No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                      First Street Hospital, LP; First Surgical Partners, LLC; First Surgical Partner Holdings, Inc.; and Jacob Varon
(1) Cause of
                   (2) MSJ Ground                   (3) MSJ Response                                                    (4) Trial Court’s Ruling
Action                                                                                                                                         FILED IN
                                                                                                                        Granted as to 1st COURT
                                                                                                                                        United’s       OFchallenging
                                                                                                                                                  claims   APPEALS   facility fees that
                                                                      “Preemption Responses”:                                              HOUSTON,
                                                                                                                        were incurred between November      TEXAS
                                                                                                                                                               10, 2011 and the date
                   Traditional                      • United’s claims for Defendants’ fraud in the bills they           of termination3/20/2018      4:05:43
                                                                                                                                         of First Street’s     PM
                                                                                                                                                           management   agreements
                   Preemption (4/29/16 MSJ;         submitted to United do not challenge any decision by CMS,           with its FECs. Denied as to claims challenging fees that
                                                                                                                                      CHRISTOPHER A. PRINE
                   Varon’s Renewed MSJ              and Texas law imposes its own requirements for exemption            were not incurred during     that period. CR3:1444 (July 8,
                                                                                                                                                  Clerk
                   (8/1/16)). CR1:794-821;          from licensure requirements. CR2:851-53.                            2016 Order).
                   1SuppCR6:2859-67.                • Even if preemption exists, it would not bar United’s claims       Varon’s Renewed MSJ granted in part to the same extent
                                                    that pre-date the “granting” of PBE status. CR2:856-57.             as First Street’s motion was granted in the Court’s July 8,
                                                                                                                        2016 Order. CR5:2943-44.
                                                                           “Fraud Responses”:
                                                                                                                        Granted as to all claims except United’s money had and
                                                    • United’s fraud cause of action accrued when Defendants
                   Traditional                                                                                          received claims for payments that United made after
Fraud,                                              submitted and United paid the fraudulent bills that caused
                   Statute of Limitations and No                                                                        August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
Fraudulent Non-                                     United’s injuries. CR3:1473.
                   Justifiable Reliance (6/16/16                                                                        March 23, 2017, United non-suited its remaining claims
Disclosure                                          • Defendants’ fraudulent concealment raises a fact question.
                   Joinder in Crumley’s MSJ                                                                             for money had and received for payments made after
(3rd Amd. Pet.);                                    CR3:1474-76.
                   1SuppCR5:2669-89).                                                                                   August 28, 2013, and on July 11, 2017, the trial court
CR3:1360-62,                                        • Conspiracy is a derivative of fraud and should thus have the
                   CR2:1061-78.                                                                                         signed an Order Dismissing Non-Suited claims.
¶¶ 65-69                                            same limitations period. CR3:1480-81.
                                                                                                                        2SuppCR:3.
                                                    • Justifiable reliance is a question of fact. CR3:1481-83.
                   No-Evidence (8/1/16).
                   CR4:2164-83                      • There is evidence that Defendants falsely represented that
                   Elements Challenged:             First Street was the provider on their bills. CR4:2601-04.
                   Misrepresentation, justifiable   • Even though Dr. Varon never directly made any
                   reliance and injury.             representations to United, he is liable for fraud as a party to a
                                                                                                                        Denied. CR5:2943 (Oct. 6, 2016 Order).
                   CR4:2168-78.                     fraudulent scheme. CR4:2604-05.
                   Traditional (8/1/16)             • There is evidence that United justifiably relied on
                   CR4:2164-83                      representations made by Defendants. CR4:2605-07.
                   Voluntary Payment Doctrine;      • The voluntary payment rule does not apply. CR4:2607-08.
                   CR4:2179-80.




                                                                                      1
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                      First Street Hospital, LP; First Surgical Partners, LLC; First Surgical Partner Holdings, Inc.; and Jacob Varon
(1) Cause of
                   (2) MSJ Ground                   (3) MSJ Response                                               (4) Trial Court’s Ruling
Action
                                                                                                                   Granted as to United’s claims challenging facility fees that
                                                                                                                   were incurred between November 10, 2011 and the date of
                   Traditional
                                                                                                                   termination of First Street’s management agreements with
                   Preemption (4/29/16 MSJ;
                                                                                                                   its FECs. Denied as to claims challenging fees that were not
                   Varon’s Renewed MSJ (8/1/16)).   See “Preemption Responses” from Page 1.
                                                                                                                   incurred during that period. CR3:1444 (July 8, 2016 Order).
                   CR1:794-821;
                                                                                                                   Varon’s Renewed MSJ granted in part to the same extent as
                   1SuppCR6:2859-67.
                                                                                                                   First Street’s motion was granted in the Court’s’ July 8, 2016
                                                                                                                   Order. CR5:2943-44.
                   Traditional                                                                                     Granted as to all claims except United’s money had and
Negligent                                                                                                          received claims for payments that United made after August
Misrep.,           Statute of Limitations and No                                                                   28, 2013. CR5:2942 (Oct. 6, 2016 Order). On March 23,
(3rd Amd. Pet.);   Justifiable Reliance (6/16/16    See “Fraud Responses” from Page 1.                             2017, United non-suited its remaining claims for money had
CR3:1362-63,       Joinder in Crumley’s MSJ                                                                        and received for payments made after August 28, 2013, and
¶¶ 70-72.          1SuppCR5:2669-89).                                                                              on July 11, 2017, the trial court signed an Order Dismissing
                   CR2:1061-78.                                                                                    Non-Suited claims. 2SuppCR:3.
                   No-Evidence (8/1/16).
                   Elements Challenged:             • There is evidence that Defendants falsely represented that
                   Misrepresentation, justifiable   First Street was the provider on their bills. CR4:2601-04.
                   reliance and injury.             • There is evidence that United justifiably relied on
                                                                                                                   Denied. CR5:2943 (Oct. 6, 2016 Order).
                   CR4: 2168-78.                    representations made by Defendants. CR4:2605-07.
                   Traditional (8/1/16)             • The voluntary payment rule does not apply. CR4:2607-08.
                   Voluntary Payment Doctrine
                   CR4:2179-80.




                                                                                    2
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                      First Street Hospital, LP; First Surgical Partners, LLC; First Surgical Partner Holdings, Inc.; and Jacob Varon
(1) Cause of
                   (2) MSJ Ground                   (3) MSJ Response                                                (4) Trial Court’s Ruling
Action
                                                                                                                    Granted as to United’s claims challenging facility fees that
                                                                                                                    were incurred between November 10, 2011 and the date of
                   Traditional
                                                                                                                    termination of First Street’s management agreements with
                   Preemption (4/29/16 MSJ;
                                                                                                                    its FECs. Denied as to claims challenging fees that were not
                   Varon’s Renewed MSJ (8/1/16)).   See “Preemption Responses” from Page 1.
                                                                                                                    incurred during that period. CR3:1444 (July 8, 2016 Order).
                   CR1:794-821;
                                                                                                                    Varon’s Renewed MSJ granted in part to the same extent as
                   1SuppCR6:2859-67.
                                                                                                                    First Street’s motion was granted in the Court’s’ July 8, 2016
                                                                                                                    Order. CR5:2943-44.
                                                                                                                    Granted as to all claims except United’s money had and
                   Traditional                                                                                      received claims for payments that United made after August
                   Statute of Limitations                                                                           28, 2013. CR5:2942 (Oct. 6, 2016 Order). On March 23,
Money Had &        (6/16/16 Joinder in Crumley’s    See “Fraud Responses” from Page 1.                              2017, United non-suited its remaining claims for money had
Rec’d.,            MSJ1SuppCR5:2669-89).                                                                            and received for payments made after August 28, 2013, and
(3rd Amd. Pet.);   CR2:1061-78.                                                                                     on July 11, 2017, the trial court signed an Order Dismissing
CR3:1363,                                                                                                           Non-Suited claims. 2SuppCR:3.
¶¶ 73-74.                                           • In their No Evidence and Traditional Motion for Summary
                                                    Judgment, the First Street Defendants and Dr. Varon asserted
                                                    that, for the same reasons that United’s fraud and negligent
                   No-Evidence (8/1/16)
                   CR4:2178 & n.2.                  misrepresentation claims failed, United’s money had and
                                                    received, unjust enrichment, civil conspiracy, and aiding and
                                                    abetting claims also failed. CR4:2178 & n.2. Therefore,
                   Traditional (8/1/16)                                                                             Denied. CR5:2943 (Oct. 6, 2016 Order).
                                                    United’s responses to the fraud and negligent
                   Voluntary Payment Doctrine
                                                    misrepresentation grounds in the No Evidence and
                   CR4:2179-80.
                                                    Traditional Motion for Summary Judgment also would apply
                                                    to the money had and received, unjust enrichment, civil
                                                    conspiracy, and aiding and abetting claims.
                                                    • The voluntary payment rule does not apply. CR4:2607-08.




                                                                                    3
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                      First Street Hospital, LP; First Surgical Partners, LLC; First Surgical Partner Holdings, Inc.; and Jacob Varon
(1) Cause of
                   (2) MSJ Ground                   (3) MSJ Response                                                (4) Trial Court’s Ruling
Action
                                                                                                                    Granted as to United’s claims challenging facility fees that
                                                                                                                    were incurred between November 10, 2011 and the date of
                   Traditional
                                                                                                                    termination of First Street’s management agreements with
                   Preemption (4/29/16 MSJ;
                                                                                                                    its FECs. Denied as to claims challenging fees that were not
                   Varon’s Renewed MSJ (8/1/16)).   See “Preemption Responses” from Page 1.
                                                                                                                    incurred during that period. CR3:1444 (July 8, 2016 Order).
                   CR1:794-821;
                                                                                                                    Varon’s renewed MSJ granted in part to the same extent as
                   1SuppCR6:2859-67.
                                                                                                                    First Street’s motion was granted in the Court’s July 8, 2016
                                                                                                                    Order. CR5:2943-44.
                                                                                                                    Granted as to all claims except United’s money had and
                   Traditional                                                                                      received claims for payments that United made after August
                   Statute of Limitations                                                                           28, 2013. CR5:2942 (Oct. 6, 2016 Order). On March 23,
Unjust             (6/16/16 Joinder in Crumley’s    See “Fraud Responses” from Page 1.                              2017, United non-suited its remaining claims for money had
Enrichment,        MSJ 1SuppCR5:2669-89).                                                                           and received for payments made after August 28, 2013, and
(3rd Amd. Pet.);   CR2:1061-78.                                                                                     on July 11, 2017, the trial court signed an Order Dismissing
CR3:1363,                                                                                                           Non-Suited claims. 2SuppCR:3.
¶¶ 75-77.                                           • In their No Evidence and Traditional Motion for Summary
                                                    Judgment, the First Street Defendants and Dr. Varon asserted
                                                    that, for the same reasons that United’s fraud and negligent
                   No-Evidence (8/1/16)             misrepresentation claims failed, United’s money had and
                   CR4:2178 & n.2                   received, unjust enrichment, civil conspiracy, and aiding and
                                                    abetting claims also failed. CR4:2178 & n.2. Therefore,
                                                                                                                    Denied. CR5:2943 (Oct. 6, 2016 Order).
                   Traditional (8/1/16)             United’s responses to the fraud and negligent
                   Voluntary Payment Doctrine       misrepresentation grounds in the No Evidence and
                   CR4:2179-80.                     Traditional Motion for Summary Judgment also would apply
                                                    to the money had and received, unjust enrichment, civil
                                                    conspiracy, and aiding and abetting claims.
                                                    • The voluntary payment rule does not apply. CR4:2607-08.




                                                                                    4
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                       First Street Hospital, LP; First Surgical Partners, LLC; First Surgical Partner Holdings, Inc.; and Jacob Varon
(1) Cause of
                    (2) MSJ Ground                   (3) MSJ Response                                                (4) Trial Court’s Ruling
Action
                                                                                                                     Granted as to United’s claims challenging facility fees that
                                                                                                                     were incurred between November 10, 2011 and the date of
                    Traditional                                                                                      termination of First Street’s management agreements with
                    Preemption (4/29/16 MSJ;                                                                         its FECs. Denied as to claims challenging fees that were not
                    Varon’s Renewed MSJ (8/1/16)).   See “Preemption Responses” from Page 1.                         incurred during that period. CR3:1444 (July 8, 2016 Order).
                    CR1:794-821;
                    1SuppCR6:2859-67.                                                                                Varon’s renewed MSJ granted in part to the same extent as
                                                                                                                     First Street’s motion was granted in the Court’s July 8, 2016
                                                                                                                     Order. CR5:2943-44.
                                                                                                                     Granted as to all claims except United’s money had and
                    Traditional                                                                                      received claims for payments that United made after August
                    Statute of Limitations                                                                           28, 2013. CR5:2942 (Oct. 6, 2016 Order). On March 23,
Civil Conspiracy,   (6/16/16 Joinder in Crumley’s    See “Fraud Responses” from Page 1.                              2017, United non-suited its remaining claims for money had
(3rd Amd. Pet.);    MSJ; 1SuppCR5:2669-89).                                                                          and received for payments made after August 28, 2013, and
CR3:1363-64,        CR2:1061-78.                                                                                     on July 11, 2017, the trial court signed an Order Dismissing
¶¶ 78-81.                                                                                                            Non-Suited claims. 2SuppCR:3.
                                                     • In their No Evidence and Traditional Motion for Summary
                                                     Judgment, the First Street Defendants and Dr. Varon asserted
                    No-Evidence (8/01/16).           that, for the same reasons that United’s fraud and negligent
                    CR4:2178 & n.2.                  misrepresentation claims failed, United’s money had and
                                                     received, unjust enrichment, civil conspiracy, and aiding and
                                                     abetting claims also failed. CR4:2178 & n.2. Therefore,
                    Traditional (8/1/16)                                                                             Denied. CR5:2943 (Oct. 6, 2016 Order).
                                                     United’s responses to the fraud and negligent
                    Voluntary Payment Doctrine
                                                     misrepresentation grounds in the No Evidence and
                    CR4:2179-80.
                                                     Traditional Motion for Summary Judgment also would apply
                                                     to the money had and received, unjust enrichment, civil
                                                     conspiracy, and aiding and abetting claims.
                                                     • The voluntary payment rule does not apply. CR4:2607-08.




                                                                                     5
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                      First Street Hospital, LP; First Surgical Partners, LLC; First Surgical Partner Holdings, Inc.; and Jacob Varon
(1) Cause of
                   (2) MSJ Ground                   (3) MSJ Response                                                (4) Trial Court’s Ruling
Action
                                                                                                                    Granted as to United’s claims challenging facility fees that
                                                                                                                    were incurred between November 10, 2011 and the date of
                   Traditional
                                                                                                                    termination of First Street’s management agreements with
                   Preemption (4/29/16 MSJ;
                                                                                                                    its FECs. Denied as to claims challenging fees that were not
                   Varon’s Renewed MSJ (8/1/16)).   See “Preemption Responses” from Page 1.
                                                                                                                    incurred during that period. CR3:1444 (July 8, 2016 Order).
                   CR1:794-821;
                                                                                                                    Varon’s renewed MSJ granted in part to the same extent as
                   1SuppCR6:2859-67.
                                                                                                                    First Street’s motion was granted in the Court’s July 8, 2016
                                                                                                                    Order. CR5:2943-44.
Aiding &
                                                    • In their No Evidence and Traditional Motion for Summary
Abetting,
                                                    Judgment, the First Street Defendants and Dr. Varon asserted
(3rd Amd. Pet.);
                                                    that, for the same reasons that United’s fraud and negligent
CR3:1364,          No-Evidence
                                                    misrepresentation claims failed, United’s money had and
¶¶ 82-85           CR4:2178 & n.2
                                                    received, unjust enrichment, civil conspiracy, and aiding and
                                                    abetting claims also failed. CR4:2178 & n.2. Therefore,
                   Traditional (8/1/16)                                                                             Denied. CR5:2943 (Oct. 6, 2016 Order).
                                                    United’s responses to the fraud and negligent
                   Voluntary Payment Doctrine.
                                                    misrepresentation grounds in the No Evidence and
                   CR4:2179-80.
                                                    Traditional Motion for Summary Judgment also would apply
                                                    to the money had and received, unjust enrichment, civil
                                                    conspiracy, and aiding and abetting claims.
                                                    • The voluntary payment rule does not apply. CR4:2607-08.
                                                                                                                    Granted as to United’s claims challenging facility fees that
                                                                                                                    were incurred between November 10, 2011 and the date of
Declaratory
                                                                                                                    termination of First Street’s management agreements with
Judgment,
                   Traditional                                                                                      its FECs. Denied as to claims challenging fees that were not
(3rd Amd. Pet.);                                    See “Preemption Responses” from Page 1.
                   Preemption. CR1:818-19.                                                                          incurred during that period. CR3:1444 (July 8, 2016 Order).
CR3:1369-70,
                                                                                                                    Varon’s renewed MSJ granted in part to the same extent as
¶¶ 104-05.
                                                                                                                    First Street’s motion was granted in the Court’s July 8, 2016
                                                                                                                    Order. CR5:2943-44.




                                                                                    6
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                             St. Michael’s Emergency Center, LLC; The Woodlands FEC, LLC; Shannon Orsak; and Brian Orsak
(1) Cause of
                   (2) MSJ Grounds                    (3) MSJ Response                                                 (4) Trial Court’s Ruling
Action
                                                                          “Preemption Responses”:
                                                      • United’s claims for Defendants’ fraud in the bills they
                   Traditional
                                                      submitted to United do not challenge any decision by CMS,
                   Preemption (5/5/16 Joinder in
                                                      and Texas law imposes its own requirements for exemption         Denied. CR3:1445 (July 8, 2016 Order).
                   First Street’s 4/29/16 MSJ).
                                                      from licensure requirements. CR2:851-53.
                   CR2:822-24.
                                                      • Even if preemption exists, it would not bar United’s claims
                                                      that pre-date the “granting” of PBE status. CR2:856-57.
                                                                             “Fraud Responses”:
                                                                                                                       Granted as to all claims except United’s money had and
                   Traditional                        • United’s fraud cause of action accrued when Defendants
                                                                                                                       received claims for payments that United made after
                   Statute of Limitations and No      submitted and United paid the fraudulent bills that caused
                                                                                                                       August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                   Justifiable Reliance (6/17/16      United’s injuries. CR3:1473.
                                                                                                                       March 23, 2017, United non-suited its remaining claims
                   Joinder in Crumley’s MSJ;          • Defendants’ fraudulent concealment raises a fact question.
                                                                                                                       for money had and received for payments made after
Fraud,             8/1/16 MSJ; 8/1/16 Joinder)).      CR3:1474-76.
                                                                                                                       August 28, 2013, and on July 11, 2017, the trial court
Fraudulent         CR2:1265-67; CR4:2476-77;          • Conspiracy is a derivative of fraud and should thus have the
                                                                                                                       signed an Order Dismissing Non-Suited claims.
Non-Disclosure     CR4:2503-09.                       same limitations period. CR3:1480-81.
                                                                                                                       2SuppCR:3.
(3rd Amd. Pet.);                                      • Justifiable reliance is a question of fact. CR3:1481-83.
CR3:1360-62,       Traditional (8/1/16).
¶¶ 65-69           CR4:2503-08.
                   St. Michael’s and The                                                                               Granted in part and Denied in part to the same extent as
                                                      • PBE status is no bar to United’s claims against Defendants
                   Woodlands FEC conclusively                                                                          the Court’s ruling on the motion that was joined.
                                                      for these pre-PBE fraudulent bills. CR4:2554-55.
                   established their entitlement to                                                                    CR5:2944 (Oct. 6, 2016 Order).
                   facility fees.
                   CR4:2506-07.
                                                      • There is evidence that Defendants falsely represented that
                   No-Evidence (8/1/16).
                                                      First Street was the provider on their bills. CR4:2604-07.
                   CR4:2439-47.
                                                      • There is evidence that United justifiably relied on            Granted in part as to United’s claims against Shannon
                   Elements Challenged:
                                                      representations made by Defendants. CR4:2605-07.                 Orsak and Brian Orsak and Denied in part as to the
                   Misrepresentation, reliance,
                                                      •Defendants are liable for fraud as a party to a fraudulent      remainder. CR5:2943 (Oct. 6, 2016 Order).
                   duty, opportunity to discover
                                                      scheme. CR4:2576-77.
                   facts, and injury. CR4:2441-45.
                                                      • There is evidence of duty to disclose the truth. CR4:2577.




                                                                                       7
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                            St. Michael’s Emergency Center, LLC; The Woodlands FEC, LLC; Shannon Orsak; and Brian Orsak
(1) Cause of
                   (2) MSJ Grounds                   (3) MSJ Response                                                 (4) Trial Court’s Ruling
Action
                   Traditional
                   Preemption                        See “Preemption Responses” from Page 7.                          Denied. CR3:1445 (July 8, 2016 Order).
                   CR2:822-24.
                                                                                                                      Granted as to all claims except United’s money had and
                                                                                                                      received claims for payments that United made after
                   Traditional
                                                                                                                      August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                   Statute of Limitations and No
                                                                                                                      March 23, 2017, United non-suited its remaining claims
                   Reliance (6/17/16 Joinder;        See “Fraud Responses” from Page 7.
                                                                                                                      for money had and received for payments made after
Negligent          8/1/16 MSJ). CR2:1265-67;
                                                                                                                      August 28, 2013, and on July 11, 2017, the trial court
Misrep.,           CR4:2476-77; CR4:2503-09.
                                                                                                                      signed an Order Dismissing Non-Suited claims.
(3rd Amd. Pet.);
                                                                                                                      2SuppCR:3.
CR3:1362-63,
                   Traditional (8/1/16)
¶¶ 70-72.
                   St. Michael’s and The                                                                              Granted in part and Denied in part to the same extent as
                   Woodlands FEC conclusively        See “Fraud Responses” from Page 7.                               the Court’s ruling on the motion that was joined.
                   established their entitlement                                                                      CR5:2944 (Oct. 6, 2016 Order).
                   to facility fees. CR4:2506-07.
                   No-Evidence (8/1/16)
                                                                                                                      Granted in part as to United’s claims against Shannon
                   Elements Challenged:              • There is evidence of misrepresentation, reliance and injury.
                                                                                                                      Orsak and Brian Orsak and Denied in part as to the
                   Misrepresentation, reliance       CR4:2577-78.
                                                                                                                      remainder. CR5:2943 (Oct. 6, 2016 Order).
                   and injury. CR4:2444-45.
                   Traditional
                   Preemption (5/5/16 Joinder in
                                                     See “Preemption Responses” from Page 7.                          Denied. CR3:1445 (July 8, 2016 Order).
                   First Street’s 4/29/16 MSJ).
                   CR2:822-24.
                                                                                                                      Granted as to all claims except United’s money had and
                                                                                                                      received claims for payments that United made after
                   Traditional
Money Had &                                                                                                           August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                   Statute of Limitations (6/17/16
Rec’d.,                                                                                                               March 23, 2017, United non-suited its remaining claims
                   Joinder; 8/1/16 MSJ).             See “Fraud Responses” from Page 7.
(3rd Amd. Pet.);                                                                                                      for money had and received for payments made after
                   CR2:1265-67; CR4:2476-77;
CR3:1363,                                                                                                             August 28, 2013, and on July 11, 2017, the trial court
                   CR4:2503-09.
¶¶ 73-74.                                                                                                             signed an Order Dismissing Non-Suited claims.
                                                                                                                      2SuppCR:3.
                   Traditional (8/1/16)
                   St. Michael’s and The                                                                              Granted in part and Denied in part to the same extent as
                   Woodlands FEC conclusively        See “Fraud Responses” from Page 7.                               the Court’s ruling on the motion that was joined.
                   established their entitlement                                                                      CR5:2944 (Oct. 6, 2016 Order).
                   to facility fees. CR4:2506-07.


                                                                                      8
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                             St. Michael’s Emergency Center, LLC; The Woodlands FEC, LLC; Shannon Orsak; and Brian Orsak
(1) Cause of
                    (2) MSJ Grounds                   (3) MSJ Response                                                 (4) Trial Court’s Ruling
Action
Money Had &         No-Evidence (8/1/16)
                                                      • There is evidence St. Michael’s Defendants obtained facility
Rec’d. (cont’d),    CR4:2439-47.                                                                                       Granted in part as to United’s claims against Shannon
                                                      fee payments from United on bills that represented First
(3rd Amd. Pet.);    Elements Challenged:                                                                               Orsak and Brian Orsak and Denied in part as to the
                                                      Street was the provider performing the services being billed.
CR3:1363,           Defendants are holding money.                                                                      remainder. CR5:2943 (Oct. 6, 2016 Order).
                                                      CR4:2580.
¶¶ 73-74.           CR4:2445.
                    Traditional
                                                      See “Preemption Responses” from Page 7.                          Denied. CR3:1445 (July 8, 2016 Order).
                    Preemption. CR2:822-24.
                                                                                                                       Granted as to all claims except United’s money had and
                                                                                                                       received claims for payments that United made after
                    Traditional
                                                                                                                       August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                    Statute of Limitations (6/17/16
                                                                                                                       March 23, 2017, United non-suited its remaining claims
                    Joinder; 8/1/16 MSJ).             See “Fraud Responses” from Page 7.
                                                                                                                       for money had and received for payments made after
                    CR2:1265-67; CR4:2476-77;
                                                                                                                       August 28, 2013, and on July 11, 2017, the trial court
Unjust              CR4:2503-09.
                                                                                                                       signed an Order Dismissing Non-Suited claims.
Enrichment,
                                                                                                                       2SuppCR:3.
(3rd Amd. Pet.);
                    Traditional (8/1/16)
CR3:1363,
                    St. Michael’s and The                                                                              Granted in part and Denied in part to the same extent as
¶¶ 75-77.
                    Woodlands FEC conclusively        See “Fraud Responses” from Page 7.                               the Court’s ruling on the motion that was joined.
                    established their entitlement                                                                      CR5:2944 (Oct. 6, 2016 Order).
                    to facility fees. CR4:2506-07.
                    No-Evidence (8/1/16)
                                                      • There is evidence St. Michael’s Defendants obtained facility
                    CR4:2439-47.                                                                                       Granted in part as to United’s claims against Shannon
                                                      fee payments from United on bills that represented First
                    Elements Challenged:                                                                               Orsak and Brian Orsak and Denied in part as to the
                                                      Street was the provider performing the services being billed.
                    Defendants are holding money.                                                                      remainder. CR5:2943 (Oct. 6, 2016 Order).
                                                      CR4:2580.
                    CR4:2445.
                    Traditional
                                                      See “Preemption Responses” from Page 7.                          Denied. CR3:1445 (July 8, 2016 Order).
                    Preemption. CR2:822-24.
                                                                                                                       Granted as to all claims except United’s money had and
Civil Conspiracy,                                                                                                      received claims for payments that United made after
                    Traditional
(3rd Amd. Pet.);                                                                                                       August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                    Statute of Limitations (6/17/16
CR3:1363-64,                                                                                                           March 23, 2017, United non-suited its remaining claims
                    Joinder; 8/1/16 MSJ).             See “Fraud Responses” from Page 7.
¶¶ 78-81.                                                                                                              for money had and received for payments made after
                    CR2:1265-67; CR4:2476-77;
                                                                                                                       August 28, 2013, and on July 11, 2017, the trial court
                    CR4:2503-09.
                                                                                                                       signed an Order Dismissing Non-Suited claims.
                                                                                                                       2SuppCR:3.




                                                                                       9
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                             St. Michael’s Emergency Center, LLC; The Woodlands FEC, LLC; Shannon Orsak; and Brian Orsak
(1) Cause of
                   (2) MSJ Grounds                    (3) MSJ Response                                                (4) Trial Court’s Ruling
Action
                   Traditional (8/1/16)
                   St. Michael’s and The                                                                              Granted in part and Denied in part to the same extent as
                   Woodlands FEC conclusively         See “Fraud Responses” from Page 7.                              the Court’s ruling on the motion that was joined.
Civil Conspiracy
                   established their entitlement                                                                      CR5:2944 (Oct. 6, 2016 Order).
(cont’d),
                   to facility fees. CR4:2506-07.
(3rd Amd. Pet.);
                   No-Evidence (8/1/16)
CR3:1363-64,
                   CR4:2439-47.                       • There is evidence Defendants engaged in unlawful overt        Granted in part as to United’s claims against Shannon
¶¶ 78-81.
                   Elements Challenged:               acts and employed unlawful means in furtherance of their        Orsak and Brian Orsak and Denied in part as to the
                   Defendants did an unlawful act     conspiracy. CR4:2578-79.                                        remainder. CR5:2943 (Oct. 6, 2016 Order).
                   and damages. CR4:2445-46.
                   Traditional
                                                      See “Preemption Responses” from Page 7.                         Denied. CR3:1445 (July 8, 2016 Order).
                   Preemption. CR2:822-24.
                                                                                                                      Granted as to all claims except United’s money had and
                                                                                                                      received claims for payments that United made after
                   Traditional
                                                                                                                      August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                   Statute of Limitations (6/17/16
                                                                                                                      March 23, 2017, United non-suited its remaining claims
                   Joinder; 8/1/16 MSJ).              See “Fraud Responses” from Page 7.
                                                                                                                      for money had and received for payments made after
                   CR2:1265-67; CR4:2476-77;
                                                                                                                      August 28, 2013, and on July 11, 2017, the trial court
                   CR4:2503-09.
                                                                                                                      signed an Order Dismissing Non-Suited claims.
                                                                                                                      2SuppCR3.
Aiding &           Traditional (8/1/16)
Abetting,          St. Michael’s and The
                                                                                                                      Granted in part and Denied in part to the same extent as
(3rd Amd. Pet.);   Woodlands FEC conclusively
                                                      See “Fraud Responses” from Page 7.                              the Court’s ruling on the motion that was joined.
CR3:1364,          established their entitlement
                                                                                                                      CR5:2944 (Oct. 6, 2016 Order).
¶¶ 82-85           to facility fees.
                   CR4:2506-07.
                   No-Evidence (8/1/16)
                   CR4:2439-47.
                   Elements Challenged:               • There is evidence Defendants St. Michael's Defendants
                   Defendants conduct does not        schemed with other Defendants to improperly obtain facility     Granted in part as to United’s claims against Shannon
                   constitute highly dangerous,       fees from United and gave each other assistance and             Orsak and Brian Orsak and Denied in part as to the
                   deviant or antisocial behavior     encouragement in submitting their various fraudulent bills to   remainder. CR5:2943 (Oct. 6, 2016 Order).
                   likely to cause injury, death or   United. CR4:2579-80.
                   certain harm to a large group
                   of people. CR4:2446-47.




                                                                                      10
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                            St. Michael’s Emergency Center, LLC; The Woodlands FEC, LLC; Shannon Orsak; and Brian Orsak
(1) Cause of
                   (2) MSJ Grounds             (3) MSJ Response                                  (4) Trial Court’s Ruling
Action
Declaratory
Judgment,
                   Traditional
(3rd Amd. Pet.);                               See “Preemption Responses” from Page 7.           Denied. CR3:1445 (July 8, 2016 Order).
                   Preemption CR1:818-19.
CR3:1369-70,
¶¶ 104-05.




                                                                            11
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                                       Emergency Healthcare Partners, LP d/b/a Memorial Heights Emergency Center
(1) Cause of
                   (2) MSJ Ground                      (3) MSJ Response                                                 (4) Trial Court’s Ruling
Action
                                                                           “Preemption Responses”:
                                                       • United’s claims for Defendants’ fraud in the bills they
                   Traditional
                                                       submitted to United do not challenge any decision by CMS,
                   Preemption (5/6/16 Joinder in
                                                       and Texas law imposes its own requirements for exemption         Denied. CR3:1445 (July 8, 2016 Order).
                   First Street’s 4/29/16 MSJ).
                                                       from licensure requirements. CR2:851-53.
                   CR2:831-33.
                                                       • Even if preemption exists, it would not bar United’s claims
                                                       that pre-date the “granting” of PBE status. CR2:856-57.
                                                                              “Fraud Responses”:
                                                                                                                        Granted as to all claims except United’s money had and
                                                       • United’s fraud cause of action accrued when Defendants
                                                                                                                        received claims for payments that United made after
                                                       submitted and United paid the fraudulent bills that caused
                   Traditional                                                                                          August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                                                       United’s injuries. CR3:1473.
                   Statute of Limitations and No                                                                        March 23, 2017, United non-suited its remaining claims
                                                       • Defendants’ fraudulent concealment raises a fact question.
Fraud,             Reliance (6/17/16 Joinder in                                                                         for money had and received for payments made after
                                                       CR3:1474-76.
Fraudulent Non-    Crumley’s MSJ). CR2:1261-64.                                                                         August 28, 2013, and on July 11, 2017, the trial court
                                                       • Conspiracy is a derivative of fraud and should thus have the
Disclosure                                                                                                              signed an Order Dismissing Non-Suited claims.
                                                       same limitations period. CR3:1480-81.
(3rd Amd. Pet.);                                                                                                        2SuppCR:3.
                                                       • Justifiable reliance is a question of fact. CR3:1481-83.
CR3:1360-62,
¶¶ 65-69
                   No-Evidence (8/1/16)
                   CR4:2478-99.
                   Elements Challenged:                • United has standing as a fiduciary. CR4:2692-94.
                   Misrepresentation, Reliance,        • There is evidence that Defendants falsely represented that
                   duty, defendant knew that           First Street was the provider on their bills. CR4:2694.
                                                                                                                        Denied as to fraud and granted as to fraudulent non-
                   United was ignorant of the          • Defendants are liable for fraud as a party to a fraudulent
                                                                                                                        disclosure. CR5:2943 (Oct. 6, 2016 Order).
                   facts and did not have an equal     scheme. CR4:2695.
                   opportunity to discover the         • There is evidence of duty to disclose the truth.
                   facts, Defendant remained           CR4:2694-95.
                   deliberately silent, reliance and
                   injury. CR4:2486-88.




                                                                                        12
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                                      Emergency Healthcare Partners, LP d/b/a Memorial Heights Emergency Center
(1) Cause of
                   (2) MSJ Ground                    (3) MSJ Response                                                 (4) Trial Court’s Ruling
Action
                   Traditional
                   Preemption (5/6/16 Joinder in
                                                     See “Preemption Responses” from Page 12.                         Denied. CR3:1445 (July 8, 2016 Order).
                   First Street’s 4/29/16 MSJ).
                   CR2:831-33.
                                                                                                                      Granted as to all claims except United’s money had and
                                                                                                                      received claims for payments that United made after
Negligent
                   Traditional                                                                                        August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
Misrep.,
                   Statute of Limitations and No                                                                      March 23, 2017, United non-suited its remaining claims
(3rd Amd. Pet.);                                     See “Fraud Responses” from Page 12.
                   Reliance (6/17/16 Joinder in                                                                       for money had and received for payments made after
CR3:1362-63,
                   Crumley’s MSJ). CR2:1261-64.                                                                       August 28, 2013, and on July 11, 2017, the trial court
¶¶ 70-72.
                                                                                                                      signed an Order Dismissing Non-Suited claims.
                                                                                                                      2SuppCR:3.
                   No-Evidence (8/1/16)
                   Elements Challenged:              • There is evidence of reliance, misrepresentation and injury.
                                                                                                                      Denied. CR5:2943 (Oct. 6, 2016 Order).
                   Reliance, misrepresentation       CR4:2696-97.
                   and injury. CR4:2488-89.
                   Traditional
                   Preemption (5/6/16 Joinder in
                                                     See “Preemption Responses” from Page 12.                         Denied. CR3:1445 (July 8, 2016 Order).
                   First Street’s 4/29/16 MSJ).
                   CR2:831-33.
                                                                                                                      Granted as to all claims except United’s money had and
                                                                                                                      received claims for payments that United made after
Money Had &
                   Traditional                                                                                        August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
Rec’d.,
                   Statute of Limitations (6/17/16                                                                    March 23, 2017, United non-suited its remaining claims
(3rd Amd. Pet.);                                     See “Fraud Responses” from Page 12.
                   Joinder in Crumley’s MSJ).                                                                         for money had and received for payments made after
CR3:1363,
                   CR2:1261-64.                                                                                       August 28, 2013, and on July 11, 2017, the trial court
¶¶ 73-74.
                                                                                                                      signed an Order Dismissing Non-Suited claims.
                                                                                                                      2SuppCR:3.
                   No-Evidence (8/1/16)
                   Elements Challenged:              • There is evidence United has an ownership interest in the
                                                                                                                      Denied. CR5:2943 (Oct. 6, 2016 Order).
                   Ownership interest in the         money. CR4:2698.
                   money. CR4:2489-90.




                                                                                      13
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                                       Emergency Healthcare Partners, LP d/b/a Memorial Heights Emergency Center
(1) Cause of
                    (2) MSJ Ground                    (3) MSJ Response                                              (4) Trial Court’s Ruling
Action
                    Traditional
                    Preemption (5/6/16 Joinder in
                                                      See “Preemption Responses” from Page 12.                      Denied. CR3:1445 (July 8, 2016 Order)
                    First Street’s 4/29/16 MSJ).
                    CR2:831-33.
                                                                                                                    Granted as to all claims except United’s money had and
                                                                                                                    received claims for payments that United made after August
                    Traditional
Unjust                                                                                                              28, 2013. CR5:2942 (Oct. 6, 2016 Order). On March 23,
                    Statute of Limitations (6/17/16
Enrichment,                                           See “Fraud Responses” from Page 12.                           2017, United non-suited its remaining claims for money had
                    Joinder in Crumley’s MSJ).
(3rd Amd. Pet.);                                                                                                    and received for payments made after August 28, 2013, and
                    CR2:1261-64.                                                                                    on July 11, 2017, the trial court signed an Order Dismissing
CR3:1363,
¶¶ 75-77.                                                                                                           Non-Suited claims. 2SuppCR:3.
                    No-Evidence (8/1/16)
                    Element Challenged:
                    That Defendant wrongfully         • There is evidence Defendants wrongfully received facility
                                                                                                                    Denied. CR5:2943 (Oct. 6, 2016 Order).
                    secured or passively received a   fees. CR4:2698.
                    benefit that would be wrong to
                    retain. CR4:2490-91.
                    Traditional
                    Preemption (5/6/16 Joinder in
                                                      See “Preemption Responses” from Page 12.                      Denied. CR3:1445 (July 8, 2016 Order).
                    First Street’s 4/29/16 MSJ).
Civil Conspiracy,   CR2:831-33.
(3rd Amd. Pet.);                                                                                                    Granted as to all claims except United’s money had and
CR3:1363-64,                                                                                                        received claims for payments that United made after August
                    Traditional
                                                                                                                    28, 2013. CR5:2942 (Oct. 6, 2016 Order). On March 23,
¶¶ 78-81.           Statute of Limitations (6/17/16
                                                      See “Fraud Responses” from Page 12.                           2017, United non-suited its remaining claims for money had
                    Joinder in Crumley’s MSJ).
                                                                                                                    and received for payments made after August 28, 2013, and
                    CR2:1261-64.                                                                                    on July 11, 2017, the trial court signed an Order Dismissing
                                                                                                                    Non-Suited claims. 2SuppCR:3.




                                                                                      14
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                                      Emergency Healthcare Partners, LP d/b/a Memorial Heights Emergency Center
(1) Cause of
                   (2) MSJ Ground                   (3) MSJ Response                                                (4) Trial Court’s Ruling
Action
                   No-Evidence (8/1/16)
                   Elements Challenged:
                   Defendant was a member of a
                   combination of 2 or more
Civil Conspiracy
                   actors, had a meeting of the
(cont’d),
                   minds, one of the members        • Defendants engaged in unlawful avert acts and employed
(3rd Amd. Pet.);                                                                                                    Denied. CR5:2943 (Oct. 6, 2016 Order).
                   committed an unlawful overt      unlawful means in furtherance of their conspiracy. CR4:2697.
CR3:1363-64,
                   act to further the course and
¶¶ 78-81.
                   injury. CR4:2490-91.
                   Traditional (8/1/16)
                   Underlying torts were time-
                   barred. CR4:2491-92.
                   Traditional
                   Preemption (5/6/16 Joinder in
                                                    See “Preemption Responses” from Page 12.                        Denied. CR3:1445 (July 8, 2016 Order).
Aiding &           First Street’s 4/29/16 MSJ).
Abetting,          CR2:831-33.
(3rd Amd. Pet.);   No-Evidence (8/1/16)
CR3:1364,          Elements Challenged:
                                                    • Defendants intentionally schemed and gave each other
¶¶ 82-85           Intent and knowledge as to                                                                       Granted. CR5:2943 (Oct. 6, 2016 Order).
                                                    assistance and encouragement. CR4:2698.
                   Memorial Heights.
                   CR4:2492-94.
                   Traditional (8/1/16)
Declaratory
                   As a matter of law, the claims
Judgment,                                           • United’s claim for declaratory relief, however, essentially
                   for declaratory judgment
(3rd Amd. Pet.);                                    seeks declarations defining Defendants’ obligations regarding   Granted. CR5:2943 (Oct. 6, 2016 Order).
                   duplicated United’s already
CR3:1369-70,                                        honest billing in the future. CR4:2699.
                   existing tort claims.
¶¶ 104-05.
                   CR4:2494-95.




                                                                                    15
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                                       Diane Crumley; Vital Weight Control, Inc.; and Harris County Title Search, Inc.
(1) Cause of
                   (2) MSJ Ground                    (3) MSJ Response                                                 (4) Trial Court’s Ruling
Action
                                                                                                                      Granted as to United’s claims challenging facility fees
                                                                                                                      that were incurred between November 10, 2011 and the
                                                                                                                      date of termination of First Street’s management
                                                                        “Preemption Responses”:
                   Traditional                                                                                        agreements with its FECs. Denied as to claims
                                                     • United’s claims for Defendants’ fraud in the bills they
                   Preemption (5/6/16 Joinder in                                                                      challenging fees that were not incurred during that
                                                     submitted to United do not challenge any decision by CMS,
                   First Street’s 4/29/16 MSJ;                                                                        period. CR3:1444 (July 8, 2016 Order).
                                                     and Texas law imposes its own requirements for exemption
                   8/1/16 MSJ).
                                                     from licensure requirements. CR2:851-53.
                   1SuppCR5:2537-38;                                                                                  The renewed MSJ filed by Crumley, Vital Weight Control,
                                                     • Even if preemption exists, it would not bar United’s claims
                   CR4:2261-70.                                                                                       and Harris County Title Search was granted in part to the
                                                     that pre-date the “granting” of PBE status. CR2:856-57.
                                                                                                                      same extent as First Street’s motion was granted in the
                                                                                                                      Court’s’ July 8, 2016 Order. CR5:2943-44 (Oct. 6, 2016
                                                                                                                      Order).
Fraud,
                                                                            “Fraud Responses”:
Fraudulent Non-                                                                                                       Granted as to all claims except United’s money had and
                                                     • United’s fraud cause of action accrued when Defendants
Disclosure                                                                                                            received claims for payments that United made after
                                                     submitted and United paid the fraudulent bills that caused
(3rd Amd. Pet.);   Traditional                                                                                        August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                                                     United’s injuries. CR3:1473.
CR3:1360-62,       Statute of Limitations and No                                                                      March 23, 2017, United non-suited its remaining claims
                                                     • Defendants’ fraudulent concealment raises a fact question.
¶¶ 65-69           Reliance (6/2/16 MSJ).                                                                             for money had and received for payments made after
                                                     CR3:1474-76.
                   1SuppCR5:2669-89.                                                                                  August 28, 2013, and on July 11, 2017, the trial court
                                                     • Conspiracy is a derivative of fraud and should thus have the
                                                                                                                      signed an Order Dismissing Non-Suited claims.
                                                     same limitations period. CR3:1480-81.
                                                                                                                      2SuppCR:3.
                                                     • Justifiable reliance is a question of fact. CR3:1481-83.
                   No-Evidence (8/1/16)              • United has standing as a fiduciary. CR5:2813-16.
                   CR4:2384-93.                      • There is evidence that Defendants falsely represented that
                   Elements Challenged:              First Street was the provider on their bills. CR5:2816-18.
                   Lack of Standing,                 • Defendants are liable for fraud as a party to a fraudulent
                                                                                                                      Denied. CR5:2943 (Oct. 6, 2016 Order).
                   Misrepresentation, knowledge      scheme. CR5:2816-18.
                   of falsity, acted with reckless   • There is evidence of a duty to disclose the truth.
                   disregard, duty, reliance and     CR5:2817-18.
                   damages. CR4:2388-89.             • There is evidence of knowledge. CR5:2817-18.




                                                                                      16
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                                       Diane Crumley; Vital Weight Control, Inc.; and Harris County Title Search, Inc.
(1) Cause of
                   (2) MSJ Ground                     (3) MSJ Response                                               (4) Trial Court’s Ruling
Action
                                                                                                                     Granted as to United’s claims challenging facility fees
                                                                                                                     that were incurred between November 10, 2011 and the
                                                                                                                     date of termination of First Street’s management
                   Traditional
                                                                                                                     agreements with its FECs. Denied as to claims
                   Preemption (5/6/16 Joinder in
                                                                                                                     challenging fees that were not incurred during that
                   First Street’s 4/29/16 MSJ;
                                                      See “Preemption Responses” from Page 16.                       period. CR3:1444 (July 8, 2016 Order).
                   8/1/16 MSJ).
                                                                                                                     The renewed MSJ filed by Crumley, Vital Weight Control,
                   1SuppCR5:2537-38;
                                                                                                                     and Harris County Title Search was granted in part to the
                   CR4:2261-70.
                                                                                                                     same extent as First Street’s motion was granted in the
                                                                                                                     Court’s’ July 8, 2016 Order. CR5:2943-44 (Oct. 6, 2016
Negligent                                                                                                            Order).
Misrep.,                                                                                                             Granted as to all claims except United’s money had and
(3rd Amd. Pet.);                                                                                                     received claims for payments that United made after
CR3:1362-63,       Traditional                                                                                       August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
¶¶ 70-72.          Statute of Limitations and No                                                                     March 23, 2017, United non-suited its remaining claims
                                                      See “Fraud Responses” from Page 16.
                   Reliance (6/2/16 MSJ).                                                                            for money had and received for payments made after
                   1SuppCR5:2669-89.                                                                                 August 28, 2013, and on July 11, 2017, the trial court
                                                                                                                     signed an Order Dismissing Non-Suited claims.
                                                                                                                     2SuppCR:3.
                   No-Evidence (8/1/16)
                   Elements Challenged:
                                                      • There is evidence that Defendants falsely represented that
                   Lack of standing, provided false
                                                      First Street was the provider on their bills, failed to use    Granted. CR5:2943 (Oct. 6, 2016 Order).
                   information, exercise
                                                      reasonable care and United suffered an injury. CR5:2816-18.
                   reasonable care, injury.
                   CR4:2389-90.
                                                                                                                     Granted as to United’s claims challenging facility fees
                                                                                                                     that were incurred between November 10, 2011 and the
                                                                                                                     date of termination of First Street’s management
                   Traditional
Money Had &                                                                                                          agreements with its FECs. Denied as to claims
                   Preemption (5/6/16 Joinder in
Rec’d.,                                                                                                              challenging fees that were not incurred during that
                   First Street’s 4/29/16 MSJ;
(3rd Amd. Pet.);                                      See “Preemption Responses” from Page 16.                       period. CR3:1444 (July 8, 2016 Order).
                   8/1/16 MSJ).
CR3:1363,                                                                                                            The renewed MSJ filed by Crumley, Vital Weight Control,
                   1SuppCR5:2537-38;
¶¶ 73-74.                                                                                                            and Harris County Title Search was granted in part to the
                   CR4:2261-70.
                                                                                                                     same extent as First Street’s motion was granted in the
                                                                                                                     Court’s’ July 8, 2016 Order. CR5:2943-44 (Oct. 6, 2016
                                                                                                                     Order).



                                                                                      17
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                                       Diane Crumley; Vital Weight Control, Inc.; and Harris County Title Search, Inc.
(1) Cause of
                   (2) MSJ Ground                    (3) MSJ Response                                               (4) Trial Court’s Ruling
Action
                                                                                                                    Granted as to all claims except United’s money had and
                                                                                                                    received claims for payments that United made after
                                                                                                                    August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                   Traditional
                                                                                                                    March 23, 2017, United non-suited its remaining claims
                   Statute of Limitations (6/2/16    See “Fraud Responses” from Page 16.
Money Had &                                                                                                         for money had and received for payments made after
                   MSJ). 1SuppCR5:2669-89.
Rec’d. (cont’d),                                                                                                    August 28, 2013, and on July 11, 2017, the trial court
(3rd Amd. Pet.);                                                                                                    signed an Order Dismissing Non-Suited claims.
CR3:1363,                                                                                                           2SuppCR:3.
¶¶ 73-74.          No-Evidence (8/1/16)
                   Elements Challenged:
                                                     • There is evidence that Defendants received payments.
                   Lack of standing, holds money,                                                                   Denied. CR5:2943 (Oct. 6, 2016 Order).
                                                     CR5:2821.
                   and ownership of funds.
                   CR4:2390.
                                                                                                                    Granted as to United’s claims challenging facility fees that
                                                                                                                    were incurred between November 10, 2011 and the date of
                   Traditional                                                                                      termination of First Street’s management agreements with
                                                                                                                    its FECs. Denied as to claims challenging fees that were not
                   Preemption (5/6/16 Joinder in
                                                                                                                    incurred during that period. CR3:1444 (July 8, 2016 Order).
                   First Street’s 4/29/16 MSJ;       See “Preemption Responses” from Page 16.
                                                                                                                    The renewed MSJ filed by Crumley, Vital Weight Control,
                   8/1/16 MSJ). 1SuppCR5:2537-                                                                      and Harris County Title Search was granted in part to the
                   38; CR4:2261-70.                                                                                 same extent as First Street’s motion was granted in the
                                                                                                                    Court’s’ July 8, 2016 Order. CR5:2943-44 (Oct. 6, 2016
                                                                                                                    Order).
Unjust                                                                                                              Granted as to all claims except United’s money had and
Enrichment,                                                                                                         received claims for payments that United made after
(3rd Amd. Pet.);                                                                                                    August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                   Traditional
CR3:1363,                                                                                                           March 23, 2017, United non-suited its remaining claims
                   Statute of Limitations (6/2/16    See “Fraud Responses” from Page 16.
¶¶ 75-77.                                                                                                           for money had and received for payments made after
                   MSJ). 1SuppCR5:2669-89.
                                                                                                                    August 28, 2013, and on July 11, 2017, the trial court
                                                                                                                    signed an Order Dismissing Non-Suited claims.
                                                                                                                    2SuppCR:3.
                   No-Evidence (8/1/16)
                   Elements Challenged:
                   Lack of standing, benefit which
                   would be unconscionable to        • There is evidence Defendants received a benefit. CR5:2821.   Denied. CR5:2943 (Oct. 6, 2016 Order).
                   retain by fraud, duress or
                   undue advantage.
                   CR4:2390-91.

                                                                                    18
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                                        Diane Crumley; Vital Weight Control, Inc.; and Harris County Title Search, Inc.
(1) Cause of
                    (2) MSJ Ground                   (3) MSJ Response                                       (4) Trial Court’s Ruling
Action
                                                                                                            Granted as to United’s claims challenging facility fees
                                                                                                            that were incurred between November 10, 2011 and the
                                                                                                            date of termination of First Street’s management
                    Traditional
                                                                                                            agreements with its FECs. Denied as to claims
                    Preemption (5/6/16 Joinder in
                                                                                                            challenging fees that were not incurred during that
                    First Street’s 4/29/16 MSJ;
                                                     See “Preemption Responses” from Page 16.               period. CR3:1444 (July 8, 2016 Order).
                    8/1/16 MSJ).
                                                                                                            The renewed MSJ filed by Crumley, Vital Weight Control,
                    1SuppCR5:2537-38;
                                                                                                            and Harris County Title Search was granted in part to the
                    CR4:2261-70.
                                                                                                            same extent as First Street’s motion was granted in the
                                                                                                            Court’s’ July 8, 2016 Order. CR5:2943-44 (Oct. 6, 2016
                                                                                                            Order).
                                                                                                            Granted as to all claims except United’s money had and
Civil Conspiracy,
                                                                                                            received claims for payments that United made after
(3rd Amd. Pet.);
                                                                                                            August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
CR3:1363-64,        Traditional
                                                                                                            March 23, 2017, United non-suited its remaining claims
¶¶ 78-81.           Statute of Limitations (6/2/16   See “Fraud Responses” from Page 16.
                                                                                                            for money had and received for payments made after
                    MSJ). 1SuppCR5:2669-89.
                                                                                                            August 28, 2013, and on July 11, 2017, the trial court
                                                                                                            signed an Order Dismissing Non-Suited claims.
                                                                                                            2SuppCR:3.
                    No-Evidence (8/1/16)
                    Elements Challenged:                                                                    Denied in part as to standing and as to United’s claims
                                                     • There is evidence Defendants engaged in engaged in
                    Lack of standing, meeting of                                                            for fraud, fraudulent nondisclosure, money had and
                                                     unlawful overt acts and employed unlawful means in
                    the minds on an unlawful                                                                received, unjust enrichment, and conspiracy. CR5:2943
                                                     furtherance of a conspiracy. CR5:2819.
                    course of conduct; committing                                                           (Oct. 6, 2016 Order).
                    one or more unlawful overt
                    acts, and injury. CR4:2391.
                                                                                                            Granted as to United’s claims challenging facility fees that
                                                                                                            were incurred between November 10, 2011 and the date of
                    Traditional                                                                             termination of First Street’s management agreements with
Aiding &
                    Preemption (5/6/16 Joinder in                                                           its FECs. Denied as to claims challenging fees that were not
Abetting,
                    First Street’s 4/29/16 MSJ;                                                             incurred during that period. CR3:1444 (July 8, 2016 Order).
(3rd Amd. Pet.);                                     See “Preemption Responses” from Page 16.
                    8/1/16 MSJ).                                                                            The renewed MSJ filed by Crumley, Vital Weight Control,
CR3:1364,                                                                                                   and Harris County Title Search was granted in part to the
                    1SuppCR5:2537-38;
¶¶ 82-85                                                                                                    same extent as First Street’s motion was granted in the
                    CR4:2261-70.
                                                                                                            Court’s’ July 8, 2016 Order. CR5:2943-44 (Oct. 6, 2016
                                                                                                            Order).



                                                                                    19
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                                       Diane Crumley; Vital Weight Control, Inc.; and Harris County Title Search, Inc.
(1) Cause of
                   (2) MSJ Ground                  (3) MSJ Response                                              (4) Trial Court’s Ruling
Action
                   No-Evidence (8/1/16)
                   Elements Challenged:
Aiding &
                   Lack of standing, knowledge,
Abetting
                   intent to assist, provided      • There is evidence Defendants schemed together and gave
(cont’d),
                   assistance or encouragement,    each other assistance and encouragement in submitting bills   Granted. CR5:2943 (Oct. 6, 2016 Order).
(3rd Amd. Pet.);
                   that said assistance or         to United. CR5:2820.
CR3:1364,
                   encouragement was a
¶¶ 82-85
                   substantial factor in causing
                   the tort. CR4:2391
                                                                                                                 Granted as to United’s claims challenging facility fees
                                                                                                                 that were incurred between November 10, 2011 and the
                                                                                                                 date of termination of First Street’s management
                   Traditional
                                                                                                                 agreements with its FECs. Denied as to claims
                   Preemption (5/6/16 Joinder in
                                                                                                                 challenging fees that were not incurred during that
                   First Street’s 4/29/16 MSJ;
Alter Ego /                                        See “Preemption Responses” from Page 16.                      period. CR3:1444 (July 8, 2016 Order).
                   8/1/16 MSJ).
Piercing,                                                                                                        The renewed MSJ filed by Crumley, Vital Weight Control,
                   1SuppCR5:2537-38;
(3rd Amd. Pet.);                                                                                                 and Harris County Title Search was granted in part to the
                   CR4:2261-70.
CR3:1365-68,                                                                                                     same extent as First Street’s motion was granted in the
¶¶ 86-94                                                                                                         Court’s’ July 8, 2016 Order. CR5:2943-44 (Oct. 6, 2016
                                                                                                                 Order).
                   No-Evidence (8/1/16)
                                                   • There is evidence that (1) that the companies are Ms.
                   Elements Challenged:
                                                   Crumley's alter ego, and (2) that Ms. Crumley used the        Granted. CR5:2943 (Oct. 6, 2016 Order).
                   Lack of standing, abuse of
                                                   corporate fiction for an illegitimate purpose. CR5:2821-23.
                   corporation, unity. CR4:2391.
                                                                                                                 Granted as to United’s claims challenging facility fees
                                                                                                                 that were incurred between November 10, 2011 and the
                                                                                                                 date of termination of First Street’s management
Declaratory                                                                                                      agreements with its FECs. Denied as to claims
Judgment,                                                                                                        challenging fees that were not incurred during that
                   Traditional
(3rd Amd. Pet.);                                   See “Preemption Responses” from Page 16.                      period. CR3:1444 (July 8, 2016 Order).
                   Preemption CR1:818-19.
CR3:1369-70,                                                                                                     The renewed MSJ filed by Crumley, Vital Weight Control,
¶¶ 104-05.                                                                                                       and Harris County Title Search was granted in part to the
                                                                                                                 same extent as First Street’s motion was granted in the
                                                                                                                 Court’s’ July 8, 2016 Order. CR5:2943-44 (Oct. 6, 2016
                                                                                                                 Order).




                                                                                   20
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                                                                            Tony Rotondo
(1) Cause of
                   (2) MSJ Ground                  (3) MSJ Response                                                 (4) Trial Court’s Ruling
Action
                                                                           “Fraud Responses”
                                                                                                                    Granted as to all claims except United’s money had and
                                                   • United’s fraud cause of action accrued when Defendants
                                                                                                                    received claims for payments that United made after
                                                   submitted and United paid the fraudulent bills that caused
                   Traditional                                                                                      August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                                                   United’s injuries. CR3:1473.
                   Statute of Limitations and No                                                                    March 23, 2017, United non-suited its remaining claims
                                                   • Defendants’ fraudulent concealment raises a fact question.
                   Reliance (7/1/16 Joinder in                                                                      for money had and received for payments made after
Fraud,                                             CR3:1474-76.
                   Crumley’s MSJ). CR3:1314-16.                                                                     August 28, 2013, and on July 11, 2017, the trial court
Fraudulent Non-                                    • Conspiracy is a derivative of fraud and should thus have the
                                                                                                                    signed an Order Dismissing Non-Suited claims.
Disclosure                                         same limitations period. CR3:1480-81.
                                                                                                                    2SuppCR:3.
(3rd Amd. Pet.);                                   • Justifiable reliance is a question of fact. CR3:1481-83.
CR3:1360-62,                                                           “Preemption Responses”
                                                                                                                    Granted as to United’s claims challenging facility fees
¶¶ 65-69                                           • United’s claims for Defendants’ fraud in the bills they
                   Traditional                                                                                      that were incurred between November 10, 2011 and the
                                                   submitted to United do not challenge any decision by CMS,
                   Preemption (10/12/16 Joinder                                                                     date of termination of First Street’s management
                                                   and Texas law imposes its own requirements for exemption
                   in First Street’s Preemption                                                                     agreements with its FECs. Denied as to claims
                                                   from licensure requirements. CR2:851-53.
                   Motion). 1SuppCR9:4178-80.                                                                       challenging fees that were not incurred during that
                                                   • Even if preemption exists, it would not bar United’s claims
                                                                                                                    period. CR3:1444 (July 8, 2016 Order), 1SuppCR9:4211.
                                                   that pre-date the “granting” of PBE status. CR2:856-57.
                                                                                                                    Granted as to all claims except United’s money had and
                                                                                                                    received claims for payments that United made after
                   Traditional                                                                                      August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                   Statute of Limitations and No                                                                    March 23, 2017, United non-suited its remaining claims
                                                   See “Fraud Responses,” above (Page 21).
                   Reliance (7/1/16 Joinder in                                                                      for money had and received for payments made after
Negligent
                   Crumley’s MSJ). CR3:1314-16.                                                                     August 28, 2013, and on July 11, 2017, the trial court
Misrep.,
                                                                                                                    signed an Order Dismissing Non-Suited claims.
(3rd Amd. Pet.);
                                                                                                                    2SuppCR:3.
CR3:1362-63,
                                                                                                                    Granted as to United’s claims challenging facility fees
¶¶ 70-72.
                   Traditional                                                                                      that were incurred between November 10, 2011 and the
                   Preemption (10/12/16 Joinder                                                                     date of termination of First Street’s management
                                                   See “Preemption Responses,” above (Page 21).
                   in First Street’s Preemption                                                                     agreements with its FECs. Denied as to claims
                   Motion). 1SuppCR9:4178-80.                                                                       challenging fees that were not incurred during that
                                                                                                                    period. CR3:1444 (July 8, 2016 Order), 1SuppCR9:4211.




                                                                                    21
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                                                                           Tony Rotondo
(1) Cause of
                   (2) MSJ Ground                   (3) MSJ Response                           (4) Trial Court’s Ruling
Action
                                                                                               Granted as to all claims except United’s money had and
                                                                                               received claims for payments that United made after
                   Traditional                                                                 August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                   Statute of Limitations (7/1/16                                              March 23, 2017, United non-suited its remaining claims
                                                    See “Fraud Responses” from Page 21.
                   Joinder in Crumley’s MSJ).                                                  for money had and received for payments made after
Money Had &
                   CR3:1314-16.                                                                August 28, 2013, and on July 11, 2017, the trial court
Rec’d.,
                                                                                               signed an Order Dismissing Non-Suited claims.
(3rd Amd. Pet.);
                                                                                               2SuppCR:3.
CR3:1363,
                                                                                               Granted as to United’s claims challenging facility fees
¶¶ 73-74.
                   Traditional                                                                 that were incurred between November 10, 2011 and the
                   Preemption (10/12/16 Joinder                                                date of termination of First Street’s management
                                                    See “Preemption Responses” from Page 21.
                   in First Street’s Preemption                                                agreements with its FECs. Denied as to claims
                   Motion). 1SuppCR9:4178-80.                                                  challenging fees that were not incurred during that
                                                                                               period. CR3:1444 (July 8, 2016 Order), 1SuppCR9:4211.
                                                                                               Granted as to all claims except United’s money had and
                                                                                               received claims for payments that United made after
                   Traditional                                                                 August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                   Statute of Limitations (7/1/16                                              March 23, 2017, United non-suited its remaining claims
                                                    See “Fraud Responses” from Page 21.
                   Joinder in Crumley’s MSJ).                                                  for money had and received for payments made after
Unjust
                   CR3:1314-16.                                                                August 28, 2013, and on July 11, 2017, the trial court
Enrichment,
                                                                                               signed an Order Dismissing Non-Suited claims.
(3rd Amd. Pet.);
                                                                                               2SuppCR:3.
CR3:1363,
                                                                                               Granted as to United’s claims challenging facility fees
¶¶ 75-77.
                   Traditional                                                                 that were incurred between November 10, 2011 and the
                   Preemption (10/12/16 Joinder                                                date of termination of First Street’s management
                                                    See “Preemption Responses” from Page 21.
                   in First Street’s Preemption                                                agreements with its FECs. Denied as to claims
                   Motion). 1SuppCR9:4178-80.                                                  challenging fees that were not incurred during that
                                                                                               period. CR3:1444 (July 8, 2016 Order), 1SuppCR9:4211.




                                                                                  22
No. 01-17-00237-CV
United Healthcare Servs., Inc., et al. v.
    First Street Hosp., et al.

                                                                            Tony Rotondo
(1) Cause of
                    (2) MSJ Ground                   (3) MSJ Response                           (4) Trial Court’s Ruling
Action
                                                                                                Granted as to all claims except United’s money had and
                                                                                                received claims for payments that United made after
                    Traditional                                                                 August 28, 2013. CR5:2942 (Oct. 6, 2016 Order). On
                    Statute of Limitations (7/1/16                                              March 23, 2017, United non-suited its remaining claims
                                                     See “Fraud Responses” from Page 21.
                    Joinder in Crumley’s MSJ).                                                  for money had and received for payments made after
Civil Conspiracy,   CR3:1314-16.                                                                August 28, 2013, and on July 11, 2017, the trial court
(3rd Amd. Pet.);                                                                                signed an Order Dismissing Non-Suited claims.
CR3:1363-64,                                                                                    2SuppCR:3.
¶¶ 78-81.                                                                                       Granted as to United’s claims challenging facility fees
                    Traditional                                                                 that were incurred between November 10, 2011 and the
                    Preemption (10/12/16 Joinder                                                date of termination of First Street’s management
                                                     See “Preemption Responses” from Page 21.
                    in First Street’s Preemption                                                agreements with its FECs. Denied as to claims
                    Motion). 1SuppCR9:4178-80.                                                  challenging fees that were not incurred during that
                                                                                                period. CR3:1444 (July 8, 2016 Order), 1SuppCR9:4211.
                                                                                                Granted as to United’s claims challenging facility fees
Aiding &
                    Traditional                                                                 that were incurred between November 10, 2011 and the
Abetting,
                    Preemption (10/12/16 Joinder                                                date of termination of First Street’s management
(3rd Amd. Pet.);                                     See “Preemption Responses” from Page 21.
                    in First Street’s Preemption                                                agreements with its FECs. Denied as to claims
CR3:1364,
                    Motion). 1SuppCR9:4178-80.                                                  challenging fees that were not incurred during that
¶¶ 82-85
                                                                                                period. CR3:1444 (July 8, 2016 Order), 1SuppCR9:4211.
                                                                                                Granted as to United’s claims challenging facility fees
Declaratory
                                                                                                that were incurred between November 10, 2011 and the
Judgment,
                    Traditional                                                                 date of termination of First Street’s management
(3rd Amd. Pet.);                                     See “Preemption Responses” from Page 21.
                    Preemption CR1:818-19.                                                      agreements with its FECs. Denied as to claims
CR3:1369-70,
                                                                                                challenging fees that were not incurred during that
¶¶ 104-05.
                                                                                                period. CR3:1444 (July 8, 2016 Order), 1SuppCR9:4211.




                                                                                   23
