Minu RX, Ltd. D/B/A Memorial Compounding Pharmacy Minu GP, LLC v. Avant Medical Group, P.A. D/B/A Interventional Spine Associates, and Brett L. Garner D/B/A Allied Medical Centers

Opinion

ACCEPTED 14-15-00378-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 5/20/2015 5:11:06 PM CHRISTOPHER PRINE CLERK

No. 14-15-00378-CV

FILED IN 14th COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOURTEENTH JUDICIAL DISTRICT 5/20/2015 5:11:06 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk

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

vs.

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

On Application for Permissive Interlocutory Appeal from the 152nd Judicial District Court, Harris County, Texas Cause No. 2014-22186, the Honorable Robert Schaffer Presiding

APPELLEES’ RESPONSE TO APPELLANTS’ MOTION TO CONSOLIDATE APPEALS

TO THE HONORABLE JUSTICES OF SAID COURT:

COME NOW, Appellees AVANT MEDICAL GROUP, P.A. D/B/A

INTERVENTIONAL SPINE ASSOCIATES AND BRETT L. GARNER D/B/A

ALLIED MEDICAL CENTERS (hereinafter “Appellees”) and submit this

Response to Appellants’ Motion to Consolidate Appeals, and in support thereof

would respectfully show the Court as follows: I. BACKGROUND FACTS

1. Appellants are Khyati Undavia, Minu RX, Ltd. and Minu GP, LLC

(“Appellants”); Appellees are Avant Medical Group, P.A. d/b/a Interventional

Spine Associates and Brett L. Garner d/b/a Allied Medical Centers (“Appellees”).

2. On January 30, 2015 the Appellants filed a motion for summary judgment in

the trial court. Appellees responded to the motion for summary judgment and the

motion was argued at oral hearing. On March 3, 2015 the Honorable Robert

Schaffer of the 152nd Judicial District Court (“Trial Court”) signed an order

granting Appellants’ Motion only as to Nisal Corporation, a plaintiff in the Trial

Court, and denying the Appellants’ Motion as to all other plaintiffs. The March 3,

2015 order did not include any findings of fact, conclusions of law, or state an

explicit basis for the granting or denial of the motion. On March 13, 2015

Appellants filed a Motion for Permission to Appeal Interlocutory Summary

Judgment Order, Motion to Amend Order, and Request for Stay. After response

and oral hearing, the Trial Court granted Appellants’ Motion on March 20, 2015

and signed an amended summary partial summary judgment granting permissive

appeal and denying a stay of the trial court proceedings.

3. On April 3, 2015 the Appellants filed their first Petition for Permission to

Appeal Interlocutory Order, seeking permission to appeal the March 20, 2015

summary judgment order, in Case No. 14-15-00295-CV (“First Appeal”). On April 16, 2015 the Appellees filed a Motion to Dismiss the First Appeal for lack of

jurisdiction. On April 20, 2015 the Appellees filed their Response to Appellants’

Petition for Permission to Appeal Interlocutory Order in the First Appeal.

4. On April 17, 2015 the Appellants filed a motion to amend the summary

judgment order with the Trial Court, which the Trial Court granted after oral

hearing on April 24, 2015.

5. Appellants filed their second Petition for Permission to Appeal Interlocutory

Order in the present case on April 27, 2015, seeking permissive appeal from the

Trial Court’s second amended summary judgment order dated April 24, 2015. On

May 4, 2015, the Appellants filed a Motion to Consolidate Appeals. For reasons

shown below, Appellees ask the Court to deny the Appellants’ Motion.

II. ARGUMENT & AUTHORITIES

6. In the present case, the Appellants have filed two separate petitions for

permissive appeal, under two separate case numbers, concerning the Trial Court’s

ruling on the same motion for summary judgment.

7. In the First Appeal, Case No. 14-15-00295-CV, Appellants attempted to

bring a permissive interlocutory appeal from an order which did not meet the

jurisdictional requirements for permissive appeal. Based on this fact, the

Appellees filed a motion to dismiss the First Appeal for lack of jurisdiction, a

motion which is still pending before the Court. In the present appeal, from the Trial Court’s second amended order, Appellees have not challenged the Court’s

jurisdiction, Appellants have already filed a new petition for permissive appeal,

and Appellees have already filed their response to the petition.

8. Consolidating the two appeals is unnecessary. The only issue unique to the

First Appeal is whether the Court has jurisdiction based on the Trial Court’s first

amended order. However, the Trial Court has already amended the summary

judgment order which was challenged by the Appellees. Therefore, even if the

Court were to deny Appellees’ motion to dismiss the First Appeal, there would be

no need for the First Appeal to continue because the present appeal already

addresses the trial court’s newly amended order.

9. Appellants could have continued the First Appeal as though it was an appeal

from the trial court’s second amended summary judgment order dated April 24,

2015, pursuant to TEX. R. APP. P. 27.3. Alternatively, the Appellants can

voluntarily dismiss the First Appeal and continue solely in the present appeal. In

short, there is no reason to consolidate the two appeals because the First Appeal is

either (1) unnecessary due to the existence of the present appeal or (2) also an

appeal from the same second amended summary judgment order dated April 24,

2015 based on the provisions of TEX. R. APP. P. 27.3. For this reason, the Court

should deny Appellants’ Motion to Consolidate Appeals. III. PRAYER

WHEREFORE, PREMISES CONSIDERED, and considering the foregoing,

Appellees, AVANT MEDICAL GROUP, P.A. D/B/A INTERVENTIONAL

SPINE ASSOCIATES AND BRETT L. GARNER D/B/A ALLIED MEDICAL

CENTERS, respectfully pray that this Court deny Appellants’ Motion to

Consolidate Appeals.

Respectfully submitted,

MATÍAS J. ADROGUÉ PROFESSIONAL LIMITED LIABILITY COMPANY

By:

Matías J. Adrogué Attorney at Law TX State Bar No. 24012192 Robert Stephan Kaase TX State Bar No. 24083287 1629 W. Alabama St. Houston, Texas 77006 713-425-7270 Telephone 713-425-7271 Facsimile service@mjalawyer.com ATTORNEY FOR APPELLEES CERTIFICATE OF SERVICE

I certify that on May 20, 2015, a true and correct copy of Appellees’ Response to Appellants’ Motion to Consolidate Appeals was served via electronic filing, email, or facsimile as follows:

Ashish Mahendru State Bar No. 00786980 Darren A. Braun State Bar No. 24082267 Mahendru, P.C. 639 Heights Blvd. Houston, Texas 77007 713-571-1519 telephone 713-651-0776 facsimile amahendru@thelitigationgroup.com dbraun@thelitigaitongroup.com

William P. Huttenbach State Bar No. 24002330 Jacob M. Stephens State Bar No. 24066143 Hirsch & Westheimer 1415 Louisiana, 36th Floor Houston, Texas 77002 713-223-5181 telephone 713-223-9319 facsimile

Matías J. Adrogué CERTIFICATE OF COMPLIANCE

I, Matías J. Adrogué, certify that this Appellees’ Response to Appellants’ Motion to Consolidate Appeals was electronically prepared and that according to the program’s word count function the portions of this Response subject to the restrictions of Tex. R. App. P. 9.4(i)(1) contain a total of 779 words.

Matías J. Adrogué