 Sam's Club A1 COMPASS ..... Al 199.43 Credit Card Charge 04/26/12 050712 Parata Systems LLC AMEX AM EX 34006/ ... 1,338.71 Credit Card Charge 04/30112 04/30/12 051112 Pes! Pool & Lawn ABC Pest AMEX 76008 77.93 Check 05/05112 05/05/12 1106 Cash A1 COMPASS ... Al 2,000.00 Credit Card Charge 05128112 05/28/12 060612 LLC Parata Systems lLC AMEX 34006/ ..... 1,338.71 Credit Card Charge 05/28/12 05/28112 060812 Bering Home Cen Center ter AMEX 61001 44.83 Check 05131112 05/3 1/12 1012 Willowbrook AC Al A1 COMPASS .. 349.50 Credit Card Charge 05131/12 05/31/12 061012 ABC Pest Pool & Lawn AMEX 76008 146.35 Check 06108112 06/08/12 1023 Zeva Home Constructlon Construction Repairs due to Rob .. A1 AI COMPASS .. .. 9,321.22 Credit Card Charge CrOOi! 06J29/12 06/29/12 071112 ABC Pest Pool & lawn Lawn AMEX 76008 77.93 Check 07102/12 07/02/12 WD A1 Al COMPASS .. 1,500.00 Check 07/10112 07/10/12 1097 Willowbrook AC 4067 A1 Al COMPASS .. .. 2,920.00 Check 07/17112 07/17/12 1109 Rueben Alejandro A1 Al COMPASS .. 495.00 Check 07/25/12 1128 Zeva Home Construction Robbery Repairs Al COMPASS .. A1 .. 3,677.80 Check 07/31/12 1143 Elevator Technical Service Al COMPASS .. A1 ... 145.00 Credit Card Charge CrOOit 08130112 08/30/12 091012 ABC Pest Pool && Lawn A M EX 76008 AMEX 146.35 Credit Card Charge 08130/12 08/30/12 091012 ABC Pest Pool && Lawn AM EX 76008 AMEX 77.93 Check 09/15/12 09115/12 1225 Cash A1 COMPASS .. 1,000.00 t ,OOO.OO Deposit 09/30112 DEP SEPT. SEPT. 2012 DEPO.. A1 COMPASS ... Al .. -321.51 Credit Card Charge 11120112 11/20/12 120912 Crown Door LTD specially specialty retail AMEX 61001 175.00 Check 12112112 12/12/12 1466 Robbie's Lock & Key Shop 097518 A1 COMPASS .. 125.74 Check 12/12/12 1467 Rueben Alejandro 07/09/12- 1211 0112 07/09/12-12/10/12 AI A1 COMPASS .. 540.00 Total Maint Main! & Repa irs/Bldg & Repairs/Bldg & Grounds ,1 45.49 41 ,145.49

TOTAL 41,145.49 41 ,145.49

Page 1 AR 000104 1 :08 PM 1:08 MINU RX RXLTD LTD 01 /2 1/155 0112111 Account QuickReport Accrual A cc rual Bas Basiis s Ja nuary tthrough January hrough December 2013 201 3

Type Date Nom Num Name Nam e Memo Mem o Split Amount Am ount

Malnt Ma int & Repairs/Bldg & Ground Groundss Credit Card Charge 01/18/13 01/18113 020913 AMEX 61001 2,155.26 Check 01/31113 1550 Robbie's Lock & Key Shop 098090 A1 COMPASS .. AI .. 233.45 Credit Card Charge 02/28/13 02128113 031113 ABC Pest Pool & Lawn AMEX 76008 150.75 Creditit Card Charge Cred 03/25/13 03125/13 040813 Air Clean Systems AMEX 61001 1,380.00 Credit Card Charge Cha rge 04/20/13 050913 Wal-Man Wal·Mart SUPLLl ES SUPLLlES AMEX 61001 61001 208.04 Credit Card Charge 05/03/13 051013 ABC Pest Pool & Lawn AMEX 76008 150.75 Check 05115113 05/15/13 1795 Lighting Inc Plumbing & H .. Ughllng Repairs A1 COMPASS ... At .. 152.63 Check 05/20/13 05/20113 1807 Help ing Hand United Helping Flourescentt Ught F!ourescen .. light T ... A AI1 COMPASS CO MPASS ... .. 518.96 Credit Card Charge 05/22/13 05122113 060713 Crown Door LTDLTO AM AMEXEX 61001 6100 1 195.00 Check 07/15/13 07115113 WD A1 AI COMPASS ..... 1,500.00 Check 08/06/13 1913 Strutton Plumbing co., co., Inc. Inc. Inv... 36977, In 36977, 37094 A1 AI COMPASS ..... 350.00 Check 08/13/13 08/13113 1925 Rueben Alejandro A1 AI COMPASS .. 830.00 Check 08/23/13 08123113 19411 194 Cash A1 COMPASS .. AI 1,500.00 Credit Card Charge 08/29/13 08129f13 091013 ABC Pest Pool & Lawn AM AMEXEX 76008 150.75 Check 08/30/13 08130113 WD A1 AI COMPASS .. 1,500.00 Check 08/31/13 08131113 1956 Willowbrook AC Inv 4570 A1 COMPASS .. AI 362.00 Credit Card Charge 10101/13 10/01113 100913 Oepot Home Depot AMEX 61001 52.39 Check 10/14/13 10114113 2005 Nelson Suarez, Sr. .- Exp. Exp. Lightt Bulbs Ligh AI A1 COMPASS ..... 18.34 Check 10/15/13 10/15113 2013 Rueben Alejandro A1 COMPASS •.. AI .. 265.00 Check 11/01/13 11101/13 2028 Willowbrook AC Inv... 4483 In A1 COMPASS .. AI 330.00 Credit Card Charge 11/24/13 11124/13 120913 Bering Home Center AMEX 6 6100t 100 1 526.95 Check 11/25/13 11125/13 2072 Mauncio Vega Veg a Contract Yardman A1 COMPASS AI CO MPASS .. 40.00 Credit Card Charge 11/27/13 11127113 121113 ABC Home & & Commercial AMEX 76008 150.75 Check 12/15/13 12/15113 2112 Elevator Technical Service 23510 A1 COMPASS .. At 250.00 Check 12/15/13 12/15113 2114 Willowb rook AC Willowbrook Inv 4715 A1 COMPASS .. At 1,090.00 Credit Card Charge 12/19/13 010914 Crown Door LTD AM EX 61001 AMEX 145.00 Credit Card Ch Charge arge 12/19/13 010914 01091 4 Crown Door L TO LTD AM AMEXEX 61001 2, 400.00 2,400.00 Check 12/20/13 12120/13 WD A1 AI COMPASS .. .. 1,213.47 & Repairs/Bldg & Total Maint & & Grounds 17,819.49 17,819. 49

TOTAL 17,819.49

Page Pag o1 AR 000105 1/1212015 Franchise Tax Account Status - Officers and Directors

«» \Xij ndow on Sta (c Govern mcm Taxable Entity Search Results Taxable Entity Search

Officers and Directors CORPORA nON NISAL CORPORATION Report Year: 2014

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Officer and director information infonnation on this site is obtained from the most recent Public Information lnfonnation Report (PIR) processed by the Secretary of State (SOS). PIRs filed with annual franchise tax reports are fonvarded forwarded to the SOS. After processing, the SOS sends the Comptroller an electronic copy of the information, infonnation, which is displayed on this web site. The infonnation information will be updated as changes are received from the 50S. SOS.

You may order a copy ofa of a Public Infonnation Information RcpOit Report from open.records{a;cpa.statc.tx.us open.records@cpa.state.tx.us or Comptroller of Public Accounts, Open Government Division, PO Box 13528, Austin, Texas 78711.

Title N arne and Address PRESIDENT PRESiDENT BRETT L GARNER 5718 BELLAIRE BLVD HOUSTON, TX 7708 77081I DIRECTOR BRETT L GARNER 5718 BELLAIRE BLVD HOUSTON, TX 77081 CIlIEFOPER CHIEFOPER WILLIAM H HICKS 5718 BELLAIRE BLVD HOUSTON, TX 77081 DIRECTOR WILLIAM H HICKS 5718 BELLAIRE BLVD HOUSTON, TX 77081

texas.gov i Statewide Search from the Texas State Library i State Link Policy Texas Homeland Security Glenn Hegar, Texas Comptroller • Window on State Government • Contact Us Privacy and Security Policy ! I Accessibility Policy ~ Link Policy ! Public Information Act i Compact I I with Texans

AR 000106 https:llmycpa.cpa.state.tx.us/coaiservleVcpa.app.coa.CoaOfficer https://mycpa.cpa.state.tx.us/coalservlet/cpa.app.coa.CoaOfficer EXHIBIT H 1/30/2015 1/3012015 Franchise Tax Account Status· Status - Officers and Directors

ndijOWOnStateGovernment ' . \Vindowon Stal:cGovcrnmcnr G.llinnHagaf

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Officers and Directors PROVIDIAN HOLDINGS, INC. Report Year: 2014

Officer and director information on this site is obtained from the most recent Public Puhlic Information Report (PIR) (pIR) processed by the Secretary of State (SOS). PIRs filed with annual franchise tax reports are forwarded fonvarded to the SOS. After processing, the SOS sends the Comptroller an electronic copy of the information, which is displayed on ofthe this web site. The information will be updated as chang(!s changes are received from the SOS.

You may order a copy ora of a Public Information Infonnation Report from fTOm open.records@cpa.state.tx.us open.rceordsr(1!cpa.state.tx.us or Comptroller of Public Accounts, Open Government Division, PO Box 13528, Austin, Texas 78711.

Title Name and Address PRESIDENT KHYATI UN DAVIA KHYATIUNDAVIA 2918 SAN JACINTO HOUSTON, TX 77004

texas.gov I Statewide Search from the Texas State Library Library!I State Link Policy I Texas Homeland Security Glenn Hegar, Texas Comptroller • Window on State Government • Contact Us Privacy and Security Policy i Accessibility Policy i: Link Policy I Public Information Act Act:I Compact with Texans

AR 000107 https:llmycpa.cpa.state.tx.us/coa/servlet/cpa.app.coa.CoaOfficer https :I/mycpa.cpa.state.tx.uslcoa/servlet'cpa.app.coa.CoaOfficer EXHIBIT I '" 111 DATE (MMJDDIYYYY}

PRODUCER ACORQ,. ACORQ 713.528.1616 CERTIFICATE OF LIABILITY INSURANCE FAX 713.529.4957 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION I 08/06/2009

John S. Dunn & & Son Inc ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 2200 WAlabama #200 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. POBox 980608 Houston. Houston, TX 77098 - - ---- -- --.---- INSURERS AFFORDING COVERAGE NArc # INSURED Avaiit 'Medical INSURW Avant 'M'ed-fCil -Graii-ii, GrOl.ip;---PA--- PA INSURERA: Assurance Company of America dba Allied Medical Centers INSURER II: 5718 Bellaire Blvd. INSURERC: Houston, TX 77081 WStIRERO: ; INSURERS: COVERAGES THE POLICIES OF INSURANCE LISTED BelOW HAVE BEEN ISSUED TO THE INSURED NAMEDABOVE FOR THE POlICY PERIOD INDICATED. NOlWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TOWHlCH THIS CERTlFlCATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POlICIES DesCRIBED HERSN IS SUBJECT TO All THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. -- •.. _-----------.

T-__ ~ INSR~~ TYPE OF INSURANCE POUCY NUMBER •&JMf"EFFECTIVE UMI'IS LTR NS GENEIlAL LlASlUTY GENERAL llAlllUTY PPS4082S216 07/08/2009 07/08/2010 I

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~TOMOBll.e UASIUTY COMBINED SINGlE COMfIINEO SINGLE LIMIT (Sa accident) (fa aedd""lj $ NNAlflO foNfAUTO I-- AU OWNED AUTOS All

- SCIi~OWLEO AUTOS I SCl-Il:OUlEO BODILY INJURY (Per person) • $

-- IiIREDAIHOS HIREOAUrOS NON·OWNFO NON·OWNFfl AUTOS BOO!l..Y INJURY BODIlY (P...- aa:I!IenI) (Per ao:ci

S =j GARAGE LIABIlITY AUTO ONLV - EAACClDENT Nl'{AUTO foNf AUTO EAACC $ OlHERTHAN AUTO ONLY: AGG $ ! 1O)(C(551 EXCESS I U"'!lRELtA LIABILITY UMBRELLA UASllllY EACH OCCURRI:NCE $; -I1 f'- J [J n OCCUR CIAlMS MADIC ClAIMS MADE AGGREGATE $ $ PFOUCTI8LE $

i RETENTION S $ WORKERS COMPENSATION AHD eMPLOYERS' UABlUTY ·l~~"W~T I~- foNf PROPRIEroRIPARTNERlEXeCUT~ EL. EACH ACCIOEI'IT S OFfICER./MEMBER EXCLUDED? (Mandalory In Nltl_ E.l. tl\S£ASE -EA EMPI.O"tEE S : " yes. do.crib£> under -_..._._. SPECIAl. PROVISIONS below E.L. DISEASE -POlICY UMIT $; OrnER

DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDEO BY EfftJORSe/lENT I SPECIAL PROVISIONS Sterling Practice Management Inc. is Named Additional Insured as respects General liability.

CERTIFICATE HOLDER CANCELLATION SIIQlJl..O ANY OFnIE A8OWOESCRl8ED POlICIES BE CANCELLED tmFORE THE ~PlRATIOH , DATE 011. TE THEREOF. THEReOF, THEtsSUlNG TIlE ISSUING INSURER WIlL WILL ENDeAVOR MAll ~ DAYS WRITTEN ENDEAOJOR TO MAIL NonCE TO THE CERTIRCATE NOTICE GERT1FtCi\TE 1I0LOER HOLOER NAMED NMlEO TO TilE THE LEFT. LEFT, BUT FAlLURI'; TO 00 so BUTFAILURE SO SHALL

IMPOSE. NO OBLIGATION OR UABIUTV UAPOS£tlOOBUQAltOK UA81UTY OF fJN( /IN{ KIND KINO UPON TtlE THE INSURER. ITS AGENTS OR

Sterling Practice Management Inc. REPRESENTATIVES. 5718 Bellaire Blvd., Blvd •• Suite 100 AI1fKORIZED REPRESENTAtIVE Ho~ston, TX 77004 20-1B/SUSANA ~11Lu./ ACORD 26 (2009/01) @ 198'S-ZOGe ACORD CORPORATION. All rfgl1ts reserved. The ACORD name and ~nd logo are registered martls marks of ACORD

AR 000108 EXHIBIT J AR 000109 . AVANT MEDICAL GROUP ,P.A. WHITNEY NATIONAL BANK HOUSTON, TEXAS ~ .114301·10 EAST FREEWAY HOUSTON, TX 77029 35·96·1130 '6(3/01 I .0 i5

~~YD~6~E eIlDid100tlv.w~I'~C-· ~ . I" $f;l.poo. £:<) ! .tw D -tb0 \1M /~., tU - \5t. ck"d X

t i . . / Iil I ~~ A!'u#L rfj'a-. . '"' ".~ _. ~~_.-;Om~~bll·~;:-;''"i3o MEMO

~;t50 "3 ",BB~~-··._. _.... ~. . ~~~.-. _...-.. ~~~..,-,JI . I

EXHIBIT K &", .... _ •• ..• .• .. • • . • ... . .•. . .•. . •. .. . "IT"","", " " " ' ' ' ' ' ' • • 00 g I . C.C.C.I...# 4 v.- i;( ,~, . ' I \ '- \ i" ~_ '\'." rr;:' .' ( ... J ••• •• ( ..... • NO NO._ _ _ _ _ __ _ ______________

STERLING PRACTICE MANAGEMENT, LLC u.c IN COUNTY COURT AT LAW NISAL CORPORATION Plaintiff

NO· ________-tlh~-_ _ iV\ ...., ----._-+t;tr\- vs. VB. NO. NO

HOlDINGS, INC. PROVIDIAN HOLDINGS, = ~ 0; 'l: '\~ :::0 ::0 ,m -f(4 c:::t ~

TJ5KAs ~ ;1n ,;In m t'.I\ f:I\ Defendant HARRIS COUNTY, TExAs .." (") () :~,;:~"V\ UI ;'·,V\ :;:, :: ", \ en . m I m PLAINTIFFS' ORIGINAL PETITION ,-," -,, "---,t\ ....... "»0. -"">«-- -~ ~

< . ,.;,~ /.~ :z -----' ." :J: .'"".,';-.......;:; ~"rt m

.'".. TO THE HONORABLE JUDGE: ~; ~. ~: ~. 0 o r· ." Managemen~ u.c Sterling Practice Management. ILC (hereinafter Sterling) and Nisal Corporation'l' Corporation\'

(hereinafter Nisal) appear and file Plaintiffs' Original Petition against Defendant Providian

Holdings. Inc., and in support would show the court the following: Holdings,

1. This is a level Level One Discovery Control Plan case.

2. Plaintiffs are entities doing business in the State of Texas. Defendant Providian

Holdings. Inc. is a corporation doing business in Ibe Holdings, the State of Texas and can be served

through its agent for service of process, Khyati Undavia, 2918 San Jaeinto, 1hrougb Jacinto, Houston. Houston,

seek: damages wilhin Texas 77004. Plaintiffs seek within the jurisdietional Court. The jurisdictional limits of the Court

Court has subject matter jurisdiction and venue is proper.

FACTUAL BACKGROUND FACfUALBACKGROUND with Defendant. Pursuant to the tenns of the 3. Sterling entered into a lease agreement wilb

lease, Sterling made a security deposit in the amount of$2000.oo. lease. of $2000.00. Upon tennination of

forwarding address. Defendant has the lease and sixty days after Sterling provided a fOlwarding Ibe bas

refused to refund the seeutity security deposit to Sterling. Defendant has acted in bad failb. faith.

Sterling for the full seeutity Defendant is liable to Srerling security deposit of $2000.00, plus a statutory

AR 000110 EXHIBIT L penalty of $100.00, plus an additional statutory penalty of $4000.00, plus reasonable of$4OOO.oo,

has acted in bad faith by not providing a written description attorney's fees. Defendant bas

charges, if any, and thus has forfeited its right to and itemized list of damages and charges.

withhold a portion of the security deposit for such damages and charges.

4. Nisal entered into a lease agreement with Defendant. Pursuant to the terms of the lease,

Sterling made a security deposit in the amount of $3600.00. Upon termination of the UpOn tennination

lease and sixty daya _ Nisal provided a forwarding address, Defendant days after bas refused to Defendaot has

refund the security deposit to toNisaI. has acted in bad faith. Defendant is Nisal. Defendant bas

mn security deposit of $3600.00. liable to Sterling for the full $3600.00, plus a statntory statutory penalty of

$100.00, plus an additional statntory statutory penalty of $7200.00, $7200.00. plus reasonable attoruey's attomey's

bas acted in bad faith by not providing a written description and fees. Defendant has

charges, if any, itemized list of damages and charges. aoy, and thus has forfeited its right to withhold

a portion of the security deposit for such damages and charges. for.ncb

WHBREFORE PREMISES CONSIDERED, Plaintiffs pray that Defendant Providian WHEREFORE Proviclian

Holdings, Inc. be cited to appear and that judgment be taken against it for all damages

soffered by Sterling in the amount of$6loo.oo suffered of$6100.00 (consisting of the security deposit due dne and

owing and all statutory penalties), attomey's fees, and that judgment be penalties). plus reasonable attorney's

soffered by Nisal in the amount of $10,900.00 (consisting of taken against it for all damages suffered

and owing and all statutory penalties), plus reasonable attorney's the security deposit due and. attoruey's

fees, plus all costs of court, plus and any all further relief Plaintiffs may be entitled eotitled to.

AR 000111 Respectfully submitted,

BRANTIEY AND ASSOC., P.C. PHIT.LIP BRANTLEY PHILLIP

(}·jjbe~ ~.~~% illiP~rantley--o Al'ill; rantley SBN 00899727 02899727 Arena Tower n II 7324 Southwest Freeway, Suite 1020 Houston, Texas 77074 (713) 270-4053 pbone phone (713) 270-0682 facsimile ATIORNEYFOR ATTORNEY FOR PLAlNTlFF PLAINTIFF

AR 000112 1/30/2015 Franchise Tax Account Status - Officers and Directors

Wmdow on State Government

Taxable Entity Search Results Taxable Taxa ble Entity Sea Search rch

Officers and Directors STERLING PRACTICE MANAGEMENT, L.L.C. Report Year: 2014

Retum Return to: Taxable Entity Search Results

Officer and director infonnation information on this site is obtained from the most recent Public Infonnation Information Report (PIR) processed by the Secretary of State (SOS). PIRs filed with annual franchise tax reports are forwarded to the SOS. After processing, the SOS sends the Comptroller an electronic copy of the infonnation, information, which is displayed on information will be updated as changes are received from the SOS. this web site. The infonnation

You may order a copy ofa of a Public Infonnation Information Report from open.recordsca),cpa.state.tx.us open.recordsCakpa.state.tx.us or Comptroller of Public Accounts, Open Government Govemment Division, PO Box 13528, Austin, Texas 78711.

Title N arne and Address Name MANAGER BRETT L GARNER 5903 SOLAR POINT LN HOUSTON, TX 77041 MEMBER SHAHID H SYED

MANAGER WILLIAM H HICKS 5718 BELLAIRE BLVD HOUSTON, TX 77081

texas.gov I Statewide Search from the Texas State Library I State Link Policy I Texas Homeland Security Glenn Hegar, Texas Comptroller • Window on State Government • Contact Us 0111 0111

Privacy and Security Policy Accessibility Policy I Link Policy I Public Information Act I Compact I I I I with Texans

AR 000113 https:!lmycpa.cpa.state.tx.us/coalservleVcpa.app.coa.CoaOfficer https:llmycpa.cpa.state.tx.us/coaiservleVcpa.app.coa.CoaOfficer EXHIBIT M KEITH CHUNN, JR. Attorney at Law 1535 West Loop South, Suite 365 Houston, Texas 77027 Tel: 713-621-6616 Fax: 713-621-5553 Cell: 713-824-6860 Email: kchunn@msn.com

SENT CERTIFIED MAIL RETURN RECEIPT REQUESTED

February 25, 2013 25,2013

., Nisal Corporation 2918 San Jacinto St., Suite 200 2918 Houston, Texas 77004

Attention: Brett Garner: bgarner5@aol.com

RE: Lease of Suite 200 containing 4,700 rentable square feet in the building as 2918 San Jacinto Street in Houston, Texas, which expired February 29, 2012; and Lease of Suite 200A containing 2,154 rentable square feet in the building at 2918 San Jacinto Street in Houston, Texas, which expired January 31, 2012 31,2012

Gentlemen:

Your lease of Suite 200 referred to above expired on February 29,2012 and your lease of Suite 200A referred to above expired on January 31,2012. Since the leases expired, the rental of the spaces 200A" have been on a month to month basis and cancelable by you or known as "Suite 200" and "Suite 200A:.' the landlord on thirty (30) days notice:

NOTICE is hereby given that Providian Holdings, Inc., your landlord, and Lessor of both Suite 200 and Suite 200A in the building at 2918 San Jacinto Street in Houston, Texas, has elected to terminate both the lease of Suite 200 and the lease of Suite 200A effective March 31,2013.,. . ', , . .. -

DEMAND is hereby made that, on or before midnight March 31,2013, you vacate the premises S~t, Houston, Texas, and also known as Suite 200 and Suite 200A in the building at 2918 San Jacinto Street, all other parts of the building and parking lot where you may have stored property or used on an occasional basis. The Landlord wants the premises for its own use and benefit.

Sincerely, (fJJi/"",n fIJI/.-n If!f~,;,'''rr If!!~~'''(f' I

AR 000114 EXHIBIT N SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY

, • Complete items Items 1, 2, and 3. Also complete A. Signature Item 4 if If Restricted Delivery Is is desired. X [J Agent 0 Agent • Print your name and address on the reverse x 0 Addressee ' , that we can retum the card to so that you. to you. , • Attach this card to the back of the mallplece, B. Received by by (Printed ( Printed Name) IIC. Dato of Dollvory i ' mailplece. , or on the front if space permits. ~-------~--------I I----------. O. Is . . . --=-~--l /s delivery address different from Item 11 Yes 17 DYes : 1. Article Addressed 1. Article Addressed to: to: If YES. enter delivery address below: D No oNo

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$t.t.'Te 20CJ 5L\' Te. 2,00 3. i3~ce Type ~iceType

Hau~' ,HDU rel, ,Ix 77i"t)(( '?>,(Cr1 77i.~'o(f 1fCertified KCertlfled Mall oD Registered 0 Express Mall [J 0 Retum Mail Return Receipt for Merchandise o Insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes [J

, 2. Article Number rl 0 n "".>. (Ttansfer flOm service labe~ I C j.., 4 0 0 ooD'1 ...:J ~2g7 .5'/27 , OQ. c",""" ~A11 l:"'h ......... I11"0# I)l'\nA

, • Complete items 2. and 3. Also complete Items 1, 2, Item item 41f 4 if Restricted Delivery Is desired. • Print your name and address on the reverse a. 8. Received by (PrInted Name) so that we can retum return the card to you. . •.. Attach this card to the back of the mallplece, , 'or if space permits. or on the front If . 17 different from Item 11 D. Is delivery address dlffetent YES. enter delivery address below: If YES, 0-:: 1. Article Addressed to:

~~Elr t\e<;.~ +e(e.A Aqe~ L: Gr.'H?I'H:t::, tV/sal CC?,pora.+ 'O V\ 51 / g1?)e no-w-e ~\"A 3. Service $elVlce Type J(CertIfied }I( Certlfled Mall o Express Mall o Return Receipt for Merchandise HO~lSION I IX. 'T1 0<.6\ o o Registered Insured Mall MatI o C.O.D.

. 2. ArtIcle Article Number 70D7 3020 fJ003 7007 IJOQ3 ~, 7 116 4 (Transfer from service labeO labeQ AR 000115 102595·02·M·1540 .

EXHIBIT N nn ..... r_Lo._. __ ' nnnA nomestlc Onmestlc Return ReceIpt Receipt CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF d/b/a ALLIED MEDICAL CENTERS § and INTERVENTIONAL SPINE § ASSOCIATES, § § Plaintiffs § § VS. § HARRIS COUNTY, TEXAS § KHYATI MOHAMED UNDAVIA and § MINU RX, LTD., § § Defendants § 152ND JUDICIAL DISTRICT

DECLARATION OF ASHISH MAHENDRU IN SUPPORT OF ATTORNEY'S FEES

1. I, Ashish Mahendru, am of sound mind and am over the age of twenty-one. My date of birth is September 1, 1971, and my address is 639 Heights Blvd., Houston, Texas. I declare under penalty of perjury that the foregoing is within my personal knowledge and is true and correct.

2. I am one of the attorneys of record for Defendants and Counter-Plaintiffs.

3. I am licensed to practice in the State of Texas and Commonwealth of Massachusetts. I am admitted to practice before the Western District of Texas, Southern District of Texas, and the United States District Court for the District of Massachusetts along with the state courts of Texas and Massachusetts.

4. I am a 1996 graduate from the University of Texas School of Law. I am 1993 graduate from the University of Texas at Austin with a major in Plan II, the Honors Liberal Arts Program.

5. I currently practice law in Houston, Texas where I founded my firm in 2001. Prior to the establishment of Mahendru, PC, I was an associate trial attorney in Boston, Massachusetts with the law firm of Lucash, Gesmer & Updegrove. Prior to my time in Boston, I was an associate trial attorney 1 AR 000116 EXHIBIT O with the firms of Thompson, Coe, Cousins & Irons and Davis & Wilkerson (1996-2000), which are both located in Austin, Texas.

6. I have previously been qualified as an attorney's fees expert and have testified on the subject in jury trial multiple times.

7. My opinions on the fees incurred by Defendants and Counter-Plaintiffs by the work performed by members of my firm is based on the relevant case law and on the eight factors courts look to in determining the appropriate amount of fee:

a. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

b. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

c. the fee customarily charged in the locality for similar legal services;

d. the amount involved and the results obtained;

e. the time limitations imposed by the client or by the circumstances;

f. the nature and length of the professional relationship with the client;

g. the experience, reputation, and ability of the lawyer or lawyers performing the services; and

h. whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.

8. Members of my firm and I have performed legal services in preparing a Motion for Summary Judgment on Plaintiffs’ affirmative claims and Counter-Plaintiffs Counter-Claims. This includes researching, drafting, conferring with the client, and time to attend the hearing on the motion.

9. The billing rate for members of my firm is as follows:

2 AR 000117 a. Ashish Mahendru $450/hr b. Darren Braun $225/hr c. Susan Farer $175/hr

Based on the education, experience, and background of these individuals and my experience and knowledge of the rates charged by professionals in the Houston, Harris County, Texas geographic region, the rates charged by members of my firm are reasonable and customary in the Houston, Harris County, Texas region.

10. Darren Braun received his bachelor of arts degree from Pennsylvania State University in 2008. In 2010, he began law school at South Texas College of Law where he attained a ranking within the top 5% of the class. In 2011, he transferred to University of Houston Law School, where he finished with a 3.73 GPA (top 4%) and received the Houston Real Estate Bar Scholarship award for outstanding academic achievement in real estate law coursework. He received dean’s list honors every semester of law school. He has been a licensed attorney in Texas since 2013. His practice includes, but it not limited to, commercial litigation matters, temporary restraining orders, injunctions, trade secrets, breach of contract, fraud, fiduciary duty, and related practice areas.

11. Susan Farber is a legal assistant that worked on this matter for my firm. She is an experienced legal assistant with over seventeen years of practice in her field of commercial litigation matters.

12. The following is time associated with each attorney and legal assistant working on this matter in preparing the motion for summary judgment:

a. Ashish Mahendru 6.70 hours $3,015.00 b. Darren Braun 32.90 hours $7,402.50 c. Susan Farber 4.80 hours $840.00

13. The total attorney's fees incurred in responding, therefore, are $11,257.50.

14. Based on the factors courts consider in awarding fees, my experience litigating similar cases, and my knowledge of the usual and customary rates charged by other attorneys and legal professionals in Houston, Harris County, Texas, it is my opinion that my firm's attorney's fees in the amount of $11,257.50 are reasonable and necessary.

3 AR 000118 Signed on this 30th day of January, 2015, in Harris County, Texas.

4 AR 000119 1/30/2015 Franchise Tax Account Status

Franchise Tax Account Status As of: 01130/2015 04:20:01 PM

This Page is Not Sufficient for Filings with the Secretary of State

AVANT MEDICAL GROUP, P.A. =m$'-~'.;o;~=~r~~,".,,_·_i!F$Wliii"Miiiiii'~§iil:\~ "<;"-iiWW7W',~XMN

i Texas Taxpayer Numbe. "''''''''7616516 Mailing Address 1120 DENNIS ST HOUSTON, TX 77004-1102 Right to Transact Business ACTIVE in Texas of Formation TX State ofFo X Effective SOS Registration 0711412006 Date I Texas SOS File Number 0800680964 i Registered Agent Name STERLING PRACTICE MANAGEMENT, L.L.C. Registered Office Street 1120 DENNIS ST Address HOUSTON, TX 77004

EXHIBIT P AR 000120 https:llmycpa.cpa.state.tx.us/coa/servl eVcpa.app.coa. CoaGetT p?PCl'=tpi d&Search N m=avant%20mAriir.,,) https:llmycpa.cpa.state.tx.us/coalservletlcpa.app.coa.CoaGetTp?Po"'tpid&Search m ==avant%?Omp.ri;",,1 %?Onrt'llln OJ,, ?Onrn, ,nOlo ?OR.R, IIt"n=.,"''' O/" ?()R.R, ....hJ1.QMMh ,tlnn= CM.~hJ1."'~~.~h In_""n'>'7"< 11"\- """"7". CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. d/b/a § IN THE DISTRICT COURT OF ALLIED MEDICAL CENTERS and § INTERVENTIONAL SPINE § ASSOCIATES, § § Plaintiffs § HARRIS COUNTY, TEXAS § VS. § § KHY ATI MOHAMED UNDA VIA and § MINU RX, LTD. § 152nd JUDICIAL DISTRICT PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

COME NOW, AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE

ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL

CORP. d/b/a QUALCARE REHABILITATION ("Plaintiffs"), and file this Response to

Defendant's Motion for Summary Judgment, and in support thereof would respectfully show the

Court as follows:

I. PARTIES

Plaintiffs are AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE

ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL

CORP. d/b/a QUALCARE REHABILITATIO.

1. Defendants are KHYATI MOHAMED UNDA VIA, MINU RX, LTD. d/b/a MEMORIAL

COMPOUNDING PHARMACY, MINU GP, LLC, and COMPASS BANK.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND 1 AR 000121 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE II. FACTUAL BACKGROUND

2. PlaintiffNisal Corp. ("Nisal") entered into a commercial lease agreement with Providian

Holdings, LLC (Providian) to rent the top floor of a building owned by Providian. The

commercial lease was in effect from 2009 through March 2013. See Exhibit 1.

3. While Plaintiffs were occupants of the Building, all mail was delivered to the Building's

main address, where it would be collected by Defendant KHY ATI MOHAMED UNDA VIA

("Undavia") and distributed by her to the other tenants. See Exhibit 1. Defendant Undavia

prohibited the Plaintiffs from keeping their own mailboxes at the building. See Exhibit 1.

Because the checks were delivered to Plaintiffs' mailing address, Plaintiffs were in possession of

the checks and have a possessory interest in them. See Exhibit 1.

4. In 2013, Providian Holdings, LLC terminated the lease with Nisal. Nisal and Sterling

then sued Providian for failing to return a security deposit in Cause No. 1036848, Sterling

Practice Management, LLC and Nisal Corporation v. Providian Holdings, Inc., in the County

Civil Court at Law No.4, Harris County, Texas (the "Prior Lawsuit"), filed on September 5,

2013. See Exhibit 4. That lawsuit ended in a settlement release pertaining to the claims asserted

in the Prior Lawsuit by Nisal and Sterling (the "Release"). See Exhibit 5. The only parties to the

settlement agreement were Nisal, Sterling, and Providian. See Exhibit 5.

5. Plaintiffs recently discovered that during their occupancy at the building, Defendant

Undavia would frequently open the Plaintiffs' mail, take checks made payable to the Plaintiffs,

endorse the checks with the name and Compass Bank account information for MINU RX, LTD.

d/b/a MEMORIAL COMPOUNDING PHARMACY, (Minu RX) and deposit them into at least

two bank accounts at Compass Bank belonging to Minu RX. See Exhibits 1 & 3. Plaintiffs were

only able to discover this in July 2012 because Plaintiffs frequently provide medical services to

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND 2 AR 000122 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE personal injury victims and often have agreements to suspend collection efforts for extended

periods of time while the patients attempt to obtain compensation for the third parties responsible

for their injuries. See Exhibit 1. Thus far, Plaintiffs have identified over $40,000.00 in checks

that were stolen by the Defendants in the above-described manner, and expects to discover more

as investigation and discovery in this case progresses. See Exhibit 3. It is uncertain at this time

if additional checks were endorsed and deposited or cashed by other entities.

III. OBJECTION TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

6. Plaintiffs object to Exhibit B to Defendants' Motion for Summary Judgment on the basis

that the lease agreement is unsigned, and is therefore not relevant and is not evidence that

Sterling actually entered into the agreement. Alternatively, Plaintiffs object on the basis that the

lease is not the best evidence of any lease agreement that may have existed between Providian

and Sterling.

7. Plaintiffs object to Exhibits F, J, and K to Defendants' Motion for Summary Judgment

because they contain hearsay. Although Defendant Undavia attempts to lay the predicate for

these documents under the business records exception, these documents are clearly not created

by Defendant Undavia or her employees or representatives, and are therefore not based on the

employees or representatives' knowledge of the statements contained therein. See In re EAK,

192 S.W.3d 133, 142 (Tex. App.-Houston[14 1h Dist.] 2006). Under Texas law, a document

authored or created by a third party may be admissible as business records of a different business

if: (a) the document is incorporated and kept in the course of the testifying witness's business;

(b) that business typically relies upon the accuracy of the contents of the document; and (c) the

circumstances otherwise indicate the trustworthiness of the document. Simien v. Unifund CCR

Partners, 321 S.W.3d 235,240-41 (Tex. App.-Houston[lst Dist.] 2010, no pet.) (citing Bell v.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

AR 000123 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE 3 State, 176 S.W.3d 90, 92 (Tex. App.-Houston[1st Dist.] 2004, no pet.)). Defendant Undavia

failed to include such testimony, and as such Defendant Undavia's predicate with respect to

Exhibits F, J, and K to Defendants' Motion for Summary Judgment in defective and not

sufficient to prove the documents fall under the business records exception of Tex. R. Evid.

803(6). For this reason, Exhibits F, J, and K to Defendants' Motion for Summary Judgment

should be struck.

8. Plaintiffs object to Exhibit E to Defendants' Motion for Summary Judgment. The court

should deny Defendants' Motion for Summary Judgment because the Declaration of Khayati

Undavia attached as Exhibit E to Defendants' Motion is defective and does not present

competent summary judgment evidence. Tex. R. Civ. P. 166a(f). More specifically, Plaintiffs

object to the Declaration of Khayati Undavia on the following bases:

9. The Declaration of Khayati Undavia contains statements that are not based on

personal knowledge. Tex. R. Civ. P. 166a(f); Ryland Group, Inc. v. Hood, 924 S.W.2d 120,

122 (Tex. 1996); see Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761-62 (Tex. 1988);

Rizkallah v. Conner, 952 S.W.2d 580, 584-85 (Tex. App. -Houston[1st Dist.] 1997, no writ).

In paragraph 13 of the Declaration of Khayati Undavia, she states that Plaintiffs Nisal Corp. and

Sterling Practice Management, LLC "did not have any actual operations in the office space," and

that "Allied Medical Centers and Avant Medical Group were the entities that had operations in

the leased space." She does not any factual bases for this conclusion. Defendant Undavia does

not claim that she was involved in the operation of or has any familiarity with the operations of

those entities. Because Defendant Undavia does not offer any support for these statements, they

are merely factual conclusions with no underlying facts to support the conclusions and

unsubstantiated opinions of the affiant. Haynes v. City of Beaumont, 35 S.W.3d 166, 178

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE ARPAGE 000124 4 (Tex. App. -Texarkana 2000, no pet.); Rizkallah v. Conner, 952 S.W.2d 580,587 (Tex. App.-

Houston[lst Dist.] 1997, no writ); Harley-Davidson Motor Co. v. Young, 720 S.W.2d 211, 216

(Tex. App. -Houston[ 14th Dist.] 1986, no writ). Because those statements are not competent

summary judgment evidence, paragraph 13 of the Declaration of Khayati Undavia should be

struck.

10. The Declaration of Khayati Undavia contains statements that are merely legal

conclusions. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Rizkallah v. Conner,

952 S.W.2d 580, 587 (Tex. App. -Houston[lst Dist.] 1997, no writ). Defendant Undavia states

in paragraph 14 of her Declaration that "[f]or all matters concerning the lease, I communicated

with Brett Gamer in his capacity has [sic] a representative of not only Sterling and Nisal, but also

Avant and Allied." The capacity in which Dr. Gamer was acting at any specific time is a legal

conclusion, and Defendant Undavia does not state any facts which would support this

conclusion. Because Defendant Undavia does not offer any facts to support these conclusions,

the statements are also merely unsubstantiated opinions of the affiant. See Rizkallah v.

Conner, 952 S.W.2d 580, 586 (Tex. App. -Houston[lst Dist.] 1997, no writ); Harley-Davidson

Motor Co. v. Young, 720 S.W.2d 211, 216 (Tex. App. -Houston[14th Dist.] 1986, no writ).

Because those statements are not competent summary judgment evidence, paragraph 14 of the

Declaration of Khayati Undavia should be struck.

11. The Declaration of Khayati Undavia contains statements that are based on hearsay.

Fidelity & Cas. Co. v. Burts Bros., 744 S.W.2d 219,224 (Tex. App.-Houston[lst Dist.] 1987,

writ denied); see In re JA.M, 945 S.W.2d 320, 322 (Tex. App.-San Antonio 1997, no writ).

Paragraphs 11 and 14 contain statements about the contents of documents which are inadmissible

hearsay because Defendant Undavia has failed to prove the documents fall under the business

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

AR 000125 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGES records exception of Tex. R. Evid. 803(6). Because those statements are not competent summary

judgment evidence, paragraphs 11 and 14 of the Declaration of Khayati Undavia should be

IV. SUMMARY JUDGMENT EVIDENCE

12. Plaintiffs provide all parties with the notice to use and attach the following summary

judgment evidence and incorporate all such evidence herein for all purposes in accordance with

Tex. R. Civ. P. 166a(d):

a. Affidavit of Brett Gamer, attached hereto as Exhibit 1;

b. Affidavit of Carmen Manzo, attached hereto as Exhibit 2;

c. Cancelled Checks, attached hereto as Exhibit 3;

d. Original Petition from Cause No. 1036848, Sterling Practice Management, LLC and Nisal Corporation v. Providian Holdings, Inc., in the County Civil Court at Law No. 4, Harris County, Texas, attached hereto as Exhibit 4;

e. Mutual Release, attached hereto as Exhibit 5;

f. Assumed name filing for Allied Medical Centers, attached hereto as Exhibit 6; and

g. Public Information Report for Avant Medical group, P.A., attached hereto as Exhibit 7.

V. STANDARD OF REVIEW

13. Defendants have asserted a motion for summary judgment under Tex. R. Civ. P. 166a.

Under Tex. R. Civ. P. 166a, a summary judgment is only proper for a defendant if its summary

judgment proof establishes, as a matter of law, there is no genuine issue of material fact

concerning one or more of the essential elements of the plaintiff s cause of action. See Goldberg

v. United States Shoe Corp., 775 S.W.2d 751, 752 (Tex. App.-Houston [1 st Dist.] 1989, writ

denied). A defendant is entitled to summary judgment on a plaintiffs cause of action only if the

defendant can disprove at least one element of the cause of action as a matter of law. Sw. Elec.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE ARPAGE 000126 6 Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see Tello v. Bank One, NA., 218 S.W.3d

109, 113 (Tex. App.-Houston [14th Dist.] 2007, no pet.). In reviewing the granting of a motion

for summary judgment, the court should consider that all proof which is favorable to the non-

movant is true. SeeMMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986); see also Goldberg, 775

S.W.2d at 752.

VI. SUMMARY OF THE ARGUMENT

14. Defendants are not entitled to summary judgment for the following reasons:

a. The Release cited by Defendants does not concern the subject matter or claims

asserted in this lawsuit and therefore does not serve to bar Plaintiffs' claims (see pgs.

8-10);

b. The parties to the Release are not the same as the parties to this action, and

Defendants' "agency" theory lacks legal basis and factual support (see pgs. 11-16);

c. As the claims and parties to this lawsuit are different than in the previous lawsuit, the

doctrine of res judicata does not apply and does not bar Plaintiffs' claims (see pgs.

16-17);

d. Plaintiffs have pled a viable cause of action for conversion (see pg. 18);

e. Plaintiffs' claims are not barred by the applicable statutes of limitations or,

alternatively, Plaintiffs' inability to discover the Defendants' wrongful actions tolls

any applicable statute of limitations and because Defendants' fraudulent actions

concealed the wrongful actions from the Plaintiffs (see pgs. 18-20);

f. Defendants are not entitled to an award of attorney's fees (see pgs. 20-21).

15. For the above reasons, the Court must deny Defendants' Motion for Summary Judgment.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

AR 000127 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE 7 VII. ARGUMENTS & AUTHORITIES

A. THE PLAINTIFFS' CLAIMS ARE NOT WITHIN THE SUBJECT MATTER OF THE RELEASE

16. Because the scope of the claims covered by the Release is a threshold issue-i.e. if the

claims in the present case were not subject to the Release then the identity of the parties is

irrelevant-Plaintiffs address this issue first.

i. Texas law requires narrow construction of the Release.

17. "In order to effectively release a claim in Texas, the releasing instrument must 'mention'

the claim to be released. Even if the claims exist when the release is executed, any claims not

clearly within the subject matter of the release are not discharged." Victoria Bank & Trust

Co. v. Brady, 811 S.W.2d 931 (Tex. 1991) (emphasis added); see also Keck, Mahin & Cate v.

Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 697-98 (Tex. 2000); Baty v.

ProTech Ins. Agency, 63 S.W.3d 841, 850 n.7 (Tex. App.-Houston [14th Dist.] 2001, pet.

denied). Further, the Texas Supreme Court has explicitly stated that "general categorical

release clauses are narrowly construed." Brady, 811 S.W.2d at 938; Duncan v. Cessna

Aircraft Co., 665 S.W.2d 414,422 (Tex. 1984).

ii. The Release does not mention Plaintiffs' claims.

18. The Release which Defendants seek protection under reads, in relevant part:

WHEREAS, S'rnRLINO and NfSAL ff1ed IImt agltinllf. PROVIOlAN, No, 1036848, CQUl'l.ty Civil CQUrt,.t Lftw No.4. HIn'iIJ County. 'l~ lind

WHEUM. tbt partlt$ dNire to eompromillO. Jfttk! And provide for the full and final termluatiou of all of the !lAid eJalm4. deman4s. CA\*S 01 aet10n and di.putoI between (hem .risiui out of or rolatod to Illwh claims wmfolh either Pllrty IllII)' Ilt'W have or lmve bad qainlJt oaob other, III

without admittinl any of the aUeptionll set forth;

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE ARPAGES 000128 19. The Release clearly states that its subject matter is the Prior Lawsuit, and that the parties

to the Release intended to discharge "said claims"-the claims asserted in the Prior Lawsuit,

which pertained only to the security deposit under the commercial lease. See Exhibit 5. This

unquestionably shows that when the parties entered into the Release, they were contemplating

discharge of the claims asserted in the Prior Lawsuit. The Release has no mention of tort claims,

conversion, fraud, or any of the other claims asserted in the present lawsuit. See Exhibit 5. The

Release, therefore, does not "mention" the claims in the present lawsuit, and therefore the

Release did not discharge the Plaintiffs' claims.

20. The Texas Supreme Court has held that releases are to be construes in light of the facts

and circumstances surrounding the release. Brady, 811 S.W.2d at 939. The Prior Lawsuit did

not depend on the same set of facts as the present lawsuit, which was an action solely for the

return of a security deposit. Narrowly construing the Release, as Texas law requires, demands

that the claims in the present lawsuit not be held within the scope of the Release.

iii. Defendants have failed to meet their burden on summary judgment.

21. Defendants, for their part, claim that the Release "specifically mentions each claim in this

lawsuit." Negation of this claim requires no more than a quick look at any dictionary.

"Specific" denotes something that is "precise; definite; [or] explicit." WEBSTER'S NEW WORLD

COLLEGE DICTIONARY, 4TH ED. 1376 (2001). Again, the release makes no reference to any claim

based on tort, fraud, conversion, theft, breach of fiduciary duty, or any other claim contained in

Plaintiffs' live pleading. See Exhibit 5. The pleadings in the Prior Lawsuit, which gave rise to

the Release, do not contain any mention or reference to any of the factual or legal disputes which

for the basis of the present lawsuit. See Exhibit 4. Even the case law quoted by the Defendants

themselves states that for a claim to be discharged it must be mentioned, and that mentioning

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND 9 AR 000129 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE requires "that the claim being released come within the express contemplation of the release

provision when viewed in context of the contract in which the release provision is

contained." Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 254 (5 th Cir. 2000) (emphasis

added); Mem 'I Med. Ctr. Of E. Tex. v. Keszler, 943 S.W.2d 433,435 (Tex. 1997).

22. Defendants further attempt to support their argument by claiming that the commercial

leases form the basis of all of the claims in the present lawsuit. This assertion seems to be based

on nothing more than the fact that leases existed. None of the Defendants to this action were

signatories to the lease. Additionally, and most importantly, none of Plaintiffs' claims require

proof of the existence of a lease contract, of a landlord-tenant relationship between the parties, of

a breach of the terms of any lease, or any other fact germane to the claims in the Prior Lawsuit.

The subject matter of the present lawsuit and the Prior Lawsuit are wholly detached from one

another. Plaintiffs' claims would require the same pleading and proof whether or not a landlord-

tenant relationship existed. Because the Plaintiffs' claims in the present lawsuit do not concern

the same subject matter as the Prior lawsuit, they are not encompassed by the Release and

summary judgment must be denied.

iv. Defendants have failed to meet their burden for summary judgment.

23. Defendants' assertions that the parties "no doubt contemplated the claims in the present

lawsuit" is not supported either by a plain reading of the Release or any evidence presented in

Defendants' Motion. Because the Release does not mention any of the claims in the present

lawsuit, and because the Court must narrowly construe the Release, the Court must find that the

Release is not binding on any of the parties with respect to the present lawsuit and summary

judgment must be denied.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

AR 000130 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE 10 B. PLAINTIFFS WHO ARE NOT SIGNATORIES TO THE RELEASE ARE NOT BOUND BY IT

24. Defendants' arguments as to why all parties to the present action are included in the

release are somewhat convoluted. It seems, however, that the gist of the argument is as follows:

1) the Release includes a provision mutually discharging agents of the signatories; 2) various

agency relationships exist between the parties; and therefore 3) all Plaintiffs have released all

Defendants with respect to all claims in this lawsuit. Of course, as shown above, the claims in

this lawsuit are not within the scope of the Release, so the question of what parties are bound by

the Release does is effectively meaningless. However, even if this were not the case Defendants

have failed to show as a matter of law that the parties to this action are all bound by the Release.

25. The only party to this action that was also a party to the Release is Nisal Corp. d/b/a

Qua1care Rehabilitation. See Exhibit 5. However, because the claims in this action are not

within the scope of the Release, and because the Defendants are not protected by the Release,

Nisal is a proper party to this lawsuit and is not barred from asserting its claims. Even if any of

Nisal's claims were within the scope of the Release, however, Defendants' wrongful

concealment of material facts fraudulently induced Nisal into signing the Release. Defendants'

only legal theories as to why the other parties to this action should be bound are based on

agency, and based on these theories Defendants' Motion must fail.

i. Agents are not individually bound by the Release.

26. The first issue is to what extent agents of the signatories to the release are bound. The

general rule in Texas is that "signing a contract in a representative capacity does not bind the

agent personally to the contract." Elgohary v. Herrera, 405 S.W.3d 785, 790-91 (Tex. App.-

Houston[1 st Dist.] 2013); see RESTATEMENT (SECOND) OF AGENCY § 320 ("Unless otherwise

agreed, a person making or purporting to make a contract with another as agent for a disclosed

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

AR 000131 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGEtt principal does not become a party to the contract. "). Assuming an agency relationship exists,

Plaintiffs would assert that agents of the signatories to the Release are only bound to its terms to

the extent that 1) the claims asserted are within the scope of the release and 2) the claims are the

signatory's claims asserted on behalf of the signatory. Defendants cite no authority to support

their implicit position that the signatories to the Release had the authority to settle claims

belonging to their alleged agents on their behalf. Undersigned counsel can find no authority in

Texas law to suggest that a principal may release an agent's independent claims without being

granted the authority to do so. Therefore, to the extent the claims in the present lawsuit 1) are

not within the scope of the Release, and 2) do not belong to the signatories of the Release, the

claims are not barred by the Release.

ii. Plaintiffs have not asserted claims against Defendants in their capacity as agents of Providian.

27. Similarly, Defendants claim they are protected by the Release because they are agents of

Providian Holdings, LLC. However, the only claims against Defendants that could have

possibly been released are those against the Defendants in their capacity as agents for Providian.

Defendants seem to assert that by virtue of their supposed roles as agents for Providian, they

should be free from all liability for of their wrongful actions, whether or not those actions are

taken in their individual capacity or their capacity as an agent. In other words, under

Defendants' theory the Release encompasses all claims any agent of a signatory may have had

against any other agent of any other signatory, irrespective of whether the claims are connected

to their duties as agents or the subject matter of the Release. This is contrary to the general rule

in Texas that an agent is liable for his own torts. See, e.g., Williams v. Olivo, 912 S.W.2d 319

(Tex. App.-San Antonio 1995). Therefore, the Release cannot be said to offer protection to

agents of the signatories for wrongful acts performed outside of their capacity as an agent.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

AR 000132 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE 12 iii. Defendants have failed to prove all parties are bound by the Release.

28. Even the case law cited by Defendants betrays their own argument. Defendants concede

that "unless a party is named in a release, he is not released." McMillen v. Klingensmith, 467

S.W.2d 193, 197 (Tex. 1971). Defendants further concede that "a tortfeasor can claim the

protection of a release if he is referred to with such descriptive particularity that his

connection with the tortious event is not in doubt." Winkler v. Kirkwood Atrium Office Park,

816 S.W.2d 111, 113-14 (Tex. App.-Houston[14 th Dist.] 1991, writ denied). In spite of this,

however, Defendants argue that the release applies to all parties to the present case, only one of

which is actually named in the Release. See Exhibit 5. Again, Defendant tries to claim that all

parties to the present lawsuit are "specifically named" in the Release, even though a plain

reading of the release shows that this is not the case. See Exhibit 5. Thus, the Defendants are not

"named with specific particularity," as is required before they can claim protection under the

Release. Further, the Release concerns claims entirely different than the claims in the present

lawsuit. See Exhibit2 4 & 5. For this reason, the Defendants fail the second prong of the test as

well---even if they have a connection to the conduct which formed the basis of the Prior Lawsuit,

this lawsuit alleges claims based on wholly different conduct. Similarly, Defendants cannot

claim protection under the Release based on their allegation that all of the parties are "intimately

connected" to the lease agreements (a legal standard for which Defendants offer no authority).

As previously shown, the existence of a landlord-tenant relationship is not a prerequisite to any

of Plaintiffs' claims in this lawsuit, and therefore not relevant to this analysis. For these reasons,

Defendants may not claim protection under the Release.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

AR 000133 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE 13 iv. Defendants have failed to prove that all of the alleged agency relationships exist.

29. The second hurdle Defendants have to clear is proving that the agency relationships they

claim actually exist. Under Texas law, agency will not be presumed. Schultz v. Rural/Metro

Corp., 956 S.W.2d 757, 760 (Tex. App.-Houston [14th Dist.] 1997, no writ). An agent is one

authorized by another to transact some business for the principal; the relationship is a consensual

one between two parties, by which one party acts on behalf of the other, subject to the other's

control. Jamison v. Nat 'I Loan Investors, L.P., 4 S.W.3d 465, 468 (Tex. App.-Houston [1st

Dist.] 1999, pet. denied). Authorization to act and control of the action are the two essential

elements of agency. Gonzales v. Am. Title Co., 104 S.W.3d 588, 593 (Tex. App.-Houston [1st

Dist.] 2003, pet. denied). A question of agency is one of fact. See Jorgensen v. Stuart Place

Water Supply Corp., 676 S.W.2d 191, 194 (Tex. App.-Corpus Christi 1984, no writ).

Therefore, Defendants have the burden to show as a matter of law that the claimed relationships

exist. As will be shown, Defendants have failed to meet that burden.

30. With respect to the Plaintiffs, Defendants allege multiple, and sometimes conflicting,

agency relationships. Defendants allege that Dr. Gamer is an agent ofNisal, Avant, and Sterling.

Plaintiffs would remind the Court that, as previously shown, although an agent may bind the

principal, the reverse is not necessarily true, and Defendants have failed to show that this has

occurred as a matter of law in this case.

31. Next, Defendants allege that Avant is an agent of both Nisal and Sterling. Defendants

base this assertion on what can only be described as a staggering feat of mental gymnastics.

Defendants allege that Allied is a fictitious business name of Avant, Allied is also a fictitious

business name of Dr. Gamer, so therefore Avant is a fictitious business name of Both Allied and

Dr. Gamer, and is bound by the Release. Undersigned counsel is at a loss to understand how this

conclusion is reached. Avant Medical Group, P.A. is a professional organization organized

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND 14 AR 000134 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE under the laws of the state of Texas-a legal entity independent from the other parties to this

lawsuit. See Exhibit 7. It cannot be a fictitious business name of its own fictitious business

name. Dr. Garner owns the assumed name Allied Medical Centers, which he licenses to Avant

Medical Group, P.A. See Exhibits 1 & 6. Further, even if Both Dr. Garner and Avant have done

business under the name Allied Medical Centers, it does not follow that there is any kind of unity

between the two entities. Defendants further allege that Avant paid Sterling's rent, that Avant

procured an insurance policy for Avant. The offer no evidence for this other than a single check

from 2009 and insurance certificate from 2009 as the basis for this theory. Whether or not these

allegations are true, they do not address the two prongs of the agency test-whether Avant had

authority to act on behalf of Sterling, and whether Sterling had the right to control Avant's

actions. Gonzales, 104 S.W.3d at 593. Defendants do not cite any evidence to support their

claim that Avant is an agent of Nisal-the claim appears only in a section heading of their

Motion. In fact, Defendants also allege the opposite-that Sterling is the registered agent for

Avant. Therefore, Defendants have failed to prove that Avant was an agent for either Sterling or

Nisal.

iv. Whether Defendants are agents of Providian is not relevant.

32. Finally, the claim is made that Defendants Undavia and Minu RX, Ltd. are both agents of

Providian. So committed are the Defendants to this assertion that they admit that Providian is a

sham corporation and nothing more than the alter-ego of Minu RX, Ltd. However, Plaintiffs

cannot identify a reason why the existence of such a relationship is in any way relevant.

Plaintiffs have not sued Defendants for their actions as agents of Providian. Similarly,

Defendants have not pled or otherwise claimed that the wrongful acts at issue in this case were

performed in the course of their duties as an agent for Providian. The checks were taken by

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000135 PAGE 15 Defendant Undavia, at Minu's place of business, and deposited into accounts owned by Minu.

See Exhibit 3. Therefore, even if Defendants are agents for Providian, they are not protected by

the Release because the claims in this lawsuit are based on Defendants' independent conduct and

not on the subject matter of the Release.

33. For the above reasons, Defendants have failed to show as a matter of law that all parties

to this lawsuit are bound by the terms of the Release, and have failed to show that the claims in

this lawsuit were discharged by the Release. Therefore, summary judgment must be denied.

C. PLAINTIFFS' CLAIMS ARE NOT BARRED BY RES JUDICATA

i. The present lawsuit does not include the same issues as the Prior Lawsuit.

34. Defendants also ask the Court to grant summary judgment on the basis that the Plaintiffs'

claims are barred by the doctrine of res judicata. The Texas Supreme Court has adopted a

"transactional" approach to res judicata, under which a subsequent suit will be barred if it arises

out of the same subject matter of a previous suit and which through the exercise of diligence,

could have been litigated in a prior suit. Barr v. Resolution trust Corp., 837 S.W.2d 627 (Tex.

1992). In Barr, the Supreme Court stated that this transactional test "is substantially similar to

the [transaction or occurrence] rule of compulsory counterclaims." Id The main concern in the

transactional test is whether the cases share the same nucleus of operative facts. Samuel v.

Federal Home Loan Mortg. Corp., 434 SW 3d 230 (Tex. App.-Houston[l st Dist.] 2014). To

determine whether a prior suit and one under review involve the same basic subject matter, we

focus on the factual basis of the complaint. Espeche v. Ritzell, 123 SW 3d 657 (Tex. App.-

Houston[14 th Dist.] 2003). In determining whether the facts arose out of a single transaction,

courts consider whether the facts are related in time, space, origin, or motivation, and whether

they form a convenient unit for trial. Federal Home Loan Mortg. Corp., 434 SW 3d at 230.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000136 PAGE 16 That test is not satisfied here. The prior lawsuit concerned itself with one set of facts-the

termination of the lease agreements and whether security deposits were improperly withheld.

None of the facts necessary to prove the claims in the Prior Lawsuit are necessary to prove the

claims in the present lawsuit. See Exhibit 4. The wrongful acts forming the basis of this suit

occurred on multiple occasions, as opposed to the single event (refusal to return a security

deposit) that formed the basis of the Prior lawsuit. See Exhibit 4. Therefore the two lawsuits do

not share the same operative facts and res judicata does not apply. For this reason, summary

ii. The present lawsuit does not involve the same parties as the Prior Lawsuit.

35. The doctrine of res judicata also requires identity between the parties of the prior and

subsequent lawsuits. Espeche v. Ritzel!, 123 SW 3d at 665. A party appearing in an action in

one capacity, individual or representative, is not thereby bound by or entitled to the benefits of

the rules of res judicata in a subsequent action in which he appears in another capacity. Lesikar v.

Moon, No. 14-05-01246-CV, 2014 Tex. App. LEXIS 10041 (Tex. App.-Houston[lst Dist.]

Sept. 4, 2014). The only party to this action from the Prior lawsuit is Nisal Corp. All of the

other parties, including the Defendants, were not named in the Prior Lawsuit. Further, Plaintiffs

have not pleaded any claims which could have been brought against Providian in the Prior

Lawsuit, and the Defendants cannot claim that the legal rights being asserted are the same

between the two lawsuits. This lawsuit is clearly a different set of claims brought against a

different set of Defendants, and res judicata cannot apply. Therefore, Defendants' Motion must

be denied.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000137 PAGE 17 D. PLAINTIFFS ARE ENTITLED TO BRING A CLAIM FOR CONVERSION

36. In the present case, various persons and entities wrote checks payable to Plaintiffs, sent

the checks by mail to Plaintiffs, and the checks were actually delivered to Plaintiffs' mailing

address. See Exhibit 1. Because the Defendants obtained the checks at the same location where

they were mailed to Plaintiffs, the checks were stolen by the Defendants only after they had been

delivered to Plaintiffs' business address by the US Postal Service. See Exhibit 3. Therefore,

Plaintiffs received delivery of the checks and had, at the very least, constructive possession of

the checks and were holders of the checks. Under Texas law, even constructive possession is

sufficient to allow the Plaintiffs to prosecute their claim for conversion. See McAllen Hasp. v.

State Farm Mut. Ins. Co., 433 S.W.2d 535 (Tex. 2014). Therefore, Plaintiffs are entitled to bring

a claim for conversion of the checks.

37. Alternatively, because Plaintiffs were not allowed a separate mailbox, Defendant

Undavia agreed to accept the mail and deliver it to the Plaintiffs. See Exhibit 1. This is not, as

Defendant claims, a modification of the commercial lease, which is silent on the issue of mail

collection. This was a separate agreement with Undavia individually and as a representative of

Minu RX, which occupied the lower level of the building and received delivery of the mail on

behalf of all of the occupants. See Exhibit 1. For this reason, Defendant Undavia acted as an

agent of the Plaintiffs for the purpose of accepting the mail on their behalf. Thus, Defendants

have failed to show that they are entitled to summary judgment as a matter of law, and a fact

issue remains to be decided by the jury.

E. PLAINTIFFS' CLAIMS ARE NOT BARRED BY THE STATUTE OF LIMITATIONS

38. Under Texas law, an action for conversion does not accrue, and the statute does not begin

to run, until 1) the return of the property has been demanded and refused, or 2) facts supporting

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

AR 000138 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE 18 the cause of action are discovered. E.g. Burns v. Rochon, 190 S.W. 3d 263, 271 (Tex. App.-

Houston[1 st Dist.] 2006, no pet.). This is because, as shown above, Defendants' possession was

initially lawful; Defendants were charged with collecting the mail and delivering it to the

Plaintiffs. Because Plaintiffs did not discover the facts supporting their cause of action until

shortly before suit was filed, the statute did not begin to run until that time. Thus, summary

judgment with respect to Plaintiffs' conversion claim must be denied.

39. Additionally, Plaintiffs frequently provide medical services to personal injury victims and

often have agreements to suspend collection efforts for extended periods of time while the

patients attempt to obtain compensation for the third parties responsible for their injuries.

Plaintiffs are diligent in requesting status updates from their patients and patients' attorneys,

however many such requests go unanswered. Therefore, despite their diligence Plaintiffs were

not able to discover Defendants' theft until shortly before suit was filed in this case. Under the

discovery rule, a plaintiff s cause of action is deferred until it knows, or by exercise of diligence

should know, that of facts giving rise to the claim. See Barker v. Eckman, 213 S.W.3d 306, 311-

312 (Tex. 2006). Because Plaintiff exercised diligence and was not able to discover

Defendants' wrongful acts until recently, the statute of limitations on Plaintiffs' claims is tolled

and summary judgment should be denied.

40. Finally, the accrual of Plaintiffs' causes of action is deferred by the fact that Defendants

fraudulently concealed their theft. Fraudulent concealment occurs when 1) the defendant has

knowledge of the wrong, 2) the defendant conceals the wrong through misrepresentation or

silence when there is a duty to speak, 3) the defendant has a fixed purpose to conceal the wrong,

and 4) the plaintiff reasonably relied on the misrepresentation or silence. See Shah v. Moss, 67

S.W.3d 836, 841 (Tex. 2001). In the present case there is an obvious fact issue on all four of

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PAGE 19 AR 000139 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE these elements. The evidence clearly shows that Defendants received, stole, and deposited the

checks into Minu RX bank accounts. Therefore Defendants had knowledge of the wrongful acts

and their purpose was to conceal the theft. Defendants had a duty to speak based on their

obligation to deliver all of Plaintiffs' mail to the Plaintiffs, yet the Defendants remained silent.

Lastly, Plaintiffs relied on the silence because they were still receiving some checks and because

their business practice often includes delayed payment for services. Thus, the statute of

limitations is tolled by Defendants fraudulent concealment and summary judgment must be

denied.

F. DEFENDANTS ARE NOT ENTITLED TO ATTORNEY'S FEES

41. Defendants have requested attorney's fees under Tex. Civ. Prac. & Rem. Code §§ 37.009

& 38.001. First, Texas law is clear that Chapter 38 does not provide for the recovery of

attorney's fees by a defendant who only defends against a plaintiffs contract claim and presents

no contract claim of its own. American Airlines, Inc. v. Swest, Inc., 707 S.W.2d 545, 547 (Tex.

1986) (holding defendant could not recover attorney's fees under predecessor to section 38.001

when defendant presented no contract claim of its own); Garcia v. National Eligibility Exp., Inc.,

4 S.W.3d 887, 889 (Tex. App.-Houston [1st Dist.] 1999, no pet.). ; Energen res. MAQ, Inc. v.

Dalbosco, 23 S.W.3d 551, 558 (Tex. App.-Houston[lst Dist.] 2000). Therefore Defendants are

not entitled to attorney's fees under Chapter 38.

42. Defendants are also not entitled to attorney's fees on their Chapter 37 claim. First and

foremost, Defendants have not sought affirmative summary judgment on their declaratory claim.

Further, because they have not pleaded a valid declaratory judgment claim. Release is an

affirmative defense under the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 94; Henry v.

Mason 333 S.W.2d 825 (Tex. App.-Houston[l st Dist.] 2010). This amounts simply to a defense

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

AR 000140 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE 20 to Plaintiffs' allegations, and are therefore already properly before the Court. When a

counterclaim for declaratory relief presents issues that are already before the court as part of the

plaintiffs case, the declaratory judgment claim is not properly brought and the plaintiff has an

absolute right to a nonsuit. See BHP Petrol. Co., 800 S.W.2d at 838; General Land Office v. Oxy

US.A., Inc., 789 S.W.2d 569, 570 (Tex.l990)(quoting Weaver v. Jock, 717 S.W.2d 654, 657

(Tex. App.-Waco 1986, writ refd n.r.e.); Newman Oil Co. v. Alkek,614 S.W.2d 653, 655

(Tex.App.-Corpus Christi 1981, writ refd n.r.e.). Because Defendant's claim for declaratory

relief merely resists Plaintiffs' claims, Plaintiffs have an absolute right to nonsuit of this claim

and Defendants are not entitled to an award of attorney's fees. For these reasons, the Court

should deny Defendants' request for attorneys' fees.

VIII. CONCLUSION & PRAYER

Defendants have not and cannot show that they are entitled to judgment as a matter of

law. Further, Plaintiffs have easily shown that there is a genuine issue of material fact as to all of

Plaintiffs' claims and Defendants' affirmative defenses. For these reasons, Plaintiffs respectfully

request that the Court deny Defendants' Motion for Summary Judgment, and grant Plaintiffs

such other and further relief as the Court deems appropriate.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE AR 000141 PAGE 21 Respectfully submitted,

./

Matias J. Adrogue Attorney at Law State BarNo. 24012192 Robert Stephan Kaase State Bar No. 24083287 1629 West Alabama St. Houston, Texas 77006 713-425-7270 Telephone 713-425-7271 Facsimile service@mjalawyer.com

I hereby certify that a true and correct copy of the above and foregoing has been serv~ to all counsel of record in accordance with the Texas Rules of Civil Procedure, on this the ll.-~ay of February, 2015.

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND 22 AR 000142 OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE PAGE CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. d/b/a § IN THE DISTRICT COURT OF ALLIED MEDICAL CENTERS and § INTERVENTIONAL SPINE § ASSOCIATES, § § Plaintiffs § HARRIS COUNTY, TEXAS § VS. § § KHYATI MOHAMED UNDAVIA and § MINU RX, LTD. § 152nd JUDICIAL DISTRICT

AFFIDAVIT OF BRETT L. GARNER

BEFORE ME, the undersigned authority, personally appeared Brett L. Gamer, known to me to be the person whose name is subscribed herein, and acknowledged to me that:

1. "My name is Brett L. Gamer. I am over 18 years of age, of sound mind, and capable of making this affidavit. I have never been convicted of a felony or crime involving moral turpitude. The facts stated in this affidavit are within my personal knowledge and are true and correct.

2. "I am a chiropractor licensed to practice in the State of Texas since 1997. I primarily practice as a chiropractor with Nisal Corp. d/b/a Qualcare Rehabilitation, a Texas Corporation which does business as Qualcare Rehabilitation. In 2006, I filed an assumed business name with the Harris County Clerk's office for Allied Medical Centers. The Allied Medical Centers name is licensed by me to Avant Medical Group, P.A. Avant Medical Group, P.A., is a Texas professional association which does business as Allied Medical Centers and Interventional Spine Associates. I am also one of the owners of Sterling Practice Management, LLC, a management service organization which manages the non-medical business dealings of Avant Medical Group, P.A. Avant Medical Group, P.A., d/b/a Allied Medical Centers and d/b/a Interventional Spine Associates provides medical doctor services and is separate from Nisal Corp. d/b/a Qualcare Rehabilitation, which provides chiropractic and rehabilitation services.

EXHI~IT

1 .1-1 AR 000143 3. "Avant Medical Group, P.A. was not a party to any lease agreement with Providian Holdings, LLC, was not a party to Cause No. 1036848, Sterling Practice Management, LLC and Nisal Corporation v. Providian Holdings, Inc., in the County Civil Court at Law No.4, Harris County, Texas, and was not involved in the negotiation or execution of any settlement agreement in that case.

4. "From 2009 through March of2013, Nisal Corp. maintained its primary business location III a building owned by Providian Holdings, LLC and located at 2918 San Jacinto Street, Houston, Texas 77004 ("the Building"). Nisal Corp. occupied the upper level of the Building and Avant Medical Group, P.A. regularly provided medical services at the location. Sterling Practice Management, LLC performed the billing and collection functions for and Avant Medical Group, P.A. from its location at the Building. Memorial Compounding Pharmacy occupied the lower level. Khyati Undavia was the person with whom I interacted for matters concerning the space leased in the Building.

5. While the Nisal Corp. and Avant Medical Group, P.A. occupied the Building, Ms. Undavia informed me that Nisal Corp. and Avant Medical Group, P.A. were not permitted to have a separate mailbox in the Building. Instead, Ms. Undavia accepted all of the mail for all occupants of the building, separate Nisal Corp. and Avant Medical Group, P.A.'s mail from mail addressed to others in the Building, and deliver Nisal Corp. and Avant Medical Group, P .A. 's mail to the upper level. Nisal Corp. and Avant Medical Group, P.A. permitted Ms. Undavia to perform this function and allowed Ms. Undavia to receive and deliver the mail. Ms. Undavia expressly agreed to properly separate and deliver all ofthe mail.

6. "As part of my practice, I frequently treat patients who have been injured in accidents and who do not have health insurance. When treating these types of patients, I will often defer collection efforts until the patient is able to recover payment from the person or entity responsible for their injuries. For this reason, my practice will often receive payment from the patient or the patient's attorney several months or years after the patient has completed treatment and been discharged. When treating these types of patients, I send regular requests for status of payment to the patient or the patient's attorney.

2 AR 000144 7. "I was first infonned that checks addressed and made payable to Avant Medical Group, P.A. d/b/a Allied Medical Centers and d/b/a 1nterventional Spine Associates had been mailed to the Building and gone missing in July 2012 when I requested status from patients' attorneys and learned that payment had been issued but not received. The copies of checks attached as Exhibit 3 to Plaintiffs' Response to Defendants' Motion for Summary Judgment were received from the attorneys for patients on Nisal Corp. and Avant Medical Group, P.A."

Further affiant sayeth not.

Brett L. Gamer

SUBSCRIBED AND SWORN to before me on this the 13th day of February, 2015, to certify which witness my hand and seal of office. ~

/ ' _\/

~M~ - *c~oLCm~mt- UiS"-S~lO"'nl- -e- 'X-:-l-~-lsr:~o~ ~ ~ ~ ~ ~L~ ~ J ,~~~"::t:".. JENNIFER RODRIGUEZ ll~'" "'~t>\ Notary Public. State of Texas I ! '~'. J.J My Commission2016 Expires ";.~~''''<~'' • .. 11 June 15, \". "" ....'v-

3 AR 000145 CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. d/b/a § IN THE DISTRICT COURT OF ALLIED MEDICAL CENTERS and § INTERVENTIONAL SPINE § ASSOCIATES, § § Plaintiffs § HARRIS COUNTY, TEXAS § VS. § § KHYATI MOHAMED UNDA VIA and § MINU RX, LTD. § 152nd JUDICIAL DISTRICT

AFFIDAVIT OF CARMEN MANZO

BEFORE ME, the undersigned authority, personally appeared Carmen Manzo, known to me to be the person whose name is subscribed herein, and acknowledged to me that:

1. "My name is Carmen Manzo. I am over 18 years of age, of sound mind, and capable of making this affidavit. I have never been convicted of a felony or crime involving moral turpitude. The facts stated in this affidavit are within my personal knowledge and are true and correct.

2. I am the person in charge of maintaining billing and collection records for Sterling Practice Management, LLC. As part of my duties with Sterling Practice Management, LLC, I am the person in charge of maintaining billing and collection records for Avant Medical Group, P.A. d/b/a Allied Medical Centers and d/b/a Interventional Spine Associates. Exhibit 3 to Plaintiffs' Response to Defendants' Motion for Summary Judgment are checks payable to Avant Medical Group, P.A. or to its assumed business names Allied Medical Centers and Interventional Spine Associates. Checks received from patients and their attorneys are incorporated into the records of Avant Medical Group, P.A. and kept in the course of Avant Medical Group, P.A.'s business, Avant Medical Group, P.A. typically relies upon the accuracy of the contents of such documents, and the documents were placed into Avant Medical Group, P.A.' s business records at or near the time or reasonably soon after the time that they were received. The checks attached as Exhibit 3 to Plaintiffs' Response to Defendants' Motion for Summary Judgment are the originals or exact duplicates of the originals." PLAINTIFF'S EXHIBIT I 2, AR 000146 Further affiant sayeth not.

SUBSCRIBED AND SWORN to before me on this the 13th day of February, 2015, to certify which witness my hand and seal of office.

~,'111",~ .l'''~~'!.: !:':~'Io'lo JENNIFER RODRIGUEZ '''':' Y'i Notary Public. State of Texas \~. {~i My Commission Expires ~'~;:'I~~"~ June 15. 2016

AR 000147 Page 1 of 1

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-- CADENCE BANK 04/08114 Account: Name: THE DUNK LAW FIRM PLLC IOLTA 4505 CAROLINE Address: 4505 CAROLINE HOUSTON, TX 78701

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THE au.( LAW fiRM, PLLC -- .- 4981 ~'II/ l1li IOLTAACCOUIIT ~ CAilOLlNE$f. HDUtmlN, 1)( 71004 9i25I2013

Dlf.;.-._Alfied_M_ed_'C8_,_Center _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _---.ll $ "125.00 I ____ r -__________________________________ One HUnclred TWenty-FiVe and 00/100--· ................·."""_··_···_·.... __ ..._................._..._..............._......-..._••_._._..~ ________ '_..... _-_.. I~w: A

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http://206.153.254.148/gw-binlgwgtwy.dll/print?20131017-100-7-1080-91061080.htm AR 000151 4/8/2014 BRIAN LONCAR, P.C. 914006 ATTORNEY AT LAW P.I. TRUST ACCOUNT 424 SOUTH CESAR CHAVEZ BOULEVARD 8/30/2011 DALLAS, TEXAS 75201 1& (214) 747-0422 PAY TO THE Allied Medical Center $ **783 33 . I ORDER OF

Seven Hundred Eighty~Three and 33/100 .... ****-..···. ····_-_·_-***-_·**·_-******·....·· DOLLARS IJ Allied Medical Center

tt~DAVS 2918 San Jacinto t?J Ste#200 Houston, Tx 77004

MEMO AUTHORIZED SIGNATURE

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AR 000152 ~

BRIAN LONCAR. P.C. 913801 ATTORNEY AT LAW P.1. TRUST ACCOUNT 424 SOUTH CESAR CHAVEZ BOULEVARD 8130/2011 DALLAS, TEXAS 75201 1Ii (214) 747-0422 PAY TO THE ORDER or Allied Medical Center $ -1,781.73 I J One Thousand Seven Hundred Ei9ilty-one and 731100--..........· _...__ ....••...•••....•••.....• .....•............••...· - DOLLARS I Allied Medical Center 2070 FM 1960 W tn Houston, Tx 77090 I).OOMYS MEMO . . . - - - - . .. CHECKAMT: 1781.730Rii f FEAiUAES MiGRVPFUNi IOraBO' iQNi &JROeRSWlOREUMI lEAN NiCHCPFHiNi SklNAiUAEUN2 MEED • "ROUGh NOMSEAii4Q WS$riG FEAiURE.tcOiCAiESACOP,

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AR 000153 BRIAN LONCAR, P.C. AlTORNEY AT LAW P.1. TRUST ACCOUNT 424 SOUTH CESAR CHAVEZ BOULEVARD 813012011 DALLAS, TEXAS 75201 (214) 741-0422 1I ' PAY TO THE ORDER OF Allied Medical Center $ "'821.75 I !

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AR 000154 BRIAN LONCAR, P.C. 913766 ATTORNEY AT LAW P.1. TRUST ACCOUNT 424 SOUTH CESAR CHAVEZ BOULEVARD 8/30/2011 DALLAS, TEXAS 75201 ~ (214) 747-0422 Ii PAY TO THE ORDER OF Allied Medical Centers $ **982.50 I DOLLARS IJ Allied Medical Centers 5718 Bellaire Blvd. la Houston, Tx 77061

MEMO AUTHORlZEO SlBNATURE .. CHECKAMT: 982.50 j

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AR 000155 ".036848 e.C.C.l. # 4 o NO. _______________ "'J '1...1 [) !:-) STERLING PRACTICE MANAGEMENT, LLC IN COUNTY COURT AT LAW oc; NISAL CORPORATION u Plaintiff

vs. NO. _________________

PROVIDIAN HOLDINGS, INC. Defendant HAJUUSCOUNTY,TEXAS

PLAINTIFFS' ORIGINAL PETITION TO THE HONORABLE JUDGE:

Sterling Practice Management, LLC (hereinafter Sterling) and Nisal Corporation

(hereinafter Nisal) appear and file Plaintiffs' Original Petition against Defendant Providian

Holdings, Inc., and in support would show the court the following:

1. This is a Level One Discovery Control Plan case.

2. Plaintiffs are entities doing business in the State of Texas. Defendant Providian

Holdings, Inc. is a corporation doing business in the State of Texas and can be served

through its agent for service of process, Khyati Undavia, 2918 San Jacinto, Houston,

Texas 77004. Plaintiffs seek damages within the jurisdictional limits of the Court. The

FACTUAL BACKGROUND 3. Sterling entered into a lease agreement with Defendant. Pursuant to the terms of the

lease, Sterling made a security deposit in the amount of $2000.00. Upon termination of

the lease and sixty days after Sterling provided a forwarding address, Defendant has

refused to refund the security deposit to Sterling. Defendant has acted in bad faith.

Defendant is liable to Sterling for the full security deposit of $2000.00, plus a statutory

~ PLAINTIFF'S ~ EXHIBIT

~ ~ 4: AR 000156 ..

-. ~-

C} penalty of $100.00, plus an additional statutory penalty of $4000.00, plus reasonable ':l '1. ...;

() D attorney's fees. Defendant has acted in bad faith by not providing a written description 0 E and itemized list of damages and charges, if any, and thus has forfeited its right to I "? withhold a portion of the security deposit for such damages and charges. ":{ \_~

C .. _i 4. Nisal entered into a lease agreement with Defendant. Pursuant to the terms of the lease, () C) Sterling made a security deposit in the amount of $3600.00. Upon termination of the if 4 lease and sixty days after Nisal provided a forwarding address, Defendant has refused to

refund the security deposit to Nisal. Defendant has acted in bad faith. Defendant is

liable to Sterling for the full security deposit of $3600.00, plus a statutory penalty of

$100.00, plus an additional statutory penalty of $7200.00, plus reasonable attorney's

fees. Defendant has acted in bad faith by not providing a written description and

itemized list of damages and charges, if any, and thus has forfeited its right to withhold

a portion of the security deposit for such damages and charges.

WHEREFORE PREMISES CONSIDERED, Plaintiffs pray that Defendant Providian

Holdings, Inc. be cited to appear and that judgment be taken against it for all damages

suffered by Sterling in the amount of $6100.00 (consisting of the security deposit due and

owing and all statutory penalties), plus reasonable attorney's fees, and that judgment be

taken against it for all damages suffered by Nisal in the amount of $10,900.00 (consisting of

the security deposit due and owing and all statutory penalties), plus reasonable attorney's

fees, plus all costs of court, plus and any all further relief Plaintiffs may be entitled to.

AR 000157 ,

PHILLIP BRANTLEY AND ASSOC., P.C. o 6 D'Jk~~ ~iJilip~raIltle~O SBN 02899727 Arena Tower II 7324 Southwest Freeway, Suite 1020 o Houston, Texas 77074 o (713) 270-4053 phone 4 (713) 270-0682 facsimile ATTORNEYFORP~ITP

P'ii

0 w -- E tIC J~ ~IL ~k 1./b~2'. -' IJ')

u.. I G- I( L&J en ~~ I \ij

AR 000158 Law Office of Phillip Brantley and Associates, P.C. Arena Tower II 7324 Southwest Freeway, Suite 1020 Tel (713) 270-4053 Houston, Texas 77074 Fax(713)270~2

phiUipbrantley.com

September 3, 2013

Stan Stanart o County Clerk o Civil Courts Building 4 201 Caroline, Suite 300 ~ '-' Houston, Texas 77002

RE: Sterling Practice Management, LLC, et al. vs. Providian Holdings, Inc.

Dear Mr. Stanart:

Enclosed are an original and two copies of Plaintiff's Original Petition. Please return one copy to me in the self-addressed stamped envelope and stamp the other copy and return it to me with the citation attached. Also enclosed is my check for $221.00.

htiUprantley

AR 000159 :.- ~) L-d C> l:.~ ., 1..3'1 c..w ~\.1 ---""; ~ , en () iIi C) !~:; =.,-: ::':,; f\1

:~~~i,~~*~'j;~~'~~'~~~·~/~'~~:.~\~t~)i~:;Z~'!.!.;~\\~::'''~il~':i.\';J~ H :\\i~-,·f·) ., ....; ~ ":.;:,:,,.. ~I ~y,i /~ \l'~.\\"f. ...~-:-.,

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PHIlip Erantley ami Associates, PC Arera Tower II 7324 Sout!lwest Freeway, Suite 1020 . tl~POS~- . Houston, Texas 77074 . fi1{t'/ di ,- • ~""""'_PlrN~ ~ {~~ 1;> $001.06° r • (;:}GO~;3 :863 SEP 04 2;) i:3 • "'1'--..) Mrd.E ,....,..,I'~ ... , . . . F".\."ni·l ~lP I.,.IOUt: ~-..,---. I ! l).' '1"

?'

Stan S~anarl .. -----~ County Gerl{ Ci-, il Courtft£.';iiding 20~ Caroline, Suite 300

t Houston. TX 77002 i

·77t:;tZi.'2$~caE2 ". Jj.JJ 'J!'!tIt1JbJ,#il.i4J.i.iNuJI1' III II '/III Il' IIi /I IIJjl 1' /"

.-... AR 000160 MUTUAL RELEASE

THE STA1E OF TEXAS

WHEREAS, certain disputes, claims and causes of action existed by and between

STERLING PRACTICE MANAGEMENT, LLC, its officers, directors, shareholders, partners,

successors, agents, assigns, employees, servants andattomeys (hereinafter STERLING) and

PROVIDIAN HOLDINGS, INC., its officers, directors, shareholders, partners, successors, agents,

assigns, heirs, employees, servants and attorneys (hereinafter PROVIDlAN), arising from a

WHEREAS, certain disputes, claims and causes of action existed by and between

NISAL CORPORATION, its officers, directors, shareholders, partners, successors, agents,

assigns, employees, servants and attorneys (hereinafter NISAL) and PROVIDIAN HOLDINGS,

INC., its officers, directors, shareholders, partners, successors, agents, assigns, heirs, employees,

servants and attomeys (hereinafter PROVIDIAN), arising from a commercial lease; and

WHEREAS, STERLING and NISAL filed suit against PROVIDIAN, No. 1036848,

WHEREAS, the parties desire to compromise, settle and provide for the full and final

termination of all of the said claims, demands. causes of action and disputes between them arising

out of or related to such claims which either party may now have or have had against each other. all

NOW, THEREFORE, for and in consideration of a check written by PROVIDIAN to

STERLING AND NISAL and Phillip Brantley and Associates, PC in the amount of $7600.00, the

mutual releases contained herein, and other good and valuable consideration, the receipt and

~ PLAINTIFF'S ...I EXHIBIT

~ 5 EXHIBIT C ~ AR 000161 sufficiency ofwbich is hereby acknowledged, STERLING AND NISAL, their officers, directors,

shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys

hereby RELEASE, ACQUIT and FOREVER DISCHARGE PROVIDIAN, its officers,

directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and

attorneys from any and all liabilities. claims, demands, causes of action, judgments, liens,

liabilities or potential claims or causes of action which STERLING AND NISAL have ever had or

could have had, whether now known or unknown, which have arisen or may arise from the

beginning of time to the date of this release, including, without limitation;

NOW, THEREFORE, for and in consideration of the acceptance of the aforesaid check

written by PROVIDlAN to STERLING AND NISAL and Phillip Brantley and Associates, PC in

the amount of $7600.00, the mutual releases contained herein, and other good and valuable

consideration, the receipt and sufficiency of which is hereby acknowledged, PROVIDlAN, its

officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs

and attorneys hereby RELEASE, ACQUIT and FOREVER DISCHARGE STERLING AND

NISAL, their officers, directors, shareholders, successors, agents, assigns, employees, servants,

partners, heirs and attorneys from any and all liabilities, claims, demands, causes of action,

judgments, liens, liabilities or potential claims or causes of action which PROVIDAN has ever had

or could have had, whether now known or unknown, which have arisen or may arise from the

beginning of time to the date of this release, including, without limitation.

Upon signature of all parties, STERLING AND NISAL shall file a nonsuit with prejudice.

The parties hereto represent and warrant that the persons executing this Mutual Release on

their behalf as shown on this instrument is authorized to bind same.

AR 000162 It is understood and agreed that this is a final Mutual Release, that no further consideration

is to be paid by any of the parties. and that this settlement is in compromise of disputed claims and

is not to be construed as an admission of liability.

BEFORE ME, on this day personally appeared, Wi {1l{( m +h of STERLING PRACTICE MANAGEMENT, LLC, whose name is subscribed to the foregoing t.,,[S!, Mutual Release, and who, acknowledged to me that he/she executed the Mutual Release as the act and deed of said entity, for the purposes and consideration therein expressed, and in the capacity therein stated.

GNEN W1der my hand and seal of office D~in hrA ,2013.

NOTARYP LICIN AND FOR THE STATE OF TEXAS

MARIA PATRICIA MUNIZ My Commlssloll Expires May 14.2016

AR 000163 NISAL CORPORATION

MARIA PATRICIA MUNIZ My Commission Expires May 14.2016

AR 000164 PROVIDIAN HOLDINGS, INC.

BEFORE ME, on this day personally appeared, elf( , of PROVIDIAN HOLDINGS, INC., whose name is subscn to the foregoin Mutual Release, and who, acknowledged to me that he/she executed the Mutual Release as the act and deed of said entity, for the purposes and consideration therein expressed, and in the capacity therein stated. OG.r~ GIVEN under my hand and seal of office, thi. ,2013.

NOTARY Ie IN AND FOR KEIl1i CHUNN. JR. THE STATE OF TEXAS ~ . ~. . i MY COMMlSSION EXPIA'eS \.~.:.'$J November 14. 2016 . ~

.~--- .... -.. ---:. ,-:~:;:..~ .~. ';"

:l(;-.~·"':"'-:?:"'!~·~:-~::':'-~' <00;,-: ~'i· • .": .:: ~~:: ••\ ) ( .. :' ~ :' ~',

-)! 9~O~ 'p~,!';.tt'iV_ ':~J ;~~~~,~ ":, ;,~ " "

,;t S3~~~X~~I~~?:~':~;:~.·:.~~,~~~::}L',~~,;:!

AR 000165 FILED omCEOFBEVERLYB KAUFMAN,COUNTYCLERK,HARRISCCUNTY,TEXA&,OOCHAR -2O AH 9: 50

~ P,O,BOXlS2S-HOUSTON,lEXAS772SJ-IS2S L B 3948:13 03102/fJ6 600H36N $16.00 L \~~ ASSUMED NAME RECORDS /1 I ;;'It", Assuned Ilalle CERTIFICATE OF OWNERSHIP FOR .11 Je,;;t ~ .1:541) ~ (I

UNINCORPORATED BUSINESS OR PROFESSION 'Id'-" (j ~ COUllTY CLERI{ Ht IlRI< rl'I'mY, TFXAS [A beginning cbaracterotber than a letter or a number, or the last portion ora name tbat exceeds 57 cbaracters, will not be reflected in tbe indices, Pleas. print legibly,)

NAME IN WHICH BUSINESS IS OR WILL BE CONDUCTED: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ ALLIED MEDICAL CENTERS

BUSINESS ADDRESS 5718 BELLAIRE BLVD

CITY HOUSTON STATE_T_X_ _ _ _ _ _ _ ZIP 77081

PER(OD{~ot to exceed 10 years) DURING WHICH ASSUMED NAME WILL BE USED: _1_0_ _ _ _ _ _ _ _ _ _ _ _ _ __

BUSINASS IS TO BE CONDUCTED AS (Check One): :KJ Sole Proprietorship 0 Sole Practitioner 0 Other_ _ _ _ _ _ _ _ _ __ o Gen~ral Partnership 0 Joint Venture 0 Joint Stock Company 0 Real Eslate Investment Trust

l!We, the underStgnc.J,.amlarc ih!JQW\ler(s) of the above business and my/ourname(s) and addressees) given is/are true and correct, and there is/are no ownership(s) in seid businew other than those listed below,

SIGNATURE'lL~Lg~ -NAMES OF OWNERS- NAME GARNER,BRETT LEWIS (prUtlD#'rypc1 ... Rllsidence Address 5903 SOLAR POfi\IT .. 1\ City: HOUSTON ... State: TX Zip: 77041

NAME SIGNATURE (pri4lfJl''1P'J Residence Address

City: State: Zip:

NAME SIGNATURE (pNtltWt;JIp'; Residence Address

City: ••• Staie: Zip:

,. If this instrument is executed by an attorney-in-fact, the attorney-in-factlterebysllItes tbat slhe/they baslbave been duly authorized in writing by hislher principal to execute and acknowledge the same.

THE STATE OF TEXAS COUNTY OF HARRIS BEFORE ME, THE UNDERSIGNED AUTHORlTY, on this day persOl\UIIy JlPPClared _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ GARNER,BRETTLE~S

SHARON B, STEWART

!. PLAINTIFF'S ~ EXHIBIT

~~ Is> AR 000166 FIL,EO In ttl. OffIce of l1e SeCl'lt.ry of .... ofT.,., JUL 1 4 20lrfi Oofporationa 8e6IJ . .......

Office of the Corporations Section Secretary of State P.O. Box 13697 Form 204 Austin, Texas 78711-3697 (Revised 01/06) 512-463-5555 Fax: 512-463-5709

Filing Fee: $750 , ,

CERTIFICATE OF FORMATION PROFESSIONAL ASSOCIATION

Artide-l- Entity Name and Type

The filing entity being fonned is a professional association. The name of the entity is Avant Medical Group. P .A.

Article 1 - Registered A&eat and Registered Office (Select and complete ~ A or B and complete C)

lID A. The initial registered agent is an organization (cannot be entity named above) by the name of: Sterling Practice ManagemenL L.P.

or o B. The initial registered agcnt is an individual resident of the state whose name is set forth below:

First Name MI Last Name SUffIX

C. The business address of.the registered agent and the registered office address is:

5718 Bellaire Blvd Houston Texas 77081 Street Address City Slale Zip

Artiele 3 - Governing Penon. Select ~ A or B. (A minimum of 1 individual is required.)

A. 00 The professional association is to be managed by a board of directors. The names and addresses of the members who are to serve as initial directors are set forth below: ~ ii,; 1~ it I'

l' I " it ~d:

~ PLAINTIFF'S RECEIVED ~ EXHIBIT

.~', " , . '1' , '::: A /: ,. :' . ~ 7 ~ AR 000167 Secretary of State /

OR

B. 0 The professional association is to be managed by an executive committee. The names and addresses of the members who are to serve on the executive committee are set forth below:

Anteneh T. Roba First Name MI Last Name Sulfa

223 Westheimer Road Houston Texas USA 77006 Strut Address City State COlin I')' Zip

Article .of - Purpose . The type of professional service to be provided by the professional entity is (use space provided. below): Medical services. .!

SupplemeDtal ProvisioasllnformadoD Text Area: [The atfa(;hed addendum, ifany, ifineorporated herein by refctence.]

Origblal Members

A member of the association may not dissolve the association independently of other members of the association. The name and address of each .original J?1ember of the association is:

Anten¢h T. Roba First Name MI Last Name Suffix

223 Westbeimer Road Houston Texas USA 77006 Street Address City State Country Zip

Efreedveness of FillDg (Select either A, S or C)

A. £8J This document becomes effective when the document is tiled by the Secretary of State. '.' B. 0 This document becomes effective at a later date. which is not more than ninety (90) days from the date of signing. The delayed.effective date is: _-::--_ _ _ _~--:----:-_"':' C. 0 This document takes effect upon the occurrence of the future event or fact, other than the passage of time. The 90111 day after the day of signing is: _ _ _ _ _ _ _ _ _ _ __

The following event or fact will cause the docwnent to take effect in the manner descnbed below: .

AR 000168 Exeeution

'The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument. ~ Date: I 113} a :2) ~R~~~~ofJo~n~~~~~I~m~em~N~r=:~----------

L

AUS:2681595.i 53:124.1

AR 000169 CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF d/b/a ALLIED MEDICAL CENTERS § and INTERVENTIONAL SPINE § ASSOCIATES, § § Plaintiffs § § VS. § HARRIS COUNTY, TEXAS § KHYATI MOHAMED UNDAVIA, § MINU RX, LTD., and MINU GP, § L.L.C., § § 152ND JUDICIAL DISTRICT Defendants

DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Defendants Khyati Mohamed Undavia, Minu RX, Ltd., and Minu GP, L.L.C. file

this Reply to Plaintiffs’ Response to Defendants’ Motion for Summary Judgment and would

respectfully show the Court as follows:

1. Without doubt or dispute, Nisal and Garner released Defendants in the Mutual

Release. They are out. So to retain any modicum of credibility, Plaintiffs should have

jettisoned Nisal and Garner from this lawsuit.

2. Instead, Plaintiffs double down on their bet and contend that the “scope” of the

release is controlling. Defendants’ readily agree. The scope of the Mutual Release is so

1 AR 000170 broad and all-encompassing that it covers any known or unknown claims, whether or not

they were actually asserted in the underlying lawsuit. Nothing could be broader than that.

All of Plaintiffs’ current claims are captured and released.

3. Finally, Plaintiffs make minute, ticky-tack arguments to throw the kitchen sink at the

Court. Yet Plaintiffs go to no pains to discuss or distinguish the insurmountable case law

cited in Defendants’ motion for summary judgment. If ignoring the law is the approach

Plaintiffs chose to defeat summary judgment, then the outcome for this Court is simple—

Defendants are entitled to judgment as a matter of law.

II. REPLY

A. THE MUTUAL RELEASE INCLUDED “ALL” CLAIMS, WHETHER “KNOWN OR UNKNOWN,” AND THEREFORE SPECIFICALLY MENTIONED PLAINTIFFS’ CLAIMS IN THIS LAWSUIT.

9. In paragraph 16 of their response, Plaintiffs contend that the scope of the release is

a threshold issue. Defendants will take Plaintiffs' cue on that point and show this Court

how that threshold issue is dispositive of all of Plaintiffs' claims in this current lawsuit.

10. As to scope, Plaintiffs argue that they executed the Mutual Release to resolve only

the County Court Lawsuit. Therefore, only the claims in that lawsuit have been released.

11. This argument ignores the broad, all-encompassing language of the Mutual

Release, which extends to “any and all liabilities, claims, demands, causes of action,

judgments, liens, liabilities or potential claims or causes of action which . . . [the parties

and their agents] . . . have ever had or could have had, whether now known or unknown,

which have arisen or may arise from the beginning of time to the date of this release[.]”

2 AR 000171 (See Mutual Release, p. 2) (emphasis added). This language is not limited by or tailored

to the claims in the underlying County Court Lawsuit. No claims are reserved for future

litigation. The Mutual Release extends to all claims, including those currently asserted

by Plaintiffs in this lawsuit.

12. Plaintiffs rely heavily on Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931

(Tex. 1991) for the incorrect proposition that a release only extends to extant, pending

claims in a lawsuit. However, Brady dealt with far different facts. There, the parties

entered into a settlement agreement that released the bank “from any and all claims and

causes of action . . . directly or indirectly attributable to the above described loan

transaction.” Id. at 938 (emphasis added). The original plaintiffs then filed a new suit

against the bank that did not involve the “above described loan transaction.” Id. The

court held that the only claims the settlement agreement released were those dealing with

the “above described loan transaction,” and thus, did not bar the plaintiffs’ current claims

against the bank. Id.

13. The Texas Supreme Court acknowledges the narrow holding of Brady. In Keck,

Mahin & Cate v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 698 (Tex.

2000), the court states:

[In Brady], we noted that the parties’ agreement plainly limited itself to the specific loan and thus did not cover [the] other transaction. The present release is clearly broader than the one in Brady. It is not expressly limited to a specific claim or transaction but rather purports to cover “all demands, claims, or causes of action of any kind whatsoever.” Nothing in Brady forbids such a broad-form release. ....

3 AR 000172 Although Releases often consider claims existing at the time of execution, a valid release may encompass unknown claims and damages that develop in the future.

Id. at 698 (emphasis added).

14. Unlike the release in Brady, and exactly like the release in Keck, the Mutual

Release in this case is not limited to claims arising out of a particular transaction.

Instead, the Mutual Release extends to “all” claims whether “known or unknown,” and

without regard to whether they were actually asserted in the County Court Lawsuit. (See

Mutual Release, p. 2).

15. Keck similarly disposes of Plaintiffs’ reliance on the Mutual Release’s recital

paragraph. In Keck, the court held that the specific mention of a pending claim in a

recital paragraph did not otherwise reduce or narrow the scope of the broad-form release

language that followed. See Keck, 20 S.W.3d at 698.

16. When the parties signed the Mutual Release, the claims asserted in this lawsuit

were existing claims. Thus, they were specifically mentioned by the Mutual Release and

released.

B. THE MUTUAL RELEASE PLAINLY EXTENDS TO THE PARTIES’ “AGENTS,” AND THEREFORE INCLUDES GARNER, AVANT, ALLIED, UNDAVIA, AND MINU

(i) Garner, Allied, and Avant, as agents of Sterling and Nisal, are bound by the plain language of the Mutual Release.

17. Plaintiffs argue that Sterling and Nisal had no authority to release claims

belonging to their agents, Garner, Avant, and Allied. Unable to find any support for

their untenable position, Plaintiffs simply point the finger back at Defendants:

“Defendants cite no authority to support their implicit position that the signatories to the

4 AR 000173 Release had the authority to settle claims belonging to their alleged agents on their

behalf.” (See Plaintiffs’ Response; ¶26).

18. Defendants, however, rely on the plain, unequivocal language of the Mutual

Release. This language provides that Sterling and Nisal’s agents are also releasing any

claims they may have against Defendants.

19. Further, Plaintiffs contend that Sterling and Nisal lacked “authority” to release

claims on behalf of the other Plaintiffs. Garner—the individual that signed the release—

is a principal for each of the Plaintiffs. Broken down, Plaintiffs argue that Garner, in his

capacity with Nisal, did not have authority to release claims belonging to Garner

personally or to his other companies. That argument makes no factual or legal sense. Is

Garner somehow divorced from the knowledge of the Mutual Release just because he

signed the document in a corporate capacity? That he signed the document in any

capacity eliminates any doubt that he is a party releasing Defendants.

20. Plaintiffs provide no support to counteract the plain language of the Mutual

Release. Garner, Allied, and Avant—as agents of Nisal and Sterling—have released their

claims against Defendants.

(ii) Defendants are agents of Providian and therefore fall under the protection of the Mutual Release.

21. Plaintiffs then argue that although they may have released Defendants in their

capacity as agents of Providian, they did not release Defendants in their “individual

capacity.” After all, Plaintiffs argue, “an agent is liable for his own torts.” Williams v.

Olivo, 912 S.W.2d 319 (Tex. App.—San Antonio 1995).

5 AR 000174 22. Once again, this argument is disposed of by the plain language of the Mutual

Release, which extends not simply to Providian but also to Undavia and Minu as

Providian’s agents. Plaintiffs categorically released Undavia and Minu from “all claims,”

regardless of whether those claims arose in their individual or agency capacities, or in tort

or otherwise.

(iii) By specifically mentioning “agents,” the Mutual Release specifically mentioned Garner, Avant, Allied, Undavia, and Minu.

23. Plaintiffs next argue that Defendants belied their own argument by citing to

McMillen v. Klingensmith, 467 S.W.2d 193, 197 (Tex. 1971) for the proposition that

“unless a party is named in a release, his not released.” Plaintiffs argue that because they

were not identified by name in the Mutual Release, they are not bound by it.

24. Once again, Plaintiffs ignore the plain terms of the Mutual Release, which extends

to Sterling, Nisal, and Providian’s “agents.” There is no requirement that a release

specify a party by their legal name. Garner, Avant, and Allied are agents of Nisal and

Sterling. Undavia and Minu are agents of Providian. Therefore, they were specifically

mentioned by the Mutual Release.

C. DEFENDANTS ESTABLISHED, AS A MATTER OF LAW, THAT PLAINTIFFS GARNER, ALLIED, AND AVANT ARE AGENTS OF STERLING AND NISAL, AND THAT UNDAVIA AND MINU ARE THE AGENTS OF PROVIDIAN

(i) Avant Is the agent of Sterling, and Garner and Allied are the agents of Nisal.

25. Plaintiffs next contend that Defendants failed to prove that Avant, Garner, and

Allied are agents of either Nisal or Sterling.

6 AR 000175 26. First, Garner is plainly an agent of Nisal—he is Nisal’s director, president, and

registered agent. Plaintiffs don’t even bother contesting this point. Second, Plaintiffs

themselves admit in their pleadings that Allied is simply a d/b/a for Garner. In other

words, Garner and Allied are legally the same. Allied is, therefore, also an agent of

27. Regarding Avant, Defendants introduced evidence showing that although Sterling

was the actual lessee, Avant paid Sterling’s rent and procured a rental insurance policy on

Sterling’s behalf. (See Exhibits J and K to Defendants’ Motion for Summary Judgment).

Defendants further testified that Avant was the entity that actually operated in the

building. (See Declaration of Khyati Undavia, ¶13; Ex. E to Defendants’ Motion for

Summary Judgment). Plaintiff Garner confirmed this fact, testifying in his affidavit that

“Avant Medical Group, P.A. regularly provided medical services [in the Building].” (See

Affidavit of Brett Garner, §4). Finally, there is no testimony to controvert Khyati

Undavia’s clear, unequivocal testimony that Avant acted as Sterling and Nisal’s agent

with respect to the lease. (See Declaration of Khyati Undavia; §13;Ex. E to Defendants’

Motion for Summary Judgment).

28. Finally, there is ample, uncontroverted evidence that Garner is also an agent of

Avant. Garner himself testifies: “I am also one of the owners of Sterling Practice

Management, LLC, a management service organization which manages the non-medical

business dealings of Avant Medical Group, P.A.” (See Affidavit of Brett Garner; ¶2;

Ex. 1 to Plaintiffs’ Response) (emphasis added). Undavia further testified that “For all

matters concerning the lease, I communicated with Brett Garner in his capacity [as] a

7 AR 000176 representative of not only Sterling and Nisal, but also Avant and Allied.” (See

Declaration of Khyati Undavia; ¶13; Ex. E to Defendants’ Motion for Summary

Judgment). Undavia further testified that Garner is a chiropractor for Avant. Id.

29. As a matter of law, Defendants established that an agency relationship existed

between Sterling and Nisal on one hand, and Garner, Allied, and Avant, on the other.

(ii) As a matter of law, Undavia and Minu are the agents of Providian

30. Unable to controvert Undavia and Minu's clear-cut agency relationship with

Providian, Plaintiffs instead formulate an arbitrary and legally insignificant distinction:

Plaintiffs have not sued Undavia and Minu in their capacities as Providian’s agents and

thus, have not released them.

31. Once again, Plaintiffs’ argument ignores the plain language of the Mutual Release.

Plaintiffs released Minu and Undavia from “all” claims, whether “known or unknown,”

whether or not they arose out of their agency capacities with Providian. Further, there is

simply no authority for Plaintiff’s proposition that an agent—when specifically identified

in a release—is not released for claims arising in his or her individual capacity.

32. As a matter of law, Undavia and Minu are Providian’s agents and are protected by

the Mutual Release.

D. RES JUDICATA APPLIES BECAUSE THE PARTIES ARE THE SAME AS IN THE ORIGINAL LAWSUIT AND BECAUSE THE CLAIMS ARISE OUT OF THE SAME NUCLEUS OF FACTS

33. Plaintiffs argue that res judicata does not apply because their current claims and

their previous claims “do not share the same operative facts,” and further, that the parties

8 AR 000177 in this lawsuit are nominally different than in the County Court Lawsuit. (See Plaintiffs’

Response; ¶ 34). Plaintiffs’ argument fails.

34. First, it is of no consequence that this lawsuit and the County Court Lawsuit do not

involve precisely the same issues. Res judicata “prevents the relitigation of a claim or

cause of action that has been finally adjudicated, as well as related matters that, with the

use of diligence, should have been litigated in the prior suit.” Barr v. Resolution Trust

Corp., 837 S.W.2d 627 (Tex. 1992) (emphasis added). Here, the same “nucleus of

operative facts” between this lawsuit and the former lawsuit are in play: Garner and his

companies are suing Undavia and her company for something that arose out of their

landlord-tenant relationship. This landlord-tenant relationship forms the nucleus out of

which all of Plaintiffs’ claims arose, whether in this lawsuit or in the County Court

Lawsuit. Thus, Plaintiffs’ current claims are related to their former claims and are

subject to res judicata.

35. As proof positive of this notion, consider the factors enunciated in Plaintiffs’ cited

case, Samuel v. Federal Home Loan Mortg. Corp., 434 S.W.3d 230 (Tex. App.—

Houston [1st Dist.] 2014, no pet.) (“In considering whether the facts arose out of a single

transaction [thus giving rise to res judicata], courts consider whether the facts are related

in time, space, origin, or motivation, and whether they form a convenient unit for trial.”).

Here, Plaintiffs’ current claims arose around the same time as the claims in the County

Court Lawsuit (between 2011-2013), they involved the same commercial office space,

they arose out of the same landlord-tenant relationship and, because they involve all the

9 AR 000178 same parties and relationships, would have formed a convenient unit for trial. The factors

weigh heavily in favor of res judicata.

36. Plaintiffs next argue that res judicata does not apply because the two lawsuits do

not involve the same parties. Once again, Plaintiffs’ argument fails.

37. “The doctrine of res judicata, or claim preclusion, bars a second action by parties,

and those in privity with them, on matters actually litigated in a previous suit, as well as

claims that could have been litigated in the prior suit through the exercise of diligence.”

Samuel, 434 S.W.3d at 233 (emphasis added). “Privity connotes those who are so

connected with a party to the judgment in the law such that the party to the judgment

represented the same legal right.” Id. at 234. “A party can be in privity in at least three

ways: (1) it can control an action even if it is not a party to it; (2) its interests can be

represented by a party to the action; or (3) it can be a successor-in-interest, deriving its

claim through a party to the prior action. Id. at 234-35.

38. Plaintiffs cite to Lesikar v. Moon, 2014 WL 4374117 (Tex. App.—Houston [1st

Dist.] no pet.) as support for their argument that the parties in the two suits are nominally

different, and thus, res judicata does not apply. Yet Lesikar holds:

[A] person’s appearance in a difference capacity does not dictate whether a prior judgment bars the subsequent suit. Comment (c) to section 36 [of the Restatement (Second) of Judgments] explains that the analysis focuses on shared interests, not nominal capacity[.]

Id. at 7 (emphasis added).

39. Here, as demonstrated above, Nisal, Sterling, Garner, Allied, and Avant are so

interconnected that they are, as a matter of law, in privity with each other and shared a

10 AR 000179 common interest. All of these Plaintiffs occupied the Building, and are now suing

Defendants based on this single fact. But for their tenancy, none of the Plaintiffs would

have any claims against Defendants. Garner, as Nisal’s president, director, and registered

agent, and as Sterling’s owners, clearly could have controlled the litigation. Further,

were Avant's interests—as the real party in interest to the parties’ lease—not shared and

represented by Garner, Sterling, and Nisal in the County Court Lawsuit? Even Plaintiff

Garner admits that he owns Sterling and that Sterling manages the non-medical business

dealings of Avant.

40. Although nominally different, the parties are the same as they were in the County

Court Lawsuit. Res Judicata applies.

E. PLAINTIFFS’ CONVERSION CLAIMS FAILS AS A MATTER OF LAW.

41. Plaintiffs argue that Defendants had “constructive possession” of their checks and

therefore, Plaintiffs can maintain a cause of action for conversion.

42. Plaintiffs’ argument completely ignores the issues raised in Defendants’ Motion

for Summary Judgment. First, Plaintiffs ignore the fact that any “agency” relationship

between Plaintiffs and Defendants necessarily terminated with the underlying lease, and

thus did not exist when Defendants allegedly deposited at least a portion of the checks.

43. Second, Plaintiffs argue that their side-agreement with Defendants was not a

modification to the lease; rather, it was a stand-alone agreement even though it was

clearly within the scope of the parties landlord-tenant relationship. This puts the

agreement squarely in conflict with the lease’s integration and no oral-modification

clauses. Thus, evidence of this agreement is legally inadmissible.

11 AR 000180 F. PLAINTIFFS’ ARGUMENTS FOR TOLLING THE STATUTE OF LIMITATIONS FAIL AS A MATTER OF LAW.

44. Plaintiffs contend that none of their claims are barred by the statute of limitations.

45. First, Plaintiffs argue that their claims are barred by the discovery rule, which is

wholly inapplicable in this case. “The discovery rule is a very limited exception to

statutes of limitations, and applies only when the nature of the plaintiff's injury is

inherently undiscoverable and the evidence of injury is objectively verifiable.” BP Am.

Prod. Co. v. Marshall, 342 S.W.3d 59, 65–66 (Tex. 2011); Computer Assoc. Int'l, Inc. v.

Altai, Inc., 918 S.W.2d 453, 455–56 (Tex. 1996). “An injury is inherently

undiscoverable if, by its nature, it is unlikely to be discovered during the applicable

limitation period despite the exercise of due diligence.” Marshall, 342 S.W.3d at 66; S.V.

v. R.V., 933 S.W.2d 1, 7 (Tex.1996). “The question is not whether the particular injury

was actually discovered by the claimant within the limitation period, but whether “it was

the type of injury that is generally discoverable by the exercise of reasonable diligence.””

HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998).

46. Thus, the relevant inquiry in this case is whether the taking and depositing of a

check is, by its nature, “inherently undiscoverable.” For example, making a defamatory

entry on a credit report is inherently undiscoverable because “a person will not ordinarily

have any reason to suspect that he has been defamed by the publication of a false credit

report to a credit agency until he makes application for credit.” Computer Associates

Intern, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996). Nor can someone who

undergoes a vasectomy “know that he is still fertile, if that be the case, until either his

12 AR 000181 wife becomes pregnant or he is shown to be fertile by further testing.” Id. Likewise, “it

is a virtual certainty that [a] patient has no knowledge on the day following surgery—nor

for a long time thereafter—that a foreign object was left in the incision.” Id.

47. Here, the alleged conversion of the checks is not inherently undiscoverable and is

not subject to the discovery rule. In the exercise of due diligence, a business should

discover, at or around the time that it is to receive payment—and not three years later—

that payment has not been received. The fact that Plaintiffs may have had special terms

with their payees that “suspended collection efforts” is irrelevant because the focus is

objective and not subjective. Most problematic for Plaintiffs, though, is Garner's

admission that he routinely checks on the status of his payments from the patients’

attorneys. (See Declaration of Brett Garner, ¶6; Ex. 1 to Plaintiffs’ Response). If Garner

routinely checks on the status of payment from his patients’ attorneys, how did

Defendants’ alleged wrongful acts go undiscovered for years?

48. As their second argument for why their claims are not barred, Plaintiffs argue that

the limitations period was tolled due to Defendants’ “fraudulent concealment.” (See

Plaintiffs’ Response, ¶ 39). However, “a party asserting fraudulent concealment as an

affirmative defense to the statute of limitations has the burden to raise it in response to

the summary judgment motion and to come forward with summary judgment evidence

raising a fact issue on each element of the fraudulent concealment defense.” KPMG Peat

Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 749 (Tex. 1999)

(emphasis added). “A mere pleading does not satisfy either burden.” Id. at 749-50.

13 AR 000182 49. Here, Plaintiffs have neither pled fraudulent concealment nor adduced any

evidence in support of their fraudulent inducement claim. Plaintiffs’ fraudulent

concealment argument fails as a matter of law.

G. DEFENDANTS ARE ENTITLED TO ATTORNEY’S FEES

50. Finally, Plaintiffs assert that Defendants are not entitled to their attorneys’ fees.

First, they claim that Defendants are not entitled to attorney’s fees because they have not

presented a breach of contract claim. However, Defendants pled a breach of contract

claim in their second and third amended answers.

51. Second, Plaintiffs claim that Defendants have not moved for summary judgment

on their declaratory judgment claim and thus are not entitled to fees. However,

Defendants are not required to use magic words to move for summary judgment on their

declaratory judgment claim. Defendants are seeking a judicial declaration, as a matter of

law, of their rights, status, and other legal relations with respect to the release they

entered into with Plaintiffs. “A release is a contract,” and is therefore subject to a judicial

declaration. Schlumberger Technology Corp., v. Swanson, 959 S.W.2d 171, 178 (Tex.

1997). Defendants have, therefore, moved for summary judgment on their declaratory

judgment claim.

52. Plaintiffs also claim that Defendants’ declaratory judgment claim is improper

because it is simply a denial of Plaintiffs’ breach of contract claim. Nothing could be

farther from the truth. “A counterclaim for declaratory judgment is improper if it is

nothing more than a mere denial of the plaintiff’s claims and the counterclaim fails to

have greater ramifications than the original suit.” Sanchez v. AmeriCredit Fin. Services,

14 AR 000183 Inc., 308 S.W.3d 521, 524 (Tex. App.—Dallas 2010, no pet.). Here, Plaintiffs’ breach of

contract claim is premised on an alleged oral contract between Undavia and Plaintiffs for

the collection and distribution of mail. In contrast, Defendants seek a judicial declaration

that Plaintiffs have categorically released Defendants from any and all claims, whether

known or unknown, that existed when the Mutual Release was signed. If Defendants

succeed, then all of Plaintiffs claims—not simply their breach of contract—are defeated.

Accordingly, Defendants declaratory judgment counterclaim is not simply a “denial” of

Plaintiffs’ breach of contract claim. It has greater ramifications than that claim, and is fair

game for a declaratory judgment action.

53. Defendants are entitled to their attorney’s fees.

III. CONCLUSION

54. Defendants respectfully request that this Court grant them summary

judgment, dismiss Plaintiffs’ claims with prejudice, grant them their reasonable

attorney’s fees, and grant Defendants all further relief to which they are entitled at law or

Date: February 17, 2015 Respectfully submitted,

By: Ashish Mahendru Texas Bar No. 00796980 Darren A. Braun Texas Bar No. 24082267 639 Heights Boulevard Houston, Texas 77007 15 AR 000184 (713) 571-1519 (Telephone) (713) 651-0776 (Facsimile) amahendru@thelitigationgroup.com dbraun@thelitigationgroup.com

I hereby certify that a true and correct copy of the foregoing instrument has been provided to all counsel of record in accordance with the applicable Texas Rules of Civil Procedure on this 16th day of February, 2015.

Matias J. Adrogué Email:mja@mjalawyer.com Robert Stephan Kaase Email: rsk@mjalawyer.com 1629 West Alabama St. Facsimile: 713.425.7271 Houston, Texas 77006

16 AR 000185 CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF d/b/a ALLIED MEDICAL CENTERS § and INTERVENTIONAL SPINE § ASSOCIATES, § § Plaintiffs § § VS. § HARRIS COUNTY, TEXAS § KHYATI MOHAMED UNDAVIA, § MINU RX, LTD., and MINU GP, § L.L.C., § § 152ND JUDICIAL DISTRICT Defendants

DEFENDANTS' RESPONSE TO PLAINTIFFS' OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

Defendants Khyati Mohamed Undavia, Minu RX, Ltd., and Minu OP, L.L.C. file

this Response to Plaintiffs' Objections to Defendants' Summary Judgment Evidence and

would respectfully show the Court as follows:

I. RESPONSE

A. DEFENDANTS' EXHIBITS B, F, J, AND K ARE ADMISSmLE SUMMARY JUDGMENT EVIDENCE.

1. Exhibit B-Sterling Practice Management's Lease With Providian. Plaintiffs object

to this Lease because it is unsigned, and is thus (a) irrelevant and (b) violates the best

evidence rule. However, Khyati Undavia testified that this lease was a true and correct copy

of the lease that Providian entered into with Sterling. Whether signed or not, the document 1

AR 000186 is still relevant as to the terms of the lease between Sterling and Providian. Further, the best

evidence rule does not apply when "the document and its contents are only collaterally

related to the issues in the case[.]" White v. Bath, 825 S.W.2d 227, 331 (Tex. App.-

Houston [14th Dist.] 1992, writ denied). Here, Defendants are not presenting the lease to the

Court in the motion for summary judgment to establish a breach of the lease. There is no

dispute that Providian and Sterling actually entered into a lease agreement that contained the

same terms and provisions as Exhibit B. Defendants simply attached Exhibit B to show that

there as a written lease between the parties. Accordingly, it is not barred by the best

evidence rule.

2. Exhibit F-Elevator Invoices. Defendant objects because the invoices are hearsay.

However, these invoices are not hearsay. Defendants are not introducing them to prove the

truth of a matter asserted therein-for example, the price on the invoices or the services

performed. Instead, Defendants offer the invoices to show that they were addressed to

Minu and not Providian. Accordingly, they are not hearsay and Defendants are not required

to prove them up as business records.

3. Exhibit J-Proof of Insurance. Plaintiffs object because the Proof of Insurance is

hearsay. However, the Proof of Insurance is not hearsay. Defendants are not offering it to

show the truth of a matter asserted therein-for example, the amount of coverage or that

Avant actually was insured by the insurance company. Instead, Defendants are offering the

Proof of Insurance to show the agency relationship between Avant, who purportedly

procured the policy, and Sterling, who was listed as an additional insured by Avant. Even if

Defendants were offering the Exhibit .for the truth of the matter asserted, it is still not

AR 000187 hearsay: this document was given to Defendants by Plaintiffs and thus constitutes the

admission of a party opponent. Accordingly, the Proof of Insurance is not hearsay and

Defendants are not required to prove it up as a business record.

4. Exhibit K-Rent Check. Again, Plaintiffs object because the check is hearsay, when

it is in fact not hearsay. Defendants are not offering the check to prove the truth of the

matter asserted-for example, that rent was paid or what the amount of the payment was.

Instead, Defendants offer the check to show the agency relationship that existed between

Sterling, who was the actual lessee, and Avant, because Avant paid the rent on Sterling's

behalf. Why else would Avant pay rent on behalf of Sterling? Finally, the check is not

hearsay because it is the admission of a party opponent.

B. EACH STATEMENT IN KHYATI UNDAVIA'S DECLARATION Is ADMISSIBLE

5. Plaintiffs make a variety of objections to Undavia's declaration. Defendants refute

each of these objections below.

6. "The Declaration of Khyati Undavia contains statements that are not based on

personal knowledge." Plaintiffs point to inadmissibility of Undavia's statements that

Plaintiffs Nisal Corp. and Sterling Practice Management, LLC "did not have any actual

operations in the office space," and that "Allied Medical Centers and Avant Medical Group

were the entities that had operations in the leased space." (See Declaration of Khyati

Undavia; ,-r 13; Ex. E to Defendants' Motion for Summary Judgment). Incredibly, Plaintiffs

claim that Undavia couldn't possibly have personal knowledge of these facts. However,

Undavia, as Providian's owner, was the Plaintiffs' landlord. Based on her ownership and

execution of the lease, she has personal knowledge of what transpired on her property. She

AR 000188 also worked in the pharmacy directly below Plaintiffs' office space and regularly

communicated with Garner. Undoubtedly, she has personal knowledge as to the entities

that operated in her building.

7. Further, Plaintiffs readily admit that Avant operated in the office space: "Avant

Medical Group, P.A. regularly provided medical services at the [leased premises]." (See

Affidavit of Brett Garner, ~4; Ex. A to Plaintiffs' Response). Why then would Undavia not

know this fact?

8. Accordingly, Undavia's statement as to which entity operated in the leased space is

admissible summary judgment evidence.

9. "The Declaration of Khyati Undavia contains statements that are merely legal

conclusions." Plaintiffs then complain of Undavia's statement that "for all matters

concerning the lease, I communicated with Brett Garner in his capacity [as] a representative

of not only Sterling and Nisal, but also Avant and Allied." (See Declaration of Khyati

Undavia; ~13; Ex. E to Defendants' Motion for Summary Judgment). Plaintiffs argue that

this statement is an unsubstantiated legal opinion and therefore inadmissible.

10. However, Defendants introduced evidence that Avant paid for Sterling's rent (and

introduced a copy of such check), and introduced a Proof of Insurance document that was

procured by Avant on behalf of Sterling. This is documentary support for Undavia's

statement that she communicated with Garner in his capacity as Avant's agent. Further,

Undavia testified that she was the Plaintiffs' landlord, that she owned the leased premises,

that she worked in the pharmacy directly below Plaintiffs' office space, and that Garner was

AR 000189 Avant's employee and agent. Of course she knows the capacity of the individuals with

which she is communicating with respect to the lease.

11. Further, Undavia's statement was easily controvertible yet remains uncontroverted.

Plaintiffs could have simply testified, "No, Avant didn't pay Sterling's rent," or that "No,

Avant did not procure an insurance policy on behalf of Sterling." They could have testified,

"No, Gamer was not Avant's agent" or that "No, Garner never communicated with Undavia

in his capacity as Avant's agent." By failing to controvert the agency relationship, Plaintiffs

admit it, thereby sinking their position with this Court and only leaving themselves a

threadbare attempt to object to Undavia's statement. That attempt, however, fails.

12. Instead of controverting Undavia's testimony, Plaintiffs corifirmed it. Garner

testified that "I am also one of the owners for Sterling Practice Management, LLC, a

management company which manages the non-medical business dealings of Avant Medical

Group." (See Affidavit of Brett Garner, ~2; Ex. 2 to Plaintiffs' Response). This testimony

clearly establishes Garner's agency relationship with Avant. Further, Garner testified that

"Avant Medical Group, P.A. regularly provided medical services" in Undavia's building.

Id. at ~4. What is there left to contest?

13. Accordingly, Undavia's statements regarding Garner's agency relationship with

Avant are admissible.

14. "The Declaration of Khyati Undavia Undavia contains statements that are based

on hearsay." Plaintiffs contend that because exhibits F, J, and K are hearsay, and because

Undavia testified regarding those exhibits in paragraphs 11 and 14 of her declaration, then

those statements are likewise inadmissible.

AR 000190 15. As discussed in Section A above, exhibits F, J, and K are not hearsay. Accordingly,

Defendants' testimony regarding these exhibits is admissible.

II. CONCLUSION

9. Defendants respectfully request that this Court to overrule Plaintiffs'

objections to Defendants' summary judgment evidence and grant Defendants all further

relief to which they are entitled.

BY:~ Ashish Mahendru Texas Bar No. 00796980 Darren A. Braun Texas Bar No. 24082267 639 Heights Boulevard Houston, Texas 77007 (713) 571-1519 (Telephone) (713) 651-0776 (Facsimile) amahendru@thelitigationgroup.com dbraun@thelitigationgroup.com

AR 000191 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been provided to all counsel of record in accordance with the applicable Texas Rules of Civil Procedure on this 16th day of February, 2015.

Matias 1. Adrogue Email:mja@mjalawyer.com Robert Stephan Kaase Email: rsk@mjalawyer.com 1629 West Alabama St. Facsimile: 713.425.7271 Houston, Texas 77006

AR 000192 CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A., § IN THE DISTRICT COURT OF ET.AL. § § vs. § HARRIS COUNTY, TEXAS

KHYATI MOHAMED UNDAVIA , ~ WLEJI) ET. AL. § 152nd JUDIC~~~M7!~k U MAR 032015 ORDER ON DEFENDANTS' MOTION~e: Harris County, Texas FOR SUMMARY JUDGMENT ~BY._ _---=~_ __ ¢ ~ Deputy

On this day came on to be considered Defendants' Mot~r Summary Judgment and ~ this court, after considering the pleadings and arguments ~~Sel, finds that this motion should be granted in part and denied in part. Q~ It is, therefore, ordered that the Motion fOr~ary Judgment as to claims brought by ~ Plaintiff, Nisal Corp. is granted. ~Q It is further ordered that the Moti~~r Summary Judgment as to claims brought by all

other plaintiffs is denied. ~ 0) Signed March 3, 2015. ~

~ ~U Presiding Judge ¢~

~ ~© ~

~\ AR 000193 CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. § IN THE DISTRICT COURT OF d/b/a ALLIED MEDICAL CENTERS § and INTERVENTIONAL SPINE § ASSOCIATES, § Plaintiffs § § VS. § HARRIS COUNTY, TEXAS § KHYATI MOHAMED UNDAVIA and § MINU RX, LTD., § Defendants § 152ND JUDICIAL DISTRICT

DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY

Defendants, Khyati Undavia, Minu RX, Ltd., and MINU GP, LLC, file this Motion

for Permission to Appeal Interlocutory Summary Judgment Order, Motion to Amend Order,

and Request for Stay and would respectfully show the Court as follows:

I. INTRODUCTION

1. Based on a release and dismissal with prejudice between the parties arising out of

a prior lawsuit, Defendants sought dismissal of this case by summary judgment,

requesting this Court to apply the release to the parties in this lawsuit. Agreeing in part,

this Court granted judgment as a matter of law only as to Plaintiff Nisal Corp.

2. Without doubt, the controlling question of law in this case is the applicability of

the release as to all parties. If, as Defendants contend, the release applies to all parties and

1 AR 000194 all claims in this lawsuit, Defendants should not be subjected to a trial, having bargained

for and bought peace. Without doubt an immediate appeal from the order denying

judgment as a matter of law as to all Defendants advances the ultimate termination of the

litigation. These two elemental requirements of a permissive appeal and front and center

before this Court, and Defendants easily hurdle them to establish the need for an

immediate appeal.

3. Defendants, therefore, request this Court to grant a permissive appeal of this

Court's Order dated March 3, 2015, requesting this Court to amend its order, and in

granting such relief, Defendants further request a stay of this lawsuit pending resolution

of the appeal of the interlocutory order.

II. MOTION FOR PERMISSIVE APPEAL

4. Texas Civil Practices and Remedies Code §51.014(d) establishes the standard for a

permissive appeals:

On a party's motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if:

(1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and

(2) an immediate appeal from the order may materially advance the ultimate termination of the litigation.

5. In conjunction with this statute, the legislature enacted Texas Rules of Civil

Procedure 168 as a new rule:

On a party's motion or on its own initiative, a trial court may permit an appeal from an interlocutory order that is not otherwise appealable, as provided by statute. Permission must be stated in the order to be appealed. An order previously

2 AR 000195 issued may be amended to include such permission. The permission must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation.

a. The Order to be Appealed Involves a Controlling Question of Law

6. Texas courts have little guidance as to what constitutes a controlling legal issue

about where there is a difference of opinion and the resolution of which disposes of the

primary issues in the case. In Gulf Coast Asphalt Company, LLC v. Lloyd, the Houston

Court of Appeals recently recognized this absence, and it cited to a Texas commentator's

suggestion of looking to federal cases in interpreting the federal counterpart to section

51.014:

a controlling question of law is one that deeply affects the ongoing process of litigation. If resolution of the question will considerably shorten the time, effort, and expense of fully litigating the case, the question is controlling. Generally, if the viability of a claim rests upon the court's determination of a question of law, the question is controlling.... Substantial grounds for disagreement exist when the question presented to the court is novel or difficult, when controlling circuit law is doubtful, when controlling circuit law is in disagreement with other courts of appeals, and when there simply is little authority upon which the district court can rely.... Generally, a district court will make [a finding that the appeal will facilitate final resolution of the case] when resolution of the legal question dramatically affects recovery in a lawsuit.

2015 WL 393407, at *5 (Tex. App.—Houston [14th Dist.] Jan. 29, 2015, no. pet. h.).

7. The commentator suggests three or four avenues for meeting this element for a

permissive appeal. With the exception of disagreement between controlling circuits since

that is not Defendants' contention, Defendants easily hurdle the standard set forth above.

8. First, is there any doubt that Defendants' legal postulation that the application of

the release from the underlying lawsuit will "considerably shorten the time, effort and

expense of litigating the case"? No, there is no doubt. The release controls the current 3 AR 000196 case, and if applicable to the claims asserted by Plaintiffs, then this case is over, as this

Court partially found in dismissing Nisal Corp's claims.

9. Second, the viability of this lawsuit is fully dependant on the Court's interpretation

of the release. That legal interpretation, therefore, is controlling.

10. Third, substantial disagreement exists when the question presented to the Court is

novel or difficult. As evidenced by the lengthy and detailed presentation by Defendants

and as evidenced by the numerous questions propounded by the Court during the

summary judgment hearing, the issues confronting this Court are difficult, novel, and

outcome determinative. Defendants, therefore, meet this requirement.

11. Fourth, there is little authority for this Court to rely on in deciding the novel and

difficult issues. A prime example of that is based on the Court's contention that an agent

in one context may not necessarily release a claim brought in the future or different

context if not cloaked in the original agency. Specifically, as discussed with the Court

during the hearing, a committed tort by an agent that was unknown at the time of the

release is still captured by the very terms releasing the parties. This Court was unsure of

that application of the release in such a broad context. However, neither Plaintiffs nor

Defendants provided this Court with any controlling law on the subject of the scope of

the agency and/or the underlying scope of the release when applying that release in a

future series of claims that still refer back and relate to the underlying dispute

engendering the release in the first place.

12. Additionally, Plaintiffs contended that the principal-agent relationship is a

question of fact for the jury. Defendants' vociferously argued that there is simply no

4 AR 000197 space for a principal-agent analysis in the construction of a release. Principal-agent

delves into actual and apparent authority, i.e., whether a third party has the right to charge

the principal based on the agent's conduct vis-a-vis the third party.

13. In the context of a release, however, the word "agent" as a releasing or released

party does not require any interpretation of the principal-agent relationship in the context

of actual or apparent authority. There is no authority that Plaintiffs cited this Court for

this proposition that the Court must labor into questions of fact based on principal-agent

analysis, and certainly there is no case law Defendants put forth for the Court's counter-

consideration. With little or no binding or persuasive authority, this issue is controlling,

necessitating a permissive appeal.

b. An Immediate Appeal from the Order Shall Materially Advance the Ultimate Termination of the Litigation

14. Defendants' summary judgment sought complete and total dismissal of all claims

Plaintiffs asserted against Defendants Khyati Undavia, Minu RX, Ltd., and MINU GP,

LLC. That is, the granting of Defendants’ motion would dispose of all of Plaintiffs’

claims against Defendants. When this Court granted judgment in favor of Defendants as

to Plaintiff Nisal Corp., this Court fully acknowledged that this case is subject to

immediate termination--at least as to one party.

15. It can be no other way. If the release applies to all Plaintiffs, then they have no

claims against Defendants. The case is over and terminated. The second element of a

permissive appeal is readily present.

III. MOTION TO AMEND ORDER

5 AR 000198 16. Under Rule 168, there is a requirement that the permission to appeal the

interlocutory order be granted in the order to appealed and not in a separate order.

On a party's motion or on its own initiative, a trial court may permit an appeal from an interlocutory order that is not otherwise appealable, as provided by statute. Permission must be stated in the order to be appealed. An order previously issued may be amended to include such permission. The permission must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation.

17. Therefore, Defendants respectfully request this Court to enter the attached

amended order, granting Defendants permission to appeal.

IV. REQUEST FOR STAY

18. Defendants also request a stay of further proceedings in this Court pending the

resolution of a permissive appeal. Tex. Civ. Prac. & Rem. Code §51.014(e)(2). Such a

stay is warranted because, until the controlling issues are resolved by the court of appeals,

any further trial in this Court may be for naught and result in a tremendous waste of

judicial resources, the parties' time, energy, attorney's fees.

V. CONCLUSION

19. Defendants request this Court to (i) grant them permission to appeal this Court's

interlocutory summary judgment order dated March 3, 2015, (ii) amend the Court’s Order

dated March 3, 2015, and (iii) request this Court to stay the proceedings pending

appellate outcome.

20. Defendants further pray for any such other and further relief to which they are

6 AR 000199 entitled to at law or in equity.

Dated: March 13, 2015 Respectfully submitted,

By: Ashish Mahendru State Bar No. 00796980 Darren A. Braun State Bar No. 24082267 639 Heights Blvd. Houston, Texas 77007 Telephone: 713-571-1519 Facsimile: 713-651-0776 amahendru@thelitigationgroup.com dbraun @thelitigationgroup.com

ATTORNEYS FOR DEFENDANTS

I hereby certify that a true and correct copy of the foregoing instrument has been provided to all counsel of record in accordance with the applicable Texas Rules of Civil Procedure on this 13th day of March, 2015.

Matias J. Adrogué Email:mja@mjalawyer.com Robert Stephan Kaase Email: rsk@mjalawyer.com 1629 West Alabama St. Houston, Texas 77006

William P. Huttenbach Email: phuttenbach@hirschwest.com Hirsch & Westheimer, PC 1415 Louisiana, 36th Floor Houston, Texas 77002

7 AR 000200 Ashish Mahendru

8 AR 000201 CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. d/b/a § IN THE DISTRICT COURT OF ALLIED MEDICAL CENTERS and § INTERVENTIONAL SPINE § ASSOCIATES, § § Plaintiffs § HARRIS COUNTY, TEXAS § VS. § § KHYATI MOHAMED UNDAVIA and § MINU RX, LTD. § 152nd JUDICIAL DISTRICT

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY

COME NOW, AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE

ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS (hereinafter

referred to as “Plaintiffs”) and files this response to Defendants’ Motion for Permission to

Appeal Interlocutory Summary Judgment Order, Motion to Amend Order, and Request for Stay

and in support thereof would respectfully show the Court as follows:

1. Plaintiffs are AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE

ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL

CORP. d/b/a QUALCARE REHABILITATION.

2. Defendants are KHYATI MOHAMED UNDAVIA, MINU RX, LTD. d/b/a MEMORIAL

3. On January 30, 2015 the Defendants in this case filed a Motion for Summary Judgment

based on a release signed relating to a security deposit of a commercial lease. Plaintiffs filed

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY PAGE 1 AR 000202 their Response on February 13, 2015 and the Court heard oral argument on the Motion on

February 20, 2015. After taking the matter under consideration, the Court signed an order

granting the Defendant’s Motion for Summary Judgment as to Plaintiff Nisal Corp. and denying

the Defendants’ Motion as to all other parties.

4. Defendant now seeks to appeal the Court’s interlocutory summary judgment order.

Plaintiffs ask the Court to deny Defendants’ Motion because Defendants have not met the burden

for a permissive appeal and because an appeal from the interlocutory summary judgment is

unnecessary at this time.

I. ARGUMENT & AUTHORITIES

5. Tex. Civ. Prac. & rem. Code § 54.014(d) provides that “On a party's motion or on its own

initiative, a trial court in a civil action may, by written order, permit an appeal from an order that

is not otherwise appealable if: (1) the order to be appealed involves a controlling question of

law as to which there is a substantial ground for difference of opinion; and (2) an immediate

appeal from the order may materially advance the ultimate termination of the litigation.”

Further, Texas courts have ruled that permissive appeal is “premised on the trial court having

first made a substantive ruling on the controlling legal issue being appealed.” See, e.g. Gulley v.

State Farm Lloyds, 350 S.W.3d 204 (Tex. App.—San Antonio 2011, no pet.).

6. The Court’s March 3, 2015 Order does not contain an explicit ruling on the Question

presented by Defendants in their Motion. Defendants now ask the Court not only to amend its

Order to permit appeal, but to also provide an explicit ruling on a specific question of law. The

Court was not required to make specific conclusions of law on the issue, and did not opt to do so

in this case. Therefore, the Court’s interlocutory order is not a candidate for permissive appeal.

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY PAGE 2 AR 000203 7. Plaintiffs additionally contend that this case does not present a controlling question of

law “as to which there is a substantial ground for difference of opinion.” In their Motion for

Summary Judgment, Defendants claimed that Nisal Corp.’s signing of the release bound all of its

agents to the terms of the release, regardless of in what capacity a future suit might be brought.

Plaintiffs contended that agents of the signatory are not bound to the release because a principal

does not have authority to act on the agent’s behalf. However, at oral hearing Plaintiffs cited

case law which clearly states that “An agent acts on behalf of its principal rather than the

principal acting on behalf of the agent, and no Texas case has held that a principal owes a

fiduciary duty to an agent.” Casteel v. Crown Life Ins. Co., 3 S.W.3d 582, 590 (Tex. App—

Austin 1999), rev’d in part on other grounds 22 S.W. 3d 378 (Tex. 2000). Defendants admit in

their Motion that they have no authority to support their claim that the nonsignatory Plaintiffs are

bound by the release from asserting claims against other nonsignatories for actions not related to

either’s alleged role as an agent for any signatory. Because Defendants’ legal claims have no

basis in law, they seem to abandon their agency theory altogether and claim that the nonsignatory

Plaintiffs should be bound because they are “intimately related” to the signatories. As far as

Plaintiffs’ counsel can determine, this “intimately related” standard for determining who is

bound to a contract is heretofore unseen in Texas contract jurisprudence. Further, Defendants’

faulty assertion that Plaintiffs did not bring sufficient legal authority to support their claims is

irrelevant—is it Defendants who must prove their entitlement to judgment as a matter of law.

Therefore, the question of law on which Defendants seek review is not one for which there is a

substantial ground for difference of opinion, and Defendants’ Motion should be denied.

8. Defendants further assert that the Court may not inquire into questions of fact as to

whether the agency relationships alleged by the Defendants themselves actually exist.

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY PAGE 3 AR 000204 Defendants’ entire theory surrounding the release rests on the existence of agency relationships.

Plaintiffs’ counsel can only assume that Defendants believe the Court must take on faith that the

relationships exist based on nothing more than the argument of Defense counsel. This is simply

an attempt by Defendant to paint the issues in this case as issues of law only. However, even if

an appellate court were to decide that in some cases nonsignatories could be bound to a release

by an agency relationship, a factual inquiry would still be necessary to determine whether such

relationships exist in this case, and to what extent the parties are bound by virtue of those

relationships. Therefore, a ruling from the court of appeals would not immediately terminate the

litigation as Defendants claim. Because the Defendants cannot show that a permissive appeal

would materially advance termination of the litigation, and because their claims in the Motion

for Permissive Appeal are so inconsistent with Texas law, the Defendants’ Motion should be

9. In essence, Defendants claim that because they have no legal authority to support their

Motion for Summary Judgment, there must be a controlling question of law as to which there is a

substantial ground for difference of opinion. As shown above, there is no reasonable ground for

difference of opinion in this case. Defendants have attempted to craft new legal standards out of

whole cloth and sell them to the Court as a reasonable interpretation of nonexistent law. The

Court has already determined, when it signed the March 3, 2015 Order, that the facts of the case,

and the law as applied to those facts, is sufficient to allow this lawsuit to proceed to trial.

Therefore, Defendants have not shown adequate grounds for a permissive appeal of the Court’s

interlocutory order. For this reason, the Defendants’ Motion should be denied.

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY PAGE 4 AR 000205 III. PRAYER

For the above reasons, Plaintiffs ask the court to deny Defendants’ Motion for Permission

to Appeal Interlocutory Summary Judgment Order, Motion to Amend Order, and Request for

Stay.

MATÍAS J. ADROGUÉ PROFESSIONAL LIMITED LIABILITY COMPANY

By: Matías J. Adrogué Attorney at Law State Bar No. 24012192 Robert Stephan Kaase State Bar No. 24083287 1629 West Alabama St. Houston, Texas 77006 713-425-7270 Telephone 713-425-7271 Facsimile service@mjalawyer.com

I hereby certify that a true and correct copy of the above and foregoing has been served to all counsel of record in accordance with the Texas Rules of Civil Procedure, on this the 17th day of March, 2015.

Matías J. Adrogué

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY PAGE 5 AR 000206 CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. § IN THE DIFIJ

(J~ § KHYATIMOHAMEDUNDAVIA, § MINURX,LTD., § § 152ND TT~IAL DISTRICT ~I~ . Defendants § o;;) ART DEFENDANTS' TING DEFENDANTS' REQUEST FOR STAY

o~ On this day the Court considered De~t Khyati Undavia and Minu Rx, Ltd.'s Motion for Permission to Appeal Inter~~ry g Summary Judgment Order, Motion to

Amend Order, and Request for Stay. ~er considering the pleadings and the arguments of -~Q~' counsel, the Court ORDERS as ~s:

IT IS THEREFORE ~ERED, ADJUDGED, AND DECREED that the Original rg~U)I

Order Granting and De~g Defendants' Motion for Summary Judgment dated March 3, o~l#;j 2015 is supersede&t ~ replaced by this Order.

IT IS ~ ORDERED, ADnIDGED, AND DECREED fuat Defendants' Motion for~ary Judgment as to PlaintiffNisal Corp. is granted. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants'

Motion for Summary Judgment as to the claims brought by all other Plaintiffs is denied.

1 RECORDER'S MEMORANDUM ThiS instrument is of poor quality at the time of Imaging

AR 000207 ;-

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants

Undavia and Minu Rx, Ltd. have this Court's permission to file an interlocutory appeal with

the Texas Court of Appeals. This Court finds that the controlling question of law to be

determined on appeal is whether the release (a) signed in a prior lawsuit between (b) parties

intimately related to parties in the current lawsuit is sufficient to release the claims asserted

between the current Plaintiffs and Defendants Khyati Undavia, Minu RX,~, and MINU ~(fjj GP, LLC in this lawsuit. The legal interpretation of the release, the~re, is controlling. ~ Imbedded in that controlling question is the effect of the ag~ relationship between o@j signatories of the release when applying that release in a ~ series of claims that still ~ refer back and relate to the underlying dispute engen~~ the release in the ftrst place.

Further, the controlling question involves the e~«©{o which principal-agent analysis

applies in the construction of a release. "

IT IS FURTHER ORDERED, AD~~D, g AND DECREED that an appeal of this

Order will materially advance the <>~~ate termination of the litigation because if the

controlling issue. of law is res~ in the Defendants' favor, then Defendants Khyati Undavia, Minu RX, Ltd., an..1~TTT ~~U GP, LLC will be granted final summary judgment and

Plaintiffs claims againS~ will be dismissed. o@p l'f I~ fi~ QiW,li1l,li1ii, JrliJJUf)B~, 1'ft IB '8Pi~ aas case Is stay;s<1 ~eneiH~ 6atcm~ff5ettiIdMlts' dwell:. ~ MAR 2 0 2015 SIGNED this _ _ day of ,2015.

HO~ER~ JUDGE PRESIDING

AR 000208