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Filed 11 January 31 P6:47 Chris Daniel - District Clerk Harris County ED101J016158617 By: Furshilla McGee
2011-06555 No. ______________ DAVID WAYNE Plaintiff
§ § § § § § § § § § § § §
V. JERRY M. RICKY THE FAMILY LIMITED PARTNERSHIP, CITIES AFTER HOURS CLINIC, P.A., STAR EVALUATIONS, INC., and PAIN CARE & REHAB CENTER, P.A., Defendants
IN THE DISTRICT COURT HARRIS COUNTY, TEXAS
113th JUDICIAL DISTRICT _____
Plaintiff’s Original Petition, Requests for Disclosure, Requests for Admissions, Interrogatories and Requests for Production TO THE HONORABLE JUDGE OF SAID COURT:
I. Nature of this Action 1.
This is a shareholder oppression and breach of fiduciary duties action arising out
of the squeeze-out by the majority owners of a minority owner of a Texas corporation and a Texas general partnership, both of which are involved in a Harris County medical practice. Plaintiff seeks a writ of mandamus to enforce his statutory and common law inspection rights and seeks equitable relief from the Court as a result of Defendants’ pattern of oppressive conduct.
Plaintiff further seeks damages from Defendants for various torts suffered at
Defendants’ hands in connection with his ownership interest in P.A. and San
Cities After Hours Clinic,
Family Medicine Clinic, LLP and an accounting and other equitable
relief relating to the dissolution of those entities.
II. Discovery Control Plan 2.
Plaintiff intends to conduct discovery under Level 3 of Texas Rules of Civil 1
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Procedure 190.
III. Parties 3.
Plaintiff, David Wayne
(hereinafter “Plaintiff”), is an individual who
resides in Pasadena, Harris County, Texas. All pleas, pleadings, motions, discovery, and other matters related in whole or in part to this case should be served upon Plaintiff’s attorney, Mr. Eric Fryar, with The Fryar Law Firm, P.C., 1001 Texas Avenue, Suite 1400, Houston, TX 77002, Office: 281-715-6396, Facsimile: 281-715-6397. 4.
Defendant, Jerry M.
is a natural person residing in Harris County,
Texas and may be served at his place of business, 77536, at his residence in Deer Park,
W. San
Deer Park, Texas
Lane, Deer Park, Texas 77536, or where he
may be found. 5.
Defendant, Ricky
is a natural person residing in Harris County, Texas
and may be served at either of his places of business, 77536, or at
W. San
Deer Park, Texas
Katy Freeway, Houston, Texas 77007, at his residence in Houston,
Street, Houston, Texas 77007, or where he may be found. 6.
Defendant,
Family Limited Partnership, and/or any predecessors or
successors in interest (hereinafter “
FLP”), is a limited Partnership organized under the
laws of the State of Texas whose principal place of business is in Harris County, Texas. FLP can be served with citation and/or process on its registered agent for service of process, which is Jerry M. 7.
Defendant,
interest (hereinafter “
Lane, Deer Park, Texas 77536. Star Evaluations, Inc., and/or any predecessors or successors in Star”), is a corporation organized under the laws of the State of Texas
whose principal place of business is in Harris County, Texas.
Star can be served with
citation and/or process on its registered agent for service of process, which is Jerry M. 2 www.FryarLawFirm.com
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Lane, Deer Park, Texas 77536, or upon any corporate officer found at its corporate offices at 8.
W. San
Deer Park, Texas 77536.
Defendant,
Pain Care & Rehab Center, P.A., and/or any predecessors or
successors in interest (hereinafter “
is a professional association organized under the
laws of the State of Texas whose principal place of business is in Harris County, Texas. can be served with citation and/or process on its registered agent for service of process, which is CT Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas, Texas 77201-4234. 9.
Defendant,
Cities After Hours Clinic, P.A., and/or any predecessors or
successors in interest (hereinafter “
Cities”), is a professional association organized under the
laws of the State of Texas whose principal place of business is in Harris County, Texas. Cities can be served with citation and/or process on its registered agent for service of process, which is Jerry M.
Lane, Deer Park, Texas 77536, or upon any
corporate officer found at that location, or upon any corporate officer found at
Katy
Freeway, Houston, Texas 77007.
IV. Jurisdiction & Venue 10.
Jurisdiction is proper pursuant to Article 5, § 8 of the Texas Constitution. The
amount in controversy exceeds the minimum jurisdictional limits of this Court. 11.
Venue is proper in Harris County, Texas, as all or a substantial part of the events
or omissions giving rise to this claim occurred in Harris County, Texas. TEX. CIV. PRAC. & REM. CODE §15.002(a)(1). In addition, defendants After Hours Clinic, P.A.,
Family Limited Partnership,
Star Evaluations, Inc.,
Cities
Pain Care & Rehab Center,
P.A.’s principal places of business are all in Harris County, Texas. TEX. CIV. PRAC. & REM. CODE §15.002(a)(3).
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V. Verified Petition for Writ of Mandamus 12.
Plaintiff is a one-third partner in San
Family Medicine Clinic, LLP.
(hereinafter the “Partnership”), which is governed by the Restated and Amended Agreement of Partnership of San
Family Medicine Clinic, L.L.P. (hereinafter the “Partnership
Agreement”), attached hereto as Exhibit A. Plaintiff is also a 50 percent shareholder in Cities as evidenced by Form 1120 federal income tax return attached hereto as Exhibit B, and by the affirmative representations of the other owners, Ricky counsel for the
and Jerry
Legal
has represented that no stock ledger for the professional association
exists nor is one maintained. 13.
In November 2009, Plaintiff demanded and received certain financial records
pertaining to the Partnership, including Quickbooks data files. On March 18, 2010, Plaintiff through his counsel, made a written demand on Brian
counsel for Ricky and Jerry
pointing out questionable self-dealing transactions and numerous problems with the financial records maintained by the
and making specific requests for Partnership
records relating to the deficiencies. In the same letter, Plaintiff requested to be provided access to the stock ledger and all financial records for
Cities. A true and correct copy is attached
hereto as Exhibit C. 14.
Receiving no response, Plaintiff, through counsel, e-mailed Brian
on April
30, 2010, and renewed Plaintiff’s inspection demand; a true and correct copy is attached hereto as Exhibit D. 15.
Defendant never made a formal response to the written demand for
corporate records, but on May 28, 2010, Defendant
Cities
Cities, through counsel Brian
sent a letter marked FOR SETTLEMENT PURPOSES ONLY – NOT ADMISSIBLE FOR ANY REASON, which offered access to the
Cities records if Plaintiff would “provide us with a 4
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written request detailing the specific documents you wish to review,” plainly ignoring that Plaintiff had already made a valid inspection demand. 16.
Plaintiff, through counsel, renewed his inspection demand in an e-mail to Brian
dated July 16, 2010; a true and correct copy is attached hereto as Exhibit E. Only then was Plaintiff informed that a part of the accounting records for
Cities were contained in a
password-protected computer file mislabeled as “
which had been provided to Plaintiff
with the original Partnership records. Defendant
Cities supplied the password on July 21,
2010, and counsel Brian records for
stated that the balance of the bookkeeping and accounting
Cities was in the possession of
& Co., P.C., the corporation’s
accountant 17.
On July 23, 2010, Plaintiff, through counsel, made simultaneous written
inspection demands upon the apparent custodians of the remaining CPA, P.C. and
& Co., P.C. (“
Cities records, it appearing that
& Co., P.C. had by that time become defunct or was no longer in use as an entity doing business in Texas; a true and correct copy of each is attached hereto as Exhibit F and G, respectively. 18.
Defendant
in an e-mail dated August 3, 2010, asserted to Plaintiff’s
counsel that Arjunani Hasan had exclusive possession and custody of the requested records. Further inquiries to Arjunani Hasan resulted in a response from “Wayne
Jr., CPA, Tax
Manager” who stated in an e-mail dated September 17, 2010, that “[w]e have requested an authorization of release for tax workpapers many different times from Elaine
We
have not been able to have a response either by e-mail or phone call messages.” A true and correct copy of said e-mail is attached hereto as Exhibit H. 19.
Thereafter, on October 13, 2010, counsel for Plaintiff contacted Mr.
by
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phone in an effort to persuade him to reconsider. Mr.
stated that if he received an e-mail or
other written authorization from the attorney for the
then he would be happy to
provide any and all financial information in his possession, although he denied that was now doing the accounting for to Brian
that day that Mr.
Cites. Counsel for Plaintiff requested in an e-mail provide written authorization to Mr.
for the
release of financial records and for further clarification on who was then doing the accounting for
Cities. On October 20, 2010, Mr.
forwarded to Counsel for Plaintiff what he
represented as tax work papers for 2007 and 2008, but nothing more recent than that. Contrary to the representations by Brian custodians of
Mr.
stated that the accountants had never been the
Cities financial records and only had their own workpapers from 2007 and
2008. An e-mail to Brian
demanding an up to date accounting for
Cities produced no
response whatsoever. A true and correct copy of said e-mail is attached hereto as Exhibit I. To date, the 20.
have not produced an up to date accounting for
Cities.
Based on the foregoing, Defendants have succeeded in stonewalling and delaying
Plaintiff’s access to and inspection of Partnership records and corporate records for almost a year, resulting in substantial expense and attorneys’ time. To date, Defendants have failed to permit access of Partnership records including the following: all books and records of account and Quickbooks data for the period December 2009 to present; CMEDS billing software and data. To date, Defendants have failed to permit access and inspection of
Cities corporate
records including the following: all books and records of account and Quickbooks data for the period December 2009 to present; CMEDS billing software and data; all bank account records and statements; invoices, deposits, and billing records; by-laws of the association, minutes of meetings, and any and all other corporate documents and records. 21.
Pursuant to Texas common law, to §152.212 of the Texas Business Organizations 6
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Code (hereinafter “BOC”) and to §5.3 of the Partnership Agreement, Defendants have a duty to disclose and Plaintiff has a right to inspect all the Partnership records he has demanded. Defendants have violated Plaintiff’s common law, statutory, and contract rights. Therefore, pursuant to BOC §152.211, Plaintiff is entitled to legal and equitable relief to enforce his Partnership rights, including a writ of mandamus, or in the alternative a permanent injunction, ordering Defendants to make the requested Partnership records available. Plaintiff is further entitled to an award of attorneys’ fees and costs incurred to enforce his rights to inspect the Partnership records pursuant to §12.11 of the Partnership Agreement and §38.001 of the Texas Civil Practice and Remedies Code. 22.
Pursuant to Texas common law and to §3.151, §3.152, §21.218(b) and §21.218(c)
of the Texas Business Organizations Code, Plaintiff has a right to access and inspection of the Cities records that he has requested. Plaintiff owns more than 5% of the common stock of Cities and has been a stockholder for more than six months. Plaintiff made written requests and stated a proper purpose. Plaintiff has complied fully with the procedures specified in §21.218(b). Therefore, Plaintiff is entitled to a writ of mandamus, or in the alternative a permanent injunction, from this Court compelling Tri -Cities and its officers and directors to permit Plaintiff’s inspection of corporate records immediately. 23.
Furthermore, pursuant to §21.222, Plaintiff is entitled to recover any cost or
expense, including attorney’s fees, incurred in enforcing his rights. Plaintiff has been forced to retain an attorney and has and will continue to incur substantial costs and attorneys’ fees in enforcing his rights. 24.
All conditions precedent necessary for Plaintiff to obtain the requested relief have
been performed or have occurred. Plaintiff is without adequate remedy at law.
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VI. Petition for Damages and Equitable Relief A. Facts 1.
Formation of the Partnership and
Cities
25.
On September 8, 1989, Plaintiff and Dr. Jerry M.
partnership agreement for the purpose of practicing medicine for profit.
entered into a That partnership
agreement was later amended on January 1, 1995, in a Restated and Amended Agreement of Partnership of San
Family Medicine Clinic, L.L.P. (hereinafter the “Partnership
Agreement”), attached hereto as Exhibit A and incorporated herein by reference, and a filing of a limited liability partnership was made with the Texas Secretary of State around the same time frame. The practice was originally located in Deer Park, Texas and satellite offices were later opened in Baytown, Texas and Plaintiff and Dr. Jerry
Katy Freeway in Houston. From the beginning, both practiced occupational medicine, and the Partnership offered
pre-employment and annual physical exams, evaluation and care of work-related injuries, drug screens, PFTs, audiometry, respiratory fit testing, and company doctor services as well as family practice medicine. At some point the practice adopted the trade name “
and began to
use it in conjunction with the practice, although it is not a registered assumed name of the Partnership. Elaine
wife of Dr. Jerry
has, almost from the beginning,
served as the bookkeeper and business manager for the Partnership and continues to do so at present. 26.
Throughout the history of the Partnership, Dr. Jerry
managing partner. Dr. Jerry
has acted as the
and his wife Elaine have exercised complete control over
the Partnership’s finances and record-keeping. 27.
The Partnership later purchased trucks, trailers and medical equipment as a way to 8
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provide on-site occupational medical care to corporate clients locally and in other states. When performing these services, the Partnership did business under the name “
Mobile.” In
addition, the Partnership was able to secure contracts to provide medical services to companies that had won bids to provide contractor services to the U.S. military overseas, including KBR, LSI-EG&G and others. Partnership employees screened, examined, tested, immunized and cleared individuals working for these companies to travel and work abroad in areas with limited access to medical care, such as Iraq and Afghanistan. When performing these services, the Partnership did business under the name “ 28.
International.”
Cities was formed on June 24, 1998. Plaintiff and Dr. Jerry
were
the initial shareholders. The Plaintiff and Dr. Jerry
also practiced medicine for this
entity under the name “
Industrial Clinic of Houston.”
2. 29.
Industrial Clinic” or “
Star Evaluations Separate from the Partnership, and as another facet of their respective medical
practices, Plaintiff and Dr. Jerry
performed workmen’s compensation impairment
ratings for the Texas Department of Insurance – Workers’ Compensation Division through Churchill Evaluation Centers. This specific type of work was done individually, outside the Partnership, by mutual agreement of the partners. Over time, Dr. Jerry
expressed
dissatisfaction regarding his rate of compensation for this service and proposed starting a competing business. At some point in 2004, Dr. Jerry
decided to form
Star
Evaluations, Inc. (registered with the Texas Secretary of State on August 30, 2004) solely in order to do impairment ratings in competition with Churchill Evaluation Centers and realize additional profit rather than continuing to do impairment ratings through Churchill Evaluation Centers. Dr. Jerry
offered to allow Plaintiff to become a part owner in the corporation,
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time did Plaintiff authorize or acquiesce in any decision to allow Partnership or
Star to compete with the
Cities, neither of which was involved in conducting impairment ratings at that
time or presently. In fact, Dr. Jerry
expressly represented that the purpose of
Star
was solely to do impairment ratings and that its business would remain limited to impairment ratings. Given the prior mutual agreement of the partners,
Star would not have competed
in the Partnership’s line of business or competed with the Partnership, if its business activities had been restricted to the express representations made by Dr. Jerry
3.
Admission of Ricky
30.
At some point in 2007, Dr. Ricky
partner of the Partnership and a shareholder in
Dr. Jerry
son, became a
Cities. Dr. Ricky
did not make a
capital contribution to the Partnership or pay the other two partners for his one-third interest in the Partnership, nor was the Partnership agreement amended to reflect his admission. information and belief, Dr. Ricky
also did not pay for or provide any monetary
consideration for his one-third ownership interest in that Dr. Ricky
On
Cities. At no time did Plaintiff agree
would be transferred any capital or existing equity already owned by
Plaintiff, and none of the Defendants ever disclosed to Plaintiff any intention to effect such a transfer. 31.
Subsequently, Plaintiff and Dr. Jerry
acquired real property in Deer
Park under the name of the Partnership, which is the current location of “San Medicine Clinic” and “
Industrial.” In 2009, another location in Groves, Texas was
purchased, upon information and belief, in the name of the trade name “
4.
Family
Cities. This location operates under
– Groves.”
Compete with the Partnership and
Cities
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32.
Over the years, the
attention on the business of Jerry
have focused more and more of their time and Star. This shift significantly harmed the Partnership, as Dr.
in particular deprived the Partnership of his services and income. Simultaneously,
the Defendants utilized Partnership assets and personnel for the benefit of Defendants greatly expanded the scope of impairment ratings so that
33. Ricky
Star’s line of business beyond merely
Star actually began to compete with the occupational medicine
practice of the Partnership and from the Partnership and
Star. The
Cities and to take clients and business opportunities away
Cities.
In addition, Plaintiff has recently discovered that Dr. Jerry have registered the assumed name “
and Dr.
International” for
Harris County and are billing clients that properly belong to the Partnership through
Star in Star
for both occupational medicine services and overseas medical screening. This usurpation of Partnership and corporate opportunities is a breach of Dr. Ricky fiduciary duties to the Partnership and to
and Dr. Jerry
Cities. In addition, the
operate their other business ventures out of the Partnership building and by using Partnership materials and resources without reimbursing the Partnership.
5.
Squeeze-Out of Plaintiff
34.
Over time, Dr. Ricky
and Dr. Jerry
practice until his only work for the Partnership or
began to restrict Plaintiff’s
Cities was working in the family practice
clinic in Deer Park. As part of that process, Dr. Jerry
and Dr. Ricky
purported to create an artificial partition or “Chinese Wall” of the Partnership into “ Industrial,” which handled only occupational medicine patients, and “San
Family
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formal separation of the Partnership into separate divisions. There is no segregation of funds, records or accounts. Plaintiff was restricted to the family medicine side, which was the less lucrative side. This despite the fact that Plaintiff has practiced occupational medicine his entire career and is well qualified to practice in this field. 35.
In 2004, 2006 and again in 2008, Defendants filed tax returns for the Partnership
and issued a K-1 to Plaintiff showing taxable income roughly twice the amount of distributions to Plaintiff.
Defendants have never accounted for the “phantom” income.
As a result,
Defendants saddled Plaintiff with a tax liability that he could not afford to pay. 36.
During the spring of 2009, Defendants abruptly stopped paying Plaintiff. Dr.
Jerry
and Dr. Ricky
represented to Plaintiff that because of the weakening
economy, business had slowed and the Partnership could no longer afford to pay Plaintiff his monthly draws. This caused a significant hardship to Plaintiff who was forced to tap into his retirement savings (causing another significant tax liability) to make ends meet and pay the mortgage for his personal residence. While the draws, they were being paid by Partnership and 37.
also purported to cease to taking
Star based on its business in competition with the
Cities.
Simultaneously, Dr. Jerry
proposed that the Partnership be split up so
that the doctors could go their separate ways. Plaintiff asked to review the books and records of the Partnership in order to determine what his Partnership interest was worth and in order to enter into negotiations armed with information. Several proposals have been made to Plaintiff— none of them fair or in good faith. 38.
On July 19, 2010, Dr. Jerry
called a meeting of the partners of the
Partnership and a meeting of the members of
Cities, to be held consecutively on July 19,
2010, for the purpose of considering and voting on a resolution to dissolve and wind up the 12 www.FryarLawFirm.com
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Partnership and
Cities. At the meetings, which, as it happened, were held simultaneously,
despite several material financial issues that were raised by the Plaintiff and Plaintiff’s expressed willingness to continue to attempt to resolve the issues and work toward an amicable resolution, Dr. Jerry
and Dr. Ricky
dissolve the Partnership and
voted for, and Plaintiff voted against, motions to
Cities, respectively. The resolution also appointed Dr. Jerry
as the liquidating partner who would formulate and circulate a written, formal plan of dissolution. Two days later, July 21, 2010, while Plaintiff was undergoing surgery and thus unable to intervene, the
closed the family medicine portion of the clinic and fired all
of the employees of the family medicine portion. In contrast, the industrial medicine portion of the clinic, where Dr. Jerry
and Dr. Ricky
practice, remained open to treat
patients and remained fully staffed. Plaintiff maintains that Dr. Jerry
and Dr. Ricky
voted to dissolve the Partnership in bad faith in an effort to wrongfully squeeze out Plaintiff and ratify their misappropriations and malfeasance regarding Partnership property, clients and funds.
6.
Financial Misconduct and Need for Accounting
39.
Even a cursory review of the accounting records of the Partnership thus far
available to the Plaintiff reveals that the bookkeeping and accounting for the Partnership is confused, disorganized, fails to account for significant amounts of missing funds and reveals that significant amounts of Partnership funds have been comingled with the funds of other entities or misappropriated by the Partnership, Dr. Jerry
or their affiliated entities. As the managing partner of the bears responsibility for maintaining accurate books and records
for the Partnership, particularly because he insisted on retaining sole responsibility for this task and delegated its execution to Elaine
In failing to properly perform the task, he bears 13
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full responsibility to account for any and all funds of the Partnership and to make up for any short falls or misappropriated or missing funds. 40.
Dr. Jerry
has a duty both as the managing partner and as the partner in
charge of winding up to render an accurate accounting of the partnership assets. Plaintiff concedes that there are personal expenses and payments made by the Partnership to all three of the partners which must be accounted for. However, the conduct of the Defendants to date constitutes little more than wholesale theft. 41.
A review of the limited accounting records for the Partnership that Plaintiff was
able to obtain revealed that Elaine
Dr. Jerry
and Dr. Ricky
in both
their individual capacities and in their capacities as officers and/or directors of the various entities they own, had misappropriated large sums of Partnership property and funds, used Partnership credit cards to purchase items for their personal benefit or to benefit entities in which the Plaintiff had no ownership interest. 42.
Elaine
caused “loans” to be made from the Partnership to the
FLP in the amount of $274,337.00. Upon information and belief, this amount has never been repaid to the Partnership. Another loan was made from the Partnership to “
in the
amount of $423,914.00, however, it is not clear which entity actually received this loan nor whether it was ever repaid. 43.
Furthermore, Plaintiff has learned that Elaine
took out an American
Express credit card in the name of the Partnership and on the Partnership credit. Dr. Jerry
Dr. Ricky
Elaine
and about a dozen Partnership employees are
all authorized users on the account. Plaintiff is not an authorized user on the account. Plaintiff has learned that the
have charged tens of thousands of dollars to the Partnership
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damage to the automobile owned by the
daughter which was damaged in a traffic
accident she allegedly caused. In addition, tens of thousands of dollars of charges are for nonPartnership expenses or for supplies for
Star,
FLP or
Upon
information and belief, all of these expenses have been paid for with Partnership funds. Also, Plaintiff has not benefitted from any reward points or airline miles accumulated as a result of these purchases, unlike the 44.
Plaintiff has also discovered that Elaine
or one of her authorized agents
has been collecting cash payments that patients of the Partnership pay for services (for example, office visit co-pays or cash paying patients) and depositing them in unknown bank accounts rather than depositing them in the Partnership bank account. This misappropriation amounts to over three hundred thousand dollars during the short time frame for which Plaintiff has been able to examine the records, and, upon information and belief, more likely amounts to more than five hundred thousand dollars. 45.
Upon information and belief, some of the trucks, trailers, and mobile medical
equipment with which the Partnership practiced, under the trade name “
Mobile,” were
sold on or about September 15, 2009, and the proceeds have been misappropriated by Dr. Jerry Dr. Ricky
and Elaine
for their own personal benefit and/or have
been misappropriated by one of the other entities they own or control. 46.
Throughout the time period preceding this suit in which the Plaintiff and the were attempting to negotiate regarding a split up of the Partnership, the
repeatedly represented that they had made cash infusions into the Partnership in order to make payroll. Upon information and belief, these cash infusions came not from the personal funds but rather from accounts under the name of
Star and were paid out of funds
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the
should not be able to claim a credit for any of these alleged cash infusions unless
and until they prove the source of said funds.
7.
Misconduct During Winding Up
47.
Defendants’ misconduct has continued unabated during the winding up of the
Partnership and the liquidation of expelling Dr.
Cities. Plaintiff has learned that the
after
immediately re-opened the family clinic, which belonged to the
Partnership, and it is now operating under the name “San
Family Medicine Clinic”
and is seeing patients that were previously treated exclusively by Dr. occupational practices of the Partnership and
Furthermore, the
Cities have continued without interruption as
well. This is a breach of fiduciary duty and a blatant misappropriation of the business goodwill Dr.
established with his patients and a tortious interference with his business relationship
with those patients. More than 90 days has passed since the majority of the partners voted to dissolve the Partnership, however, despite that vote, the Partnership is still operating as “San Family Medicine Clinic” and no steps whatsoever have been taken to dissolve the Partnership. Under Section 152.709 of the Texas Business Organizations Code, a Partnership that is continuing in business 90 days after the vote to dissolve is prima facie evidence of an agreement by the partners to continue in business. Because Plaintiff is being excluded from the Partnership building and premises and prevented from seeing his patients, the
have
effected a de facto expulsion of the Plaintiff from the Partnership, have misappropriated Plaintiff’s business goodwill and Partnership assets. 48.
In an effort to make sure that the cash receipts of the Partnership actually made it
to the bank, Plaintiff had instructed an employee of the Partnership to collect all cash payments and checks obtained during the day and from incoming mail and deposit such funds in the Partnership account personally. On July 22, 2010, Amanda
Plaintiff’s assistant, was in
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her private vehicle in the process of taking the checks and cash to the bank to be deposited in the Partnership account when she was called on her cell phone from the clinic by Becky an employee of the Partnership, informing her that Dr. Jerry police unless Ms.
was threatening to call the
returned to the clinic with the cash and checks. When Ms.
refused, Dr. Jerry
held Becky
at the clinic against her will, and stated in her
presence that Ms. Morse “is going down!” Ms. Morse perceived this as a threat. 49.
In addition, since the July 19th meeting, during which time Dr.
had been
unable to be at the clinic because he was recuperating from major surgery (a fact of which defendants were quite well aware), representatives of the
have been informing
patients of the San
went on vacation and
Family Medicine Clinic that: “Dr.
while there he called and said to shut down the clinic and he won’t be back” or “We don’t know what happened to Dr.
he just walked out one day and he hasn’t come back” or “Dr.
died” or “Dr.
had a nervous breakdown one Friday afternoon and he just
abandoned all of his patients.” In addition, one or more representatives of the informed patients that: “we will not be practicing medicine the way Dr.
did.”
Furthermore, these representatives have been giving out other physicians’ business cards to patients of the family medicine clinic when asked by patients for information on how to contact Dr.
This is an obvious attempt to take advantage of Dr.
blacken Dr.
unavoidable absence to
professional reputation, tortiously interfere with Dr.
doctor-patient
relationship and misappropriate the goodwill that he has been able to cultivate with his patients. 50.
Plans of Liquidation for the Partnership and for
Cities were sent to Plaintiff on
September 3, 2010 along with a schedule of assets and liabilities and Notices of Meeting setting a follow-up special meeting of the partners and shareholders for September 13, 2010. On September 13th, Revised Plans of Liquidation were circulated and, at the special meeting, Drs. 17 www.FryarLawFirm.com
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Jerry and Ricky
voted to adopt, and Dr.
voted not to adopt, the Revised Plans of
Liquidation. At the special meeting, Drs. Jerry and Ricky
promised to change the
phone message for the family medicine clinic to inform individuals calling the clinic that Dr. had now established a new practice at a new location along with contact information for Dr.
Despite this promise, the phone message was never changed. 51.
A review of the Revised Plans of Liquidation reveals that the schedule of assets
and liabilities fails to list as assets of the Partnership the clinic building, owned by the Partnership and currently with over $500,000 in equity, accounts receivable and cash on hand, and the purchase price of the Partnership’s ownership interest in Renaissance Physician’s Organization which, upon information and belief, was repurchased from the Partnership in October 2010. It appears that these omissions were intentionally made in an effort to undervalue the Partnership and deny Dr. 52.
his pro rata share of the ownership of the Partnership.
As a result of the foregoing, Plaintiff has been forced to bring this action and to
retain attorneys for that purpose. All conditions precedent to the relief sought herein have occurred or have been otherwise satisfied.
B. Causes of Action 1.
Breach of Partnership Duties
53.
By the acts alleged herein, Dr. Jerry
and Dr. Ricky
have
breached fiduciary duties of loyalty, care and good faith owed directly to Plaintiff as partners of the Partnership by acting in bad faith and for the purpose of benefiting themselves and harming Plaintiff by misappropriating Partnership property, clients and funds, by usurping Partnership opportunities, by failing to keep and maintain accurate and reliable books and accounting records, and by wrongfully and in bad faith pretending to “dissolve” the Partnership in order to
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effect a de facto expulsion of Plaintiff from the Partnership, and by interfering with Plaintiff’s rights to Partnership information and records. These actions violate duties imposed by statute and common law and constitute a breach of the implied or express terms of the Partnership Agreement. Plaintiff is entitled to recover his actual damages for this breach of fiduciary duties and further equitable relief including an accounting, disgorgement, constructive trust, and injunction. Because Dr. Jerry
and Dr. Ricky
acted knowingly, intentionally,
maliciously and with reckless disregard of Plaintiff’s rights, Plaintiff is further entitled to exemplary damages.
Plaintiff is further entitled to recovery of reasonable and necessary
attorneys fees pursuant to TCPRC §38.001.
Presentment has been made. All conditions
precedent have been satisfied or have occurred.
2.
Equitable Accounting/Declaratory Judgment
54.
Plaintiff is entitled to an order requiring Defendants to render an accurate
accounting of the Partnership and to disgorge any profits. Plaintiff further requests that the Court appoint a special master to supervise and certify the accuracy of the accounting. 55.
As shown herein, justiciable issues exist regarding the rights and status of the
Plaintiff in relation to his Partnership interest and interest in
Cities. Pursuant to Chapter 37 of
the Texas Civil Practice & Remedies Code, Plaintiff seeks a declaratory judgment determining: a. the status of each partner’s capital account as of the date Dr. Ricky
was
admitted as a partner; b. the rights of each partner upon wind up of the Partnership; c. the final accounting of the Partnership. 56.
Pursuant to §37.009 of the Texas Civil Practices & Remedies Code, Plaintiff is
entitled to an award of attorney’s fees and costs. 19 www.FryarLawFirm.com
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3.
Breach of Fiduciary Duties in
57.
In addition, Dr. Jerry
shareholders of
Cities
and Dr. Ricky
as controlling
Cities, have breached fiduciary duties owed as controlling shareholders
directly to Plaintiff and/or caused
Cities to breach fiduciary duties owed by it to Plaintiff by
virtue of his share ownership and/or arising from the personal confidential relationship. Dr. Jerry and Dr. Ricky
acted in bad faith and for the purpose of benefiting themselves
and harming Plaintiff by diminishing the value of Plaintiff’s investment in with his legal rights and reasonable expectations as a shareholder of Plaintiff the payment of constructive dividends from Ricky
Cities, interfering Cities, and denying
Cities that Dr. Jerry
and Dr.
paid to themselves. Plaintiff is entitled to recover his actual damages for this
breach of fiduciary duties and further equitable relief including an accounting, disgorgement, constructive trust, and injunction. Furthermore, Plaintiff is entitled, under sections 152.608 and 11.054 of the Texas Business Organizations Code to have the court supervise the winding up of the Partnership and
Cities or to have the court appoint a person to carry out the winding up of
the Partnership and
Cities. Because Dr. Jerry
and Dr. Ricky
acted
knowingly, intentionally, maliciously and with reckless disregard of Plaintiff’s rights, Plaintiff is further entitled to exemplary damages.
4.
Derivative Claim
58.
Dr. Jerry
and Dr. Ricky
have breached fiduciary duties to
Cities that they owe as officers, directors, and controlling shareholders by misappropriating assets, excessive compensation, and the other misconduct alleged herein.
Cities has suffered
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actual damages as a result of the breach of fiduciary duties.
Cities is entitled to recover actual
damages for this breach of fiduciary duties and further equitable relief including disgorgement, constructive trust, and injunction. Because Dr. Jerry
and Dr. Ricky
acted
knowingly, intentionally, maliciously and with reckless disregard of Plaintiff’s rights, Plaintiff is further entitled to exemplary damages. Plaintiff is further entitled to his reasonable attorneys fees. 59.
Plaintiff has standing to bring a derivative action on behalf of
conditions precedent have been satisfied.
Cities. All
Plaintiff is entitled to recover his expenses and
reasonable and necessary attorney’s fees pursuant to section 21.561 of the Texas Business Organizations Code.
Cities is a “closely-held” corporation with less than 35 shareholders,
and no shares listed on a national securities exchange or regularly quoted in an over the counter market by one or more members of a national securities association.
Pursuant to section
21.563(a) of the Texas Business Organizations Code, Plaintiff requests that, in the interests of justice, this action be treated by the Court as a direct action brought by the plaintiff for his own benefit and that the recovery be paid directly to plaintiff. Furthermore, Plaintiff is entitled to recover his reasonable and necessary attorneys’ fees and expenses pursuant to BOC §21.561.
5.
Shareholder Oppression
60.
Dr. Jerry
and Dr. Ricky
exercise dominance and control over
Cities through their powers as the majority shareholders and officers and directors of Cities. The acts alleged herein constitute a continuing pattern of shareholder oppression in that Dr. Jerry
and Dr. Ricky
have repeatedly violated Plaintiff’s rights as a
shareholder, substantially defeated Plaintiff’s objectively reasonable expectations as a shareholder that were central to his decision to join the venture, and acted in a manner 21 www.FryarLawFirm.com
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constituting burdensome, harsh and wrongful conduct, a lack of probity and fair dealing in the affairs of the company to the prejudice of Plaintiff, and/or a visible departure from the standards of fair dealing and a violation of fair play on which every shareholder who entrusts his money to a company is entitled to rely. As a result, Plaintiff seeks his actual damages, exemplary damages, reasonable and necessary attorney’s fees, pre and post judgment interest, court costs, injunctive relief, and requests that a compulsory buy-out be ordered at a fair price determined by this Court and/or other relief necessary to do equity. Because Dr. Jerry
and Dr. Ricky
acted knowingly, intentionally, maliciously and with reckless disregard of Plaintiff’s rights, Plaintiff is further entitled to exemplary damages. Plaintiff is without adequate remedy at law.
6.
Knowing Participation/Joint and Several Liability
61.
Upon information and belief,
FLP,
actual knowledge, by virtue of the fact that Dr. Jerry Elaine
Star and/or Dr. Ricky
had and/or
were officers, directors, partners, controlling shareholders and/or owners of
these entities, that they were receiving funds, and performing work for and billing clients that rightfully belonged to the Partnership or to by the
Cities, and had been misappropriated or diverted
Under established principles of Texas law, knowingly participated in and aided and abetted Dr. Jerry
FLP,
Star and/or and Dr. Ricky
breach of their fiduciary duties to Plaintiff and are jointly and severally liable to Plaintiff for any and all misappropriated Partnership funds or property which was transferred to them.
7.
Tortious Interference
62.
After Defendants wrongfully forced Plaintiff out of the Partnership, they 22
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maliciously interfered with his ability to continue practicing medicine by preventing his patients from finding him. Plaintiff had an on-going or potential contractual relationship to provide medical care with his patients at San
Family Medicine Clinic, L.L.P. Many of these
patients would want to, and did want to, continue that relationship with Plaintiff even after he could no long practice medicine at the Partnership. Defendants had reason to know of Plaintiff’s contractual relationships with his patients. Defendants willfully and intentionally interfered with Plaintiff’s contractual relationship with his patients. Defendants interference proximately caused injury to Plaintiff, which resulted in the following actual loss or damage: lost revenues from the practice of medicine from patients who sought medical care elsewhere or who have transferred their care to other physicians permanently. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court. Plaintiff’s injury resulted from Defendants’ actual malice or actual fraud, which entitles Plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003(a).
8.
Defamation
63.
Defendants, or their authorized agents, published statements by oral
communication asserting as a fact that Dr.
had died, had a nervous breakdown and
abandoned his patients or abandoned his practice at the clinic for no apparent reason. The statements involved a private matter. The statements referred to Plaintiff by name. The statements were defamatory because they unambiguously asserted that Dr.
was mentally
unstable, erratic, irresponsible, undependable and that he had breached his professional responsibilities to his patients and abandoned his medical practice for frivolous or irrational reasons. The statement was false because Dr.
did not abandon, and had no intention of
abandoning, his practice and he had not died. Defendants’ false statement caused injury to 23 www.FryarLawFirm.com
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Plaintiff, which resulted in the following damages: injury to reputation, lost revenues from the practice of medicine from patients who sought medical care elsewhere or who have transferred their care to other physicians permanently (i.e. loss of past and future income), loss of personal standing in the community, personal humiliation, and mental anguish and suffering. Plaintiff seeks damages within the jurisdictional limits of this court. Plaintiff’s injury resulted from Defendants’ malice, which entitles plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section 41.003.
VII. Prayer 64.
For these reasons, Plaintiff asks that the defendants be cited to appear and answer
and that Plaintiff have judgment against the Defendants for the following: a. A writ of mandamus or permanent injunction ordering defendants to make the Partnership records and the corporate books and records of
Cities available for
inspection; b. Actual, and exemplary damages as allowed by law; c. An order requiring an accounting, together with d. Equitable relief including disgorgement, injunction, constructive trust, forced buy-out, accounting, declaratory relief, and court supervision or appointment of a receiver and/or a special master to supervise the winding up and final accounting of the Partnership and Cities; e. Reasonable and necessary attorneys’ fees and expenses; f. Prejudgment and post-judgment interest as allowed by law; g. Costs of suit; and h. All other relief, general and special, legal and equitable, to which Plaintiff may be 24 www.FryarLawFirm.com
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entitled. 65.
Plaintiff demands his right to trial by jury.
IX. Written Discovery 66. Pursuant to the Texas Rules of Civil Procedure, each of the Defendants must respond to the following requests for written discovery within 50 days after service of this Petition: a. Pursuant to Rule 194, each Defendant is requested to disclose the information or material described in Rule 194.2(a)-(i), inclusive. b. Pursuant to Rule 198, each Defendant must admit or deny the following: 1. Plaintiff owns 50% of the shares of
Cities.
2. Exhibit A is genuine. 3. Exhibit B is genuine. 4. Exhibit C is genuine. 5. Exhibit D is genuine. 6. Exhibit E is genuine. 7. Exhibit F is genuine. 8. Exhibit G is genuine. 9. Exhibit H is genuine. 10. Exhibit I is genuine. 11. Plaintiff has made a written demand for inspection of corporate books and records of 12.
Cities, stating a proper purpose. Cities refused to permit Plaintiff to inspect all the corporate books and records
requested by Plaintiff. c. Pursuant to Rule 197, respond to each of the following written interrogatories under oath: 1. If you have denied any of the requests for admissions, state in detail the reasons 25 www.FryarLawFirm.com
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why and what you contend the true facts are with regard to the matter about which the admission was requested. 2. State the fair value of
Cities and the basis for your calculation, the method of
valuation, and describe all documents or financial information used to answer. 3. Identify the current, and all prior, accountant or bookkeeper of
Cities and all
other persons who have knowledge of the financial performance of the corporation. 4. Identify all persons or entities with whom any of the Defendants has discussed or submitted information relating to the value of
Cities, including banks and
other lenders, brokers, prospective investors or shareholders, potential buyers and creditors. 5. State the date, amount, reason and nature of the transaction for each and every cash disbursement or other benefit or transfer from
Cities to each officer,
director or shareholder from inception to present, including salary, commissions, bonuses, loans, gifts and any other transfer or transaction whatsoever, including personal use of corporate assets. 6. State whether
Cities or the Partnership has agreed to advance attorney’s fees
or other expenses related to this action to Dr. Jerry and/or Elaine
Dr. Ricky
and if so, state the complete terms and conditions under
which such advancement is made, and identify the persons who made the decision on behalf of the corporation to make such advancement. d. Pursuant to Rule 196, produce the following documents on the date that your response is due at the offices of the undersigned or at such other place that may be mutually agreed. These requests include electronic data and records. Please produce financial and 26 www.FryarLawFirm.com
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accounting data in native format and textual records as searchable PDFs. 1. The complete corporate book for
Cities, including but not limited to the
certificate of formation, all organizational documents, the by-laws, all minutes of meetings or consents in lieu of meeting, all resolutions, all shareholder agreements, all stock certificates and the complete shareholder ledger or other records showing the shareholder names and all issuances and transfers of shares. 2. All financial records of
Cities, including the general ledger, all schedules,
balance sheets, income statements, profit and loss statements, reports from accountants, accountant’s work papers, interim and draft statements, or otherwise, including for the “
Groves” location.
3. All financial records of the Partnership, including the general ledger, all schedules, balance sheets, income statements, profit and loss statements, reports from accountants, accountant’s work papers, interim and draft statements, or otherwise. 4. Any and all business records of the Partnership, including but not limited to, records of all cash payments made by patients, co-pays, cash receipts, insurance reimbursements, the daily ledger of all cash payments collected from patients, and invoices. 5. Any and all credit card statements, American Express statements, invoices, and any other documents evidencing expenses, disbursements, debits or outlays of the Partnership. 6. All bank accounts statements since 2000 for any and all bank accounts on which Dr. Jerry
Dr. Ricky
Elaine
or Dr. David Wayne
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accounts for the Partnership, 7. All financial records of
Cities,
FLP,
Star and
Star, including the general ledger, all schedules,
balance sheets, income statements, profit and loss statements, reports from accountants, accountant’s work papers, interim and draft statements, or otherwise. 8. All financial records of
including the general ledger, all schedules,
balance sheets, income statements, profit and loss statements, reports from accountants, accountant’s work papers, interim and draft statements, or otherwise. 9. All data from the medical billing software for the Partnership in its original electronic format, whether designated as “
Industrial” or “San
Family Medicine Clinic” and regardless of where it is stored or maintained. 10. All data from the medical billing software for format, whether designated as “ “
“
Cities in its original electronic
Industrial” “
International,” or “
Mobile,”
Groves” and regardless of
where it is stored or maintained. 11. All state and federal tax returns or reports of 12. All payroll records of
Cities, the Partnership,
Cities and the Partnership. Star and
13. All documents showing or relating to any transaction, transfer or disbursement involving
Cities, the Partnership and the
14. All bank or brokerage account records, statements, and check or account registers for
Cities, the Partnership,
Star, the
FLP and
15. All documents stating, reflecting or relating to the value of the Partnership and Cities or of its shares, including but not limited to, internal memoranda, offers to buy or offers to sell, appraisals, financial statements of any defendant, loan applications, credit applications, or any other document relating to value. 28 www.FryarLawFirm.com
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16. Invoices and billing records of any attorney representing
Cities or the
Partnership for any services in any way relating to Plaintiff. 17. Invoices and billing records of any accountant, bookkeeper, or tax preparer who has provided services to the Partnership or
Cities.
18. Any written commitment, promise, or stated obligation made by the the Partnership or
to
Cities.
19. Personal financial statements and tax returns for the 20. All records, including, but not limited to, invoices, check stubs, records of payment, contracts or any other documents related to Dr. Jerry Dr. Ricky
and/or
relationship with Minu Rx.
21. All records evidencing or recording use of mobile medical units (whether trucks, trailers or semi tractor-trailers), regardless of which defendant or entity was using such mobile medical unit at the time, including, but not limited to, any and all logs, invoices, payments, mileage reports, gas receipts, or any other item or document evidencing use of such mobile medical units. 22. All records or documents related to any retirement, profit-sharing or other employee benefit plan for which the Partnership or
Cities were or are
administrators or other fiduciaries, including, but not limited to, the PayChex 401(k) Plan for Drs.
and Jerry
23. All records or documents related to the purchase of stock or ownership interests in Renaissance Physicians Organization and/or Pasadena I.P.A. from the Partnership, whether the sale was merely contemplated or, in fact, consummated.
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Respectfully Submitted, FRYAR LAW FIRM, P.C.
__________________________ Eric Fryar SBN 07495770 1001 Texas Ave. Ste 1400 Houston, Texas 77002-3194 Tel. 888-481-9995 281-715-6396 Main Fax: 281-715-6397 Direct Fax: 281-605-1888 Email:
[email protected] ATTORNEYS FOR PLAINTIFF
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