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

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

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

                                   v.

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


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


PETITION FOR PERMISSION TO APPEAL INTERLOCUTORY ORDER


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

             APPELLATE COUNSEL FOR APPELLANTS
                  IDENTITY OF PARTIES AND COUNSEL

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

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

                                      Khyati Undavia

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

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

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

                                        ii
                            service@mjalawyer.com

Co-Defendant:               Compass Bank

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




                              iii
                                        TABLE OF CONTENTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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


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


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




                                                           v
                                      TABLE OF AUTHORITIES

Cases

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

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

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

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

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

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

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

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

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

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

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




                                                           vi
                       NO. _______________________


                 In the ________ District Court of Appeals
                              Houston, Texas


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

                                      v.

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


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


PETITION FOR PERMISSION TO APPEAL INTERLOCUTORY ORDER


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

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

Petition for Permission to Appeal Interlocutory Order issued by the Honorable

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

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


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

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

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

unquestionably materially advances the ultimate termination of the litigation, as

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

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

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

parties.

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




                                          viii
                      STATEMENT OF THE CASE

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

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

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




                                  ix
                              ISSUES PRESENTED

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

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

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

issues of law:

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


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




                                          x
                                   SUMMARY

      Appellees consist of a chiropractor and the various companies through

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

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

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

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

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

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

known or unknown.

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

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

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

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

alleged-conversion.

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

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

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

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

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



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

signatory of the Mutual Release.

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

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

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

issue in the original lawsuit that engendered the Mutual Release.




                                        xii
                           STATEMENT OF FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

106; AR 107; AR 113.



                                        1
A.    The Underlying Lawsuit

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

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

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

(“Mutual Release”):

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

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

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

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

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


B.    The Current Lawsuit

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

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

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


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

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

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

approach to the mail handling. Id.

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

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

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

deposited in Minu’s account. Id.

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

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

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

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

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


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

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

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

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

servant of Providian.



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

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

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

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

Nisal. Id.

             (ii)    Appellee Avant is an agent of Sterling

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

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

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

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

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

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

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

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

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

53).

             (iii)   Sterling is Appellee Avant’s agent

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

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


                                          4
             (iv)     Garner is Avant’s agent

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

         (vii)      Appellant Minu is Providian’s property manager

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

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


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

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

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

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

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

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

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

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

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

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




                                          6
                      SUMMARY OF THE ARGUMENT

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

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

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

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

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

Release signatory.

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

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

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

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

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

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

disagreement.

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

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

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

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

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

claim is barred.

                                         7
      Finally, an immediate appeal will materially advance the ultimate

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

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

and final summary judgment.

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

interlocutory appeal.




                                         8
                       ARGUMENT AND AUTHORITIES

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

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

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

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

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

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

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

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

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

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

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

interlocutory appeal should be granted.




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

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

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

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

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

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

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

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

federal counterpart to section 51.014:

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

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

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

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

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

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

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

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

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

substantial grounds for disagreement.

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

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

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

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

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

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

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

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

     Appellants have thus established that this case involves a “controlling

question of law.”

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


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

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

grounds for disagreement.”

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

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

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

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

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

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

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

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

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

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

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

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

tenant relationship engendered the County Court Lawsuit and Mutual Release.

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

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

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

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

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

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

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

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

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

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

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

being released come within the express contemplation of the release provision

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

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

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

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

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

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

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

consistently rejected the argument that defendants cannot avail themselves of the

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



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

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

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

of his club membership:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the financing:

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

Id. at 18.

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

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

dodgeball game that released:

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

      Applying these rules, the court concluded that:

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

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

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

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

summary judgment. Id.

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

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

rise to the release is unmistakable.


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

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

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

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

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

also be applicable to unnamed plaintiffs.

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

substantial grounds for disagreement.          Appellants’ petition for permissive

interlocutory appeal should be granted.

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

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

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

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

are bound by a release?


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Texas.

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

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

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

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

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

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

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

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

  interlocutory appeal should be granted.

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

       Appellants’ summary judgment sought complete and total dismissal of all

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

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

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

  is subject to immediate termination.

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

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

        Accordingly, Appellants have shown that an immediate appeal will


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

Appellants’ petition for permissive interlocutory appeal.




                                         21
                                  CONCLUSION

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

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

Appellants are entitled to summary judgment.

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

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

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

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

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

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

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

subject to substantial grounds for disagreement.

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

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

Appellees’ claims, then this case is over.

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

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

they may show themselves justly and equitably entitled.




                                         22
Date: April 3, 2015   Respectfully submitted,

                      MAHENDRU, P.C.


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

                            ATTORNEYS FOR
                            DEFENDANTS—APPELLANTS




                       23
                     CERTIFICATE OF COMPLIANCE

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




                                                  Ashish Mahendru




                                       24
                         CERTIFICATE OF SERVICE

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

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

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




                                                     Ashish Mahendru




                                         25
                                  APPENDIX

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

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

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

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

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

     Ex. C:      Mutual Release                                   AR 86-90

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

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

     Ex. F:      Elevator Invoices                                AR 97-101

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

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

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

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

     Ex. K:      Copy of Avant Rent Check                         AR 109

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

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

     Ex. N:      Lease Termination Letter                         AR 114-115

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

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

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

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

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

      Ex. 3:      Cancelled Check                                     AR 148-155

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

      Ex. 5:      Mutual Release                                      AR 161-165

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

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

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

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

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

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

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

10.   Order Granting Defendants' Motion for Summary Judgment

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




                              28
                                       CAUSE NO. 2014-22186

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

                 PLAINTIFFS' SECOND AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

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

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

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

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

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

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

                                I. DISCOVERY CONTROL PLAN

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

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

                                               II. PARTIES

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

ASSOCIATES, is a Texas Professional Association.

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

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

residing and doing business in Texas.


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

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

this lawsuit.

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

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

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

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

been served with process and has appeared in this lawsuit.

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

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

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

requested.

                                III. JURISDICTION AND VENUE

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

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

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

Texas or are doing business in the State of Texas.

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

§ 15.002.

                                               IV. FACTS

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

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

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




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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

cashed by other entities.

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

CONVERSION & THEFT

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

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




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

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

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

TEXAS THEFT LIABILITY ACT

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

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

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

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

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

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

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

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

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

134.005(b).

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

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

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

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

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

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

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

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




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

Liability Act.

FRAUD - COMMON LAW

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

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

MEMORIAL         COMPOUNDING            PHARMACY       knowingly     made    numerous     fraudulent

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

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

fraudulent misrepresentation against Defendant KHY ATI MOHAMED UNDAVIA and MINU

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

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

CONSTRUCTIVE TRUST & EQUITABLE LIEN

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

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

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

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

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

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

MONEY HAD AND RECEIVED

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

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

MEMORIAL COMPOUNDING PHARMACY hold money that in equity and good conscience

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




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

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

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

BREACH OF CONTRACT

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

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

MEMORIAL COMPOUNDING PHARMACY had an oral agreement with Plaintiffs to collect

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

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

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

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

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

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

fees recoverable as a result of Defendants' breach.

BREACH OF FIDUCIARY DUTY

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

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

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

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

MEMORIAL COMPOUNDING PHARMACY committed a material breach her duties by

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

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




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

Defendant's breach.

CONVERSION - STATUTORY

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

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

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

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

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

MEMORIAL COMPOUNDING PHARMACY for all damages recoverable as a result of

Defendants' actions.

                     VI. CAUSES OF ACTION AGAINST MINU GP, LLC

VICARIOUS LIABILITY - PARTNERSHIP

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

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

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

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

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

                   VII. CAUSES OF ACTION AGAINST COMPASS BANK

CONVERSION - STATUTORY

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

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

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

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




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

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

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

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

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

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

and Received.

NEGLIGENCE

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

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

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

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

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

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

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

and Received.

                                     VIII. ATTORNEY'S FEES

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

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

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

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

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

                                           IX. DAMAGES




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

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

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

damages, including:

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

            b. Attorney's fees;

            c. Exemplary damages;

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

            e. Court costs; and

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

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

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

                                 X. CONDITIONS PRECEDENT

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

                                     XI. DEMAND FOR JURY

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

                                               XII. PRAYER

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

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

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

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

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

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




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

Plaintiffs are justly entitled.

                                               Respectfully submitted,




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

                                                     ATTORNEYS FOR PLAINTIFFS




                                   CERTIFICATE OF SERVICE

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




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

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



                DEFENDANTS’ THIRD AMENDED ANSWER AND
              VERIFIED DENIAL AND ORIGINAL COUNTERCLAIMS


TO THE HONORABLE JUDGE ROBERT SCHAFFER:

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

Amended Answer and Verified Denial and Original Counterclaims and would respectfully

show the Court as follows:

                                          I.
                                    GENERAL DENIAL

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

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

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

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

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

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


                                             1
                                                                                     AR 000011
                                           II.
                                    VERIFIED DENIAL

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

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

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

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

                                        III.
                                AFFIRMATIVE DEFENSES

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

following affirmative defenses to Plaintiffs’ claims:

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

                                           IV.
                     DEFENDANTS' ORIGINAL COUNTERCLAIMS

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

an appearance through counsel.

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

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

Medical Centers have made an appearance through counsel.

                       A.        VENUE AND JURISDICTION

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

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

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

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

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

                                 B.     BACKGROUND

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

(“Undavia”), a pharmacist, owns Minu.

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

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

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

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

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

two separate leases.

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

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

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

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

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

Nisal then nonsuited their claims against with prejudice.

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

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

                                           V.
                                         CLAIMS

A.     Declaratory Judgment

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

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

dismissal with prejudice of the County Court lawsuit.

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

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

B.     Breach of Contract

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

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

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

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

                                            VI.
                                      CONCLUSION

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

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

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

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

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

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

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

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

entitled at law or equity.




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

                                         MAHENDRU, P.C.



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

                                               ATTORNEYS FOR DEFENDANTS
                                               AND COUNTER-PLAINTIFFS


                               CERTIFICATE OF SERVICE

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


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




                                               Ashish Mahendru




                                           6
                                                                                  AR 000016
                                  CAUSE NO. 2014-22186

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


               DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT


TO THE HONORABLE JUDGE ROBERT SCHAFFER:

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

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

                                                I.
                                          SUMMARY

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

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

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

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

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

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

prejudice. Res judicata, therefore, bars the claims.


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

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

have no cause of action against Defendants.

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

                                               II.
                                     ISSUES PRESENTED

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

a matter of law:

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

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

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

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

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

                                        III.
                             SUMMARY JUDGMENT EVIDENCE

6.     This motion is based on the following evidence:

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

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

                                              IV.
                                    BACKGROUND FACTS

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

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

Ex. E).

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

(“Undavia”), a pharmacist, owns Minu.

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

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

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

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

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

employees for its needs.

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

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

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

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

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

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

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

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

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

Prejudice; Ex. D).

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

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

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

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

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

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

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

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

deposited into Minu’s account.

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

parties, this Court must grant summary judgment.

                                             V.
                            SUMMARY JUDGMENT STANDARD

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

therefore entitled to summary judgment.

                                            VI.
                            L EGAL STANDARD FOR R ELEASES

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

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

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

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

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




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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                        VII.
                           MOTION FOR SUMMARY JUDGMENT

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

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

this lawsuit as to all Defendants.




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

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

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

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

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

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

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

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

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

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

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

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

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




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

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

the release.

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

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

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

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

13.

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

Mutual Release. His claims are barred.

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

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

bound by the Mutual Release.

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

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

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

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

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

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

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




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

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

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

Avant Medical Group; Ex. J).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

Release.

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

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

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

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

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

individual are barred.

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

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

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

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

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

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

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

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

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

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

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



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

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

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

the Plaintiffs’ own allegations. Plaintiffs allege that:

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

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

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

would not arise in the absence of an agency relationship between Providian and Minu.

Moreover, despite only having a lease with Providian, Minu was so involved in the

management of the Building as alleged by Plaintiffs that Plaintiffs characterize their

agreement as being with Minu and not Providian. In fact, Plaintiffs failed mention

Providian once in their amended petition. Following that logic, Minu is the "landlord" of

Plaintiffs.

32.    Although Providian owned the building, Minu was the management company and

was authorized to act on behalf of Providian for any matters with respect to the Plaintiffs’

tenancy at the building. (See Declaration of Khyati Undavia, ¶4; Ex. E). It is therefore

subject to, and protected by, the Mutual Release.

33.    Plaintiffs’ claims against Minu GP fail for the same reasons specified above.

Further, Plaintiffs’ have alleged vicarious liability on Minu GP because of its relationship

to Minu. Because Minu is not liable for Plaintiffs’ claims, Plaintiffs’ claims against Minu

GP likewise fail.


                                              11
                                                                                     AR 000027
       (ii)   The Mutual Release specifically mentions each claim in this lawsuit

34.    The Mutual Release, aside from specifically mentioning each party in this lawsuit,

also specifically mentions each claim in this lawsuit. These claims are, therefore, barred.

35.    In settling the Original Lawsuit, the parties executed the Mutual Release in which

Nisal and Sterling, as well as their officers, directors, shareholders, successors, agents,

assigns, employees, servants, partners, heirs and attorneys” released Providian, as well as

its officers, directors, shareholders, partners, successors, agents, assigns, heirs,

employees, servants, and attorneys, from “all liabilities, claims, demands, causes of

actions, judgments, liens, liabilities or potential causes of action which Sterling and

Nisal have ever had or could have had, whether now known or unknown, which

have arisen or may arise from the beginning of time to the date of this release[.]”

(See Mutual Release; Ex. C). In this release, the parties no doubt contemplated the

claims in this current lawsuit because they released not only those claims actually alleged

in the original lawsuit, but also all claims “whether known or unknown, which have

arisen or may arise.” Id.

36.    This Mutual Release was signed on October 3, 2013. In this instant lawsuit, all

allegedly-converted checks are dated prior to this time. (See Plaintiffs' Original Petition).

Indeed, releases “[do] not require that the parties anticipate and identify each potential

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

encompass unknown claims and damages[.] Keck, Mahin & Cate v. National Union Fire

Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 698 (Tex. 2000).            The parties’ broad,



                                             12
                                                                                      AR 000028
unqualified release language encompasses the Plaintiffs’ unknown claims against

Defendants as a matter of law. Defendants are entitled to summary judgment.

B.    T HE P ARTIES ARE SO I NTIMATELY C ONNECTED T O T HE M UTUAL R ELEASE
      T HAT T HEY ARE BOUND BY I T .

37.    Even if certain Plaintiffs and Defendants are not specifically mentioned in the

Mutual Release, each party is so intimately connected to the other parties and claims

involved in the Mutual Release that they are bound by the Mutual Release. Indeed,

Texas courts readily extend releases to unnamed, but related, parties.

38.    In Winkler, a health club member signed the following release at the outset of his

club membership:

       Buyer does hereby for his or herself, heirs, executors, legatees,
       administrators, or assigns, waive, release and forever discharge any and all
       claims the Buyer may now or in the future have against the Club for
       injuries suffered by the Buyer while participating in any programs of the
       Club.

Id. at 113. While exercising at the club, the member suffered a fatal heart attack. Id. at

112. His estate and next of kin filed suit against the club as well as several individuals

associated with the club. Id. at 113. All defendants, including the individual defendants,

moved for summary judgment on the basis that the decedent had released his claims

against them. Id. Plaintiffs argued in response that the “[defendants] cannot avail

themselves of the protection of the release because they were not specifically identified

as parties to the release.” Id. The court rejected that argument, holding that “[i]n

releasing ‘the Club’ from any injuries suffered while participating in the center’s

programs, it is clear that Winkler intended to release any claim against all individuals and


                                            13
                                                                                      AR 000029
entities involved in the operation, maintenance, and administration of the center.” Id. at

114.

39.    Likewise, the court in Vera v. North Star Dodge Sales, Inc. interpreted a contract

between a consumer and a corporation that including a release that “release[d] North Star

Dodge from any and all liability regarding the purchase of a 1993 Mazda Protg[.]” 989

S.W.2d 13, 16 (Tex. App.—San Antonio, 1998, no pet.)                Although the release

enumerated only the car dealership with particularity, the court held that the broad release

of “all liability regarding the [vehicle] purchase” barred claims against the sales manager

and the employee who handled the financing:

       In this case, it is clear that the release of “North Star Dodge” from any
       liability associated with the sale of the Mazda, also released the North Star
       Dodge employees associated with that sale. Under the circumstances, the
       connection of Powers and Hall with North Star Dodge and the sale of the
       Mazda is apparent. Therefore, the release encompasses Higinio’s claims
       against North Star Dodge as well as his claims against North Star Dodge
       employees involved in the sale of the Mazda.

Id. at 18.

40.    In Dyrcz v. Longview Enterprise, Ltd., the court reached the same conclusion.

There, the plaintiff signed a release prior to participating in a dodgeball game that

released:

       Grand Central Station Longview, its partners, agents, and employees from
       any responsibility or liability for personal injury . . . [that] may [occur]
       from participating in the Dodge Ball contest.

Dyrcz v. Longview Enter., Ltd., 2:05-CV-476 (TJW), 2006 WL 3289046, at *1 (E.D. Tex.

Nov. 13, 2006), aff'd sub nom. Dyrcz v. Graham Bros. of Longview, LLC, 234 Fed. Appx.

236 (5th Cir. 2007). Plaintiff thereafter sued Longview Enterprises—the employer of the

                                            14
                                                                                       AR 000030
management and staff at Grand Central Station Longview—for injuries sustained in a

dodgeball match. Id. Longview Enterprise moved for summary judgment pursuant to the

release even though it was not mentioned by the release. Id. In evaluating Longview

Enterprise’s argument, the court noted that “[i]n Texas, in order to claim the protection of

a release, the claim being released must come within ‘the express contemplation of the

release provision when viewed in context of the contract.” Id., citing Stinnett, 227 F.3d at

255. Further, the court recognized that “a tortfeasor can claim the protection of a release

as long as he is referred to “with such descriptive particularity that his identity or his

connection with the tortious event is not in doubt,” and therefore, that “a defendant may

still avail himself of the protection of a release even though he has not been specifically

identified as a party to the release.” Id., citing Winkler, 816 S.W.2d at 111.

41.    Applying these rules, the court concluded that:

       [T]he claims against Defendant Longview Enterprises fit within the release
       signed by Plaintiff. There is no dispute that Plaintiff’s claims resulted from
       participating in a dodgeball game at Graham Central Station.
       ....

       Although the release does not specifically name Longview Enterprise, the
       release does cover “partners, agents, and employees” of Graham Central
       Station . . . [t]herefore, by releasing Graham Central Station, it is clear that
       Plaintiff intended to release any claim against all individuals and entities
       involved in the operations and activities of Graham Central Station, which
       would include . . . . Longview Enterprise.

Id. at 2. Accordingly, the court granted the defendant summary judgment. Id.

42.    In Memorial Medical Center, the Texas Supreme Court applied these same

concepts in finding that a physician, in releasing a hospital from “all claims” arising out

of the parties’ employer-employee relationship, also released the physician’s unknown

                                             15
                                                                                          AR 000031
claims for exposure to toxic chemicals. Memorial Medical Center of East Texas, 943

S.W.2d at 434.

43.    All of the foregoing cases lead to only one conclusion in the case at hand--

Plaintiffs Nisal, Avant, Garner, as well as Defendants Minu and Undavia, are bound by

the Mutual Release because of their intimate connection to the underlying subject

matter—the Commercial Leases.

       (i)    The parties were all intimately involved in the Commercial Leases

44.    First, Providian—a company owned by Undavia—leased office space to Nisal

and Sterling. Although not actually parties to the lease, Avant and Garner nevertheless

operated in the office space leased by Nisal and Sterling. In fact, Nisal and Sterling had

no operations in the building. Plaintiff Garner is a principal of Avant and is the president

and director of Nisal and the member-manager and registered agent of Sterling. (See

Officers and Directors of Nisal; Ex. H); (See Officers and Directors of Sterling; Ex. M).

45.    Sterling, in turn, serves as the registered agent of Avant. Sterling, Nisal, and

Avant were inextricably linked and were all representatives and agents of each other with

respect to the lease between Providian, on one hand, and Nisal and Sterling, on the other.

46.    This notion is cemented by Plaintiffs’ own allegations. They allege:

         Plaintiffs are former tenants in a commercial building which is owned
         and/or managed by Defendant Khyati Mohamed Undavia or an entity for
         which Defendant Khyati Mohamed Undavia is a principal, agent,
         representative, or employee (the “Building”).
              ....
         While Plaintiffs were tenants in the Building, all mail was delivered to
         the Building’s main address, where it would be collected by Defendant
         Khyatia Mohamed Undavia and distributed by her to her other tenants.
         ....

                                            16
                                                                                     AR 000032
           Plaintiffs recently discovered during their tenancy at the building,
           Defendant Khyati Mohamed Undavia would frequently take letters
           containing checks, from the mail, endorse the checks with the name and
           bank account information for Minu Rx, LTD. d/b/a Memorial
           Compounding Pharmacy, and deposit them into at least two bank
           accounts of Minu RX, LTD. d/b/a Memorial Compounding Pharmacy.
           ....
           Defendants . . . had an oral agreement with Plaintiffs to collect all mail
           received at the Building and deliver the same to Plaintiffs.
           ....
           Plaintiffs allege that Defendant Khyati Mohamed Undavia acted as an
           agent of Plaintiffs with respect to collecting and delivering mail, and
           therefore owed fiduciary duties to Plaintiff.

(See Plaintiff’s Amended Petition, ¶ 11, 12, 19, 20). Through these statements, Plaintiffs

acknowledge they were all tenants under the leases. If they were all tenants under the

lease, then surely they were parties to the Mutual Release.

       (ii)    The Original Lawsuit—which spawned the Mutual Release—arose out of
               Plaintiffs’ tenancy with Defendants

47.    Aside from being inextricably connected to each other, the parties in this lawsuit

were also all involved in the lawsuit that gave rise to the Mutual Release.

48.    The Original Lawsuit arose out of a dispute concerning the commercial leases

between Providian and Nisal/Sterling. The Plaintiffs’ original petition in that lawsuit

alleged:

       Sterling entered into a lease agreement with [Providian] . . . upon
       termination of the lease and sixty days after Sterling provided a forwarding
       address, [Providian] has refused to refund the security deposit to Sterling.
       [Providian] has acted in bad faith.
       .....
       Nisal entered into a lease agreement with [Providian] . . . upon termination
       of the lease and sixty days after Sterling provided a forwarding address,
       [Providian] has refused to refund the security deposit to Nisal. [Providian]
       has acted in bad faith.


                                             17
                                                                                        AR 000033
(See Original Petition in Original Lawsuit; Ex. L).

49.    In settling the Original Lawsuit, the parties executed a Mutual Release in which

Nisal and Sterling, as well as their officers, directors, shareholders, successors, agents,

assigns, employees, servants, partners, heirs and attorneys” released Providian, as well as

its officers, directors, shareholders, partners, successors, agents, assigns, heirs,

employees, servants, and attorneys, from “all liabilities, claims, demands, causes of

actions, judgments, liens, liabilities or potential causes of action which Sterling and

Nisal have ever had or could have had, whether now known or unknown, which

have arisen or may arise from the beginning of time to the date of this release[.]”

(See Mutual Release; Ex. C).

50.    In other words, this lawsuit involves the same parties, the same subject matter, and

the same claims that were captured in the Mutual Release. The inescapable conclusion is

that each Plaintiff, each Defendant, and each claim in this lawsuit—whether or not

specifically mentioned in the Mutual Release—is so intimately connected to that release

that it is unequivocally encompassed in the Mutual Release.

C.    PLAINTIFFS’ CLAIMS ARE BARRED BY THE DOCTRINE OF RES
      JUDICATA

51.    The Mutual Release is not the only bar to Plaintiffs’ claims in this lawsuit.

Plaintiffs’ claims are also barred by the doctrine of res judicata.

52.    “Res Judicata bars litigation of all issues and defenses which, with the use of

diligence, might have been tried in the prior suit.” Bell v. Morris, 832 S.W.2d 749, 754

(Tex. App.—Houston [14th Dist.] 1992, writ denied). “When there has been a prior


                                              18
                                                                                    AR 000034
judgment in a subsequent suit in which there is identity of the parties, issues, and subject

matter, such judgment is treated as an absolute bar to retrial of claims pertaining to the

same cause of action on the theory that they have merged into the judgment.” Id.

“Summary judgment may be granted upon a proper plea of res judicata.” Id.

53.    “In general, if [a] dismissal is with prejudice, res judicata applies.” Id. at 755.

“Also, if the dismissal is entered by agreement of the parties in pursuance of the

compromise or settlement of a controversy, res judicata applies.” Id.

54.    Here, the doctrine of res judicata bars’ Plaintiffs’ claims. In the Original Lawsuit,

Plaintiffs contended that:

            Sterling entered into a lease agreement with [Providian] . . . upon
            termination of the lease and sixty days after Sterling provided a
            forwarding address, [Providian] has refused to refund the security
            deposit to Sterling. [Providian] has acted in bad faith.
              .....
            Nisal entered into a lease agreement with [Providian] . . . upon
            termination of the lease and sixty days after Sterling provided a
            forwarding address, [Providian] has refused to refund the security
            deposit to Nisal. [Providian] has acted in bad faith.

(See Original Petition in Original Lawsuit; Ex. L). Plaintiffs’ allegations in this lawsuit

are for a claim for breach of contract. (See §5 of the Nisal Commercial Lease; Ex. A)

(“Within 60 days after tenant surrenders the leased premises . . . Landlord will refund the

security deposit[.]”). Included are various torts including breach of duty of good faith and

fair dealing, conversion, theft liability act, and breach of fiduciary duty. These torts are

in play because Plaintiffs’ alleged “bad faith”.




                                             19
                                                                                     AR 000035
55.     The claims in the Original Lawsuit are the exact same claims that Plaintiffs now

assert against Defendants. Further, these current claims and the prior claims all arise out

of the exact same subject matter: the parties’ lease agreements.

56.     Of course, res judicata only bars those claims that a party could have asserted in

the underlying lawsuit “with the use of diligence.” Bell, 832 S.W.2d at 754. Here,

Plaintiffs could have asserted their current claims in the Original Lawsuit had they used

any diligence at all. Defendants allegedly deposited Plaintiffs’ checks as early as August

2011. (See Plaintiffs' Original Petition); (See First Amended Petition). Plaintiffs did not

file the Original Lawsuit until September 5, 2013, meaning that Plaintiffs had over two

years to discover the fact that Defendants had deposited their checks. As a matter of law,

two years is not due diligence.

57.     Accordingly, Plaintiffs claims are barred by the doctrine of res judicata.

Defendants are entitled to summary judgment as a matter of law.

D.    P LAINTIFFS NEVER R ECEIVED DELIVERY O F T HE C HECKS AND T HEREFORE
      H AVE NO ACTION FOR C ONVERSION AGAINST DEFENDANTS

58.     Here, Plaintiffs allege that Defendants took the checks intended for Plaintiffs and

deposited them into Defendants’ own bank accounts. Under the Texas Business and

Commerce Code, Plaintiffs have no claims against Defendants.

59.     “An action for conversion of an instrument may not be brought by . . . a payee or

indorsee who did not receive delivery of the instrument either directly or through delivery

to an agent or a co-payee.” Tex. Bus. & Com. Code § 3.420(b). The policy behind this

rule is that:


                                            20
                                                                                    AR 000036
       Until delivery, the payee does not have any interest in the check. The payee
       never became the holder of the check nor a person entitled to enforce the
       check. Section 3-301. Nor is the payee injured by the fraud. Normally the
       drawer of a check intends to pay an obligation owed to the payee. But if the
       check is never delivered to the payee, the obligation owed to the payee is
       not affected. If the check falls into the hands of a thief who obtains
       payment after forging the signature of the payee as an indorsement, the
       obligation owed to the payee continues to exist after the thief receives
       payment. Since the payee's right to enforce the underlying obligation is
       unaffected by the fraud of the thief, there is no reason to give any additional
       remedy to the payee.

Tex. Bus. & Com. Code Ann. § 3.420, cmt 3.

60.    Here, Plaintiffs contend that Defendants “stole” Plaintiffs’ checks before the

checks were delivered to Plaintiffs’ offices. Thus, Plaintiffs never received “delivery” of

the checks and cannot maintain a conversion action against Defendants.

61.    Further, there is no basis for holding that Defendants were Plaintiffs’ agents. First,

Plaintiffs terminated their tenancy on or about March 31, 2013. (See Original Lawsuit;

Ex. L) (Lease Termination Letter; Ex. N). Any agency relationship between the

Defendants and Plaintiffs, assuming arguendo that one existed, ended on that date. Yet

several of the checks allegedly converted by Defendants are dated well after the end of

Plaintiffs’ tenancy. (See Exhibit 1 to Plaintiffs' Motion to Compel) (four checks totaling

$11,387.15 dated September 25, 2013).

62.    Even during the Plaintiffs’ tenancy, there was no agency relationship between

Plaintiffs and Defendants regarding the mail, and Plaintiffs’ contention that Defendants




                                             21
                                                                                         AR 000037
“orally agreed” to accept Plaintiffs’ mail is untenable. The leases between Plaintiffs and

Defendants contained standard merger and no-oral modification clauses:

       The lease contains the entire agreement between the Landlord and Tenant
       and may not be changed except by written agreement.

(See Nisal Commercial Lease, § 38(A); Ex. A). The alleged “contract” regarding the

mail is not mentioned by the lease agreements. In fact, there is no mention of mail

anywhere. Accordingly, Plaintiffs’ reliance on the alleged oral agreement violates either

the parol-evidence rule or the no-oral modification clause. See Robbins v. Warren, 782

S.W.2d 509, 511 (Tex. App.—Houston [1st Dist.] 1989, no writ) (in a contract required

by law to be written, a no-oral modification clause is valid and enforceable); see Tex.

Bus. & Com. Code §26.01(b)(5) (providing that a lease of real estate for more than one

year must be in writing to be enforceable); (See Nisal Commercial Lease; Ex. A)

(providing for a three-year lease).

E.    P LAINTIFFS’ C LAIMS ARE BARRED I N P ART BY T HE STATUTE O F L IMITATIONS.

63.    Plaintiffs’ claims are also barred in part by the applicable statute of limitations

period.

64.    Conversion is subject to a two-year statute of limitations. Tex. Civ. Prac. & Rem.

Code §16.003. Unjust enrichment and money had and received claims are also subject to

a two-year limitations period. Elledge v. Friberg-Cooper Water Sup., 240 S.W.3d 869,

870 (Tex. 2007).

65.    Here, Plaintiffs seek recovery for checks that Defendants allegedly took as early as

2011. Yet Plaintiffs did not file suit until April 22, 2014, and they allege no basis


                                            22
                                                                                    AR 000038
sufficient to toll the statute of limitations.      Accordingly, based on the allegations

Plaintiffs have asserted, their claims pre-date April 22, 2012; therefore, claims for

conversion, unjust enrichment, and money had and received are barred as a matter of law.

F.        DEFENDANTS/C OUNTER -P LAINTIFFS ARE E NTITLED T O T HEIR ATTORNEY’S
          F EES

66.       Pursuant to Tex. Civ. Prac. Rem. Code §37.009 and §38.001, Counter-Plaintiffs

are entitled to their reasonable attorney’s fees in prosecuting their affirmative claims. To

date, Counter-Plaintiffs have incurred $11,257.50 in reasonable and necessary attorney's

fees. (See Declaration of Ashish Mahendru, ¶13; Ex. O).

                                            VIII.
                                       CONCLUSION

67.       Plaintiffs entered into a Mutual Release in which they released any known or

unknown claims that they had against all Defendants. By operation of law and by

application of the Mutual Release, Plaintiffs’ claims are barred as to all Defendants.

Additionally, Plaintiffs’ claims are barred by res judicata because Plaintiffs nonsuited

their prior lease claims against Defendants with prejudice. Because Plaintiffs never

received delivery of the checks, they have no claim for conversion. Plaintiffs’ claims are

also barred in part by the applicable limitations periods.

68.            Defendants respectfully request that this Court grant them summary

judgment, dismiss Plaintiffs’ claims with prejudice, grant them their reasonable

attorney’s fees, and grant Defendants all further relief to which they are entitled at law or

equity.



                                             23
                                                                                      AR 000039
Date: January 30, 2015                   Respectfully submitted,

                                         MAHENDRU, P.C.


                                         By:
                                                Ashish Mahendru
                                                Texas Bar No. 00796980
                                                Darren A. Braun
                                                Texas Bar No. 24082267
                                                639 Heights Boulevard
                                                Houston, Texas 77007
                                                (713) 571-1519 (Telephone)
                                                (713) 651-0776 (Facsimile)
                                                amahendru@thelitigationgroup.com
                                                dbraun@thelitigationgroup.com

                                                ATTORNEYS FOR PLAINTIFFS




                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing instrument has been
provided to all counsel of record in accordance with the applicable Texas Rules of Civil
Procedure on this 30th day of January 2015.

Matias J. Adrogué
Robert Stephan Kaase
1629 West Alabama St.
Houston, Texas 77006




                                                Ashish Mahendru


                                           24
                                                                                  AR 000040
                                           TEXAS ASSOCIATION OF REALTORS'
                                                                REALTORS
                                                                         ~~
                                                 COMMERCIAL LEASE
                     USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS Of     OF THE TEXAS ASSOCIATION
                                                                                         ASSOCI.o.TlONOFOF REALTORS® IS NOT AUTHORIZED
                                                                                                           REALTQRS®IS      AUTHORIZED..
                                                      «exu      ASsOCiation
                                                      .;rr.~ .. A. .""llIIlon of REALTORS®. Inc.
                                                                              ofREALTOR$e>,       2006
                                                                                            (Qt;. 20GEI


                                                               Table of Contents

No.
M2:   Paragraph Description                                        Pg.
                                                                   f9:.             H2:.
                                                                                    No. Paragraph Description                                      E9:.
                                                                                                                                                   E!b
1.    Parties                                                      2                22. Holdover                                                   10
2.    Leased Premises                                              2                                    & Security Interest
                                                                                    23. Landlord's Lien &                                          10
3.    Term                                                         2                24. Assignment and Subletting                                  10
      A. Term                                                                       25. Relocation                                                 11
      B. Delay of Occupancy                                                         26. Subordination                                              11
4.    Rent and Expenses                                            3                27. Estoppel Certificates                                      11
      A. Base Monthly Rent                                                          28. Casualty Loss                                              11
      B. First Full Month's Rent                                                    29. Condemnation                                               12
      C. Prorated Rent                                                              30. Attorney's Fees                                            12
      D.
      O. Additional Rent                                                            31. Representations                                            12
      E. Place of Payment.                                                          32. Brokers                                                    12
      F. Method of Payment                                                          33. Addenda                                                    13
      G. Late Charges                                                               34. Notices                                                    13
      H. Returned Checks                                                            35. Special Provisions                                         13
5.    Security Deposit                                             4                36. Agreement of the Parties                                   14
6.    Taxes                                                        4
7.    Utilities                                                    4
8.    Insurance                                                    5                       ADDENDA &          {check all that a~el~l
                                                                                                   & EXHIBITS (check          aQQ1:t}
9.    Use and Hours                                                5
10.   Legal Compliance                                             6                on
                                                                                    l1li   Exhibit AA
11.   Signs                                                        6                0      Exhibit
12.   Access By Landlord                                           7                0      Commercial Lease Addendum for Broker's Fee
13.   Move-In Condition                                            7                0      Commercial Lease Expense Reimbursement
14.   Move-Out Condition                                           7                         Addendum
15.   Maintenance and Repairs                                      7                I»
                                                                                    l1li   Commercial Lease Addendum for Extension
      A. Cleaning                                                                            Option
      B. Conditions Caused by a Party                                               0      Commercial Lease Addendum for Percentage
      c. Repair && Maintenance Responsibility
      C.                                                                                     Rent
      D. Repair Persons                                                             ~
                                                                                    OJ     Commercial Lease Parking Addendum
      E. HVAC Service Contract                                                      0lI
                                                                                    l1li   Commercial Landlord's Rules and Regulations
      F. Common Areas                                                               l1li
                                                                                    0lI                     Guar~nty
                                                                                           Commercial Lease Guaranty
      G. Notice of Repairs                                                          l1li
                                                                                    0lI    Commercial Lease Right of First Refusal to Lease
      H. Failure to Repair                                                                   Addendum
16.   Alterations                                                  9                0      Commercial Lease Addendum for Optional
17.   Liens                                                        9                         Space
18.   Liability
      Uability                                                     9                I»
                                                                                    IliI   Commercial Leasehold Construction Addendum
19.   Indemnity                                                    9               ~       Acceptance Eor:m
                                                                                                       Eorm
20.   Default                                                      9               ii
                                                                                   ~       Rjgbt
                                                                                           IU gbt of Eh:st
                                                                                                      Ehst Befllsa]
                                                                                                            Refusal to EIlJ.:cbase
                                                                                                                            Em::cbase
21.   Abandonment,
      Abandonment. Interruption of Utilities,
      Removal of Property & & Lockout                               10



(TAR-2101) 5-26-06                                            Tenant:~
                            Initialed for Identification by Tenant:&_.
                                                                     _ _,• aod Laod'O<dM
                                                                      __       Laodlom(@
                                                                                                              '-""
                                                                                                                                           Page 1 of 14




                                                                                                                                           AR 000041
                                                                    EXHIBIT A
                                                                          ~~
                       use
                       USE OF THIS fORU
                           CFlHS
                                                 ASSOCIATION OF REALTORS"'
                                           TEXAS AsSOCIATION

                                   RlRII BY PERSONSWHOARE
                                            PERSalSWHOARE NOT
                                                                REALTORS"
                                                        COMMERCIAL LEASE
                                                                 IIaII!ERS
                                                                 UEIII!ERS
                                                           I'CJT '
                                                       ...._
                                                          fi_'ta,c    7
                                                                          •
                                                                       r • OFntETEXASASSOCIAllCW
                                                                          •
                                                                           CF TlETEXllSASSOCIATJa\I OF
                                                                            .. __        __ _
                                                                                _lIaIU~IDc._
                                                                                     ~
                                                                                                       REALT~ IS NOT AlITHORIZED.
                                                                                                    CF REALTORSIIIS  A1.ITHORIZED_




1. PARTIES: The parties\olhis
                parties to this lease are:
                           N~sa.l
                           N~"iil     Corporation
          Tenant:
                         __________________________________________________________
                         ___________________________________________________--",and                                                           ~;and




          Landkxd:
          LandkKd:         Providian Holdings, Inc.


2. LEASED PREMISES:

    A Landlonlleases
    A LandkKd                                    _
                  leases to Tenant the following described                ~n as the -leased
                                                           real property, known             premises: along
                                                                                    "leased premises,"
      willi al its
      with     i!s improvements (Check only one box):

    ag    (1) Multiple-Tenant  Property: Suite or Un~
              MuIi!>l&:Tenant Properly:           Unil Number 200       containing approximately 44 7 nn
                                                                                                     700
              square feet of rentable area in MemorJ.al    Compounding Pharmacy Building (prOject
                                              Memorial Compoundlng                              (project name)
              m
              at 2918 San Jacinto Street street
              (address) in Houston
              (address]                   77004                (city),    Harris                      (county),
              Texas, which is legally
              Texas.           IegaIy described on attached Exhibit A A                           or as follows:
               The premises are being leased "AS IS". Tenant has insl?ected     inspected the premjses and
               accepts the premises "AS IS".


    a(]   (2) Single-Tenant
              S!!gle-Tenant Properly:       Prope!Iy: The real property at: _ _ _ _ _ _ _ _ _ _ _ _--:-___--:-:-
              _____________________________________________________                                                                  ~(~)in

                                                                                                                                             (adcress) in
                                                                                                   (city),, _ _ _ _  _  _   _  _  (county),
                                                                                                   (city1,----------------:-c-::(county), Texas, which
                                                                                                                                            Texas, which
              -is-:IegaDy---descri----:"bed--on-attached~-:---:-:Exh~"::'ibit-:':'-=--=-____________
              ~is-;Iega8y:---=--;descri:--~·c.-bed-;--on-a\lached;:--:-:--.-:=Exh""""'ibiI'"'·;-_-
                                                                                                 _ _ _ _ _ _ _ _ _ _ _ or as follows: _     ________
                                                                                                                                              _ _ ___




    B. If Paragraph 2A(1) applies:
           ~ means the building or complex in which the leased premises are located, incIusiw
       (1) "Property"                                                                          inclusive of any
           common areas, drives, parking areas, and walks; and
                             thai the
       (2) the parties agree that \he rentable area of the leased premises may not equal the actual or useable
                                                                          at common areas in the Property.
           area within the leased premises and may include an allocation of                       Property,

3. TERM:

    A     Term: The term of this lease is __   3_6_ _ _ months and _-,,0,-_
                                          _::.3,,6                    0     days. commencing on:
                                                                            days,

          March 1, 2009                                                       (Commencement
                                                                              (Commeocement Date) and ending on

          Februarv ?q. 201?
                   2Q, 2011                                                               Date).
                                                                              (Expiration Date),



(TAR-21 01) 5-26-06
(TAR-2101)                   Initialed for Identification by T   enant:~- - ' and Lan~v.                                                Page2of14
                                                                                                                                        Page2af14




                                                                                                                                       AR 000042
Commercial Lease conceming:,_ _
Commercialleaseconceming:     ____
                                 ____
                                    ____
                                       ____
                                          ____
                                             ___________
                                                       ____
                                                          ____
                                                             ____
                                                                ____
                                                                   ____ _ _ _
                                                                            ___



    8.
    B. Delay of Occupancy: If Tenant is unable to occupy the leased premises on the Commencement Date
       because of construction on the leased premises to be completed by Landlord that is not substantially
       complete or a prior tenant's holding over of the leased premises, landlord
                                                                           Landlord will not be liable to Tenant
       for such delay and this lease will remain enforceable. In the event of such a delay, the Commencement
       Date will automatically be extended to the date Tenant is able to occupy the Property and the
       Expiration Date will also be extended by a like number of days, so that the length of this lease remains
                                                                                               1h
       unchanged. If Tenant is unable to occupy the leased premises after the 90th day after the
       Commencement Date because of construction on the teased   leased premises to be completed by Landlord
       that is not substantially complete or a prior tenant's holding over of the leased premises, Tenant may
       terminate this lease by giving written notice to Landlord before the leased
                                                                             leased. premises become available
       to be occupied by Tenant and Landlord will refund to Tenant any amounts paid to Landlord by Tenant.
       This Paragraph 3B does not apply to any delay in occupancy caused by cleaning or repairs.

    C. Unless the parties agree otherwise, Tenant is responsible for obtaining a certificate of occupancy for
       the leased premises if required by a governmental body.

4. RENT AND EXPENSES:

    A. Base Monthly Rent: On or before the first day of each month during this lease, Tenant will pay
                                               aB:stI:IiI':.t!l.EI~&&&&&&&&&&&&&&&&8Jif;as follOWS:
       Landlord base monthly rent as described .B:atllilr::D8g~zzzzzzzzzzzZzzzzt:lgas      follows:

             from          I, 2009
                     March 1,                      to          31 t 2009
                                                        August 31,                     $ 0.00
             from    SeEtember I, 2009             to   Februar2 28, 2010
                                                        February                       $ 3,600 .0'OLmonth
                                                                                                .OO/month
             from    March I, 2010                 to   February 28, 2011              $ '3,90'0. OOLmonth
                                                                                         3 ,900. OO/month    ,,
             from          "
                     March I, 2011
                              2'011                to   February 29, 2012             $$~4 ,200.
                                                                                           ,200.00Lmonth
                                                                                                  aD/month
             from          "                       to                                 $
    B. First Full Month's Rent: The first full base monthly rent is due on or before September 1. 2'0'09
                                                                                               J. 2009


    C. Prorated Rent
                  Rent: If the Commencement Date is on a day other than the first day of a month, Tenant will
       pay Landlord as prorated rent, an amount equal to the base monthly rent multiplied by the following
       fraction: the number of days from the Commencement Date to the first day of the following month
       divided by the number of days in the month in which this lease commences. The prorated rent is due
       on or before the Commencement Date.

    D. Additional Rent: In addition to the base monthly rent and prorated rent, Tenant will pay Landlord all
                                                                                                         aU
       other amounts, as provided by the attached (Check all
                                                         a/l that apply.):
        oa(1) Commercial Expense Reimbursement Addendum N/A
       Cl (2) Commercial Percentage Rent Addendum N/A
       (J
       (J (3) Commercial Parking Addendum N/A

        o (4)~N~!A~~~~~~~~~~~~~~~~==~~~~~~~~~~~~~
        (J(4)~N~/A=___~--~~~--~~--~~--~~--~--~--~--------------
        All amounts payable under the applicable addenda are deemed to be "rent" for the purposes of this
        lease.

    E. Place of Payment: Tenant will remit all amounts due Landlord under this lease to the following person
       at the place stated or to such other person or place as Landlord may later designate in writing:

                Name: Providian Holdings, Inc.
                Address: 2918 San Jacinto Street,
                                          Street. Suite 100
                         Houston,
                         Houston. Texas 77004 .

    F. Method of Payment: Tenant must pay all rent timely without demand, deduction, or offset, except as
       permitted by law or this lease. If Tenant fails to timely pay any amO~due
                                                                         amo~due. under this lease or if any
                            returned to Landlord bY~~7'jnstitutjOn
       check of Tenant is retumed                   bY~~7Anstitution on w Ich
                                                                            Ich, i was drawn, Landlord after
(TAR-2101) 5-26-06                                     Tenant~, ___, and landlord:
                       Initialed for Identification by Tenantrz-r'       Landlord:   ..' __
                                                                                         _' _
                                                                                            _          Page 3 of 14




                                                                                                       AR 000043
 Commercial Lease conceming: _ _ _
                                 ____
                                    ____
                                       ____
                                          ____
                                             _ _
                                               _ ______
                                                      ____
                                                         ____
                                                            ____
                                                               ____
                                                                  __ __
                                                                      ____
                                                                         ____
                                                                            ___

          providing written notice to Tenant may require Tenant to pay subsequent amounts that become due
          under this lease in certified funds. This paragraph does not limit Landlord from seeking other remedies
          under this lease for Tenant's failure to make timely payments with good funds.

     G. Late Charges: If Landlord does not actually receive a rent payment at the designated place of payment
        within 5 days after the date it is due.
                                           due, Tenant will pay Landlord a late charge equal to 5% of the amount
        due. In this paragraph.
                     paragraph, the mailbox is not the agent for receipt for Landlord. The late charge is a cost
        associated with the collection of rent and Landlord's acceptance of a late charge does not waive
        Landlord's right to exercise remedies under Paragraph 20.

                                          $25. Be (not to exceed $25) for each check Tenant tenders to
     H. Returned Checks: Tenant will pay $25098
        Landlord which is returned by the institution on which it is drawn for any reason, plus any late charges
        until Landlord receives payment.

 5. SECURITY DEPOSIT:
     A. Upon execution of this lease,
                               lease. Tenant will pay $_3
                                                      $_3_,...
                                                         ___    0...
                                                             6"..0
                                                           .6_     0_._0_0
                                                                 _0_
                                                                 0
                                                                          _ _ _ _ _ _ _ to Landlord as a security
                                                                      _0_0________
        deposit.

     B. Landlord may apply the security deposit to any amounts owed by Tenant under this lease. If Landlord
        applies any part of the security deposit during any time this lease is in effect to amounts owed by
        Tenant, Tenant must, within 10 days after receipt of notice from Landlord, restore the security deposit
        to the amount stated.

     C. Within 60 days after Tenant surrenders the leased premises and provides Landlord written notice of
        Tenant's forwarding address, Landlord will refund the security deposit less any amounts applied toward
        amounts owed by Tenant or other charges authorized by this lease.
                                                                      lease.
                                                                                 .personal
                                                                                       nal
6. TAXES: Unless otherwise agreed by the parties, Landlord will pay air,PnfUio
                                                                         t@tJf property ad valorem taxes
   assessed against the leased premises.

7. UTILITIES:

     A. The party designated below will pay for the following utility charges to the leased premises and any
        connection charges for the utilities. (Check aI/
                                                     all that apply.)
                                                                   N/A     Landlord       Tenant
         (1) Water                                                  0          ~
                                                                               i9           0
         (2) Sewer                                                  0          Qg
                                                                               i9           0
         (3) Electric                                               0          ~
                                                                               Ill!         0
         (4) Gas                                                    0          ~
                                                                               IllI         0
         (5) Telephone                                              0          0            QII
                                                                                            III
         (6) Trash, Cleaning                                        0         0             QlI
                                                                                            IllI
         (7) Cable                                                  0         0             il
                                                                                            IllI
         (8)                                                        0         0             0
             AU other utilities
         (9) All                                                    0         0             W
                                                                                            III

    B. The party responsible for the charges under Paragraph 7        A will pay the charges directly to the utility
                                                                     7A
       service
       selVice provider. The responsible party may select the utility service provider, except that if Tenant
       selects the provider, any access or alterations to the Property or leased premises necessary for the
       utilities may be made only with Landlord's prior consent, which Landlord will not unreasonably withhold.
       If Landlord incurs any liability for utility or connection charges for which Tenant is responsible to pay
       and Landlord pays such amount, Tenant will immediately upon written notice from Landlord reimburse
       Landlord such amount.

ITAR-21 01) 5-26-<J6
(TAR·2101)  5·26·06     'n;«.'ed
                        lolHaled for identffication
                                     IdeotificaHoo by T""ant1-_·_ , and
                                                      Teoaot:1_        landkm!~__
                                                                    aod LaOdIOrdQ__                         4 of 14
                                                                                                       Page 4




                                                                                                      AR 000044
Commercial Lease
           lease concerning",
                 concerning::_ _
                               ____
                                  ____
                                     ____
                                        _ _
                                          _ ______
                                                 ____
                                                    ____
                                                       __ _ _
                                                            ____
                                                               ____
                                                                  ____
                                                                     _ _____-_-_-_-

    C. Notice: Tenant should determine if all necessary utilities are available to the leased premises
       and are adequate for Tenant's intended use.
                                    ~HVAC services"
    D. After-Hours HVAC Charges: "HVAC      servicesn mean heating.
                                                           heating, ventilating,
                                                                    ventilating. and air conditioning of the
       leased premises. (Check one box only.)
    ~
    (81   (1) Landlord is obligated to provide the HVAC services to the leased premises only during the
              Property's operating hours specified under Paragraph 9C.

    I.XI (2) Landlord will provide the HVAC services to the leased premises during the operating hours
    UlI
             specified under Paragraph 9C for no additional charge and will, at Tenant's request, provide HVAC
             services to the leased premises during other hours for an additional charge of $ 2 O. 00
                                                                                              20.           per
             hour. Tenant will pay Landlord the charges under this paragraph immediately upon receipt of
             Landlord's invoice. Hourly charges are charged on a half-hour basis. Any partial hour will be
             rounded up to the next half hour. Tenant will comply with Landlord's procedures to make a request
             to provide the additional HVAC services under this paragraph.

    o     (3) Tenant will pay for the HVAC services under this lease.

8. INSURANCE:

    A. During all times this lease is in effect, Tenant must, at Tenant's expense, maintain in full force and
       effect from an insurer authorized to operate in Texas:                           000 ,f 000 •_00
                                                                                   $2 ,fOOD
       (1) public liability insurance in an amount not less than $1,000,000.00
                                                                   $1,000,000.00.on
                                                                                  iSn an occurrence basis naming
           Landlord as an additional insured; and
       (2) personal propertY damage ins~or
                                         insi:ii'anCe1or Tenant's business operations and contents on the leased
           premises in an amount sufficient to replace such contents after a casualty loss.

    B. Before the Commencement Date, Tenant must provide Landlord with a copy of insurance certificates
       evidencing the required coverage. If the insurance coverage is renewed or changes in any manner or
       degree at any time this lease is in effect, Tenant must, not later than 10 days after the renewal or
       change, provide Landlord a copy of an insurance certificate evidencing the renewal or change.
    C. If Tenant fails to maintain the required insurance in full force and effect at all times this lease is in
       effect, Landlord may:
       (1) purchase insurance that will
                                     witl provide Landlord the same coverage as the required insurance and
           Tenant must immediately reimburse Landlord for such expense; or
       (2) exercise Landlord's remedies under Paragraph 20.

    D. Unless the parties agree otherwise, Landlord will maintain in full force and effect insurance for: (1) fire
       and extended coverage in an amount to cover the reasonable replacement cost of the improvements of
       the Property; and (2) any public liability insurance in an amount that Landlord determines reasonable
       and appropriate.

    E. If there is an increase in Landlord's insurance premiums for the leased premises or Property or its
       contents that is caused by Tenant, Tenant's use of the leased premises, or any improvements made by
       or for Tenant, Tenant will, for each year this lease is in effect, pay Landlord the increase immediately
       after Landlord notifies Tenant of the increase. Any charge to Tenant under this Paragraph 8E will be
       equal to the actual amount of the increase in Landlord's insurance premium.

9. USE AND HOURS:

                                                                           other; general office use
    A. Tenant may use the leased premises for the following purpose and no other:




(TAR-2101)
(TAR-21 01) 5-26-06      initiaied for Identification
                         Initialed     identification by Tenant:   •. -
                                                                      __       landlord:.~~.y._ _
                                                                        ', and Landlord:.p'-"'-;"'.   Page 5 of 14




                                                                                                      AR 000045
           lease concerning::
Commercial Lease concerning:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

    B. Unless otherwise specified in this lease, Tenant will operate and conduct its business i~  [~ the leased
       premises during business hours that are typical of the industry in which Tenant represents It operates.

    C. The Property maintains operating hours of (specify hours, days of ~eek, and if incll!sive or exclusive of
       weekends and holidays): 8:             OOpm, Monday thru Fr~day exclus~ve
                                   30am - 77::OOpm,
                                8 ;30am                                         excluslve of
                                                                            Thanksgjvin~
         holidays which includes Memorial Day. Independence Day. Labor Day. Thanks9]vjn~
                                           Da¥. Also Saturday 8:30am-2:00pm
         Day. Christmas Day and New Year's Da¥                 8:30am 2:00pm except hol+days.

10. LEGAL COMPLIANCE:

    A. Tenant may not use or permit any part of the leased premises or the Property to be used for:
       (1) any activity which is a nuisance or is offensive, noisy, or dangerous;
       (2) any activity that interferes with any other tenant's normal business operations or Landlord's
           management of the Property;
       (3) any activity that violates any applicable law, regulation, zoning ordinance, restrictive covenant,
           governmental order, owners' association rules, tenants' association rules, Landlord's rules or
           regulations, or this lease;
                                tease;
       (4) any hazardous activity that would require any insurance premium on the Property or leased
           premises to increase or that would void any such insurance;
       (5) any activity that violates any applicable federal, state, or local law, including but not limited to those
           laws related to air quality, water quality, hazardous materials, wastewater, waste disposal, air
           emissions, or other environmental matters;
       (6) the permanent or temporary storage of any hazardous material; or
       (7) _________________________________________________________

        (7)===================
       ~Hazardous material" means any pollutant, toxic substance, hazardous waste, hazardous material,
    B. "Hazardous
       hazardous substance, solvent, or oil as defined by any federal, state, or local environmental law,
       regulation, ordinance, or rule existing as of the date of this lease or later enacted.

    C. Landlord does not represent or warrant that the leased premises or Property conform to applicable
       restrictions, zoning ordinances, setback lines, parking requirements, impervious ground cover ratio
       requirements, and other matters that may retate
                                                  relate to Tenant's intended use. Tenant must satisfy itself
       that the leased premises may be used as Tenant intends by independently investigating all matters
       related to the use of the leased premises or Property. Tenant agrees that it is not relving
                                                                                            relying on any
       warranty or representation made by Landlord, Landlord's agent.
                                                                 agent or any broker concerning the use of
       the leased premises or Property.

11. SIGNS:

    A. Tenant may not post or paint any signs at, on, or about the leased premises or Property without
       Landlord's written consent. Landlord may remove any unauthorized sign, and Tenant will promptly
       reimburse Landlord for its cost to remove any unauthorized sign.

    B. Any authorized sign must comply with all laws, restrictions, zoning ordinances, and any governmental
       order relating to signs on the leased premises or Property. Landlord may temporarily remove any
       authorized sign to complete repairs or alterations to the leased premises or the Property.

    C. By providing
          prOViding written notice to Tenant before this lease ends, Landlord may require Tenant, upon move-
       out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all
       signs that were placed on the Property or leased premises by or at the request of Tenant. Any signs
       that Landlord does not require Tenant to remove and that are fixtures, become the property of the
                                             Landlord at the time this lease ~,
       Landlord and must be surrendered to landlord                          ~.'1

(TAR-2101) 5-26-06                                  bYTenant:~
                        Initialed for Identification by                 LandIOrd(~::~jl_l_
                                                      Tenant:~_ _•, and LandIOrd~/__                    Page 6 of 14
                                                                              (S/
                                                                              C::::/

                                                                                                       AR 000046
CommeroDl~~                ___________________________________________________________
~I~~---------------------------------------------------------
              lANDLORD:
12. ACCESS BY LANDLORD:

    A
    A. During Tenant's normal business hours Landlord may enter the leased premises for any reasonable
       purpose,
       purpose. including but not limited to purposes for repairs, maintenance, aHerations,
                                                                                  alterations. and showing the
       leased premises to prospective tenants or purchasers. Umdlord
                                                               Landlord may access the leased premises
                                                                                                 premiseS after
       Tenant's nonnaI
                normal business hours if: (1) entry is made with Tenant's permission; or (2) entry is necessary
       to comptete                         landlord wit
          complete emergency repairs. Landlord       wil not unreasonably
                                                             unreasonabty intelfere
                                                                            interfere with Tenant's business
       operations when accessing the leased
                                       teased premises.

    B. During the last 90          days of this tease,
                                                lease, Umdlord
                                                       Landlord may place a "For
                                                                            -For Lease" or similar1y
                                                                                           similarly worded sign in
       the leased premises.

13. MOVE-W
    MOVE-IN CONDIllON:
               CONDITION: Tenant has inspected the leased premises and accepts it         ~ in ~s
                                                                                               its present (as-is)
    condition unless expressly noted otherwise in this tease.
                                                         lease. Landlord
                                                                landlord and any agent have made no express
                                                 pennitled use of the leased premises or Property.
    or implied warranties as to the condition or permitted

14. MOVE-OUT CONDITION AND FORFEITURE OF TENANT'S
                                         TENANTS PERSONAL PROPERTY:

    A  M the time this lease
    A. At                 tease ends, Tenant wi.
                                              win surrender the leased premises in the same conditiOn
                                                                                              condition as when
       received, except for normal wear and tear. Tenant wiD leave the leased premises in a clean condition
       received.
       free of all trash,
                   trash. debris,
                          debris. personal property,
                                           property. hazardous materials, and environmental contaminants.

    B. If
    B                        pen;onal property in the leased premises _
       ~ Tenant leaves any per.;onal                                         r Tenant surrenders possession
                                                                          after                    possessiOn of
       the leased premises, landlord may: (1) require Tenant, at Tenant's expense, 10   to remove the per.;onal
                                                                                                         personal
       property by providing written notice to Tenant; or (2) retain such
                                                                     suCh personal property as foJfeJted
                                                                                               forfeited property
       to Landlord.

    C. ·Surrender" means vacating the              leased premises and returning all keys and access deyjces
                                                                                                          devices to
       Landlord.  -Normal wear and tea"
       landlord. "Normal           tear"           means deterioration that occurs wMJout
                                                                                   without negligence, carelessness.
                                                                                                       carefessness,
       accident, or abuse.

    D. By providing wlitten                                            Landlord may require Tenant,
                      written notice to Tenant before this lease ends, landlord             Tenant. upon move-
                                          remove, without damage to the Property or leased premises, any or aU
       out and at Tenant's expense, to remove.
                 that were placed on the Properly or leased premises by or at the requesl
       fixtures thai                                                                   request of Tenant. Any
                     landlord does not require Tenant to remove become the property of the landlord and must
       fixtures that Landlord
       be surrendered to Landlord at the time this lease ends.

15. MAINTENANCE AND REPAIRS:

    A
    A. Cteaning:
        Cleaning: Tenant must keep the leased premises ctean                                promptly dispose of all
                                                                 clean and sanitary and prompUy
       garbage in appropriale    receptacles. 0
                    appropriate receplacJes.     Q landlonl     ~ Tenant will provide, at its
                                                    landlord I\J(                             ~ expense, jan~ofial
                                                                                                           janitorial
       services to the leased premises that are customary and ordinary for the property type. Tenant Will        will
       maintain any grease trap on the Property
       mairtain                             Properly which Tenant uses, including but not limited to periodtc
                                                                                                            periodic
                                                                             grea~ hap
       emptying and cleaning, as well as making any modification to the grease      trap thai
                                                                                          that may be necessary to
       comptywith                   taw.
       comply with any appficable law.      Tenant shall clean the premises premJ.ses and the restrooms on
       the second floor at its expense.
    S. Repairs of Conditions Caused by a Party: Each party must promptly repair a condition in need of repair
    B.
       that is caused, e-.-
       thai                   intentionally or negligently, by thai
                       either inleniionally                    that party or thai
                                                                             that party's guests, patrons, invitees,
       contractors or permitted subtenants.

    C. Repair and Maintenance Responsibility: Except as otherwise provided by this Paragraph 15, the party
                     below, at its expense, is responsible to maintain and repair the following specified items in
       designated below.


                                                                                  n
       the leased premises (if any). The specified items must be maintained in dean    clean and good operable
                  If a governmental regulation or order requires a modification to any of the specified items, the
       condition. if
       party designated to maintain the ~em               {"'j"
                                            item must complete and pay the               of the modification. The

(TAR-2101)5-26-00
(TAR-2101) 5-26-06      ........... _byTenant-o/~
                                          Tenant~ _1.an<Iont~_oo
                                                    Landotd:~___
                        Inftialed for Identification by        _ _ _ , and                              Page 77 of
                                                                                                                of 14




                                                                                                       AR 000047
Commercial Lease
           lease conceming::  __
                 concerning:' _ __
                                 ____
                                    ____
                                       ____
                                          ____
                                             _____________
                                                         ____
                                                            ____
                                                               ____
                                                                  ____ _ _
                                                                         ____
                                                                            _____

         specified items include and relate only to real property in the leased premises. Tenant is responsible for
         the repair and maintenance of its personal property. (Check all that apply.)
                                                                                                         N/A    Landlord         Tenant
         (1)                         walls, roof, and other structural components
               Foundation, exterior walls.                                               0                         to
                                                                                                                   III              o
         (2) Glass and windows                                                           o                         tl
                                                                                                                   D                o
         (3) Fire protection equipment and fire sprinkler systems                        ill                       o                o
                                                                                                                                    Cl
         (4) Exterior & overhead doors.doors, including closure devices.
                                                                   devices, molding.
                                                                              molding,   III                       o
                                                                                                                   Cl               oCl
               locks, and hardware
         (5) Grounds maintenance, including landscaping and irrigation                   o
                                                                                         Cl                        19               oCl
               systems
         (6) Interior doors.
                        doors, including closure devices.
                                                   devices, frames, molding, locks.
                                                                                locks,   o
                                                                                         Cl                        o
               and hardware
         (7) Parking areas and walks                                                                      ao                        oCl
         (8) Plumbing systems,                                          systems, and
                           systems. drainage systems, electrical systems.                o
                                                                                         Cl                                          o
                                                                                                                                    Cl
                              systems, except systems or items specifically
               mechanical systems.
               designated otherwise
         (9) Ballast and lamp replacement                                                o                a        o                Il!l
         (10) Heating, Ventilation and Air Conditioning (HVAC) systems                   o                a        III              o
         (11)
         (11 ) Signs  and lighting: Tenant    shall   pay   for  cost    of  new  sign
               (a) Pylon
               (a )P  I
                     yon            t~~dig~j
                                    Landlord ~~s£e~~~io~~d
                                                 must approve a~~ig~;n~~~~
                                                                   any new Sl.gn t~;re~.
                                    and cost of repair and maintena9ce there~.
                                                                                      as                            oCl             oCl
               (b) Facia            as to design, location and size before               0                         o                ~
                                                                                                                                    III
               (c) Monument         any new sign is installed.                           Cl
                                                                                         0                         ao               o
                                                                                                                                    Cl
                OO~~~
                (d)   Door/Suite                                                                         0
                                                                                                         Cl        oCl              ~
         (12)   Extermination and pest control, excluding wood-destroying insects                        0
                                                                                                         Cl        31
                                                                                                                   W                 o
                                                                                                                                     Cl
         (13)
         {13}   Fences and Gates                                                                         o
                                                                                                         Cl        lin
                                                                                                                   01                o
                                                                                                                                     Cl
         (14)   Storage yards and storage buildings                                                      o
                                                                                                         Cl        m
                                                                                                                   ill               o
                                                                                                                                     Cl
         (15)   Wood-destroying insect treatment and repairs                                             o
                                                                                                         Cl        m
                                                                                                                   01                o
                                                                                                                                     Cl
         (16)   Cranes and related systems                                                               l(JI
                                                                                                         )QI       o
                                                                                                                   Cl                o
                                                                                                                                     Cl
         (17)    Repairs
                _R"esP"a'C",,""C""s,-,c"o"s"t~i",,,,
                                      costing         less than $100.00
                                                   gLC1"e"s"s,-,:t"hc:a.:.:n-'.$"""O,,O,-"0:.0'--_ __    oCl       ao                ~
                                                                                                                                     ill
         (18)                                                                                            o
                                                                                                         Cl         oCl              o
                                                                                                                                     Cl
         (19) All other items and systems                                                                           oCl             oCl
    D. Repair Persons: Repairs must be completed by trained, qualified, and insured repair persons.

    E.                                                                                                                       ,
         o is  Cl is not                maintain, at its expense, a regularly scheduled m
                            required to maintain.                                                        nd service
         contract for the HVAC system. The maintenance and service                      e purchased from a HVAC
         maintenance company that regularly provide                  racts to similar properties. If Tenant fails to
         maintain a required HVAC'
                              HVAC                e and service contract in effect at all times during this lease,
         Landlord
         landlord               n charge Tenant the expense of such a maintenance and service contract or


    F. Common Areas: Landlord will maintain any common areas in the Property in a manner as Lanqlorq
                                                                                                                  ng
                                                                                                  and,,§igns'lrl- ng
       determines to be in the best interest of the Property. Landlord will maintain any elevator and;§igMhl
       the common area. Landlord may change the size.  size, dimension, and location of any common areas,
       provided that such change does not materially impair Tenant's use and access to the leased premises.
       Tenant has the non-exclusive license to use the common areas in compliance with Landlord's rules and
       restrictions. Tenant may not solicit any business in the common areas or interfere with any other
       person's right to use the common areas. This paragraph does not apply if Paragraph 2A(2) applies.


           5~26-06
(TAR-2101) 5-26-06          Inffialed')r1 _ by renant:¥ ~ and U.-@.
                                                              LaOdIO~__
                             loilialed roc Ideolificalioo by Teoao,¥-, _ _ , aod                        __                Page 8of14
                                                                                                                               8 of 14




                                                                                                                    AR 000048
Commercialleaseconcerning"
Commercial lease concerning::_ _ _
                                 ____
                                    ____
                                       ____
                                          _ ____
                                               ____
                                                  ____
                                                     ____ _ _
                                                            ____
                                                               ____
                                                                  ____
                                                                     _____
                                                                         ____
                                                                            ____

    G. Notice of Repairs: Tenant must promptly notify Landlord of any item that is in need of repair and that is
       Landlord's responsibility to repair. All requests for repairs to Landlord must be in writing.

    H. Failure to Repair: Landlord must make a repair for which Landlord is responsible within a reasonable
       period of time after Tenant provides Landlord written notice of the needed repair. If Tenant fails to
       repair or maintain an item for which Tenant is responsible within 10 days after Landlord provides
       Tenant written notice of the needed repair or maintenance, Landlord may: (1) repair or maintain the
       item, without liability for any damage or loss to Tenant, and Tenant must immediately reimburse
       Landlord for the cost to repair or maintain; or (2) exercise Landlord's remedies under Paragraph 20.

16. ALTERATIONS:
    A. Tenant may not alter, improve, or add to the Property or the leased premises without Landlord's written
       consent. Landlord will not unreasonably withhold consent for the Tenant to make reasonable non-
       consent
       structural alterations, modifications, or improvements to the leased premises.

    B. Tenant may not alter any locks or any security devices on the Property or the leased premises without
                   consent If Landlord authorizes the changing, addition, or rekeying of any locks or other
       Landlord's consent.
       security devices, Tenant must immediately deliver the new keys and access devices to Landlord.

    C. If a governmental order requires alteration or modification to the leased premises, the party obligated to
       maintain and repair the item to be modified or altered as designated in Paragraph 15 will,     wilt, at its
       expense, modify or alter the item in compliance with the order and in compliance with Paragraphs 16A
       and 17. Tenant must obtain at its expense all permits required for any improvements.

    D. Any alterations, improvements, fixtures or additions to the Property or leased premises installed by
       either party during the term of this lease will become Landlord's property and must be surrendered to
       Landlord at the time this lease ends, except for those fixtures Landlord requires Tenant to remove
       under Paragraph 11 or 14 or if the parties agree otherwise in writing.

17. LIENS: Tenant may not do anything that will cause the title of the Property or leasE;KJ    leas~d premises to be
    encumbered in any way. If Tenant causes a lien to be filed against the Property or leased premises, Tenant
    will within 20 days after receipt of Landlord's demand: (1) pay the lien and have the lien released of record;
    or (2) take action to discharge the lien.
                                          tien. Tenant will provide Landlord a copy of any release Tenant obtains
    pursuant to this paragraph.
                  kt
                  ~t all times
18. L1ABILlTY;tYQthe-extentpermitted
    LlABILlTY/JO the extent permitted by law. Landlord is NOT responsible to Tenant or Tenant's employees.  employees,
    patrons. guests, or invitees for any damages.
                                          damages, injuries. or losses to person or property caused by:            '
    A. an act,
             act. omission, or neglect of: Tenant; Tenant's agent;
                                                              agent: Tenant's guest: Tenant's employees;
                                                                                                 employees: Tenant's
         patrons; Tenant's invitees; or any other tenant on the Property;
    B. fire, flood, water leaks, ice, snow, hail.
                                             hail, winds, explosion, smoke,
                                                                     smoke. riot. strike.
                                                                                  strike, interruption of utilities, theft,
         burglary, robbery.
                   robbery, assault, vandalism,
                                     vandalism. other persons, environmental contaminants, or other occurrences
         or casualty losses.

19. INDEMNITY: Each party will indemnify and hold the other party harmless  hannless from any property damage.
                                                                                                        damage,
    personal injury.
              injury, suits.
                      suits, actions, liabilities. damages.
                                                   damages, cost of repairs or service to the leased premises or
    Property. or any other loss caused, negligently or otherwise.
    Property,                                                otherwise, by that party or that party's employees,
    patrons, guests, or invitees.

20. DEFAULT:
    A. If Landlord fails to comply with this lease within 30 days after Tenant notifies Landlord of Landlord's
       failure to comply, Landlord will be in default and Tenant may seek any remedy provided by law. If,
       however, Landlord's non-compliance reasonably requires more than 30 days to cure, Landlord will not
       be in default if the cure is commenced within the 30-day            ~tlY
                                                         3D-day period and r t l Y pursued.

(TAR-2101)
(TAR.2101) 5-26-06
           5-26.(]6      'n"ale<!  foe ldenlffi"""'n
                         'ol,l.,ed {O,                    r?j:~
                                       Ideoll'",lIoo by Tenantt?f
                                                        Te""o'   _ _. and
                                                                      aod l
                                                                          L aa
                                                                             noddlloo,e
                                                                                      JJ @_
                                                                                        ,@ __   ag e90f14
                                                                                            _ p age90f14




                                                                                                             AR 000049
Commercial
Commerdal lease  conceming:_ _
           leaseconceming:'  ____
                                ____
                                   ____
                                      ____
                                         _ _
                                           _ ________
                                                    ____
                                                       ____
                                                          ____
                                                             ____ _ _ _
                                                                      ____
                                                                         ____
                                                                            _ _



    B. If Landlord does not actually receive at the place designated for payment any rent due under this lease
       within 5 days after it is due, Tenant will be in default. If Tenant fails to comply with this lease for any
       other reason within 10 days after Landlord notifies Tenant of its failure to comply, Tenant will be in
       default.

    C. If Tenant is in default, Landlord may: (i) terminate Tenant's right to occupy the leased premises by
        providing Tenant with at least 3 days written notice; and (ii) accelerate all rents which are payable
        during the remainder of this lease or any renewal period without notice or demand. Landlord will
        attempt to mitigate any damage or loss caused by Tenant's
                                                              T enanfs breach by using commercially reasonable
       means. If Tenant is in default.
                              default, Tenant will be liable for:
       ((1)
         1) any lost rent;
       (2) Landlord's cost of reletting the leased premises, including brokerage fees, advertising fees, and
              other fees necessary to relet the leased premises;
       (3) repairs to the leased premises for use beyond normal wear and tear;
       (4) all Landlord's costs associated with eviction of Tenant, such as attorney's fees, court costs, and
              prejudgment interest;
       (5) all Landlord's costs associated with collection of rent such as collection fees, late charges, and
             returned check charges;
       (6) cost of removing any of Tenant's equipment or fixtures left on the leased premises or Property;
       (7) cost to remove any trash, debris, personal property, hazardous materials, or environmental
             contaminants left by Tenant or Tenant's employees, patrons, guests, or invitees in the leased
             premises or Property;
       (9) cost to replace any unreturned keys or access devices to the leased premises, parking areas, or
             Property;
       (10) any other recovery to which Landlord may be entitled under this lease or under law.

21. ABANDONMENT, INTERRUPTION OF UTILTIES, REMOVAL OF PROPERTY, AND LOCKOUT:
    Chapter 93 of the Texas Property Code governs the rights and obligations of the parties with regard to: (a)
    abandonment of the leased premises; (b) interruption of utilities; (c) removal of Tenant's property; and (d)
    ~lock-outH of Tenant.
    "lock-out"

22. HOLDOVER: If Tenant fails to vacate the leased premises at the time this lease ends, Tenant will become
    a tenant-at-will and must vacate the leased premises immediately upon receipt of demand from Landlord.
    No holding over by Tenant.
                         Tenant, with or without the consent of Landlord, will extend this lease. Tenant will
    indemnify Landlord and any prospective tenants for any and all damages caused by the holdover. Rent for
    any holdover period will be 2 times the base monthly rent plus any additional rent calculated on a daily
    basis and will be immediately due and payable daily without notice or demand.

23. LANDLORD'S LIEN AND SECURITY INTEREST: To secure Tenant's performance under this lease,
    Tenant grants to Landlord a lien and security interest against all of Tenant's nonexempt personal property
    that is in the leased premises or Property,
                                       Property. This lease is a security agreement for the purposes of the
    Uniform Commercial Code. Landlord may file a copy of this Jease
                                                                lease as a financing
                                                                            finanCing statement
                                                                                      statement.

24. ASSIGNMENT AND SUBLETTING: Landlord may assign this lease to any subsequent owner of the
    Property. Tenant may not assign this lease or sublet any part of the leased premises without Landlord's
    written consent
            consent. An assignment of this lease or subletting of the leased premises without Landlord's written
    consent is voidable by Landlord. If Tenant assigns this lease or sublets
                                                                        SUblets any part of the leased premises,
    Tenant will remain liable for all of Tenant's obligations under this lease regardless if the assignment or
    sublease is
              i;3 made with or without the consent of ILandlord.
                                                        andlord Tenant may not sublease
                                                                                    sul?lease or assign this
             wlthout the consent of Landlora
     lease without                          LandlorawhlchwhLch' consent may be subject
                                                                                   subJect to terms and
     conditions imposed
                    imposed' by Landlord
                                   Lgndlord regarding any such sublease or assignment and the
    payment of rent ther~under.



(TAR-2101) 5-26-06     Initialed for Identification by Tenant¥_ _ .• and
                                                       Tenant:¥               ~__
                                                                        landia""@
                                                                     ood Loodloo"   __              Page 10 of 14




                                                                                                     AR 000050
~l~~:
~lu..~                         ___________________________________________________________
                               ______________________________________________________  ___

 25. RELOCATION:


            to relocate to another location in the Property, provided that the other location is equal in            arger
            than the leased premises then ocrupied
                                               occupied by Tenant and contains similar                     mprovements.
                                                                                                           improvements.
            landlonl  will pay Tenant's reasonable ou\-Of-pOCkeI
            landlord wi.                             out-ot:-pocket moving expen
                                                                              e                  'ng to the oIher
                                                                                                ving        oIber location.
                     expenses'" means reasonable expenses pays
            "Moving expenses"                                    paya                 .   I movers, utility companies for
            connection and disconnection fees, wiring             .• s for connecting and cflSCOOnecting
                                                                                            disconnecting Tenant's office
            equipment required by the re         '.        printing companies for reprinting Tenant's stationary and
            business cards. A          .      Tenant wil not change or affecI         oIber provision of this lease thai
                                                                           affect any oIher                         that is
            then in              Ing rent and reimbursement amounts, except that the ~     description of the suite or unit
            ~~wu~mm~~~Bm~~\\

'1lI
)ijI   a.
       B.   Landlord may not require Tenant to relocate to another location in the Property without Tenant's prior
            landlord
            consent
            consent.
26. SUBORDINATION:

       A This Jease
              lease and Tenant's leasehold interest are and will be subject, subordinate.       inferior to:
                                                                               subordinate, and inferiorto:
                        encumbrance. or ground lease now or hereafter placed on the leased premises or the
         (1) any lien, encumbrance,
             Properly  that landlord authorizes:
             Property lhallandlord   authorizes;
         (2) aI advances made under any such lien, encumbrance, or groond  ground lease;
         (3) the interest payable on any such ften
                                                lien or encumbrance;
         (4) any and all renewals and extensions of any such lien, encumbrance, or ground lease;
                                      affecting the leased premises or the Property; and
         (5) any restrictive covenant aIfecIing
         (6) the rights of any owners' association affecting
                                                     affecIing the leased premises or Property.

                                                                                  non-disturbance agreement that
       B. Tenant must, on demand, execute a subordination, attornment, and non-distUrbance
          landlord may request that Tenant execute, provided that such agreement is made on the condition that
          Landlord
                                                    Lease are recognized by the 1iefl..hoIder.
          this lease and Tenant's rights under this lease                       1ien-hoIder.

'no
27. ESTOPPEL CERTFICATES: Within 10 days after receipt of a written    wriUen request from Landlord,
                                                                                            landlonl, Tenant will
                           landford an estoppel certificate that identifies the tenns
    execute and deliver to Landlord                                             terms and conditions of this lease.

28. CASUALTV LOSS:
             LOSS;

       A Tenant must immediately notiIit
                                     notify landlord of any casualy loss in    the leased premises. Wilhin
                                                                            ilthe                    VWhin 20 days
         after receipt of T                     casualy loss, landlord will notiIit
                            enanI's notice of a casually
                          Tenant's                                          notify Tenant if
                                                                                          K the leased premises are
         less than or more than 50% unusable, on a per square foot baSis,  basis, and if landlord can substantially
         restore the leased premises within 120 days after Tenant notifies Landlord
                                                                              landlord of the casualty
                                                                                              casually loss.

       a.
       B.   If the leased premises are less than 50% unusable and landlord can substantially restore the leased
                       wilhin 120 days after Tenant_landlord
            premises wtilin                                                  casuaHy, landlord
                                             Tenant notifies landlord of the casualty,  Landlord will reslore
                                                                                                      restore the leased
            premises to substantialy the same condition as before the casualty. If     rr Landlord fails to subslantially
                                                                                                            substantiallY
            restore within the time required, Tenant may terminate
                                                          tenninate this lease.

       C. If the leased premises are more than 50% unusable and Landlord can substantially restore the ieasedleased
          premises within 120 days after Tenant notifies
                                                    _        Landlord
                                                             landlord of the casuaHy,   landlonl may:
                                                                              casualty, Landlord may; (1) tenninate
                                                                                                          terminate
                                                            substantially the same condition as before the casualty.
          this lease; or (2) restore the leased premises to substantialty
             landlortf chooses to restore and does not substantiaRy restore the leased premises within
          If landlord                                                                               Within the time
          required, Tenant may terminate this lease.

       D. If landlord notifies
                       _       Tenant thai             cannoI substantially reslore
                                            Landlord cannot
                                       that landlord                        restore the leased prenises
                                                                                               premises within 120
          days aIIer
                after Tenant notifies
                              _       landlord of the casualy          landlord may: (1) choose not to reslore
                                                        casualty loss, landlon:l                         restore and
          tenninate
          terminate this lease; or (2) choose to restore,
          Tenant the option to
          Tenanllhe
(TAR-2101)5-2600
(TAR-21m) 5-26-06
                                terminate this
                             \0 lenninale
                            fnitialed
                                                          ,?-landIord
                                                          byTenant~
                                      for- Identification by
                            Initialed forJdentificaIi:In     Tenant
                                                                   Tenant of the estimated time to restore, and give
                                                   restore. notify Tenanf
                                               lease by ~ landlord within
                                          \his lease
                                                                    -
                                                                    -----------'
                                                                                  ~u:!'!r'
                                                                           willin ~~.
                                                                                 andlandlon:f~___
                                                                       - - ' andlardoRf~     ~__             Page 110(14
                                                                                                                  11 of 14




                                                                                                          AR 000051
                 concerning:: _ _
Commercial Lease concerning,,   ____
                                   ____
                                      ____
                                         _ ______
                                                ____
                                                   ____
                                                      ____ _ _
                                                             ____
                                                                ____
                                                                   ____
                                                                      _ ______
                                                                             ____
                                                                                _ _

     E. If this lease does not terminate because of a casualty loss, rent will be reduced from the date Tenant
        notifies Landlord of the casualty loss to the date the leased premises are substantially restored by an
        amount proportionate to the extent the leased premises are unusable.

 29. CONDEMNATION: If after a condemnation or purchase in lieu of condemnation the leased premises are
     totally unusable for the purposes stated in this lease, this lease will terminate. If after a condemnation or
     purchase in lieu of condemnation the leased premises or Property are partially unusable for the purposes
     of this lease, this lease will continue and rent will be reduced in an amount proportionate to the extent the
     leased premises are unusable. Any condemnation award or proceeds in lieu of condemnation are the
     property of Landlord and Tenant has no claim to such proceeds or award. Tenant may seek compensation
     from the condemning authority for its moving expenses and damages to Tenant's personal property.

30. ATTORNEY'S FEES: Any person who is a prevailing party in any legal proceeding brought under or
    related to the transaction described in this lease is entitled to recover prejudgment interest, reasonable
    attorney's fees, and all other costs of litigation from the nonprevailing party.

31. REPRESENTATIONS:

     A. Tenant's statements in this lease and any application for rental are material representations relied upon
        by Landlord. Each party signing this lease represents that he or she is of legal age to enter into a
        binding contract and is authorized to sign the lease. If Tenant makes any misrepresentation in this
        lease or in any application for rental,
                                        rental. Tenant is in default.

     B. landlord is not aware of any material defect on the Property that would affect the health and safety of
     8.
        an ordinary person or any environmental hazard on or affecting the Property that would affect the
        health or safety of an ordinary person, except: _ _
                                                          ________ __  __ ____ ___ __ __ __ ____ __ ____ __




    C. Each party and each signatory to this lease represents that: (1) it is not a person named as a Specially
       Designated National and Blocked Person as defined in Presidential Executive Order 13224; (2) it is not
       DeSignated
       acting, directly or indirectly, for or on behalf of a Specially Designated and Blocked Person; and (3) is
       not arranging or facilitating this lease or any transaction related to this lease for a Specially Designated
                                                                                                          DeSignated
       and Blocked Person. Any party or any signatory to this lease who is a Specially Designated and
       Blocked person will indemnify and hold harmless any other person who relies on this representation
                                      damage. loss, liability or expense as a result of this representation.
       and who suffers any claim, damage,

32. BROKERS:

    A The brokers to this lease are:
    A.                                      NONE


        Cooperating Broker                         License No.   Principal Broker                         License No.


        Address                                                  Address

        Phone                                            Fax     Phone                                            Fax
        E-mail                                                   E-mail

        Cooperating Broker represents Tenant.                    Principal Broker: (Check only one box)
                                                                 o
                                                                 (J   represents Landlord only.
                                                                 o represents Tenant only.
                                                                 (J
                                                                 o    is an
                                                                 r::J is    intermedia~een
                                                                         an i n " ' 7 Landlord           and Tenant.
                                                                                                Landlord and Tenant.

(TAR-2' 0') 5-26-06
(TAR-2101)  5-2&00              ro,
                         Inltialed            byTena~
                         loltialed 10, Iden1ilication          _ _ .• and lLandlo
                                       Ideoli'catioo by Teoao,¥-            a n d:l/ /0
                                                                                      0-( 7_
                                                                                           ___          Page 12 of 14




                                                                                                        AR 000052
            Lease conceming:
 Commercial lease conceming::_
                             ____
                                ____
                                   _______
                                         ____
                                            ____ _
                                                 ____
                                                    ____
                                                       _______
                                                             ____
                                                                _____
                                                                    ____
                                                                       ____
                                                                          _ ____
                                                                               ___


     8.
     B. Fees:
     ao    (1) Principal Broker's fee will be paid according to: (Check on/yone
                                                                        only one box).
           ar.J (a) a separate written commission agreement between Principal Broker and:
                        a
                    o Landlord 0 Tenant.     a
           ar.J (b) the attached Addendum for Broker's Fee.
     ao    (2) Cooperating Broker's fee will be paid according to: (Check only one box).
           oa (a) a separate written commission agreement between Cooperating Broker and:
                       a
                  o Plincipal
                     Principal Broker Q Landlord 0         a
                                                      (J Tenant.
           ao (b) the attached Addendum for Broker's Fee.
 33. ADDENDA: Incorporated into this lease are the addenda, exhibits and other information marked in the
     Addenda and Exhibit section of the Table of Contents. If Landlord's Rules and Regulations are made part
     of this lease, Tenant agrees to comply with the Rules and Regulations as Landlord may, at its discretion,
     amend from time to time.

                                         Jease must be in writing and are effective.
 34. NOTICES: All notices under this lease                                effective when hand-delivered, sent by
     mail, or sent by facsimile transmission to:

    Tenant at the leased premises,
    andacopyro;~~------------------------------------------------------------
    andacopyro:~~~~------------------------------------------------------­
                   Address: _______________________~~-----------------------------
                   Phone: ------------------------~F~ax-:-----------------------------
                              Phone:                                                                          Fax:
     tm Tenant also consents to receive
     ID                         rE;!ceive notices bye-mail             ....a..r..n..e..rc:5~---------------------------
                                                            at:...;;bg~a;.;;r;;;;n;...;:e;.:;:r.:.5;.:;:@;.:;:a.:.o.=.l.:.
                                                  by e-mail at-.bg                                  ..@..a..o..        •c.:;.c..
                                                                                                                  1-.....     o.;:;m:;:.. ._ _ _ _ _ _ _ _ _ __
                                                                                                                              om...-__________

    Landlord at
             at:             Providian Holdings, Inc.
                             Address: 2918 San Jacinto Street r Suite. :100,
                                                                       100, Houstbn,.Texas
                                                                             Houston, .Texas 77004  I


                             Phone:   713 523-7847                Fax:
    andacopyto:~~~------------------------------------------_-_-_-___
                                                                    -_-_-_-_-_-_-_-_-_-
    andacopyro:~~------------------------------------------------------------
                                                                                                                      ----------------------
                   Address: _ _ _ _ _ _ _ _ _ _ _ _~~-----------------------------
                   Address: ________________________                                                      -=,..-________________
                   Phone: -,-,-_ _,...._c--,_ _--c-,-....,..Fax:           Fax:~__r_~~~~~~-~------­
    !XI Landlord also consents to receive notices by
    C!I landlord                                  bye-mail  at:-"k~h~y~a~t~1c·~-~u"'n'::~d=~a::_v=~1=·~a=7c=@'::s~b'::c~g'!:"'::o'!:b'=a'="c::-.~n'::e':.t~_::._::._::._::._::._::._::._::._::
                                                     e-mail at:khyati_undavia@sbcglobal.net

35. SPECIAL PROVISIONS:
    A. Landlord shall not be obligated to install any facilities at the Property or in
                     including any ADA !American
       the premises~ includinq                         Di$abilities) or related facilities
                                        ~American With Di~abilities)
                by rederal, seate and Clty
       requ~red by
       requlred                                   regulat~ons or ordinances.
                                       c~ty laws, regulatlons
                             thedliqhts in the premises and lock the doors to the building
    B. Tenant will turn off thedliqh~s
       WLen prem~ses
       w~en premlses are vacate
                          vaca~e       even1ng.
                                  each evenlng.
    C. As a fixture as part of the premises, Tenant may place aa sign on.the
                                                                      on the exterior of
       the building at 1tS
                        lts sole cost and expense, the size and location of such sign to
       be approved by Landlord before being erected.                                  .
     D. Landlord shall not lease any space in the building to a~ chiropr~ctor
                                                                 chiropractor no~
                                                                              nOI lease any
        space in the building to any other medical profession In
                                                               in the palD
                                                                      pain management
        business. Dentists are not considered part of the medical profession.




(TAR-2101) 5-26-06                  Initialed for Identification by         Tenant:~                              Landlmd~
                                                                                                 _ _ • and l.arnllo.. ~                    __                          Page 13 of 14




                                                                                                                                                                        AR 000053
 Commercialleaseconceming.
 Commercial Lease conceming:, _
                              ____
                                 ____
                                    ____
                                       _ _
                                         _ ______
                                                ____
                                                   ____
                                                      _____
                                                          ____
                                                             ____
                                                                ____
                                                                   _ _
                                                                     _ ____
                                                                          ____
                                                                             ___ _


 36. AGREEMENT OF PARTIES:

        A. Entire Agreement: This lease contains the entire agreement between Landlord and Tenant and may
           not be changed except by written agreement.

        S.
        B. Binding Effect: This lease is binding upon and inures to the benefit of the parties and their respective
              heirs, executors, administrators, successors, and permitted assigns.

        C. Joint and Several: All Tenants are jointly and severally liable for all provisions of this lease. Any act or
           notice to, or refund to, or signature of, anyone or more of the Tenants regarding any term of this lease,
               renewal, or its termination is binding on all Tenants.
           its renewal.

        D. Controlling Law: The laws of the State of Texas govern
        O.                                                 govem the interpretation, performance, and
           enforcement of this lease.

        E. Severable Clauses: If any clause in this lease is found invalid or unenforceable by a court of law, the
           remainder of this lease will not be affected and all other provisions of this lease will remain valid and
           enforceable.

        F. Waiver: Landlord's delay, waiver, or non-enforcement of acceleration, contractual or statutory lien,
           rental due date, or any other right will not be deemed a waiver of any other or subsequent breach by
           Tenant or any other term in this lease.

        G. Quiet Enjoyment: Provided that Tenant is not in default of this lease, Landlord covenants that Tenant
           will enjoy possession and use of the leased premises free from material interference.

        H. Force Majeure: If Landlord's performance of a term in this lease is delayed by strike, lock-out, shortage
           of material, governmental
                        govemmental restriction, riot, flood, or any cause outside Landlord's control, the time for
           Landlord's performance will be abated until after the delay.

        I.   Time: Time is of the essence. The parties require strict compliance with the times for performance.

Brokers are not qualified to render legal advice, property inspections, surveys, engineering studies,
environmental assessments, tax advice, or compliance inspections. The parties should seek experts
to render such services. READ THIS LEASE CAREFULLY. If you do not understand the effect of this
Lease, consult your attorney BEFORE signing.



             NISAL CORPORATION                                  PROVIDIAN HOLDINGS, INC.
Tenant
               -L~~~2~~~~~/~~
                                                               landlord/
                                                                                               (ffl~/L~
                                                                                               crP"dtl:.er..c:..
BY/ ____                                                       BY~CP/~                                            Date

             Name'_-:t~~~'"----'~~~Gr~4,1t.~~{£;~::-
Printed Name,_~~'--"='~l-I--~:::..L.--'=::::...>,.;~-=...J~~   Printed Name                 ;,J ~     )
                                                                                                             J1-b
                                                                                                               /~9'
                                                                                                           <~kb/09
                   -i.6~cv'"''--''''------------------
Title,_ _ _ _             _ _ _ _ _ _ _ _ _ __
                    b-!..::...~                                Title.
                                                               Title'_ _ _
                                                                         __ __
                                                                             ____
                                                                                ____
                                                                                   ____
                                                                                      ____
                                                                                         ____ _ ___ _
                                                                                                   __
Trtle' _____



Tenant                                                         Landlord
By
By                                                             By/_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
                                                               By                                                ~-



                                                       Date                                                       Date
Printed Name                                                   Printed Name'
                                                               Printed Name_ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Title                                                          Title
                                                                   ,------------------------
(TAR-2101)
(TAR~2101) 5-26-06                                                                                       Page 14 of 14




                                                                                                          AR 000054
                                                                    ~".
                                                                     ~
                                         TEXAS ASSOCIATION OF REALTORS
                                          COMMERCIAL LEASE EXHIBIT
             USE OF THIS
             USE    THIS FORM
                         fOOM BY
                              ElY PERSONS       ME NOT
                                  PEFlSQtIS WHO ARE NOT MEMBERS
                                                          MEMBERS OF THETHE TEXAS ASSOC",TlON
                                                                                      I'SSOCI.I.TlON OF REAI.TORS®
                                                                                                        REALTOOS$IS   NOT AUTHORIZEU
                                                                                                                   IS NOT AUTHORIZE[.;
                                                 OT.u.
                                                 OTe        _",,""on of REAl.
                                                     .... AoaoclaKon of       T'OR.Se.lne. :zoIHI
                                                                        1tEJ\l.l'1;lRS&.1noc:.:root




          EXHIBIT_A
          EXHIBIT-.::A_
                      ____
                         ____
                            ____
                               ____
                                  ____
                                     _____________
                                                 ____
                                                    ___ _

TO COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING THE LEASED
PREMISES AT 2918 San Jacinto Street, Houston!
                                     Houston ( Texas




                                                                                                                                         o
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                                                                                                                                         Z
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         ,                          ".


         L                    . r - '- -..
                              :~.



      NOT TO SCALE. DIMENSIONS AND SIZE SUBJECT TO MEASUREMENT.
      PARTITIONS MAY NOT EXIST AS SHOWN.




                                                                                                                                               AR 000055
                                                                              ~~
                                         TEXAS ASSOCIATION OF
                                                           Of REALTORS"
                                                              REALTORS'
                                      COMMERCIAL LEASE ACCEPTANCE FORM
                          us~ OF THIS FORM flY
                          USE                  ?~RSONS WHO ARE NOT MEMBERS OF THE
                                           BY PERSONS                                                   REAlTOf!~ IS NOT AUTHORIZED.
                                                                              TIlE TEXAS ASSOCIATION OF REALTORS®        AUTHORIZED,
                                                              CT_
                                                              <OT.lUIS    _ of
                                                                       Auoc:IatIon ofREALTORSlIII.I"".2006
                                                                                     REAl..1ORS!I!>. Inc. 2006




 ACCEPTANCE OF THE LEASED PREMISES AT 2918 San Jacinto Street, Houston, Texas'
                                                                        Texas. Suite 200

 REGARDING THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES.

 A.      The parties have inspected the leased premises. The parties acknowledge that any improvements,
         construction, repairs, or other items required by the lease have been substantially completed. The
         condition of the leased premises is acceptable to Tenant for the purposes of the lease. On or before
         _ _ _ _ _ _ _ _ _ _ , 0 Landlord 0        CI Tenant will complete the following (punch list):




B_
8.       The parties ratify the lease and confirm the following:
         (1) The term of the lease is for        36                              months and                               00   days.
         (2) The Commencement Date of the lease is ;:Ma""'r"c"'h'-"'-f:,-;!'2"OO,,9":,,-_
                                                           "",M:;;;:a.=.rc.;;;.;h",-,l;;;;.L...!. .;:2;;.. ;0;.. :0-"9_ _ __ _______ __
                                                                                                                                      ___
         (3) The Expiration Date of the lease is        February 29!                      29, 2012

C.
c.       Special Provisions:
           Tenant has inspected the premises and accepts the premises "AS IS".




           NISAL CORPORATI                                                               PROVIDIAN HOLDINGS, INC.
Tenant

B'-_L-'='--""'-"-=--=
By___~~~-~~~____________.....:..L:rc,~
                           ~~~~
                                                                                                                                                   Date


Tenant
                                                                                      ~~       __----__--____--__-2~/-~6Io1
                                                                                      ~~-------------------2~/~GI6r
                                                                                      Landlord
B"_______________
~
                                                                      ~~

                                                                                       B'----__________
                                                                                       ~                              -.cc""
                                                                         Date
                                                                         Date           ------------------------=Da--:-te                          Date

(TAR-2113) 5-26-06                                                                                                                           Page 1 of
                                                                                                                                             Page 1 of 1
                                                                                                                                                       1




                                                                                                                                            AR 000056
                        TEXAS ASSOCIATION OF REALTORS"
                                             REALTORS'
                                                                   ~~
                COMMERCIAL LEASE ADDENDUM FOR EXTENSION OPTION
                     USE OF THIS
                            THiS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS®   IS NOT AUTHORIZED.
                                                                                                   REI\lTORS®IS     AUTHORIZED
                                                      Clnn_   Mooc:latlon ot
                                                      C>Tex.. AsSOClRIon         TORSCI. Inc:.
                                                                          of REALTORS®,  Inc. 2006




ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING
THE LEASED PREMISES AT 2918 San Jacinto Street
                                        Street,c Houston, Texas Suite 200



A. At Tenant's option, Tenant may extend the term of above-referenced lease for 1       additional term(s) of
     36
     36..      months each. The first additional term commences upon the expiration of the term stated in the
   lease and any subsequent additional term commences upon the expiration of the then applicable extended
   term.

B. Tenant may exercise Tenant's option(s) to extend under Paragraph A only by providing written notice to
   Landlord at least 90         days before the end of the then current term of the lease.

C. Tenant may not exercise Tenant's option(s) to extend under Paragraph A if the lease is terminated before
   Tenant exercises its option to extend or Tenant is in breach of the lease at the time Tenant exercises its
   option to extend.

D. During the additional term(s), all provisions of the lease will continue as in effect immediately before the
   extension(s) commences except the base monthly rent during the additional term(s) will be:

QI
III    (1) $ 4,400.00
             4,400_00                  from     March 1, 2012                            to February 28, 2013
                                                                                         10
           $ 4,600.00                  from     March 1, 2013                            10 February 28, 2014
                                                                                         to
          $ 4,800.00                   from     March 1, 2014                            10 February 28, 2015
                                                                                         to
          $                            from                                              to
          $                           from                                               to

o                                                                        ~AII Urban Consumers, U.S. City Average,
      (2) adjusted to reflect increases in the Consumer Price Index for "All
              Items~, issued by the Bureau of Labor Statistics of the U.S. Department of Labor. The adjustment
          All Items",
          will be determined by multiplying the base monthly rent for the last month of the lease by the following
          fraction: (i) the numerator will be the published index number for January in the year the additional term
          commences; and (ii) (il) the denominator will be the published index number for January in the year in
          which the original lease term commences. (Notice: This paragraph is appropriate for use only when the
          rent in the lease remained constant through the term of the lease.)

o     (3) the prevailing rental rate on the 45thth
                                                   day before the additional term commences for premises of
          comparable size, quality, condition, improvements, utility, location, and length of term for tenant's of
          similar credit standing as Tenant.
                                     Tenant

E. If Paragraph 0(3) applies and the parties do not agree on the amount of the prevailing rental rate for the
                                       th
      additional term before the 30th     day before the additional term commences, each party will employ a state-
      certified appraiser and deliver the appraiser's written opinion of the prevailing rental rate to the other party
                             ttl
                          1Sth
      not later than the 15      day before the additional term commences. If the appraisers' opinions do not vary
      by more than 10%, 0
                      10 /0, the prevailing rental rate will be the average of the two opinions. If the appraisers'
      opinions vary by more than 10%, the appraisers will jointly select a t~praiser whose fees will be

(TAR-2104) 5-26-06         Initialed (0<
                           lornaled  for Ide_Do           Tenaot~ ~~, land!Or<i~,
                                         Identification by Tenant:!J/'.-, _ _, and landlorc{@-, _ _                                Page 1 of 2




                                                                                                                                  AR 000057
Addendum for Extension Option concerning _ _
                                           ____
                                              ____
                                                 ____
                                                    ____
                                                       _____________
                                                                   ____
                                                                      ____
                                                                         ____
                                                                            ____
                                                                               _ _ __

     shared equally by the parties. If a third appraiser is engaged, the prevailing rental rate will be the average
     of the two opinions that are closest in amount. If either party fails to employ or timely deliver an appraiser's
     opinion as required by this paragraph, the opinion rendered by the appraiser employed by the other party
     will determine the prevailing rental rate.

F. Special Provisions:




          NISAL       ORPORATION                             PROVIDIAN HOLDINGS, INC.
Tenant




Tenant                                                      Landlord

By_
By __________________________________
     _ _ _ _ _ _ _ _ _ _ _ _ _ __                           By________________________________ __
                                                   ~~
                                                            B  y ' - - - -______________~=c
                                                    Date                                                       Date




(TAR-2104) 5-26-06
           5--26-06                                                                                              af2
                                                                                                          Page 2 of2




                                                                                                       AR 000058
                                                                       ~..,
                                                                       ~~
                                                                       ~
                         TEXAS ASSOCIATION OF REALTORS·
                                              REALTORS'
               COMMERCIAL LEASE RIGHT OF FIRST REFUSAL ADDENDUM
                       USE OF THIS FORM 8Y         WIiOAAE
                                        BY PERSONS WHO      NOT MEMBERS Of
                                                       ARE N(lTMEMBERS        T!iE TEXAS
                                                                          OF THE   T8(ASASSOCIATIONOF   REAl-TORseIS
                                                                                         ASSOCIATION OF REALTORS® IS NOT AUTHORIZED
                                                                                                                         AUTHORIZED.
                                                        <QT. . . . _a.uon
                                                        q:)Texas   _lallon Of REALTORS4!>.lnc.
                                                                           of R£ALl'ORS*,  Inc. 2006
                                                                                                20IMI




 ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING
 THE LEASED PREMISES AT 2918 San Jacinto Street,
                                         street, Houston, Texas Suite 200

 A "Additional space" means all or part of the following areas along with all its improvements;
 A.                                                                               improvements:
 o
 CJ (1) the following floors in the Property: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___.

 ~ (2) the following suites in the Property, presently identified, as: the first floor vacant office
 !XI                                                                                          off ice space

 o
 CJ       ___________________________________________________________
      (3) __________________________________________________      ___


      The parties agree that the rentable area of the additional space may not equal the actual or useable area
      within the additional space and may include an allocation of common areas in the Property.

 B. If Landlord receives an acceptable written offer from another person to lease the additional space at a time
    when the above-referenced lease is in effect, Landlord will notify Tenant of the offer. Not later than 7 days
    after T enanl receives Landlord's notice of the offer, Tenant may notify Landlord that Tenant will lease the
          Tenant
    additional space identified in the offer under the same terms and conditions in the offer. If Tenant notifies
    Landlord that Tenant will lease the additional space identified in the after,
                                                                              offer, Tenant must execute a written
    lease for the additional space identified in the offer or amend the above-referenced lease, as Landlord may
    require, not later than     10        days after Tenant receives Landlord's notice. If Tenant fails to timely
    comply with this paragraph, Landlord may lease the additional space identified in the offer to the person
    who made the offer. If Tenant does not exercise its right to lease the additional space identified in the offer
    and Landlord does not lease the additional space identified in the offer to the person who made the offer,
    Tenant [J 0 does [J 0 does not relain
                                      retain the right of refusal under this addendum for any subsequent offers
    Landlord receives for the additional space identified in the offer.

C. An offer for part of the additional space affects the parties' rights and obligations only to the part of the
   additional space identified in the offer. Rights and obligations to parts of the additional space not identified
   in the offer are not affected. An offer to renew a lease for the additional space from a tenant occupying the
   additional space is not an offer to lease the additional space for the purposes of this addendum.
D. Special Provisions:
      Vacant space occupied or used by Landlord is excluded from the provisions
      of this Addendum.


         NISAL CORPORATION                                                      PROVIDIAN HOLDINGS, INC.
                 4
                 ,4'




Tenant                                                                        Landlord
By________________________________
  ________________________________                                ~
                                                                 ~~           By _____________________________________
                                                                              By,______________________________                              ~~




                                                                   Date                                                                       Date
(TAR-2i05)
(TAR-2105) 5-26-06                                                                                                                      Page 1 of 1




                                                                                                                                       AR 000059
                         TEXAS ASSOCIATION OF REALTORS'
                                                REALTORS"
                                                                     ~~
                 COMMERCIAL LEASEHOLD CONSTRUCTION ADDENDUM
                         (Tenant to Complete Construction)
                     USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS®    IS NOT AUTHORIZED.
                                                                                                     REALTORS@ISNOTAUTHORIZED
                                                      cre
                                                      QT. ...  AssocIatIon tlfREALTOR$IP, Inc.
                                                          . . ~_tlan<>fREAL~              Inc. 2ODOI
                                                                                               _




ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING
THE LEASED PREMISES AT 2918 San Jacinto Street
                                        Street« Houston,
                                                Houston. Texas Sui
                                                               511; te 700
                                                                       200           r




A Execution and License to Enter:
A.

o
o                                           above~referenced lease commenced. Landlord authorizes Tenant
    (1) This addendum is executed after the above-referenced
        to construct the improvements described in this addendum provided that Tenant complies with all of the
        terms of this addendum

129 (2) This addendum is executed before the above-referenced lease commences. Effective February 20,
IZI
         2009                 , Landlord grants Tenant a license to enter into the Property and the leased
        premises for the purposes of preparing the leased premises for occupancy and constructing the
        improvements described under this addendum and in accordance with this addendum. This license is
        made under all the terms and provisions in the lease, except as to the covenant to pay rent.

B. Construction Costs: Tenant will pay the full cost to construct the improvements that Tenant is to construct
   under this addendum, including but not limited to the cost of material, engineering studies, environmental
   studies, contractors, permits, plans, architects, inspectors, subcontractors, and materialmen. Not later than
   10 days after the construction is complete and Tenant has satisfied al\ all of Tenant's obligations under this
   addendum,    Landlord  will reimburse  Tenant   the  cost of the improvements
   exceed __________________________________________________________________        in an amount that does __ not
   exceed



C.
c. Approval of Plans:

    (1) Not later than                                ,Tenant will submit to Landlord plans and specifications
                                                                                                     speCifications
        detailing the improvements Tenant desires to complete to the leased premises. The plans must detail
        all arChitectural,
            architectural, mechanical, electrical, and plumbing requirements for the improvements and must
        describe the proposed improvements along with the materials to be used and the interior floor plan of
        the leased premises. The plans must be drawn by a professional architect in accordance with generally
        accepted architectural standards and must be suffiCient
                                                        sufficient for a contractor to use to construct the desired
        improvements.

    (2) Within          days after Landlord receives the plans in accordance with Paragraph C(1), Landlord will
        notify Tenant whether the plans are "approved" or "disapproved" by marking such on the plans and
        delivering the plans back to Tenant. Landlord will not unreasonably withhold approval of the plans. If
        Landlord does not notify Tenant of a disapproval within the time specified, the plans will be deemed
        approved.

    (3) If the plans are disapproved, Landlord will detail the reasons for the disapproval either on the plans or
        in a separate notice to Tenant. Ifthe
                                        If the plans are disapproved, Tenant will, within _ _ days after receipt
        of the disapproval notice from Landlord, submit amended plans to Landlord that incorporate revisions
        necessary to satisfy Landlord's reasons for the disapproval. Landlord will not unreasonably withhold


(TAR-2112) 5-26-00
           5-26-06         Inmaled
                           Initialed for Identification
                                         _              by Tena...,-¥
                                                           Tenant~~ Landlo~, _ , and Landlo,(@2 _ _                                 Page 1 of 4




                                                                                                                                   AR 000060
Leasehold Construction Addendum concerning _
                                           ____
                                              ____
                                                 _________
                                                         ____
                                                            ____ _
                                                                 ____
                                                                    ____
                                                                       _________
                                                                               ____
                                                                                  ___

        approval of any amended plans. If Tenant is unable or unwilling to satisfy Landlord's reasons for
        disapproval by                                     , and:
            jf this addendum is executed after the lease commenced, then Tenant will not construct the
        (a) if
            improvements and this Addendum will have no further effect; or
        (b) if this addendum is executed before the lease commences the lease will terminate and Landlord will
            refund any security deposit and advanced rent paid by Tenant.

    (4) ~Final
        "Final plans" means the plans that Landlord approves under this Paragraph C.

D. Change Orders: Tenant must obtain Landlord's advanced written approval of any proposed changes to the
   final plans. Landlord will approve or disapprove any proposed change within        days after Landlord
   receives a copy of the proposed change order from Tenant. Landlord will not unreasonably withhold
   approval of any proposed change order. If Landlord does not notify Tenant of a disapproval of a proposed
   change order within the time specified, the proposed change order is deemed approved.

E. Contractor: Before construction begins Tenant will enter into a written construction contract with a
   contractor(s} acceptable to Landlord to construct the improvements in accordance with the final plans. Any
   contractor(s)
   subcontractors employed by Tenant or Tenant's contractors must be acceptable to Landlord. Landlord will
   not unreasonably withhold approval of contractors and subcontractors.

F. Construction:

    (1 ) Tenant will diligently complete the improvements in accordance with the final plans and will satisfy any
         requirements of any governmental authorities having jurisdiction over the improvements. The
         construction of the improvements must be performed in a good workmanlike manner and must comply
         with all applicable laws, ordinances, rules, and governmental orders and regulations. Construction of
         the improvements may not:
         (a) damage the Property except as specifically permitted by the final plans, including but not limited to
             damage to or interference with any structural component, system, or part of the Property;
         (b) interfere with the rights or operations of any other tenant in the Property or with Landlord's
             management of the Property; and
         (c) not obstruct any common area, walk, or drive except as Landlord permits.

    (2) Landlord and Landlord's designees may inspect the construction of the improvements from time to
        time. If Landlord notifies Tenant of any construction defect or non-compliance with the final plans,
        Tenant must promptly correct the defect or non·compliance.
                                                   non-compliance.

G. Completion:

    (1) Tenant must substantially complete the construction of the improvements to the leased premises in
        accordance with this addendum on or before                                                       . Except
        as provided in this paragraph, the failure to complete construction of the improvements by the date
        specified does not relieve Tenant of Tenant's obligations to pay rent or satisfy other terms and
        conditions of the lease. The time by which Tenant must complete construction may be extended only if:
        (a) Landlord causes the delay; (b) Landlord delays in granting any applicable license under Paragraph
        A(2); or (c) a construction delay is caused by strike, lock-out, shortage of material, governmental
        restriction, riot, flood, or a cause outside Tenant's control. Any extension under this paragraph may be
        exercised by Tenant only if Tenant promptly notifies Landlord in writing of the extension after Tenant
        knows or has reason to know of any applicable delay which is cause for an extension. Any extension
        under this paragraph may not exceed the lesser of: the number of days of the delay caused by the
        specified cause for the delay or                     days.     If Paragraph A(2) applies and a delay
        authorized by this Paragraph applies, the Commencement Date and Expiration Date of the lease shall
        likewise be extended along with an appropriate adjustment in the rent due dates. If a delay is caused
        by Landlord and the delay exceeds the time for which an extension is permitted under this paragraph,
        Tenant may exercise its remedies under the default provision of the lea~,

(TAR-2112J
(TAR""2) 5-26-06      Inffialed              Tenant~
                      'o"'.'ed "ddentification
                                ro, Ideo'mcatiao by Teo.ot-¥_ _ ,. and l
                                                                       L a
                                                                         annd
                                                                            dlo
                                                                              or@@.._
                                                                                    ,___p
                                                                                        pa g e2of4
                                                                                          age2of4




                                                                                                    AR 000061
Leasehold
leasehold Construction Addendum concerning  __
                                conceming _ _ __
                                               ____
                                                  ____
                                                     ____
                                                        ___________
                                                                  ____
                                                                     ____
                                                                        ____
                                                                           ____ _ _
                                                                                  ___

                                                                                  accofda~c~ with the
     (2) Construction is complete when all the improvements are constructed in accordance          t~e final plans
                                                                                    supervIsing architect;
         and Tenant provides Landlord with: (a) a final certificate executed by the supervising archItect; and (b)
         if required by a governmental body, a certificate of occupancy permitting Tenant to occupy the leased
         premises for the purposes set forth in the lease.
     (3)
     (3)   ",,--=---,.--;-c-;:-:---,-,===::-:===-====:===:;-;;;::::;:<              is the supervising
                                                                                    is the             architect.
                                                                                           supervising architect.
           The certificate of the supervising architect is conclusive in any dispute involving the construction
           performed or required to be performed under this addendum.

H. No Liens:
     (1) Tenant guarantees that Tenant will pay all costs of any liability related to the construction of the
         improvements described in this addendum and further guarantees the lien-free completion of the
         improvements against the leased premises and Property. Tenant may not create or place any lien or
         encumbrance, of any kind, upon the leased premises or Property that encumbers Landlord's interest in
         the leased premises or Property.

     (2) Before Landlord reimburses Tenant for the cost of the improvements, Tenant must deliver to Landlord a
         waiver of liens in recordable form acceptable to Landlord from each contractor, subcontractor, and
         materialman, The waivers must specify that: (a) the contractor, subcontractor, Of
         materialman.                                                                       or materialman waive
         any and all claims against Landlord and waive any and all lien rights against Landlord's interest in the
         leased premises and Property; and (b) the contractor or subcontractor agree to hold Landlord harmless
                       all claims arising from or in connection with its work or materials.
         from any and aI/

     (3) If any lien is filed or asserted against any portion of the leased premises or Property as a result of the
         acts of Tenant or Tenant's contractors, subcontractors, Of   or materialmen, Tenant must remove any such
         lien or lien claim within 20 days after receipt of notice from Landlord.

                                                                   damages, costs,
     (4) Tenant will indemnify and keep Landlord harmless from all damages. costs. expenses, and attorney's
         fees that may arise from any lien or claim that may be filed or threatened as a result of the
         improvements to be constructed under this addendum.

I.   Bonds: Before commencement of any construction, Tenant and Tenant's contractors, at no cost to
     Landlord, must post the following bonds in favor of the Landlord in the amounts specified: ~
                                                                                                ____
                                                                                                   ____
                                                                                                      ___




J. Insurance:

     (1) Before any construction commences, Tenant must deliver to Landlord evidence that the insurance
         required by Paragraph 8A of
                                  ofthe
                                     the lease will be in effect not later than the day construction begins.

                                                                                            insurance, from
     (2) Before any construction commences, Tenant must deliver to Landlord certificates of insurance
         insurers acceptable to Landlord, evidencing that any contractor maintains insurance to protect
         Landlord, Tenant, and the contractor from:

     o     (a) workman compensation claims and other employee benefit acts in an amount not less than
               $                                          per occurrence;

     o     (b) claims for damages from bodily injury or death to employees and others in an amount not less than
               $                        per person and $                                    per occurrence; and
     o     (c) property damage in an amount not less than $
                                                          $,_ _ _ _ _ _ _ _ _ _ _ per occurrence.



(TAR-2112)
(T AR-2112) 5-26..Q6
            5-26-06                               Tenant~
                         Initialed for Identification by Tenant4.._ _ ,• aod
                                                                         and   Umd~
                                                                               LandlO"'~'   __          Page 3 of4




                                                                                                     AR 000062
 Leasehold Construction Addendum concerning _ _
                                              ____
                                                 ____
                                                    ____
                                                       ____
                                                          ____
                                                             _ ________
                                                                      ____
                                                                         ____
                                                                            ____
                                                                               ____
                                                                                  _ __


     (3) The insurance required by this Paragraph J must cover any and all claims that may arise out of or as a
         result of the operations of the contractor or the contractor's subcontracor(s).

     (4) The coverage required by this Paragraph J must be maintained by Tenant or Tenant's contractors, at
         Tenant's or the contractors' sole expense, during all times of any construction period. If Tenant fails or
         if any of Tenant's contractors fail to maintain the required insurance in full force and effect at all
         required times, Landlord may:
         (a) purchase such insurance on behalf of Tenant or the contractor(s) and Tenant must immediately
             reimburse Landlord for such expense; or
         (b) exercise Landlord's remedies for Tenant's default under the lease.

 K. Tenant's Assumption of Liability;
 K                          Liability: Tenant must promptly pay and discharge all costs, expenses, claims for
    damages, liens, lien claims, and any other liabilities which may arise from or in connection with the
    construction of the improvements described in this addendum. Tenant agrees to hold Landlord harmless
    from all costs, expenses, damages, liens, lien claims, and any other liabilities, which may arise from or in
    connection with the construction of the improvements described in this addendum.

 L. Special Provisions: (If applicable, include any business details, factual statements, or any requirements
    the parties must satisfy [for example, Landlord's obligation to complete shell construction by a certain date
                                                                                                             dale
    or by the time the license under Paragraph A(2) commences].)




         NISAL CORPORATION                                      PRQVIDIAN HOLDINGS, INC.
                                                                PROVIDIAN
Tenant
            2                                              landlordL   /          ~ JI   #J /   __.~2
By-_~_~       _¥_~                                                d~~~
                     -;(/   ...,.,<                                                                     ;
      __-· _                          _ _=_+_.::_-..r..t.t1BY                                                 ;Z/z-£/07
                                                   Date                ~                                      Date



Tenant                                                    Landlord
                                                          landlord
By
By,_______________________________
   ____________________________    _                      By _____________________________
                                                 ~~
                                                          By,________________________                       ~----
                                                                                                            ~~-


                                                  Date                                                        Date
(TAR-2112) 5-26-06                                                                                          Page 4 of4
                                                                                                                   of 4




                                                                                                        AR 000063
                                         TEXAS ASSOCIATION Of
                                                                    ~
                                                                    ~~
                                                              REALTORS"
                                                           OF REALTORS*
                               COMMERCIAL LEASE PARKING ADDENDUM
                     USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS  OF THE TEXAS
                                                             "'EMBERS OFTHE         ASSOCIATION OF REALTORS®IS
                                                                             TEXilS ASSOCIATIONOF  REALTORSe IS NOT AUTHORIZED.
                                                                                                                    AUTHORIZEO.
                                                       <m."".
                                                       ~ _ _ _ of !!£AI.TQRSeI,      '"".lOO8
                                                             AHoCtMIOn of REALTORse. Inc. 1006




 ADDENDUM TO THE COMMERCIAL LEASE BETWEEN THE UNDERSIGNED PARTIES CONCERNING
 THE LEASED PREMISES AT 2918 San Jacinto Street, HOllston,
                                                 Houston, Texas Suite 200


A
A. Parking Type:
           Tvpe:

     c:J (1) Common Parking: Tenant and Tenant's employees may park no more than _____
     o                                                                           _ _ _ _ vehicles on
             the Property in the common parking areas located on the Property.

     c:J (2) Restricted Common Parking for Tenants: Tenant and Tenant's employees may park no more than.
     Ll
             ____ vehicles on the Property in the areas restricted for use by tenants of the Property.

     c:J (3) Assigned Parking: Tenant's assigned parking areas are identified as follows:
     o
        oo     (a) _________________________________________________________
               (a) ____________________________________________________   __




        oc:J   (b) as shown on the attached Exhibit _
                                                    __-_
                                                       ____
                                                          ____
                                                             _______ _
                                                                    __

B. In addition to any other rent, Tenant will pay, on or before the first day of each month during the term of the
   above~referenced lease, $ NONE
   above-referenced              NONE                                                as rent for the parking areas.

C. Tenant may not assign, sublet, or trade any parking space or parking area.

D. Tenant may not use any parking spaces or areas on the Property to store any vehicle, boats, trailers, or
   any other personal property.

E. Tenant's guests, patrons, or invitees may park only in those areas designated by Landlord for Tenant's
           patrons, or invitees.
   guests, patrons.

F. Landlord may, but is not obligated to, institute controlled-access
                                                      controlfed¥access systems to the parking areas, including
   but not limited to systems such as vehicle identification stickers, license numbers, or controlled~access
                                                                                              control/ed-access
   devices. At the time the [ease
                                lease ends, Tenant must return all access devices to Landlord and pay the
   amounts in (2) and (3) below if Tenant fails to return an access device. If Landlord issues controlled-
   access devices to Tenant, Tenant will:
   (1) promptly report any lost device to landlord;
                                           Landlord;
   (2) reimburse Landlord
                  landlord its cost to replace the lost access device; and
   (3) pay Landlord a service fee of $                         for each lost access device.




(TAR-2107) 5-26-06                 for ldent_
                         Initialed to.-                Tenant~, ~
                                                      byTenant~
                                        Identification by                                La_@ ___
                                                                          ___ . and landlOCd@ ____                                 Page 1 of2
                                                                                                                                          of 2




                                                                                                                                  AR 000064
                           __
Parking Addendum conceming _ __
                              ____
                                 _______
                                       ____
                                          ____ _
                                               ____
                                                  ____
                                                     _ ______
                                                            ____
                                                               ___ __
                                                                    ____
                                                                       ____
                                                                          _ ____
                                                                               __



G. If Tenant fails to timely pay the rent stated in Paragraph B, Landlord may: (i) exercise Landlord's remedies
   under the default provisions of the lease; or (ii)Oi) terminate Tenant's access to the restricted or assigned
   parking areas by providing Tenant with not less than 5 days written notice of Landlord's intent to terminate
   Tenant's access. If Landlord terminates Tenant's access to the parking areas under this paragraph.
                                                                                                   paragraph, the
   parking areas will be deemed to be released by Tenant for all purposes and Landlord may assign or lease
   the parking areas to others.

H. Special Provisions:
     1.                              first~come fi~st-serve
           Parking is currently on a first-come first-serve basis.

     2.    Employees of Landlord and Tenant are requested to park in the employee parking
           lot across Anita street from the building.

     3.    Landlord reserves the right to establish parking rules to accommodate I,andlord
                                                                                 Landlord
           and Tenant and their customers and guests if the current first-come first-serve
           method is not working as deemed by Landlord.




    NISALt;RPORAT~N
    NISAL ££)RPORAT~
Tenant
        .~....-?_L_.-..:-.
                           /         PROVIDIAN
                                              #. i
                                                BOLDINGS, INC.
                                     PROVIDIAN. HOLDINGS,
                .z ___-.:::..:d.~~e::6_.)i'd~:ndIOrdLdi~
                             ~6d:ay ~ ij~
                                _/ l
                                   ,,,dlo",
                                                          INC .

                                                           Lt£v7!d<.~
                                                                      ~
By
By_ _//_ _
                                                  Dal4
                                                  Oat'           'f                                         Date
                                                                                                      '2/ Z6/£/J
                                                                                                      L/Z6/Df
Tenant                                                    landlord
                                                          Landlord
By____________________________________                    By
                                                          By__________________________________
                                                            _ _ _ _ _ _ _ _ _ _ _ _ _ _~~      _
By_ _ _ _ _ _ _ _ _ _ _ _ _ _~_
                                                  Date                                                       Date

(TAR-21 07) 5-26-06
(TAR-2107)                                                                                             Page 2of2
                                                                                                            2 of2




                                                                                                    AR 000065
                            TEXAS ASSOCIATION    REALTORS'
                                                                     ~~
                                  AsSOCIATION OF REALTORS"
                     COMMERCIAL LANDLORD'S RULES AND REGULATIONS
                                                              M~MB€RSOF
                     USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS     OF THE TEXAS ASSOCIATION OF REALTORSe
                                                                                                     REJlLTORS® IS NOT AIJlHORIZED.
                                                                                                                       AUTHORIZEO.
                                                        err."".
                                                      OT."" ......... _ _ til
                                                              AssocIatIOn     REALTORS&>, inc.
                                                                          of REALTORS®,        2GOII
                                                                                          lAC. 200G




 REGARDING THE COMMERCIAL LEASE CONCERNING THE LEASED PREMISES AT _ _ _ _ _
                                                                          ___
        2918 San Jacinto Street. Houston, Texas,
                                          Texas. Suite 200


 NOTICE: These rules and regulations are adopted to maintain and enhance the safety and appearance of the
 Property. From time to time Landlord, at its discretion, may amend these rules and regulations for the
 purposes for which they were adopted. Under the above-referenced
                                                        above.-referenced lease, Tenant agrees to comply with
 these rules and regulations as they may be amended. Exceptions or waivers must be authorized by Landlord
 in writing. "Property" means the building or complex in which the leased premises are located, inclusive of any
 common areas, drives, parking areas, and walks.


 A. Goods, merchandise, equipment, or any personal property may not be stored on the Property, except for
    inventory within the leased premises necessary for Tenanfs
                                                       Tenant's normal business operations.

 B.
 8. Food is not permitted on the Property, except as inventory for sale and for a small amount of food for
    Tenant's personal consumption.

 c. Other than those provided by Landlord or specifically authorized by Landlord, no vending machines are
 C.
    permitted on the Property.

D. The Property may not be used for lodging or sleeping quarters in any manner.

E. Unless authorized by law or the lease, no animals may be brought or kept on the Property.

F. No obstruction or interference that impedes use of the common areas, walks, drives, loading areas, parking
   areas, corridors, hallways, vestibules, and stairs is permitted on the Property.

G. Persons parking on the Property must comply with all posted signs and directions regulating the parking
   areas.

H. No flammable, toxic, noxious, or hazardous materials may be kept on'the
                                                                         on the Property except for over-the-
   counter cleaning materials kept in enclosed storage closets or cabinets.

I.   Tenants moving in or out of the Property must use only the service entrances and service elevators during
     the move. All moves must be made at times that do not cause inconvenience in the normal use of the
     Property.

J. Deliveries and shipping of goods and merchandise in or out of the Property must be made only through the
     service entrances, service elevators, loading docks, or other deSignated
                                                                   designated shipping and receiving areas.
     Shipments and deliveries must be made at times that do not cause inconvenience to tenants or patrons on
     the Property.

K. Leased premises must be kept clean and free of debris.                                 Trash must be deposited into appropriate
   receptacles.


(TAR-210B) 5-26-06
(TAR-2108) 5-26.06       Initialed for Identification by Tenant:   K--. LardIard:Q__
                                                                   B-_,               and Landlord:(@?_ _                             Page 1 of2




                                                                                                                                      AR 000066
  landlord's Rules and Regulations concerning _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

  L. Repair requests must be submitted to Landlord in writing in compliance with the lease.

  M. No modification to the Property and leased premises may be made unless authorized by Landlord, in
     writing, or permitted by the lease.

  N. No illegal or offensive activity is permitted on the Property nor is any activity that constitutes a nuisance or
     interferes with the rights of other tenants.

  O. Unless specifically authorized by Landlord, no solicitation or business operations are permitted in the
     common areas.

  P. Other:




(TAR-2108)
(TAR-21 08) 5-26-06   Initialed for Identification by Tenant   ~
                                                               _ _•. and Landlo",
                                                                     "d L"dlo""     ~   __              Page 20f2
                                                                                                             2 of 2




                                                                                                       AR 000067
                                                                           ~..,
                                                                           ~~
                                                                   REALTORS"
                                              TEXAS ASSOCIATION OF REALTORS"
                                                                            ~
                                              COMMERCIAL LEASE GUARANTY
                        USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS®
                                                                                                        REAlTOR&!lO IS NOT AUTHORIZED.
                                                                                                                           AUTl-f()RIZED.
                                                         or••••
                                                         ItlTex n Association
                                                                  _         .. Of
                                                                               of REAl.TORs., Inc.
                                                                                  R£ALTORS®,  Inc. 2006
                                                                                                   ZOO8




 GUARANTY TO COMMERCIAL LEASE CONCERNING THE LEASED PREMISES AT _ _ _-;===_
                                                                     _ _ __
 -"2~9~1~8~S~a~n~J~a~c~i~n~t~o-"S~t~r~ee~t~,~H~o~u~s~t~o~n~,~T~e~x~a~s~.-"s~u~i~t~e~2~Q~Q"-__________________~~~bebNeen
 ~2~9~1~8~S~a~n~J2a~c~illn~tO~Set~r~e~e~t~,~H~o~u~s~t~o~nw,~T~e~x~a~s~,~Su~it~e~2~O~O~                       ~--~betHeen
                  _____________________________________________(Landlord)
 ~P~r~o~y~i~d~i~a~n~H~o~l~dAilln~g£s.!~In~c~.
    Proyidian Holdings « Inc.                                  (Landlord) and
                                                                          and
 _
 ____
    ____
       ____
          _ ____
               ____
                  __ _____ __ ____ ____ ___ ________ _______ _ (Tenant).

 A. In consideration for Landlord leasing the leased premises to Tenant, the undersigned Guarantors
     guarantee Tenant's performance under the above-referenced lease.

 B. If Tenant fails to timely make any payment under the lease, Guarantors will promptly make such payment
    to Landlord at the place of payment specified in the lease. Guarantor is also responsible for any property
    damage to the leased premises or Property (as defined in the lease) for which Tenant is responsible under
    the lease. If Tenant breaches the lease, Guarantor will:
                                                          will; (i) cure the breach as may be required of Tenant
    by the lease; or (ii) compensate Landlord for Landlord's loss resulting from the breach.

                                                                                                    amendment.
 C. Guarantors guarantee Tenant's obligations under the lease regardless of any modification, amendment,
    renewal, extension, or breach of the lease. Guarantors waive any rights to notices of acceptance,
    modification, amendment, extension, or breach of the lease. All Guarantors are jointly and severally liable
    for all provisions of this guaranty. Filing for bankruptcy by Tenant will not diminish Guarantors
                                                                                           GUarantors obligations
    under this guaranty.

 D. The laws of the State of Texas govern the interpretation, validity, performance, and enforcement of this
    guaranty. Any person who is a prevailing party in any legal proceeding brought under or related to this
    guaranty is entitled to recover attorney's fees from the nonprevailing party.

 E. Guarantors authorize Landlord to obtain a copy of any consumer or credit report of Guarantors from any
    consumer reporting agency and to verify relevant information related to Guarantors' creditworthiness from
    other persons such as banks, creditors, employers, existing and previous landlords, and other persons.
F. Special Provisions;
           Provisions:




Guarantor's Signature
                                                            ~(¢-1p101
                                                                    Date            Guarantor's Signature                                               Date

Brett L. Garner
Guarantor's Name Printed                                                           Guarantor's Name Printed


Guarantor's Address                                                                Guarantor's Address

Phone                                                SS#orTaxID#                   Phone                                                    SS#orTaxID#
                                                                                                                                            SS # or Tax 10 #

(TAR-2109) 5-26-06
                                                                                                                                                 Page 1 of 1




                                                                                                                                               AR 000068
      RIGHT OF FIRST REFUSAL TO PURCHASE ADDENDUM

A.   Provided that both at the date of exercising the right of first refusal to
     purchase set out below and at the date of closing of the agreement of purchase
     and sale constituted by the exercise of soch  such right, T   eoant bas duly and
                                                                 Tenant
     punctually performed each and every of its obligations under·
     punctua1ly                                                    under the Lease and
     has not made an assignment for                                       oot taken the
                                    fOT the benefit of creditors and bas not
     benefit of any statute in force for fur bankrupt or insolvent debtors and if a
     receiving order has
                       bas not been made against the Tenant, and if no receiver or
                            has taken control of the assets or business of the Tenant
     other similar person bas
     or a substantial          thereo~ and if the Tenant
          sobstantial portion thereo(             T enan! bas not assigned the lease or
     soblet                                                     sobstantial part of the
     sublet or parted or shared possession of all or any substantial                 tbe
     premises, Tenant shall have a right of first refusal to purchase the Building
     including the premises in accordance with the following procedure. If at any
                       tenn or extended term of the lease Landlord receives a bona
     time during the term
     fide arm~s
          arm's length offer to purchase the Building (whether alone or together
                                                                               together-
              parking lot tract; but not the patking
     with the parlOng                        parlring lot tract alone), which Landlord
     is willing to accept ("Third Party Offer") then Landlord shall give Tenant
                      ("Landlord'. Notice") of receipt of such
     written notice ("Landlord's                               soch Third Party Offer
     accompanied by a 1ruetrue copy of same. Tenant shall thereupon have the right
     either:

     L to elect to purchase the Building (together with the patking
                                                               parking lot tract if
       included in the Third Party Offer in addition to the Building) for the
       purchase price~
                 price, with the deposit and upon all of the exact other terms
                                                                         tenus and
       conditions contained in the Third Party Offer. Such right must be
       exercised by Tenant within ten (10) days after receipt from Landlord of
       Landlord's Notice and copyeopy of the Third Party Offer, by delivery to
       Landlord of written notice (the "First Right Acceptance
                                                      Aceeptance Notice") electing
       to purchase the Building on the same such
                                               soch terms and conditions, together
       with a deposit in the amount set out in the Third Party Offer. If
                                                                      IfTenan!
                                                                         Tenant so
       elects to purchase the premises, such election shall constitute a binding
       agreement of purchase and sale between Landlord as vendor and Tenant as
                  antomatically substituting
       purchaser automatically   sobstinrting Tenant in place of the Third Party
                                                            shaD be completed in
       Offeror and the transaction of purchase and sale shall
                                            conditions~ or
       accordance with the said terms and conditions;

     2. to elect not to purchase the Building by not responding within ten (10)
        days of receipt of Landlord's Notice, in which event Tenant's rights to
        purchase expire and Landlord may proceed without Tenant under the   tbe
        Third Party Offer.

B.   Provided however, that this right of
                                       offirst
                                           first refusal to purchase shall not apply to
                                     parlOng lot tract by Landlord to any person,
     any sale of the Building and parking
     corporation or legal entity which is affiliated with, controlled by, or otherwise
            arm'. length with, Landlord, Khyati Undavia, her husband,
     oot at arm's
     not                                                           hnshand, children,




                                                                                  AR 000069
       futhe<, mother,
       father.  mothe.-, former spouse or any other family member, provided that any
       such purchaser sbaD
                         shall be bound by the provisions of this right of first
                                                                             lim refusal in
       respect of any subsequent Third Party Offer received by it; and provided
       fiuther, that this right of first
       further.                                   shall not apply to any deed in lieu of
                                    lim refusal sbaJJ
       foreclosw-e or any foreclosure proceedings
       foreclosure                        proceedinwt or trustees' deeds or other action
       by any creditor of Landlord; and provided fiuther  further that, this right of first
       refusal shall not apply in the event that the owner of the Building or parking
       lot tract is acting pursuant        court order or judgment_
                            pursuant: to a comt             judgment. This right of first
       refusal to porcbase
                  purchase sball
                             shall not apply to the parking lot tract alone.

  C.   If Tenant fails to exercise the afuresaid
                                        aforesaid first right of refusal within the time
       and in the manner as set out above then Landlord shall be    he entitled to accept
                                                                                   accept:
                        OtTer and complete the sale of the premises porsuant
       the Third Party 0Irer                                            pursuant thereto,
                                                                                  tbereto,
       provided that if such sale is not completed, Tenant's first right of refusal sball
                     ifsuch                                                          shall
       continue to apply in respect of any subsequent Third Party Offer in              to
       accordance with the preceding provisions of this right of first refusal
                                                                        refusal.

  D.   The right offirst refusal is a right of Tenant only during the time oftbe
                                                                            of the lease
              not in default,
       while oot     default,. bankruptcy or receivership and is not severable :from
                                                                               from the
       lease and it is not assignable.

NISAL CORPORATION                                 PROVIDIAN HOLDING, INC.



                                                  By:




                                                                                     AR 000070
                                         . TEXAS ASSOCIATION OF
                                                                      ~~
                                                                      4~
                                                                      ~.
                                                             Of REALTORS'
                                                                REALTORS£
                                                                                         .


                                                 COMMERCIAL LEASE
                                                              M~M8ERS OF THE TEMS
                      USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS                             REA~TORS® IS NOT AUTHORIZED
                                                                             TEXAS ASSOCIATION OF R.EALTORS®       AUTHORIZED.
                                                       ©Texa.s Ao3""iallon
                                                       ©T""a.  Association of REAL  mRS®, Ine. 2006
                                                                              REAl..TORS®,lnc.2006


                                                            Table of Contents

 No. Paragraph Description                                      Pg.
                                                                e!l                No. Paragraph Description                              Pg.
                                                                                                                                          e!l
 1.     Parties                                   2                               22.        Holdover                                     10
 2.     Leased Premises                          2                                23.        Landlord's Lien && Security Interest         10
 3.    Term                                      2                                24.        Assignment and Subletting
                                                                                                              Subletting                  10
       A. Term                                                                    25.        Relocation                                   11
      's.
       B. Delay of Occupancy                                                      26.        Subordination                                11
 4.    Rent and Expenses                         3                                27,
                                                                                  27.        Estoppel Certificates                        11
       A. Base Monthly Rent                                                       28.        Casualty Loss                                11
       8.
       B. First Full Month's Rent                                                 29.        Condemnation                                 12
       C. Prorated Rent                                                           30.        Attorney's Fees                              12
       D. Additional Rent                                                         31.        Representations                              12
       E. Place of Payment                                                        32.        Brokers                                      12
       F... Method of Payment
       F                                                                          33.        Addenda                                      13
       G. Late Charges                                                            34.        Notices                                      13
       H. Returned Checks                                                         35.        Special Provisions                           13
5.     Security Deposit                          4                                36.        Agreement of the Patties
                                                                                                               Patties                    14
6.     Taxes                                     4
7.     UtiJities
       Utilities                                 4
8.     Insurance                                 5                                      ADDENDA &                          a~~I~}
                                                                                                & EXHIBITS {check all that aeel:tl
9.     Use and Hours
                 Hours                           5
10.    Legal Compliance                          6                                0Exhibit
11.    Signs                                     6                                0Exhibit.
                                                                                   Exhibit
12.    Access By Landlord                        7                                0Commercial Lease Addendum for Broker's Fee
13.    Move-In Condition
       Move'-In                                 77                                0CommerCial Lease Expense
                                                                                   Commercial       Exp'ense Reimbursement
14.    Move-Out Condition                        7                                  Addendum
15.    Maintenance and Repairs                   7                               0 Commercial Lease Addendum for Extension
       A. Cleaning                                                                  Option            .
       B. Conditions Caused by a Party                                           0 Commercial Lease Addendum for Percentage
      C. Repair & & Maintenance Responsibility                                      Rent
      D. Repair Persons                                                          0 Commercial Lease Parking Addendum
      E. HVAC Service Contract                                                   0 Commercia!
                                                                                   Commercial Landlord's Rules and Regulations
      F. Common Areas                                                            0 Commercial Lease Guaranty
      G. Notice of Repairs                                                       0 Commercial Lease RigHt
                                                                                                    Right of First Refusal
      H. Failure to Repair                                                          Addendum
16.   Alterations                               9                                0 Commercial Lease Addendum for Optional
17.   Liens                                    '9
                                                9                                   Space
18. liability
    Liability                                                  9                 0 Commercial Leasehold Construction Addendum
19. Indemnity                                                  9                 0
20. Default                                                    9                 0
21. Abandonment, Interruption of Utilities,
                        & Lockout
    Removal of Property &                                      10



(TAR-2101)
(TAR-21 01) 5-26-06        Initialed for Identification by Tenant _ _ ., _ _ , and Landlord: _ _ ., _ _                          Page 1 of 14




                                                                                                                                 AR 000071
                                                               EXHIBIT B
                                                                    ~~
                                                             REALTORS"
                                        TEXAS ASSOCIATION OF REALTORS«·
                                              COMMERCIAL LEASE
                     USE OF THIS FORM BY PERSONS WHO ARE      MEMa~RS OF THE TEXAS ASSOCIATION OF REALTORS®
                                                     AilE NOT MEMBERS                              REALTORS®IS      AIJTHORIZED.
                                                                                                            IS NOT .AUTHORIZED.
                                                       ©Texas ~&<>CI~llon of REAL
                                                       ©T@.u Association     REAl.TOR$II!I,lno.
                                                                                  TORS®, Inc. 2006



1. PARTIES: The parties to this lease are:

         Tenant
         Tenant:        Sterling Practice Management LLC
                       __________________________________________                                                   ~   ____________;and
                       ------------------------------------------; and
         Landlord:       Providian Holdings,
                                   Holdings Inc.           f




2. LEASED PREMISES:

    A. Landlord leases to Tenant the following described real property, known as the "·leased
                                                                                     "leased premises," along
       with all its improvements (Check only one box):

    aa
    ~    (1 ) Multiple-Tenant Property: Suite or Unit Number
         (1)                                                                                     ;-:-:::-;-:-,.,.---,c:c:-:
                                                                        containing approximately __   -:-_ _--:-
              square feet of rentable area in Memorial Compounding Pharmacy         Bun di nq
                                                                        Pharrnacy13uilding       (project name)
              at 2918 San Jacinto Streetstreet
              (address) in Houston                  77024      (city), Hard s
                                                                       Harris                               (county),
              Texas, which is legally described on attached Exhibit A                               or as follows:
               The premises are being leased "AS IS". Tenant has inspected the premises
               and accepts the premises "AS IS".


    o    (2) Single-Tenant Property;
                             Property: The real property at:
                                                         at __________
                                                             _ _ _ _ _ _ _ _ _-'-__________
                                                                               _ _ _ _ _-===~            _
             _________ _____________________________________ (address) in
                               ~
                                                                                                        in                         (addres~



             _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (city),      (city), __________.-., (county),
                                                                                   (county), Texas,
                                                                                             Texas, which
                                                                                                    which
                legally described on attached Exhibit __________________
             is legaJly                               _ _ _ _ _ _ _ _ _ _ _ _ or Gis
                                                                                 as follows: _____
                                                                                             _ _ _ __




    B. If Paragraph 2A(1) applies:
       (1) "Property" means the building or complex in which the leased premises are located, inclusive of any
           common areas, drives, parking areas, and walks; and
       (2) the parties agree that the rentable area of the leased premises may not equal the actual or useable
           area within the leased premises and may include an allocation of common areas in the Property.

3. TERM:

    A. Term: The term of this lease is ___77___
                                            _ _ months and __  0__ days, commencing on:
                                                           _.::0

             _J_U_n_e_l_,'-2_0'-O'-9_ _ _ _ _ _ _ _ _ (Commencement Date) and ending on
             _J_u_n_e-.-.;.1_,_2_0_0_9

             _J_a_n_u_a_r_y_3 __1_,_2_0_1_0_ _ _ _ _ _ _ (Expiration Date).
             _J_a_n_u_a_r-'y'-3_1-',_2_0_1_0



(TAR·2101) 5-26-06
(TAR-2101)                Initialed for Identification by Tenant _ _, _ _ , and Landlord: _ _, _ _                                 Page 2 of 14




                                                                                                                                   AR 000072
            Lease conceming:. __
 Commercial lease              ____
                      conceming:.~____
                                     ____
                                        ____
                                           _ _
                                             _ __________
                                                        ____
                                                           ____
                                                              ___----,....
                                                                   __      __
                                                                            ____
                                                                               __ _ _
                                                                                    _____



     8. Delay
     B.  Deiay of Occupancy: If Tenant is unable to occupy the leased premises on the Commencement Date
        because of construction on the leased premises to be completed by Landlord that is not substantially
        complete or a prior tenant's holding over of the leased premises, Landlord w'ill
                                                                                      will not be liable to Tenant
        for such delay and this lease will remain enforceable. In the event of such a delay, the Commencement
        Date will automatically be extended to the date Tenant is able to occupy the Property and the
        Expiration Date will also be extended by a like number of days, so that the length of this lease remains
        unchanged. If Tenant is unable to occupy the leased premises after the 90th             th day after the
        Commencement Date because of construction on the leased premises to be completed by Landlord
        that is not substantially complete or a prior tenant's holding over of the leased premises, Tenant may
        terminate this lease by giving written notice to Landlord before the leased premises become available
        to be occupied by Tenant and Landlord will refund to Tenant any amounts paid to Landlord by Tenant.
        This Paragraph 383B does not apply
                                     appiy to any delay                           c!eaning or repairs.
                                                   deiay in occupancy caused by cleaning      repairs,

     C. Unless the parties agree otherwise, Tenant is responsible for obtaining a certificate of occupancy for
        the leased premises if required by a governmental body.

4. RENT AND EXPENSES:

     A. Base Monthly Rent:    On or before the first day of each month during this lease, Tenant will pay
         Landlord base monthly rent as described on attached Exhibit             > - - or as follows:



             from             l[ 2009
                        June 1,                         to June 30[
                                                                30, 2009                       $0.00
             from             l[ 2009
                        July: 1,
                        July                            to January 31
                                                                    31[! 2010                 $$22 ,000 .OO/month
                                                                                                   [OOO.OO/month
             from                                       to                                    $
             from                                       to                                    $
             from                                       to                                    $
     B. First Full Month's Rent: The first full base monthly rent is due on or before July 1,
                                                                                           I, 2009


    C. Prorated Rent: If the Commencement Date is on a day other than the first day of a month, Tenant will
       pay Landlord as prorated rent, an amount equal to the base monthly rent multiplied by the following
       fraction: the number of days from the Commencement Date to the first day of the following month
       divided by the number of days in the month in which this lease commences. The prorated rent is due
       on or before the Commencement Date.

    D. Additional Rent: In addition to the base monthly rent and prorated rent, Tenant will pay Landlord all
       other amounts, as provided by the attached (Check aI/
                                                         all that apply.):
       o (1) Commercial Expense Reimbursement Addendum
       o (2) Commercial Percentage Rent Addendum
       o (3) Commercial Parking Addendum
          (4)~~~~~~~~~~~~~~~~~~~~~~~~~~~
        o (4}~~--~--~~--~~--~~--~----~~--~~--------~
        All amounts payable under the applicable addenda are deemed to be "rent"
                                                                          "rent"for
                                                                                 for the purposes of this
        lease.

    E. Place of Payment: Tenant will remit allaU amounts due Landlord under this lease to the following person
       at the place stated or to such other person or place as Landlord may later designate
                                                                                  deSignate in writing:

                 Name: Providian           Holdings, . Inc.
                 Address: 2918 San         Jacinto Street, Suite 100
                          Houston,
                          Houston [        Texas 77004

    F. Method of Payment:
                  Payment Tenant must pay all rent timely without demand, deduction, or offset, except as
       permitted by law or this lease. If Tenant fails to timely pay any amounts due under this lease or if any
       check of Tenant is returned to Landlord by the institution on which it was drawn, Landlord after
(TAR-2101 ) 5·26·06
(TAR·2101)  5-26-06         Initialed for Identification by Tenant-,
                                                            Tenant _ _, _ _ , and landlord:
                                                                                  Landlord: _ _,. _ _         Page 3 of 14




                                                                                                              AR 000073
 Commercial lease
            Lease conceming: _ _
                               ____
                                  ____
                                     _ ______
                                            ____
                                               ____ _
                                                    ____
                                                       ____
                                                          _ _
                                                            _ ____
                                                                 ____
                                                                    ____
                                                                       __ __
                                                                         __ __
                                                                             _ _


         providing written notice to Tenant may require Tenant to pay subsequent amounts
                                                                                       arrtounts that become due
         under this lease in certified funds. This paragraph does not limit landlord
                                                                            Landlord from seeking other remedies
         under this lease for Tenant's failure to make timely payments with good funds.

        Late Charges: If Landlord
     G. late              landlord does not actually receive a rent payment at the designated place of payment
        within 5 days after the date it is due, Tenant will pay Landlord
                                                                landlord a late charge equal to 5% of the amount
        due. In this paragraph, the mailbox is not the agent for receipt for Landlord.
                                                                              landlord. The late charge is a cost
        associated with the collection of rent and landlord's
                                                       Landlord's acceptance of a late charge does not waive
        landlord's
        Landlord's right to exercise remedies under Paragraph 20.

     H. Returned Checks: Tenant will pay $ 25.00 (not to exceed $25) for each check Tenant tenders to
        Landlord
        landlord which is returned by the institution on which it is drawn for any reason, plus any late charges
              Landlord receives payment.
        until landlord

 5. SECURITY DEPOSIT:
     A. Upon execution of
                       ofthis                wilt pay $~
                          this lease, Tenant will     $'---_
                                                           ____
                                                              ____
                                                                 _ __
                                                                    ____
                                                                       __   to landlord
                                                                         __ 10 Landlord as a security
        deposit.

     B. Landlord
        landlord may apply the security deposit to any amounts owed by Tenant under this lease. If landlord
                                                                                                       Landlord
        applies any part of the security deposit during any time this lease is in effect to amounts owed by
        Tenant, Tenant must, within 10 days after receipt of notice from landlord,
                                                                         Landlord, restore the security deposit
        to the amount stated.

     c. Within 60 days after Tenant surrenders the leased premises and provides l~ndlord
     C.                                                                               Landlord written notice of
        Tenant's forwarding address, Landlord
                                     landlord will refund the security deposit less any amounts applied toward
        amounts owed by Tenant or other charges authorized by this lease.

6, TAXES: Unless otherwise agreed by the parties, landlord
6.                                                Landlord will pay all real property ad valorem taxes
     assessed against the leased premises.

7. UTILITIES:
    A. The party designated below will pay for the following utility charges to the leased premises and any
       connection charges for the utilities. (Check all that apply.)
                                                                  N/A     Landlord
                                                                          landlord       Tenant
        (1) Water                                                   0    o      121
                                                                                III        0           o
        (2) Sewer                                                   0CJ         lit
                                                                                III        0           o
        (3) Electric                                                CJ
                                                                    0           III
                                                                                QJ         0           o
        (4) Gas For HVAC only                                       0
                                                                    CJ       '[21
                                                                                I.!I       0           o
        (5) Telephone                                              0CJ         0CJ         at
                                                                                           III
                                q.nclud.:!-ng ~ommon
        (6) Trash, Cleaning (including
                                 if desired)
                                                common area        CJ
                                                                   0           o
                                                                               0           at
                                                                                           III
        (7)
        (7) Cable
            Cable                ~f  des~red)                      CJ
                                                                   0           0         o III
                                                                                           GI
        (8)
        (8) _ _ _ _ _ _ _ _ _ _ __                                        o0             o
                                                                                         0             o
                                                                                                       0
         (9) All other utilities                                         o0              o
                                                                                         0             III
                                                                                                       GI

    B. The party responsible for the charges under Paragraph 7A      7A will pay the charges directly to the utility
       service provider. The responsible party may select the utility service provider, except that if Tenant
       selects the provider, any access or alterations to the Property or leased premises necessary for the
       utifities may be made only with landlord's
       utilities                         Landlord's prior consent, which Landlord
                                                                         landlord will not unreasonably withhold.
       If Landlord
          landlord incurs any liability for utility or connection charges for which Tenant is responsible to pay
       and landlord
              Landlord pays such amount, Tenant will immediately upon written notice from Landlord reimburse
       landlord such amount.
       Landlord

(TAR-21 01) 5-26-06
(TAR-2101)                Initialed for Identification by Tenant_ _ ,• _ _ , and Landlord: _ _,. _ _                of 14
                                                                                                             Page 4 of14




                                                                                                             AR 000074
 Commercial Lease conceming: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __


     C. Notice: Tenant should determine if all necessary utilities are available to the leased premises
     C
        and are adequate for Tenant's intended use.
     O.
     D. After-Hours HVAC Charges: "HVAC services" mean heating, ventilating, and air conditioning of the
        leased premises. (Check one box only.)

     1:81 (1) Landlord is obligated to provide the HVAC
     1»                                               HVAC services to the leased premises only during the
              Property's operating hours specified under Paragraph 9C.

     I» (2) Landlord will provide the HVAC services to the leased premises during
                                                                           durIng the operating hours
             specified under Paragraph 9C for no additional charge and will, at Tenant's request, provide HVAC
             services to the leased premises during other hours for an additional charge of $ 20.00         per
             hour. Tenant will pay Landlord the charges under this paragraph immediately upon receipt of
             Landlord's invoice. Hourly charges are charged on a half-hour basis. Any partial hour will be
             rounded up to the next half hour. Tenant will comply with Landlord's procedures to make a request
             to provide the additional HVAC services under this paragraph.

     o   (3) Tenant will
                    wilt pay for the HVAC services under this lease.

 8. INSURANCE:

     A. During all times this lease is in effect, Tenant must, at Tenant's expense, maintain in full force and
        effect from an insurer authorized to operate in Texas:                  $2 ,000,000.00
                                                                                $2,000   1000.00
        (1) public liabifity
                   liability insurance in an amount not less than $1,000,000.00.6n
                                                                  $1,OOO,000.00.6n an oCcurrence basis naming
            Landlord as an additional insured; and
        (2) personal property damage insurance for Tenant's business operations and contents on the leased
            premises in an amount sufficient to replace such contents after a casualty loss.

     B. Before the Commencement Date, Tenant must provide Landlord with a copy of insurance certificates
        evidencing the required coverage. If the insurance coverage is renewed or cMnges
                                                                                     changes in any manner or
                                                                                     days after the renewal or
        degree at any time this lease is in effect, Tenant must, not later than 10 daYs
        change, provide Landlord a copy of an insurance certificate evidencing the renewal or change.

     C. If Tenant fails to maintain the required insurance in full force and effect at all
                                                                                       ail times this lease is in
        effect, Landlord may:
                                                  landlord the same coverage as the required insurance and
        (1) purchase insurance that will provide Landlord
            Tenant must immediately reimburse Landlord for such expense; or
        (2) exercise Landlord's remedies under Paragraph 20.

    D. Unless the parties agree otherwise, Landlord will maintain in full force and effect insurance for:
                                                                                                     for; (1) fire
       and extended coverage in an amount to cover the reasonable replacement cost of the improvements of
       the Property; and (2) any public liability insurance in an amount that Landlord determines reasonable
       and appropriate.

    E. If there is an increase in Landlord's insurance premiums for the leased premises or Property or its
                                                                teased premises, or any improvements made by
       contents that is caused by Tenant, Tenant's use of the leased
       or for Tenant, Tenant will, for each year this lease is in effect, pay Landlord the increase immediately
       after Landlord notifies Tenant of the increase. Any charge to Tenant under this Paragraph BE   8E wilt
                                                                                                         will be
       equal to the actual amount of the increase in Landlord's
                                                     landlord's insurance premium.

9. USE AND HOURS:

    A. Tenant may use the leased premises for the following purpose and no other: general office
                                                                                          off ice use




(TAR-21 01) 5-26-06
(TAR·2101)              Initialed for Identification by Tenant: _ _ ., _ _ , and Landlord: _ _ ., _ _
                        Initraled                                                                       Page 5 of 14




                                                                                                        AR 000075
 Commercial Lease conceming:. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _-<-_ _ _ _ _ _ _ __
 Commerda! lease concerning:~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

     B, Unless othePNise
     B.        otherwise specified in this lease, Tenant will operate and conduct itsits, business in the leased
        premises during business hours that are typical of the industry in which Tenant represents it operates.

     C. The Property maintains operating hours of (specify hours, days of week, and if inclusive or exclusive of
        weekends and holidays): 8;30am
                                 8:30am - 7:00pm,
                                            7 ;OOpm, Monday thru Friday exclusive of
                                       MemQrial Day,
        holidays which includes Memorial          Day. Independence Day.  pay. Labor Day.Day, Thanksgjvi
                                                                                                Tbanksgjyjng ng
        Day. Christmas Day and New Year's Day. Also Saturday 8:30am
        Pay.                                                                 8:30am..,..2:00pm             hol;i.days.
                                                                                        2;OOpm except holidays.

 10. LEGAL COMPLIANCE:

     A. Tenant may not use or permit any part of the leased premises or the Property to :be    'be used for:
        (1) any activity which is a nuisance or is offensive,
                                                   offenSive, noisy, or dangerous;
        (2) any activity that interferes with any other tenant's normal business operations or Landlord's    landlord's
             management of the Property;
        (3) any activity that violates any applicable law, regulation, zoning ordinance, restrictive covenant,
            governmental order, owners' association rules, tenants' association rules,     rul~s, Landlord's
                                                                                                   landlord's rules or
            regulations, or this lease;
        (4) any hazardous activity that would require any insurance premium on the Property or leased
            premises to increase or that would void any such insurance;
        (5) any activity that violates any applicable federal, state, or local law, including but not limited to those
            laws related to air quality, water quality, hazardous materials, wastewater, waste disposal, air
            emissions, or other environmental matters;
        (6) the permanent or temporary storage of any hazardous material; or
        (7) ____________________________________________________
            __________________________________________                                       ~  _____________       ~




    B. "Hazardous material" means any pollutant, toxic substance, hazardous waste, hazardous material,
       hazardous substance, solvent, or oil as defined by any federal, state, or loCal    loca! environmental law,
       regulation, ordinance, or rule existing as of the date of this lease or later enacted.

    C. Landlord
       landlord does not represent or warrant that the leased premises or Property conform to applicable
       restrictions, zoning ordinances,
                            ordinances. setback lines,
                                                tines, parking requirements, impervious ground cover ratio
       requirements, and other matters that may relate to Tenant's intended use. Tenant must satisfy itself
                                                                                     ~nvestigating all matters
       that the leased premises may be used as Tenant intends by independently investigating
       related to the use of the leased premises or Property. Tenant agrees that it is not relying on any
       warranty or representation made by Landlord,
                                            landlord, Landlord's
                                                       landlord's agent. or any broker concerning the use of
       the leased premises or Property.

11. SIGNS:

    A. Tenant may not post or paint any signs at, on, or about the leased premises or Property without
       Landlord's
       landlord's written consent. Landlord
                                      landlord may remove any unauthorized sign, and
                                                                                 aOd Tenant will promptly
       reimburse Landlord
                  landlord for its cost to remove any unauthorized sign.

    8.
    B. Any authorized sign must comply with all    laws, restrictions, zoning ordinances,
                                               aI/laws,                       ordinancesj and any governmental
                                                                          landlord may temporarily remove any
       order relating to signs on the leased premises or Property. Landlord
       authorized sign to complete repairs or alterations to the leased premises or the Property.

    C. By providing written notice to Tenant before this lease ends, Landlord
                                                                     landlord may require Tenant, upon move-
       out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all
       signs that were placed on the Property or leased premises by or at the request of Tenant. Any signs
       that Landlord                                                               become the property of the
            landlord does not require Tenant to remove and that are fixtures, becotne
       landlord and must be surrendered to Landlord
       Landlord                              landlord at the time this lease ends.
(TAR·2101) 5-26·06
(TAR-2101) 5-26-06      Initialed for Identification by T
                                                        Tenant _ _, ~_,
                                                          enant:~~. _ _, and landlord'
                                                                             landlord: ~~.
                                                                                       _ _, _
                                                                                            ~__          Page 6 of 14
                                                                                                              Gof




                                                                                                          AR 000076
 Commercial lease
            Lease conceming: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~
                                                                        _ _ _ _ _ _ _ _ __

 12. ACCESS BY LANDLORD:

     A. During Tenant's normal business hours Landlord may enter the leased prel'nises
     A                                                                            premises for any reasonable
        purpose, including but not limited to purposes for repairs, maintenance, alterations, and showing the
        leased premises to prospective tenants or purchasers. Landlord may access the leased premises after
        Tenant's normal business hours if: (1) entry is made with Tenant's permission; or (2) entry is necessary
        to complete emergency repairs. Landlord will not unreasonably interfere with Tenant's business
        operations when accessing the leased premises.

     8.
     B. During the last  90       days of this lease, Landlord may place a "For Lease" or similarly worded sign in
        the leased premises.

 13. MOVE-IN
     MOVE.IN CONDITION: Tenant has inspected the leased premises and accepts it in its present (as-is)
     condition unless expressly noted otherwise in this lease. Landlord and any agent have made no express
     or implied warranties as to the condition or permitted use of the leased premises or Property.

 14. MOVE-OUT CONDITION AND FORFEITURE OF TENANT"S
                                          TENANT'S PERSONAL PROPERTY:
                                                            PROPE:RTY:

     A. At the time this lease ends, Tenant will surrender the leased premises in the same condition as when
        received, except for normal wear and tear. Tenant will leave the leased premises in a clean condition
        free of all trash, debris, personal property, hazardous materials, and environmental contaminants.

     8.
     B. If Tenant leaves any personal property in the leased premises after Tenant surrenders possession of
        the leased premises, Landlord may: (1) require Tenant, at Tenant's expense, to remove the personal
        property by providing written notice to Tenant; or (2) retain such personal property as forfeited property
        to Landlord.

    C. "Surrender" means vacating the leased premises and returning all keys and access devices to
       Landlord. "Nonnal
                  "Normal wear and tear" means deterioration that occurs without negligence, carelessness,
       accident, or abuse.

                                                                                  re~uire Tenant, upon move-
    D. By providing written notice to Tenant before this lease ends, Landlord may require
       out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all
       fixtures that were placed on the Property or leased premises by or at the request of Tenant. Any
       fixtures that Landlord does not require Tenant to remove become the property of the Landlord and must
       be surrendered to Landlord at the time this lease ends.

15. MAINTENANCE AND REPAIRS:

    A. Cleaning: Tenant must keep the leased premises clean and sanitary and promptly dispose of all
       garbage in appropriate receptacles. CI   0 Landlord CI
                                                           0 Tenant will provide, at its expense, janitorial
       services to the leased premises that are customary and ordinary for the property type. Tenant will
       maintain any grease trap on the Property which Tenant uses, including but  bot not limited to periodic
       emptying and cleaning, as well as making any modification to the grease trap that may be necessary to
       comoly;
       com DIy, with any aoolicable
                         al2Dlicable law. Tenant $hall be respoI].sible
                                                           respol)sible for all a1l cle<il-ning
                                                                                     cle9-ning and jjanitorial
                                                                                                       ani torial
        whorRb~l)ltdt~e
        worR            prem~ses.
               lQ dt~e prernlses.   Landlord lS not responslble for any cleanlng of any part of
                                                                                             at
        t e ~ull
        the    U~   lng   or proper~y.
                     ~ng .or property.
    B. Repairs of Conditions CauseCfby
                              Causecrby a Party: Each party must promptly repair a condition in need of repair
       that is caused, either intentionally or negligently, by that party or that party's guests, patrons, invitees,
       contractors or permitted subtenants.
                                 SUbtenants.

    C. Repair and Maintenance Responsibility: Except as otherwise provided by this Paragraph 15, the party
       designated
       deSignated below, at its expense, is responsible to maintain and repair the following specified items in
       the leased premises (if any). The specified items must be maintained in clean and good operable
       condition. If a governmental regulation or order requires a modification to any of the specified items, the
       party designated to maintain the item must complete and pay the expense of the modification. The

(TAR-2101) 5-26-06
           5-26-06      Initialed for Identification by Tenant _ _ , _ _ , and landlord:
                                                                               Landlord: _ _ ., _ _    Page 7 of 14



                                                                                                       AR 000077
 Commercial Lease concerning: _ _
                                ____
                                   ____
                                      ____
                                         ____
                                            _____________
                                                        ____
                                                           ____
                                                              ____
                                                                 ____
                                                                    __ _ _ _
                                                                           __ __
                                                                             ~--




         specified items include and relate only to real property in the leased premises. Tenant   r
                                                                                           enant is responsible for
         the repair and maintenance of its personal property. (Check afl all that apply.)

                                                                                                       Landlord      Tenant
         (1)     Foundation, exterior walts,
                                      walls, roof, and other structural components                        III
                                                                                                          (5)           o
         (2)    Glass and windows                                                                         o            Kl
                                                                                                                       KI
         (3)     Fire protection equipment and fire sprinkler systems                                     o             o
         (4)     Exterior & overhead doors, including closure devices, molding,                           o             o
                locks, and hardware
         (5)    Grounds maintenance, including landscaping and irrigation                                 o            o
                systems
         (6)    Interior doors, including closure devices, frames, molding, locks,                o       o
                and hardware
         (7)    Parking areas and walks                                                                  o             o
         (8)    Plumbing systems, drainage systems, electrical systems, and                              o             o
                mechanical systems, except systems or items specifically
                designated othelWise
                             otherwise
         (9)    Ballast and lamp replacement                                                      o
                                                                                                  tJ     o             Xl
                                                                                                                       XJ
         (10)   Heating, Ventilation and Air Conditioning (HVAC) systems                          o
                                                                                                  Cl     III           o
         (11)   Signs and lighting:
                (a) Pylon                                                                                o             o
                (b) Facia                                                                                o             o
                (c) Monument                                                                             o             o
                (d) Door/Suite                                                                           o             o
         (12)   Extermination and pest control, excluding wood~destroyin9
                                                            wood-destroying insects                      o             o
         (13)   Fences and Gates                                                                         o             o
         (14)   Storage yards and storage buildings                                                      o             o
         (15)   Wood-destroying insect treatment and repairs                                             o             o
         (16)   Cranes and related systems                                                               o             o
         (17)                                                                                            o             o
         (18)                                                                                            o             o
         (19) All other items and systems                                                                o             o
    D. Repair Persons: Repairs must be completed by trained, qualified, and insured repair persons.

    E.
         o is [J
         [J     0 is not    required to maintain, at its expense, a regularly scheduled             ce and selVice
         contract for the HVAC system. The maintenance and serviservic             ust be purchased from a HVAC
         maintenance company that regularly provo               contracts to similar properties. If Tenant fails to
         maintain a required HVA         .     nce and service contract in effect at aU
                                               nee                                     ali times during this lease,
         Landlord              and charge Tenant the expense of such a maintenance and service contract or


    F. Common Areas: Landlord will maintain any common areas in the Property in a manner as Landlord
       determines to be in the best interest of the Property. Landlord will maintain any elevator and signs in
       the common area. Landlord may change the size, dimension, and location of any common areas,
       provided that such change does not materially impair Tenant's use and access to the leased premises.
                                                                         compliance with Landlord's rules and
       Tenant has the non-exclusive license to use the common areas in compliance
       restrictions. Tenant may not solicit any business in the common areas or interfere with any other
       person's right to use the common areas. This paragraph does not apply if Paragraph 2A(2) applies.


(TAR-2101) 5-26{J6
           5-26-06                                       Tenant _ _ , ~_,
                         Initialed for Identification by Tenant:~_.   _ _ , and Landlord: _ _, _ ' _
                                                                                          ~_.~_              Page 8 of 14




                                                                                                           AR 000078
                             _______________________________
 Commercial lease conceming: _________________________________ __

     G. Notice of Repairs: Tenant must promptly notify landlord
                                                           Landlord of any item that is in need of repair and that is
        Landlord's
        landlord's responsibility to repair. All requests for repairs to Landlord must be
                                                                                        be' in writing.

     H. Failure to Repair: Landlord must make a repair for which Landlord is responsible within a reasonable
           period of time after Tenant provides Landlord written notice of the needed repair. If Tenant fails to
           repair or maintain an item for which Tenant is responsible within 10 days after Landlord provides
           Tenant written notice of the needed repair or maintenance, Landlord
                                                                           landlord may: (1) repair or maintain the
           item, without liability for any damage or loss to Tenant, and Tenant must immediately reimburse
           Landlord for the cost to repair or maintain; or (2) exercise Landlord's remedies under Paragraph 20.

     ALTERATIONS;
 16. ALTERATIONS:

     A. Tenant may not alter, improve, or add to the Property or the leased premises without Landlord's written
                       landlord will not unreasonably withhold consent for the Tenant t6 make reasonable non~
           consent. Landlord                                                                             non-
           structural alterations, modifications, or improvements to the leased premises.

     B. Tenant may not alter any locks or any security devices on the Property or the leased premises without
        Landlord's consent. If Landlord authorizes the changing,
                                                        changing. addition, or rekeying of any locks or other
        security devices, Tenant must immediately deliver the new keys and access devices to Landlord.

     c.
     C.   If a governmental order requires alteration or modlfication
                                                         modification to the leased premises, the party obligated to
          maintain and repair the item to be modified or altered as designated in Paragraph 15 will, at its
          expense, modify or alter the item in compliance with the order and in compliance with Paragraphs 16A
          and 17. Tenant must obtain at its expense all permits required for any improvements.

    D. Any alterations, improvements.
                         improvements, fixtures or additions to the Property or leased premises installed by
       either party during the term of this lease will become Landlord's property and must be surrendered to
       Landlord at the time this lease ends, except for those fixtures Landlord requires
                                                                                   reQ.uires Tenant to remove
       under Paragraph 11 or 14 or if the parties agree otherwise in writing.

17. LIENS: Tenant may not do anything thai
                                      that will cause the title of the Property or
                                                                                01" leased premises to be
    encumbered in any way. If  [fTenant
                                 Tenant causes a lien to be filed against the Property or leased premises, Tenant
    will within 20 days after receipt of Landlord's demand: (1) pay the lien and have the lien released of record;
    or (2) take action to discharge the lien. Tenant will provide Landlord a copy of any release Tenant obtains
    pursuant to this paragraph.
                     paragraph .
                    Jl.t all times
                  . ~t                     .                       .                .                  .
18. LlABILlTY;.tJQ      ·!tle extent permitted by law.
    LlABILlTYi'!o··the·extenl'                    law, Landlord is IS NOT responsible to Tenant or Tenant's employees,
                                                                                                                   employees.
    patrons,
    patrons. guests. or invitees for any damages,
                                              damages. injuries,
                                                          injuries. or losses to person or property caused by:
    A. an actact, omission.
                   omission, or neglect of: Tenant:
                                               Tenant; Tenant's agent;
                                                                   agent: Tenant's guest: Tenanrs
                                                                                              Tenanfs employees:
                                                                                                         employees; Tenant's
        patrons; Tenant's invitees; or any other tenant on the Property;
    B. fire,
        fire. flood,
              flood. water leaks. ice, snow,
                                           snow. hail, winds, explosion,
                                                 hail. winds. explosion. smoke,
                                                                           smoke. riot,
                                                                                   riot. strike, interruption of utilities,
                                                                                                                 utilities. theft,
        burglary, robbery, assault,
                                 assault. vandalism, other persons, environmental contaminants,
                                                                                        contaminanfs, or other occurrences
        or casualty
            casualtv losses.

19. INDEMNITY: Each party will indemnify and hold the other Darty    party harmless from any property damage,
                                                                                                        damage.
    personal injury,                               damages. cost of repairs or service to ttie
              injury. suits, actions, liabilities, damages,                               the leased premises or
    Property, or any other loss caused, negligently or otherwise, by that party or that party's employees,
    Property.
    patrons, guests.
             guests, or invitees.

20. DEFAULT:

    A. If Landlord fails to comply with this lease within 30 days after Tenant notifies Landlord of Landlord's
          failure to comply, Landlord will be in default and Tenant may seek any remedy provided by law. If,
          however, Landlord's non-compliance reasonably requires more than 30 days td cure, Landlord will not
          be in default if the cure is commenced within the 30-day period and is diligently pursued.

(TAR-2101) 5-26-06        Initialed for Identification by Tenant: _ _ ,• -
                                                          Tenant:        __', and Landlord: _ _ , _ _               Page 9 of 14




                                                                                                                    AR 000079
 Commercial Lease concerning: _ _ _
                     concerning:.~____
                                     ____
                                        ____
                                           ____
                                              _____________
                                                          ____
                                                             ____
                                                                _-,--_
                                                                  _ __ __
                                                                        _____
                                                                            ____
                                                                               _ ~



     B. If Landlord does not actually receive at the place designated for payment any rent due under this lease
        within 5 days after it is due, Tenant will be in default. If Tenant fails to comply with this lease for any
         other reason within 10 days after Landlord notifies Tenant of its failure to comply, Tenant will be in
         default.
         default

     C. If Tenant is in default, Landlord may: (i) terminate Tenant's right to occupy the leased premises by
         providing Tenant with at least 3 days written notice; and (ii) accelerate all rents which are payable
         during the remainder of this lease or any renewal period without notice Or   dr demand. Landlord will
         attempt to mitigate any damage or loss caused by Tenant's breach by using commercially reasonable
         means. If Tenant is in default, Tenant wit1
                                                will be liable for:
        (1
        (1)) any lost rent;
                                                                                     fe~s, advertising fees, and
        (2) Landlord's cost of reletting the leased premises, including brokerage fe.es,
              other fees necessary to relet the leased premises;
        (3) repairs to the leased premises for use beyond normal wear and tear;
        (4) aI/
              all Landlord's costs associated with eviction of Tenant, such as attorney's fees, court costs, and
              prejudgment interest;                                                    .
        (5) all Landlord's costs associated with collection of rent such as collection fees, late charges, and
              returned check charges;
        (6) cost of removing any of Tenant's equipment or fixtures left on the leased premises or Property:
                                                                                                     Property;
        (7) cost to remove any trash, debris, personal property, hazardous materials, or environmental
              contaminants left by Tenant or Tenant's employees, patrons, guests, dr   or invitees in the leased
              premises or Property;
        (9) cost to replace any unreturned keys or access devices to the leased premises, parking areas, or
              Property;
        (10) any other recovery to which Landlord may be entitled under this lease or under law_
                                                                                              law.

21. ABANDONMENT, INTERRUPTION OF UTILTIES, REMOVAL OF PROPERTY, AND LOCKOUT:
    Chapter 93 of the Texas Property Code governs the rights and obligations of the parties with regard to: (a)
                                                                                      T~nant's property; and (d)
    abandonment of the leased premises; (b) interruption of utilities; (c) removal of Tenant's
    "lock-out" of Tenant.

22. HOLDOVER: If Tenant fails to vacate the leased premises at the time this lease ehds,
                                                                                   ends, Tenant will become
    a tenant-at-will and must vacate the leased premises immediately upon receipt of demand from Landlord.
                                                                                                   Landlord
    No holding over by Tenant, with or without the consent of Landlord, will extend'this
                                                                               extend this lease. Tenant will
    indemnify Landlord and any prospective tenants for any and all
                                                                 aU damages caused by the holdover. Rent for
    any holdover period will be 2 times the base monthly rent plus any additional rent calculated on a daily
    basis and will be immediately due and payable daily without notice or demand.

23.l.ANDLORO'S
23. LANDLORD'S LIEN AND SECURITY INTEREST: To secure Tenant's perforrJlance      performance under this lease,
    Tenant grants to Landlord a lien and security interest against all of Tenant's nonexempt personal property
    that is in the leased premises or Property. This lease is a security agreement for the purposes of the
    Uniform Commercial Code. Landlord may file a copy of this lease as a financing statement.
                                                                                     sta·tement.

24. ASSIGNMENT AND SUBLETTING: Landlord may assign this lease to any subsequent        st,lbsequent owner of the
    Property. Tenant may not assign this lease or sublet any part of the leased prerhises
                                                                                     prernises without Landlord's
    written consent. An assignment of this lease or subletting of the leased premises without Landlord's written
    consent is voidable by Landlord. If Tenant assigns this lease or sublets any part of the leased premises,
             will remain liable for aI/
    Tenant wiU                      all of Tenant's obligations under this lease regardless if the assignment or
    sublease is made with or without the consent of Landlord Tenant may not sublease or assign this.         this
                                             Landlorawh1ch'consent may be subject to terms and
     lease without the consent of Landlorawh1cn'consent
     conditions      imposed· by Lqndlord
     condition~ imposed-           L~ndlord regarding any such sublease or assignment and the
    payment ot
            of rent          ther~under.
                             ther~uncter.




(TAR-2101) 5-26-06         Initialed for Identification
                                         Identificalion by Tenant _ _ , _ _, and Landlord:
                                                           T enant:_~,           Land!ord: _ _ ,. _
                                                                                                  _~_   Page 10 of 14




                                                                                                        AR 000080
 ~I~~-----------------------------------------------------------
 ~I~~-------------------------------------------------------
 25. RELOCATION:
     RELOCAnoN:


          to relocate to another location in the Property, provided that the other location is equal in            rger
          than the leased premises then occupied by Tenant and contains similar                        mprovements.
                                                                                                      improvements.
          landlord will pay Tenant's reasonable out-of-pocket moving e
          Landklrd                                                       expen            ving to the other location.
                                                                                                              kJcation.
          "Moving expenses"            reasonabte expenses paya
                   expenses'" means reasonable                                              movers,
                                                                               ssionaJ movers, utility companies
                                                                                                       companes for
          connection and disconnection fees, wiring co            tor connecting and discOnnecting Tenant's office
                                                               .- for
          equipment required by the re         . ,• nd printing companies for reprinting Tenant's stationary and
          business cards. A          .                                                 provision of this lease that is
                                            Tenant will not change or affect any other proVision
          then in             JOg
                              log rent and reimbursement amounts, except that the desdiption
                                                                                      descOption of the suite
                                                                                                          su;te or unit
                                                     \                                               '
          m-8&~~mm~~am~~

>Oil B. Landlord may not require Tenant to relocate to another location in the Property without Tenant's prior
>til
          consent
          consent.

              lION:
 26. SUBORDINAnoN:

     A    This lease and Tenant's leasehold
                                    JeasehoJd interest are and will be subject, subordinate, and inreriorto:
                                                                                                 inferior to:
          (1) any lien,
                   lien. encumbrance, or ground lease now or hereafter placed on the leased premises or the
                        thai landlord
              Property that  Landlord authorizes;
                                      authorizes:
          (2) al advances made under any such lien, )ten, encumbrance, or ground lease;
          (3) the interest payable on any such fien
                                                 lien or
                                                      Of encumbrance;
          (4) any and all renewals and extensions of any such lien, encumbrance, or ground lease;
                                                                                                Jease;
                                                                             Property; and
          (5) any restrictive covenant affecting the leased premises or the Properly;
          (6) the rights of any owners' association affecting the leased premises or Property.

     8_ Tenant must, on demand, execute a subordination, attornment, and non-di$turbance
     8.                                                                         non--diSturbance agreement that
        Landlord may request that Tenant execute, provided that such agreement is made on the condition that
        th~ lease and Tenant's rights under this 'ease
        this                                     lease are recognized by the lien-holOOr.
                                                                             lien-hokler.

27. ESTOPPEL CERTIFICATES: Within 10 days after receipt of a written request from                        enant w~1
                                                                                                       Tenant
                                                                                        1lom Landlord, T
                delrver to landlord
    execute and deliver    Landlord an estoppel certificate that identifies the terms
                                                                                teons and conditions of this lease.

28. CASUALlY
    CASUALTV lOSS:

                                         Landlord of any casualty
     A Tenant must immediatety notify landlord              casuaky loss
                                                                     k>ss in the leased   premises_ Within 20 days
                                                                                  5eased premises.
       after receipt of TefI8nfs                      toss, Landlord
                        Tenant's notice of a casualty loss,  landlord wit
                                                                      will notify Tenantil      ~ased premises are
                                                                                  Tenant if the leased
       less                           unusabte, on a per square foot basis, and if landlord can substantially
       Jess than or more than 50% unusable,                                                             substantialfy
       restore the leased premises within 120 days after Tenant notifies landlord
                                                                             Landlord of the casualty Joss.
                                                                                                       k>ss.

     B. If the leased premises are less than 50% unusable and Landlord can substantially restore the leased
        premises within 120 days after Tenant notifies landlord of the casualty,  LandkKti will restore the leased
                                                                        casuatty, Landlord                  teased
        premises to substantiaRy
                      substantially the same condition as before the casuafty.
                                                                       casualty. If
                                                                                 ff landlord faits    subslantialty
                                                                                             fails to substantialty
        restore within the time required, Tenant may terminate this lease.

    C. If the leased premises are more than 50% unusable and Landlord
                                                                    landlord can substantialty restore the leased
       premises within 120 days after Tenant notifies landlord
                                                          Landlord of the casualty,
                                                                           casuaHy, landlord may: (1) terminate
            tease; or (2) restore the leased premises to substantialty
       this lease;                                       substantially the same condition as before the casualty.
          Landlord chooses to restore and does not
       If landlord                                 nol substantially
                                                       subsiantiaRy restore the leased premises
                                                                                        premiseS within the time
                                                                                                             lime
       required, Tenant may terminate this lease.

          Landlon;l notifies Tenanlthat
    D. If landlord                       Landlord cannot substantially restore the leased premises wiIlin
                             Tenant that landlord                                                    within 120
       days after Tenant notifies landlord         casually toss,
                                   Landtord of the casualty                                  not to restore and
                                                             loss, landlord may: (1) choose notto
                      tease; or (2) choose to restore, notify Tenant of the estimated time to restore, and give
       terminate this lease;
       Tenant the option to terminate this lease by notifying Landlord
                                                              landlord within 10 dayS.
(TAR-21 01 ) 5-26-06
             5-26--06                            ,----,
                         Initialed for Identification b Tenant---->
                                       kJentification by Tenant     _ _, and landk:m:J'
                                                                             lancIord:. -
                                                                                        _-_-, _
                                                                                              ' -_
                                                                                                 -       Page 11 of 14




                                                                                                         AR 000081
 Commercial Lease concerning::
                  concerning. _ _ _ _ _
                                      ____
                                         ____
                                            ____
                                               ____
                                                  ____
                                                     ____
                                                        ____
                                                           ____
                                                              ____ _
                                                                 ---'__
                                                                      _ _
                                                                        _ __________
                                                                                   __

     E. If this lease does not terminate because of a casualty loss, rent will be reduced from the date Tenant
        notifies Landlord                                                           subst~ntially restored by an
                  landlord of the casualty loss to the date the leased premises are substantially
        amount proportionate to the extent the leased premises are unusable.

 29. CONDEMNATION: If after a condemnation or purchase in lieu of condemnation the leased premises are
     totally unusable for the purposes stated in this lease, this lease
                                                                   tease will terminate. If after a condemnation or
     purchase in lieu of condemnation the leased premises or Property are partially unusable for the purposes
     of this lease, this lease will continue and rent will be reduced in an amount proportionate to the extent the
     leased premises are unusable. Any condemnation award or proceeds in lieu of condemnation are the
                  Landlord and Tenant has no claim to such proceeds or award. Tenant n'lay
     property of landlord                                                                   rriay seek compensation
     from the condemning authority for its moving expenses and damages to Tenant's personal property.

30. ATTORNEY'S FEES: Any person who is a prevailing party in any legal proceeding brought under or
    related to the transaction described in this lease is entitled to recover prejudgment interest, reasonable
    attorney's fees, and all other costs of litigation from the non
                                                                nonprevailing
                                                                    prevailing party.

31. REPRESENTATIONS:

    A. Tenant's statements in this lease and any application for rental are material representations relied upon
          Landlord. Each party signing this lease represents that he or she is of legal age to enter into a
       by landlord.
       binding contract and is authorized to sign the lease. If Tenant makes any misrepresentation in this
       lease or in any application for rental, Tenant is in default.

    B. Landlord is not aware of any material defect on the Property that would affect the health and safety of
       an ordinary person or any environmental hazard on or affecting the Property that would affect the
       health or safety of an ordinary person, except: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __




    C Each party and each signatory to this lease
    C.                                           tease represents that: (1) it is not a perso·n
                                                                                        person named as a Specially
       Designated National and Blocked Person as defined in Presidential Executive Order 13224; (2) it is not
       acting,             indirectly, for or on behalf of a Specially
       acting. directly or indirectly.                       Specia1!y Designated and Blocked Person; and (3) is
       not arranging or facilitating this lease or any transaction related to this lease for'
                                                                                           for a Specially Designated
       and Blocked Person. Any party or any signatory to this lease who is a Specially Designated and
       Blocked person will indemnify and hold harmless any other person who relies on this representation
       and who suffers any claim, damage, loss, liability or expense as a result of this representation.

32. BROKERS:

    A
    A. The brokers to this lease are:        NONE


        Cooperating Broker                          License No.    Principal Broker                           License No.
                                                                                                                      No


        Address                                                    Address

        Phone                                             Fax      Phone                                              Fax

        E-mail                                                     E-mail

        Cooperating Broker represents Tenant.                      Principal Broker: (Check only one box)
                                                                  o represents Landlord
                                                                                landlord only.
                                                                  o represents Tenant only.
                                                                  o is an intermediary between Landlord and Tenant.
(TAR-2101) 5-26-06       Initialed for Identification by Tenant
                                                         Tenant: _ _ , _ _ ., and landlord:
                                                                                  Landlord: _ _ ,_~
                                                                                                , __        Page 12 of 14




                                                                                                             AR 000082
 Commercial Lease concerning: _ _ _ _ _ _ _ _
 Commerdallease                             ____
                                               ____
                                                  ____
                                                     ____
                                                        ____
                                                           ____
                                                              ____
                                                                 ____
                                                                    ____
                                                                       ____
                                                                          ____
                                                                             ____
                                                                                _____

     B_
     B. Fees:
     oD    (1) Principal Broker's fee will be paid according to: (Check only one box).
           o (a) a separate written commission agreement between Principal Broker and:
                 o Landlord D0 TTenant.
                 [J              enan!.
           o (b) the attached Addendum for Broker's Fee.
           D

     D (2) Cooperating Broker's
                       Broker'S fee will be paid according to: (Check only one box).
           D (a) a separate written commission agreement between Cooperating Broker and:
           [)
                 o Principal Broker 0 Landlord 0 Tenant.
           o (b) the attached Addendum for Broker's Fee.
 33. ADDENDA: Incorporated into this lease are the addenda, exhibits and other information marked in the
     Addenda and Exhibit section of the Table of Contents. If landlord's
                                                              Landlord's Rules and Regulations are made part
                                                                                                   discretion,
     of this lease, Tenant agrees to comply with the Rules and Regulations as Landlord may, at its discretion.
     amend from time to time.

 34. NOTICES: All notices under this lease must be in writing and are effective when hand-delivered, sent by
     mail, or sent by facsimile transmission to:

    Tenant at the leased premises,
                        to:
    and a copy to: Sterling Practice Management LLC                                              LLC
                    Address: 5718 Bellaire Blvd., Houston, Texas 77081
                    Phone:                                             Fax: --,,-_ _ _ _ _.....:.-_ _ _ _ _ _ __
                    Phone:                                             Fax: =c:-;-::=----------
    f.3I
    III  Tenant also consents to receive notices by e-mail at:_b~g'-a_r_n_e_r_5_@_a_o_l_._c_o_m
                                                           at:"b~g~a~r~n~e~r~5~@~a~o""'~.~c~om"'-
                                                                                              ____________
                                                                                                  ___"__ _ _ _ _ _ _ ___

    Landlord at:Providian Holdings
                            Holdings, Inc.                            I


                                                        100 r Houston, . Texas 77004
                Address: 2918 San Jacinto Street Suite lOa,                                       II


                Phone:    713 523-7847             Fax:
    andacopyto: ______________________________________                    ___________
                                                        -----------~------------                                   --------------------        ~




    andaCOpYto:~~""'===========================;=================================
                Address: ______________________________ ____________
                 Phone:
                              ~ddress:
                                                Fax:
                                                                                                                                            ~




          landlord also conseccn~ls~l~o,..,.re~c~e~iv~e::-:n~o~li~c~e~s~b~y-e~-~m~a.",iI~a~t-;::k'h
      Landlord also
    ail
    I]l                 consents to receive notices bye-mail at: khyat~-'
                                                 ya ti                n""e·t-----                   '--;;u~n~d~a~v"i~a"@"5~b~c~gtl~o~b~a;c,r.
                                                                                                      -u-n-d-:;-a-v-~.,...·a-C@r.I""s='Lb c':"'"g-7"'l'o='Lb a--l;--.n--e- :::-i:"t------

35. SPECIAL PROVISIONS:
    A. Landlord shall not be obligated to install any facilities at the Property or in
    A_
           premises~ includinq any ADA SAmerican
       the premises,.                                 Di$abilities) ,or related facilities
                                       (American With Disabilities)
                     Iederal, seate
       requ~red by ~ederal,   st:ate and city        regulatlons or ordinances_
                                          c~ty laws, regulations    ordl.nances.
    B. Tenant will turn off the liqhts in the premises and lock the doors to the building
    B_
             pre~l.ses are vacated
       wt.en prem~ses
       w~en                vacat:ed each
                                    eacfi evenlng.
                                          evenlng....                       .
    C. Landlord shall have access at all times to the utility closet
    c.                                                            close·t in the premises.
                      but shall not be obligated to perform any cleaning for Tenant in
    D. Landlord may hut
                       common area, interior or exterior of the building.
       the premises, cornmon




(TAR-2101) 5-26-06                  Initialed for Identification by Tenant_ _ ,• _ _ , and Landlord'
                                                                                           Landlord: _ _ , _ _
                                                                                                        >                                                          Page 13 of 14




                                                                                                                                                                     AR 000083
 Commercial Lease conceming: _
                             ____
                                ____
                                   _ ____
                                        ____
                                           _____
                                               ____
                                                  ____
                                                     _ ____
                                                          ____
                                                             ____
                                                                ____
                                                                   ____
                                                                      _ ____
                                                                           ____
                                                                              _____


 36. AGREEMENT OF PARTIES:

         A. Entire Agreement:
                   Agreement This lease contains the entire agreement between Landlord and Tenant and may
            not be changed except by written agreement.

         B. Binding Effect: This lease is binding upon and inures to the benefit of the parties and their respective
         S.
            heirs, executors, administrators, successors, and permitted assigns.

        C. Joint and Several: All Tenants are jointly and severally liable for all provision$
                                                                                   provisions of this lease. Any act or
           notice to, or refund to, or signature of, anyone or more of the Tenants regarding any term of this lease,
                                                         aU Tenants.
           its renewal, or its termination is binding on all

        D. Controlling Law: The laws of the State of Texas govern the interpretation, performance, and
           enforcement of this lease.

        E. Severable Clauses: If any clause in this lease is found invalid or unenforceable by a court of law, the
           remainder of this lease will not be affected and all other provisions of this lease will remain valid and
           enforceable.

                                                    non~enforcement of acceleration, contractual or statutory lien,
        F. Waiver: Landlord's delay, waiver, or non-enforcement
           rental due date, or any other right will not be deemed a waiver of any other or subsequent breach by
           Tenant or any other term in this lease.

        G. Quiet Enjoyment: Provided that Tenant is not in default of this lease, Landlord covenants that Tenant
           will enjoy possession and use of the leased premises free from material interference.

        H. Force Majeure: If Landlord's performance of a term in this lease is delayed by strike, lock-out, shortage
           of material, governmental restriction, riot, flood, or any cause outside Landlord's control, the time for
           of
           Landlord's performance will be abated until after the delay.

        I.\.   Time: Time is of the essence. The parties require strict compliance with the times for performance.

                                                                                             studies,
Brokers are not qualified to render legal advice, property inspections, surveys, engineering stUdies,
environmental assessments, tax advice, or compliance inspections. The parti~s should seek experts
to render such services. READ THIS LEASE CAREFULLY. If you do not understand the effect of this
Lease, consult your attorney BEFORE signing.


     S'l'ERLING
     s'r-ERLING PRACTICE MANAGEMENT LLC                          PROVIDIAN HOLDINGS, INC.
Tenant                                                          Landlord
                                                                landlord
By                                                              By
                                                        Date                                                      Date

Printed Name         Bxett Garner
                     BX'ett                                     Printed Name          Undavia
                                                                               Khyati Und~via
Title                                                           Title



Tenant
Tenant                                                          ~L'::""d"lo="';---------~---------
                                                                Landlord
By_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
By                                                    ,,=
                                                        Date
                                                                By______________-------_~~
                                                                By
                                                                  ------------------O"'''',.-e
                                                        Date                                Date

Printed Name   William Hicks                                    Printed Name,
                                                                        Name_ _ _ _ _ _->-_
                                                                                       _ __ __
                                                                                             ____
                                                                                                ____
                                                                                                   _____
Title_
     __ ____ __
             _ ____ _____
                        ____  __
                             __ ___
                                  ____
                                     ___ _                      Title_ _ _ _ _ _ _ _ _.:.-_
                                                                                      _ _ _ _ _ _ _ _ __

(TAR-2101)
(TAR-21 01) 5-26-06                                                                                      Page 14 of 14




                                                                                                         AR 000084
                                     Exhibit A


                                                                 identified by and
The contiguous vacant space on the ground floor of the building, identi"fied
agreed to between Landlord and Tenant.




                                                                                AR 000085
                                       MUTUAL RELEASE

 THE STATE OF TEXAS

. COUNTY OF HARRIS

        WHEREAS, certain disputes, claims and causes of action existed by and between

 STERLING PRACTICE MANAGEMENT, LLC, its officers, directors, shareholders, partners,

                                                      attorneys (hereinafter STERLING) and
 successors, agents, assigns, employees, servants and <attorneys

PROVIDIAN HOLDINGS, INC., its officers, directors, shareholders, partners, successors, agents,

assigns, heirs, employees, servants and attorneys (hereinafter PROVIDrAN),
                                                               PROVIDlAN), arising from a

commercial lease; and

        WHEREAS, certain disputes, claims and causes of action existed by and between

NISAL CORPORATION, its officers, directors, shareholders, partners, successors, agents,

assigns, employees, servants and attorneys (hereinafter NlSAL)
                                                        NISAL) and PROVIDIAN HOLDINGS,

INC., its officers, directors, shareholders, partners, successors, agents, assigns, heirs, employees,

servants and attomeys
             attorneys (hereinafter PROVIDIAN), arising from a commercial lease; and

        WHEREAS, STERLING and NISAL filed suit against PROVIDIAN, No. 1036848,

County Civil Court at Law No.4, Harris County, Texas; and

       WHEREAS, the parties desire to compromise, settle and provide for the full and final

tenmnation
termination of all of the said claims, demands, causes of action and disputes between them arising

out of or related to such claims which either party may now have or have had against each other, all

without admitting any of the allegations set forth;

       NOW, THEREFORE, for and in consideration of a check written by PROVlDIAN
                                                                      PROVIDIAN to

             NISAL and Phillip Brantley and Associates, PC in the amount of
STERLING AND NlSAL                                                          $7600.00, the
                                                                         of$7600.00,

mutual releases contained herein, and other good and valuable consideration, the receipt and




                                                                                             AR 000086
                                           EXHIBIT C
 sufficiency ofwbich
             of which is hereby acknowledged, STERLING AND NISAL, their officers, directors,

 shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys

 hereby RELEASE, ACQUIT and FOREVER DISCHARGE PROVIDIAN, its officers,

 directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and

 attorneys from any and all liabilities, claims, demands, causes of action, judgments, liens,

liabilities or potential claims or causes of action which STERLING AND NISAL have ever had or

could have had, whether now known or unknown, which have arisen or may arise from the

beginning of time to the date of this release, including, without limitation;

        NOW, THEREFORE, for and in consideration of the acceptance of the aforesaid check

written by PROVIDIAN to STERLING AND NISAL and Phillip Brantley and Associates, PC in

the amount of $7600.00, the mutual releases contained herein, and other good and valuable

consideration, the receipt and sufficiency of which is hereby acknowledged, PROVIDIAN,
                                                                            PROVIDlAN, its

officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs

and attorneys hereby RELEASE, ACQUIT and FOREVER DISCHARGE STERLING AND

NISAL, their officers, directors, shareholders, successors, agents, assigns, employees, servants,

partners, heirs and attorneys from any and all liabilities, claims, demands, causes of action,

judgments, liens, liabilities or potential claims or causes of action which PROVIDAN has ever had

or could have had, whether now known or unknown, which have arisen or may arise from the

beginning of time to the date of this release, including, without limitation.

       Upon signature of all parties, STERLING AND NISAL shall file a nonsuit with prejudice.

       The parties hereto represent and warrant that the persons executing this Mutual Release on

their behalf as shown on this instrument is authorized to bind same.




                                                                                             AR 000087
        It is understood and agreed that this is a final
                                                   fmal Mutual Release, that no further consideration

is to be paid by any of the parnes,
                            parties, and that this settlement is in compromise of disputed claims and

is not to be construed as an admission of liability.
                                       ofliability.



                                       STERLING PRACTICE MANAGEMENT, LLC


                                       BY·._~-",
                                       BY:      .......
                                           -----~
                                       N~: ______~~~~~~__~~__________
                                       TITLE:_~---,,~~~~t-.~~~~_ _



THE STATE OF TEXAS
COUNTY OF HARRIS'

        BEFORE ME, on this day personally appeared,               WI' /Ila
of STERLING PRACTICE MANAGEMENT, LLC, whose name is subscribed to the foregoing
                                                                                t11      thL-l91,
Mutual Release, and who.
                     who, acknowledged to me that he/she executed the Mutual Release as the act
and deed of said entity, for the purposes and consideration therein expressed, and in the capacity
therein stated.

       GNEN
       GIVEN under my hand and seal of office              3Jp{ day of        0c..-in b&t,    2013.


                                      NOTARY
                                      NOTARYP P LIC  IN AND FOR
                                                 LICINANDFOR
                                      THE STATE OF TEXAS



                                                                 MARIA PATRICIA MUNIZ
                                                                 My CommlsslDn
                                                                    Commission Expires
                                                                               expires
                                                                     May 14,2016
                                                                         14.2016




                                                                                             AR 000088
NISAL CORPORATION




NOTARY P L
NOTARYP          AND FOR
           LANDFOR
THE STATE OF TEXAS



                    MARIA PATRICIA MUNIZ
                    My Commission Expires
                        May 14,
                            14. 2016




                                            AR 000089
                                                    PROVIDIAN HOLDINGS, INC.


                                                    BY:
                                                   NAME:                 #
                                                                          L~'~
                                                                          ~ f/ (...JN1)/bir'/!}
                                                   TITLE:                                          D (.A.!) I'JtZ,..,...,

THE STATE OF TEXAS
COUNTY OF HARRIS

         BEFORE ME, on this day personally appeared,                                         E!If( ,                                                           #        ,
of PROVIDIAN HOLDINGS, INC., whose name is subscn                to the foregoin Mutual Release,
and who, acknowledged to me that helshe
                                    he/she executed the Mutual Release as the act and deed of said
entity, for the purposes and consideration therein expressed, and in the capacity therein stated.
                                                                                                                            Oc.r~
       GIVEN under my hand and seal of office, thi.
                                               thi,                                                                day o'                            ,2013.

                                                                                                                                I
                                                   NOTARY       IC IN AND FOR
            KEIlH CHUNN, JR.
            KEmlCHUNN,                             THE STATE OF TEXAS
          MY COMMISSION EXPIRES
            _    _ 14,2016
            November 14. 2016


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                                                                                                                                                               AR 000090
                                                                                                                                        ",

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              Q'J                                                           NO. 1036848

()            Q    STERLING PRACTICE MANAGEMENT, llC                                      IN COUNTY COURT AT LAW
I" ;,
                   NISAL CORPORATION
                        Plaintiff

;--:,              vs.
                   VS.                                                                    NO.4

                  PROVIDIAN HOLDINGS, INC.
: 1:                   Defendant                                                          HAJUUSCOUNTY,TEXAS
                                                                                          HARRIS COUNTY, TEXAS

                                                         PLAINTIFFS' NONSUIT

                   Sterling Practice Management, LLC and Nisal Corporation appear and file Plaintiffs'

                   Nonsuit, requesting that the Court dismiss this case with prejudice.

                                                                                 Respectfully submitted,

                                                                                 PHILLIP
                                                                                 PHilLIP BRANTLEY AND ASSOC., P.e.
                                                                                                              P.c.
                  "c;,
                  "".
        1'"

                  ::>.::
                  "-
                                                                                 D'Jkbu..~
                                                                                 $YJLk~
                                                                                 ~iJilip~nl1ltle~O
                   r-                                                            SBN 02899727
                       I
                   0-                                                            Arena Tower II
                   '-'                                                           7324 Southwest Freeway, Suite 1020
                   0        ".,
                   ~
                                                                                 Houston, Texas 77074
                   =
                   ~
                                                                                 (713) 270-4053 phone
                                                                                 (713) 270-0682 facsimile
                                                                                 ATTORNEYFORPLNNTffP
                                                                                                                            '.

                                                             CERTIFICATE OF SERVICE

                   I certify that this pleading was served on Keith Chunn,
                   facsimile transmission on October 3, 2013.
                   facsimile transmission on October 3, 2013.
                                                                           ~     tls&
                                                                    ChUIUl, Jr., attorney for Defendant, by

                                                                                 ~R~',,~"'F'-~=_~I,-_______
                                                                                 ~P-hi~ll~~~fFr-an--tle-~~Yr---------------
                                                                                 PhilI;{?rantlefe,




                                                                                                                            AR 000091
                                                                        EXHIBIT D                                 @   III
,e::. .

                                                    NO. 1036848

              STERIlNG PRACTICE MANAGEMENT, lLC
              STERLING                      LLC                    IN COUNTY COURT AT LAW
 ..~
              NISAL CORPORATION
                    Plaintiff
     .,
()
f]            vs.                                                  NO.4
If. :::~.
.• ~ ..Ji


              PROVIDIAN HOLDINGS, INC.
()                 Defendant                                       HARRIS COUNTY, TEXAS
 ;        ;



                                                      ORDER
              Pending before the Court is Plaintiffs' Nonsuit. This case is dismissed with prejudice.

              Signed lhis
                     this   -b--
                            $-     day of   -+~;JL~~~~~~':;:=l
                                            -+-~~-\r-~;£.--~~--J.




              APPROVED AS TO FORM AND SUBSTANCE
              AND ENTRY URGED:

              PHIlLIP
              PHILLIP BRANTLEY AND ASSOCIATES, P.C.
                                               P.c.


              Phillip Brantley
              SBN 02899727
              Arena Tower II
              7324 Southwest Freeway, Suite 1020
              Houston, Texas 77074
              (713) 270-4053 phone
              (713) 270-0682 facsimile
              ATTORNEY FOR PLAINTIFFS




                                                                                                   AR 000092

                                                                  •         at
                                 CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A.                         §       IN THE DISTRICT COURT
                                                                          COOOT OF
d/b/a ALLIED MEDICAL CENTERS                      §
and INTERVENTIONAL SPINE                          §
ASSOCIATES,                                       §
      Plaintiffs                                  §
                                                  §
VS.                                               §            HARRIS COUNTY, TEXAS
                                                  §
KHYATIlTNDAVIA,
KHYATI UNDAVIA, MIND MINlT RX, LTD.,              §
and MIND
    MINlT GP, L.L.C.                              §
                                                                  ND
      Defendallls
      Defendants                                  §§          152"" JUDICIAL DISTRICT
                                                              152



                        DECLARATION OF KHYA
                                       KBYATI  UNDAVIA
                                            TI UNOAVIA



  1. My name is Khyati Undavia. My date of birth is October 4, 196.5,
                                                                1965, and my address is
     2918 San Jacit1to,
               Jacinto, Houston)
                        Houston, Texas 77004. I swear under penalty
                                                              penaltY of perjury that the
     below facts arc
                 are within my personal knowledge and are true and correct.

  2. Providian
     Providiwt Holdings, Inc. ("Providian") is a holding company. Its only asset is 2918
     San Jacinto St., Houston,
                        Houston. Texas 77004 (the "Building"). Providian    Provulian bashas no
     employees, and it ba.s
                       has no operations
                              operatioll.'!r aside from  leasi~~g out the building to tenants. I
                                                   fi'om leasillg
     am the owner and president of Providian.

  3. JI am also the owner and president of:\1inu    Ltd. d/b/a Memorial Cornpound1ng
                                        of Minu Rx, Ltd,                Compounding
      Pharmacy ("Minu").
     Phannacy               Minu is a pharmacy that operates on the first
                 ("Minu"), Minll                                     ftrst floor of the
     Building.
     Building, Minu has an approximately 12-person staff that includes pharmacists,
     ph.nnacy technicians, clerks, and bookkeepers.
     pharmacy

                                                                         Mum has a
  4. Because Minu has a physical presence in the building, and because Minu
     tum-key staff available, Providian has
                                         bas used Minu as its property
                                                              propeliy manager since
                               provides Providial1 with operational management,
              tbis role, Minu provit-les
     2004. In this                                                  management) risk
     management, and administrative services.

  5.                                                                  Building. It
  5, Regarding operational management, Minu manages and maintains the BUilding.

                                              1

                                                                                             AR 000093
                                         EXHIBIT E
                                   janitoriaJ and facilities maintenance personneL It
    interviews and hires security, janitorial,j


    also pays for items like elevator maintenance, repairs for the Building,
                                                                        Building. and
    security equipment.

6. Regarding risk management, Miml
6,                            Minu procures and maintains
                                                maintams. insurance
                                                          insw-ance policies on
   Providian's behalf.

7. Regarding administrative services, Minu collects rent from the Building's tenants,
   pays for the Building's utilities and common
                                         conunon area !l1aintenance,
                                                          l)1aintenance, and oversees
   Providian's compliance with accounting standards, as well as federal and state
   reporting requirements.

8. Attached as Exhibit G to Defendants' motion for summary judgment is a true and
   correct copy of a portion of Minu's Quickbooks for the time period of 2012
   through 2013. These records demonstrate that Minu paid numerous expenses on
   Providian's behalf.

9. For example, in April 2012, a break-in occurred overnight at the Building, causing
                              Building. Minu paid a total of $17,524.89 to repair the
   significant damage to the BUilding.
   damage caused to the Building. These payments were made on April 18,2012,
   June 8, 2012,
           2012 and July 25.
                j         25, 2012, as indicated on the Quickbooks statement.

10. Similarly, MimI
               Millu made periodic
                          periodiC payments to "ABC Pest Pool & Lawn" throughout
    2012 and 2013. These charges represented compensation that Millu
                                                                Minu paid to ABC
    Pest Pool & Lawn for the Building's grounds
                                        grollnds maintenance.
                                                 maintenance,

                              Quickbooks records also demonstrate the Minu paid for
11. Among other things, these QUlckbooks
                                         (vi. payments dated July 31, 2012 and
    the Buildings' elevator maintenance (via
    December 15, 2013) and for repairs to the Building's
                                              Building', front door (via a payment
    dated March 27, 2012). Also attached as Exhibit F to Defendants'
                                                            Derendants' Motion for
   Summary Judgment are truenue and correct copies of invoices
                                                         invoices received by Minu that
   demonstrate that Minu d'b/adJb/a Memorial Compounding Pharmacy Phannacy was billed
   directly for these expenses by the servic.e
                                      service provider.
                                               provid<:L

12. In additional the above, 'Minu
12.In                        Minu also paid for the Building's security systems and
    personnel. 111
                In 2012 alone, Minu paid $49,415.73 to provide security personnel,

                                        2.2

                                                                                    AR 000094
    alann
    alarm systems, and security cameras to the Building,
                                               Building.

13, With regard to Providian's leases with Nisal COl]),    Corp. and Sterling Practice
    Management,
    Managementl those entities did not have any ac,mal
                                                   actual operations in the office space
    they leased.
          leased, Instead, Allied Medical Centers and Avant Medical Group were the
    entities that had operations in the
                                      the leased space. Brett Garner
                                                                 Gamer is a doctor of
    chiropractic and was a chjropractor
                            chiropractor for· both entities,
                                                   entities. For all matters concerning
    the lease, I communicated with Brett Gamer
                                           Garner in his capacity has a representative of
    not only Sterling and Nisal, but also Avant and Allied,
                                                     Allied.

14, In fact, as a condition of leasing office space to Nisal and Sterling, I required those
14.ln
                         lUe with proof that they had obtained COL
    entities to provide Ine                                      CGL insurance policies.
                                                                                   policies,
    Garner provided a proof-Of-coverage
    Gamer                 proof-of-coverage document naming "Avant Medical Group,
    P,A,
    P.A. d/b/a Allied Medical Centers"
                                   CenterS" as the insured.
                                                     insured, Exhibit J to Defendants'
    Motion for Summary Judgment is a true and correct copy of the proof-of-coverage
    document Avant provided to me, me.

    Add.ition~lly, Avant paid for Sterlillg
                                            l
15. Additionally,
15,                               Sterling's  s rent out of its own bank account.
                                                                         account Attached
    as Exhibit K to Defendants' Motion for Summary Judgment is a true and correct
    copy of a rental check that Avant sent Providian with respect to Providian's lease
    with Sterling.

16,
16. The Commercial Leases attached as Exhibits A and B to Defendants' Motion for       tor
    Summary Judgment are true
                            t:I"Ue and correct copies of the leases that Providiuo
                                                                         Providian entered
    into with Nisal Corp,
                    Corp. and Sterling Practice Managen1ent.
                                                 Management.

17, I am the person ill
17.                                                            Minu_ Exhibits A, B, F, G,
                     ill charge of records for Providian and Minu.
    J, and K to Defendants' Motion for Summary Judgment are kept by me in the
    regular course of business, and it was  waS in the regular course of business of
    Providiall and Minu that the information
    Providian                     infonnat1on contained in this exhibits was transmitted
    to me by an employee or agent of Providian or Minu who had knowledge of the
    act, event, condition, opinion, or diagnosis recorded to make the records ree-ords Dr
                                                                                       01' to

    transmit information thereof to be included in such records; and the records were
    mad~ at or near the time or reasonably soon after the time that the servic.e
    made                                                                        service was
    provided,
    provided. The records           0l1ginal or all
                   recordg are the oligjnal     an exact duplicate
                                                         dtlplicate of the original
                                                                           original.


                                           3


                                                                                         AR 000095
Executed in Harris County, Texas, on this the 11th day of January, 2015.
                                          thezt;th




                                           4

                                                                           AR 000096
          1_",.,08
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           INVOICE                                                             •   ~ CONfRAC1"CIIA_-
           DUPLlGATli
           IIIJPLICATB
                                                                                                                               .
                                                                                                                              08/aZ/11
                                                                                                                              0./22/11




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                                                                   "'"i,CO
                                                                      ;. :"   ~!UVire
                                                                              ~ service aedit
                                                                                        credit         (         (174.56)
                                                                                                                 (174.$)

                                                                              _~ ..,..;'" ered!t /
                                                                                 serviM era1ft                   (174.$)

                                                                              ~ ....-vlceered!t
                                                                                service credit // '             ~174.55)
                                                                                                                {174.55)




                                                                              REVISED INVOICE AMOUNT NOW PUE,
                                                                                                         DUE: $523.65




      B                         JOR Mft' QWji'l'WllS O!'JIIJCBRllJlIQ -mza nMllel. ~ ~                                       ~I 1-11~-n3-'2Iil
                       (Ill   '*-f.m NfnOI BJ.InA"rOa.        3.-1J1' IIf .os-:r 0fU[ ,9'l';l 3.QQ  ~                                  'CI: 1'Josg.
                                                                     I'MI:IIIBIlIl" 1lO2I vr(ai' UCS1H




                                                                                                                                                       AR 000097
                                                                                     EXHIBIT F
 AMTECH ELEVATOR
 AMTECH ELEVATOR SERVICES
                 SERVICES
 11 Farm
    F;:lrm Springs Rd
                   Rd
                 cr
  Farmington, cr 06032
 Farmington,                                                                                                     NO.
                                                                                                        CUstomer NO.
                                                                                                        customer                  Statement
                                                                                                                                  Statentli!nt Date
                                                                                                                                               Date           AmQI,mtOue
                                                                                                                                                              Amount  Due
                                                                                                            ,55336,2
                                                                                                            553362                     21712012
                                                                                                                                       2/7/2012                1,047.30
                                                                                                                                                               1,047.30


                                                                           STATEMENT
 Mail payment
 Mail payment to:
              tQ:

 Amtech Elevator
 Amtech           5~rvices
        Elevatrlr Services                                                                  Memorial
                                                                                            Memorial Compounding
                                                                                                     Compounding Pharmacy
                                                                                                                 Pharmacy
 PO Box
 PO Box 730437
        730437                                                                              2918
                                                                                            2918 San
                                                                                                 San Jacinto
                                                                                                     Jacinto 5t
                                                                                                             St
 Oallas, TX
 Dallas, TX 75373-0437                                                                      HOUSTON, T)( 77004
                                                                                            HOU5TON,TX   71004



 PI;;!ase
 Ple      provlde your
     ••e provide  your name.
                       name.. phone number
                                     number andlor  ern~il address
                                             and/or ernaij·~ddress
 $hOuld   we have
 SMull:! we  have any
                   any questions
                       questions on
                                 on how
                                    how to  applyyour
                                        \(J apply      payment:
                                                  your payment:




STATEMENT                                                cam:ef'nirg this
                                       For any questions concerning    lilts statement.   plea~ contact:
                                                                             stat9rJW,nt, please 0011t$Cl:                                                  Page 1 of 1
                                       404-605-8421 or danil.marvin@otis.com
                                       404-605-842.1      Ollrlil.mllrvirl@otis.com

Buldlng Reference:
Building Refemn.:e: 2918
                    :2918 san         $t
                          SaO Jacinto St                                                               CU    IfIQr   No.          Statement Date             ArnountDu0




                                                                                 " . ". ,
                                                                                                            553362                     21712012
                                                                                                                                       217'2012                , ,047.30
                                                                                                                                                              1,047.30


  Invoice
  InVOice Number                       Documem
                                        Document Type                                Irrv~oate                             Gl'oSS Amount
                                                                                                                           Gross                           Open ArnOlJm
                                                                                                                                                                Amount


                                                                                 J
  DTH06ZQ2911
  DTH062£)2 911                        Invoice                                                                                   1,047.30                       1.047.30
                                                                                     / ., 2/2011
                                                                                          2/2011

                                                                                 /                 .




                                                       ,/
                                                            //
                                                            .I

                                                   /




Abffile, please find
Above,          ftnd your Iate!!t
                           Ja!e!;t,)lamment
                                  matement of or account.  Thl. statement does
                                                 accoum. Tills            dOBS not Inclide   in\IQiCllS turned over to •a tllir<:l
                                                                                   Inc.i.Jde invoicm                      third part)'
                                                                                                                                   party for coIIect1on.
                                                                                                                                         fOr collect1on.
ChargebackS are
Chargebackll   a~e disputes
                    dlspuleS under Investigation,
                                      InvestigatIOn, Plell5e       ~menl ID
                                                     PI••s. remit payment  to the addr      aDov.. If you have already paid. lIl.nk
                                                                                       ... l'l1lQve.
                                                                                  address                                            Ihank you.
                                                                                                                                             you,
            d~ta 1$
Colloctlon data
Colklctlon       ;$ reported 10
                              to Dun &&: Bradstreet.
                                         Bredstteet.

                                                                                                                                                             AR 000098
                                          ,~   ,
            AMI_::::'   N·P""I
                   1289 N
                   HvUl!itOfI
                               Oak SIO 100
                          Post OakSte
                   Houston TX 71055
                              77055
                                                    -
                                                    ~
                                                                                      INVOICE
                                                                                                            CUSTOMER NO.

                                                                                                                    553362
                                                                                                                                             DArE
                                                                                                                                                         02/20/12
                                                                                                                                                         I

                                                                                                                                                          ~1DIl'"
                                                                                                                                                          ~ncl08eThis caupon
                                                                                                                                                                 Thi!S
                                                                                                                                                          Mak~ CheCk
                                                                                                                                                          Make
                                                                                                                                                                       Oaupon WIth
                                                                                                                                                                                         INVOICE NO.
                                                                                                                                                                                       DTH06202312
                                                                                                                                                              AMOUNT Due ON S~RVICE CONTRACT;
                                                                                                                                                                                    1,099.74
                                                                                                                                                                                  Wit'"' Yollr
                                                                                                                                                                       PllyabJo;> To:
                                                                                                                                                               CMo<: payable      Tf):
                                                                                                                                                                                               p..~ment.
                                                                                                                                                                                         Your payment.

                                                                                                                                                                  AMTECH ELEVA
                                                                                                                                                                  AMTECHELEV   TOR SERVICES
                                                                                                                                                                             ATOR.

                                         Masl plJyomint to:
                                                                                                                          AT 01 006604 340576    Au 3DGT
                                                                                                                                       340578 26 A"SOOT
                                                                                                                          HEMORlAL COMPOUNOING PHARMACY
                                                                                                                          H.EMORIAl
                ,.1.111111111111,1111-,1111111111'
               .I,lillll'IIII"III"                      11.111,1/1.111"" 11111'11'1I1I
                                    '111.11 ••• 11 '11'1111"111,111"11"11111,1_11'                                        2g18 SAN JACINTO ST
                                                                                                                          2918
                         AHTECH ELEVATOR SERVICES
                         AMTECH                                                                                            HOUSTON                                     TX      77004-2708
                         P.O. BOX 730437                          .
                         DALlAS
                         DALLAS                                TX
                         75373·0437

                         ~l..EA$E SEND
                         PLEASE   $ENO CQRm!$PONDENCE
                                       eORRI!$POjr,lIJENCE TO YOuR  L.OCAL. OFFICI!
                                                              YOUA. LOCAL   OFFiCe AS -SMOWN
                                                                                      $HOWN BIlLOW
                                                                                             ilEt.OW


                                                                                                                        ODTHOb202312 OOll0109974
                                                                                                                        IlDTHDb2D2312 0000109974 1
.~   ____________    ~   ___ w ______       .   ~_~_~"M*~_~"-W~*_";"'~~       __   ~~~M""'~_
                                                                                                         .
                                                                                                ..... ___________________ ...... __ ...  ~        _*~~~~~~~_~~_~~               __ ___ __
                                                                                                                                                                                   ~       ~~     ~_~--~-----~




                                                                      ....
                                                                      ... DETACH RETURN DOCUMENT ALONG PERFORATION ..
                                                                                      E;LE;VATOR SERVICES
                                                                               AMTECH ELEVATOR
       INVOICE                                                             ~ SERVICE CONTRACT CHARGES ..
                                                                           ...                            -
                                                                                                      CUSTOMER NO,
                                                                                                      CUSTOMEA NO.                            l!AIIi
                                                                                                                                              .MIIi:                           INYOICENO.
                                                                                                                                                                               INVOICENQ,

                                                                                                          553362                          02/20/12                           DTH06202312

           BUILDING                  DTH800681
                                     DTK8006S1                 MEMORIAL CONPOONDZHG
                                                                        COMPOUNDING P.KAR
                                                                                    PHAR
           co»rRACT
           coir.rRACT                DTB06202
                                     D'rH06202
           SERVICE FROM                           03/01/12 TO
                                                  03/01./12 TOOa/31/12
                                                              08/31/12                                                  1,099.74
                                                                                                                        1,099,74
           'l'O'.l'AL CORRmI'l'
           'l'O'l'AL  CORIU3l!I'l' CHARGES! PtJE
                                   ClIAMES DOE                                                                                                  1,099.74
                                                                                             PRICE ADJUSTMENT
                                                                                                   AOJUSTMllN'l' • •-         •
         IN ACCORDANCE WlrR              FROVISION Faa
                           WIrE THE FROV~SlON           ~HE ADJUSTMENT OP
                                                    FOR rH!                  OF PRICE AS SET FORTH     PORTH IN THE CONTRAC~
                                                                                                                      CONTRACT
        1!NiTERlll:l INTO BETWEEN US FOR Tm:
        BNTERBD                                                              J!:QtlnMl!:m':
                                               THE SERVICE OF ELEVATOR }!:QtJII?~:
        THliI           PRICE. Of'
        THli FORMER Pft~CE     O!i'                 HAS Sl!l~
                                             174.55 11M BEEN ADJUl':TED
                                                                ADJUSTED AS INDICATED BELoW                    UP@ THlil
                                                                                                   BELOW BASED UPON   Tat CIIJU\I(>IilS
                                                                                                                           CIUUilGl!:S
        THAT RAVEHAvE OCCURED
                       OCCORED IN THE ELBVATOR EXAMlNERS'
                                                     EXAMINERS' COS1COS~ ~~ IN    iN ~~ER"~
                                                                                      ~1E~I~ INDEX BETWEEN BBTWEEN      J~Aay,201"
                                                                                                                        JANUAaY, 2011
        AND
        .!\NIl    JAMUAaY,2012.
                  JANUARY,2012.
        IN EFPIi:CT
                                     ~HE AlJJUSTl!:O
                                     'l,'H,g
               EFFECT UNTIL 1'I!;BRUAaY
                                             Anj~ST~D PRICE
                               lIlBRUARl!' ~8, 20·13
        GI,'APSE 1j - BASED ON CHANGES IN PRODUC'ER
        CLAUSE
                                                      ~R!eE BECOMES
                                                 201a WHEN IT
                                                             ~ECdMES I!:FFEC'TIVE
                                                                        EPFECTIVE
                                                                   WU.L 8l!:
                                                              l'l' HILL BlI: SUBJECT
                                                                                               ~ 01, 2012
                                                                             SUBJlI:CT TO ADJUSTMENT.
                                                            METALS AND :METALI
                                                  PRODUCER METALjj1
                                                                                                            2012: AND SHAL~
                                                                                                ADJUSTMEN.l'.
                                                                            Mi:l'#U.< ;ElROD1;JC'l'S c~Dtl''t IMtlElX:
                                                                                      ;E>ROVUCTS COD@fOot't'Y  rblDEjt:
                                                                                                                                 ~'[N
                                                                                                                         SHAI.!. EEMAIN

                                                                                                                                                                                                           -
                    IA)                                 (6)
                                                        (Ii)                   (e)
                                                                               Ie) "'6/14
                                                                                   ='S/A                   (D)
                                                                                                           (0)                   IE) "'c"'o
                                                                                                                                 (E: =C*D
         I!'ORWER
         FORMllR INDEX                    CURRENI' INDEX
                                          CURREN'!' INDIIX             !\ATIO OF CRANGE
                                                                       ltA'I'IO       CllANGE     FORMER lI.IATERIA!.
                                                                                                  FOIlDiIER MATERIAL          CURREN!'
                                                                                                                              CURREN'!' lI.IA'l'liRIAL
                                                                                                                                        MATERIAL
              215.0000
              21~.OOOO                            212.7000
                                                  nJ.7000                    103.58140
                                                                             lO~ • .5aliO


        CLAUSE 2 -• BASED
                    !'llIS!!lP ON
                               Olq CBANGES
                                   CIUl1ilG~$ !N  ELtVATOR t~a6t
                                              Ilq ELEVAtOR                   HOURLY oosr:
                                                           tll:At>llHlillt$' 1I0!lRl.Y CO$~,
                    (~)
                    (JI,.)                              (9)
                                                        (B)                 Ic)mB/A
                                                                            (C)"'B/A                       ID)
                                                                                                           (D)                          (E)=C·D
                                                                                                                                        (E)=C"D
                 .;p..0RMJi)!t.~_..
            _.•. -p'ORMP.a,"~    ....._. ____..
                                      _....        C!ll<R·~IIl'll-.-";_. :ijATIO
                                                   (,~RIilN!r.-__        RATIO 0&.0&. ,.,
                                                                                      , .•   . c." .... ,,,~RMEIL ._.     ."....•
                                                                                                                             .. ...:,
                                                                                                                                  _; . .GllR;IlIilJlIT
                                                                                                                                       .c1Jll.l.UW1'
         EXAMINERS' COST                    EXAMINERS' COST                 CHANGE
                                                                            CllANGE                      LABOR                         I..i\BOR
                                                                                                                                       LIoBOR
               ~2.a059
               1l2.S0.!!!!,                        65.9524                 105.00988                     174.65                        l6l.29
                                                                                                                                       183 •• 9                      163.29
                                                                                                                                                                     183      ;PER NO
                                                                                                                                                                         •• 9 PER


                               YOUR NEW
                                    NnW INVOICE AKT
                                                ANT                                                                                1,099.74
                                                                                                                                   l,09~.74                  TOTAL




                                FOR ANY QUESTIONS CONCERNING THIS   INVOICE,r PLEASE TELEPHONE 1"713-923-7251
                                                             !!'HIS INVOrCE                    1~?13-923-7251
                     OR WRITE AMTECH EL~~ATCR
                                     ELEVATOR                                    1289 'N
                                                                                       R POST OAK STE 100      HOUSTON                                                           TX 77055
                                                                       PAY.NBNT
                                                                       Ii'AYMmI'I' DUB UPON RECEIPT-PLEASB
                                                                                             RBCEIP'l'-PLBl\$B PAY PROMPTLY

        ~J!g~A1!¥.'lii"1IJ.~&lIb~ 11IfJ1iF~?J/iWo~'i~Ja m~~i
        ~f~~A~lsnll.,~~mf~~~~~~Ja                       M~""%l ~~.wM.~A8&crs~~~D       MtWg~1::li8~ m\'e~I§:.LAaOR
                                                                   W'~mFo~~£~~Dt·MCfMNWc~~~aoR
        RXfrlWOC~XMWHE8~p~~tA'H~'E'il~~~E~~~~'ycKP~~MAVf.vMYfllWR9¥'Jitlf                     Of THeAR
        f?Xfe~~'b&tXW~E8/1A\~h~MtH~'lf~ .l1lIMfdk0¥.tEM~~8t'fl\.~~rFB.1]J.WPtll:lt,f!R9~U'tl" 01'         000099
                                                                                                      I~OICE
                                                                                                      J~OJCEATTHE
                                                                                                             AT THE

                                                                                                                                                                                         Pagel
                                                                                                                                                                                         Fago) 1 of 1
                                                                                                               CUSTOMER ORIGINAL
                                       Elevator                                                 CUSTOMER NO.
                                                                                                CUSTOMEFINO.            DATE              INVOICE NO.
                                       SeI1lice!NVOICE                                            553362              02/28/11           DTH36570(
                                                                                                                                         DTH36;570(;




                 BILL TO                                                                          SHIP TO

                r- 2918     CDMPOUNDING PHARMACY~
                   MEMORIAL COMPOUNDING
                        SAN JACU1TO
                            JACINTO ST
                                                                                                r-r- MEMORIAL COMPOUNDING PHAR
                                                                                                     2918 SAN JACINTO
                                                                                                              JAC1NTO
                     HOUSTON                                            TX                           HOUSTON                                      TX
               L
               L.                                             77004           .J
                                                                              -.J               L                                         77004


-                     IF PAYING BY CREDIT CARD,  PLEASE COMPLETE'rHE
                                           CARD,PLEASE  COMPLETE THE FOLLOWING AND MAIL TO
                      THE ADDRESS BELOW OR FAX TO TREASURY SERVICES AT (860) 676-645Cl.
                                                                              676-6450.
                                     MYt
                      PLEASE CHARGE MY:
                      ( ) . AMERICAN EXPRESS      ( ) MASTER CARD       ( )) VlSA
                                                                             VISA
                           NUI11lER _____________________________ EXPIRATION
                      CARD NUI'1BER                                          DATE
                                                                  EXPIRATION DATE
                      SIGNATURE                                                                                PHONE     #~

                                 FURNISH LABOR AND t1ATERIALS TO MAKE CODE
                                 REMEDIATION REPAIRS IN ACCORDANCE WITH QUOTE
                                 DATED OCTOBER 4, 2010.
                                 ANY QUESTIONS REGARDING THIS INVOICE, PLEASE
                                                                        P~EASE
                                 CONTACT YOUR ACCOUNT REPRESENTATIVE, NELSON F.
                                 BELLE;:SHEIM.
                                 BELL~SHEIM~ JR. AT 713-923-7251.
                                 PRICE 'AS
                                 PRIC'E  AS QUOTED                         $5~812.26
                                                                           $5,81:'2.26
                                 LESS 10% DISCOUNT                             581.23

                                 ADJUSTED AMOUNT INCLUDING TAX                                                  $5,231.03
                                                                                                                $5,231. 0::'
                                 LESS PREVIOUSLY BILLED                                                           2,615.52
                                                                                                                  2~615.52




                                                                                           PAGE        1i
WE CERTIFY THAT THE GOOOS WE:RE PROOUCED IN COMPUANCE INITH AU APPUOABl_~ FI~UIREWlENl'S OF SECl10NS 6, 1 AND 12 OF THE FAIR:
STANDAROS ACT, AS AMENDED. AND OF' RE:QUl.AnONS AND ORDERS OF THE UNITS) STATES DEPARTMENT OF l.AElQR ISSUED UNDER SECTION 14 HEREOF.
PAYME'NTS NOT !'IEl"':EIVEO WITHIN "THIRTY ((3{I) DAYS OF 'THE DATe: OF INVOICE. SHALl..   a'S DEEME:O OVERDUE 'AND St1ALL BEAR AN   INTEREST CHARGE 0
OVERDUE AMOUNT,._ CALCULATED fROM THE DAlE OF INVOtC~ AT THE RATE OF ONE AND ONE HALF PERCE~Ui%1 PER t.10NTH OR. THE MAXIMU/J
                              B~ENl1T~O FlEIMBY~EMENT FROtuI YOU FOR THE COST OF SUCH PROCEEDINGS, I                          A~~EY'S Ffi.lR.
AI.L.OWED BY APPLtt,;ASLE LAW INHICH R IS lESS.. HOUI.O II BE. NEOESSARY TO COMMENCE COL.U::CTION P EED NGS A I S1 YOU F R ANY OVi
PAYMENTS, WE SHAL.L. ALSQ                                                                                          CLUDING


       QUESTIONS CONCERNING THIS INVOICE, CONTACT AMTECH ELEVATOR AT:
                                                                   AT;      (713-923-
              r-
              AMTECH ELEVATOR     SERVlCES . I~
                       E~EVATOR SERVICES        '     TERMS-NET CASH UPON PRESENTATIO
              p. Q. SOX
              1".0. BPX 7304;>7
                         730437 .                        MAKE ALL CHECKS PAYABLE TO
                        TX~ 75::;'73-0437
              DALL0S, TX.
              DALLflS,      75~73-0437                    AMTECH ELEVATOR SERVICES
                                                                                                                                 AR 000100
FOAM~AMT
              L 01   C:I\~C   en, n   /l.lI.ln cnc'MAon TUE:
                                                                             .J
                                                               D=ltjITT4h.1r-~ ('nCV\AJIT~ DAVl.llCI\.Ii'    Tn   TI-I~ 4nn~~~~      ARn\/I=
                                                                                                                                                                        !    CU5TOMiOR NO.                                          DATE                                                                Il"IIvt,.ln... t;, I '......



                   AiR=:;
                   AU,. WlrYfSltIIMttH
                   ARP..;-=01                                         ~
                                                                                                                                                                                             55.1362
                                                                                                                                                                                                                --                                02-21/11
                                                                                                                                                                                                                                                  02121/11
                                                                                                                                                                                                                                                           AMOIJNT DUE ON SERV(CE C:ONl'RACT:
                                                                                                                                                                                                                                                                                                 nUI06102311
                                                                                                                                                                                                                                                                                                 DTH0620231!

                             1289
                             1289N  P~t Dall
                                  N POI;lt
                             WoustonTX
                             Houston
                                           Oak StI!
                                     TX 17055
                                               S1e 100
                                           77055
                                                                                                                                    INVOICE                                                                                                                                                    1,(147.30
                                                                                                                                                                                                                                                    EnclO&~ This
                                                                                                                                                                                                                                                    Em::IO;;/1       c.oupDf1 With '{t)~r
                                                                                                                                                                                                                                                               Tills coupon               ~t1)IfIlerTi,
                                                                                                                                                                                                                                                                                   YO\.lT I'llIYrnerrt,
                                                                                                                                                                                                                                                    Ma~ Check:
                                                                                                                                                                                                                                                    M8l\'e          P~yablij To:
                                                                                                                                                                                                                                                           Cl'teok ~ysOI~     TO:
                                                                                                                                                                                                                                                                  AMl'ECH ELE\'
                                                                                                                                                                                                                                                                  AM:rECH llLEVATOR SERVICES


                                                                                                                                                                                                                   006201 '196236 26 A"SDGT
                                                                                                                                                                                                             AT 01 00620179623826    A"'"$bGT
                                                                                                                                                                                                             MEMORIAL
                                                                                                                                                                                                             M~MORIAL                  CO"POUHDING PHARMACY
                                                                                                                                                                                                                                       COMPOUNDING PHARHACY
                           '1111 II '1 111 111 1111111'11,11111' ,IIII' 1111111111111'111111111,111
                           'l"III'IIIIIIIIII"II'II'''"HIII'iIlI''I''IIII'I'IIIIIII''111                                                                                                                      2918 SAN JACINTO
                                                                                                                                                                                                                      JACINtO 5T
                                                                                                                                                                                                                              ST
                                                   SERVICES
                                   AMTECH ELEVATOR SERVICfS                                                                                                                                                  HOUSTON
                                                                                                                                                                                                             HOIlSTON                                                     TX
                                                                                                                                                                                                                                                                          IX          77004-2108
                                   P,O. BOX 730437
                                   P.O.     7304'31
                                   DALLAS
                                   DALlAS                                               TX                                                                                                    ,,11111,111111'111111111"111,1111,,111'111'11,1111"1111 1'1,11,1
                                   15373"0437
                                   75373-0431

                                   PL.EA,SE S(;lHP COMREIiPONOENCE 10 YOUR.LOCAL OFFICE A$ $HOWN BEI.OW



                                                                                                                                                                                                    ODTH062D2311            5
                                                                                                                                                                                                    DDTHOb202311 0000104730 S
____ .~:-_
........... "':'~ ~ -,:"::",~~!",..;.:,,,
                 ... -~:__r.___ i""
            -: ....             ,..~   _____
                                    ........           .. -:0"
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                                                                                              ... DETACH RETUrlN
                                                                                              ....       RETURN DOCUMENT ALONG PERFORATION ...
                                                                                                                         AlONG PERf/oRATION ..
                                                                                                                            ELEVATO~ SERVICES
                                                                                                                     AMTECH ELEVATOR
       IINVOICE
         NVOIC E                                                                                           ..
                                                                                                           ~ SERVICE CONTFtACT
                                                                                                                     CONTRACT CHARGES ,",••
                                                                                                                                                                 ~"COMER NO,
                                                                                                                                                                 ~TOMeRNO,                               .                                                                            INVOICE
                                                                                                                                                                                                                                                                                      WYQICENO.
                                                                                                                                                                                                                                                                                              NO,

                                                                                                                                                                          553362                                                 02121/11
                                                                                                                                                                                                                                 02/21111                                          DTH062023) 1J
                                                                                                                                                                                                                                                                                   DTEl062023I
                 aUIwIN(l
                 BUIWm¢                          D'rHII00681
                                                 DTHS()0681                            MEMORIAL   COMPO'l.TN'Di:NG PJiAR.
                                                                                       MBMoRI}!.L COMPOtJm)l:NG    PHAR
                 CONTRACT
                ·COl'l'l'RAC'r                   ~H06202
                                                 DTB06202
                  SERVICE FROM                                03/01/11 TO 08/31/11                                                                                                              1,047,30
                                                                                                                                                                                                1.047.30
                 TOTAL CORRE.N'l' CHARGBS DUB
                       COltR:EN1' CllARQB.S                                                                                                                                                                                             1,047.30
                                                                              I/RI Clil lIDJUSTMEN'l' - • -
          IN ACCORPANCE WITH MITIl 1'1IE
                                       THE PItOVISION
                                            PROVISION FOI!
                                                        FOF- THE JillJOSTMEll."'l:
                                                                     JillJOSTf>iENT OF F'R;tC.E
                                                                                            PRleE AS SET FORTH IN THE CONTRACT   CON'rRACr
          EN'rERED   INtO BE~WEEN
          ENTj;:R~D IN'rO  BE'rWEEN O.   OS POR        SERVIC~ OF ELEVATOR EQOIPMEN'r,
                                             FOR THE SERVICE                           EQOIPMEm:':
          THE FORMER
                WRM&R PRICE OF    01'          165.77
                                               US. 77 IfaAS   E~EN ADJOST~b
                                                         AS B:EmN                         I~ICATEb BELOW 'B~D
                                                                       ADU'OST,"ED AS U®ICA"l'E:tJ                 ~SED U;<'ON   Tll-},: C~ES
                                                                                                                            UPON THE     CE"~ES
          THAT !lAVE
          TIIAT  ffAVE OCCv:R.ED
                       OCC~ IN THE       TIIE ELEVATOR EXANI~S'
                                                         l1iXAI<IImlRS' COST AND II>1           MATERtAL II>1DEX
                                                                                          I~ JI1ATBRXAL                 BETWEEN
                                                                                                            ~NDEX BETWEBW          JWU"AftY,2010
                                                                                                                                   J~AAY,2010
          AND      JANUARY • .<l01:l..
                   JANUARY,J011.          THE JillJU8TED   PRICE BECOMES
                                               ADJU8TED PRIGJ:       BECoMES EFFECTIVE
                                                                                 IWFEC'l'.IVE          ~CB
                                                                                                       MARCH 01, :;:Oli  2011 AND SRALL       RE~N
                                                                                                                                      Sf!l\LL REM.UN
          IN
          ;tN EFFECT              P~B~UAR1 2!!,
                       UNTIL FEBRUARY
              EFUOCT urJ'l'IL                  28, 2012 ~N  '1Iltlrn IT WILL $!!:$E SUBJECT
                                                                                       BUl\!J1i:CT TO  ADJUST~NT.
                                                                                                   oro AD.;rtJST'Io]i':NT.
           c:..AUSE 1
           ct.APSEl                - BASED
                                   M BA$ED ON CHANGES ;W    i'ROpUCEIi. M.J:!lTALS
                                                      ll'if PROPUCER.   MJ!:TAJ.,S AND METAl>   PRODO'C1.1le COI!4MODlT"i
                                                                                       METAJ... PRODOC'.I'8  GOMMODlT't INP'ltX;
                                                                                                                          INPEX;

                              (A)
                              (AI                               IS)
                                                                (Il)                                           (C)=:f,I(A
                                                                                                               (C)=li/A                                                   (P)
                                                                                                                                                                          ()JJ                                       (E)=C"D
                                                                                                                                                                                                                     (E)=C*D
             FORMER'INJ;lEX
             PQ~ lNOEX                                 CURlUl1NT I!ilDElX
                                                       CURll$NT  INIlEX                                 OF~GI!:
                                                                                                  RATIO OF  CW<NGE                                               JI1ATEl\IIIL
                                                                                                                                                          FOPNER Mr!.TElUAL
                                                                                                                                                         .FoRMER                                                 cm'RBWI' MATERIIIL
                                                                                                                                                                                                                 CURRENT MATElUAL
                1~6, 0000
                1$06.0000                                      215.0000                               109.6-9388
                                                                                                      109.693'5a

          cLAUSE            -aASElf-ON"ciOOidESINELgVAT~El\'M1~Sr
          ci'.lli!SE '2'2 - -iiAsEri"o~fcmJGES IN EL.gVA'l'01{-·EXAM~8 i"nOtmt'rCOS'l':
                                                                         116Dm;rcOST'
                   \Al
                   IA)                                                    (9)
                                                                          IE)                                  (C) =a./A
                                                                                                               ICI ",B/A                                                  (!J)
                                                                                                                                                                          (n)                                              (E) """e 1tWD
                                                                                                                                                                                                                           (3}"'C      Il
                PORMER
                FORMER                                      CuRRENT
                                                            CURR=.                                         RATIO OF                                               FORMBR
                                                                                                                                                                  FORMER                                                  CURRJ;lNT
                                                                                                                                                                                                                          CllRRE'"
            EXAMINERS' COST
            EXAUIMERS' COS'T
                       59.647~
                       59,6479
                                                         EXAMtNERS' COST
                                                         EXAM1;MERS'
                                                            ~2 .8059
                                                            62.8059
                                                                                                             C~GE
                                                                                                             CH.i\.NGE
                                                                                                           10S,2~440
                                                                                                           10S:.29440
                                                                                                                                                                     L~OR
                                                                                                                                                                     LAl30R
                                                                                                                                                                     ~65 .77
                                                                                                                                                                     165.17
                                                                                                                                                                                                                             ""'OR
                                                                                                                                                                                                                             L1C9OR
                                                                                                                                                                                                                             174.55                                  114.55 PSI!.
                                                                                                                                                                                                                                                                     174.55 FIRw) 110


                                         YOUR         mil        INVOICE AM'l'                                                                                                                                        1,047.30                          TOT~
                                                                                                                                                                                                                                                        TOTAl.




                                  FOR ANY QUEST.IONS
                                          QUESTTONS CONCERNING THIS INVOICE, PLEASE TELEPHONE 1·713·923·7251
                                                                                                1-713-923-7251
                                 WRIT£ AMTECH
                              OR WRITE ~CH ELEVATOR         128~ N POST OAK
                                                            12Sg        OAR STE 100   HOUSTON          TX 77055
                                                     PAYMENT DUI
                                                             DUS UPON RBCEIPT-PLBASB
                                                                      RECEIPT'PLBASE PAY PROMPTL~
                                                                                         ~OMPTL~
         WE CERTIFY THAT tHE (\0005_
         .'C,Rr''''"""
         STANDARDS
         ST.r.NDAROS ACT, AS AMENDED.
                                           no,
                               0000. . . . . I'ItODUCED.1N
                                             ""'DO"'" IN COMPJJANCE
                                              ~ULATlON$ ANIl.
                                      AND OF REGULATIONS
                             AMENDEP,Afm"                  AND, ORDERS
                                                                              AL~ APPLIOABLE
                                                                         WITH Ale
                                                           cOMPllA""' W'llI
                                                                ORI'IERS OF THE
                                                                            THE. UtllTED
                                                                                                   .....,."""'" OF
                                                                                    AP'LI",",CO REQUIRE.!.mNTS
                                                                                         S'fA.TEl; DEPARTMENT
                                                                                 UMTEO STATES
                                                                                                                  OF sECTIONS G. l.11ND 12 OF
                                                                                                   DEJlAlUMSIIT OF LAIlOR
                                                                                                                   LABOA: ISSUED UNDER:
                                                                                                                                 UNOER seC110N
                                                                                                                                                THE FAIR !.AIlOR
                                                                                                                                             oF TH'
                                                                                                                                        8&CT10H 1. HEREOF,
                                                                                                                                                           LABOR
                                                                                                                                                1-4lfERf,Of.
                                                                                                                                                                                                                                  """0" .' ....0"
         !lXf~'I!'O~t~}lW~.,sIt.e'tP~NfWf%l)Rm
         ~f~'lfol:fGlmrn:i'~,WcR~t~er~ ~,A.'lf8FP~HE~~~~'ltlt~eY~\f~M."1ifd&riW,'W',t,lM!\.~~9~tl:.r:
                                               '£~~Rq~HE"1Jlx.o:ilfrlk\ttt~affif~~Af~1V,'W'.tZI\r~R9~t8tJ:E OF                                                                                                                                                                         TIEAR
                                                                                                                                                                                                                                                                                           INVOIe!:. AT
                                                                                                                                                                                                                                                                                                000101
                                                                                                            OF                                                                                                                                                                                        THIO
                                                                                                                                                                                                                                                                                       THE INVOICE AT THE


 \If      006201"1 VI                                                                               ,                                                                                                                                                                                                Pnge loft
                                                                                                                                                                                                                                                                                                     Page I Mt
1 :09 PM                                                        MINU RX LTD
01/21115
01121115                                                Account QuickReport
Accrua l Basis                                         January through December
                                                                       Dece mber 2012

                      Type                Date
                                          Data      Num               Name                    Memo
                                                                                              Mem o            Split          Amount

           Security
           Securi ty Services
             Check.
             Check                    01131112
                                      01 /3111 2   7214     Armadillo Security Service   99425            AO COMPASS ..          1,606.20
             Check                    01131112
                                      01131/12     7217     Security Nationwide Inc      1015             AOCOMPASS
                                                                                                          AO COMPASS ..          1,510.09
             Check                    02115112
                                      02115/  12   7245     Armadillo Security Service   99445                        ..
                                                                                                          AO COMPASS ...         1,314.90
             Check
             Check.                   02/15112
                                      02115/  12   7254     Security Nationwic'e
                                                                       Nationwide Inc    1016             AO COMPASS ..
                                                                                                          AD                     1.510.09
                                                                                                                                 1,510.09
             Check                    03101  /12
                                      03101/12     7279     Security Nationwide Inc      1017             AO COMPASS ..          1,510.09
             Check                    03115/12
                                      OJJ15/12     7305     Armadillo
                                                            Armadil!o Security Service   99465            AO COMPASS ..          1,606. 20
                                                                                                                                 1,606.20
             Check
             Check.                   03115112
                                      OJJ15/  12   7309     Security Nationwide Inc      1018             AD
                                                                                                          AO COMPASS ..          1,812. tl
                                                                                                                                 1,812.11
             Check                    03129112
                                      03/29112     1021     Security Nationwide Inc      1019             Al
                                                                                                          A1 COMPASS ..          1,661.10
             Credit Card Charge       04/02112
                                      04102/12     041012   Digital Alarm Systems                         AMEX 76008               188.36
             Check
             Check                    04/1511 2
                                      04115112     1047     Armadillo Security Service   99526            A1 COMPASS ..
                                                                                                          AI                     1,602.15
             Check                    04115112
                                     04/  15/ 12   1050     Dig ital Alarm Systems
                                                            Digital                      176860           A1 COMPASS ..            138.02
             Check                   04115112      1054     Security Nationwide Inc      1020             A1 COMPASS .....
                                                                                                          AI                     1,929.56
                                                                                                                                 1.929.56
             Check                   05115112      1126     Security Nationwide Inc      1021 • 1022
                                                                                         1021-1022        A1 COMPASS .....
                                                                                                          AI                     3,171.19
                                                                                                                                 3,171 .19
             Check                   005115112
                                       5/15112     1123     Armadillo Security Service                    A1
                                                                                                          AI COMPASS .....       1,468.64
             Check                   05/31112      1011     Security Nationwide Inc      1023             A1          ..
                                                                                                          AI COMPASS ...         1,661.10
                                                                                                                                 1,661 .10
             Credit Card Charge      06104112
                                     06/04112      060812   Digital Alarm Systems                         AMEX
                                                                                                          AM EX 61001              321.51
             Check                   06115/12
                                     06/15112      1041     Armadillo Security Service
                                                            ArmadHio                     99524            Al COMPASS ..
                                                                                                          A1                     1,768.04
                                                                                                                                 1.768.04
             Check
             Check.                  06115112      1045     Security Nationwide Inc      1024             Al COMPASS ..
                                                                                                          A1                     1,661.10
                                                                                                                                 1,661 .10
             Credit Card Charge      07(02/
                                     07102112 12   071112   Digital Alarm Systems                         AMEX
                                                                                                          AM EX 76008              188.36
             Check                   07117(12
                                     07/17112      1108     Security Nationwide Inc      1025& 1026
                                                                                         1025&1026        A1 COMPASS ..
                                                                                                          Al                     3,171 .19
                                                                                                                                 3,171.19
             Credit Card Charge      07/26112
                                     07/26(12      081012   Digital Alarm Systems                         AMEX 76008               238.16
             Check
             Check.                  08115/12
                                     08/15112      1167     Security Nationwide Inc      1027-1028
                                                                                         1027 · 1028      A1 COMPASS ..
                                                                                                          AI                     3,322.20
             Credit Card Charge      10101112
                                     10/01112      101112   Digital
                                                            Dig ital Alarm Systems                        AMEX 76008               188.36
             Check                   10/02/12
                                     10102112      1267     Security Nationwide tnc
                                                                                  Inc    1029  & 1030
                                                                                         1029&1030        Al
                                                                                                          A1 COMPASS ..
                                                                                                                      ..         3,473.21
             Check                   10/02112
                                     10(02/ 12     1271     Security Nationwide Inc      1031             A1 COMPASS ..
                                                                                                          Al          ..         1,510.09
             Check                   10115/12      1301     Security Nationwide Inc      1032             A1 COMPASS ..
                                                                                                          Al                     1,510.09
             Check                   11101112
                                     11/01  /12    1346     Security Nationwide Inc      1033             Al COMPASS ...
                                                                                                          A1          ..         1,661.10
                                                                                                                                 1,661 .10
             Check                   11121/12
                                     11/21  (12    1388     Security Nationwide Inc      1034&1035
                                                                                         1034  & 1035     A1
                                                                                                          AI COMPASS ...
                                                                                                                      ..         3,473.21
             Check                   12/12112
                                     12112112      1468     Security Nationwide Inc
                                                                                  In c   1036             AI COMPASS ..
                                                                                                          A1                     1,370.14
             Check
             Check.                  12/29112
                                     12129112      1486     Security Nationwide Inc      12103-12114.
                                                                                         12103·1211 4 .   AI
                                                                                                          A1 COMPASS ..          2,869.17
           Total Security Services                                                                                              49,415.73

       TOTAL
       TOTA L                                                                                                                   49,415.73




                                                                                                                                             Page 1
                                                                                                                             AR 000102
                                                                EXHIBIT G
1
1:09
  :09 PM                                                      MINU RX LTD
01121115
01/21/15                                              Account QuickReport
Acc r ual Bas
Accrual   Basis
              is                                    January through Dece mber 2013
                                                                    December

                      Type               Date     Num
                                                  N"m               Nam
                                                                    Namee               Memo              Split
                                                                                                          Sp lit         Amount

                     Serv ices
            Security Services
              Credit Card Charge      01/01/13
                                      01101/13   011113   Digital Alarm Systems                      AMEX 76008               188.36
              Check                   02115113
                                      02/15/13   1583     Security Nationwide Inc   1036,1038 ,L..
                                                                                    1036,1038,1      A1 COMPASS ..          3,160.13
              Check                   03/01113
                                     03/01/13    1615     Security Nationwide Inc   1041             A1 COMPASS ....        1,661.10
                                                                                                                            1,661 .10
              Check                   03119113
                                     03119/13    1665     Security Nationwide Inc   1042             A1 COMPASS ..
                                                                                                     Al                     1,359.08
              Check                   04101113
                                     04/01113    1707     Security Nationwide Inc   1043             A1 COMPASS ..
                                                                                                     Al                     1,661 .10
                                                                                                                            1,661.10
              Credit Card Charge     04/01113
                                     04101113    041013   Digital Alarm Systems                      AMEX
                                                                                                     AM EX 76008              188.36
              Check                  04115113
                                     04/15/13    1744     Security Nationwide Inc   Iny
                                                                                    Inv 1044         A1
                                                                                                     At COMPASS ..          1,510.09
              Check                  04130/13
                                     04130113    1771     Security Nationwide Inc   Iny. 1045
                                                                                    Inv.1045         Al
                                                                                                     A1 COMPASS ..
                                                                                                                 ..         1,661 .10
                                                                                                                            1,661.10
              Check                  05/20113
                                     OS/20/13    1806     Security Nationwide Inc   1046             A1
                                                                                                     AI COMPASS ..          1,661 .10
                                                                                                                            1,661.10
              Check                  05130/13
                                     05130113    1820     Security Nationwide Inc   1047             AI COMPASS.,.. .
                                                                                                     A1 COMPASS             1,661.40
              Check                  06115113    1853     Security Nationwide Inc   1048             A1 COMPASS ..
                                                                                                     AI                     1,661.10
                                                                                                                            1,661 .10
              Credit Card Charge     07/01113
                                     07101113    071113   Digital Alarm Systems                      AMEX 76008               188.36
              Check                  07/15/13
                                     07115113    1883     Security Nationwide Inc   1049,1050        Al
                                                                                                     A1 COMPASS ..          3,020.18
              Credit Card Charge     07122113
                                     07/22/13    080913   Digital Alarm Systems
                                                                        Sys tems                     AM EX 61001
                                                                                                     AMEX                      92.01
                                                                                                                               92 .01
              Check                  07131113
                                     07131/13    1904     Security Nationwide Inc   Iny
                                                                                    Inv 1051         Al
                                                                                                     A1 COMPASS._
                                                                                                        COMPASS ..          1,661.10
              Check                  08/15t13
                                     08115113    1937     Security Nationwide Inc   Inyl0S2
                                                                                    Inv 1052         AI
                                                                                                     A1 COMPASS ..          1,812.11
              Check                  08131113
                                     08131/13    1955     Security Nationwide Inc   Iny 1053
                                                                                    Inv              A1 COMPASS ..          1,661 .10
                                                                                                                            1,661.10
              Check                  09115113
                                     09/15/ 13   1976     Security Nationwide Inc   Iny 1054
                                                                                    Inv              A1 COMPASS ...
                                                                                                                 ..         1,661 .10
              Credit Card Charge     09t30/13
                                     09130113    100913   Digital Alarm Systems                      AMEX
                                                                                                     AM EX 61001              188.36
              Check                  10t01f13
                                     10101113    1989     Security Nationwide Inc   Iny 1055
                                                                                    Inv              A1
                                                                                                     At COMPASS ..          1,510 .09
                                                                                                                            1,5tO.09
              Check                  10fl5113
                                     10115113    2012     Security Nationwide Inc   Iny. 1056
                                                                                    Inv.1056         Al COMPASS ...
                                                                                                     A1          ..         1,561 .10
                                                                                                                            1,661.10
              Check                  10131113
                                     10/31f13    2037     Security Nationwide Inc   Iny
                                                                                    Inv 1057         A1
                                                                                                     AI COMPASS ..          1,812. tl
                                                                                                                            1,812.11
              Check                  11117113
                                     11117/13    2058     Security Nationwide Inc   tny.
                                                                                    Inv. 1058        A1          ..
                                                                                                     At COMPASS ...         1,627.54
                                                                                                                            1,627 .54
              Check                  11130113
                                     lt/30113    2080     Security Nationwide Inc   Iny.
                                                                                    Inv. 1059        Al COMPASS ..
                                                                                                     A1                     1,661.10
              Check                  12115113
                                     12f15/13    2116     Security Nationwide Inc   1060,1061        A1 COMPASS ..
                                                                                                     AI                     2,718.16
           Total Security Services                                                                                         37,647.34

        TOTAL                                                                                                              37 ,647.34
                                                                                                                           37,647. 34




                                                                                                                                        Page 1
                                                                                                                        AR 000103
1:08
1 ;08 PM                                                             MINU RX LTD
01/21/15
01 /2 1t15                                                             QuickReport
                                                               Account Quick Report
Accruall Basis
Accrua                                                                    December
                                                          January through Dece mber 2012
                                                                                    201 2

                        Type               Date        Num
                                                       N"m                  Name                      Memo                  Spli
                                                                                                                            Splitt         Amount
                                                                                                                                           Amou nt

             Maint & Repairs/Bl
             Malnt               dg & Grounds
                      Repairs/B ldg   G rounds
               Credit Ca rd Charge
                       Card           01115/12
                                      01/15/12       020512      Bering Home Center                                   AM EX 340061..
                                                                                                                      AMEX   34006/ ...        202.89
               Check                  01126112
                                      01/26/12       7213        Sam's Club                   supplies                AO COMPASS .....         204.87
               Check                  01/27/12
                                      01/27112       WD                                                               AO COMPASS ...  ..    1,500.00
               Credit Card Charge     02/05112
                                      02/05/12       030712      Home Depot                                           AMEX 34006/
                                                                                                                             34006J...
                                                                                                                                    .. .       228.12
               Credit Card Charge     02115112
                                      02/15/12       031112      OEC"NAESAQUISITIONC
                                                                 OEC'NAE SAQU ISITIONC                                AM EX 76008
                                                                                                                      AMEX                     523.65
               Check                  02129/12
                                      02/29/12       WD                                                               AO COMPASS ..         1,000.00
               Credit Card Charge     02/29/12
                                      02129/12       031112      ABC Pest Pool & Lawn                                 AM EX 76008
                                                                                                                      AMEX                     146.35
               Credit Card Charge     02129/12
                                      02/29/12       031112      ABC Pest Pool & Lawn                                 AM EX 76008
                                                                                                                      AMEX                      77.93
               Check                  03101 / 12
                                      03/01/12       7283        Sam's Club                   maint supps             AO COMPASS .....         189.34
               Credit Card Charge     03110/12
                                      03/10/12       040612      Wal-Mart
                                                                 Wal·Mart                                             AMEX 3340061..
                                                                                                                              40061 ..         173.45
               Check                  03114f12
                                      03/14/12       7304        Cash                                                 AO COMPASS ...  ..    1,000.00
               CrOOit
               Credit Card Charge     03127112
                                      03/27/12       04101 2
                                                     041012      Crown Overhead Door          building door repair    AM EX 76008
                                                                                                                      AMEX                  1,036.00
               Credit Card Charge     03/30/12
                                      03/30112       041012      OEC"NAESAQUISITIONC
                                                                 OEC'NAESAQUISITIONC          Maint
                                                                                              Main!                   AM EX 76008
                                                                                                                      AMEX                  1,099.74
               Check                  04f04lt2
                                      04/04/12       WD                                                               A1 COMPASS ....       2,000.00
               Check                  04/15112
                                      04/ 15/12      1051        Robbie's
                                                                 Robbie    Lock & Key Shop
                                                                        's lock                                       Al
                                                                                                                      A1 COMPASS ....          234 .36
                                                                                                                                               234.36
               Check                  04/15112
                                      04/15/12       1053        Willowbrook AC               3323                    A1 COMPASS ..         1,627.00
               Check                  04118/12
                                      04/18/12       1070        Zeva Home Construction       Break-in repairs        A1 COMPASS .....
                                                                                                                      Al                    1,681.31
                                                                                                                                            1,681.31
               Check                  04118/12
                                      04/18/12       1071        Zeva Home Construction       break-in repairs        Al
                                                                                                                      A1 COMPASS ..         2,844.56
               Check                  04/25/12       1080        Sam's Club                                           A1 COMPASS .....
                                                                                                                      Al                       199.43
               Credit Card Charge     04/26/12       050712      Parata Systems LLC                                   AMEX
                                                                                                                      AM  EX 34006/ ...     1,338.71
               Credit Card Charge     04/30112
                                      04/30/12       051112           Pes! Pool & Lawn
                                                                 ABC Pest                                             AMEX 76008                77.93
               Check                  05/05112
                                      05/05/12       1106        Cash                                                 A1 COMPASS ...
                                                                                                                      Al                    2,000.00
               Credit Card Charge     05128112
                                      05/28/12       060612                      LLC
                                                                 Parata Systems lLC                                   AMEX 34006/ .....     1,338.71
               Credit Card Charge     05/28/12
                                      05/28112       060812      Bering Home Cen
                                                                               Center
                                                                                   ter                                AMEX 61001                44.83
               Check                  05131112
                                      05/3 1/12      1012        Willowbrook AC                                       Al
                                                                                                                      A1 COMPASS ..            349.50
               Credit Card Charge     05131/12
                                      05/31/12       061012      ABC Pest Pool & Lawn                                 AMEX 76008               146.35
               Check                  06108112
                                      06/08/12       1023        Zeva Home Constructlon
                                                                              Construction    Repairs due to Rob ..   A1
                                                                                                                      AI COMPASS ..   ..    9,321.22
               Credit Card Charge
               CrOOi!                 06J29/12
                                      06/29/12       071112      ABC Pest Pool & lawn
                                                                                   Lawn                               AMEX 76008                77.93
               Check                  07102/12
                                      07/02/12       WD                                                               A1
                                                                                                                      Al COMPASS ..         1,500.00
               Check                  07/10112
                                      07/10/12       1097        Willowbrook AC               4067                    A1
                                                                                                                      Al COMPASS ..  ..     2,920.00
               Check                  07/17112
                                      07/17/12       1109        Rueben Alejandro                                     A1
                                                                                                                      Al COMPASS ..            495.00
               Check                  07/25/12       1128        Zeva Home Construction       Robbery Repairs         Al COMPASS ..
                                                                                                                      A1             ..     3,677.80
               Check                  07/31/12       1143        Elevator Technical Service                           Al COMPASS ..
                                                                                                                      A1             ...       145.00
               Credit Card Charge
               CrOOit                 08130112
                                      08/30/12       091012      ABC Pest Pool && Lawn                                A M EX 76008
                                                                                                                      AMEX                     146.35
               Credit Card Charge     08130/12
                                      08/30/12       091012      ABC Pest Pool && Lawn                                AM EX 76008
                                                                                                                      AMEX                      77.93
               Check                  09/15/12
                                      09115/12       1225        Cash                                                 A1 COMPASS ..         1,000.00
                                                                                                                                            t ,OOO.OO
               Deposit                09/30112       DEP                                      SEPT.
                                                                                              SEPT. 2012 DEPO..       A1 COMPASS ...
                                                                                                                      Al             ..      -321.51
               Credit Card Charge     11120112
                                      11/20/12       120912      Crown Door LTD               specially
                                                                                              specialty retail        AMEX 61001               175.00
              Check                   12112112
                                      12/12/12       1466        Robbie's Lock & Key Shop     097518                  A1 COMPASS ..            125.74
              Check                   12/12/12       1467        Rueben Alejandro             07/09/12- 1211 0112
                                                                                              07/09/12-12/10/12       AI
                                                                                                                      A1 COMPASS ..            540.00
             Total Maint
                   Main! & Repa irs/Bldg &
                           Repairs/Bldg  & Grounds                                                                                            ,1 45.49
                                                                                                                                           41 ,145.49

      TOTAL                                                                                                                                41,145.49
                                                                                                                                           41 ,145.49




                                                                                                                                                     Page 1
                                                                                                                                     AR 000104
1 :08 PM
1:08                                                                 MINU RX
                                                                          RXLTD
                                                                             LTD
01 /2 1/155
0112111                                                        Account QuickReport
Accrual
A cc rual Bas
          Basiis
               s                                          Ja nuary tthrough
                                                          January    hrough December 2013
                                                                                     201 3

                        Type               Date        Nom
                                                       Num                   Name
                                                                             Nam e                        Memo
                                                                                                          Mem o                 Split         Amount
                                                                                                                                              Am ount

              Malnt
              Ma int & Repairs/Bldg & Ground
                                       Groundss
                 Credit Card Charge    01/18/13
                                       01/18113      020913                                                                AMEX 61001          2,155.26
                 Check                 01/31113      1550        Robbie's Lock & Key Shop       098090                     A1 COMPASS ..
                                                                                                                           AI            ..       233.45
                 Credit Card Charge    02/28/13
                                       02128113      031113      ABC Pest Pool & Lawn                                      AMEX 76008             150.75
                 Creditit Card Charge
                 Cred                  03/25/13
                                       03125/13      040813      Air Clean Systems                                         AMEX 61001          1,380.00
                 Credit Card Charge
                               Cha rge 04/20/13      050913      Wal-Man
                                                                 Wal·Mart                       SUPLLl ES
                                                                                                SUPLLlES                   AMEX 61001
                                                                                                                                  61001           208.04
                 Credit Card Charge    05/03/13      051013      ABC Pest Pool & Lawn                                      AMEX 76008             150.75
                Check                  05115113
                                       05/15/13      1795        Lighting Inc Plumbing & H ..
                                                                 Ughllng                        Repairs                    A1 COMPASS ...
                                                                                                                           At            ..       152.63
                Check                  05/20/13
                                       05/20113      1807                Help ing Hand
                                                                 United Helping                 Flourescentt Ught
                                                                                                F!ourescen           ..
                                                                                                             light T ...   A
                                                                                                                           AI1 COMPASS
                                                                                                                               CO MPASS ...
                                                                                                                                         ..       518.96
                Credit Card Charge     05/22/13
                                       05122113      060713      Crown Door LTDLTO                                         AM
                                                                                                                           AMEXEX 61001
                                                                                                                                  6100 1          195.00
                Check                  07/15/13
                                       07115113      WD                                                                    A1
                                                                                                                           AI COMPASS .....    1,500.00
                Check                  08/06/13      1913        Strutton Plumbing co.,
                                                                                   co., Inc.
                                                                                        Inc.    Inv... 36977,
                                                                                                In     36977, 37094        A1
                                                                                                                           AI COMPASS .....       350.00
                Check                  08/13/13
                                       08/13113      1925        Rueben Alejandro                                          A1
                                                                                                                           AI COMPASS ..          830.00
                Check                  08/23/13
                                       08123113      19411
                                                     194         Cash                                                      A1 COMPASS ..
                                                                                                                           AI                  1,500.00
                Credit Card Charge     08/29/13
                                       08129f13      091013      ABC Pest Pool & Lawn                                      AM
                                                                                                                           AMEXEX 76008           150.75
                Check                  08/30/13
                                       08130113      WD                                                                    A1
                                                                                                                           AI COMPASS ..       1,500.00
                Check                  08/31/13
                                       08131113      1956        Willowbrook AC                 Inv 4570                   A1 COMPASS ..
                                                                                                                           AI                     362.00
                Credit Card Charge     10101/13
                                       10/01113      100913            Oepot
                                                                 Home Depot                                                AMEX 61001              52.39
                Check                  10/14/13
                                       10114113      2005        Nelson Suarez, Sr. .- Exp.
                                                                                       Exp.     Lightt Bulbs
                                                                                                Ligh                       AI
                                                                                                                           A1 COMPASS .....        18.34
                Check                  10/15/13
                                       10/15113      2013        Rueben Alejandro                                          A1 COMPASS •..
                                                                                                                           AI            ..       265.00
                Check                  11/01/13
                                       11101/13      2028        Willowbrook AC                 Inv... 4483
                                                                                                In                         A1 COMPASS ..
                                                                                                                           AI                     330.00
                Credit Card Charge     11/24/13
                                       11124/13      120913      Bering Home Center                                        AMEX 6 6100t
                                                                                                                                   100 1          526.95
                Check                  11/25/13
                                       11125/13      2072        Mauncio Vega
                                                                           Veg a                Contract Yardman           A1 COMPASS
                                                                                                                           AI  CO MPASS ..         40.00
                Credit Card Charge     11/27/13
                                       11127113      121113      ABC Home &  & Commercial                                  AMEX 76008             150.75
                Check                  12/15/13
                                       12/15113      2112        Elevator Technical Service     23510                      A1 COMPASS ..
                                                                                                                           At                     250.00
                Check                  12/15/13
                                       12/15113      2114        Willowb rook AC
                                                                 Willowbrook                    Inv 4715                   A1 COMPASS ..
                                                                                                                           At                  1,090.00
                Credit Card Charge     12/19/13      010914      Crown Door LTD                                            AM EX 61001
                                                                                                                           AMEX                   145.00
                Credit Card Ch Charge
                                 arge  12/19/13      010914
                                                     01091 4     Crown Door L  TO
                                                                              LTD                                          AM
                                                                                                                           AMEXEX 61001        2, 400.00
                                                                                                                                               2,400.00
                Check                  12/20/13
                                       12120/13      WD                                                                    A1
                                                                                                                           AI COMPASS .. ..    1,213.47
                          & Repairs/Bldg &
              Total Maint &              & Grounds                                                                                            17,819.49
                                                                                                                                              17,819. 49

       TOTAL                                                                                                                                  17,819.49




                                                                                                                                                        Page
                                                                                                                                                        Pag o1
                                                                                                                                        AR 000105
1/1212015                                                    Franchise Tax Account Status - Officers and Directors



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                                                  Title                                 N arne and Address
                                    PRESIDENT
                                    PRESiDENT                             BRETT L GARNER
                                                                          5718 BELLAIRE BLVD
                                                                          HOUSTON, TX 7708
                                                                                       77081I
                                    DIRECTOR                              BRETT L GARNER
                                                                          5718 BELLAIRE BLVD
                                                                          HOUSTON, TX 77081
                                     CIlIEFOPER
                                     CHIEFOPER                            WILLIAM H HICKS
                                                                          5718 BELLAIRE BLVD
                                                                          HOUSTON, TX 77081
                                    DIRECTOR                              WILLIAM H HICKS
                                                                          5718 BELLAIRE BLVD
                                                                          HOUSTON, TX 77081

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                                                                                                                              AR 000106
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1/3012015                                                     Franchise Tax Account Status·
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                                                 Officers and Directors
                                                          PROVIDIAN HOLDINGS, INC.
                                                               Report Year: 2014

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                                                                                            Puhlic Information Report (PIR)
                                                                                                                      (pIR)
            processed by the Secretary of State (SOS). PIRs filed with annual franchise tax reports are forwarded
                                                                                                        fonvarded to the SOS.
            After processing, the SOS sends the Comptroller an electronic copy of    the information, which is displayed on
                                                                                  ofthe
            this web site. The information will be updated as chang(!s
                                                                changes are received from the SOS.

            You may order a copy ora
                                 of a Public Information
                                             Infonnation Report from
                                                                fTOm open.records@cpa.state.tx.us
                                                                     open.rceordsr(1!cpa.state.tx.us or Comptroller of
            Public Accounts, Open Government Division, PO Box 13528, Austin, Texas 78711.


                                                   Title                               Name and Address
                                     PRESIDENT                             KHYATI UN DAVIA
                                                                           KHYATIUNDAVIA
                                                                           2918 SAN JACINTO
                                                                           HOUSTON, TX 77004

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                                                                                                                           AR 000107
https:llmycpa.cpa.state.tx.us/coa/servlet/cpa.app.coa.CoaOfficer
https :I/mycpa.cpa.state.tx.uslcoa/servlet'cpa.app.coa.CoaOfficer       EXHIBIT I                                                       '"
                                                                                                                                        111
                                                                                                                                                                                          DATE (MMJDDIYYYY}


  PRODUCER
            ACORQ,.
            ACORQ
          713.528.1616
                                                            CERTIFICATE OF LIABILITY INSURANCE
                                                                         FAX 713.529.4957                            THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
                                                                                                                                                                                 I        08/06/2009

   John S. Dunn &
                & Son Inc
                                                                                                                     ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
                                                                                                                     HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
    2200 WAlabama #200                                                                                               ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
    POBox 980608
    Houston.
    Houston, TX 77098                                                                   -   - ---- -- --.----
                                                                                                                   INSURERS AFFORDING COVERAGE                                              NArc #
  INSURED Avaiit 'Medical
  INSURW Avant   'M'ed-fCil -Graii-ii,
                             GrOl.ip;---PA---
                                       PA                                                                          INSURERA:     Assurance Company of America
          dba Allied Medical Centers                                                                               INSURER II:
          5718 Bellaire Blvd.                                                                                      INSURERC:
          Houston, TX 77081                                                                                        WStIRERO:
                               ;                                                                                   INSURERS:
  COVERAGES
        THE POLICIES OF INSURANCE LISTED BelOW HAVE BEEN ISSUED TO THE INSURED NAMEDABOVE FOR THE POlICY PERIOD INDICATED. NOlWITHSTANDING
        ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TOWHlCH THIS CERTlFlCATE MAY BE ISSUED OR
        MAY PERTAIN. THE INSURANCE AFFORDED BY THE POlICIES DesCRIBED HERSN IS SUBJECT TO All THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
        POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
                           -- •.. _-----------.



                           T-__                                                                                                   ~
 INSR~~                                 TYPE OF INSURANCE                       POUCY NUMBER                    •&JMf"EFFECTIVE                                              UMI'IS
 LTR NS
                           GENEIlAL LlASlUTY
                           GENERAL  llAlllUTY                                        PPS4082S216 07/08/2009                        07/08/2010         I<ACH OOOtIRREHCE              $          1.OOO.OO(
                           X1      COMMERCIAl GENERAlllA31UTY
                                                      UASUn                                                                                          .~T?ea~)                        $          1,OOO,OO~
                       ~_-
                       t              I CI AJMS WillE
                               ' _- ' ] CtAIMS  MAIlE      [K]
                                                           [~J OCCUR
                                                               OCCUR                                                                                  MED exP (My _person)           $               lO,OOe
   A                                                                                                                                                                                            1,OOO,OO~
   A                   [--1-
                          .-1
                        ___ 1 ______
                                                            ----                                                                                      PEftSONAL & ADV INJURY
                                                                                                                                                      GENERALAGGReGATE
                                                                                                                                                                                     $
                                                                                                                                                                                     $          2.fOOO.OO~
                                                  ---   .--._----_._--
                           GE.'N'L AGG~r~E LIMIT           AP{!:,~s                                                                                   PRODUCTS -COMPlOP AGG $                   2.000.00(]
                               1POLICY              PRO-'
                                                    JECT  lOC     !
                                                                    '"
                                                                   PER


                                                                                                                                                                                     ,
 .-.~




                       ~TOMOBll.e UASIUTY                                                                                                             COMBINED SINGlE
                                                                                                                                                      COMfIINEO   SINGLE LIMIT
                                                                                                                                                      (Sa accident)
                                                                                                                                                      (fa aedd""lj
                                                                                                                                                                                     $
                                   NNAlflO
                                   foNfAUTO
                       I--
                                   AU OWNED AUTOS
                                   All

                       -
                                 SCIi~OWLEO AUTOS
                               I SCl-Il:OUlEO
                                                                                                                                                      BODILY INJURY
                                                                                                                                                      (Per person)                   •
                                                                                                                                                                                     $


                       --          IiIREDAIHOS
                                   HIREOAUrOS
                                   NON·OWNFO
                                   NON·OWNFfl AUTOS
                                                                                                                                                      BOO!l..Y INJURY
                                                                                                                                                      BODIlY
                                                                                                                                                      (P...- aa:I!IenI)
                                                                                                                                                      (Per   ao:ci<!ent)             $
                        -_o-
            j          -           .- ------   ._._------_._----                                                                                      PROPERTY DAMAGE
                                                                                                                                                      (Pet accident}                 •
                                                                                                                                                                                     $;


                                                                                                                                                                                     S
                       =j
                        GARAGE LIABIlITY                                                                                                             AUTO ONLV - EAACClDENT
                                   Nl'{AUTO
                                   foNf AUTO                                                                                                                               EAACC     $
                                                                                                                                                      OlHERTHAN
                                                                                                                                                     AUTO ONLY:             AGG      $
            !           1O)(C(551
                        EXCESS I U"'!lRELtA LIABILITY
                                  UMBRELLA UASllllY                                                                                                   EACH OCCURRI:NCE               $;
                           -I1                    f'- J
                                                  [J
                       n
                                   OCCUR                  CIAlMS MADIC
                                                          ClAIMS MADE                                                                                AGGREGATE                       $
                                                                                                                                                                                     $
                                   PFOUCTI8LE                                                                                                                                        $

            i          RETENTION     S                                                                                                                                               $
              WORKERS COMPENSATION
              AHD eMPLOYERS' UABlUTY
                                                                                                                                                        ·l~~"W~T            I~-
                foNf   PROPRIEroRIPARTNERlEXeCUT~                                                                                                    EL. EACH ACCIOEI'IT             S
                OFfICER./MEMBER EXCLUDED?
                (Mandalory In Nltl_                                                                                                                  E.l. tl\S£ASE -EA EMPI.O"tEE S
            : " yes. do.crib£> under
-_..._._.     SPECIAl. PROVISIONS below                                                                                                              E.L. DISEASE -POlICY UMIT       $;
                OrnER




 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDEO BY EfftJORSe/lENT I SPECIAL PROVISIONS
 Sterling Practice Management Inc. is Named Additional Insured as respects General liability.



 CERTIFICATE HOLDER                                                                                               CANCELLATION
                                                                                                                   SIIQlJl..O ANY OFnIE A8OWOESCRl8ED POlICIES BE CANCELLED tmFORE THE ~PlRATIOH      ,
                                                                                                                   DATE
                                                                                                                   011. TE THEREOF.
                                                                                                                           THEReOF, THEtsSUlNG
                                                                                                                                    TIlE ISSUING INSURER WIlL
                                                                                                                                                         WILL ENDeAVOR     MAll ~ DAYS WRITTEN
                                                                                                                                                              ENDEAOJOR TO MAIL
                                                                                                                   NonCE TO THE CERTIRCATE
                                                                                                                   NOTICE       GERT1FtCi\TE 1I0LOER
                                                                                                                                             HOLOER NAMED
                                                                                                                                                     NMlEO TO TilE
                                                                                                                                                              THE LEFT.
                                                                                                                                                                   LEFT, BUT FAlLURI'; TO 00 so
                                                                                                                                                                         BUTFAILURE          SO SHALL

                                                                                                                   IMPOSE. NO OBLIGATION OR UABIUTV
                                                                                                                   UAPOS£tlOOBUQAltOK       UA81UTY OF fJN(
                                                                                                                                                       /IN{ KIND
                                                                                                                                                            KINO UPON TtlE
                                                                                                                                                                      THE INSURER. ITS AGENTS OR

                       Sterling Practice Management Inc.                                                           REPRESENTATIVES.
                       5718 Bellaire Blvd.,
                                     Blvd •• Suite 100                                                            AI1fKORIZED REPRESENTAtIVE
                       Ho~ston, TX 77004                                                                           20-1B/SUSANA                                    ~11Lu./
ACORD 26 (2009/01)                                                                                                                @ 198'S-ZOGe ACORD        CORPORATION. All rfgl1ts reserved.
                                                                          The ACORD name and
                                                                                         ~nd logo are registered martls
                                                                                                                 marks of ACORD

                                                                                                                                                                                     AR 000108
                                                                                                    EXHIBIT J
                                                                                                                                                                                              AR 000109
                       . AVANT MEDICAL GROUP ,P.A.                                                                  WHITNEY NATIONAL BANK
                                                                                                                       HOUSTON, TEXAS
                                                                                                                                                                                       ~
                                    .114301·10 EAST FREEWAY
                                       HOUSTON, TX 77029                                                                  35·96·1130
                                                                                                                                                                   '6(3/01
                                                                                                                                                                      I                .0
                                                                                                                                                                                       i5


           ~~YD~6~E eIlDid100tlv.w~I'~C-·
                               ~ . I"
                                                                                                                                                       $f;l.poo. £:<)                 !
                 .tw D -tb0 \1M
                        /~.,   tU       -   \5t.
                                ck"d X<l.JlA.:=.. o~-'
                                                            .                  _ Vif\..O/
                                                                                   -
                                                                                            I
                                                                                                C'-----~
                                                                                                     .                                                                                -m
                                                                                                                                                                              DOLLARS %'
                                                                                                                                                                                       II
I                                                                                                                                                                                     en



t
i                                                                                                                              .      . /                                             Iil
I                 ~~                                                                                                           A!'u#L rfj'a-. .
           '"' ".~ _. ~~_.-;Om~~bll·~;:-;''"i3o
           MEMO

                                                                                     ~;t50 "3 ",BB~~-··._. _.... ~. . ~~~.-. _...-.. ~~~..,-,JI
                                                                                                                                                                          .               I




                                                                                                                                                                                                      EXHIBIT K
&", ....      _   ••                        ..•   .•   ..       • • . • ...             . .•.      .   .•. .   •.     ..   .         "IT"","", " " " ' ' ' ' ' '              • •
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                                        •                        NO
                                                                 NO._ _ _ _ _ __ _
                                                                    ______________

                      STERLING PRACTICE MANAGEMENT, LLC                      u.c     IN COUNTY COURT AT LAW
                      NISAL CORPORATION
                           Plaintiff

                                                                                     NO· ________-tlh~-_
                                                                                                   _ iV\ ....,
                                                                                           ----._-+t;tr\-
                      vs.
                      VB.                                                            NO.                                               NO


                                HOlDINGS, INC.
                      PROVIDIAN HOLDINGS,
                                                                                                          =
                                                                                                          ~
                                                                                                          0;               'l:
                                                                                                                           '\~
                                                                                                                        :::0
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                                                                                          TJ5KAs ~
                                                                                                           ;1n
                                                                                                           ,;In
                                                                                                                        m  t'.I\
                                                                                                                           f:I\
                                            Defendant                      HARRIS COUNTY, TExAs                .."      (")
                                                                                                                        ()
                                                                                          :~,;:~"V\ UI
                                                                                           ;'·,V\
                                                                                          :;:,  :: ", \ en . m
                                                                                                                 I
                                                                                                                        m
                                                        PLAINTIFFS' ORIGINAL PETITION ,-," -,, "---,t\ ....... "»0. -"">«--
                                                                                                                                                -~ ~


                                                                                                                        <
                                                                                           . ,.;,~ /.~          :z
                                                                                                                                       -----'
                                                                                                           ."
                                                                                                                :J:
                                                                                                           .'"".,';-.......;:; ~"rt               m

                                                                                                                                        .'"..
                      TO THE HONORABLE JUDGE:                                                              ~; ~.
                                                                                                           ~:                  ~.                 0
                                                                                                               o                  r·    ."
                                                    Managemen~ u.c
                      Sterling Practice Management. ILC (hereinafter Sterling) and Nisal Corporation'l'
                                                                                         Corporation\'

                      (hereinafter Nisal) appear and file Plaintiffs' Original Petition against Defendant Providian

                      Holdings. Inc., and in support would show the court the following:
                      Holdings,

                       1. This is a level
                                    Level One Discovery Control Plan case.

                      2. Plaintiffs are entities doing business in the State of Texas. Defendant Providian

                                Holdings. Inc. is a corporation doing business in Ibe
                                Holdings,                                         the State of Texas and can be served

                                through its agent for service of process, Khyati Undavia, 2918 San Jaeinto,
                                1hrougb                                                            Jacinto, Houston.
                                                                                                            Houston,

                                                        seek: damages wilhin
                                Texas 77004. Plaintiffs seek          within the jurisdietional               Court. The
                                                                                 jurisdictional limits of the Court

                                Court has subject matter jurisdiction and venue is proper.

                                                                  FACTUAL BACKGROUND
                                                                  FACfUALBACKGROUND
                                                                 with Defendant. Pursuant to the tenns of the
                      3. Sterling entered into a lease agreement wilb

                                lease, Sterling made a security deposit in the amount of$2000.oo.
                                lease.                                                of $2000.00. Upon tennination of

                                                                                   forwarding address. Defendant has
                                the lease and sixty days after Sterling provided a fOlwarding
                                Ibe                                                                              bas

                               refused to refund the seeutity
                                                     security deposit to Sterling. Defendant has acted in bad failb.
                                                                                                              faith.

                                                      Sterling for the full seeutity
                               Defendant is liable to Srerling              security deposit of $2000.00, plus a statutory




                                                                                                                                       AR 000110
                                                                     EXHIBIT L
    penalty of $100.00, plus an additional statutory penalty of $4000.00, plus reasonable
                                                             of$4OOO.oo,

                               has acted in bad faith by not providing a written description
    attorney's fees. Defendant bas

                                     charges, if any, and thus has forfeited its right to
    and itemized list of damages and charges.

    withhold a portion of the security deposit for such damages and charges.

4. Nisal entered into a lease agreement with Defendant. Pursuant to the terms of the lease,

    Sterling made a security deposit in the amount of $3600.00. Upon termination of the
                                                                UpOn tennination

    lease and sixty daya _ Nisal provided a forwarding address, Defendant
                    days after                                            bas refused to
                                                                Defendaot has

    refund the security deposit to
                                toNisaI.            has acted in bad faith. Defendant is
                                   Nisal. Defendant bas

                               mn security deposit of $3600.00.
    liable to Sterling for the full                   $3600.00, plus a statntory
                                                                       statutory penalty of

    $100.00, plus an additional statntory
                                statutory penalty of $7200.00,
                                                     $7200.00. plus reasonable attoruey's
                                                                               attomey's

                    bas acted in bad faith by not providing a written description and
    fees. Defendant has

                                 charges, if any,
    itemized list of damages and charges.    aoy, and thus has forfeited its right to withhold

    a portion of the security deposit for such damages and charges.
                                      for.ncb

WHBREFORE PREMISES CONSIDERED, Plaintiffs pray that Defendant Providian
WHEREFORE                                                     Proviclian

Holdings, Inc. be cited to appear and that judgment be taken against it for all damages

soffered by Sterling in the amount of$6loo.oo
suffered                           of$6100.00 (consisting of the security deposit due
                                                                                  dne and

owing and all statutory penalties),                 attomey's fees, and that judgment be
                        penalties). plus reasonable attorney's

                                 soffered by Nisal in the amount of $10,900.00 (consisting of
taken against it for all damages suffered

                         and owing and all statutory penalties), plus reasonable attorney's
the security deposit due and.                                                    attoruey's

fees, plus all costs of court, plus and any all further relief Plaintiffs may be entitled
                                                                                 eotitled to.




                                                                                                AR 000111
Respectfully submitted,

         BRANTIEY AND ASSOC., P.C.
PHIT.LIP BRANTLEY
PHILLIP

(}·jjbe~
~.~~%
   illiP~rantley--o
Al'ill;  rantley
SBN 00899727
     02899727
Arena Tower n II
7324 Southwest Freeway, Suite 1020
Houston, Texas 77074
(713) 270-4053 pbone
                 phone
(713) 270-0682 facsimile
ATIORNEYFOR
ATTORNEY FOR PLAlNTlFF
                    PLAINTIFF




                                     AR 000112
1/30/2015                                                   Franchise Tax Account Status - Officers and Directors



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                                               Officers and Directors
                                           STERLING PRACTICE MANAGEMENT, L.L.C.
                                                      Report Year: 2014

                                                        Retum
                                                        Return to: Taxable Entity Search Results


            Officer and director infonnation
                                 information on this site is obtained from the most recent Public Infonnation
                                                                                                  Information Report (PIR)
            processed by the Secretary of State (SOS). PIRs filed with annual franchise tax reports are forwarded to the SOS.
            After processing, the SOS sends the Comptroller an electronic copy of the infonnation,
                                                                                        information, which is displayed on
                               information will be updated as changes are received from the SOS.
            this web site. The infonnation

            You may order a copy ofa
                                 of a Public Infonnation
                                             Information Report from open.recordsca),cpa.state.tx.us
                                                                     open.recordsCakpa.state.tx.us or Comptroller of
            Public Accounts, Open Government
                                  Govemment Division, PO Box 13528, Austin, Texas 78711.


                                                  Title                                N arne and Address
                                                                                       Name
                                    MANAGER                                   BRETT L GARNER
                                                                              5903 SOLAR POINT LN
                                                                              HOUSTON, TX 77041
                                    MEMBER                                    SHAHID H SYED



                                    MANAGER                                   WILLIAM H HICKS
                                                                              5718 BELLAIRE BLVD
                                                                              HOUSTON, TX 77081

     texas.gov         I Statewide Search from the Texas State                           Library   I State Link Policy I Texas Homeland
                                                                              Security
             Glenn Hegar, Texas Comptroller • Window on State Government • Contact Us
                                                                       0111                                         0111


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                                                 I                                 I                    I                    I
                                              with Texans




                                                                                                                           AR 000113
https:!lmycpa.cpa.state.tx.us/coalservleVcpa.app.coa.CoaOfficer
https:llmycpa.cpa.state.tx.us/coaiservleVcpa.app.coa.CoaOfficer      EXHIBIT M
                                       KEITH CHUNN, JR.
                                         Attorney at Law
                                  1535 West Loop South, Suite 365
                                       Houston, Texas 77027
                                        Tel: 713-621-6616
                                        Fax: 713-621-5553
                                        Cell: 713-824-6860
                                     Email: kchunn@msn.com


SENT CERTIFIED MAIL RETURN RECEIPT REQUESTED


February 25, 2013
         25,2013

                                                                              .,
Nisal Corporation
2918 San Jacinto St., Suite 200
2918
Houston, Texas 77004

Attention: Brett Garner: bgarner5@aol.com

RE:    Lease of Suite 200 containing 4,700 rentable square feet in the building as 2918
       San Jacinto Street in Houston, Texas, which expired February 29, 2012; and Lease
       of Suite 200A containing 2,154 rentable square feet in the building at 2918 San Jacinto
       Street in Houston, Texas, which expired January 31,  2012
                                                       31,2012

Gentlemen:

        Your lease of Suite 200 referred to above expired on February 29,2012 and your lease of Suite
200A referred to above expired on January 31,2012. Since the leases expired, the rental of the spaces
                                   200A" have been on a month to month basis and cancelable by you or
known as "Suite 200" and "Suite 200A:.'
the landlord on thirty (30) days notice:

       NOTICE is hereby given that Providian Holdings, Inc., your landlord, and Lessor of both Suite
200 and Suite 200A in the building at 2918 San Jacinto Street in Houston, Texas, has elected to
terminate both the lease of Suite   200 and the lease of Suite 200A effective March 31,2013.,.
                              . ', , . ..
                                   -




        DEMAND is hereby made that, on or before midnight March 31,2013, you vacate the premises
                                                                       S~t, Houston, Texas, and also
known as Suite 200 and Suite 200A in the building at 2918 San Jacinto Street,
all other parts of the building and parking lot where you may have stored property or used on an
occasional basis. The Landlord wants the premises for its own use and benefit.

Sincerely,   (fJJi/"",n
             fIJI/.-n
If!f~,;,'''rr
If!!~~'''(f'              I




                                                                                                 AR 000114
                                             EXHIBIT N
       SENDER: COMPLETE THIS SECTION                                                       COMPLETE THIS SECTION ON DELIVERY

     , • Complete items
                    Items 1, 2, and 3. Also complete                                       A. Signature
         Item 4 if
                If Restricted Delivery Is
                                       is desired.                                         X                                                [J  Agent
                                                                                                                                            0 Agent
       • Print your name and address on the reverse                                        x                                                0 Addressee '
                                                                                                                                                            ,
            that we can retum the card to
         so that                             you.
                                          to you.
     , • Attach this card to the back of the mallplece,
                                                                                           B. Received by
                                                                                                       by (Printed
                                                                                                          ( Printed Name)           IIC.   Dato of Dollvory i '
                                              mailplece.
     ,   or on the front if space permits.
     ~-------~--------I
                                                                                          I----------.
                                                                                           O. Is
                                                                                                                                   . . . --=-~--l
                                                                                              /s delivery address different from Item 11      Yes
                                                                                                                                         17 DYes
     : 1. Article Addressed
       1. Article Addressed to:
                            to:                                                                 If YES. enter delivery address below:        D No
                                                                                                                                             oNo

.'           JY'e1T    G-o.rhee (' t'.
             J:ye:tr (;.-0."1)
             Ni C.:CI
                 ;,;,cdI
             Ni::"'C\        ·fC"'ro.. IU h
                       (::C\'rC-,ro,,+/ch
                    ~~ So.
             2- q \ '3         .:k,c Iff 0 J)
                        S>CI. .J;,,(:      V\
                                           V'\                     I       0

           $t.t.'Te   20CJ
           5L\' Te. 2,00                                                                   3.   i3~ce Type
                                                                                                ~iceType

          Hau~'
         ,HDU       rel, ,Ix 77i"t)((
                 '?>,(Cr1    77i.~'o(f                                                          1fCertified
                                                                                                KCertlfled Mall
                                                                                                oD Registered
                                                                                                                    0 Express Mall
                                                                                                                    [J
                                                                                                                    0 Retum
                                                                                                                               Mail
                                                                                                                       Return Receipt for Merchandise
                                                                                                o  Insured Mail     0 C.O.D.
                                                                                           4. Restricted Delivery? (Extra Fee)               0 Yes
                                                                                                                                             [J

     , 2. Article Number                                      rl       0   n      "".>.
             (Ttansfer flOm service labe~                     I    C    j..,       4 0 0 ooD'1
                                                                               ...:J                                        ~2g7               .5'/27
     , OQ.   c","""   ~A11   l:"'h ......... I11"0# I)l'\nA




              , • Complete items         2. and 3. Also complete
                               Items 1, 2,
                    Item
                    item 41f
                         4 if Restricted Delivery Is desired.
                • Print your name and address on the reverse                                        a.
                                                                                                    8. Received by (PrInted Name)
                    so that we can retum
                                     return the card to you.
              . •.. Attach this card to the back of the mallplece,
               , 'or                 if space permits.
                     or on the front If                     .                                                                                  17
                                                                                                                           different from Item 11
                                                                                                    D. Is delivery address dlffetent
                                                                                                          YES. enter delivery address below:
                                                                                                       If YES,
                                                                                                                                                     0-::
                 1. Article Addressed to:

                      ~~Elr
                        t\e<;.~ +e(e.A Aqe~
                                            L: Gr.'H?I'H:t::,
                        tV/sal                     CC?,pora.+ 'O V\
                      51 / g1?)e no-w-e ~\"A                                                         3. Service
                                                                                                        $elVlce Type
                                                                                                       J(CertIfied
                                                                                                         }I(
                                                                                                           Certlfled Mall    o Express Mall
                                                                                                                             o Return Receipt for Merchandise
                      HO~lSION I IX. 'T1 0<.6\                                                           o
                                                                                                         o
                                                                                                           Registered
                                                                                                           Insured Mall
                                                                                                                    MatI     o C.O.D.

                 . 2. ArtIcle
                      Article Number
                                                                       70D7 3020 fJ003
                                                                       7007      IJOQ3                                 ~,      7            116      4
                      (Transfer from service labeO
                                             labeQ                                                                                                                AR 000115
                                                                                                                                                     102595·02·M·1540 .

                                         EXHIBIT N
                              nn ..... r_Lo._. __ ' nnnA                            nomestlc
                                                                                    Onmestlc Return ReceIpt
                                                                                                    Receipt
                               CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A.                   §         IN THE DISTRICT COURT OF
d/b/a ALLIED MEDICAL CENTERS                §
and INTERVENTIONAL SPINE                    §
ASSOCIATES,                                 §
                                            §
      Plaintiffs                            §
                                            §
VS.                                         §             HARRIS COUNTY, TEXAS
                                            §
KHYATI MOHAMED UNDAVIA and                  §
MINU RX, LTD.,                              §
                                            §
      Defendants                            §            152ND JUDICIAL DISTRICT



                   DECLARATION OF ASHISH MAHENDRU
                     IN SUPPORT OF ATTORNEY'S FEES




      1.     I, Ashish Mahendru, am of sound mind and am over the age of twenty-one.
             My date of birth is September 1, 1971, and my address is 639 Heights
             Blvd., Houston, Texas. I declare under penalty of perjury that the
             foregoing is within my personal knowledge and is true and correct.

      2.     I am one of the attorneys of record for Defendants and Counter-Plaintiffs.

      3.     I am licensed to practice in the State of Texas and Commonwealth of
             Massachusetts. I am admitted to practice before the Western District of
             Texas, Southern District of Texas, and the United States District Court for
             the District of Massachusetts along with the state courts of Texas and
             Massachusetts.

      4.     I am a 1996 graduate from the University of Texas School of Law. I am
             1993 graduate from the University of Texas at Austin with a major in Plan
             II, the Honors Liberal Arts Program.

      5.     I currently practice law in Houston, Texas where I founded my firm in
             2001. Prior to the establishment of Mahendru, PC, I was an associate trial
             attorney in Boston, Massachusetts with the law firm of Lucash, Gesmer &
             Updegrove. Prior to my time in Boston, I was an associate trial attorney
                                           1
                                                                                  AR 000116
                                     EXHIBIT O
     with the firms of Thompson, Coe, Cousins & Irons and Davis & Wilkerson
     (1996-2000), which are both located in Austin, Texas.

6.   I have previously been qualified as an attorney's fees expert and have
     testified on the subject in jury trial multiple times.

7.   My opinions on the fees incurred by Defendants and Counter-Plaintiffs by
     the work performed by members of my firm is based on the relevant case
     law and on the eight factors courts look to in determining the appropriate
     amount of fee:

        a. the time and labor required, the novelty and difficulty of the
           questions involved, and the skill requisite to perform the legal
           service properly;

        b. the likelihood, if apparent to the client, that the acceptance of the
           particular employment will preclude other employment by the
           lawyer;

        c. the fee customarily charged in the locality for similar legal services;

        d. the amount involved and the results obtained;

        e. the time limitations imposed by the client or by the circumstances;

        f. the nature and length of the professional relationship with the client;

        g. the experience, reputation, and ability of the lawyer or lawyers
           performing the services; and

        h. whether the fee is fixed or contingent on results obtained or
           uncertainty of collection before the legal services have been
           rendered.

8.   Members of my firm and I have performed legal services in preparing a
     Motion for Summary Judgment on Plaintiffs’ affirmative claims and
     Counter-Plaintiffs Counter-Claims. This includes researching, drafting,
     conferring with the client, and time to attend the hearing on the motion.

9.   The billing rate for members of my firm is as follows:


                                    2
                                                                            AR 000117
         a. Ashish Mahendru              $450/hr
         b. Darren Braun                 $225/hr
         c. Susan Farer                  $175/hr

      Based on the education, experience, and background of these individuals
      and my experience and knowledge of the rates charged by professionals in
      the Houston, Harris County, Texas geographic region, the rates charged by
      members of my firm are reasonable and customary in the Houston, Harris
      County, Texas region.

10.   Darren Braun received his bachelor of arts degree from Pennsylvania State
      University in 2008. In 2010, he began law school at South Texas College
      of Law where he attained a ranking within the top 5% of the class. In 2011,
      he transferred to University of Houston Law School, where he finished with
      a 3.73 GPA (top 4%) and received the Houston Real Estate Bar Scholarship
      award for outstanding academic achievement in real estate law
      coursework. He received dean’s list honors every semester of law school.
      He has been a licensed attorney in Texas since 2013. His practice includes,
      but it not limited to, commercial litigation matters, temporary restraining
      orders, injunctions, trade secrets, breach of contract, fraud, fiduciary duty,
      and related practice areas.

11.   Susan Farber is a legal assistant that worked on this matter for my firm. She
      is an experienced legal assistant with over seventeen years of practice in her
      field of commercial litigation matters.

12.   The following is time associated with each attorney and legal assistant
      working on this matter in preparing the motion for summary judgment:

         a. Ashish Mahendru              6.70 hours           $3,015.00
         b. Darren Braun                 32.90 hours          $7,402.50
         c. Susan Farber                 4.80 hours           $840.00

13.   The total attorney's fees incurred in responding, therefore, are $11,257.50.

14.   Based on the factors courts consider in awarding fees, my experience
      litigating similar cases, and my knowledge of the usual and customary rates
      charged by other attorneys and legal professionals in Houston, Harris
      County, Texas, it is my opinion that my firm's attorney's fees in the amount
      of $11,257.50 are reasonable and necessary.




                                     3
                                                                             AR 000118
Signed on this 30th day of January, 2015, in Harris County, Texas.




                                         Ashish Mahendru




                                     4
                                                                     AR 000119
1/30/2015                                                                       Franchise Tax Account Status




                                       Franchise Tax Account Status
                                                                As of: 01130/2015 04:20:01 PM

                              This Page is Not Sufficient for Filings with the Secretary of State



                                                            AVANT MEDICAL GROUP, P.A.         =m$'-~'.;o;~=~r~~,".,,_·_i!F$Wliii"Miiiiii'~§iil:\~   "<;"-iiWW7W',~XMN<j;'»~;hN,.W'i~;:'~.~""'4_




            i     Texas Taxpayer Numbe. "''''''''7616516
                              Mailing Address 1120 DENNIS ST
                                              HOUSTON, TX 77004-1102
                Right to Transact Business ACTIVE
                                  in Texas
                                 of Formation TX
                           State ofFo          X
                Effective SOS Registration 0711412006
                                     Date
            I
                  Texas SOS File Number 0800680964
            i     Registered Agent Name STERLING PRACTICE MANAGEMENT, L.L.C.
                  Registered Office Street 1120 DENNIS ST
                                 Address HOUSTON, TX 77004




                                                                             EXHIBIT P                                                                              AR 000120
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                                      CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. d/b/a    §         IN THE DISTRICT COURT OF
ALLIED MEDICAL CENTERS and        §
INTERVENTIONAL SPINE              §
ASSOCIATES,                       §
                                  §
Plaintiffs                        §              HARRIS COUNTY, TEXAS
                                  §
VS.                               §
                                  §
KHY ATI MOHAMED UNDA VIA and      §
MINU RX, LTD.                     §             152nd JUDICIAL DISTRICT
                        PLAINTIFFS' RESPONSE TO
            DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND
        OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

TO THE HONORABLE JUDGE OF SAID COURT:

        COME NOW, AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE

ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL

CORP. d/b/a QUALCARE REHABILITATION ("Plaintiffs"), and file this Response to

Defendant's Motion for Summary Judgment, and in support thereof would respectfully show the

Court as follows:

                                            I. PARTIES

        Plaintiffs are AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE

ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL

CORP. d/b/a QUALCARE REHABILITATIO.

    1. Defendants are KHYATI MOHAMED UNDA VIA, MINU RX, LTD. d/b/a MEMORIAL

COMPOUNDING PHARMACY, MINU GP, LLC, and COMPASS BANK.




PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
                                                                                            1
                                                                                  AR 000121
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE                                  PAGE
                                  II. FACTUAL BACKGROUND

    2. PlaintiffNisal Corp. ("Nisal") entered into a commercial lease agreement with Providian

Holdings, LLC (Providian) to rent the top floor of a building owned by Providian.             The

commercial lease was in effect from 2009 through March 2013. See Exhibit 1.

    3. While Plaintiffs were occupants of the Building, all mail was delivered to the Building's

main address, where it would be collected by Defendant KHY ATI MOHAMED UNDA VIA

("Undavia") and distributed by her to the other tenants. See Exhibit 1. Defendant Undavia

prohibited the Plaintiffs from keeping their own mailboxes at the building.       See Exhibit 1.

Because the checks were delivered to Plaintiffs' mailing address, Plaintiffs were in possession of

the checks and have a possessory interest in them. See Exhibit 1.

    4. In 2013, Providian Holdings, LLC terminated the lease with Nisal. Nisal and Sterling

then sued Providian for failing to return a security deposit in Cause No. 1036848, Sterling

Practice Management, LLC and Nisal Corporation v. Providian Holdings, Inc., in the County

Civil Court at Law No.4, Harris County, Texas (the "Prior Lawsuit"), filed on September 5,

2013. See Exhibit 4. That lawsuit ended in a settlement release pertaining to the claims asserted

in the Prior Lawsuit by Nisal and Sterling (the "Release"). See Exhibit 5. The only parties to the

settlement agreement were Nisal, Sterling, and Providian. See Exhibit 5.

    5. Plaintiffs recently discovered that during their occupancy at the building, Defendant

Undavia would frequently open the Plaintiffs' mail, take checks made payable to the Plaintiffs,

endorse the checks with the name and Compass Bank account information for MINU RX, LTD.

d/b/a MEMORIAL COMPOUNDING PHARMACY, (Minu RX) and deposit them into at least

two bank accounts at Compass Bank belonging to Minu RX. See Exhibits 1 & 3. Plaintiffs were

only able to discover this in July 2012 because Plaintiffs frequently provide medical services to



PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
                                                                                                   2
                                                                                         AR 000122
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE                                         PAGE
personal injury victims and often have agreements to suspend collection efforts for extended

periods of time while the patients attempt to obtain compensation for the third parties responsible

for their injuries. See Exhibit 1. Thus far, Plaintiffs have identified over $40,000.00 in checks

that were stolen by the Defendants in the above-described manner, and expects to discover more

as investigation and discovery in this case progresses. See Exhibit 3. It is uncertain at this time

if additional checks were endorsed and deposited or cashed by other entities.

       III. OBJECTION TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE

    6. Plaintiffs object to Exhibit B to Defendants' Motion for Summary Judgment on the basis

that the lease agreement is unsigned, and is therefore not relevant and is not evidence that

Sterling actually entered into the agreement. Alternatively, Plaintiffs object on the basis that the

lease is not the best evidence of any lease agreement that may have existed between Providian

and Sterling.

    7. Plaintiffs object to Exhibits F, J, and K to Defendants' Motion for Summary Judgment

because they contain hearsay. Although Defendant Undavia attempts to lay the predicate for

these documents under the business records exception, these documents are clearly not created

by Defendant Undavia or her employees or representatives, and are therefore not based on the

employees or representatives' knowledge of the statements contained therein. See In re EAK,

192 S.W.3d 133, 142 (Tex. App.-Houston[14 1h Dist.] 2006). Under Texas law, a document

authored or created by a third party may be admissible as business records of a different business

if: (a) the document is incorporated and kept in the course of the testifying witness's business;

(b) that business typically relies upon the accuracy of the contents of the document; and (c) the

circumstances otherwise indicate the trustworthiness of the document. Simien v. Unifund CCR

Partners, 321 S.W.3d 235,240-41 (Tex. App.-Houston[lst Dist.] 2010, no pet.) (citing Bell v.



PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

                                                                                          AR 000123
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE                                           PAGE   3
State, 176 S.W.3d 90, 92 (Tex. App.-Houston[1st Dist.] 2004, no pet.)). Defendant Undavia

failed to include such testimony, and as such Defendant Undavia's predicate with respect to

Exhibits F, J, and K to Defendants' Motion for Summary Judgment in defective and not

sufficient to prove the documents fall under the business records exception of Tex. R. Evid.

803(6). For this reason, Exhibits F, J, and K to Defendants' Motion for Summary Judgment

should be struck.

    8. Plaintiffs object to Exhibit E to Defendants' Motion for Summary Judgment. The court

should deny Defendants' Motion for Summary Judgment because the Declaration of Khayati

Undavia attached as Exhibit E to Defendants' Motion is defective and does not present

competent summary judgment evidence. Tex. R. Civ. P. 166a(f). More specifically, Plaintiffs

object to the Declaration of Khayati Undavia on the following bases:

    9. The Declaration of Khayati Undavia contains statements that are not based on

personal knowledge. Tex. R. Civ. P. 166a(f); Ryland Group, Inc. v. Hood, 924 S.W.2d 120,

122 (Tex. 1996); see Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761-62 (Tex. 1988);

Rizkallah v. Conner, 952 S.W.2d 580, 584-85 (Tex. App. -Houston[1st Dist.] 1997, no writ).

In paragraph 13 of the Declaration of Khayati Undavia, she states that Plaintiffs Nisal Corp. and

Sterling Practice Management, LLC "did not have any actual operations in the office space," and

that "Allied Medical Centers and Avant Medical Group were the entities that had operations in

the leased space." She does not any factual bases for this conclusion. Defendant Undavia does

not claim that she was involved in the operation of or has any familiarity with the operations of

those entities. Because Defendant Undavia does not offer any support for these statements, they

are merely factual conclusions with no underlying facts to support the conclusions and

unsubstantiated opinions of the affiant. Haynes v. City of Beaumont, 35 S.W.3d 166, 178



PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
                                                                                        ARPAGE
                                                                                           000124
                                                                                               4
(Tex. App. -Texarkana 2000, no pet.); Rizkallah v. Conner, 952 S.W.2d 580,587 (Tex. App.-

Houston[lst Dist.] 1997, no writ); Harley-Davidson Motor Co. v. Young, 720 S.W.2d 211, 216

(Tex. App. -Houston[ 14th Dist.] 1986, no writ). Because those statements are not competent

summary judgment evidence, paragraph 13 of the Declaration of Khayati Undavia should be

struck.

    10. The Declaration of Khayati Undavia contains statements that are merely legal

conclusions. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Rizkallah v. Conner,

952 S.W.2d 580, 587 (Tex. App. -Houston[lst Dist.] 1997, no writ). Defendant Undavia states

in paragraph 14 of her Declaration that "[f]or all matters concerning the lease, I communicated

with Brett Gamer in his capacity has [sic] a representative of not only Sterling and Nisal, but also

Avant and Allied." The capacity in which Dr. Gamer was acting at any specific time is a legal

conclusion, and Defendant Undavia does not state any facts which would support this

conclusion. Because Defendant Undavia does not offer any facts to support these conclusions,

the statements are also merely unsubstantiated opinions of the affiant. See Rizkallah v.

Conner, 952 S.W.2d 580, 586 (Tex. App. -Houston[lst Dist.] 1997, no writ); Harley-Davidson

Motor Co. v. Young, 720 S.W.2d 211, 216 (Tex. App. -Houston[14th Dist.] 1986, no writ).

Because those statements are not competent summary judgment evidence, paragraph 14 of the

Declaration of Khayati Undavia should be struck.

    11. The Declaration of Khayati Undavia contains statements that are based on hearsay.

Fidelity & Cas. Co. v. Burts Bros., 744 S.W.2d 219,224 (Tex. App.-Houston[lst Dist.] 1987,

writ denied); see In re JA.M, 945 S.W.2d 320, 322 (Tex. App.-San Antonio 1997, no writ).

Paragraphs 11 and 14 contain statements about the contents of documents which are inadmissible

hearsay because Defendant Undavia has failed to prove the documents fall under the business



PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

                                                                                          AR 000125
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE                                           PAGES
records exception of Tex. R. Evid. 803(6). Because those statements are not competent summary

judgment evidence, paragraphs 11 and 14 of the Declaration of Khayati Undavia should be

struck.

                             IV. SUMMARY JUDGMENT EVIDENCE

    12. Plaintiffs provide all parties with the notice to use and attach the following summary

judgment evidence and incorporate all such evidence herein for all purposes in accordance with

Tex. R. Civ. P. 166a(d):

          a. Affidavit of Brett Gamer, attached hereto as Exhibit 1;

          b. Affidavit of Carmen Manzo, attached hereto as Exhibit 2;

          c. Cancelled Checks, attached hereto as Exhibit 3;

          d. Original Petition from Cause No. 1036848, Sterling Practice Management, LLC and
             Nisal Corporation v. Providian Holdings, Inc., in the County Civil Court at Law No.
             4, Harris County, Texas, attached hereto as Exhibit 4;

          e. Mutual Release, attached hereto as Exhibit 5;

          f.   Assumed name filing for Allied Medical Centers, attached hereto as Exhibit 6; and

          g. Public Information Report for Avant Medical group, P.A., attached hereto as Exhibit
             7.

                                   V. STANDARD OF REVIEW

    13. Defendants have asserted a motion for summary judgment under Tex. R. Civ. P. 166a.

Under Tex. R. Civ. P. 166a, a summary judgment is only proper for a defendant if its summary

judgment proof establishes, as a matter of law, there is no genuine issue of material fact

concerning one or more of the essential elements of the plaintiff s cause of action. See Goldberg

v. United States Shoe Corp., 775 S.W.2d 751, 752 (Tex. App.-Houston [1 st Dist.] 1989, writ

denied). A defendant is entitled to summary judgment on a plaintiffs cause of action only if the

defendant can disprove at least one element of the cause of action as a matter of law. Sw. Elec.



PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
                                                                                           ARPAGE
                                                                                               000126
                                                                                                  6
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see Tello v. Bank One, NA., 218 S.W.3d

109, 113 (Tex. App.-Houston [14th Dist.] 2007, no pet.). In reviewing the granting of a motion

for summary judgment, the court should consider that all proof which is favorable to the non-

movant is true. SeeMMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986); see also Goldberg, 775

S.W.2d at 752.

                             VI. SUMMARY OF THE ARGUMENT

    14. Defendants are not entitled to summary judgment for the following reasons:

        a. The Release cited by Defendants does not concern the subject matter or claims

             asserted in this lawsuit and therefore does not serve to bar Plaintiffs' claims (see pgs.

             8-10);

        b. The parties to the Release are not the same as the parties to this action, and

             Defendants' "agency" theory lacks legal basis and factual support (see pgs. 11-16);

        c. As the claims and parties to this lawsuit are different than in the previous lawsuit, the

             doctrine of res judicata does not apply and does not bar Plaintiffs' claims (see pgs.

             16-17);

        d. Plaintiffs have pled a viable cause of action for conversion (see pg. 18);

        e. Plaintiffs' claims are not barred by the applicable statutes of limitations or,

             alternatively, Plaintiffs' inability to discover the Defendants' wrongful actions tolls

             any applicable statute of limitations and because Defendants' fraudulent actions

             concealed the wrongful actions from the Plaintiffs (see pgs. 18-20);

        f.   Defendants are not entitled to an award of attorney's fees (see pgs. 20-21).

    15. For the above reasons, the Court must deny Defendants' Motion for Summary Judgment.




PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

                                                                                             AR 000127
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE                                             PAGE   7
                                  VII. ARGUMENTS & AUTHORITIES

                       A. THE PLAINTIFFS' CLAIMS ARE NOT WITHIN
                          THE SUBJECT MATTER OF THE RELEASE

    16. Because the scope of the claims covered by the Release is a threshold issue-i.e. if the

claims in the present case were not subject to the Release then the identity of the parties is

irrelevant-Plaintiffs address this issue first.

    i.   Texas law requires narrow construction of the Release.

    17. "In order to effectively release a claim in Texas, the releasing instrument must 'mention'

the claim to be released. Even if the claims exist when the release is executed, any claims not

clearly within the subject matter of the release are not discharged." Victoria Bank & Trust

Co. v. Brady, 811 S.W.2d 931 (Tex. 1991) (emphasis added); see also Keck, Mahin & Cate v.

Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 697-98 (Tex. 2000); Baty v.

ProTech Ins. Agency, 63 S.W.3d 841, 850 n.7 (Tex. App.-Houston [14th Dist.] 2001, pet.

denied).   Further, the Texas Supreme Court has explicitly stated that "general categorical

release clauses are narrowly construed."                      Brady, 811 S.W.2d at 938; Duncan v. Cessna

Aircraft Co., 665 S.W.2d 414,422 (Tex. 1984).

    ii. The Release does not mention Plaintiffs' claims.

    18. The Release which Defendants seek protection under reads, in relevant part:

                     WHEREAS, S'rnRLINO and NfSAL ff1ed IImt agltinllf. PROVIOlAN, No, 1036848,
             CQUl'l.ty Civil CQUrt,.t Lftw No.4. HIn'iIJ County. 'l~ lind

                    WHEUM. tbt partlt$ dNire to eompromillO. Jfttk! And provide for the full and final
             termluatiou of all of the !lAid eJalm4. deman4s. CA\*S 01 aet10n and di.putoI between (hem .risiui
            out of or rolatod to Illwh claims wmfolh either Pllrty IllII)' Ilt'W have or lmve bad qainlJt oaob other, III

            without admittinl any of the aUeptionll set forth;




PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
                                                                                                                       ARPAGES
                                                                                                                           000128
    19. The Release clearly states that its subject matter is the Prior Lawsuit, and that the parties

to the Release intended to discharge "said claims"-the claims asserted in the Prior Lawsuit,

which pertained only to the security deposit under the commercial lease. See Exhibit 5. This

unquestionably shows that when the parties entered into the Release, they were contemplating

discharge of the claims asserted in the Prior Lawsuit. The Release has no mention of tort claims,

conversion, fraud, or any of the other claims asserted in the present lawsuit. See Exhibit 5. The

Release, therefore, does not "mention" the claims in the present lawsuit, and therefore the

Release did not discharge the Plaintiffs' claims.

    20. The Texas Supreme Court has held that releases are to be construes in light of the facts

and circumstances surrounding the release. Brady, 811 S.W.2d at 939. The Prior Lawsuit did

not depend on the same set of facts as the present lawsuit, which was an action solely for the

return of a security deposit. Narrowly construing the Release, as Texas law requires, demands

that the claims in the present lawsuit not be held within the scope of the Release.

    iii. Defendants have failed to meet their burden on summary judgment.

    21. Defendants, for their part, claim that the Release "specifically mentions each claim in this

lawsuit."   Negation of this claim requires no more than a quick look at any dictionary.

"Specific" denotes something that is "precise; definite; [or] explicit." WEBSTER'S NEW WORLD

COLLEGE DICTIONARY, 4TH ED. 1376 (2001). Again, the release makes no reference to any claim

based on tort, fraud, conversion, theft, breach of fiduciary duty, or any other claim contained in

Plaintiffs' live pleading. See Exhibit 5. The pleadings in the Prior Lawsuit, which gave rise to

the Release, do not contain any mention or reference to any of the factual or legal disputes which

for the basis of the present lawsuit. See Exhibit 4. Even the case law quoted by the Defendants

themselves states that for a claim to be discharged it must be mentioned, and that mentioning



PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
                                                                                                     9
                                                                                           AR 000129
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE                                           PAGE
requires "that the claim being released come within the express contemplation of the release

provision when viewed in context of the contract in which the release provision is

contained." Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 254 (5 th Cir. 2000) (emphasis

added); Mem 'I Med. Ctr. Of E. Tex. v. Keszler, 943 S.W.2d 433,435 (Tex. 1997).

    22. Defendants further attempt to support their argument by claiming that the commercial

leases form the basis of all of the claims in the present lawsuit. This assertion seems to be based

on nothing more than the fact that leases existed. None of the Defendants to this action were

signatories to the lease. Additionally, and most importantly, none of Plaintiffs' claims require

proof of the existence of a lease contract, of a landlord-tenant relationship between the parties, of

a breach of the terms of any lease, or any other fact germane to the claims in the Prior Lawsuit.

The subject matter of the present lawsuit and the Prior Lawsuit are wholly detached from one

another. Plaintiffs' claims would require the same pleading and proof whether or not a landlord-

tenant relationship existed. Because the Plaintiffs' claims in the present lawsuit do not concern

the same subject matter as the Prior lawsuit, they are not encompassed by the Release and

summary judgment must be denied.

    iv. Defendants have failed to meet their burden for summary judgment.

    23. Defendants' assertions that the parties "no doubt contemplated the claims in the present

lawsuit" is not supported either by a plain reading of the Release or any evidence presented in

Defendants' Motion. Because the Release does not mention any of the claims in the present

lawsuit, and because the Court must narrowly construe the Release, the Court must find that the

Release is not binding on any of the parties with respect to the present lawsuit and summary

judgment must be denied.




PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

                                                                                           AR 000130
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE                                          PAGE   10
                       B. PLAINTIFFS WHO ARE NOT SIGNATORIES
                         TO THE RELEASE ARE NOT BOUND BY IT

    24. Defendants' arguments as to why all parties to the present action are included in the

release are somewhat convoluted. It seems, however, that the gist of the argument is as follows:

1) the Release includes a provision mutually discharging agents of the signatories; 2) various

agency relationships exist between the parties; and therefore 3) all Plaintiffs have released all

Defendants with respect to all claims in this lawsuit. Of course, as shown above, the claims in

this lawsuit are not within the scope of the Release, so the question of what parties are bound by

the Release does is effectively meaningless. However, even if this were not the case Defendants

have failed to show as a matter of law that the parties to this action are all bound by the Release.

    25. The only party to this action that was also a party to the Release is Nisal Corp. d/b/a

Qua1care Rehabilitation. See Exhibit 5. However, because the claims in this action are not

within the scope of the Release, and because the Defendants are not protected by the Release,

Nisal is a proper party to this lawsuit and is not barred from asserting its claims. Even if any of

Nisal's claims were within the scope of the Release, however, Defendants' wrongful

concealment of material facts fraudulently induced Nisal into signing the Release. Defendants'

only legal theories as to why the other parties to this action should be bound are based on

agency, and based on these theories Defendants' Motion must fail.

    i.   Agents are not individually bound by the Release.

    26. The first issue is to what extent agents of the signatories to the release are bound. The

general rule in Texas is that "signing a contract in a representative capacity does not bind the

agent personally to the contract." Elgohary v. Herrera, 405 S.W.3d 785, 790-91 (Tex. App.-

Houston[1 st Dist.] 2013); see RESTATEMENT (SECOND) OF AGENCY § 320 ("Unless otherwise

agreed, a person making or purporting to make a contract with another as agent for a disclosed


PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

                                                                                            AR 000131
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE                                           PAGEtt
principal does not become a party to the contract. "). Assuming an agency relationship exists,

Plaintiffs would assert that agents of the signatories to the Release are only bound to its terms to

the extent that 1) the claims asserted are within the scope of the release and 2) the claims are the

signatory's claims asserted on behalf of the signatory. Defendants cite no authority to support

their implicit position that the signatories to the Release had the authority to settle claims

belonging to their alleged agents on their behalf. Undersigned counsel can find no authority in

Texas law to suggest that a principal may release an agent's independent claims without being

granted the authority to do so. Therefore, to the extent the claims in the present lawsuit 1) are

not within the scope of the Release, and 2) do not belong to the signatories of the Release, the

claims are not barred by the Release.

   ii. Plaintiffs have not asserted claims against Defendants in their capacity as agents of
Providian.

    27. Similarly, Defendants claim they are protected by the Release because they are agents of

Providian Holdings, LLC.        However, the only claims against Defendants that could have

possibly been released are those against the Defendants in their capacity as agents for Providian.

Defendants seem to assert that by virtue of their supposed roles as agents for Providian, they

should be free from all liability for of their wrongful actions, whether or not those actions are

taken in their individual capacity or their capacity as an agent.          In other words, under

Defendants' theory the Release encompasses all claims any agent of a signatory may have had

against any other agent of any other signatory, irrespective of whether the claims are connected

to their duties as agents or the subject matter of the Release. This is contrary to the general rule

in Texas that an agent is liable for his own torts. See, e.g., Williams v. Olivo, 912 S.W.2d 319

(Tex. App.-San Antonio 1995). Therefore, the Release cannot be said to offer protection to

agents of the signatories for wrongful acts performed outside of their capacity as an agent.


PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

                                                                                           AR 000132
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE                                            PAGE   12
    iii. Defendants have failed to prove all parties are bound by the Release.

    28. Even the case law cited by Defendants betrays their own argument. Defendants concede

that "unless a party is named in a release, he is not released." McMillen v. Klingensmith, 467

S.W.2d 193, 197 (Tex. 1971).         Defendants further concede that "a tortfeasor can claim the

protection of a release if he is referred to with such descriptive particularity that his

connection with the tortious event is not in doubt." Winkler v. Kirkwood Atrium Office Park,

816 S.W.2d 111, 113-14 (Tex. App.-Houston[14 th Dist.] 1991, writ denied). In spite of this,

however, Defendants argue that the release applies to all parties to the present case, only one of

which is actually named in the Release. See Exhibit 5. Again, Defendant tries to claim that all

parties to the present lawsuit are "specifically named" in the Release, even though a plain

reading of the release shows that this is not the case. See Exhibit 5. Thus, the Defendants are not

"named with specific particularity," as is required before they can claim protection under the

Release. Further, the Release concerns claims entirely different than the claims in the present

lawsuit. See Exhibit2 4 & 5. For this reason, the Defendants fail the second prong of the test as

well---even if they have a connection to the conduct which formed the basis of the Prior Lawsuit,

this lawsuit alleges claims based on wholly different conduct. Similarly, Defendants cannot

claim protection under the Release based on their allegation that all of the parties are "intimately

connected" to the lease agreements (a legal standard for which Defendants offer no authority).

As previously shown, the existence of a landlord-tenant relationship is not a prerequisite to any

of Plaintiffs' claims in this lawsuit, and therefore not relevant to this analysis. For these reasons,

Defendants may not claim protection under the Release.




PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

                                                                                             AR 000133
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE                                            PAGE   13
iv.      Defendants have failed to prove that all of the alleged agency relationships exist.

      29. The second hurdle Defendants have to clear is proving that the agency relationships they

claim actually exist. Under Texas law, agency will not be presumed. Schultz v. Rural/Metro

Corp., 956 S.W.2d 757, 760 (Tex. App.-Houston [14th Dist.] 1997, no writ). An agent is one

authorized by another to transact some business for the principal; the relationship is a consensual

one between two parties, by which one party acts on behalf of the other, subject to the other's

control. Jamison v. Nat 'I Loan Investors, L.P., 4 S.W.3d 465, 468 (Tex. App.-Houston [1st

Dist.] 1999, pet. denied). Authorization to act and control of the action are the two essential

elements of agency. Gonzales v. Am. Title Co., 104 S.W.3d 588, 593 (Tex. App.-Houston [1st

Dist.] 2003, pet. denied). A question of agency is one of fact. See Jorgensen v. Stuart Place

Water Supply Corp., 676 S.W.2d 191, 194 (Tex. App.-Corpus Christi 1984, no writ).

Therefore, Defendants have the burden to show as a matter of law that the claimed relationships

exist. As will be shown, Defendants have failed to meet that burden.

      30. With respect to the Plaintiffs, Defendants allege multiple, and sometimes conflicting,

agency relationships. Defendants allege that Dr. Gamer is an agent ofNisal, Avant, and Sterling.

Plaintiffs would remind the Court that, as previously shown, although an agent may bind the

principal, the reverse is not necessarily true, and Defendants have failed to show that this has

occurred as a matter of law in this case.

      31. Next, Defendants allege that Avant is an agent of both Nisal and Sterling. Defendants

base this assertion on what can only be described as a staggering feat of mental gymnastics.

Defendants allege that Allied is a fictitious business name of Avant, Allied is also a fictitious

business name of Dr. Gamer, so therefore Avant is a fictitious business name of Both Allied and

Dr. Gamer, and is bound by the Release. Undersigned counsel is at a loss to understand how this

conclusion is reached.     Avant Medical Group, P.A. is a professional organization organized

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
                                                                                                   14
                                                                                          AR 000134
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE                                         PAGE
under the laws of the state of Texas-a legal entity independent from the other parties to this

lawsuit.    See Exhibit 7. It cannot be a fictitious business name of its own fictitious business

name. Dr. Garner owns the assumed name Allied Medical Centers, which he licenses to Avant

Medical Group, P.A. See Exhibits 1 & 6. Further, even if Both Dr. Garner and Avant have done

business under the name Allied Medical Centers, it does not follow that there is any kind of unity

between the two entities. Defendants further allege that Avant paid Sterling's rent, that Avant

procured an insurance policy for Avant. The offer no evidence for this other than a single check

from 2009 and insurance certificate from 2009 as the basis for this theory. Whether or not these

allegations are true, they do not address the two prongs of the agency test-whether Avant had

authority to act on behalf of Sterling, and whether Sterling had the right to control Avant's

actions. Gonzales, 104 S.W.3d at 593. Defendants do not cite any evidence to support their

claim that Avant is an agent of Nisal-the claim appears only in a section heading of their

Motion. In fact, Defendants also allege the opposite-that Sterling is the registered agent for

Avant. Therefore, Defendants have failed to prove that Avant was an agent for either Sterling or

Nisal.

    iv. Whether Defendants are agents of Providian is not relevant.

    32. Finally, the claim is made that Defendants Undavia and Minu RX, Ltd. are both agents of

Providian. So committed are the Defendants to this assertion that they admit that Providian is a

sham corporation and nothing more than the alter-ego of Minu RX, Ltd. However, Plaintiffs

cannot identify a reason why the existence of such a relationship is in any way relevant.

Plaintiffs have not sued Defendants for their actions as agents of Providian.          Similarly,

Defendants have not pled or otherwise claimed that the wrongful acts at issue in this case were

performed in the course of their duties as an agent for Providian. The checks were taken by



PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
                                                                                         AR  000135
                                                                                          PAGE 15
Defendant Undavia, at Minu's place of business, and deposited into accounts owned by Minu.

See Exhibit 3. Therefore, even if Defendants are agents for Providian, they are not protected by

the Release because the claims in this lawsuit are based on Defendants' independent conduct and

not on the subject matter of the Release.

    33. For the above reasons, Defendants have failed to show as a matter of law that all parties

to this lawsuit are bound by the terms of the Release, and have failed to show that the claims in

this lawsuit were discharged by the Release. Therefore, summary judgment must be denied.

            C. PLAINTIFFS' CLAIMS ARE NOT BARRED BY RES JUDICATA

    i.   The present lawsuit does not include the same issues as the Prior Lawsuit.

    34. Defendants also ask the Court to grant summary judgment on the basis that the Plaintiffs'

claims are barred by the doctrine of res judicata. The Texas Supreme Court has adopted a

"transactional" approach to res judicata, under which a subsequent suit will be barred if it arises

out of the same subject matter of a previous suit and which through the exercise of diligence,

could have been litigated in a prior suit. Barr v. Resolution trust Corp., 837 S.W.2d 627 (Tex.

1992). In Barr, the Supreme Court stated that this transactional test "is substantially similar to

the [transaction or occurrence] rule of compulsory counterclaims." Id The main concern in the

transactional test is whether the cases share the same nucleus of operative facts. Samuel v.

Federal Home Loan Mortg. Corp., 434 SW 3d 230 (Tex. App.-Houston[l st Dist.] 2014). To

determine whether a prior suit and one under review involve the same basic subject matter, we

focus on the factual basis of the complaint. Espeche v. Ritzell, 123 SW 3d 657 (Tex. App.-

Houston[14 th Dist.] 2003). In determining whether the facts arose out of a single transaction,

courts consider whether the facts are related in time, space, origin, or motivation, and whether

they form a convenient unit for trial. Federal Home Loan Mortg. Corp., 434 SW 3d at 230.



PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
                                                                                          AR 000136
                                                                                           PAGE 16
That test is not satisfied here. The prior lawsuit concerned itself with one set of facts-the

termination of the lease agreements and whether security deposits were improperly withheld.

None of the facts necessary to prove the claims in the Prior Lawsuit are necessary to prove the

claims in the present lawsuit. See Exhibit 4. The wrongful acts forming the basis of this suit

occurred on multiple occasions, as opposed to the single event (refusal to return a security

deposit) that formed the basis of the Prior lawsuit. See Exhibit 4. Therefore the two lawsuits do

not share the same operative facts and res judicata does not apply. For this reason, summary

judgment must be denied.

    ii. The present lawsuit does not involve the same parties as the Prior Lawsuit.

    35. The doctrine of res judicata also requires identity between the parties of the prior and

subsequent lawsuits. Espeche v. Ritzel!, 123 SW 3d at 665. A party appearing in an action in

one capacity, individual or representative, is not thereby bound by or entitled to the benefits of

the rules of res judicata in a subsequent action in which he appears in another capacity. Lesikar v.

Moon, No. 14-05-01246-CV, 2014 Tex. App. LEXIS 10041 (Tex. App.-Houston[lst Dist.]

Sept. 4, 2014). The only party to this action from the Prior lawsuit is Nisal Corp. All of the

other parties, including the Defendants, were not named in the Prior Lawsuit. Further, Plaintiffs

have not pleaded any claims which could have been brought against Providian in the Prior

Lawsuit, and the Defendants cannot claim that the legal rights being asserted are the same

between the two lawsuits. This lawsuit is clearly a different set of claims brought against a

different set of Defendants, and res judicata cannot apply. Therefore, Defendants' Motion must

be denied.




PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
                                                                                           AR 000137
                                                                                            PAGE 17
      D. PLAINTIFFS ARE ENTITLED TO BRING A CLAIM FOR CONVERSION

    36. In the present case, various persons and entities wrote checks payable to Plaintiffs, sent

the checks by mail to Plaintiffs, and the checks were actually delivered to Plaintiffs' mailing

address. See Exhibit 1. Because the Defendants obtained the checks at the same location where

they were mailed to Plaintiffs, the checks were stolen by the Defendants only after they had been

delivered to Plaintiffs' business address by the US Postal Service. See Exhibit 3. Therefore,

Plaintiffs received delivery of the checks and had, at the very least, constructive possession of

the checks and were holders of the checks. Under Texas law, even constructive possession is

sufficient to allow the Plaintiffs to prosecute their claim for conversion. See McAllen Hasp. v.

State Farm Mut. Ins. Co., 433 S.W.2d 535 (Tex. 2014). Therefore, Plaintiffs are entitled to bring

a claim for conversion of the checks.

    37. Alternatively, because Plaintiffs were not allowed a separate mailbox, Defendant

Undavia agreed to accept the mail and deliver it to the Plaintiffs. See Exhibit 1. This is not, as

Defendant claims, a modification of the commercial lease, which is silent on the issue of mail

collection. This was a separate agreement with Undavia individually and as a representative of

Minu RX, which occupied the lower level of the building and received delivery of the mail on

behalf of all of the occupants. See Exhibit 1. For this reason, Defendant Undavia acted as an

agent of the Plaintiffs for the purpose of accepting the mail on their behalf. Thus, Defendants

have failed to show that they are entitled to summary judgment as a matter of law, and a fact

issue remains to be decided by the jury.

                        E. PLAINTIFFS' CLAIMS ARE NOT BARRED
                            BY THE STATUTE OF LIMITATIONS

   38. Under Texas law, an action for conversion does not accrue, and the statute does not begin

to run, until 1) the return of the property has been demanded and refused, or 2) facts supporting


PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

                                                                                         AR 000138
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE                                        PAGE   18
the cause of action are discovered. E.g. Burns v. Rochon, 190 S.W. 3d 263, 271 (Tex. App.-

Houston[1 st Dist.] 2006, no pet.). This is because, as shown above, Defendants' possession was

initially lawful; Defendants were charged with collecting the mail and delivering it to the

Plaintiffs. Because Plaintiffs did not discover the facts supporting their cause of action until

shortly before suit was filed, the statute did not begin to run until that time. Thus, summary

judgment with respect to Plaintiffs' conversion claim must be denied.

    39. Additionally, Plaintiffs frequently provide medical services to personal injury victims and

often have agreements to suspend collection efforts for extended periods of time while the

patients attempt to obtain compensation for the third parties responsible for their injuries.

Plaintiffs are diligent in requesting status updates from their patients and patients' attorneys,

however many such requests go unanswered. Therefore, despite their diligence Plaintiffs were

not able to discover Defendants' theft until shortly before suit was filed in this case. Under the

discovery rule, a plaintiff s cause of action is deferred until it knows, or by exercise of diligence

should know, that of facts giving rise to the claim. See Barker v. Eckman, 213 S.W.3d 306, 311-

312 (Tex. 2006).         Because Plaintiff exercised diligence and was not able to discover

Defendants' wrongful acts until recently, the statute of limitations on Plaintiffs' claims is tolled

and summary judgment should be denied.

    40. Finally, the accrual of Plaintiffs' causes of action is deferred by the fact that Defendants

fraudulently concealed their theft. Fraudulent concealment occurs when 1) the defendant has

knowledge of the wrong, 2) the defendant conceals the wrong through misrepresentation or

silence when there is a duty to speak, 3) the defendant has a fixed purpose to conceal the wrong,

and 4) the plaintiff reasonably relied on the misrepresentation or silence. See Shah v. Moss, 67

S.W.3d 836, 841 (Tex. 2001). In the present case there is an obvious fact issue on all four of



PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
                                                                                              PAGE   19
                                                                                            AR 000139
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
these elements. The evidence clearly shows that Defendants received, stole, and deposited the

checks into Minu RX bank accounts. Therefore Defendants had knowledge of the wrongful acts

and their purpose was to conceal the theft. Defendants had a duty to speak based on their

obligation to deliver all of Plaintiffs' mail to the Plaintiffs, yet the Defendants remained silent.

Lastly, Plaintiffs relied on the silence because they were still receiving some checks and because

their business practice often includes delayed payment for services.         Thus, the statute of

limitations is tolled by Defendants fraudulent concealment and summary judgment must be

denied.

             F. DEFENDANTS ARE NOT ENTITLED TO ATTORNEY'S FEES

    41. Defendants have requested attorney's fees under Tex. Civ. Prac. & Rem. Code §§ 37.009

& 38.001.     First, Texas law is clear that Chapter 38 does not provide for the recovery of

attorney's fees by a defendant who only defends against a plaintiffs contract claim and presents

no contract claim of its own. American Airlines, Inc. v. Swest, Inc., 707 S.W.2d 545, 547 (Tex.

1986) (holding defendant could not recover attorney's fees under predecessor to section 38.001

when defendant presented no contract claim of its own); Garcia v. National Eligibility Exp., Inc.,

4 S.W.3d 887, 889 (Tex. App.-Houston [1st Dist.] 1999, no pet.). ; Energen res. MAQ, Inc. v.

Dalbosco, 23 S.W.3d 551, 558 (Tex. App.-Houston[lst Dist.] 2000). Therefore Defendants are

not entitled to attorney's fees under Chapter 38.

    42. Defendants are also not entitled to attorney's fees on their Chapter 37 claim. First and

foremost, Defendants have not sought affirmative summary judgment on their declaratory claim.

Further, because they have not pleaded a valid declaratory judgment claim.           Release is an

affirmative defense under the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 94; Henry v.

Mason 333 S.W.2d 825 (Tex. App.-Houston[l st Dist.] 2010). This amounts simply to a defense



PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

                                                                                          AR 000140
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE                                          PAGE   20
to Plaintiffs' allegations, and are therefore already properly before the Court.             When a

counterclaim for declaratory relief presents issues that are already before the court as part of the

plaintiffs case, the declaratory judgment claim is not properly brought and the plaintiff has an

absolute right to a nonsuit. See BHP Petrol. Co., 800 S.W.2d at 838; General Land Office v. Oxy

US.A., Inc., 789 S.W.2d 569, 570 (Tex.l990)(quoting Weaver v. Jock, 717 S.W.2d 654, 657

(Tex. App.-Waco 1986, writ refd n.r.e.); Newman Oil Co. v. Alkek,614 S.W.2d 653, 655

(Tex.App.-Corpus Christi 1981, writ refd n.r.e.). Because Defendant's claim for declaratory

relief merely resists Plaintiffs' claims, Plaintiffs have an absolute right to nonsuit of this claim

and Defendants are not entitled to an award of attorney's fees. For these reasons, the Court

should deny Defendants' request for attorneys' fees.

                                VIII. CONCLUSION & PRAYER

        Defendants have not and cannot show that they are entitled to judgment as a matter of

law. Further, Plaintiffs have easily shown that there is a genuine issue of material fact as to all of

Plaintiffs' claims and Defendants' affirmative defenses. For these reasons, Plaintiffs respectfully

request that the Court deny Defendants' Motion for Summary Judgment, and grant Plaintiffs

such other and further relief as the Court deems appropriate.




PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE
                                                                                            AR 000141
                                                                                             PAGE 21
                                                Respectfully submitted,




                                                                                           ./

                                                        Matias J. Adrogue
                                                        Attorney at Law
                                                        State BarNo. 24012192
                                                        Robert Stephan Kaase
                                                        State Bar No. 24083287
                                                        1629 West Alabama St.
                                                        Houston, Texas 77006
                                                        713-425-7270 Telephone
                                                        713-425-7271 Facsimile
                                                        service@mjalawyer.com

                                                        ATTORNEYS FOR PLAINTIFFS




                                  CERTIFICATE OF SERVICE

   I hereby certify that a true and correct copy of the above and foregoing has been serv~ to all
counsel of record in accordance with the Texas Rules of Civil Procedure, on this the ll.-~ay of
February, 2015.




PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
                                                                                                 22
                                                                                        AR 000142
OBJECTIONS TO DEFENDANTS' SUMMARY JUDGMENT EVIDENCE                                       PAGE
                                    CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. d/b/a                 §              IN THE DISTRICT COURT OF
ALLIED MEDICAL CENTERS and                      §
INTERVENTIONAL SPINE                            §
ASSOCIATES,                                     §
                                                §
Plaintiffs                                      §                  HARRIS COUNTY, TEXAS
                                                §
VS.                                             §
                                                §
KHYATI MOHAMED UNDAVIA and                      §
MINU RX, LTD.                                   §                  152nd JUDICIAL DISTRICT

                            AFFIDAVIT OF BRETT L. GARNER

      BEFORE ME, the undersigned authority, personally appeared Brett L. Gamer, known to me
to be the person whose name is subscribed herein, and acknowledged to me that:

      1. "My name is Brett L. Gamer. I am over 18 years of age, of sound mind, and capable of
making this affidavit.    I have never been convicted of a felony or crime involving moral
turpitude. The facts stated in this affidavit are within my personal knowledge and are true and
correct.

    2. "I am a chiropractor licensed to practice in the State of Texas since 1997. I primarily
practice as a chiropractor with Nisal Corp. d/b/a Qualcare Rehabilitation, a Texas Corporation
which does business as Qualcare Rehabilitation. In 2006, I filed an assumed business name with
the Harris County Clerk's office for Allied Medical Centers. The Allied Medical Centers name
is licensed by me to Avant Medical Group, P.A.          Avant Medical Group, P.A., is a Texas
professional association which does business as Allied Medical Centers and Interventional Spine
Associates. I am also one of the owners of Sterling Practice Management, LLC, a management
service organization which manages the non-medical business dealings of Avant Medical Group,
P.A. Avant Medical Group, P.A., d/b/a Allied Medical Centers and d/b/a Interventional Spine
Associates provides medical doctor services and is separate from Nisal Corp. d/b/a Qualcare
Rehabilitation, which provides chiropractic and rehabilitation services.


                                                             EXHI~IT

                                                 1          .1-1
                                                                                      AR 000143
      3. "Avant Medical Group, P.A. was not a party to any lease agreement with Providian
Holdings, LLC, was not a party to Cause No. 1036848, Sterling Practice Management, LLC and
Nisal Corporation v. Providian Holdings, Inc., in the County Civil Court at Law No.4, Harris
County, Texas, and was not involved in the negotiation or execution of any settlement agreement
in that case.

      4. "From 2009 through March of2013, Nisal Corp. maintained its primary business location
III   a building owned by Providian Holdings, LLC and located at 2918 San Jacinto Street,
Houston, Texas 77004 ("the Building"). Nisal Corp. occupied the upper level of the Building
and Avant Medical Group, P.A. regularly provided medical services at the location. Sterling
Practice Management, LLC performed the billing and collection functions for and Avant
Medical Group, P.A. from its location at the Building.         Memorial Compounding Pharmacy
occupied the lower level. Khyati Undavia was the person with whom I interacted for matters
concerning the space leased in the Building.

      5. While the Nisal Corp. and Avant Medical Group, P.A. occupied the Building, Ms.
Undavia informed me that Nisal Corp. and Avant Medical Group, P.A. were not permitted to
have a separate mailbox in the Building. Instead, Ms. Undavia accepted all of the mail for all
occupants of the building, separate Nisal Corp. and Avant Medical Group, P.A.'s mail from mail
addressed to others in the Building, and deliver Nisal Corp. and Avant Medical Group, P .A. 's
mail to the upper level. Nisal Corp. and Avant Medical Group, P.A. permitted Ms. Undavia to
perform this function and allowed Ms. Undavia to receive and deliver the mail. Ms. Undavia
expressly agreed to properly separate and deliver all ofthe mail.

      6. "As part of my practice, I frequently treat patients who have been injured in accidents and
who do not have health insurance. When treating these types of patients, I will often defer
collection efforts until the patient is able to recover payment from the person or entity
responsible for their injuries. For this reason, my practice will often receive payment from the
patient or the patient's attorney several months or years after the patient has completed treatment
and been discharged. When treating these types of patients, I send regular requests for status of
payment to the patient or the patient's attorney.




                                                    2
                                                                                           AR 000144
   7. "I was first infonned that checks addressed and made payable to Avant Medical Group,
P.A. d/b/a Allied Medical Centers and d/b/a 1nterventional Spine Associates had been mailed to
the Building and gone missing in July 2012 when I requested status from patients' attorneys and
learned that payment had been issued but not received. The copies of checks attached as Exhibit
3 to Plaintiffs' Response to Defendants' Motion for Summary Judgment were received from the
attorneys for patients on Nisal Corp. and Avant Medical Group, P.A."

       Further affiant sayeth not.




                                                              Brett L. Gamer

        SUBSCRIBED AND SWORN to before me on this the 13th day of February, 2015, to
certify which witness my hand and seal of office. ~

                                                        /                         '    _\/

                                                              ~M~ - *c~oLCm~mt- UiS"-S~lO"'nl- -e- 'X-:-l-~-lsr:~o~ ~ ~ ~ ~ ~L~ ~ J
          ,~~~"::t:"..      JENNIFER RODRIGUEZ
       ll~'"     "'~t>\ Notary Public. State of Texas
       I !
        '~'.
                     J.J My Commission2016 Expires
        ";.~~''''<~''
                    • .. 11
                               June  15,                \".
            "" ....'v-




                                                                  3
                                                                                                                    AR 000145
                                     CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. d/b/a                    §               IN THE DISTRICT COURT OF
ALLIED MEDICAL CENTERS and                         §
INTERVENTIONAL SPINE                               §
ASSOCIATES,                                        §
                                                   §
Plaintiffs                                         §                 HARRIS COUNTY, TEXAS
                                                   §
VS.                                                §
                                                   §
KHYATI MOHAMED UNDA VIA and                        §
MINU RX, LTD.                                      §                 152nd JUDICIAL DISTRICT

                              AFFIDAVIT OF CARMEN MANZO

      BEFORE ME, the undersigned authority, personally appeared Carmen Manzo, known to me
to be the person whose name is subscribed herein, and acknowledged to me that:

      1. "My name is Carmen Manzo. I am over 18 years of age, of sound mind, and capable of
making this affidavit.    I have never been convicted of a felony or crime involving moral
turpitude. The facts stated in this affidavit are within my personal knowledge and are true and
correct.

      2. I am the person in charge of maintaining billing and collection records for Sterling
Practice Management, LLC. As part of my duties with Sterling Practice Management, LLC, I
am the person in charge of maintaining billing and collection records for Avant Medical Group,
P.A. d/b/a Allied Medical Centers and d/b/a Interventional Spine Associates.        Exhibit 3 to
Plaintiffs' Response to Defendants' Motion for Summary Judgment are checks payable to Avant
Medical Group, P.A. or to its assumed business names Allied Medical Centers and Interventional
Spine Associates. Checks received from patients and their attorneys are incorporated into the
records of Avant Medical Group, P.A. and kept in the course of Avant Medical Group, P.A.'s
business, Avant Medical Group, P.A. typically relies upon the accuracy of the contents of such
documents, and the documents were placed into Avant Medical Group, P.A.' s business records
at or near the time or reasonably soon after the time that they were received. The checks attached
as Exhibit 3 to Plaintiffs' Response to Defendants' Motion for Summary Judgment are the
originals or exact duplicates of the originals."
                                                           PLAINTIFF'S
                                                             EXHIBIT
                                                       I      2,
                                                                                         AR 000146
      Further affiant sayeth not.




        SUBSCRIBED AND SWORN to before me on this the 13th day of February, 2015, to
certify which witness my hand and seal of office.

          ~,'111",~
       .l'''~~'!.:
               !:':~'Io'lo   JENNIFER RODRIGUEZ
      '''':'        Y'i Notary Public. State of Texas
      \~.           {~i   My Commission Expires
       ~'~;:'I~~"~             June 15. 2016




                                                                            AR 000147
                                                                                                                        Page 1 of 1



--           CADENCE
              BANK
                                                                                                                         04/08/14
Account:
Name:                    THE DUNK LAW FIRM PLLC
                         IOLTA
                         4505 CAROLINE
Address:
                         4505 CAROLINE
                         HOUSTON, TX 78701

        The image shown below represents an official copy of the original document as processed by our institution


                                                                                                           4970
                       THI!l OUIIK LAW FlAIl, IILI..C
                              IOLTA 1CC0UIIf
                             4Ii06 tMoUNE sr.
                                                                                                9125flO13
                             HOOIl'OIt, 1'X 77004
                                                                                                   ---J:
         ~D~~",--_Al_lIed_M_ed_Ica_I_Ce_nte_r_ _ _-.....___~_ _ _ _ _ _ _............I1     $   ""182.50
                                                                                                                          I
                                                                                                                           •
                   Alied Medical CentBr




                                       004970           10/17/13    91061040   162.50
                                                                                                                           .....
     20131016008593156221500
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http://206.153.254.148/gw-binlgwgtwy.dll/print?20131017-100-7-1040-91061040.htm                                            AR 000148
                                                                                                                          4/8/2014
                                                                                                                   Page 1 of 1



--          CADENCE
               BANK
                                                                                                                       04/08/14
Account:
Name:                   THE DUNK LAW FIRM PLLC
                        IOLTA
                        4505 CAROLINE
Address:
                        4505 CAROLINE
                        HOUSTON, TX 78701

       The image shown below represents an official copy ofthe original document as processed by our institution



                                                                             --
                                                                              .--                           4973

                                                                                                912512013
                                                                                                --..;...-- t
        =ll:f__       ........._ _Spl_ne_As~s_oc_ _ _ _ _ _ _ _~_ _~---I1
                    lnteJventlollal                                                         $   ~,260.75
                                                                                                                        I
                                                                                                                        I
                                                                                  .
           Five ThouI8lllf Two Hundred Sixty and 761100--·_·_.._ - _ · ...•.."'.....•........ •...· -
                  InteMntionaI SpIne Assoc.



        MEMO
                                                                                                                   •


                                    004973    10/17/13       91061070       5260.75

       0131016008593156521500


       31016008593156521500




http://206.153.254.148/gw-binlgwgtwy.dll/print?20131017-100-7-1070-91061070.htm                                         AR 000149
                                                                                                                       4/8/2014
                                                                                                                                                       Page 1 of 1



--            CADENCE
               BANK
                                                                                                                                                         04/08114
Account:
Name:                        THE DUNK LAW FIRM PLLC
                             IOLTA
                             4505 CAROLINE
Address:
                             4505 CAROLINE
                             HOUSTON, TX 78701

      The image shown below represents an official copy ofthe original document as processed by our institution




                           THE au.( LAW fiRM, PLLC
                                                                                                          --
                                                                                                          .-                                   4981
                                                                                                                                               ~'II/
                                                                                                                                                  l1li
                                  IOLTAACCOUIIT
                                  ~ CAilOLlNE$f.
                                  HDUtmlN, 1)( 71004                                                                               9i25I2013


       Dlf.;.-._Alfied_M_ed_'C8_,_Center
                                   _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _---.ll $ "125.00
                                                                                                                                                            I
        ____  r -__________________________________
          One HUnclred TWenty-FiVe and 00/100--·
                                              ................·."""_··_···_·....
                                                                            __   ..._................._..._..............._......-..._••_._._..~   ________
                                                                                                                                               '_..... _-_..
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                                                                                                                                                            I
        MEMO
                                                                                                                                                       • j

                                                004981          10117/13            91061030              125.00
                 -.                       v••




       0131016008593156121500


       31016DD85931561219D




http://206.153.254.148/gw-binlgwgtwy.dll/print?20131017-100-7-1030-91061030.htm                                                                             AR 000150
                                                                                                                                                           4/812014
                                                                                                                                 Page 1 ofl



--           CADENCE
              BANK
                                                                                                                                       04/08114
Account:
Name:                     THE DUNK LAW FIRM PLLC
                          IOLTA
                          4505 CAROLINE
Address:
                          4505 CAROLINE
                          HOUSTON, TX 78701

       The image shown below represents an official copy of the original document as processed by our institution




                                                                                                                              - 'I
                                                                                                                          4984
                                                                                                                          --.alII
                        1ME DUNK LAW R .... PL.l.e
                             IOLTAACCOUNT
                              . . CMOUII! sr.                                                                9I'.W.!Q13
                              HOU8TOH, 1X 1'7OOt
                                                                                                            ----J
        PAYlOl11E_ _
        ORDER ()F_._
                    Inb3_IVe_ntlona_I_SP_ine_A_ISSOO_._ _ _ _ _ _ _ _- -_ _ _ _                       -,J $ "5,816.89
            FIVe lhoLlll8l1d Eight Hundred Sixteen and 891100"--......-~ ......••..·..,;·..~.. •................w--
                                                                                                                                        i
                                                                                                                                       (b
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                                                                                                                                        rI.
        IilEMO-
                                                                                                                                 ...
                                                                     - - ----   --~--.   --   -----




                                      004984         10117/13        91061080             5816.89

       0131016008593156621500


      13t01~156621500




http://206.153.254.148/gw-binlgwgtwy.dll/print?20131017-100-7-1080-91061080.htm                                                          AR 000151
                                                                                                                                        4/8/2014
    BRIAN LONCAR, P.C.                                                                                                                                                                                                914006
    ATTORNEY AT LAW
    P.I. TRUST ACCOUNT
    424 SOUTH CESAR CHAVEZ BOULEVARD                                                                                                                                                                       8/30/2011
    DALLAS, TEXAS 75201                                                                                                                                                                                                                  1&
    (214) 747-0422
           PAY TO THE Allied Medical Center
                                                                                                                                                                                                     $
                                                                                                                                                                                                          **783 33
                                                                                                                                                                                                                    .                    I
           ORDER OF

            Seven Hundred Eighty~Three and 33/100 ....                              ****-..···. ····_-_·_-***-_·**·_-******·....··                                                                                             DOLLARS   IJ
                      Allied Medical Center


                                                                                                                                                                          tt~DAVS
                      2918 San Jacinto                                                                                                                                                                                                   t?J
                      Ste#200
                      Houston, Tx 77004

           MEMO
                                                                                                                                                                              AUTHORIZED SIGNATURE




                        9EG' If"i1I1='1' FPiT\lR&B UIQRQ PRII' leP.~.!'e:r=r~" ~.~ne~~~.~~k~RE8 P iFFEA" I ~eA8 Pfmrf 818ft iif'tfRE lIUE Bt:EES "'JIIRBt:J81'Ut;ll 11!11!~II,e ;,nSS!!'!! I't!!"l'tff\f! 114DDltiESA fOP' i

    CHECKAMT: 783.33
    TRANSCODE:36L_
    ACCOUNTNUM:~
    TRROUTNUM: 11400009
    SERIALNUM:914006
    ITEMSEQNUM:91420607
    CAPTURDATE:09/21/2011
    ITEMID1 :808fe1 c2
    SETID:00000000071 04041 d4ceOOOO
    ITI=




P0110920215000200061
                                                                                                                                                                                                             +-




I

    20110920215000200061




                                                                                                                                                                                                              +-


    CHECKAMT: 783.33
    TRANSCODE:3fi4 - - - - - - ---
    ACCOUNTNUM
    TRROUTNUM:11400009
    SERIALNUM:914006
    ITEMSEQNUM:91420607
    CAPTU RDATE:09/21/2011
    ITEMID1 :808fe1 c2
    SETID:0000000007104041d4ceOOOO


                                                                                                                                                                                                                      AR 000152
                                                                                                                                                                         ~




BRIAN LONCAR. P.C.                                                                                                                                          913801
ATTORNEY AT LAW
P.1. TRUST ACCOUNT
424 SOUTH CESAR CHAVEZ BOULEVARD                                                                                                                      8130/2011
DALLAS, TEXAS 75201                                                                                                                                                           1Ii
(214) 747-0422
   PAY TO THE
   ORDER   or       Allied Medical Center                                                                                                       $    -1,781.73                I
                                                                                                                                                                              J
      One Thousand Seven Hundred Ei9ilty-one and 731100--..........· _...__ ....••...•••....•••.....• .....•............••...· -
                                                                                                                                                                    DOLLARS   I
                Allied Medical Center
                2070 FM 1960 W                                                                                                                                                tn
                Houston, Tx 77090
                                                                                                                            I).OOMYS
   MEMO . . . - - - - .
                                                                                                                                                                        ..
CHECKAMT:   1781.730Rii f FEAiUAES MiGRVPFUNi IOraBO' iQNi &JROeRSWlOREUMI lEAN   NiCHCPFHiNi SklNAiUAEUN2 MEED • "ROUGh NOMSEAii4Q WS$riG FEAiURE.tcOiCAiESACOP,


TRANSCODE:36.4. . - ....-- - - -
ACCOUNTNUM
TRROUTNUM: 11400009
SERIALNUM:913801
ITEMSEQNUM:91420610
CAPTURDATE:09/21/2011
ITEMID1 :808fe2af
SETID:00000000071 04041 d4ceOOOO
ITEMVI EWI D:808fe2b 1




~0110920215000200064
                                                                                                                                                     -
20110920215000200064




                                                                                                                                                      -
CHECKAMT: 1781.73
TRANSCODE:364._ -- .-~­
ACCOUNTNUM
TRROUTNUM: 11400009
SERIALNUM:913801
ITEMSEQNUM:91420610
CAPTURDATE:09/21/2011
ITEMID1 :808fe2af
SETID:0000000007104041d4ceOOOO
ITEMVI EWID:808fe2b 1

                                                                                                                                                            AR 000153
 BRIAN LONCAR, P.C.
 AlTORNEY AT LAW
 P.1. TRUST ACCOUNT
 424 SOUTH CESAR CHAVEZ BOULEVARD
                                                                                                                                                                                       813012011
 DALLAS, TEXAS 75201
 (214) 741-0422
                                                                                                                                                                                                                  1I    '
    PAY TO THE
    ORDER OF         Allied Medical Center                                                                                                                                      $     "'821.75
                                                                                                                                                                                                                  I     !



        Eight Hundred Twenty-One and 151100.....······*****1'*****''**_.................._**-**-******* ....**_·............**..*
                                                                                                                                                                                                        DOLLARS
                                                                                                                                                                                                                  Ii I:
                  Allied Medical Center
                  2918 San Jacinto                                                                                                                                                                                IS}
                  8te200
                  Houston, Tx 77004

    MEMO
                                                                                                                                                                                                            ...
CHECKAMT: 821. ;;et:lftff.   Fe..fUFlE8 MISRa PRltITlBP, 99"911 aeF1BEft8 9e1:E1f1Bi1 PJi."fl£Aft fueRS PFUUT8tetUiRtAE: I:I~IE IlU:EEQ 'RI~WEIII tlwrtB&AI.. a ,1IBs•• e fE#inme: ,U91Efl'tfE8A6e1 •


TRANSCODE:36<l _ -_.
ACCOUNTNUM:
TRROUTNUM:11400009
SERIALNUM:913797
ITEMSEQNUM:91420608
CAPTURDATE:09/21/2011
ITEMID1 :808fe1 c5
SETID:00000000071 04041 d4ceOOOO
ITEMVIEWID:808fe1c7




  0110920215000200062
                                                                                                                                                                                      -
20110920215000200062




CHECKAMT: 821.75
TRANSCODE:364. _______ ~
ACCOUNTNUM:
TRROUTNUM: 11400009
SERIALNUM:913797
ITEMSEQNUM:91420608
CAPTURDATE:09/21/2011
ITEMID1 :808fe1 c5
SETID:0000000007104041d4ceOOOO
ITEMVIEWID:808fe1c7 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _
L-~~~~~




                                                                                                                                                                                               AR 000154
BRIAN LONCAR, P.C.                                                                 913766
ATTORNEY AT LAW
P.1. TRUST ACCOUNT
424 SOUTH CESAR CHAVEZ BOULEVARD                                         8/30/2011
DALLAS, TEXAS 75201                                                                                                  ~
(214) 747-0422                                                                                                       Ii
   PAY TO THE
   ORDER OF
                  Allied Medical Centers                         $       **982.50                                    I
                                                                                                   DOLLARS           IJ
                Allied Medical Centers
                5718 Bellaire Blvd.                                                                                  la
                Houston, Tx 77061


   MEMO
                                                  AUTHORlZEO SlBNATURE                                          ..
CHECKAMT: 982.50                                                                          j

TRANSCODE:3M
ACCOUNTNUM:
TRROUTNUM:11400009
SERIALNUM:913766
ITEMSEQNUM:91420609
CAPTURDATE:09/21/2011
ITEMID1 :808fe2ac
SETlD:00000000071 04041 d4ceOOOO
ITEMVIEWID:808fe2ae




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ITEMID1 :808fe2ac
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                                                                                  AR 000155
                                                         ".036848               e.C.C.l. # 4
o
                                           NO. _______________
"'J
'1...1
[)
!:-)     STERLING PRACTICE MANAGEMENT, LLC                         IN COUNTY COURT AT LAW
oc;      NISAL CORPORATION
u              Plaintiff

         vs.                                                       NO. _________________

         PROVIDIAN HOLDINGS, INC.
              Defendant                                            HAJUUSCOUNTY,TEXAS

                                PLAINTIFFS' ORIGINAL PETITION
         TO THE HONORABLE JUDGE:

         Sterling Practice Management, LLC (hereinafter Sterling) and Nisal Corporation

         (hereinafter Nisal) appear and file Plaintiffs' Original Petition against Defendant Providian

         Holdings, Inc., and in support would show the court the following:

         1. This is a Level One Discovery Control Plan case.

         2. Plaintiffs are entities doing business in the State of Texas. Defendant Providian

               Holdings, Inc. is a corporation doing business in the State of Texas and can be served

               through its agent for service of process, Khyati Undavia, 2918 San Jacinto, Houston,

               Texas 77004. Plaintiffs seek damages within the jurisdictional limits of the Court. The

               Court has subject matter jurisdiction and venue is proper.

                                             FACTUAL BACKGROUND
         3. Sterling entered into a lease agreement with Defendant. Pursuant to the terms of the

               lease, Sterling made a security deposit in the amount of $2000.00. Upon termination of

               the lease and sixty days after Sterling provided a forwarding address, Defendant has

               refused to refund the security deposit to Sterling. Defendant has acted in bad faith.

               Defendant is liable to Sterling for the full security deposit of $2000.00, plus a statutory

                                               ~   PLAINTIFF'S
                                               ~     EXHIBIT

                                               ~
                                               ~
                                                      4:
                                                                                                       AR 000156
           ..

    -.
~-


C}
                    penalty of $100.00, plus an additional statutory penalty of $4000.00, plus reasonable
':l
'1. ...;

()
D                   attorney's fees. Defendant has acted in bad faith by not providing a written description
0
E                   and itemized list of damages and charges, if any, and thus has forfeited its right to
  I
"?                  withhold a portion of the security deposit for such damages and charges.
":{
\_~


C
.. _i
                4. Nisal entered into a lease agreement with Defendant. Pursuant to the terms of the lease,
()
C)                  Sterling made a security deposit in the amount of $3600.00. Upon termination of the
if
4                   lease and sixty days after Nisal provided a forwarding address, Defendant has refused to

                    refund the security deposit to Nisal. Defendant has acted in bad faith. Defendant is

                    liable to Sterling for the full security deposit of $3600.00, plus a statutory penalty of

                    $100.00, plus an additional statutory penalty of $7200.00, plus reasonable attorney's

                    fees. Defendant has acted in bad faith by not providing a written description and

                    itemized list of damages and charges, if any, and thus has forfeited its right to withhold

                    a portion of the security deposit for such damages and charges.

                WHEREFORE PREMISES CONSIDERED, Plaintiffs pray that Defendant Providian

                Holdings, Inc. be cited to appear and that judgment be taken against it for all damages

                suffered by Sterling in the amount of $6100.00 (consisting of the security deposit due and

                owing and all statutory penalties), plus reasonable attorney's fees, and that judgment be

                taken against it for all damages suffered by Nisal in the amount of $10,900.00 (consisting of

                the security deposit due and owing and all statutory penalties), plus reasonable attorney's

                fees, plus all costs of court, plus and any all further relief Plaintiffs may be entitled to.




                                                                                                                AR 000157
       ,



                                   Respectfully submitted,

                                   PHILLIP BRANTLEY AND ASSOC., P.C.
o
6                                  D'Jk~~
                                   ~iJilip~raIltle~O
                                   SBN 02899727
                                   Arena Tower II
                                   7324 Southwest Freeway, Suite 1020
o                                  Houston, Texas 77074
o                                  (713) 270-4053 phone
4                                  (713) 270-0682 facsimile
                                   ATTORNEYFORP~ITP

    P'ii


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                                                                        AR 000158
                                            Law Office of
                            Phillip Brantley and Associates, P.C.
                                          Arena Tower II
                                7324 Southwest Freeway, Suite 1020                  Tel (713) 270-4053
                                      Houston, Texas 77074                         Fax(713)270~2

                                        phiUipbrantley.com

                                          September 3, 2013


      Stan Stanart
o     County Clerk
o     Civil Courts Building
4     201 Caroline, Suite 300
~
'-'   Houston, Texas 77002

      RE:    Sterling Practice Management, LLC, et al. vs. Providian Holdings, Inc.

      Dear Mr. Stanart:

      Enclosed are an original and two copies of Plaintiff's Original Petition. Please return one
      copy to me in the self-addressed stamped envelope and stamp the other copy and return it
      to me with the citation attached. Also enclosed is my check for $221.00.




                                                    htiUprantley




                                                                                               AR 000159
                                                                                                                                                                                          :.- ~) L-d C> l:.~   .,   1..3'1 c..w ~\.1 ---"";    ~    ,   en () iIi C) !~:;            =.,-: ::':,;   f\1




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                                                                                                                                                                                                                                                                                                    'f


                    PHIlip Erantley ami Associates, PC
                    Arera Tower II
                    7324 Sout!lwest Freeway, Suite 1020
                                                                                                                                                                                                        .            tl~POS~-                                              .
                    Houston, Texas 77074
                                                                                                                                                                                                               . fi1{t'/            di ,-
                                                                                                                                        •
                                                                                                                                                                                                                    ~""""'_PlrN~
                                                                                                                                                                                               ~                    {~~    1;>                      $001.06°
                                                                                                                                                                                       r                       •    (;:}GO~;3       :863                SEP 04 2;) i:3
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                                                                                                                                                                                                                    Mrd.E            ,....,..,I'~   ... , . . .
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                                                                                                                                                                                                                                                                    I   ! l).' '1"



                               ?'




                                                                                                      Stan S~anarl
                                    .. -----~
                                                                                                      County Gerl{
                                                                                                      Ci-, il Courtft£.';iiding
                                                                                                      20~ Caroline, Suite 300

                                          t                                                           Houston. TX 77002
                                          i

                                                                         ·77t:;tZi.'2$~caE2                                     ". Jj.JJ 'J!'!tIt1JbJ,#il.i4J.i.iNuJI1' III II '/III Il' IIi /I IIJjl 1' /"

            .-...
AR 000160
                                       MUTUAL RELEASE

 THE STA1E OF TEXAS

. COUNTY OF HARRIS

         WHEREAS, certain disputes, claims and causes of action existed by and between

 STERLING PRACTICE MANAGEMENT, LLC, its officers, directors, shareholders, partners,

 successors, agents, assigns, employees, servants andattomeys (hereinafter STERLING) and

 PROVIDIAN HOLDINGS, INC., its officers, directors, shareholders, partners, successors, agents,

 assigns, heirs, employees, servants and attorneys (hereinafter PROVIDlAN), arising from a

commercial lease; and

        WHEREAS, certain disputes, claims and causes of action existed by and between

NISAL CORPORATION, its officers, directors, shareholders, partners, successors, agents,

assigns, employees, servants and attorneys (hereinafter NISAL) and PROVIDIAN HOLDINGS,

INC., its officers, directors, shareholders, partners, successors, agents, assigns, heirs, employees,

servants and attomeys (hereinafter PROVIDIAN), arising from a commercial lease; and

        WHEREAS, STERLING and NISAL filed suit against PROVIDIAN, No. 1036848,

County Civil Court at Law No.4, Harris County, Texas; and

        WHEREAS, the parties desire to compromise, settle and provide for the full and final

termination of all of the said claims, demands. causes of action and disputes between them arising

out of or related to such claims which either party may now have or have had against each other. all

without admitting any of the allegations set forth;

       NOW, THEREFORE, for and in consideration of a check written by PROVIDIAN to

STERLING AND NISAL and Phillip Brantley and Associates, PC in the amount of $7600.00, the

mutual releases contained herein, and other good and valuable consideration, the receipt and


                                                                 ~ PLAINTIFF'S
                                                                 ...I EXHIBIT

                                                                 ~      5
                                            EXHIBIT C
                                                                 ~                            AR 000161
 sufficiency ofwbich is hereby acknowledged, STERLING AND NISAL, their officers, directors,

 shareholders, successors, agents, assigns, employees, servants, partners, heirs and attorneys

 hereby RELEASE, ACQUIT and FOREVER DISCHARGE PROVIDIAN, its officers,

 directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs and

 attorneys from any and all liabilities. claims, demands, causes of action, judgments, liens,

 liabilities or potential claims or causes of action which STERLING AND NISAL have ever had or

 could have had, whether now known or unknown, which have arisen or may arise from the

 beginning of time to the date of this release, including, without limitation;

        NOW, THEREFORE, for and in consideration of the acceptance of the aforesaid check

written by PROVIDlAN to STERLING AND NISAL and Phillip Brantley and Associates, PC in

the amount of $7600.00, the mutual releases contained herein, and other good and valuable

consideration, the receipt and sufficiency of which is hereby acknowledged, PROVIDlAN, its

officers, directors, shareholders, successors, agents, assigns, employees, servants, partners, heirs

and attorneys hereby RELEASE, ACQUIT and FOREVER DISCHARGE STERLING AND

NISAL, their officers, directors, shareholders, successors, agents, assigns, employees, servants,

partners, heirs and attorneys from any and all liabilities, claims, demands, causes of action,

judgments, liens, liabilities or potential claims or causes of action which PROVIDAN has ever had

or could have had, whether now known or unknown, which have arisen or may arise from the

beginning of time to the date of this release, including, without limitation.

        Upon signature of all parties, STERLING AND NISAL shall file a nonsuit with prejudice.

       The parties hereto represent and warrant that the persons executing this Mutual Release on

their behalf as shown on this instrument is authorized to bind same.




                                                                                             AR 000162
        It is understood and agreed that this is a final Mutual Release, that no further consideration

is to be paid by any of the parties. and that this settlement is in compromise of disputed claims and

is not to be construed as an admission of liability.



                                       STERLING PRACTICE MANAGEMENT, LLC




THE STATE OF TEXAS
COUNTY OF HARRIS'

       BEFORE ME, on this day personally appeared,                Wi {1l{( m +h
of STERLING PRACTICE MANAGEMENT, LLC, whose name is subscribed to the foregoing
                                                                                          t.,,[S!,
Mutual Release, and who, acknowledged to me that he/she executed the Mutual Release as the act
and deed of said entity, for the purposes and consideration therein expressed, and in the capacity
therein stated.

        GNEN W1der my hand and seal of office                                  D~in hrA      ,2013.


                                      NOTARYP LICIN AND FOR
                                      THE STATE OF TEXAS



                                                                 MARIA PATRICIA MUNIZ
                                                                 My Commlssloll Expires
                                                                     May 14.2016




                                                                                               AR 000163
NISAL CORPORATION




                    MARIA PATRICIA MUNIZ
                    My Commission Expires
                        May 14.2016




                                            AR 000164
                                                          PROVIDIAN HOLDINGS, INC.




THE STATE OF TEXAS
COUNTY OF HARRIS

         BEFORE ME, on this day personally appeared,                                         elf( ,
of PROVIDIAN HOLDINGS, INC., whose name is subscn                to the foregoin Mutual Release,
and who, acknowledged to me that he/she executed the Mutual Release as the act and deed of said
entity, for the purposes and consideration therein expressed, and in the capacity therein stated.
                                                                                                                                            OG.r~
         GIVEN under my hand and seal of office, thi.                                                                                                               ,2013.


                                                        NOTARY                                      Ie IN AND FOR
              KEIl1i CHUNN. JR.                         THE STATE OF TEXAS
 ~
     .
 ~.     . i MY COMMlSSION EXPIA'eS
 \.~.:.'$J     November 14. 2016
  .
  ~

                                                                                                                      .~---   .... -.. ---:. ,-:~:;:..~   .~. ';"

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                                                                                                                                                                    (   .. :' ~ :'   ~',


                                     -)!         9~O~ 'p~,!';.tt'iV_ ':~J                   ;~~~~,~ ":,         ;,~                                                                        "
                                                                                                                                                                                           "




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                                                                                                                                                                                     AR 000165
                                                                                                 FILED
   omCEOFBEVERLYB KAUFMAN,COUNTYCLERK,HARRISCCUNTY,TEXA&,OOCHAR                                       -2O
                                                                                                        AH 9: 50

~
             P,O,BOXlS2S-HOUSTON,lEXAS772SJ-IS2S      L                                                                       B                   3948:13
                                                                                                                        03102/fJ6 600H36N                   $16.00
                                                                                                                 L
\~~
                  ASSUMED NAME RECORDS                                                 /1         I   ;;'It",         Assuned Ilalle
               CERTIFICATE OF OWNERSHIP FOR                                      .11 Je,;;t ~ .1:541) ~
                                                                                        (I

           UNINCORPORATED BUSINESS OR PROFESSION                                 'Id'-"          (j          ~
                                                                                              COUllTY CLERI{
                                                                                   Ht IlRI< rl'I'mY, TFXAS
 [A beginning cbaracterotber than a letter or a number, or the last portion       ora name tbat exceeds 57 cbaracters, will not be reflected in tbe indices,
 Pleas. print legibly,)

 NAME IN WHICH BUSINESS IS OR WILL BE CONDUCTED: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
 ALLIED MEDICAL CENTERS

 BUSINESS ADDRESS 5718 BELLAIRE BLVD

 CITY HOUSTON                                                             STATE_T_X_ _ _ _ _ _ _ ZIP 77081

 PER(OD{~ot to exceed 10 years) DURING WHICH ASSUMED NAME WILL BE USED: _1_0_ _ _ _ _ _ _ _ _ _ _ _ _ __

 BUSINASS IS TO BE CONDUCTED AS (Check One): :KJ Sole Proprietorship 0 Sole Practitioner 0 Other_ _ _ _ _ _ _ _ _ __
 o Gen~ral Partnership          0   Joint Venture     0   Joint Stock Company      0         Real Eslate Investment Trust

 l!We, the underStgnc.J,.amlarc ih!JQW\ler(s) of the above business and my/ourname(s) and addressees) given is/are true and correct, and there is/are no
 ownership(s) in seid businew other than those listed below,



                                                                                                       SIGNATURE'lL~Lg~
                                                                  -NAMES OF OWNERS-
  NAME GARNER,BRETT                       LEWIS
             (prUtlD#'rypc1                     ...
  Rllsidence Address 5903 SOLAR POfi\IT
                                    ..
                                                                                                                      1\
  City: HOUSTON                 ...                                         State: TX                                       Zip: 77041

  NAME                                                                                                 SIGNATURE
             (pri4lfJl''1P'J
  Residence Address

  City:                                                                     State:                                          Zip:

  NAME                                                                                                 SIGNATURE
             (pNtltWt;JIp';
  Residence Address

  City:                                                                   ••• Staie:                                        Zip:

                                                                                         ,.
 If this instrument is executed by an attorney-in-fact, the attorney-in-factlterebysllItes tbat slhe/they baslbave been duly authorized in writing by hislher
 principal to execute and acknowledge the same.

 THE STATE OF TEXAS
 COUNTY OF HARRIS
           BEFORE ME, THE UNDERSIGNED AUTHORlTY, on this day persOl\UIIy JlPPClared _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
 GARNER,BRETTLE~S




                                                                         SHARON B, STEWART




                                                            !.    PLAINTIFF'S
                                                             ~      EXHIBIT

                                                             ~~          Is>
                                                                                                                                                                AR 000166
                                                                                                              FIL,EO
                                                                                                      In ttl. OffIce of l1e
                                                                                             SeCl'lt.ry of .... ofT.,.,
                                                                                                        JUL 1 4 20lrfi
                                                                                                  Oofporationa 8e6IJ
                                                                                                                 . .......

Office of the                                                                   Corporations Section
Secretary of State                                                                     P.O. Box 13697
Form 204                                                                     Austin, Texas 78711-3697
(Revised 01/06)                                                                          512-463-5555
                                                                                    Fax: 512-463-5709

                                                                                           Filing Fee: $750
                                                                                                         ,      ,

                                     CERTIFICATE OF FORMATION
                                     PROFESSIONAL ASSOCIATION


                                      Artide-l- Entity Name and Type

The filing entity being fonned is a professional association. The name of the entity is Avant
Medical Group. P .A.


                            Article 1 - Registered A&eat and Registered Office
                                   (Select and complete ~ A or B and complete C)

lID     A.    The initial registered agent is an organization (cannot be entity named above) by the
        name of: Sterling Practice ManagemenL L.P.

or
o       B.      The initial registered agcnt is an individual resident of the state whose name is set
        forth below:


        First Name                              MI          Last Name                                         SUffIX

        C.       The business address of.the registered agent and the registered office address is:

         5718 Bellaire Blvd                                    Houston                   Texas              77081
        Street Address                                           City                     Slale                 Zip

                                        Artiele 3 - Governing Penon.
                             Select ~ A or B. (A minimum of 1 individual is required.)

A. 00 The professional association is to be managed by a board of directors. The names and
addresses of the members who are to serve as initial directors are set forth below:    ~ ii,; 1~ it                    I'


                                                                                    l' I " it ~d:

                                           ~   PLAINTIFF'S
         RECEIVED                          ~     EXHIBIT

        .~', " , . '1'
         , ':::     A /:
                       ,.   :' .
                                           ~      7
                                           ~                                                                 AR 000167
      Secretary of State
/




    OR

    B. 0 The professional association is to be managed by an executive committee. The names and
    addresses of the members who are to serve on the executive committee are set forth below:

    Anteneh                                T.                 Roba
    First Name                            MI            Last Name                                  Sulfa

    223 Westheimer Road                                    Houston               Texas USA         77006
    Strut Address                                        City                 State   COlin I')'     Zip


                                             Article .of - Purpose                                           .
    The type of professional service to be provided by the professional entity is (use space provided. below):
    Medical services.                                                                                       .!



                                       SupplemeDtal ProvisioasllnformadoD
    Text Area: [The atfa(;hed addendum, ifany, ifineorporated herein by refctence.]



                                                  Origblal Members

    A member of the association may not dissolve the association independently of other members of
    the association. The name and address of each .original J?1ember of the association is:

    Anten¢h                               T.                   Roba
    First Name                            MI           Last Name                                   Suffix

    223 Westbeimer Road                                    Houston              Texas USA          77006
    Street Address                                       City                 State Country          Zip



                                                Efreedveness of FillDg
                                                  (Select either A, S or C)

        A. £8J This document becomes effective when the document is tiled by the Secretary of State. '.'
        B. 0 This document becomes effective at a later date. which is not more than ninety (90) days
           from the date of signing. The delayed.effective date is: _-::--_ _ _ _~--:----:-_"':'
        C. 0 This document takes effect upon the occurrence of the future event or fact, other than the
           passage of time. The 90111 day after the day of signing is: _ _ _ _ _ _ _ _ _ _ __

        The following event or fact will cause the docwnent to take effect in the manner descnbed
        below:                                             .




                                                                                                            AR 000168
                                                   Exeeution

    'The undersigned signs this document subject to the penalties imposed by law for the submission of
    a materially false or fraudulent instrument.               ~
    Date:      I   113}   a                                              :2)
                                                         ~R~~~~ofJo~n~~~~~I~m~em~N~r=:~----------




L




    AUS:2681595.i
    53:124.1



                                                                                                 AR 000169
                                 CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A.                        §    IN THE DISTRICT COURT OF
d/b/a ALLIED MEDICAL CENTERS                     §
and INTERVENTIONAL SPINE                         §
ASSOCIATES,                                      §
                                                 §
      Plaintiffs                                 §
                                                 §
VS.                                              §       HARRIS COUNTY, TEXAS
                                                 §
KHYATI MOHAMED UNDAVIA,                          §
MINU RX, LTD., and MINU GP,                      §
L.L.C.,                                          §
                                                 §       152ND JUDICIAL DISTRICT
      Defendants


      DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANTS’
                  MOTION FOR SUMMARY JUDGMENT


TO THE HONORABLE JUDGE ROBERT SCHAFFER:

       Defendants Khyati Mohamed Undavia, Minu RX, Ltd., and Minu GP, L.L.C. file

this Reply to Plaintiffs’ Response to Defendants’ Motion for Summary Judgment and would

respectfully show the Court as follows:

                                                 I.
                                          SUMMARY

1.     Without doubt or dispute, Nisal and Garner released Defendants in the Mutual

Release. They are out. So to retain any modicum of credibility, Plaintiffs should have

jettisoned Nisal and Garner from this lawsuit.

2.     Instead, Plaintiffs double down on their bet and contend that the “scope” of the

release is controlling. Defendants’ readily agree. The scope of the Mutual Release is so


                                                 1
                                                                                 AR 000170
broad and all-encompassing that it covers any known or unknown claims, whether or not

they were actually asserted in the underlying lawsuit. Nothing could be broader than that.

All of Plaintiffs’ current claims are captured and released.

3.     Finally, Plaintiffs make minute, ticky-tack arguments to throw the kitchen sink at the

Court. Yet Plaintiffs go to no pains to discuss or distinguish the insurmountable case law

cited in Defendants’ motion for summary judgment. If ignoring the law is the approach

Plaintiffs chose to defeat summary judgment, then the outcome for this Court is simple—

Defendants are entitled to judgment as a matter of law.

                                              II.
                                            REPLY

A.    THE MUTUAL RELEASE INCLUDED “ALL” CLAIMS, WHETHER “KNOWN OR
      UNKNOWN,” AND THEREFORE SPECIFICALLY MENTIONED PLAINTIFFS’ CLAIMS
      IN THIS LAWSUIT.

9.     In paragraph 16 of their response, Plaintiffs contend that the scope of the release is

a threshold issue. Defendants will take Plaintiffs' cue on that point and show this Court

how that threshold issue is dispositive of all of Plaintiffs' claims in this current lawsuit.

10.    As to scope, Plaintiffs argue that they executed the Mutual Release to resolve only

the County Court Lawsuit. Therefore, only the claims in that lawsuit have been released.

11.    This argument ignores the broad, all-encompassing language of the Mutual

Release, which extends to “any and all liabilities, claims, demands, causes of action,

judgments, liens, liabilities or potential claims or causes of action which . . . [the parties

and their agents] . . . have ever had or could have had, whether now known or unknown,

which have arisen or may arise from the beginning of time to the date of this release[.]”


                                               2
                                                                                         AR 000171
(See Mutual Release, p. 2) (emphasis added). This language is not limited by or tailored

to the claims in the underlying County Court Lawsuit. No claims are reserved for future

litigation. The Mutual Release extends to all claims, including those currently asserted

by Plaintiffs in this lawsuit.

12.    Plaintiffs rely heavily on Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931

(Tex. 1991) for the incorrect proposition that a release only extends to extant, pending

claims in a lawsuit. However, Brady dealt with far different facts. There, the parties

entered into a settlement agreement that released the bank “from any and all claims and

causes of action . . . directly or indirectly attributable to the above described loan

transaction.” Id. at 938 (emphasis added). The original plaintiffs then filed a new suit

against the bank that did not involve the “above described loan transaction.” Id. The

court held that the only claims the settlement agreement released were those dealing with

the “above described loan transaction,” and thus, did not bar the plaintiffs’ current claims

against the bank. Id.

13.    The Texas Supreme Court acknowledges the narrow holding of Brady. In Keck,

Mahin & Cate v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 698 (Tex.

2000), the court states:

       [In Brady], we noted that the parties’ agreement plainly limited itself to the
       specific loan and thus did not cover [the] other transaction. The present
       release is clearly broader than the one in Brady. It is not expressly limited
       to a specific claim or transaction but rather purports to cover “all demands,
       claims, or causes of action of any kind whatsoever.” Nothing in Brady
       forbids such a broad-form release.
       ....



                                             3
                                                                                        AR 000172
       Although Releases often consider claims existing at the time of execution, a
       valid release may encompass unknown claims and damages that
       develop in the future.

Id. at 698 (emphasis added).

14.    Unlike the release in Brady, and exactly like the release in Keck, the Mutual

Release in this case is not limited to claims arising out of a particular transaction.

Instead, the Mutual Release extends to “all” claims whether “known or unknown,” and

without regard to whether they were actually asserted in the County Court Lawsuit. (See

Mutual Release, p. 2).

15.    Keck similarly disposes of Plaintiffs’ reliance on the Mutual Release’s recital

paragraph. In Keck, the court held that the specific mention of a pending claim in a

recital paragraph did not otherwise reduce or narrow the scope of the broad-form release

language that followed. See Keck, 20 S.W.3d at 698.

16.    When the parties signed the Mutual Release, the claims asserted in this lawsuit

were existing claims. Thus, they were specifically mentioned by the Mutual Release and

released.

B.    THE MUTUAL RELEASE PLAINLY EXTENDS TO THE PARTIES’ “AGENTS,” AND
      THEREFORE INCLUDES GARNER, AVANT, ALLIED, UNDAVIA, AND MINU

       (i)    Garner, Allied, and Avant, as agents of Sterling and Nisal, are bound by the
              plain language of the Mutual Release.

17.    Plaintiffs argue that Sterling and Nisal had no authority to release claims

belonging to their agents, Garner, Avant, and Allied.      Unable to find any support for

their untenable position, Plaintiffs simply point the finger back at Defendants:

“Defendants cite no authority to support their implicit position that the signatories to the

                                             4
                                                                                      AR 000173
Release had the authority to settle claims belonging to their alleged agents on their

behalf.” (See Plaintiffs’ Response; ¶26).

18.    Defendants, however, rely on the plain, unequivocal language of the Mutual

Release. This language provides that Sterling and Nisal’s agents are also releasing any

claims they may have against Defendants.

19.    Further, Plaintiffs contend that Sterling and Nisal lacked “authority” to release

claims on behalf of the other Plaintiffs. Garner—the individual that signed the release—

is a principal for each of the Plaintiffs. Broken down, Plaintiffs argue that Garner, in his

capacity with Nisal, did not have authority to release claims belonging to Garner

personally or to his other companies. That argument makes no factual or legal sense. Is

Garner somehow divorced from the knowledge of the Mutual Release just because he

signed the document in a corporate capacity? That he signed the document in any

capacity eliminates any doubt that he is a party releasing Defendants.

20.    Plaintiffs provide no support to counteract the plain language of the Mutual

Release. Garner, Allied, and Avant—as agents of Nisal and Sterling—have released their

claims against Defendants.

       (ii)   Defendants are agents of Providian and therefore fall under the protection
              of the Mutual Release.

21.    Plaintiffs then argue that although they may have released Defendants in their

capacity as agents of Providian, they did not release Defendants in their “individual

capacity.” After all, Plaintiffs argue, “an agent is liable for his own torts.” Williams v.

Olivo, 912 S.W.2d 319 (Tex. App.—San Antonio 1995).


                                             5
                                                                                     AR 000174
22.    Once again, this argument is disposed of by the plain language of the Mutual

Release, which extends not simply to Providian but also to Undavia and Minu as

Providian’s agents. Plaintiffs categorically released Undavia and Minu from “all claims,”

regardless of whether those claims arose in their individual or agency capacities, or in tort

or otherwise.

       (iii)    By specifically mentioning “agents,” the Mutual Release specifically
                mentioned Garner, Avant, Allied, Undavia, and Minu.

23.    Plaintiffs next argue that Defendants belied their own argument by citing to

McMillen v. Klingensmith, 467 S.W.2d 193, 197 (Tex. 1971) for the proposition that

“unless a party is named in a release, his not released.” Plaintiffs argue that because they

were not identified by name in the Mutual Release, they are not bound by it.

24.    Once again, Plaintiffs ignore the plain terms of the Mutual Release, which extends

to Sterling, Nisal, and Providian’s “agents.” There is no requirement that a release

specify a party by their legal name. Garner, Avant, and Allied are agents of Nisal and

Sterling. Undavia and Minu are agents of Providian. Therefore, they were specifically

mentioned by the Mutual Release.

C.    DEFENDANTS ESTABLISHED, AS A MATTER OF LAW, THAT PLAINTIFFS
      GARNER, ALLIED, AND AVANT ARE AGENTS OF STERLING AND NISAL, AND
      THAT UNDAVIA AND MINU ARE THE AGENTS OF PROVIDIAN

       (i)      Avant Is the agent of Sterling, and Garner and Allied are the agents of
                Nisal.

25.    Plaintiffs next contend that Defendants failed to prove that Avant, Garner, and

Allied are agents of either Nisal or Sterling.



                                                 6
                                                                                      AR 000175
26.      First, Garner is plainly an agent of Nisal—he is Nisal’s director, president, and

registered agent. Plaintiffs don’t even bother contesting this point. Second, Plaintiffs

themselves admit in their pleadings that Allied is simply a d/b/a for Garner. In other

words, Garner and Allied are legally the same. Allied is, therefore, also an agent of

Nisal.

27.      Regarding Avant, Defendants introduced evidence showing that although Sterling

was the actual lessee, Avant paid Sterling’s rent and procured a rental insurance policy on

Sterling’s behalf. (See Exhibits J and K to Defendants’ Motion for Summary Judgment).

Defendants further testified that Avant was the entity that actually operated in the

building. (See Declaration of Khyati Undavia, ¶13; Ex. E to Defendants’ Motion for

Summary Judgment). Plaintiff Garner confirmed this fact, testifying in his affidavit that

“Avant Medical Group, P.A. regularly provided medical services [in the Building].” (See

Affidavit of Brett Garner, §4).      Finally, there is no testimony to controvert Khyati

Undavia’s clear, unequivocal testimony that Avant acted as Sterling and Nisal’s agent

with respect to the lease. (See Declaration of Khyati Undavia; §13;Ex. E to Defendants’

Motion for Summary Judgment).

28.      Finally, there is ample, uncontroverted evidence that Garner is also an agent of

Avant. Garner himself testifies: “I am also one of the owners of Sterling Practice

Management, LLC, a management service organization which manages the non-medical

business dealings of Avant Medical Group, P.A.” (See Affidavit of Brett Garner; ¶2;

Ex. 1 to Plaintiffs’ Response) (emphasis added). Undavia further testified that “For all

matters concerning the lease, I communicated with Brett Garner in his capacity [as] a

                                             7
                                                                                    AR 000176
representative of not only Sterling and Nisal, but also Avant and Allied.”              (See

Declaration of Khyati Undavia; ¶13; Ex. E to Defendants’ Motion for Summary

Judgment). Undavia further testified that Garner is a chiropractor for Avant. Id.

29.    As a matter of law, Defendants established that an agency relationship existed

between Sterling and Nisal on one hand, and Garner, Allied, and Avant, on the other.

       (ii)   As a matter of law, Undavia and Minu are the agents of Providian

30.    Unable to controvert Undavia and Minu's clear-cut agency relationship with

Providian, Plaintiffs instead formulate an arbitrary and legally insignificant distinction:

Plaintiffs have not sued Undavia and Minu in their capacities as Providian’s agents and

thus, have not released them.

31.    Once again, Plaintiffs’ argument ignores the plain language of the Mutual Release.

Plaintiffs released Minu and Undavia from “all” claims, whether “known or unknown,”

whether or not they arose out of their agency capacities with Providian.    Further, there is

simply no authority for Plaintiff’s proposition that an agent—when specifically identified

in a release—is not released for claims arising in his or her individual capacity.

32.    As a matter of law, Undavia and Minu are Providian’s agents and are protected by

the Mutual Release.

D.     RES JUDICATA APPLIES BECAUSE THE PARTIES ARE THE SAME AS IN THE
       ORIGINAL LAWSUIT AND BECAUSE THE CLAIMS ARISE OUT OF THE SAME
       NUCLEUS OF FACTS

33.    Plaintiffs argue that res judicata does not apply because their current claims and

their previous claims “do not share the same operative facts,” and further, that the parties



                                             8
                                                                                     AR 000177
in this lawsuit are nominally different than in the County Court Lawsuit. (See Plaintiffs’

Response; ¶ 34).    Plaintiffs’ argument fails.

34.    First, it is of no consequence that this lawsuit and the County Court Lawsuit do not

involve precisely the same issues. Res judicata “prevents the relitigation of a claim or

cause of action that has been finally adjudicated, as well as related matters that, with the

use of diligence, should have been litigated in the prior suit.” Barr v. Resolution Trust

Corp., 837 S.W.2d 627 (Tex. 1992) (emphasis added).            Here, the same “nucleus of

operative facts” between this lawsuit and the former lawsuit are in play: Garner and his

companies are suing Undavia and her company for something that arose out of their

landlord-tenant relationship. This landlord-tenant relationship forms the nucleus out of

which all of Plaintiffs’ claims arose, whether in this lawsuit or in the County Court

Lawsuit. Thus, Plaintiffs’ current claims are related to their former claims and are

subject to res judicata.

35.    As proof positive of this notion, consider the factors enunciated in Plaintiffs’ cited

case, Samuel v. Federal Home Loan Mortg. Corp., 434 S.W.3d 230 (Tex. App.—

Houston [1st Dist.] 2014, no pet.) (“In considering whether the facts arose out of a single

transaction [thus giving rise to res judicata], courts consider whether the facts are related

in time, space, origin, or motivation, and whether they form a convenient unit for trial.”).

Here, Plaintiffs’ current claims arose around the same time as the claims in the County

Court Lawsuit (between 2011-2013), they involved the same commercial office space,

they arose out of the same landlord-tenant relationship and, because they involve all the



                                              9
                                                                                      AR 000178
same parties and relationships, would have formed a convenient unit for trial. The factors

weigh heavily in favor of res judicata.

36.    Plaintiffs next argue that res judicata does not apply because the two lawsuits do

not involve the same parties. Once again, Plaintiffs’ argument fails.

37.    “The doctrine of res judicata, or claim preclusion, bars a second action by parties,

and those in privity with them, on matters actually litigated in a previous suit, as well as

claims that could have been litigated in the prior suit through the exercise of diligence.”

Samuel, 434 S.W.3d at 233 (emphasis added). “Privity connotes those who are so

connected with a party to the judgment in the law such that the party to the judgment

represented the same legal right.” Id. at 234. “A party can be in privity in at least three

ways: (1) it can control an action even if it is not a party to it; (2) its interests can be

represented by a party to the action; or (3) it can be a successor-in-interest, deriving its

claim through a party to the prior action. Id. at 234-35.

38.    Plaintiffs cite to Lesikar v. Moon, 2014 WL 4374117 (Tex. App.—Houston [1st

Dist.] no pet.) as support for their argument that the parties in the two suits are nominally

different, and thus, res judicata does not apply. Yet Lesikar holds:

       [A] person’s appearance in a difference capacity does not dictate whether a
       prior judgment bars the subsequent suit. Comment (c) to section 36 [of the
       Restatement (Second) of Judgments] explains that the analysis focuses on
       shared interests, not nominal capacity[.]

Id. at 7 (emphasis added).

39.    Here, as demonstrated above, Nisal, Sterling, Garner, Allied, and Avant are so

interconnected that they are, as a matter of law, in privity with each other and shared a


                                             10
                                                                                      AR 000179
common interest. All of these Plaintiffs occupied the Building, and are now suing

Defendants based on this single fact. But for their tenancy, none of the Plaintiffs would

have any claims against Defendants. Garner, as Nisal’s president, director, and registered

agent, and as Sterling’s owners, clearly could have controlled the litigation. Further,

were Avant's interests—as the real party in interest to the parties’ lease—not shared and

represented by Garner, Sterling, and Nisal in the County Court Lawsuit? Even Plaintiff

Garner admits that he owns Sterling and that Sterling manages the non-medical business

dealings of Avant.

40.    Although nominally different, the parties are the same as they were in the County

Court Lawsuit. Res Judicata applies.

E.     PLAINTIFFS’ CONVERSION CLAIMS FAILS AS A MATTER OF LAW.

41.    Plaintiffs argue that Defendants had “constructive possession” of their checks and

therefore, Plaintiffs can maintain a cause of action for conversion.

42.    Plaintiffs’ argument completely ignores the issues raised in Defendants’ Motion

for Summary Judgment. First, Plaintiffs ignore the fact that any “agency” relationship

between Plaintiffs and Defendants necessarily terminated with the underlying lease, and

thus did not exist when Defendants allegedly deposited at least a portion of the checks.

43.    Second, Plaintiffs argue that their side-agreement with Defendants was not a

modification to the lease; rather, it was a stand-alone agreement even though it was

clearly within the scope of the parties landlord-tenant relationship.       This puts the

agreement squarely in conflict with the lease’s integration and no oral-modification

clauses. Thus, evidence of this agreement is legally inadmissible.

                                             11
                                                                                    AR 000180
F.    PLAINTIFFS’ ARGUMENTS FOR TOLLING THE STATUTE OF LIMITATIONS FAIL
      AS A MATTER OF LAW.

44.    Plaintiffs contend that none of their claims are barred by the statute of limitations.

45.    First, Plaintiffs argue that their claims are barred by the discovery rule, which is

wholly inapplicable in this case. “The discovery rule is a very limited exception to

statutes of limitations, and applies only when the nature of the plaintiff's injury is

inherently undiscoverable and the evidence of injury is objectively verifiable.” BP Am.

Prod. Co. v. Marshall, 342 S.W.3d 59, 65–66 (Tex. 2011); Computer Assoc. Int'l, Inc. v.

Altai, Inc., 918 S.W.2d 453, 455–56 (Tex. 1996).                 “An injury is inherently

undiscoverable if, by its nature, it is unlikely to be discovered during the applicable

limitation period despite the exercise of due diligence.” Marshall, 342 S.W.3d at 66; S.V.

v. R.V., 933 S.W.2d 1, 7 (Tex.1996). “The question is not whether the particular injury

was actually discovered by the claimant within the limitation period, but whether “it was

the type of injury that is generally discoverable by the exercise of reasonable diligence.””

HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998).

46.    Thus, the relevant inquiry in this case is whether the taking and depositing of a

check is, by its nature, “inherently undiscoverable.” For example, making a defamatory

entry on a credit report is inherently undiscoverable because “a person will not ordinarily

have any reason to suspect that he has been defamed by the publication of a false credit

report to a credit agency until he makes application for credit.” Computer Associates

Intern, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996). Nor can someone who

undergoes a vasectomy “know that he is still fertile, if that be the case, until either his


                                             12
                                                                                       AR 000181
wife becomes pregnant or he is shown to be fertile by further testing.” Id. Likewise, “it

is a virtual certainty that [a] patient has no knowledge on the day following surgery—nor

for a long time thereafter—that a foreign object was left in the incision.” Id.

47.    Here, the alleged conversion of the checks is not inherently undiscoverable and is

not subject to the discovery rule.    In the exercise of due diligence, a business should

discover, at or around the time that it is to receive payment—and not three years later—

that payment has not been received. The fact that Plaintiffs may have had special terms

with their payees that “suspended collection efforts” is irrelevant because the focus is

objective and not subjective. Most problematic for Plaintiffs, though, is Garner's

admission that he routinely checks on the status of his payments from the patients’

attorneys. (See Declaration of Brett Garner, ¶6; Ex. 1 to Plaintiffs’ Response). If Garner

routinely checks on the status of payment from his patients’ attorneys, how did

Defendants’ alleged wrongful acts go undiscovered for years?

48.    As their second argument for why their claims are not barred, Plaintiffs argue that

the limitations period was tolled due to Defendants’ “fraudulent concealment.” (See

Plaintiffs’ Response, ¶ 39).   However, “a party asserting fraudulent concealment as an

affirmative defense to the statute of limitations has the burden to raise it in response to

the summary judgment motion and to come forward with summary judgment evidence

raising a fact issue on each element of the fraudulent concealment defense.” KPMG Peat

Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 749 (Tex. 1999)

(emphasis added). “A mere pleading does not satisfy either burden.” Id. at 749-50.



                                             13
                                                                                    AR 000182
49.    Here, Plaintiffs have neither pled fraudulent concealment nor adduced any

evidence in support of their fraudulent inducement claim.              Plaintiffs’ fraudulent

concealment argument fails as a matter of law.

G.     DEFENDANTS ARE ENTITLED TO ATTORNEY’S FEES

50.    Finally, Plaintiffs assert that Defendants are not entitled to their attorneys’ fees.

First, they claim that Defendants are not entitled to attorney’s fees because they have not

presented a breach of contract claim. However, Defendants pled a breach of contract

claim in their second and third amended answers.

51.    Second, Plaintiffs claim that Defendants have not moved for summary judgment

on their declaratory judgment claim and thus are not entitled to fees.              However,

Defendants are not required to use magic words to move for summary judgment on their

declaratory judgment claim. Defendants are seeking a judicial declaration, as a matter of

law, of their rights, status, and other legal relations with respect to the release they

entered into with Plaintiffs. “A release is a contract,” and is therefore subject to a judicial

declaration. Schlumberger Technology Corp., v. Swanson, 959 S.W.2d 171, 178 (Tex.

1997). Defendants have, therefore, moved for summary judgment on their declaratory

judgment claim.

52.    Plaintiffs also claim that Defendants’ declaratory judgment claim is improper

because it is simply a denial of Plaintiffs’ breach of contract claim. Nothing could be

farther from the truth. “A counterclaim for declaratory judgment is improper if it is

nothing more than a mere denial of the plaintiff’s claims and the counterclaim fails to

have greater ramifications than the original suit.” Sanchez v. AmeriCredit Fin. Services,

                                              14
                                                                                       AR 000183
Inc., 308 S.W.3d 521, 524 (Tex. App.—Dallas 2010, no pet.). Here, Plaintiffs’ breach of

contract claim is premised on an alleged oral contract between Undavia and Plaintiffs for

the collection and distribution of mail. In contrast, Defendants seek a judicial declaration

that Plaintiffs have categorically released Defendants from any and all claims, whether

known or unknown, that existed when the Mutual Release was signed. If Defendants

succeed, then all of Plaintiffs claims—not simply their breach of contract—are defeated.

Accordingly, Defendants declaratory judgment counterclaim is not simply a “denial” of

Plaintiffs’ breach of contract claim. It has greater ramifications than that claim, and is fair

game for a declaratory judgment action.

53.       Defendants are entitled to their attorney’s fees.

                                               III.
                                          CONCLUSION

54.            Defendants respectfully request that this Court grant them summary

judgment, dismiss Plaintiffs’ claims with prejudice, grant them their reasonable

attorney’s fees, and grant Defendants all further relief to which they are entitled at law or

equity.

Date: February 17, 2015                       Respectfully submitted,

                                              MAHENDRU, P.C.


                                              By:
                                                      Ashish Mahendru
                                                      Texas Bar No. 00796980
                                                      Darren A. Braun
                                                      Texas Bar No. 24082267
                                                      639 Heights Boulevard
                                                      Houston, Texas 77007
                                                15
                                                                                       AR 000184
                                                (713) 571-1519 (Telephone)
                                                (713) 651-0776 (Facsimile)
                                                amahendru@thelitigationgroup.com
                                                dbraun@thelitigationgroup.com

                                                ATTORNEYS FOR PLAINTIFFS

                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing instrument has been
provided to all counsel of record in accordance with the applicable Texas Rules of Civil
Procedure on this 16th day of February, 2015.

Matias J. Adrogué                                     Email:mja@mjalawyer.com
Robert Stephan Kaase                                  Email: rsk@mjalawyer.com
1629 West Alabama St.                                 Facsimile: 713.425.7271
Houston, Texas 77006




                                                Ashish Mahendru




                                           16
                                                                                  AR 000185
                                 CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A.                       §       IN THE DISTRICT COURT OF
d/b/a ALLIED MEDICAL CENTERS                    §
and INTERVENTIONAL SPINE                        §
ASSOCIATES,                                     §
                                                §
      Plaintiffs                                §
                                                §
VS.                                             §           HARRIS COUNTY, TEXAS
                                                §
KHYATI MOHAMED UNDAVIA,                         §
MINU RX, LTD., and MINU GP,                     §
L.L.C.,                                         §
                                                §           152ND JUDICIAL DISTRICT
      Defendants


          DEFENDANTS' RESPONSE TO PLAINTIFFS' OBJECTIONS TO
              DEFENDANTS' SUMMARY JUDGMENT EVIDENCE


TO THE HONORABLE JUDGE ROBERT SCHAFFER:

       Defendants Khyati Mohamed Undavia, Minu RX, Ltd., and Minu OP, L.L.C. file

this Response to Plaintiffs' Objections to Defendants' Summary Judgment Evidence and

would respectfully show the Court as follows:

                                                I.
                                        RESPONSE

A.    DEFENDANTS' EXHIBITS B, F, J, AND K ARE ADMISSmLE SUMMARY JUDGMENT
      EVIDENCE.

1.     Exhibit B-Sterling Practice Management's Lease With Providian. Plaintiffs object

to this Lease because it is unsigned, and is thus (a) irrelevant and (b) violates the best

evidence rule. However, Khyati Undavia testified that this lease was a true and correct copy

of the lease that Providian entered into with Sterling. Whether signed or not, the document
                                             1


                                                                                      AR 000186
is still relevant as to the terms of the lease between Sterling and Providian. Further, the best

evidence rule does not apply when "the document and its contents are only collaterally

related to the issues in the case[.]" White v. Bath, 825 S.W.2d 227, 331 (Tex. App.-

Houston [14th Dist.] 1992, writ denied). Here, Defendants are not presenting the lease to the

Court in the motion for summary judgment to establish a breach of the lease. There is no

dispute that Providian and Sterling actually entered into a lease agreement that contained the

same terms and provisions as Exhibit B. Defendants simply attached Exhibit B to show that

there as a written lease between the parties.      Accordingly, it is not barred by the best

evidence rule.

2.     Exhibit F-Elevator Invoices. Defendant objects because the invoices are hearsay.

However, these invoices are not hearsay. Defendants are not introducing them to prove the

truth of a matter asserted therein-for example, the price on the invoices or the services

performed.       Instead, Defendants offer the invoices to show that they were addressed to

Minu and not Providian. Accordingly, they are not hearsay and Defendants are not required

to prove them up as business records.

3.     Exhibit J-Proof of Insurance. Plaintiffs object because the Proof of Insurance is

hearsay. However, the Proof of Insurance is not hearsay. Defendants are not offering it to

show the truth of a matter asserted therein-for example, the amount of coverage or that

Avant actually was insured by the insurance company. Instead, Defendants are offering the

Proof of Insurance to show the agency relationship between Avant, who purportedly

procured the policy, and Sterling, who was listed as an additional insured by Avant. Even if

Defendants were offering the Exhibit .for the truth of the matter asserted, it is still not

                                               2


                                                                                         AR 000187
hearsay:     this document was given to Defendants by Plaintiffs and thus constitutes the

admission of a party opponent. Accordingly, the Proof of Insurance is not hearsay and

Defendants are not required to prove it up as a business record.

4.        Exhibit K-Rent Check. Again, Plaintiffs object because the check is hearsay, when

it is in fact not hearsay. Defendants are not offering the check to prove the truth of the

matter asserted-for example, that rent was paid or what the amount of the payment was.

Instead, Defendants offer the check to show the agency relationship that existed between

Sterling, who was the actual lessee, and Avant, because Avant paid the rent on Sterling's

behalf.      Why else would Avant pay rent on behalf of Sterling? Finally, the check is not

hearsay because it is the admission of a party opponent.

B.   EACH STATEMENT IN KHYATI UNDAVIA'S DECLARATION Is ADMISSIBLE

5.        Plaintiffs make a variety of objections to Undavia's declaration. Defendants refute

each of these objections below.

6.        "The Declaration of Khyati Undavia contains statements that are not based on

personal knowledge." Plaintiffs point to inadmissibility of Undavia's statements that

Plaintiffs Nisal Corp. and Sterling Practice Management, LLC "did not have any actual

operations in the office space," and that "Allied Medical Centers and Avant Medical Group

were the entities that had operations in the leased space." (See Declaration of Khyati

Undavia; ,-r 13; Ex. E to Defendants' Motion for Summary Judgment). Incredibly, Plaintiffs

claim that Undavia couldn't possibly have personal knowledge of these facts. However,

Undavia, as Providian's owner, was the Plaintiffs' landlord. Based on her ownership and

execution of the lease, she has personal knowledge of what transpired on her property. She

                                               3


                                                                                       AR 000188
also worked in the pharmacy directly below Plaintiffs' office space and regularly

communicated with Garner. Undoubtedly, she has personal knowledge as to the entities

that operated in her building.

7.     Further, Plaintiffs readily admit that Avant operated in the office space: "Avant

Medical Group, P.A. regularly provided medical services at the [leased premises]." (See

Affidavit of Brett Garner,   ~4;   Ex. A to Plaintiffs' Response). Why then would Undavia not

know this fact?

8.     Accordingly, Undavia's statement as to which entity operated in the leased space is

admissible summary judgment evidence.

9.     "The Declaration of Khyati Undavia contains statements that are merely legal

conclusions."      Plaintiffs then complain of Undavia's statement that "for all matters

concerning the lease, I communicated with Brett Garner in his capacity [as] a representative

of not only Sterling and Nisal, but also Avant and Allied." (See Declaration of Khyati

Undavia;   ~13;   Ex. E to Defendants' Motion for Summary Judgment). Plaintiffs argue that

this statement is an unsubstantiated legal opinion and therefore inadmissible.

10.    However, Defendants introduced evidence that Avant paid for Sterling's rent (and

introduced a copy of such check), and introduced a Proof of Insurance document that was

procured by Avant on behalf of Sterling. This is documentary support for Undavia's

statement that she communicated with Garner in his capacity as Avant's agent. Further,

Undavia testified that she was the Plaintiffs' landlord, that she owned the leased premises,

that she worked in the pharmacy directly below Plaintiffs' office space, and that Garner was



                                                4


                                                                                       AR 000189
Avant's employee and agent. Of course she knows the capacity of the individuals with

which she is communicating with respect to the lease.

11.    Further, Undavia's statement was easily controvertible yet remains uncontroverted.

Plaintiffs could have simply testified, "No, Avant didn't pay Sterling's rent," or that "No,

Avant did not procure an insurance policy on behalf of Sterling." They could have testified,

"No, Gamer was not Avant's agent" or that "No, Garner never communicated with Undavia

in his capacity as Avant's agent." By failing to controvert the agency relationship, Plaintiffs

admit it, thereby sinking their position with this Court and only leaving themselves a

threadbare attempt to object to Undavia's statement. That attempt, however, fails.

12.    Instead of controverting Undavia's testimony, Plaintiffs corifirmed it.           Garner

testified that "I am also one of the owners for Sterling Practice Management, LLC, a

management company which manages the non-medical business dealings of Avant Medical

Group." (See Affidavit of Brett Garner,     ~2;   Ex. 2 to Plaintiffs' Response). This testimony

clearly establishes Garner's agency relationship with Avant. Further, Garner testified that

"Avant Medical Group, P.A. regularly provided medical services" in Undavia's building.

Id. at ~4. What is there left to contest?

13.    Accordingly, Undavia's statements regarding Garner's agency relationship with

Avant are admissible.

14.    "The Declaration of Khyati Undavia Undavia contains statements that are based

on hearsay." Plaintiffs contend that because exhibits F, J, and K are hearsay, and because

Undavia testified regarding those exhibits in paragraphs 11 and 14 of her declaration, then

those statements are likewise inadmissible.

                                                  5


                                                                                          AR 000190
15.    As discussed in Section A above, exhibits F, J, and K are not hearsay. Accordingly,

Defendants' testimony regarding these exhibits is admissible.

                                            II.
                                       CONCLUSION

9.           Defendants respectfully request that this Court to overrule Plaintiffs'

objections to Defendants' summary judgment evidence and grant Defendants all further

relief to which they are entitled.

Date: February 17, 2015                   Respectfully submitted,

                                          MAHENDRU, P.C.


                                          BY:~    Ashish Mahendru
                                                  Texas Bar No. 00796980
                                                  Darren A. Braun
                                                  Texas Bar No. 24082267
                                                  639 Heights Boulevard
                                                  Houston, Texas 77007
                                                  (713) 571-1519 (Telephone)
                                                  (713) 651-0776 (Facsimile)
                                                  amahendru@thelitigationgroup.com
                                                  dbraun@thelitigationgroup.com

                                                  ATTORNEYS FOR PLAINTIFFS




                                             6


                                                                                    AR 000191
                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing instrument has been
provided to all counsel of record in accordance with the applicable Texas Rules of Civil
Procedure on this 16th day of February, 2015.

Matias 1. Adrogue                                     Email:mja@mjalawyer.com
Robert Stephan Kaase                                  Email: rsk@mjalawyer.com
1629 West Alabama St.                                 Facsimile: 713.425.7271
Houston, Texas 77006




                                               Ashish Mahendru




                                           7


                                                                                   AR 000192
                                      CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A.,                     §              IN THE DISTRICT COURT OF
ET.AL.                                         §
                                               §
        vs.                                    §              HARRIS COUNTY, TEXAS

KHYATI MOHAMED UNDAVIA ,                        ~                              WLEJI)
ET. AL.                                         §             152nd    JUDIC~~~M7!~k
                                                                           U MAR 032015
                              ORDER ON DEFENDANTS'           MOTION~e:
                                                            Harris County, Texas
                                FOR SUMMARY JUDGMENT ~BY._ _---=~_ __
                                                                   ¢   ~            Deputy

        On this day came on to be considered Defendants'     Mot~r Summary Judgment and
                                                               ~
this court, after considering the pleadings and arguments   ~~Sel, finds that this motion should
be granted in part and denied in part.               Q~
       It is, therefore, ordered that the Motion fOr~ary Judgment as to claims brought by
                                                ~
Plaintiff, Nisal Corp. is granted.          ~Q
       It is further ordered that the Moti~~r Summary Judgment as to claims brought by all

other plaintiffs is denied.           ~
                                     0)
        Signed March 3, 2015. ~

                            ~
                          ~U                        Presiding Judge
                       ¢~

                   ~
               ~©
              ~




                                                                                                    ~\
                                                                                             AR 000193
                                  CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A.                       §         IN THE DISTRICT COURT OF
d/b/a ALLIED MEDICAL CENTERS                    §
and INTERVENTIONAL SPINE                        §
ASSOCIATES,                                     §
      Plaintiffs                                §
                                                §
VS.                                             §              HARRIS COUNTY, TEXAS
                                                §
KHYATI MOHAMED UNDAVIA and                      §
MINU RX, LTD.,                                  §
      Defendants                                §             152ND JUDICIAL DISTRICT



              DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL
               INTERLOCUTORY SUMMARY JUDGMENT ORDER,
              MOTION TO AMEND ORDER, AND REQUEST FOR STAY


TO THE HONORABLE JUDGE ROBERT SCHAFFER:

       Defendants, Khyati Undavia, Minu RX, Ltd., and MINU GP, LLC, file this Motion

for Permission to Appeal Interlocutory Summary Judgment Order, Motion to Amend Order,

and Request for Stay and would respectfully show the Court as follows:

                                               I.
                                       INTRODUCTION

1.     Based on a release and dismissal with prejudice between the parties arising out of

a prior lawsuit, Defendants sought dismissal of this case by summary judgment,

requesting this Court to apply the release to the parties in this lawsuit. Agreeing in part,

this Court granted judgment as a matter of law only as to Plaintiff Nisal Corp.

2.     Without doubt, the controlling question of law in this case is the applicability of

the release as to all parties. If, as Defendants contend, the release applies to all parties and

                                               1
                                                                                        AR 000194
all claims in this lawsuit, Defendants should not be subjected to a trial, having bargained

for and bought peace. Without doubt an immediate appeal from the order denying

judgment as a matter of law as to all Defendants advances the ultimate termination of the

litigation. These two elemental requirements of a permissive appeal and front and center

before this Court, and Defendants easily hurdle them to establish the need for an

immediate appeal.

3.     Defendants, therefore, request this Court to grant a permissive appeal of this

Court's Order dated March 3, 2015, requesting this Court to amend its order, and in

granting such relief, Defendants further request a stay of this lawsuit pending resolution

of the appeal of the interlocutory order.

                                             II.
                            MOTION FOR PERMISSIVE APPEAL

4.     Texas Civil Practices and Remedies Code §51.014(d) establishes the standard for a

permissive appeals:

       On a party's motion or on its own initiative, a trial court in a civil action may, by
       written order, permit an appeal from an order that is not otherwise appealable if:

              (1)     the order to be appealed involves a controlling question of law as to
                      which there is a substantial ground for difference of opinion; and

              (2)     an immediate appeal from the order may materially advance the
                      ultimate termination of the litigation.

5.     In conjunction with this statute, the legislature enacted Texas Rules of Civil

Procedure 168 as a new rule:

       On a party's motion or on its own initiative, a trial court may permit an appeal
       from an interlocutory order that is not otherwise appealable, as provided by
       statute. Permission must be stated in the order to be appealed. An order previously

                                              2
                                                                                       AR 000195
       issued may be amended to include such permission. The permission must identify
       the controlling question of law as to which there is a substantial ground for
       difference of opinion, and must state why an immediate appeal may materially
       advance the ultimate termination of the litigation.

          a. The Order to be Appealed Involves a Controlling Question of Law

6.     Texas courts have little guidance as to what constitutes a controlling legal issue

about where there is a difference of opinion and the resolution of which disposes of the

primary issues in the case. In Gulf Coast Asphalt Company, LLC v. Lloyd, the Houston

Court of Appeals recently recognized this absence, and it cited to a Texas commentator's

suggestion of looking to federal cases in interpreting the federal counterpart to section

51.014:

       a controlling question of law is one that deeply affects the ongoing process of
       litigation. If resolution of the question will considerably shorten the time, effort,
       and expense of fully litigating the case, the question is controlling. Generally, if
       the viability of a claim rests upon the court's determination of a question of law,
       the question is controlling.... Substantial grounds for disagreement exist when the
       question presented to the court is novel or difficult, when controlling circuit law is
       doubtful, when controlling circuit law is in disagreement with other courts of
       appeals, and when there simply is little authority upon which the district court can
       rely.... Generally, a district court will make [a finding that the appeal will facilitate
       final resolution of the case] when resolution of the legal question dramatically
       affects recovery in a lawsuit.

2015 WL 393407, at *5 (Tex. App.—Houston [14th Dist.] Jan. 29, 2015, no. pet. h.).

7.     The commentator suggests three or four avenues for meeting this element for a

permissive appeal. With the exception of disagreement between controlling circuits since

that is not Defendants' contention, Defendants easily hurdle the standard set forth above.

8.     First, is there any doubt that Defendants' legal postulation that the application of

the release from the underlying lawsuit will "considerably shorten the time, effort and

expense of litigating the case"? No, there is no doubt. The release controls the current
                                               3
                                                                                        AR 000196
case, and if applicable to the claims asserted by Plaintiffs, then this case is over, as this

Court partially found in dismissing Nisal Corp's claims.

9.     Second, the viability of this lawsuit is fully dependant on the Court's interpretation

of the release. That legal interpretation, therefore, is controlling.

10.    Third, substantial disagreement exists when the question presented to the Court is

novel or difficult. As evidenced by the lengthy and detailed presentation by Defendants

and as evidenced by the numerous questions propounded by the Court during the

summary judgment hearing, the issues confronting this Court are difficult, novel, and

outcome determinative. Defendants, therefore, meet this requirement.

11.    Fourth, there is little authority for this Court to rely on in deciding the novel and

difficult issues. A prime example of that is based on the Court's contention that an agent

in one context may not necessarily release a claim brought in the future or different

context if not cloaked in the original agency. Specifically, as discussed with the Court

during the hearing, a committed tort by an agent that was unknown at the time of the

release is still captured by the very terms releasing the parties. This Court was unsure of

that application of the release in such a broad context. However, neither Plaintiffs nor

Defendants provided this Court with any controlling law on the subject of the scope of

the agency and/or the underlying scope of the release when applying that release in a

future series of claims that still refer back and relate to the underlying dispute

engendering the release in the first place.

12.    Additionally, Plaintiffs contended that the principal-agent relationship is a

question of fact for the jury. Defendants' vociferously argued that there is simply no

                                               4
                                                                                      AR 000197
space for a principal-agent analysis in the construction of a release. Principal-agent

delves into actual and apparent authority, i.e., whether a third party has the right to charge

the principal based on the agent's conduct vis-a-vis the third party.

13.    In the context of a release, however, the word "agent" as a releasing or released

party does not require any interpretation of the principal-agent relationship in the context

of actual or apparent authority. There is no authority that Plaintiffs cited this Court for

this proposition that the Court must labor into questions of fact based on principal-agent

analysis, and certainly there is no case law Defendants put forth for the Court's counter-

consideration. With little or no binding or persuasive authority, this issue is controlling,

necessitating a permissive appeal.

          b. An Immediate Appeal from the Order Shall Materially Advance the
             Ultimate Termination of the Litigation

14.    Defendants' summary judgment sought complete and total dismissal of all claims

Plaintiffs asserted against Defendants Khyati Undavia, Minu RX, Ltd., and MINU GP,

LLC. That is, the granting of Defendants’ motion would dispose of all of Plaintiffs’

claims against Defendants. When this Court granted judgment in favor of Defendants as

to Plaintiff Nisal Corp., this Court fully acknowledged that this case is subject to

immediate termination--at least as to one party.

15.    It can be no other way. If the release applies to all Plaintiffs, then they have no

claims against Defendants. The case is over and terminated. The second element of a

permissive appeal is readily present.

                                         III.
                               MOTION TO AMEND ORDER

                                              5
                                                                                       AR 000198
16.    Under Rule 168, there is a requirement that the permission to appeal the

interlocutory order be granted in the order to appealed and not in a separate order.

       On a party's motion or on its own initiative, a trial court may permit an
       appeal from an interlocutory order that is not otherwise appealable, as
       provided by statute. Permission must be stated in the order to be
       appealed. An order previously issued may be amended to include such
       permission. The permission must identify the controlling question of law
       as to which there is a substantial ground for difference of opinion, and must
       state why an immediate appeal may materially advance the ultimate
       termination of the litigation.

17.    Therefore, Defendants respectfully request this Court to enter the attached

amended order, granting Defendants permission to appeal.

                                              IV.
                                    REQUEST FOR STAY

18.    Defendants also request a stay of further proceedings in this Court pending the

resolution of a permissive appeal. Tex. Civ. Prac. & Rem. Code §51.014(e)(2). Such a

stay is warranted because, until the controlling issues are resolved by the court of appeals,

any further trial in this Court may be for naught and result in a tremendous waste of

judicial resources, the parties' time, energy, attorney's fees.

                                            V.
                                        CONCLUSION

19.    Defendants request this Court to (i) grant them permission to appeal this Court's

interlocutory summary judgment order dated March 3, 2015, (ii) amend the Court’s Order

dated March 3, 2015, and (iii) request this Court to stay the proceedings pending

appellate outcome.

20.    Defendants further pray for any such other and further relief to which they are


                                               6
                                                                                       AR 000199
entitled to at law or in equity.

Dated: March 13, 2015                    Respectfully submitted,

                                         MAHENDRU, P.C.



                                         By:
                                               Ashish Mahendru
                                               State Bar No. 00796980
                                               Darren A. Braun
                                               State Bar No. 24082267
                                               639 Heights Blvd.
                                               Houston, Texas 77007
                                               Telephone: 713-571-1519
                                               Facsimile: 713-651-0776
                                               amahendru@thelitigationgroup.com
                                               dbraun @thelitigationgroup.com

                                               ATTORNEYS FOR DEFENDANTS


                                   CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing instrument has been
provided to all counsel of record in accordance with the applicable Texas Rules of Civil
Procedure on this 13th day of March, 2015.


Matias J. Adrogué                                     Email:mja@mjalawyer.com
Robert Stephan Kaase                                  Email: rsk@mjalawyer.com
1629 West Alabama St.
Houston, Texas 77006

William P. Huttenbach                                 Email: phuttenbach@hirschwest.com
Hirsch & Westheimer, PC
1415 Louisiana, 36th Floor
Houston, Texas 77002




                                           7
                                                                                  AR 000200
    Ashish Mahendru




8
                      AR 000201
                                    CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A. d/b/a                 §               IN THE DISTRICT COURT OF
ALLIED MEDICAL CENTERS and                      §
INTERVENTIONAL SPINE                            §
ASSOCIATES,                                     §
                                                §
Plaintiffs                                      §                   HARRIS COUNTY, TEXAS
                                                §
VS.                                             §
                                                §
KHYATI MOHAMED UNDAVIA and                      §
MINU RX, LTD.                                   §                  152nd JUDICIAL DISTRICT

   PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO
         APPEAL INTERLOCUTORY SUMMARY JUDGMENT ORDER,
           MOTION TO AMEND ORDER, AND REQUEST FOR STAY


TO THE HONORABLE JUDGE OF SAID COURT:

       COME NOW, AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE

ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS (hereinafter

referred to as “Plaintiffs”) and files this response to Defendants’ Motion for Permission to

Appeal Interlocutory Summary Judgment Order, Motion to Amend Order, and Request for Stay

and in support thereof would respectfully show the Court as follows:

                                       I. INTRODUCTION

   1. Plaintiffs are AVANT MEDICAL GROUP, P.A. d/b/a INTERVENTIONAL SPINE

ASSOCIATES, BRETT L. GARNER d/b/a ALLIED MEDICAL CENTERS, and NISAL

CORP. d/b/a QUALCARE REHABILITATION.

   2. Defendants are KHYATI MOHAMED UNDAVIA, MINU RX, LTD. d/b/a MEMORIAL

COMPOUNDING PHARMACY, MINU GP, LLC, and COMPASS BANK.

   3. On January 30, 2015 the Defendants in this case filed a Motion for Summary Judgment

based on a release signed relating to a security deposit of a commercial lease. Plaintiffs filed


PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL
INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY         PAGE 1
                                                                                        AR 000202
their Response on February 13, 2015 and the Court heard oral argument on the Motion on

February 20, 2015. After taking the matter under consideration, the Court signed an order

granting the Defendant’s Motion for Summary Judgment as to Plaintiff Nisal Corp. and denying

the Defendants’ Motion as to all other parties.

   4. Defendant now seeks to appeal the Court’s interlocutory summary judgment order.

Plaintiffs ask the Court to deny Defendants’ Motion because Defendants have not met the burden

for a permissive appeal and because an appeal from the interlocutory summary judgment is

unnecessary at this time.

                               I. ARGUMENT & AUTHORITIES

   5. Tex. Civ. Prac. & rem. Code § 54.014(d) provides that “On a party's motion or on its own

initiative, a trial court in a civil action may, by written order, permit an appeal from an order that

is not otherwise appealable if: (1) the order to be appealed involves a controlling question of

law as to which there is a substantial ground for difference of opinion; and (2) an immediate

appeal from the order may materially advance the ultimate termination of the litigation.”

Further, Texas courts have ruled that permissive appeal is “premised on the trial court having

first made a substantive ruling on the controlling legal issue being appealed.” See, e.g. Gulley v.

State Farm Lloyds, 350 S.W.3d 204 (Tex. App.—San Antonio 2011, no pet.).

   6. The Court’s March 3, 2015 Order does not contain an explicit ruling on the Question

presented by Defendants in their Motion. Defendants now ask the Court not only to amend its

Order to permit appeal, but to also provide an explicit ruling on a specific question of law. The

Court was not required to make specific conclusions of law on the issue, and did not opt to do so

in this case. Therefore, the Court’s interlocutory order is not a candidate for permissive appeal.




PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL
INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY               PAGE 2
                                                                                              AR 000203
   7. Plaintiffs additionally contend that this case does not present a controlling question of

law “as to which there is a substantial ground for difference of opinion.” In their Motion for

Summary Judgment, Defendants claimed that Nisal Corp.’s signing of the release bound all of its

agents to the terms of the release, regardless of in what capacity a future suit might be brought.

Plaintiffs contended that agents of the signatory are not bound to the release because a principal

does not have authority to act on the agent’s behalf. However, at oral hearing Plaintiffs cited

case law which clearly states that “An agent acts on behalf of its principal rather than the

principal acting on behalf of the agent, and no Texas case has held that a principal owes a

fiduciary duty to an agent.” Casteel v. Crown Life Ins. Co., 3 S.W.3d 582, 590 (Tex. App—

Austin 1999), rev’d in part on other grounds 22 S.W. 3d 378 (Tex. 2000). Defendants admit in

their Motion that they have no authority to support their claim that the nonsignatory Plaintiffs are

bound by the release from asserting claims against other nonsignatories for actions not related to

either’s alleged role as an agent for any signatory. Because Defendants’ legal claims have no

basis in law, they seem to abandon their agency theory altogether and claim that the nonsignatory

Plaintiffs should be bound because they are “intimately related” to the signatories. As far as

Plaintiffs’ counsel can determine, this “intimately related” standard for determining who is

bound to a contract is heretofore unseen in Texas contract jurisprudence. Further, Defendants’

faulty assertion that Plaintiffs did not bring sufficient legal authority to support their claims is

irrelevant—is it Defendants who must prove their entitlement to judgment as a matter of law.

Therefore, the question of law on which Defendants seek review is not one for which there is a

substantial ground for difference of opinion, and Defendants’ Motion should be denied.

   8. Defendants further assert that the Court may not inquire into questions of fact as to

whether the agency relationships alleged by the Defendants themselves actually exist.



PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL
INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY             PAGE 3
                                                                                            AR 000204
Defendants’ entire theory surrounding the release rests on the existence of agency relationships.

Plaintiffs’ counsel can only assume that Defendants believe the Court must take on faith that the

relationships exist based on nothing more than the argument of Defense counsel. This is simply

an attempt by Defendant to paint the issues in this case as issues of law only. However, even if

an appellate court were to decide that in some cases nonsignatories could be bound to a release

by an agency relationship, a factual inquiry would still be necessary to determine whether such

relationships exist in this case, and to what extent the parties are bound by virtue of those

relationships. Therefore, a ruling from the court of appeals would not immediately terminate the

litigation as Defendants claim. Because the Defendants cannot show that a permissive appeal

would materially advance termination of the litigation, and because their claims in the Motion

for Permissive Appeal are so inconsistent with Texas law, the Defendants’ Motion should be

denied.

   9. In essence, Defendants claim that because they have no legal authority to support their

Motion for Summary Judgment, there must be a controlling question of law as to which there is a

substantial ground for difference of opinion. As shown above, there is no reasonable ground for

difference of opinion in this case. Defendants have attempted to craft new legal standards out of

whole cloth and sell them to the Court as a reasonable interpretation of nonexistent law. The

Court has already determined, when it signed the March 3, 2015 Order, that the facts of the case,

and the law as applied to those facts, is sufficient to allow this lawsuit to proceed to trial.

Therefore, Defendants have not shown adequate grounds for a permissive appeal of the Court’s

interlocutory order. For this reason, the Defendants’ Motion should be denied.




PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL
INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY          PAGE 4
                                                                                         AR 000205
                                          III. PRAYER

        For the above reasons, Plaintiffs ask the court to deny Defendants’ Motion for Permission

to Appeal Interlocutory Summary Judgment Order, Motion to Amend Order, and Request for

Stay.

                                              Respectfully submitted,

                                                      MATÍAS J. ADROGUÉ
                                                      PROFESSIONAL LIMITED LIABILITY COMPANY




                                              By:
                                                      Matías J. Adrogué
                                                      Attorney at Law
                                                      State Bar No. 24012192
                                                      Robert Stephan Kaase
                                                      State Bar No. 24083287
                                                      1629 West Alabama St.
                                                      Houston, Texas 77006
                                                      713-425-7270 Telephone
                                                      713-425-7271 Facsimile
                                                      service@mjalawyer.com

                                                      ATTORNEYS FOR PLAINTIFFS




                                 CERTIFICATE OF SERVICE

   I hereby certify that a true and correct copy of the above and foregoing has been served to all
counsel of record in accordance with the Texas Rules of Civil Procedure, on this the 17th day of
March, 2015.




                                                      Matías J. Adrogué




PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR PERMISSION TO APPEAL
INTERLOCUTORY SUMMARY JUDGMENT ORDER, MOTION TO AMEND ORDER, AND REQUEST FOR STAY               PAGE 5
                                                                                               AR 000206
                                 CAUSE NO. 2014-22186

AVANT MEDICAL GROUP, P.A.                         §               IN THE DIFIJ<E               CEUJJ' OF
d/b/a ALLIED MEDICAL CENTERS                      §                                   Chris Daniel
and INTERVENTIONAL SPINE                          §                                   District CIerI<
ASSOCIATES,                                       §                                   MAR 20 ,2015
                                                  §                               __~~~~~~_
                                                                               nm~,
                                                                                      Harris County. Texas
      Plaintiffs                                  §
                                                  §                            ~------~D~ep~ut~y-------
VS.                                               §                       HARRIS      CO~,           TEXAS

                                                                                       (J~
                                                  §
KHYATIMOHAMEDUNDAVIA,                             §
MINURX,LTD.,                                      §
                                                  §                      152ND TT~IAL DISTRICT
                                                                                  ~I~           .
      Defendants                                  §
                                                                               o;;)
                                                                         ART DEFENDANTS'
                                                                         TING DEFENDANTS'
                                                                      REQUEST FOR STAY

                                                      o~
       On this day the Court considered   De~t Khyati Undavia and Minu Rx, Ltd.'s
Motion for Permission to Appeal      Inter~~ry
                                        g
                                               Summary Judgment Order, Motion to

Amend Order, and Request for Stay. ~er considering the pleadings and the arguments of
                                -~Q~'
counsel, the Court ORDERS as ~s:

       IT IS THEREFORE       ~ERED, ADJUDGED, AND DECREED that the Original
                            rg~U)I

Order Granting and De~g Defendants' Motion for Summary Judgment dated March 3,
                   o~l#;j
2015 is supersede&t ~ replaced by this Order.

       IT IS   ~ ORDERED, ADnIDGED, AND DECREED fuat Defendants'
Motion   for~ary Judgment as to PlaintiffNisal Corp. is granted.
       IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants'

Motion for Summary Judgment as to the claims brought by all other Plaintiffs is denied.



                                              1
                                          RECORDER'S MEMORANDUM
                                          ThiS instrument is of poor quality
                                                at the time of Imaging


                                                                                                             AR 000207
;-


            IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants

     Undavia and Minu Rx, Ltd. have this Court's permission to file an interlocutory appeal with

     the Texas Court of Appeals. This Court finds that the controlling question of law to be

     determined on appeal is whether the release (a) signed in a prior lawsuit between (b) parties

     intimately related to parties in the current lawsuit is sufficient to release the claims asserted

     between the current Plaintiffs and Defendants Khyati Undavia, Minu RX,~, and MINU
                                                                                   ~(fjj
     GP, LLC in this lawsuit. The legal interpretation of the release, the~re, is controlling.
                                                                               ~
     Imbedded in that controlling question is the effect of the          ag~ relationship      between
                                                                o@j
     signatories of the release when applying that release in a ~ series of claims that still
                                                                     ~
     refer back and relate to the underlying dispute        engen~~      the release in the ftrst place.

     Further, the controlling question involves the         e~«©{o   which principal-agent analysis

     applies in the construction of a release.          "

            IT IS FURTHER ORDERED,             AD~~D,
                                                g
                                                      AND DECREED that an appeal of this

     Order will materially advance the <>~~ate termination of the litigation because if the

     controlling issue. of law is    res~ in the Defendants' favor, then Defendants Khyati
     Undavia, Minu RX, Ltd.,     an..1~TTT
                                  ~~U
                                           GP, LLC will be granted final summary judgment and

     Plaintiffs claims againS~ will be dismissed.
                           o@p
            l'f I~ fi~           QiW,li1l,li1ii,   JrliJJUf)B~, 1'ft IB '8Pi~       aas case Is stay;s<1
     ~eneiH~ 6atcm~ff5ettiIdMlts' dwell:.
                 ~
                                               MAR 2 0 2015
            SIGNED this _ _ day of                             ,2015.



                                   HO~ER~
                                   JUDGE PRESIDING

                                                       2



                                                                                                  AR 000208
