Medical Discount Pharmacy, L.P., Lifechek Rosenberg GP, Inc., LifeChek, Inc. and Bruce v. Gingrich, Individually v. State of Texas ( 2015 )

ACCEPTED
01-13-00963-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/22/2015 3:26:59 PM
CHRISTOPHER PRINE
CLERK
No. 01-13-00963-CV FILED IN
1st COURT OF APPEALS
IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS
7/22/2015 3:26:59 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
_________________________________________________________________
MEDICAL DISCOUNT PHARMACY, L.P., LIFECHEK ROSENBERG GP,
INC., LIFECHEK, INC., AND BRUCE V. GINGRICH, INDIVIDUALLY,
Appellants,
v.
STATE OF TEXAS,
Appellee
On Appeal from Cause No. 12-DCV-196841
In the 434th District Court of Fort Bend County, Texas
_______________________________________________________________
APPELLEE’S MOTION FOR REHEARING
Rosemarie Donnelly
Assistant Attorney General
State Bar No. 05983020
Office of the Attorney General of Texas
Consumer Protection Division
808 Travis, #1520
Houston, Texas 77002
Phone: 713-225-8919
Fax: 713-223-5821
rosemarie.donnelly@texasattorneygeneral.gov
TO THE HONORABLE FIRST COURT OF APPEALS:
Appellee, the State of Texas, respectfully submits this Motion for Rehearing
in response to the judgment and opinion issued by the Court on July 7, 2015, and
requests that the Court consider the following issue:
ISSUE PRESENTED FOR REVIEW
Issue 1 The Court of Appeals erred in rendering judgment that the State
of Texas take nothing on its claims against Lifechek Rosenberg
GP, Inc. instead of finding that as general partner Lifechek
Rosenberg GP, Inc. is jointly and severally liable for the portion
of the judgment rendered against the limited partnership,
Medical Discount Pharmacy, L.P.
ARGUMENT
The judgment of the Court of Appeals erroneously renders judgment that the
State of Texas take nothing on its claims against Lifechek Rosenberg GP, Inc. The
judgment of the Court of Appeals should be corrected to state that Lifechek
Rosenberg GP, Inc., as general partner of Medical Discount Pharmacy, L.P., is
jointly and severally liable for the judgment rendered against the limited partnership,
Medical Discount Pharmacy, L.P.
Even if Lifechek Rosenberg has no independent liability in this case, it
nevertheless is jointly and severally liable for the judgment rendered against the
limited partnership, Medical Discount Pharmacy, L.P. Under Texas limited
partnership law, generally “a general partner of a limited partnership has the
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liabilities of a partner in a partnership without limited partners to a person other than
the partnership or other partners.” Tex. Bus. Org. Code §153.152(b) (formerly Tex.
Rev. Limited Partnership Act § 4.03(b)). A general partner may be sued in the same
action as the limited partnership or in a separate action and may be jointly and
severally liable for the obligations of the limited partnership, including judgments.
Tex. Bus. Org. Code §152.304(a); §152.305;§152.306. See e.g., In re Anzalduas
Bus. Park, L.P., 494 B.R. 704, 713 (Bankr. S.D. Tex. 2013).
Section 152.306(a) of the Texas Business Organizations Code states that “[a]
judgment may be entered against a partner who has been served with process in a
suit against the partnership.” Tex. Bus. Org. Code §152.306(a). Subsection (b)
provides that a judgment creditor “may proceed against one or more partners or the
property of the partners to satisfy a judgment based on a claim against the partnership
only if a judgment:
(1) is also obtained against the partner; and
(2) based on the same claim:
(A) is obtained against the partnership;
(B) has not been reversed or vacated; and
(C) remains unsatisfied for 90 days after:
(i) the date on which the judgment is entered; or
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(ii) the date on which the stay expires, if the judgment
is contested by appropriate proceedings and
execution on the judgment is stayed.”
Tex. Bus. Org. Code §152.306(b). See American Star Energy & Minerals Corp. v.
Stowers, 457 S.W.3d 427, 429-30 (Tex. 2015).
The State respectfully requests that the judgment be corrected to state that
Lifechek Rosenberg GP, Inc., as general partner of Medical Discount Pharmacy,
L.P., is jointly and severally liable for the judgment rendered against Medical
Discount Pharmacy, L.P. In this case, it was undisputed that Lifechek Rosenberg
GP, Inc. was the general partner of Medical Discount Pharmacy, L.P.
(Memorandum Opinion, p. 2; Appellants’ Reply Brief, pp. 9-10; PX 58 (p.1), RR
10:763-769 (admitted at RR 3:18)). Lifechek Rosenberg GP, Inc. was named in the
underlying lawsuit as general partner of Medical Discount Pharmacy, L.P. and
served with process. (CR 11, 13, 26, 34, 36, 90, 91) Therefore, Lifechek Rosenberg
GP, Inc. had notice of its potential liability as general partner and should be named
in the judgment as jointly and severally liable for the judgment against Medical
Discount Pharmacy, L.P. See KAO Holdings, L.P. v. Young, 261 S.W.3d 60, 63
(Tex. 2008).
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PRAYER
For the reasons stated, Appellee, the State of Texas, requests that the Court
grant this Motion for Rehearing and correct the Court’s judgment to i) delete the
portion which states that the State of Texas take nothing on its claims against
Lifechek Rosenberg GP, Inc., and ii) add that Lifechek Rosenberg GP, Inc. is jointly
and severally liable for the judgment rendered against Medical Discount Pharmacy,
L.P.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation
TOMMY PRUD’HOMME
Chief, Consumer Protection Division
/s/ Rosemarie Donnelly
___________________________
Rosemarie Donnelly
Assistant Attorney General
State Bar No. 05983020
Assistant Attorney General
Consumer Protection Division
808 Travis, Suite 1520
Houston, Texas 77002
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Telephone (713) 225-8919
Facsimile (713) 223-5821
rosemarie.donnelly@
texasattorneygeneral.gov
ATTORNEYS FOR APPELLEE,
THE STATE OF TEXAS
CERTIFICATE OF COMPLIANCE
This is to certify that, based upon the Word program used, the text of the
foregoing Motion contains 635 words.
/s/ Rosemarie Donnelly
____________________________________
Rosemarie Donnelly
CERTIFICATE OF SERVICE
I hereby certify that, on July 22, 2015, a true and correct copy of the Motion
for Rehearing was served to the following:
Bruce E. Ramage – via email and e-filing
Levon G. Hovnatanian – via email and e-filing
Martin, Disiere, Jefferson & Wisdom, L.L.P
808 Travis, #1800
Houston, Texas 77002
Attorneys for Appellants Medical Discount Pharmacy, L.P., LifeChek Rosenberg
GP, Inc., LifeChek, Inc., and Bruce V. Gingrich, Individually
________/s/ Rosemarie Donnelly__
Rosemarie Donnelly
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