Sandeep Patel v. Harbor Hospice of Beaumont, LP

ACCEPTED
13-15-00452-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
12/10/2015 2:49:53 PM
Dorian E. Ramirez
CLERK
NO. 13-15-00452-CV
IN THE THIRTEENTH COURT OF APPEALS FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI—EDINBURG, TEXAS
CORPUS CHRISTI/EDINBURG, TEXAS
12/10/2015 2:49:53 PM
DORIAN E. RAMIREZ
SANDEEP PATEL, Clerk
Appellant,
v.
HARBOR HOSPICE OF BEAUMONT, L.P., HARBOR HOSPICE MANAGER, L.L.C.,
QAMAR ARFEEN, AND ARFEEN PROPERTIES, L.P.,
Appellees.
ON APPEAL FROM THE 172nd DISTRICT COURT,
JEFFERSON COUNTY, TEXAS, NO. E-192,576
APPELLEES’ BRIEF
Glen W. Morgan David Gaultney Brandy Wingate Voss
State Bar No. 14438900 State Bar No. 07765300 State Bar No. 24037046
gmorgan@rmqlawfirm.com davidgaultney@mehaffyweber.com brandy@appealsplus.com
John Werner Elana Einhorn Smith Law Group LLLP
State Bar No. 00789720 State Bar No. 06502455 820 E. Hackberry Ave.
jwerner@rmqlawfirm.com elanaeinhorn@mehaffyweber.com McAllen, Texas 78503
Reaud, Morgan & Quinn MehaffyWeber, P.C. (956) 683-6330
801 Laurel St. 823 Congress Avenue, Suite 200 (956) 225-0406 Fax
Post Office Box 26005 Austin, Texas 78701
Beaumont, Texas 77720 (512) 394-3840
(409) 838-1000. (512) 394-3860 Fax
(409) 833-8236 Fax
ATTORNEYS FOR APPELLEES
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant: Sandeep Patel
Represented by:
Chris Portner
State Bar No. 24007858
cportner@portnerbond.com
J. Trenton Bond
State Bar No. 00785707
tbond@portnerbond.com
Portner Bond, PLLC
1905 Calder Avenue
Beaumont, Texas 77701
Phone: (409) 838-4444
Fax: (409) 554-0240
Anthony Malley, III
State Bar No. 24041382
tony@mallaw.com
Malley Law Firm, PLLC
905 Orleans, Suite 110
Beaumont, Texas 77701
Phone: (409) 212-8888
Fax: (409) 212-8002
Jamie D. Matuska
State BarNo. 24051062
jamie@matuskalaw.com
Matuska Law Firm
2809 Highway 69 North
Nederland, Texas 77627
Phone: (409) 722-5600
Fax: (409) 727-1290
ii
Appellees: Harbor Hospice of Beaumont, L.P., Harbor Hospice Manager, L.L.C.,
Qamar Arfeen, and Arfeen Properties, L.P.
Represented by:
David Gaultney David E. Bernsen
State Bar No. 07765300 State Bar No. 02217500
davidgaultney@mehaffyweber.com dbernsen@bernsenlaw.com
Elana Einhorn Christine L. Stetson
State Bar No. 06502455 State Bar No. 00785047
elanaeinhorn@mehaffyweber.com cstetson@bernsenlaw.com
MehaffyWeber, P.C. 420 North MLK, Jr. Pkwy
823 Congress Avenue, Suite 200 Beaumont, Texas 77701
Austin, Texas 78701 Phone: (409) 212-9994
Phone: (512) 394-3840 Fax: (409)212-9411
Fax: (512) 394-3860
Brandy Wingate Voss
Jeremy Stone State Bar No. 24037046
State Bar No. 24013577 brandy@appealsplus.com
jeremystone@mehaffyweber.com Smith Law Group LLLP
MehaffyWeber, P.C. 820 E. Hackberry Ave.
500 Dallas, Suite 1200 McAllen, Texas 78503
Houston, Texas 77002 Phone: (956) 683-6330
Phone: (713) 655-1200 Fax: (956) 225-0406
Fax: (713) 655-0222
Glen W. Morgan
State Bar No. 14438900
gmorgan@rmqlawfirm.com
John Werner
State Bar No. 00789720
jwerner@rmqlawfirm.com
Reaud, Morgan & Quinn
801 Laurel St.
Post Office Box 26005
Beaumont, Texas 77720-6005
Phone: (409) 838-1000
Fax: (409)833-8236
iii
TABLE OF CONTENTS
Identity of Parties and Counsel ................................................................................. ii
Table of Contents ..................................................................................................... iv
Index of Authorities ................................................................................................. vi
Statement of the Case.................................................................................................x
Request for Oral Argument ...................................................................................... xi
Issues Presented ...................................................................................................... xii
Statement of Facts ......................................................................................................1
Summary of the Argument.........................................................................................5
Argument....................................................................................................................6
I.  All of Patel’s claims are barred by limitations. ..................................... 6
A.  Patel’s claims accrued by March 10, 2008. ................................6
B.  Neither the discovery rule nor fraudulent
concealment delays accrual or tolls
limitations here. ...........................................................................9
1.  The discovery rule does not apply
because the alleged injury was not of
the limited type that is inherently
undiscoverable. .................................................................9
2.  The fraudulent concealment doctrine
does not apply because the
Partnership did not try to conceal
termination of Patel’s interests and
Patel had notice of facts giving rise to
his claims by March 2008...............................................13
3.  The presence of fiduciary duties does
not relieve Patel of his own obligation
of diligent inquiry. ..........................................................14
iv
4.  The same statute of limitations applies
to Patel’s declaratory-judgment claim
as to his substantive claims. ............................................15
II.  Defendants conclusively negated at least one element of
each of Patel’s claims. ......................................................................... 17
A.  Patel has no breach-of-fiduciary-duty claim.............................17
B.  There is no genuine issue of material fact as
to breach of contract..................................................................21
C.  There is no genuine issue of material fact as
to conversion and theft. .............................................................23
III.  There is no fact question as to damages. ............................................. 24
IV.  The summary judgment evidence was properly
considered by the trial court. ............................................................... 26
Prayer .......................................................................................................................28
Certificate of Compliance ........................................................................................30
Certificate of Service ...............................................................................................31
Index to Appendix ....................................................................................................32
v
INDEX OF AUTHORITIES
Cases
Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd.,
287 S.W.3d 877 (Tex. App.—Dallas 2009, no pet.) .....................................23
B&W Supply, Inc. v. Beckman,
305 S.W.3d 10 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied) ...........................................................................................................21
Bandy v. First State Bank,
835 S.W.2d 609 (Tex. 1992) .........................................................................24
Bohatch v. Butler & Binion,
977 S.W.2d 543 (Tex. 1996) ................................................ 14, 17, 18, 19, 20
Bokor v. State,
114 S.W.3d 558 (Tex. App.—Fort Worth 2002, no pet.) .............................24
Brosseau v. Ranzau,
81 S.W.3d 384 (Tex. App.—Beaumont 2002, pet. denied) ..........................19
City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671 (Tex. 1979) .........................................................................28
Computer Assocs. Int’l., Inc., v. Altai, Inc.,
918 S.W.2d 453 (Tex. 1994) ...........................................................................9
Cosgrove v. Cade,
468 S.W.3d 32 (Tex. 2015) ...........................................................................14
Cotton v Cotton,
169 S.W.3d 824 (Tex. App.—Dallas 2005, pet. denied) ..............................27
Douglas v. Aztec Petroleum Corp.,
695 S.W.2d 312 (Tex. App.—Tyler 1985, no writ) ......................................17
Exxon Corp. v. Emerald Oil & Gas Co. L.C.,
348 S.W.3d 194 (Tex. 2011) ...........................................................................7
Graham Mortg. Corp. v. Hall,
307 S.W.3d 472 (Tex. App.—Dallas 2010, no pet.) .....................................17
vi
Green Int’l v. Solis,
951 S.W.2d 384 (Tex. 1997) .........................................................................23
Guidry v. Wells, No.
09-05-00182-CV, 2006 WL 246493 (Tex. App.—Beaumont
2006, no pet.) (mem. op.) ..............................................................................27
Hooks v. Samson Lone Star, Ltd. P’Ship,
457 S.W.3d 52 (Tex. 2015) .................................................................... 13, 14
In re Estate of Denman,
362 S.W.3d 134 (Tex. App.—San Antonio 2011, pet. denied) ....................16
J.M. Davidson, Inc. v. Webster,
128 S.W.3d 223 (Tex. 2003) .........................................................................12
LG Ins. Mgmt. Servs., LP v. Leick,
378 S.W.3d 632 (Tex. App.—Dallas 2012, pet. denied) ..............................18
Luna v. Runyon,
No. 03-06-00615-CV, 2008 WL 2609171 (Tex. App.—Austin
2008, pet. denied) (mem. op.) ..........................................................................9
McConathy v. McConathy,
869 S.W.2d 341 (Tex. 1994) .........................................................................26
Merriman v. XTO Energy, Inc.,
407 S.W.3d 244 (Tex. 2013) ...........................................................................6
Mowbray v. Avery,
76 S.W.3d 663 (Tex. App.—Corpus Christi 2002, pet. denied) ..................27
Nalle Plastics Family L.P. v. Porter, Rogers, Dahlman & Gordon,
P.C.,
406 S.W.3d 186 (Tex. App.—Corpus Christi 2013, pet. denied) ...................6
Neely v. Comm’n for Lawyer Discipline,
302 S.W.3d 331 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied) .................................................................................................... 26, 28
Pink v. Goodyear Tire & Rubber Co.,
324 S.W.3d 290 (Tex. App.—Beaumont 2010, writ dism’d) .......................28
vii
Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211 (Tex. 2003) ...........................................................................7
Royston, Rayzor, Vickery & Williams, LLP v. Lopez,
467 S.W.3d 494 (Tex. 2015) .........................................................................12
S.V. v. R.V.,
933 S.W.2d 1 (Tex. 1996) ...................................................................... 14, 15
Schneider Nat’l Carriers, Inc. v. Bates,
147 S.W.3d 264 (Tex. 2004) ...........................................................................7
Schrock v. City of Baytown,
No. 01-13-00618, 2015 WL 1882190 (Tex. App.—Houston [1st
Dist.] April 23, 2015, no pet.) (mem. op.) .....................................................15
Sci. Spectrum, Inc. v. Martinez,
941 S.W.2d 910 (Tex. 1997) .................................................................... 6, 17
Shell Oil Co. v. Ross,
356 S.W.3d 924 (Tex. 2011) .................................................................. 10, 12
Strebel v. Wimberly,
371 S.W.3d 267 (Tex. App.—Houston [1st Dist.] 2012, pet.
denied) ...........................................................................................................18
Thomas v. Ray,
889 S.W.2d 237 (Tex. 1994) .......................................................................8, 9
Valdez v. Hollenbeck,
465 S.W.3d 217 (Tex. 2015) ............................................................ 6, 7, 9, 13
Via Net v. TIG Ins. Co.,
211 S.W.3d 310 (Tex. 2006) (per curiam) ....................................................10
Wagner & Brown, Ltd.,
58 S.W.3d 732 (Tex. 2001) ...........................................................................10
Weaver v. Witt,
561 S.W.2d 792 (Tex. 1977) .........................................................................13
viii
Statutes
TEX. BUS. ORG. CODE ANN. § 152.002........................................................ 18, 21, 22
TEX. BUS. ORG. CODE ANN. § 152.206 ....................................................................20
TEX. BUS. ORG. CODE ANN. § 153.003 ....................................................................22
TEX. BUS. ORG. CODE ANN. § 153.105 ....................................................................21
TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 ........................................................16
TEX. CIV. PRAC. & REM. CODE ANN. § 16.004 ........................................................16
TEX. CIV. PRAC. & REM. CODE ANN. § 134.002 ......................................................24
TEX. CIV. PRAC. & REM. CODE ANN. § 134.003 ......................................................24
Rules
TEX. R. APP. P. 33.1..................................................................................................28
TEX. R. CIV. P. 166a ................................................................................ 6, 26, 27, 28
ix
STATEMENT OF THE CASE
Nature of the Case: Claims for breach of contract, breach of fiduciary duty,
conversion, theft, and fraud arising out of partnership
dispute.
Trial Court: The Honorable Donald J. Floyd, 172nd District Court,
Jefferson County.
Trial Court’s Summary judgment granted in favor of Defendants on all
Disposition: claims. CR255.
x
REQUEST FOR ORAL ARGUMENT
Appellees respectfully request the opportunity to present oral argument.
Appellees believe oral argument will assist the Court in resolving the issues
presented.
xi
ISSUES PRESENTED
The trial court properly granted summary judgment because:
I. All of Patel’s claims are barred by a statute of limitations.
II. Defendants negated at least one element of each of Patel’s claims.
III. Patel did not sustain any damages.
IV. The summary judgment evidence was properly before the court.
xii
STATEMENT OF FACTS
Defendant Harbor Hospice of Beaumont, L.P. (the “Partnership”) is a
limited partnership formed in 2005 to build and operate a hospice in Beaumont,
Texas. CR42-43. Defendant Harbor Hospice Managers, L.L.C., was the general
partner. CR73. The limited partners included Defendant Arfeen Properties, L.P.
(Defendant Dr. Qamar Arfeen was its general partner), and Plaintiff Sandeep Patel.
CR74,79.
Patel, an engineer, did not contribute any money to the Partnership; instead
he was granted a 3% ownership interest in exchange for overseeing construction of
the hospice. CR92-93,110-11.1 Midway through construction, however, Patel
demanded that his interest in the Partnership be doubled, and he threatened to walk
off the job if his demand was not met. CR 107,116. Given the circumstances, the
Partnership reluctantly agreed to his demand. Id.
Because of faulty construction and use of subcontractors who were not
specialized in building medical facilities, the hospice did not pass state inspection.
CR 110-12,114-15. Patel then promptly disappeared. CR105-07. This forced the
Partnership to obtain substitute contractors at additional expense. CR107,118-19.
Patel never responded to the Defendants’ numerous attempts to contact him.
1
The parties attached color-highlighted deposition testimony as exhibits to the motion for
summary judgment and response. As it appears in the clerk’s record, however, that highlighted
testimony may be difficult to read. The parties therefore provided accurate color copies of that
highlighted deposition testimony in their stipulation filed with this Court on November 24, 2015.
CR105,107. Dr. Arfeen testified that “before the facility was finished or could pass
the Life Safety Code, he would not answer my calls.” CR105. “He just totally
disappeared from the scene.” CR107.
Patel also failed to respond to requests for updated financial information
from the bank financing the construction. Patel was a guarantor on the construction
loan for the hospice, CR101-03, and the bank requested updated financial
information as the loan approached maturity. App’x Tab A (CR121; Supp.CR102-
06).2
Because Patel ignored the bank’s requests, on March 4, 2008, the
Partnership’s general counsel sent a letter to Patel informing him that the bank was
once again requesting updated financial information from him as the loan was
about to mature. Id. The letter, sent by certified and regular mail, stated that the
bank had tried several times to get the information from him, yet he had refused to
provide the information or return phone calls. Id. The letter further told Patel that if
he failed to provide the information to the bank by March 10, 2008, he would “be
in material breach of [his] obligations under the partnership agreement . . . .” Id.
The letter then spelled out that the effect of this material breach would be
termination of his partnership interest:
2
As Patel notes, the second page of the letter can be found in the supplemental clerk’s record.
Supp.CR103. Patel testified about the second page of the letter at his deposition. CR95. The text
is not in dispute. See the stipulation filed in this appeal on November 24, 2015.
2
Please allow this letter to serve as notice that unless you
remedy this breach and provide updated financials to the
bank on or before March 10, 2008, the general partner
shall terminate your interest in Harbor Hospice of
Beaumont, L.P. and expel you for your continued breach
of this written obligation. Please further note that if the
general partner is forced to take action pursuant to
Section 10.2 of the partnership agreement, you will
forfeit to the partnership the entire value of your
partnership interest upon your termination and expulsion.
Id. Patel’s wife signed for the certified letter. CR94. The return receipt is dated
March 29, 2008. CR134. Patel did not submit the required financials, CR106, and
the Partnership was forced to refinance with another bank. CR117.
Because Patel failed to meet his commitments to the Partnership, his
partnership interest was forfeited under section 10.2 of the Partnership Agreement.
App’x Tab C (CR62); App’x Tab A (Supp.CR103). An amendment to the
Partnership Agreement was executed to document the fact Patel was no longer a
member of the Partnership effective January 1, 2008. CR126-29.3
Patel’s 2008 IRS schedule K-1 accordingly showed his capital account and
ownership interest as zero. App’x Tab B; CR96,141. Patel admitted that his 2008
tax return included the K-1 showing a zero equity interest in the Partnership.
CR98.
3
The amendment incorrectly states that Patel's limited partnership interests were redeemed rather
than forfeited, but this mistake is immaterial because Patel had a negative balance in his capital
account at the end of 2007, CR130-33, and under the Partnership Agreement, any redeemed
interest would be equal to the redeemed partner’s capital account. CR57-58. In other words,
there was no value to the partnership interest in a redemption situation.
3
More than four years after the deadline set in the letter, Patel sued the
Partnership, its general partner (Harbor Hospice Manager, L.L.C.), and two of its
limited partners (Dr. Arfeen and Arfeen Properties, L.P.). His original petition,
filed June 15, 2012, claimed breach of fiduciary duty, conversion, and fraud.
CR5,7. He filed an amended petition on May 20, 2013, dropping the fraud claim
but adding a breach-of-partnership-agreement claim. CR15,16. The Defendants
moved for summary judgment on January 22, 2015. Supp.CR5. On February 26,
2015, Patel amended his petition again to reassert the fraud claim, add a claim
under the Theft Liability Act, and add a request for declaratory judgment and
specific performance. CR19,21,23.
A little less than a month later, the Defendants filed an amended motion for
summary judgment demonstrating that: (1) statutes of limitations barred all claims;
(2) there was no genuine issue of material fact as to at least one element of each of
the substantive claims; and (3) Patel suffered no damages, a necessary element for
each of his claims. CR26. The trial court granted summary judgment on all claims.
CR255.
4
SUMMARY OF THE ARGUMENT
The Partnership Agreement Patel signed authorized his involuntary
termination, and allowed the general partner to reallocate his interest. Under the
terms of the Agreement, Patel ratified and confirmed the general partner’s actions.
Patel admitted when he filed his tax return for 2008 that his partnership interest
had terminated—he reported a zero ownership interest to the IRS.
Patel was notified that his interest would be terminated if he did not provide
updated financial information to the bank by March 10, 2008. He did not do so,
and his interest was terminated and reallocated. Those actions were not a breach of
contract, fraud, breach of fiduciary duty, conversion, or theft. They were in fact
what Patel agreed could happen.
Any claim that the contract was breached, or that the general partner should
not have terminated his interest, should have been brought within four years after
March 10, 2008—the deadline in the letter for him to avoid termination. Any claim
for conversion or theft should have been brought within two years of that date. All
of Patel’s claims are barred by limitations. Neither the discovery rule nor
fraudulent concealment delays accrual or tolls limitations in this case.
Furthermore, Patel suffered no damages. The Partnership Agreement
provides that a limited partner who leaves the partnership leaves with nothing more
than his capital account. The value of Patel’s capital account was never a positive
5
amount while he was a partner, and so he was not entitled to any amount when he
walked away from the partnership.
There are no genuine issues of material fact, and the Defendants were
entitled to judgment as a matter of law. The trial court’s summary judgment should
be affirmed.
ARGUMENT
Summary judgments are reviewed de novo. Merriman v. XTO Energy, Inc.,
407 S.W.3d 244, 248 (Tex. 2013); Nalle Plastics Family L.P. v. Porter, Rogers,
Dahlman & Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App.—Corpus Christi 2013,
pet. denied). To be entitled to summary judgment, the movant must establish that
there is no genuine issue as to any material fact, and that the movant is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a; Nalle Plastics Family L.P., 406
S.W.3d at 199-200. A defendant can meet its summary-judgment burden by
conclusively negating at least one element of each cause of action or conclusively
establishing each element of an affirmative defense. See Sci. Spectrum, Inc. v.
Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Defendants did both here.
I. All of Patel’s claims are barred by limitations.
A. Patel’s claims accrued by March 10, 2008.
Patel’s claims all arise out of the termination of his partnership interest. The
determination of when those claims accrued, and when the statute of limitations
began to run, is a question of law. See Valdez v. Hollenbeck, 465 S.W.3d 217, 229
6
(Tex. 2015) (“When a cause of action accrues is typically a question of law.”);
Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 274-75 (Tex. 2004)
(“Accrual of limitations is a question of law for the court.”). To answer that
question, the Court must decide when facts came into existence that authorized
Patel to seek a judicial remedy. See Exxon Corp. v. Emerald Oil & Gas Co. L.C.,
348 S.W.3d 194, 202 (Tex. 2011); Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 221 (Tex. 2003). “In most cases, a cause of action accrues when a
wrongful act causes a legal injury, regardless of when the plaintiff learns of that
injury or if all resulting damages have yet to occur.” Knott, 128 S.W.3d at 221.
Patel’s claims accrued on the March 10, 2008 deadline. In failing to supply
updated financial information by that deadline, he forfeited his partnership interest.
Patel was notified by letter of the deadline and that he would be expelled and his
interest terminated. He was notified that he would “forfeit to the partnership the
entire value of your partnership interest upon your termination and expulsion.”
App’x Tab A (Supp.CR103). On receipt of the letter, Patel was on actual notice of
facts in existence that authorized him “to seek a judicial remedy.” See Knott, 128
S.W.3d at 221.
Patel claims the letter was only a threat, but the letter was more than that. He
received notice of the reason for the termination of his partnership interest and the
deadline for his compliance. He knew from the letter that he had only until March
7
10, 2008, to act to avoid termination of his partnership interest. App’x Tab A
(Supp.CR103). The Partnership plainly informed him that if he ignored the
deadline his interest would be terminated. His interest was in fact terminated, and
the termination was made effective as of January 1, 2008. But for purpose of the
accrual of his causes of action, by March 10, 2008, facts had come into existence
that permitted him to seek a judicial remedy.
The March 4, 2008 notice was mailed by regular mail and certified mail.
CR121. When notice is sent to a proper address by regular mail there is a
presumption of receipt that may only be overcome by sworn proof of non-receipt.
See Thomas v. Ray, 889 S.W.2d 237, 238-39 (Tex. 1994). In Thomas, the Court
explained:
When a letter, properly addressed and postage prepaid, is
mailed, there exists a presumption that the notice was
duly received by the addressee. This presumption may be
rebutted by an offer of proof of nonreceipt. In the
absence of any proof to the contrary, the presumption has
the force of a rule of law.
Id. at 238. (internal citations omitted). Moreover, section 13.2 of the Partnership
Agreement provides that notice shall be deemed completed two days after it is
deposited in the United States mail, first class, postage prepaid. CR67.
Patel testified that the letter was properly addressed to his residence and he
confirmed his wife’s signature on the certified letter. CR94. The fact that Patel did
not personally sign the green card does not rebut the presumption or constitute
8
evidence of non-receipt. See Luna v. Runyon, No. 03-06-00615-CV, 2008 WL
2609171, at * 2 (Tex. App.—Austin 2008, pet. denied) (mem. op.). Patel neither
denied receipt of the copy sent by regular mail nor offered proof of non-receipt.
CR95-96. When he was asked if his wife brought the certified letter to his
attention, he simply stated, “[s]he may have. I just don’t recall." CR95. And he
testified, “Well, I’m not telling you I didn’t read it. I just don’t recall.” Id. Under
the circumstances, the presumption that he received the notice “has the force of a
rule of law.” See Thomas, 889 S.W.2d at 238. His claims accrued and the statute of
limitations began to run when he learned of facts giving rise to his right to seek a
judicial remedy—by March 10, 2008.
B. Neither the discovery rule nor fraudulent concealment delays
accrual or tolls limitations here.
The Texas Supreme Court has recognized two limited doctrines that in
appropriate circumstances may delay accrual or toll limitations: (1) the discovery
rule, and (2) fraudulent concealment. See Valdez v. Hollenbeck, 465 S.W.3d 217,
229 (Tex. 2015). Contrary to Patel’s argument, neither doctrine applies here.
1. The discovery rule does not apply because the alleged injury
was not of the limited type that is inherently
undiscoverable.
The discovery rule is a “very limited exception” to statutes of limitations
that applies “in certain limited circumstances.” Computer Assocs. Int’l., Inc., v.
Altai, Inc., 918 S.W.2d 453, 456-57 (Tex. 1994). When it applies, the doctrine
9
“defers the accrual of the cause of action until the injury was or could have
reasonably been discovered.” Shell Oil Co. v. Ross, 356 S.W.3d 924, 929-30 (Tex.
2011). The Supreme Court has limited the discovery rule to “exceptional cases to
avoid defeating the purposes behind the limitations statutes.” Via Net v. TIG Ins.
Co., 211 S.W.3d 310, 313 (Tex. 2006) (per curiam).
The discovery rule applies “only when the nature of the plaintiff’s injury is
both inherently undiscoverable and objectively verifiable.” Wagner & Brown, Ltd.,
58 S.W.3d 732, 734 (Tex. 2001). The legal question of whether an injury is
inherently undiscoverable “is decided on a categorical rather than a case-specific
basis; the focus is on whether a type of injury rather that a particular injury was
discoverable.” Via Net, 211 S.W.3d at 314. A type of injury is inherently
undiscoverable only if it is by its nature unlikely to be discovered within the statute
of limitations despite due diligence. Id. at 313.
The loss of an interest in a partnership is not the type or category of injury
that can be described as inherently undiscoverable. The Texas Supreme Court has
explained that breach-of-contract cases to which the discovery rule would apply
“should be rare, as diligent contracting parties should generally discover any
breach during the relatively long four-year limitations period provided for such
claims.” Id. at 315. The exercise of due diligence in this case in responding to the
letter would have provided Patel any information he did not already know. The
10
loss of a partnership interest is not the type or category of injury that is unlikely to
be discovered despite due diligence. Indeed, Patel’s 2008 IRS schedule K-1 and his
non-receipt of K-1 schedules in the subsequent years made the injury not merely
discoverable, but obvious.
Patel cites section 13.4 of the Partnership Agreement as requiring his
signature on the termination to make it effective. App’x Tab C (CR68).4 And he
cites section 3.4 to the same effect. Id. (CR45).5 But his termination was
involuntary, not voluntary. Section 13.4 begins with the words “Except as
otherwise expressly provided in this Agreement.…” Id. (CR68). Section 10.2
expressly provides for the expulsion of a limited partner and the involuntary
termination of his interest by the general partner. Id. (CR62). And Section 3.4
applies only to “agreed” changes, not involuntary termination. Id. (CR45).
Section 12.1 expressly provides that each limited partner “authorizes” and
“ratifies and confirms” the actions of the general partner in, among other things,
executing “[a]ll instruments and documents necessary to effectuate or act upon any
reallocation of a defaulting partner’s partnership interest.” Id. (CR66). The contract
does not require Patel’s consent in writing to an involuntary termination. He knew
4
Section 13.4 provides in part: “Except as otherwise expressly provided in this Agreement, no
modification, waiver or termination of this Agreement, or any part hereof, shall be effective
unless made in writing signed by the party or parties sought to be bound thereby….”
5
Section 3.4 provides that “Any changes, additions or deletions to the list of GPs or LPs or their
partnership interests made and agreed upon hereafter from that listed on Exhibit ‘A’ shall be
recorded on Exhibit ‘C’ and initialed by all GPs and any LPs whose PI has so changed.”
11
that when he signed the Partnership Agreement. Royston, Rayzor, Vickery &
Williams, LLP v. Lopez, 467 S.W.3d 494, 500 (Tex. 2015) (“[A]bsent fraud,
misrepresentation, or deceit, one who signs a contract is deemed to know and
understand its contents and is bound by its terms.”). He also knew that when he
received the termination letter. Requiring a partner’s consent in writing for an
involuntary termination to be effective would render the section authorizing
involuntary termination meaningless. In construing a written contract, a court
“must examine and consider the entire writing in an effort to harmonize and give
effect to all the provisions of the contract so that none will be rendered
meaningless.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003).
Furthermore, even when applicable, the discovery rule only tolls accrual
“until the injury was or could have reasonably been discovered.” Shell Oil Co., 356
S.W.3d at 929-30. The “injury was or could have reasonably been discovered” by
the March 10, 2008 deadline. Patel discovered or could have reasonably discovered
then that he failed to meet the deadline, and knew or could have reasonably
discovered the forfeiture of his partnership interest.
Patel also claims that somehow his interest may not yet have been
terminated. This argument ignores not only the terms of the Agreement but his
own 2008 tax return showing he no longer owned an interest in the Partnership.
App’x Tab B (CR141). The contract authorized the general partner to reallocate his
12
interest, and the Partnership Agreement was amended as permitted by the
Agreement. Nothing about this type of alleged injury brings it within the narrow
orbit of the discovery rule.
2. The fraudulent concealment doctrine does not apply
because the Partnership did not try to conceal termination
of Patel’s interests and Patel had notice of facts giving rise
to his claims by March 2008.
The fraudulent concealment doctrine also does not apply. Fraudulent
concealment tolls limitations until fraud is discovered or should have been
discovered with reasonable diligence. Valdez, 465 S.W.3d at 229. It is an
affirmative defense to the statute of limitations under which the plaintiff has the
burden of proof. See Weaver v. Witt, 561 S.W.2d 792, 793 (Tex. 1977).
Defendants did not try to conceal the termination of Patel’s interest in the
Partnership. To the contrary, they actually advised him of the occurrence of
forfeiture in the March 4th letter. App’x Tab A (Supp.CR102-06). Patel testified
that he had no reason to believe that the Partnership did not terminate his interest
as provided in the letter. CR96. He filed a K-1 with his tax return showing zero
interest in the Partnership for 2008, and he did not receive any additional K-1
schedules in the following years. CR96-97.
The Texas Supreme Court has explained that, even in cases of alleged fraud,
in some circumstances a court “can determine as a matter of law that reasonable
diligence would have uncovered the wrong.” Hooks v. Samson Lone Star, Ltd.
13
P’Ship, 457 S.W.3d 52, 58-59 (Tex. 2015); see also Cosgrove v. Cade, 468 S.W.3d
32, 38-39 (Tex. 2015). When there is actual or constructive notice, the accrual of a
fraud claim is not delayed. Cosgrove, 468 S.W.3d at 38-39 (citing Hooks). By
March 2008, Patel was aware that he was being expelled, yet he did not exercise
any right to judicial relief until he filed suit more than four years later on June 15,
2012.
Nor can Patel create an issue based on the fact that Partnership Amendment
4 was executed twice. Both documents give the effective date of the termination as
January 1, 2008. CR126, CR135. And in filing his 2008 tax return, he reported a
zero interest in the Partnership for 2008. App’x Tab B (CR141).
3. The presence of fiduciary duties does not relieve Patel of his
own obligation of diligent inquiry.
Patel is not entitled to special consideration due to any fiduciary duty owed
to him as a limited partner. First, the Texas Supreme Court has explained that
“partners have no obligation to remain partners.” Bohatch v. Butler & Binion, 977
S.W.2d 543, 545 (Tex. 1996). “The fiduciary duty that partners owe one another
does not encompass a duty to remain partners or else answer in tort damages.” Id.
at 546. And second, a fiduciary’s misconduct is only inherently undiscoverable in
situations when the person to whom a fiduciary duty is owed is either unable to
inquire into the fiduciary’s actions or unaware of the need to do so. See S.V. v.
R.V., 933 S.W.2d 1, 8 (Tex. 1996). As the Supreme Court has explained,
14
[w]hile a person to whom a fiduciary duty is owed is
relieved of the responsibility of diligent inquiry into the
fiduciary’s conduct, so long as that relationship exists,
when the fact of misconduct becomes apparent it can no
longer be ignored, regardless of the nature of the
relationship.
Id. Defendants took affirmative steps to put Patel on notice of the impending
expulsion from the Partnership. App’x Tab A (CR121;Supp.CR102-06). Patel
simply chose to ignore his obligations. CR97. Patel was neither unable to inquire
nor unaware of the need to do so. Neither the discovery rule nor the doctrine of
fraudulent concealment applies.
4. The same statute of limitations applies to Patel’s
declaratory-judgment claim as to his substantive claims.
Finally, Patel argues that the trial court improperly disposed of his
declaratory-judgment claim. But Defendants moved for summary judgment on all
of his substantive claims, and it was properly granted on all of them. As the First
Court of Appeals has stated, “because claims for declaratory relief necessarily
derive from claims for substantive relief, the statute of limitations for the
underlying action at law is applied to an accompanying action for declaratory
relief.” Schrock v. City of Baytown, No. 01-13-00618, 2015 WL 1882190, at *7
(Tex. App.—Houston [1st Dist.] April 23, 2015, no pet.) (mem. op.). Because all
of Patel’s underlying substantive claims were barred by limitations, the procedural
device and remedy of a declaratory judgment was also properly dismissed. See id.;
15
In re Estate of Denman, 362 S.W.3d 134, 144 (Tex. App.—San Antonio 2011, pet.
denied) (“Because a declaratory judgment action is a procedural device used to
determine substantive rights, to determine the applicable limitations period, we
must look to the legal remedy underlying the cause of action.”).
Any alleged misconduct was not inherently undiscoverable. Patel was
required to act. Since the termination occurred more than four years before he filed
his original petition, Patel’s claims for breach of partnership agreement, breach of
fiduciary duty, and fraud are barred. See TEX. CIV. PRAC. & REM. CODE ANN. §
16.004(a)(5).
Patel had two years from accrual to file his claims for conversion and
violation of the Texas Theft Liability Act. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 16.003. He was on notice in March 2008 of his expulsion from the Partnership,
and admits that he received, sometime in 2009, the 2008 K-1 showing a zero
interest in the partnership. CR96. He also admits that he included this K-1 in his
2008 tax return. CR96. Having waited to file suit until June 15, 2012, Patel’s
claims are time-barred, as any claim for an alleged conversion or theft accrued
before June 15, 2010.
The trial court properly granted summary judgment on all claims based on
the statute of limitations. The judgment should be affirmed.
16
II. Defendants conclusively negated at least one element of each of Patel’s
claims.
A defendant can meet its summary-judgment burden by conclusively negating
at least one element of each of a plaintiff’s claims. See Sci. Spectrum, 941 S.W.2d
at 911. Defendants did that here with respect to each of Patel’s claims, as to
damages on the fraud claim and as to both damages and another element on all
other claims.
A. Patel has no breach-of-fiduciary-duty claim.
Breach of fiduciary duty is a tort. Douglas v. Aztec Petroleum Corp., 695
S.W.2d 312, 318 (Tex. App.—Tyler 1985, no writ). The elements for a breach-of-
fiduciary-duty claim are: (1) plaintiff and defendant had a fiduciary relationship;
(2) defendant breached this duty; (3) this breach resulted in harm to plaintiff or
benefit to defendant. See Graham Mortg. Corp. v. Hall, 307 S.W.3d 472, 479 (Tex.
App.—Dallas 2010, no pet.).
Harbor Hospice Managers, L.L.C., the general partner of Harbor Hospice of
Beaumont, L.P., terminated Patel’s limited partnership interest in the Partnership.
Patel alleges this termination of his partnership interest was a breach of fiduciary
duty. But the Supreme Court has already determined that, as a matter of law,
“partners have no obligation to remain partners.” Bohatch, 977 S.W.2d at 545. The
fiduciary duty that partners owe each other “does not encompass a duty to remain
17
partners or else answer in tort damages.” Id. at 546.6 Defendants had no fiduciary
duty to remain partners with Patel. See LG Ins. Mgmt. Servs., LP v. Leick, 378
S.W.3d 632, 643 (Tex. App.—Dallas 2012, pet. denied). As a matter of law, Patel
has no breach-of-fiduciary-duty claim based on the termination of his partnership
interest.
Furthermore, any action taken after termination of Patel’s partnership
interest, for example in transferring his former interest, cannot be a breach of
fiduciary duty either. No fiduciary duty is owed to a former partner after the
partnership interest is terminated. See id.
Even if a duty were owed, Defendants’ actions were proper as a matter of
law. Defendants’ actions complied with the Partnership Agreement and the statutes
governing partnership fiduciary obligations. See TEX. BUS. ORG. CODE ANN. §
152.002(a) (partnership statutes govern to the extent a partnership agreement does
not otherwise provide).
A partner’s fiduciary duty includes: (1) duty of loyalty to the joint concern;
(2) duty of good faith, fairness, and honesty in dealings with each other on matters
pertaining to the partnership; (3) duty of full disclosure of all matters; (4)
accounting for partnership profits and property; and (5) refraining from competing
6
Moreover, there is no claim that the limited partners terminated Patel’s interest; limited partners
generally do not owe any fiduciary duty to each other in this context. See Strebel v. Wimberly,
371 S.W.3d 267, 281 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). But see LG Ins. Mgmt.
Servs., LP v. Leick, 378 S.W.3d 632, 643 n.8 (Tex. App.—Dallas 2012, pet. denied) (“Texas law
is not clear whether limited partners owe each other fiduciary duties.”).
18
or dealing with the partnership in a manner adverse to the partnership. See
Bohatch, 977 S.W.2d at 545; Brosseau v. Ranzau, 81 S.W.3d 384, 394-95 (Tex.
App.—Beaumont 2002, pet. denied). The claimed actions of Defendants in
terminating Patel’s interest do not constitute a breach of any of these duties.
Patel cites various provisions of the Agreement that he claims required his
consent to the termination and reallocation of his interest. But his termination was
involuntary. Section 10.2 expressly provides for the expulsion of a limited partner
and the involuntary termination of his interest by the general partner. App’x Tab C
(CR62). Section 12.1 expressly provides that Patel “authorizes” and “ratifies and
confirms” the actions of the general partner in, among other things, executing “[a]ll
instruments and documents necessary to effectuate or act upon any reallocation of
a defaulting partner’s partnership interest.” Id. (CR66). The Agreement does not
require Patel’s consent to an involuntary termination or to the reallocation of his
interest as a defaulting partner. Id. (CR62,66). The Agreement he signed
authorized his involuntary termination and in that Agreement he ratified and
confirmed the reallocation of his interest. Id. (CR62,66). He knew that when he
signed the Agreement and when he received the March 4th letter from the
Partnership. App’x Tab B (CR121;Supp.CR102-06). He acknowledged that when
he filed his tax return showing a zero partnership interest. CR96; App’x Tab B
(CR141).
19
As the Supreme Court stated in Bohatch, partners may choose with whom
they associate. See Bohatch, 977 S.W.2d at 545. Patel can point to no requirement
in the Agreement or the law that barred Defendants from rejecting him as their
partner. Once the decision was made to reject him, he was notified, and under the
terms of the Agreement, he was not owed any money. Regardless of the language
used in the resolution terminating his interest, the termination was not a breach of
fiduciary duty. See id. at 546.
A partner is presumed to satisfy the duty of care if the partner acts on an
informed basis and in good faith with a reasonable belief that it is acting in the
partnership’s interest. TEX. BUS. ORG. CODE ANN. § 152.206. Removing Patel from
the Partnership was objectively in the best interest of the Partnership. Patel had
shown himself to be unreliable by not finishing the construction properly and by
failing to pay subcontractors on-time, if at all. CR105,110-11. He held the half-
completed major construction project hostage for an increase in ownership.
CR107,116. He proved to be detrimental to the Partnership yet again when he
failed to respond to the bank’s request for financial information. This forced the
Partnership to have to refinance the loan with another bank. CR117. Considering
that Patel put up no money for his interest, but was supposed to successfully
complete the construction project (CR92-93,110), his failure to act and his cavalier
20
attitude towards his partnership commitments and responsibilities were not in the
best interest of the Partnership.
A partnership has the right to rid itself of partners who do not live up to their
obligations. To exercise that right cannot be a violation of a fiduciary duty. The
trial court properly granted summary judgment on the fiduciary-duty claim.
B. There is no genuine issue of material fact as to breach of contract.
To prevail on a breach-of-contract claim, a plaintiff must prove: (1) there is
a valid, enforceable contract; (2) the plaintiff is a proper party to sue for breach of
contract; (3) the plaintiff performed, tendered performance of, or was excused from
performing its contractual obligations; (4) the defendant breached the contract; and
(5) defendant’s breach caused plaintiff injury. See B&W Supply, Inc. v. Beckman,
305 S.W.3d 10, 16 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). The trial
court properly granted summary judgment on Patel’s breach-of-contract claim
because there is no question of fact with respect to any breach.
Under Texas Business Organizations Code section 153.105, rights of limited
partners may only be created by: (1) the certificate of formation; (2) the partnership
agreement; (3) other sections of that chapter; or (4) other limited partnership
provisions. TEX. BUS. ORG. CODE ANN. § 153.105. Section 152.002(a) of the Code
provides:
Except as provided by Subsection (b)[not relevant here],
a partnership agreement governs the relations of the
21
partners and between the partners and the partnership. To
the extent that the partnership agreement does not
otherwise provide, this chapter and the other partnership
provisions govern the relationship of the partners and
between the partners and the partnership.
Id. § 152.002(a); see also id. § 153.003. Therefore, unless the Partnership
Agreement conflicts with a non-waivable provision of the law, the Agreement
governs the permissible actions by members of the Partnership with relation to it
and one another.
Section 10.2 of the Partnership Agreement allowed the general partner to
terminate Patel’s partnership interest and expel him from the Partnership:
Expulsion. All of the general partners may unanimously
terminate the interest of a limited partner and expel
him… (c) for failing to meet any commitment to the
partnership or manager in accordance with any written
undertaking signed by such limited partner… [T]he
expulsion and termination may, in the sole discretion of
the general partners in order to compensate for any
damages caused to the partnership, result in a forfeiture
to the partnership of all or a portion of the value of the
partnership interest of the expelled partner at the time of
such expulsion or termination.
App’x Tab C (CR62).
No provision of the Texas Business Organizations Code prohibits partners
from agreeing to expulsion provisions in a partnership agreement. Because Patel
failed to meet his commitments to the Partnership, his interest was terminated and
his partnership interest was forfeited under section 10.2 of the Partnership
22
Agreement. App’x Tab C (CR62); App’x Tab A (Supp.CR102-06). An amendment
to the Partnership Agreement was executed to document the fact Patel was no
longer a member of the Partnership effective January 1, 2008. CR126-29. Patel’s
2008 K-1, which he admitted filing with the IRS, accordingly showed his capital
account and ownership interest as zero. CR96,98, App’x Tab B (CR141).
The forfeiture of the value of Patel’s partnership interest was “in the sole
discretion” of the general partner. App’x Tab A (CR62). The Partnership had the
right to expel him under section 10.2, and Patel cannot identify any provision of
the Agreement that was breached. There is no genuine issue of material fact
regarding Patel’s claim of breach of the Partnership Agreement. The trial court
properly granted summary judgment on the breach of contract claim.
C. There is no genuine issue of material fact as to conversion and
theft.
The trial court also properly granted a summary judgment on Patel’s
conversion and theft liability claims. The elements of conversion are: (1) the
plaintiff owned, possessed, or had the right to immediate possession of property;
(2) the property was personal property; (3) the defendant wrongfully exercised
dominion or control over the property; and (4) the plaintiff suffered injury. See
Green Int’l v. Solis, 951 S.W.2d 384, 391 (Tex. 1997); Alan Reuber Chevrolet, Inc.
v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 888-89 (Tex. App.—Dallas 2009, no
pet.). The elements are similar under the Theft Liability Act. TEX. CIV. PRAC. &
23
REM. CODE ANN. §§ 134.002(2) (“‘Theft’ means unlawfully appropriating property
or unlawfully obtaining services….”), 134.003.
Patel violated the Partnership Agreement and triggered the expulsion clause.
Defendants had the right to take control of his partnership interest under section
10.2 of the Agreement. App’x Tab C (CR62). Furthermore, when ownership of
property is subject to a legitimate claim under a contract, there is no theft. See
Bokor v. State, 114 S.W.3d 558, 560 (Tex. App.—Fort Worth 2002, no pet.).
Patel’s expulsion and the reallocation of his partnership interest were authorized by
the contract. See, e.g., Bandy v. First State Bank, 835 S.W.2d 609, 622 (Tex. 1992)
(no conversion when bank had right to offset deposits against customer’s debts).
There is no genuine issue of material fact as to whether expulsion was justified or
authorized by the contract; therefore the termination of Patel’s interest cannot
constitute conversion or theft. The trial court properly granted summary judgment
on these claims.
III. There is no fact question as to damages.
Furthermore, there is no fact question as to whether Patel suffered any injury
from any of Defendants’ alleged actions. The Partnership Agreement governs the
relationship of the parties. Once Patel signed the Agreement, he agreed to each of
the following provisions:
24
 Section 4.2 Return of Capital.
Except as otherwise expressly provided for elsewhere herein, no
partners shall be entitled to a refund or return of any capital
contributions nor to withdraw any part of his capital account nor to
receive any distributions of any kind, including of profits, from the
partnership, except upon termination of the partnership which shall
mean a complete winding up of the partnership and following the
filing of a certificate of cancellation. App’x Tab C (CR45-46).
 Section 8.1 General Limitations.
No limited partner may sell, pledge, transfer, exchange, hypothecate,
encumber, give, devise, assign or otherwise dispose of or allow to be
attached (“transfer” or “assign”) any portion of his partnership interest
nor may he withdraw from the partnership without the prior written
consent of all of the general partners, which decision shall be made at
their sole discretion. Id. (CR53).
 Section 8.5 Redemption of Partnership Interest
a. The partnership interest of all limited partners are subject to
redemption by the partnership at the election of the general
partners. In the event the general partners make such an
election, the general partners shall provide the limited partner
whose partnership interest is to be redeemed (the “Redeemed
Partner”) with at least sixty (60) days’ prior written notice of
the redemption.
b. The purchase price of the Redeemed Partner’s LPI shall equal
the balance of the Redeemed Partner’s capital account
established under Section 5.1 hereof, determined as of the end
of the calendar month immediately preceding the month in
which the closing of the redemption transaction takes place. Id.
(CR57-58).
 Section 10.2 Expulsion
All of the general partners may unanimously terminate the interest of
a limited partner and expel him (a) for interfering in the management
of the partnership affairs or otherwise engaging in conduct which
25
could result in the partnership losing its tax status as a partnership, (b)
if the conduct of a limited partner brings the partnership into
disrepute, or (c) for failing to meet any commitment to the partnership
or manger in accordance with any written undertaking signed by such
limited partner, but the general partners shall be not be required to so
terminate. In each of the foregoing events, the expulsion and
termination may, in the sole discretion of the general partners in order
to compensate for any damages caused to the partnership, result in a
forfeiture to the partnership of all of a portion of the value of the
partnership interest of the expelled partner at the time of such
expulsion or termination. Id. (CR62).
Under these provisions, any partner who leaves the partnership, either
voluntarily or through expulsion, leaves with nothing more than his capital
account. Patel had a negative balance in his capital account. CR130-33. The value
of Patel’s capital account was never a positive amount during any time in which he
was a partner. As a matter of law he suffered no injury.
IV. The summary judgment evidence was properly considered by the trial
court.
Patel claims for the first time on appeal that the summary judgment proof
was not properly authenticated. The objection has no merit. See TEX. R. CIV. P.
166a(d). The summary judgment evidence in this case consists exclusively of
deposition testimony and deposition exhibits. It was not necessary to authenticate
them. McConathy v. McConathy, 869 S.W.2d 341, 341 (Tex. 1994); Neely v.
Comm’n for Lawyer Discipline, 302 S.W.3d 331, 344 n.14 (Tex. App.—Houston
[14th Dist.] 2009, pet. denied) (“Deposition transcripts and the exhibits discussed
26
in the deposition need no authentication and constitute proper summary judgment
evidence.”).
This Court and the Ninth Court of Appeals have applied Rule 166a(d) to
discovery documents and concluded authentication was unnecessary. The Ninth
Court ruled “[a]uthentication of discovery documents is unnecessary if the
proponent complies with Rule 166a(d).” Guidry v. Wells, No. 09-05-00182-CV,
2006 WL 246493, at *1 (Tex. App.—Beaumont 2006, no pet.) (mem. op.) (holding
that referring to requests for admission and attaching an unauthenticated copy
satisfied Rule 166a(d)). Likewise, in Mowbray v. Avery, this Court explained that
two exhibits “were discovery documents in the same case and so do not need to be
authenticated to serve as summary judgment proof.” 76 S.W.3d 663, 689 n.44
(Tex. App.—Corpus Christi 2002, pet. denied).
Patel did not object in the trial court and does not argue in this Court that
any of the summary judgment evidence is not subject to Rule 166a(d). See Cotton v
Cotton, 169 S.W.3d 824, 829 (Tex. App.—Dallas 2005, pet. denied) (“To the
extent the ‘exhibits’ are discovery products, Neel’s argument is not well taken, and
Neel makes no argument that the exhibits are not subject to rule 166a(d).”). He
does not point to any one exhibit as objectionable; he globally objects to them all
without mentioning Rule 166a(d). Yet he did not object to the summary judgment
evidence in the trial court. He did not ask the trial court for a ruling on any
27
objection to the evidence. He has waived the objection. See TEX. R. APP. P. 33.1;
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979);
Pink v. Goodyear Tire & Rubber Co., 324 S.W.3d 290, 301 (Tex. App.—
Beaumont 2010, writ dism’d) (“Generally a party is required to obtain an express
ruling on its objection to summary judgment evidence.”); Neely, 302 S.W.3d at
344-45.
Patel’s objection has no basis. The deposition excerpts and exhibits were
properly considered by the trial court under Rule 166a(d), and any objection cannot
be made for the first time on appeal.
PRAYER
Appellees respectfully request that the summary judgment be affirmed.
Respectfully submitted,
MEHAFFYWEBER, P.C.
By: /s/ David Gaultney
David Gaultney
State Bar No. 07765300
davidgaultney@mehaffyweber.com
Elana Einhorn
State Bar No. 06502455
elanaeinhorn@mehaffyweber.com
MehaffyWeber, P.C.
823 Congress Avenue, Suite 200
Austin, Texas 78701
Phone: (512) 394-3840
Fax: (512) 394-3860
28
Jeremy Stone
State Bar No. 24013577
jeremystone@mehaffyweber.com
MehaffyWeber, P.C.
500 Dallas, Suite 1200
Houston, Texas 77002
Phone: (713) 655-1200
Fax: (713) 655-0222
David E. Bernsen
State Bar No. 02217500
dbernsen@bernsenlaw.com
Christine L. Stetson
State Bar No. 00785047
cstetson@bernsenlaw.com
420 North MLK, Jr. Pkwy
Beaumont, Texas 77701
Phone: (409) 212-9994
Fax: (409) 212-9411
Glen W. Morgan
State Bar No. 14438900
gmorgan@rmqlawfirm.com
John Werner
State Bar No. 00789720
jwerner@rmqlawfirm.com
Reaud, Morgan & Quinn
801 Laurel St.
Post Office Box 26005
Beaumont, Texas 77720-6005
Phone: (409) 838-1000
Fax: (409) 833-8236
Brandy Wingate Voss
State Bar No. 24037046
brandy@appealsplus.com
Smith Law Group L.L.L.P.
820 E. Hackberry Ave.
McAllen, Texas 78503
Phone: (956) 683-6330
29
Fax: (956) 225-0406
Attorneys for Harbor Hospice of Beaumont,
LP, Harbor Hospice Manager, L.L.C, Qamar
Arfeen, and Arfeen Properties, L.P.
CERTIFICATE OF COMPLIANCE
I certify that this Appellees’ Brief complies with the length limits of Tex. R.
App. P. 9.4(i). The Brief contains 6,837 words, not counting the contents excluded
by Rule 9.4(i)(1).
/s/ David Gaultney
30
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this document has been forwarded to
the following counsel of record via electronic filing manager and e-mail on
December 10, 2015.
Chris Portner Jamie D. Matuska
cportner@portnerbond.com jamie@matuskalaw.com
J. Trenton Bond Matuska Law Firm
tbond@portnerbond.com 2809 Highway 69 North
Portner Bond, P.L.L.C. Nederland, Texas 77627
1905 Calder A venue (409) 722-5600 Telephone
Beaumont, Texas 77701 (409) 727-1290 Facsimile
(409) 838-4444 Telephone
(409) 554-0240 Facsimile
Anthony Malley, III
tony@mallaw.com
Malley Law Firm, P.L.L.C.
905 Orleans, Suite 110
Beaumont, Texas 77701
(409) 212-8888 Telephone ATTORNEYS FOR APPELLANT,
(409) 212-8002 Facsimile SANDEEP PATEL
/s/ David Gaultney
31
No. 13-15-00452-CV
IN THE THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI—EDINBURG, TEXAS
SANDEEP PATEL,
Appellant,
v.
HARBOR HOSPICE OF BEAUMONT, LP, HARBOR HOSPICE MANAGER, LLC, QAMAR
ARFEEN, AND ARFEEN PROPERTIES, L.P.,
Appellees.
ON APPEAL FROM THE 172nd DISTRICT COURT,
JEFFERSON COUNTY, TEXAS, NO. E-192,576
INDEX TO APPENDIX
Tab: Description:
A. Letter from the Partnership to Patel
B. Patel’s 2008 IRS Schedule K-1
C. Partnership Agreement
32
Tab A
(Letter from the Partnership to Patel)
FILED
DISTRICT CLERK OF
JEFFERSON CO TEXAS
1/22/2015 5:19:08 PM
1
JAMIE SMITH
DISTRICT CLERK
E-192576
Maggie Parker
GeMral Cot,lllsel and
Director of Risk Management
Harbor Healt.hcara System, LP
8515 Fannin, Suite lG7
Beaumont, TX 7770i
409.813.2332. office
409.838.7598 fu
mparkru:@harborhcs.com
March 4, 2008
VIA CERTIFIED 1.\'IAIL, RETUR.t~ RECEIPT REQUESTED AND REGULAR U.S. MAIL
Sandeep Patel
12802 Aspen Terrace
Cypress~ TX 7743j
() Re: Harbor Hospice of Beaumont, L.P.;
Loan fl330001985366 with Capital One1 N.A.
Dear Mr. Patel,
I am writing as General Counsel for Hat:bor Healthcare System~ L.P. and the Harbor Hospice
affiliates, including but not limited to Harbot· Hospice of Beaumont, L.P. As you know, the above
referenced loan on which you are a Guarantor matures March 12~ 2008. A copy of a letter from
Capital One dated February 25, 2008 was received this morning and is enclosed for your review. A
copy of the Cotntl:tercial Guaranty signed by you on th!s loan is also enclosed for your reference, as
l'
l
well as the Notice of Final Agreement.
I
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I The bank has attempted on several occasions to obtain updated financials from you and yQu have
refused to provide same. Further, you have failed to return several phone messages regarding this
matter. If you do not provide updated financials to 1he bank on or before March 10, 2008, you will
be in material breach of your obligations .under the partnership agreement and the enclosed loah
documents.
Pursuant to Section 10.2 of the Agreement of Limited Partnership for Harbor Hospice of Beaumont,
.L.P~, '.'[~]~ <;>f .th~ g``r~ p``~r~ m~y .u``O.l;l~ly terminat~. the inte!est of a !~t~d partnex:_ and
expel him .•. for failing to meet any commitment to the partnership or manager in accordance with
any written undertaking signed by such limited partner .... fTJhe expulsion and 1ermina~ion may,
in the sole discretion of the general partners in order to compensate for any damages caused to the
) partnership~ result in a forfeiture to the partnership of all or a portion of the· value of th.e partnership
interest of the expelled partner at the time of such expulsion or termination.,
EXHIBIT NO.~ EXHIBIT "F":
102
S. B~;·w! 4/l /J 4 DEF000578
,..-\
\ j
Please allow this letter to serve as notice that unless you remedy this breach and provide updated
financials to the bank on or before March 10, 2008, the general partner shall terminate your interest
in Harbor Hospice of Beaumont~ L.P. and expel you for your continued breach of this written
obligation. Please further note that if the general partner is forced to take action pursuant to Section
10.2 of the partnership agreement, you will forfeit to the partnership the entire value of your
partnershipinterest upon your term:ination and expulsion.
Please give this matter your immediate attention. It is our hope that you will honor· your obligations
and resolve this situation accordingly. Please give me a call to discuss your intentions on or before
the March 10, 200& deadline.
ve.ry nuty y~u:1} .
L-1!1;/!fp.e IM!h.
``f:}Parker
MMP/nunp
Enc.
()
i
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!
103
DEF000579
~· h
-CapitalOne® I
("'\ <:ap.ual one, N.A.
\. J F. 0. Box3597
Bato.n Rouge, 1A 70821
(225) 381·2000
Roc:c:o v. Kuhn
VIce President
February 25 1 2008
Harbor Hospice of Beaumont, L.P.
ATTN: Sandeep Patel 1 Member
2450 N. Major Drive
Beaumont/ TX. 77713
RE: Loan i3300019S5366
Dear Mr. Patel:
,.
The above referenced loan with Capital One, N.A. (~c.o.N.A.")
matures March 12" :woe and will become due and payable in full,
Due to this loan"s pending maturity, CONA hereby makes formal
(_) demand for the outstanding debt as follows:
Principal $493,708.32
Interest {through March 12, 2008) $3,373,67
Total Amount Due $4971081.99
Formal qemand is hereby made for $497,081.99 to be paid on or
before March 12, 2008. Should you fail to comply with CONA's
formal demand for $.497, 081.99, it is CONA' s intention to proceed
with any legal action necessary to collect all sums due under
your Promissory Note, including all alla"lflable attorney's fees and
court costs which CONA incurs in collecting the amounts owed
under the said Note. Your remi.ttance must be paid by cashier's
check and mailed to the undersigned.
Should any payments less than the total outstanding balance plus all accrued
;interest and :.fees be received £_rom you, C!ONA will apply those payments t:o
reduce your debt. However,. CON.A does not waive any or i.t::s rights and
_spea.iri.cally reserves its rights to enforC$ the terms of yo~r loan documents
even 1.£ those payment~ are reoe.:Lved and applied to your debt.
~
"'~ ,.
)
CAPI~AL ONB, N.A, • P. 0. BOX 3697_ • BATON ~QUGE, LA 108~1 • PttONBt (225) 381-~214
104
DEF000580
.. ... •,
.
,.. \
\ l
February 25, 2008
Harbor Hospice of Beaumont, L.P.
ATTN: Sandeep Patel, Member
Page: 2
Should you have any questions concerning this matter, l can be
reached at (225) 381-2214.
1;Z.~
Rocco v. Kuhn
Vice !?resident
rvk/kwb.
cc: File
()
105
DEF000581
"
-----~-----·-------
C;JJpit~IOnee ·'-":
~-¢;~ :~J -- ·~ ,._
. , ,
Capital One, N.A.
P.o. Box 3597
•
f {l~~·-'1"'· .... ···``---------~ •••••""--··· ........!,r,.``
Tab B
(Patel’s 2008 IRS Schedule K)
7
651108
Selledule K·1
(Fmm 1065) ForcalMdoryoor 2003, or !lo>:
2008
Oa11artment of til& Troasury yoor beglcmll!ll - - - - - - - - - - - !----...Al~lli!:ili!lru!:...Q!~:ru!Ll!lrul2!!!1§!!:J!!i!.IDL~
lntemal R~Mmoo.SefllklD endll!ll - - - - - - - - - - - -
Partner's Share of Income, ue.~:~uc..:aon:s,
Credits, etc.
m;t rental income (loss)
min tax (AMT) Items
D D Chook If tills Is a !}UbUc.'y lraded partnership {PTP) sllort·lerm capitaroatn (toss)
long·tarm capl!al gain (loss}
Information About the Partner
E Partn&r'llldDntlf)llng number
limttEtd partner or other lLC
rnember·mana\}or member
H 00 Dornesllc partner D Fnralgn partner
I What type of entity Is this palinar? --=-I..;;;.N.;..;;D_I.;;;..V"'-'-'I"'-D~U..:c-AL-=------- 1----------+--1---------l
J f>ltrtners share of profit, loss, and capital:
-Beginning Eni!lng
Profit 6. 6 0 3529 h. 0.0000000%
~- 6.6035294% 0.0000000%
ca · 1 6. 603529h. 0.0000000%
K Partners share of liabllilies at year end:
Nonrecourse ................................................ $ - - - - - - - - !-2S~!!!!Qllil!!§@!~lf!!.11~!l!i!!~J!lli!l!l!!!iQ!l,__ _ _ _~
Qualified nonrecourse tlnancl.ng ........................ $ ------~
RecQurse ................... ;;~......... .:. ..................... $ _ _ _ _ _ ___;;,_,
t P~rtners capital t~coounl analysis:
Beginning capltafaecount .............................. $ ~-----'-<-::4:-::1:-''-:6:-:6~4i2-. <»
C~pital eont!lbutlld during toe year .~............... $ 70 r 2 3 9 • ~
Curran! year Increase (decrease) ..................... $ -----::-::,..--::,...,.,0:':-. ~
Withdrawals & dlstrlbuHons ...........,.................. $( 2 8 , 5 75 ~ EXHIBIT No.ac:L
Eadlno caf)itala~nt .................................... $ 0 • u.
00 Tax basis 0GAAP D Sectlon 704(b) book
S. Bearcl4 /r powers·.
. .
The specific activity in which the partnership intends to
engage upon formation is to provide inpatient hospice cart?. and
services related or incidental thereto to individuals·in need of
such services. ·
Notwithstandirtg any provision in this Agreement to the
contrary, if a physician owns 1 directly or indirectly, an LP or GP
interest in the partnership, there shall be·an absolute prohibition
a9ainst the referral by that physician of that physician's patients
to the partnership for the receipt of hospice services covered by
Medicare, unless the hospice services are reimbursed under· the
hospice composite rate.
Section 1.4 Partnership Property.
The property· owned by the partnership may be held in the name
of the partnership or in the name of any general partner.
AR.TICLE I I
TERM
The term of the partnership shall commence on the effective
date of this agreement and shall continue for ninety-nine (99)
years, after which date the partnership shall dissolve, unless
sooner dissolved in accordance with the Act or upon the occurrence
of any of tpe following events of dissolution:
(a) the voluntary bankruptcy of the partnership;
(b) the termination and winding up of the partnership
pursuant to other provisions contained elsewhere herein; or
(c) the written agreement of all partners to dissolve the
Pa:rt.nershiPi
provided, however, that the sale or other disposition of all or
2
Defend(lnts p. 4 -
DEF00031643
substantially all of the assets of the partnership or any time
perioq of inactivity by the partnership shall not in and of itself
dissolve or be grounds to dissolve the partnership.
ARTICLE III
INTEREST OF GENERAL AND LIMITED
Section 3:1 General Partner(s)
The initial General Partner (the 11 GP11) is identified and its
address is listed on Exhibit 11 A11 under the caption "General
Partner 11 • The initial General Partner and each succeeding general
partner, whether one or more, is referred to individually and
collectively as general partner, general partners 1 GP, or GPs.
Each GP 13hall have a upartnership interest" {IIPJU) (which term is
defined in the Act) and shall be allocated profits and losse~ in
the percentage set forth opposite its name under the column labeled
11
Pl"1 .subject to it being changed over time in accordance with the
other provisions herein. The aggregate or s~m of all partnership
intere.sts of all GPs ia referred to as the 11 AGIU (aggregate general
partnership interest}. The general partnership interest of a GP ·is
referred to as IIGPI 11 •
Section 3.2 Limited Partners.
There shall be three (3) classes of "limited partners"
(collect:tvely ~ the "LPs 11 and each 1 an \\LP 11 ) • as fo1.1ows! Class 'A,
Class B, and Class c. The initial Class A LPs and Class S LPa are
identified on Exhibit "A" under the caption "Limited PartnerS 11 •
The Class C limited partnership inte:rests shown on Exhibit 11 1\/1 are
initially reserved for future investors and shall be issued to such
investors in the discretion of the GP_ · '
Except as otherwise provided in this Agreement, each LP have a
partnership interest and shall be allocated profits and losses in
the percentage set forth opposite his, her or its respective name
under the column labeled 11 PP 1 subject to it being changed over
time in accoroance with the other.provisions herein. The aggregate
or sum of al~ partnershi.p interests of all Lf's is referred to as
the 11 111..! '1 (aggregate limited partnership interest) . ·A LP Pl is
referred to as a "LPI".
Defendants p. 5
DEF000317
44
Section 3.3 Voting.
Each partner shall have , the number o-r--votes--equ.a.l---to_tbe_ _ __
percentage of their respective Pl (partnerahip interest{e)), The
agg:regate or sum of all AGI and ALI shall be I'API 11 (aggregate
partnership interest) .There shall be no difference in votirig rights
among the different classes of LP!.
Section 3.4 Changes.
Any changes,,aclditions or deletions to the list of GPs o:r LPs
or their partnership interests made and agreed upon hereafter from
that listed on Exhibit 11 A11 shall be .recorded on Exhibit ncu ·and
initialed by all GPs and any LPs whose PI nas so changed.
ARTICLE IV
CAPITAL CONTRIBUTIONS
,. , Section 4.1 Capital Contributions.
Each partner shall make (if he has· not already made the
contribution of capital to the partnership} contributions of cash 1
services, property or obligations set forth opposite his or her
name and initials on Exhibit nJ.\. 11 or ncu (if any shall be noted on
ucu} •
Sectio~ 4.2 Return of Capital.
Except as otherwise expressly provided for elsewhere herein,
no partner shall be entitled to a r~fund or return of any capital
contributions nor to withdraw any part of his capital account nor
to receive any distributions of any kind, including of profits 1
frQm the partnership, except upon termination of the partnership
which shall mean a complete winding up of , the partnership anC!
following· the filing of a certificate of cancellation. Such a
termination or winding up does not include a dissolution which
involves only a change in the relationship of the partners where
the partnership continues (referred to in the Act and he~e aa a
11
reconstitution 11 ) . Mo):"eover, except as provided to the contrary
herein or by the law, the general -partner shall not be personally
liable for the return of contributions of oi additions to the
capital of any limited partner 1 or any portion thereof, it being
expressly understood that any such return shall be made solely from
partnership assets. The GP~ shall decide for each partner whether
he may receive property or oash in exchange of all or part .of his
Defendants p. e·
45
DEF000318
partnership interest if and when auch e:x.chang_e may be permitted by
the other provisions herein.
Section 4. 3 Loans ..
---··H······-··· The ~artnership shall be authorized to loan to and borrow
money from any partner or oEner intlivi'dua1·-or-ent-i-ty~e~on.11 .)- •.
The amount of any loan made by or to a partner shall not: be
considered an increase or decrease in such partner 1 a capital
contribution or account or otherwise a contribution to the
partnership,nor shall the making of any such loan affect the profit
and loss ratios. The general partner may, but shall not be
obligated toj make loans to the partnership so that the partnership
may pay its obligations timely. obligations incluoe debts for
which the partnership has no personal liability but to which its
property m~y be subject.
ARTICLE V
CA-PITAL ACCOUNTS; INTEREST; WITBDRAt>1AL
Section 5.l Capital Accounts.
A capital account shall be estimated for each partner and
shall. be maintained according to the Act and income tax accounting
principles, including 1 for exampleJ (a) increasing or crediting a
partner 1 s capital account _with the amount of his capital
contribution when made {b) crediting or reducing {debiting), as the
case may be 1 a partner 1 s ca);:dtal account \artner.
{d} No partner (GP or LP) may withdraw and receive the fair
value of his partnership interests as of the date of his withdrawal
until the earlier of (a} the date that the partnership liquidates
and winds up its affairs pursuant to Section 8.04 of the Act or (b)
the date agreed upon by all general partners in the partnership
{excluding/ if applicable, the withdrawing partner)r which
agreement is memorialized in writing, signed by all such general
partners and made at their sole discretion.
(e} Except where otherwise required by applicable law, an
assignee or attempted assignee of a partn~r shall not be entitled
to receive distributions of the assignor or would-be assignor
partner unless and until all general partners in the partnership
(excluding the assignor if he were a general partner) have agreed
to such assignment and to permit such di.stributions or withdrawals
and evidence such agreement in writing, signed by all of them, made
at their ~ole discretion.
Section 8.5 Redemption of ?artnership Interest.
(a) The partnership interests of all limited partners are
subject to redemption by the partnership at the election of the
16
Defendants p. 18
57
DEF000330
general partne~s. In the event the general partners make such an,
election~ the general partners shall provide the limited partner
whose partnership interest is to be redeemed (the '\Redeemed
Partner"} with at least sixty {60) days' prior written notice of
the redemption.
tr)-The--purehase....p-~i-ce of the Redeemed Partner's LPI shall
equal the Ralance of the Redeemed Partner1 s capi~account
established under Section 5.l hereof, determined as of the end of
the calendar month immediately preceding the month in which the
closing of the redemption transaction takes place,
ARTlCLE IX
DXSPOSITION OF GENERAL PARTNER'S INTEREST
Section 9,1 Voluntary Disposition or Encumbrance; Removal,
(a} No general partner may assign or transfer (i.e. sellt
transfers assign 1 exchange 1 dispose of, pledge, hypothecate,
encumber or allow to be att.ached) all or any part of his interest
in the partnership, or withdraw or resign as general partner, no~
shall a new or substitute general partner be admitted to the
partnership, without the prior written consent of all of the other
partners (general partners and limited partners), Providedr
however 1 a sole remaining general partner shall have the right to
withdraw as a general partner only i f he notifies the limited
partners of his desire to admit a substitute general partner and
the unanimous written consent of the limited partners to such
admission is granted and the new general partner is admitted to the
partnership prior to the time of the withdrawal of the prior
general partner. AnY attempted unpermitted assignment or transfer
of all or part of any partnership interest shall be automatically
void and ineffective, except to the extent otherwise required by
law. Upon the granting of unanimous written consent of all of the
partners, additional or substitute general partners may be
designated with such share of the then existing transferring
general partners' aggregate interest as the general partner(s) and
designated additional or substitute general partners may agree
upon. Without limitation to the generality of the.foregoing, any
general partner may 1 at any time without obtaining any prior
written consent 1 convert all but one percent (1%) of his general
partnership interest to a limited partnership interest. Any
permittect assignee or transferee· of a GP pursuant to all of.the
provisions herein shall become a general partner under this
Agreement with all of the rights and subj.ect to all of the
obligations of a general partner under this Agreement. No
substitution or change of general partners shall- eve-r cause a
termination/ liquidation or winding up of this partnership/ but
instead the partnership shall continue uninterrupted and shall be -
17
Defendants p. 1g
58
DEF000331
....
``--
reconstituted pursuant to the Act.
(b) Notwithstanding the other prov:tsJ.ons herein and without
limiting any other rights and remedies of any of the parties hereto
arising from any breach by a general partner of the provisions of
thi.s Agreemen\: 1 Lthe___ p~ovisions of Section
9. l (a} above by the general partner {11 breaching general partner 11 · ) - ; , - - - - -
or upon any attempted -unpermitted assignment, transfer or
attachment of any part of a general partner partnership interest
without the prior wr~tten consent signed by all other partners, the
partner status and partnership interest of such breaching general
partner or such status and interest of his assignee or creditor {if
such assignment~ transfer or attachment is ever permitted or is not
void) shall automatically become a limited partner and limited
partnership interest~ ~less a vote to accomplish this is required
by law~ in which case the percentage in inte:rest of the limited
partners required by law ``lect to deem such genexal partner as
having retired and ceased to be a general partner and his
partnership interest shall thereupon become a limited partnership
interest and the partnership shall continue uninterrupted and shall
be reconstituted pursuant to the Act·.
(c) Upon the written consent or affi:rmative vote of all
limited partners, a general partner may be removed if, immediately
prior to such removal{ a successor general partner is elected by
the limited partners owning ninety percent (90%) of the (then
outstanding) AL! and becomes a substitute general partner or more
than fifty percent (50%) of the ALl agree that no successor general
partner shall be elected,
(d.) Notwithstanding the prov~slons of Section 9.1\a), then
the existing general partners may, at any time, upon their
unanimous written consent, appoint a new general partner from the
. ranks of the then existing limited partners, if such appointee
shall artner. If, however, he
gives notice of his intent to no long~r be treated as Tax Partner
aa provided a~ove, a Tax Partner shall be designated as provided by
Section 623l(a} {7) of the Code. The Tax Partner shall keep all
other partners informed of all administrative and judicial
proceedings and any other matters which may come to the attention
of the Tax Partner in its capacity as Tax Partner and which may, in
the sole discretion of the ~ax Parttler, affect a partner 1 s tax
liability \'Jith respect to. partnership tax items·, by giving the
other partners notice thereof within a reasonable time after the
Tax Partner becomes informed of any such matter and in a reasonable
manner consistent with the regulations promulgated under Section
6223 (g) of the Code. The Tax Partner may take any action
contemplated by Sections 6224 through 6232 of the Code if it has
fi~st giyen the other partners notice of the contemplated action
and has not received within twenty (20) days after such notice is
sent, notice of the disapproval of such contemplated action by
partners owning in the aggregate at least fifty-one percent (51%)
of the partnership aggregate interests owned by all partners. This
provision is not intended to authori~e the Tax Partner to take any
action which is left to the determination of an inoividual partner
under Sections 6222 through 6232 of the Code. The general partners
shall insure that there is always a Tax Partner who is aware that
he has such status and the GPs may 1 if a Tax Partner resigns such
position, by majority vote of GPX, appoint a Tax Partner
replacement.
section 11.5 Annual Meeting to Review Financial Statements.
Not less than once a year 1 and as soon as possible after
completion of the financial statements; a meeting shall be held for
all general and limited partners to attend, The GPs shall review
and discuss the financial statement at that meeting and report to
the limited partners the financial condition of the partnership.
All annual meetings shall be held at a place agreed upon by the
general partners 1 or if not 1 then at the principal place of
23
.Defendants p. 25
DEF000337
64
business of the partnership on or before the third Tuesday in April
of each year and all partners shall receive prior notice of such
meeting dates and places.
Section 11,6 Interim Financial Statements.
----··----···- ~-----
On written request, any limited partner shill be ent·ttred-t-o---_____,____
copies of any interim financial statements prepared for· the
partnership which exiat,
.ARTICLE XII
:POWER OF ATTORNEY
Section 12.1 Power of Attorney.
The GPs shall from time to time elect one GP to act as
attorney-in-fact {AIF). Without limiting the generality and effect
of any other provisions herein appointing a general partner as
attorney in fact for all the limited partners under this Agreement
in connection \'lith the doing of certain acts and the filing of
certain papers 1 each limited partner hereunder hereby makes,
constitutes and appoints~ reserving full power of substitution and
revocation, the general partner \'lho is the .AIF (or if none/ the
general partner v1ith the largest partnership interest. in this
partnership or if more than one of them, the oldest), his true and
lawful attorney in fact, empowered to act alone, and in the name1
place and stead of each such limited partner, to make, execute,
sign, acknowledge and swear to all instruments and file and record
all documents requisite to carrying out the intention and purpose
of this Agreement, including but not limited to the following:
{a) All business certificates and necessary Certificates of
Limited Partnership (if any) and amendments thereto from time to
time as required by the Act or this Agreement;
(b) All documents which may be required to effect the
dissolution of the partnership which is permitted herein and any
permitted cancellation of its Certificate of Limited Partnership,
as amended from time to time;
(c} All fictitious or assumed name certificates required or
permitted to be file on behalf -of the ~artnership;
(d) All such other instruments, documents and certificates
which may from time to time be required by the laws of the State of
Texas, the United States of America, or any other jurisdiction in
which the .partnexship shall determine to do business, or any
political subdivision or agency thereof, to effectuate, implement 1
continue and defend the valid and subsisting existence of the
Defendants p. 26
65
DEF000338
Partnership as a limited partnership;
{e) All instruments and.documents necessary to effectuate or
act upon any reallocation of a defaulting partner 1 s partnership
interest;
(:f} . 'l'o reflect any amendments._duly made to the--Ag:reeme!'!t; an.,...d--. - - - -
{g/ To reflect the admission to the partnership of any
substituted partner or the withdrawal of any partner, i~ the manner
prescribed in this ~greement.
All such powers of attorney shall survive the incompetency,
incapacity, bankruptcy, retirement or withdrawal of any limited
partner granting the same and the assignment by any such granting
partne~ of the whole or any part of his interest hereunder.
Each limited partner authorizes the API to take any further
action which such AFI shall consider necessary or advisable to be
done regarding the foregoing as fully as such limited partner might
or could do if personally present and hereby ~atifies and confirms
all that such AF! shall lawfully do or cause to be done by virtue
hereof.
Section 12.2 Amendments.
(a} Each limited partner hereby authorizes and empowers the
general partners to amend this Agreement from time to time by
agreement of GPs owning at least ninety {90%) percent of the AGI,
provided that without the prior written consent of all of the
limited partners 1 no such amendment by the ,general partners shal``
{i) enlarge the rights or reduce the obligations or
duties of the general partners;
(ii) affect the rights or restrictions regarding the
assignability of partnership interests;
{iii} modify the term of the partnership or amend this
Section 12.2;
. (iv) reduce the rights or interests, or ·enlarge the
obligations, of the limited partners; or
(v) add or delete any GP unless permitted by the other
provisions herein.
(b) The general partner shall promptly notify the limited
partners of any such amendments.
25
Defendants p. 27
DEF000339
66
(c)Except where specifically provided elsewhere herein or by
applicable law and except with respect to vested rights
of the partners, this Partnership Agreement may be
amended at any time by a vote of partners owning more
than fifty percent (50%} of each of the ~GI and ALI. A
-------------------+``ny_a~dment s~gped by all partners voting in
favor of such amendment shall be prompt.:Ly·- mailed or--~---·­
. delivered to each partner at his or her last known
address.
ARTICLE XIII
GENERAL PROVISIONS
Section 13.1 Recipient of Distributions and Payments,
All distributions and payments of cash or property to be made
pursuant to the provisions of this Agreement shall be made directly
to the part;ies l'lho are entitled hereto at their respective
addresses indicated on Exhibits uAn and ncu or at such other
address as $hall have been set forth in a notice sent·pursuanc to
the provisions of Section 13,2.
Section 13 • 2 Communicat-ions and Notice.
E~cept as otherwise expressly provided in this Agreement/ any
offer, acceptance, election, approval, consent, objection,
certification, reguest, waiver, notice or other document required
or permitted to be made or given pursuant to any provisions of this
Agreement, shall be deemed duly made or given 1 as the case may be,
if in writing 1 signed by or one behalf of the person making or
giving . the same 1 and shall be deemed completed when eithe;c
personally delivered (with receipt acknowledged by the recipient)
or two {2) days after deposited in the United States mail, first
class, postage prepaid/ addressed to .the person or persons to whom
such offer, acceptance 1 election, approval, consent, certification,
required, waiver or notice is to be made or given at their
respective addreg:ses as indicated on Exhibit 11 .A 11 and, in the case
of the Partnership, at the office of the partnership specified in
Exhibit 11 Bu of this Agreement, or 1 in any case 1 at such other
address as shall have been set forth in a notice sent pursuant to
the provisions of this Section 13.2.
Section 13.3 Entil:e Agreement; Applicable Law; Effect.
This document contains the entire agreement by and among the
parties and supereedes any prior understandings and agreements
among them respecting the matters provided for herein. This
agreement shall be construed, enforced. and governed in conformity
with the la~tlS of the State of Texas 1 without giving effect to
Defendants p. 28
67
DEF00034Q
{
principles of conflicts of 1aw 1 and shall be binding upon the
parties hereto/ their sucoessors 1 heirs, devisees~ permitted
assigns, legal representatives, executors and administrators but
shall not be deemed for the benefit of creditoxs or any other
person.
Section 13 .. 4 Modificationi v7aiver or Termination.
Except as otherwise expressly provided in this Agreement, no
modification, waiver or tet'mination of thia·Agr~ement, or any P?rt
hereof, shall be effective unless made in writing signed by l:he
party or parties sought to be bound thereby, and no failure to
pursue or elect any remedy shall constitute a waiver of any default
under or breach of any provision of this Agreement 1 nor shall any
waiver of any default under or breach of any provision of this
Agreement b.e deemed to be a waiver of any other s·ubsequent similar
or different default under or breach of such or any other provision
of or any election or remedies available in connection therewith,
Receipt by any party of any money or other consideration due under
this Agreement 1 with or without knowledge of any breach or default,
shall not constitute a waiver of such breach or default or of any
provision of this Agreement.
Section 13,5 Counterparts.
This Agreement may he executed in one or more counterparts
and, notwithstanding that all of the parties did not execute the
same counterpart, each of the counterparts shall, for all purposes,
be deemed to be an origina·l so long as they all sign at lea.st. one
copy or a signature page, and all of such counterparts shall
constitute one and the same instrument binding on all of the
parties het'eto, Limited· partners may become parties to this
Agreement by executing and delivering to the general partner a
uaignature page 11 hereto in form approved and signed by the general
partner.
Section 13.6 Separability.
Each provision of this Agreement shall be considered separable
and (a) if for any reason any provision (clause·, 'lrlord 1 sentence or
portion of a sentence) or provisions herein are determined to be
invalid and contra:ty to any existing or future 1aw 1 such inval;i..dity
shall not impair the operation of or affect those portion of this
Agreement which are valid, and (b) if for any reason any provision
or pxovisions of this Agreement would subject the limited partners
to any personal liability for the obligations of the partnership
under the laws of the State of Texas or any other 1aws 1 as the same
may no'll or hereafter exist 1 such provision or provisions shall be
deemed void and of no effect.
27
Defendants p .. 29
DEF000341
68
Section 13.7 Article and Section Headings.
Article and section titles or capt;.ions contained in this
Agreement are inserted only as a matter of convenienc·e and for
------~r~e~f;_,;e;_:r;,.e~nci;r;·-'--and~shal-1--not-be- . .constxp.li:lHTED PAR.TNER EXECUTION PAGE
NAME OF LIMITED PARTNER: Aman Jafar
Aman Jafar
Signature of Spouse {if applicable):
Date of Execution: __~/~1_-~0~?_``~-----
35
Defendants p. 37
DEF000349
76
LIMITED PARTNER EXECUTION PAGE
NAME OF LIMITED P~TNER: Janet Montagne
of Limited Partner:
Janet
Signature of Spouse {if applicable} :
Date of Execution: /(:?Jc; ·--'1)5
36
, Defendants p. 38
DEF000350
77
LIMITEP PJ4~TNER EXECUTION PAGE
NAME OF LIMITED PARTNER: Joe Royall Chapman
Signature of Limited Partner:
~&<---"``
Joe ~all Chapman'-.::
. Signature of Spouse (if applicable}:
~c~ =
Date of Execution: __ ~1``~--~-r~;j-~-~------
37
Defendants p. 39
DEF000351
78
LIMITED PARTNER .EXECUTION PAGE
NAME OF LIMITED PARTNER: Sandeep Patel
Signature of Spouse (if applicable}:
Date of Execution:
38
Defendants p. 40
DEFOOQ352
79
LIM!TEO PARTNER EXECUTION PAGE
NAME OF LIMITED PARTNER: Allen David Ayres
Signature o.f· Spouse (if applicable) :
Date of Execution! ll- c:l( • D\
---=------------
39
Defendants p. 41
DEF000353
80
LlMlTED PARTNER EXECUTION PAGE
NAME OF LIMITED PARTNER: Triptesh Chaudhury
Signature of Limited Partner~
.Tripg~
Signature of Spouse (if applicable) ~
40
Defendants p. 42
81
DEF000354
LIMITED PARTNER EXECUTION PAGE
NAME OF L!MlTED PARTNER: Anwar Family Partners, Ltd.
General Partner
Signature o~ Spouse (if applicable}:
Not applicable.
Date of Execution:~_/l+``~+r~-6~--~----
41
Defendants p. 43
82
DEF000355
BXHIBIT "A.11 CONTINtrED
INITIALS LIMITED PARTNERS
Name Contribution
to total PI
Class A Limited Partners {cont 1 d}:
sandeep Patel
12802 Aspen Terrace
Cypress 1 TX 77433 3.0000%
Allen David Ayre~
2501 North Street
Beaumont 1 TX 77702 3.0000%
~nwa:rFamily Partners. Ltd.
3850 Champions Dr.
Beaumont/ TX 7770? $ 7 1 832.84 7.8330%
~ B Limited .Partners:
Arfeen Properties~ L.P.
7683 Cobblestone Terrace
~umberton 1 TX 77657 4.1670%
Te~as Realms! Ltd.
3840 Champions Dr.
Beaumont, TX 77107 $ 49,992,00 4.1660%
Aman Jafar
1323 Meadowlark Lane
Sugarland 1 TX 7?4?8 $ 49,992.00 4.1660%
Triptesh chaudhury
P.O. Box 2652
Port Arthur, TX 77643 $ 50,004.00 4.1670%
Defendants p. 44
83
DEF000356
INITIALS GENERAL PARTNER
Name contribution Percentage
to total PI
Harbor Hospice Managers 1 L.L.C.
4010 College Street
Suite 100
Beaumont, Texas ?7707 $1~000.00 1.00%
INITlA~S LIMITED PARtNERS
Name Contribu'tion Percentage
&·Address pf Capital & Interest
LPI %
to total PI
Class A Limited Partners:
Arfeen Properties, L.P.
~ 7683 Cobblestone Terrace
~ ~umberton, TX 77657 23,5000%
Texas Realms 1 Ltd.
3840 Champions Dr.
Beaumont, TX 77707 $ 7,833.43 7.8335%
Aman Jafar
1323 Meadowlark ~ane
Sugar1and 1 TX 77478 $ 7,833.43 7.8335%
Janet Montagne
2230 Chasse Bend
orange 1 T:X. 77632 3,0000%
Joe Royall Chapman
7880 Lantana
Beaumont, TX 77713 $ 3,000.15 3.0000%
Defendants p. 45
DEF000357
84
LIM!TED PARTNER EXECUTlON PAG$
NAMB OF LIMITED PARTNER: Suleman Lalani
Signature of Limited Partner:
Suleman Lalan~
Signature of SpQUSe (if applicable) =
Pate of Execution: _ ____.['-'-lq~1+1lf-"o-'-L_.__
42
Defendan~ p. 46
85
DEFOOQ358
EXHIBIT "An CONTINUED
INITIALS LIMITED PARTNERS
Class B Limited Partners (cont 1 d);
A.n\