                                                                                            ACCEPTED
                                                                                        14-15-00378-CV
                                                                        FOURTEENTH COURT OF APPEALS
                                                                                     HOUSTON, TEXAS
                                                                                   5/12/2015 6:28:41 PM
                                                                                  CHRISTOPHER PRINE
                                                                                                 CLERK



                             NO. 14-15-00378-CV
                                                                        FILED IN
                                                                 14th COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                   In the Fourteenth District Court of   Appeals 5/12/2015 6:28:41 PM
                                 Houston, Texas                  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 Application for Permissive Interlocutory Appeal from the
              152nd Judicial District Court, Harris County, Texas
                      Trial Court Cause No. 2014-22186


           APPELLANTS’ REPLY TO APPELLEES’ RESPONSE
            TO APPELLANTS’ PETITION FOR PERMISSIVE
                    INTERLOCUTORYAPPEAL


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

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

Reply to Appellee’s Response to Appellants’ Petition for Permissive Appeal and

would respectfully show the Court as follows:




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                                          TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

REPLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

         I.        The Controlling Question Of Law Does Not
                   Require Resolution Of Any Disputed Agent-Principal
                   Relationships or Involve Ordinary Questions of Agency . . . . . . . . . . 1

         II.       This Appeal Would Materially Advance the Ultimate
                   Termination of the Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATION OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                             ii
                                  TABLE OF AUTHORITIES

Dyrcz v. Longview Enterprise, Ltd., 2:05-CV-476, 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) ........................................................................6

Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13, 18
(Tex. App.—San Antonio 1998, no pet.) ..............................................................5, 6

Winkler v. Kirkwood Atrium Office Park, 816 S.W.2d 111, 114
(Tex. App.—Houston [14th] 1991, writ denied) ...................................................4, 5




                                                     iii
                                       REPLY

      In response to Appellants’ Petition for Permissive Appeal, Appellees assert

several different arguments, including that (1) there is no controlling issue of law

because there are “disputed facts”; (2) that this case only involves ordinary

principles of agency law which are not subject to grounds for substantial

disagreement; and (3) this appeal will not materially advance the ultimate

termination of this case because disputed questions of fact will still remain. These

arguments are without merit.

 I.     The Controlling Question Of Law Does Not Require Resolution Of
        Any Disputed Agent-Principal Relationships or Involve Ordinary
        Questions of Agency

      Appellees’ first argument is that Appellants’ petition should be denied

because:

      The entirety of Appellants’ position hinges on the existence of agency
      relationships between the Appellees and the signatories of the
      Release.

(See Appellees’ Response to Appellant’s Petition for Permissive Appeal, ¶ 4). In

Appellees’ view, these “disputed questions of fact” preclude this Court’s ability to

grant Appellants’ permission to appeal. Appellees’ contention mischaracterizes

the controlling question of law and its reliance on the facts of this case.

      In their petition, Appellants identified the controlling question of law as

“whether a plaintiff not specifically named, but nonetheless encapsulated by the
                                           1
categories of defined persons or parties in a release, is so connected to the subject

matter giving rise to the release and to the signatories of a release that it, too, is

bound by the release.” Appellants’ Petition at 12. Necessarily, in executing a

broad-form release in which a party releases not simply its own claims but also

those claims belonging to its “officers, directors, shareholders, successors, agents,

assigns, employees, servants, partners, heirs, and attorneys,” that party intends to

release claims belonging to these third-parties.       Otherwise, that language is

rendered meaningless. To what extent are these third-parties released?

      Appellees contend that in order to resolve that question, the Court must not

only examine the scope of the agency relationship between the signatory and the

agent but must also determine whether the agent has expressly and affirmatively

authorized the principal to release that specific claim. In fact, with regard to the

latter, Appellees contend that this examination is a fact question for the jury to

decide.

      First, Appellees’ response completely ignores and concedes Appellants’ the

main controlling issue of law: the extent to which an unnamed plaintiff is bound

by a mutual release. Appellants cited this Court to numerous cases that extended

the protections of a release to an unnamed defendant. Highlighting the utter

absence of case law addressing the controlling question of law, Appellants argued

that there are no legal or public policy considerations for why the same rule should


                                          2
not apply in the reverse situation—namely, to unnamed Plaintiffs. Appellees file

no response to any of Appellants’ arguments on these points.

        Second, Appellees’ position that this case involves simple, well-established

principles of agency law (and therefore fact questions) is derailed by the many

cases that applied the protections of a release to an unnamed defendant.    In those

cases, the courts never entertained or even addressed questions of agency; they

simply evaluated—as a matter of law—a defendant’s connection to a specifically

enumerated party in the release.

       For example, in Winkler v. Kirkwood Atrium Office Park, 816 S.W.2d 111,

114 (Tex. App.—Houston [14th] 1991, writ denied), the defendants moved for

summary judgment based upon a release executed by the plaintiff. The trial court

granted defendants’ summary judgment. In affirming the trial court, this Court of

Appeals eschewed any examination of the defendants’ agency relationship with the

release signatory (the Club) in favor of a “connection” test:

       The summary judgment evidence is undisputed that the Mac Haik
       defendants ‘participate[d] in the design, planning, construction,
       staffing, or supervision of the club, and were involved in the
       ‘inspection of the procedures or practices of the premises staff.’ In
       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.   Simply because the defendants were connected to the Club’s “operation,

maintenance, and administration,” they were protected by the release as a matter of
                                          3
law. The court did not consider the defendants’ agency relationship with the Club,

did not delve into fact questions, and did not reverse the trial court’s decision to

award defendants judgment as a matter of law based solely on their release

argument.     Giving in to Appellees’ position now means that this Court must

reverse prior precedent and upending finality in favor of never-ending litigation.

        This “connection” test was also used by the court in Vera v. North Star

Dodge Sales, Inc., 989 S.W.2d 13, 18 (Tex. App.—San Antonio 1998, no pet.).

There, in determining whether certain unnamed defendants were protected by a

release, the court ignored the defendants’ agency relationship with the actual

signatory of the release in favor of the “connection” test. Instead, the court held

that:

         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 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. Again, the court’s resolution of whether the defendants were subject to the

release did not depend on any questions of agency. It simply depended on their

“connection” to the event in question.

        The court in Dyrcz v. Longview Enterprise, Ltd. adopted the same test.

There, the plaintiff signed a release in favor of Graham Central Station and its


                                          4
“partners, agents and employees.” Dyrcz, 2:05-CV-476, 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). Longview Enterprise, Graham Central

Station’s parent company, moved for summary judgment on the basis of the

release. Id. The court, in granting Longview Enterprise summary judgment, noted

that:

         The acting management and staff of Graham Central Station were
        actually employed by Longview Enterprises, which is similar to the
        Winkler [v. Kirkwood Atrium Office Park] defendants’ involvement
        with “the Club.” Therefore, 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 Mr. Atnip and his employer,
        Longview Enterprise.

Id.

        These cases dispel Appellees’ argument that this appeal simply involves

ordinary questions of agency. In extending the protection of a release to unnamed

defendants as a matter of law, these courts were not consumed with defining the

scope of the defendant’s agency relationship with the enumerated party. Instead,

the courts merely confirmed that particular defendant’s connection to a

specifically-enumerated party in the release. And that makes complete legal,

equitable, and policy sense. Rifling through a series of fact questions in the

context of a release defeats the very purpose of a release—finality. This Court



                                            5
cannot, as a matter of policy, establish an intrusive factual inquiry as the new

standard for Texas’ release jurisprudence.

      Thus, this appeal does not involve ordinary questions of agency law.

Appellants contend that the controlling issue of law is “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.” (See

Appellants’ Petition for Permissive Interlocutory Appeal, p. 12). With respect to

the inverse question—the application of releases to unnamed defendants—the

position of the courts is clear: agency relationships are irrelevant.        The only

relevant inquiry is the Appellees’ “connection” to a party specifically enumerated

by the release. Appellees have advanced no arguments for why the same rule is

inapplicable to unnamed plaintiffs.

      Applying this “connection” test to the case at hand, Appellees are bound as a

matter of law by the release. Both Garner and Avant are intimately connected to

signatories of the mutual release. It is undisputed that Avant procured a rental

insurance policy for Sterling—a signatory to the Mutual Release—with respect to

Sterling’s tenancy with Appellees, and that Avant occupied the space rented by

Sterling. There is also no dispute that Sterling managed Avant’s non-medical

business dealings, which Appellee Garner admitted in his affidavit. And finally,


                                           6
Garner is an officer of both Sterling and Nisal, signatories to the mutual release. It

is without dispute then that an intimate relationship existed between Sterling and

Avant and between Garner as an officer of Sterling and Nisal. They, like Nisal and

Sterling, are bound by the Mutual Release.

 II.    This Appeal Would Materially Advance the Ultimate Termination of
        the Litigation.

       Appellees also claim that Appellants’ petition for permissive interlocutory

appeal should be denied because the appeal would not materially advance the

ultimate termination of this litigation. After all, Appellees argue, there are still

disputed questions of fact relating to the Appellees’ agency relationship.

       As discussed above, this appeal does not involve any questions of fact

related to Appellees’ agency relationships. In fact, this appeal would not involve

any agency questions at all. Instead, as a matter of law, the Court must simply

determine whether Appellees are so “connected” with the Mutual Release

signatories that they, too, are bound by the Mutual Release. If the Court resolves

that question in the affirmative, then Appellees are bound by the Mutual Release,

and Appellants are entitled to final summary judgment.

       An appeal, therefore, would materially advance the ultimate termination of

this case.




                                          7
                                   CONCLUSION

      Because the controlling question of law does not rely on any question of

agency law, there exist substantial grounds for disagreement as to whether a

plaintiff not specifically named is so connected to the parties and to the subject

matter of a release that it, too, is bound by the release. Appellants respectfully

request this Court to grant its petition for permissive appeal and all other relief to

which it is entitled at law or equity.


Date: May 12, 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 APPELLANTS




                                           8
                     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
1,693 words, excluding any parts exempted by Rule 9.4(i)(1).




                                                  Ashish Mahendru




                                        9
                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Appellants’
Reply to Appellee’s Response to Appellant’s Petition for Permissive Interlocutory
Appeal was served on the following counsel of record on the 12th day of May,
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




                                                   Ashish Mahendru




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