Motion to Amend Judgment in CLIKRX INC. vs. APPROVED HEALTH, LLC, et al| Trellis.Law

On February 07, 2022 a Hearing was filed involving a dispute between Clikrx Inc., and Approved Health, Llc, Risenhoover, Terry Jack, Velocity Health, Llc, Wiles Bolt Llc, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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FILED
4/9/2024 12:32 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Elizabeth Ferguson DEPUTY

Cause No. DC-22-01527

CLIKRX, INC., IN THE DISTRICT COURT

Plaintiff/Counter Defendant,

VS. 192NP JUDICIAL DISTRICT

APPROVED HEALTH, LLC,
VELOCITY HEALTH, LLC,
WILES BOLT, LLC AND
TERRY JACK RISENHOOVER,

Defendants/Counter-Plaintiffs. § DALLAS COUNTY, TEXAS

DEFENDANTS’ MOTION TO AMEND OR MODIFY
ORDER ON PLAINTIFF’S FINDINGS OF FACT AND
CONCLUSIONS OF LAW AND INTERLOCUTORY JUDGMENT

Defendants/Counter-Plaintiff, APPROVED HEALTH, LLC (“Approved Health”) files its

Motion to Amend or Modify Order on Plaintiff's Findings of Fact and Conclusions of Law and

Interlocutory Judgment, as follows:

A. Background

1 Trial of this action took place before the Court on December 5, 2023.

2. On March 6, 2024, the Court signed its Order on Plaintiff's Findings of Fact and

Conclusions of Law (the “FOF/COL”), a true and correct copy of which is attached hereto as

Exhibit “1” and incorporated herein by reference as if fully set forth.

3 On March 25, 2024, the Court signed its Judgment Following Bench Trial (the

“Judgment’”), a true and correct copy of which is attached hereto as Exhibit “2” and incorporated

herein by reference as if fully set forth.

4 In its FOF/COL, the Court held that Approved Health’s “breach of contract

(noncompete and confidentiality), trade secret misappropriation claims against [Plaintiff] ClikRx,

Inc. are GRANTED.”

DEFENDANTS’ MOTION TO AMEND OR MODIFY ORDER ON PLAINTIFF’S FINDINGS OF FACT
AND CONCLUSIONS OF LAW AND INTERLOCUTORY JUDGMENT - Page 1
5 It appears that the Court used a form of FOF/COL previously submitted by Plaintiff

CLIKRX, INC. as an “Order” on its failed motion for summary judgment in the action, as

evidenced by the incorrect footer to the FOF/COL.

6 The form FOF/COL, unilaterally supplied by ClikRx, provided for no damage

recovery by Approved Health on its breach of contract claims because ClikRx’s form contemplated

the claims to be denied. However, the Court appears to have added language to the form granting

Approved Health’s breach of contract claims but, because it used ClikRx’s form, may have

inadvertently failed to make allowance for damages in favor of Approved Health on its breach of

contract claims. The Court did add that Approved Health would recover its attorneys’ fees on its

breach of contract claims against ClikRx.

7 The Judgment signed shortly thereafter provides only the following:

It is FURTHER ORDERED, ADJUDGED and DECREED that Approved Health
shall have and recover from the Plaintiff, ClikRx, reasonable and necessary
attorneys fees related to Approved Health’s breach of contract claims against
ClikRx.

B. The Law/Procedure

8 The Judgment is interlocutory because it does not dispose of all the issues in the

action and contemplates that it will be merged into a final judgment following consideration of

attorneys’ fee evidence. See Webb v. Jorns, 488 S.W.2d 407,408-09 (Tex. 1973). Further, the

Judgment does not state that it is a final judgment.

9 A motion to amend or modify an interlocutory judgment following trial is

appropriate to remedy a manifest error. Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1992)

(per curium) (holding that a trial court holds plenary power over its judgment until the judgment

becomes final).

DEFENDANTS’ MOTION TO AMEND OR MODIFY ORDER ON PLAINTIFF’S FINDINGS OF FACT
AND CONCLUSIONS OF LAW AND INTERLOCUTORY JUDGMENT - Page 2
Cc. Request for Relief

10. Approved Health requests that the Court amend or modify its FOF/COL and

Judgment to include an award of damages in favor of Approved Health and against ClikRx on its

breach of contract claims because, without limitation:

a. It appears to Approved Health that the Court clearly intended to award

damages, as evidence by its award of attorneys’ fee in favor of Approved Health;

b The Court used a form of FOF/COL that was provided by ClikRx in

connection with its motion for summary judgment which was denied;

¢. It appears that the Court inadvertently left of the award of damages as a

result of using a form unilaterally provided by ClikRx;

d. Approved Health pled for and requested an award of damages on its breach

of contract claims. See Defendants’ Original Answer and Counterclaim at §f] 9-23, a true and

correct copy of which is attached hereto as Exhibit “3” and incorporated herein by reference as if

fully set forth;

€. Damages were included in Approved Health’s proposed Findings of Fact

and Conclusions of Law submitted to the Court following trial. See Defendants’ Proposed

Findings of Fact and Conclusions of Law (“Defendants’ FOF/COL”) at {| 155 (“The damages

include, without limitation, the amount of money paid by Approved Health to ClikRx in the first

year of the Agreement, amounting to $100,000.00), 161 (“Approved Health was proximately

damaged by the breach of the work product and trade secrets provisions of the Agreement in the

amount equal to the amount received by ClikRx from D2”), and 195 (“Approved Health is entitled

to recover of and from ClikRx damages in the sum of $100,000.00 which is the sum paid by Approved

Health for development service fees for the Velocity Software Product which was never completed.”).

DEFENDANTS’ MOTION TO AMEND OR MODIFY ORDER ON PLAINTIFF’S FINDINGS OF FACT
AND CONCLUSIONS OF LAW AND INTERLOCUTORY JUDGMENT - Page 3
A true and correct copy of Defendants’ FOF/COL are attached hereto as Exhibit “4” and

incorporated herein by reference as if fully set forth.

£ Damages were established at trial. See e.g., Transcript of Trial on the Merits

at 131, 218,

g Further, Approved Health is entitled to a finding by the Court that it is the

sole owner of the Velocity software product that was the subject of the trial. See e.g., Transcript

of Trial on the Merits at 109. The Agreement at issue provides this and there was no evidence to

the contrary;

11. Based on the forgoing, Approved Health requests, in the interest of justice, fairness

and equity, that the Court amend or modify its Judgment to allow for an award of damages in favor

of Approved Health against ClikRx on its breach of contract claims which the Court granted.

12. Approved Health requests such other and further relief to which it may be entitled

under the circumstances.

Dated: April 9, 2024. Respectfully submitted,

AKERLY LAW PLLC

By: /s/ Bruce W. Akerly
Bruce W. Akerly
Texas Bar No. 00953200

2785 Rockbrook Drive, Suite 201
Lewisville, Texas 75067
469-444-1878 telephone
469-444-1801 facsimile
bakerly@akerlylaw.com

ATTORNEYS FOR DEFENDANTS APPROVED
HEALTH, LLC, VELOCITY HEALTH, LLC,
WILES BOLT, LLC, AND TERRY JACK
RISENHOOVER

DEFENDANTS’ MOTION TO AMEND OR MODIFY ORDER ON PLAINTIFF’S FINDINGS OF FACT
AND CONCLUSIONS OF LAW AND INTERLOCUTORY JUDGMENT - Page 4
CERTIFICATE OF CONFERENCE

The undersigned certifies that ON April 9, 2024, he conferred with counsel for Plaintiff
about the subject of the foregoing Motion and the relief sought therein and an agreement could
not be reached. The matter is, accordingly, submitted to the Court for determination.

/s/ Bruce W. Akerly
Bruce W. Akerly

CERTIFICATE OF SERVICE

The undersigned counsel certifies that a true and correct copy of the foregoing document
was served on counsel of record by electronic submission on April 9, 2024:

/s/ Bruce W. Akerly
Bruce W. Akerly

DEFENDANTS’ MOTION TO AMEND OR MODIFY ORDER ON PLAINTIFF’S FINDINGS OF FACT
AND CONCLUSIONS OF LAW AND INTERLOCUTORY JUDGMENT - Page 5
EXHIBIT 1
NO. DC-22-01527

CLIKRX INC. IN THE DISTRICT COURT
Plaintiff,

v. 192ND JUDICIAL DISTRICT

APPROVED HEALTH, LLC and VELOCITY
HEALTH, LLC, and TERRY JACK
RISENHOOVER, and WILES BOLT, LLC
Defendants. DALLAS COUNTY, TEXAS

ORDER ON PLAINTIFF’S FINDINGS OF FACT AND CONCLUSIONS OF LAW

Came on to be considered in the above referenced matter, Plaintiffs, ClikRx Inc., lawsuit

and claims against Terry Jack Risenhoover, Approved Health, LLC, Velocity Health, LLC, and

Wiles Bolt, LLC (collectively the “Defendants”) in Cause No. DC-22-01527 (the “Lawsuit”) filed
and Defendants,
by Plaintiff, ClikRx, Inc. Upon consideration of the claims asserted by the Plaintiff, brief, response

and/or reply, and the Court's trial record along with the Plaintiff's Findings of Fact and
and Defendants’ Proposed Findings of Facts and Conclusions of Law,
Conclusions of Law, and all other matters properly before the Court, the Court is of the opinion
breach of contract claims against Defendant Approved Health, LLC are valid and Approved Health, LLC's breach of
that ClikRx Inc.’s
contract (noncompete and confidentiality), trade secret misapropriation against ClikRx Inc. are valid and succeed in accordinace with the following:
It is THEREFORE ORDERED that ClikRx Inc.’s claimayfor breach of contract against
Approved Health, LLC is GRANTED.
Defendant estaildeenltaaticalalials),

It is FURTHER ORDERED that ClikRx Inc.’s claim for common law fraud against the

Defendants, Approved Health, LLC, Velocity Health, LLC, Terry Jack Risenhoover, and Wiles

DENIED.
Bolt, LLC, is

It is FURTHER ORDERED that ClikRx Inc.’s claims against the Defendants, Terry Jack

Risenhoover and Approved Health, LLC, Velocity Health, LLC, and Wiles Bolt, LLC for fraud by
DENIED.
misrepresentation, fraud by nondisclosure and fraudulent inducement is Geteeaioiah,

ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT. PAGE 1 OF 3
IT IS FURTHER ORDERED that Approved Health LLC's breach of contract contract (noncompete and confidentiality), trade secret
misapropriation claims against ClikRx Inc. are GRANTED.
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IT IS FURTHER ORDERED that the Plaintiff shall have and recover from Defendants,
_ Approved Health, LLC
jeintlemtincemaebiaiellss, the principal balance, plus accrued interest and charges through

January 2022 due and owing under the terms of the Agreement(s) in the amount of

135,000.00 with interest continuing to accrue atmbmemmetemetaSGeinGGamemmeteny

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tactic until the date judgment is entered under and in relation to

the Plaintiff’s Breach of Contract claim™. against Approved Health, LLC.

Approved Heatlh, LLC
IT IS FURHTER ORDERED that Plaintiff shall have and recover from Defendant

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pursuant to the Plaintiff's breach of contract claimg. against Approved Health, LLC.

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ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE 2 OF 3
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IT IS FURTHER ORDERED that all amounts award in this final judgment shall bear post-

judgment interest at the rate of five and one-half percent (5.5%) per annum, pursuant to § 304.002

of the Texas Finance Code, from the date of the final judgment until the date this judgment is

paid
Approved Health, LLC shall have and recover from Plaintiff
IT IS FURTHER ORDERED that Defendant
ClikRx reasonable and necessary attorney fees and expenses
aeeor™

each party,
IT IS FURTHER ORDERED that all costs of court are taxed against Brekememben

IT IS FURTHER ORDERED that all writs and processes necessary for enforcement of

collection of this judgment or the costs of court may issue as are necessary

IT IS FURTHER ORDERED that all other relief requested and not expressly granted herein

is denied.

This judgment finally disposes of all parties and all claims in this action and is appealable.

DATED: 3/6/2024

CfMe.Clara
HONORABLE PApSiLIDING JUDGE

ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE 3 OF 3
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Amy Conine on behalf of Nick Shahbazi
Bar No. 24126819
amy@herrinlaw.com
Envelope ID: 84229973
Filing Code Description: Non-Signed Proposed Order/Judgment
Filing Description: PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW
Status as of 2/7/2024 10:51 AM CST

Associated Case Party: CLIKRX INC.

Name BarNumber | Email TimestampSubmitted | Status

C DANIELHERRIN mycase@herrinlaw.com | 2/7/2024 9:01:27 AM SENT

Amy Conine amy@herrinlaw.com 2/7/2024 9:01:27 AM SENT

Associated Case Party: TERRYJACKRISENHOOVER

Name BarNumber | Email TimestampSubmitted Status
Bruce W.Akerly bakerly@akerlylaw.com 2/7/2024 9:01:27 AM SENT

Firm Copy lawclerk@akerlylaw.com 2/7/2024 9:01:27 AM SENT

Linda Walker lwalker@akerlylaw.com 2/7/2024 9:01:27 AM SENT

Case Contacts

Name BarNumber | Email TimestampSubmitted | Status
Nicholas Shahbazi nick@herrinlaw.com | 2/7/2024 9:01:27 AM SENT
EXHIBIT 2
NO. DC-22-01527

CLIKRX INC. IN THE DISTRICT COURT
Plaintiff,

v. 192ND JUDICIAL DISTRICT

APPROVED HEALTH, LLC and VELOCITY
HEALTH, LLC, and TERRY JACK
RISENHOOVER, and WILES BOLT, LLC
Defendants. DALLAS COUNTY, TEXAS

JUDGMENT FOLLOWING BENCH TRIAL

Came on to be considered in the above referenced matter, filed by Plaintiff, ClikRx, Inc.

Upon consideration of the claims asserted by both the Plaintiff (“ClikRx”) and Defendant

(“Approved Health”), the Court's trial record along with the Findings of Fact and Conclusions of

Law (“FOF/COL”) signed by the Court on March 6, 2024, and all other matters properly before

the Court:

It is ORDERED, ADJUDGED and DECREED that ClikRx Inc.’s claim for breach of contract

against the Defendant, Approved Health, is GRANTED.

It is FURTHER ORDERED, ADJUDGED and DECREED that Approved Health’s breach

of contract (noncompete and confidentiality), trade secret misappropriation claim against ClikRx

is GRANTED.

It is FURTHER ORDERED, ADJUDGED and DECREED that the Plaintiff, ClikRx’s claims

for common law fraud, fraud by misrepresentation, fraud by nondisclosure, fraudulent

inducement and alter ego against Defendants Approved Health, Velocity Health, LLC, Terry Jack

Risenhoover and Wiles Bolt, LLC are DENIED.

It is FURTHER ORDERED, ADJUDGED and DECREED that the Plaintiff, ClikRx shall

JUDGMENT FOLLOWING BENCH TRIAL PAGE 1 OF 3
have and recover from the Defendant, Approved Health, the amount of $135,000.00, together with

interest thereon from January 31, 2022, until the date the final judgment in this action is signed

on its breach of contract claim against Defendant Approved Health.

It is FURTHER ORDERED, ADJUDGED and DECREED that the Plaintiff shall have and

recover from the Defendant, Approved Health, reasonable and necessary attorney’s fees

pursuant to the Plaintiff's breach of contract claim against Approved Health, LLC.

It is FURTHER ORDERED, ADJUDGED and DECREED that all amounts awarded in this

judgment shall bear post-judgment interest at the rate of five and one-half percent (5.5%) per

annum, pursuant to §304.002 of the Texas Finance Code, from the date of the final judgment until

the date the judgment is paid.

It is FURTHER ORDERED, ADJUDGED and DECREED that the Defendant, Approved

Health, shall have and recover from the Plaintiff, ClikRx , reasonable and necessary attorney fees

related to Approved Health’s breach of contract claims against ClikRx.

Itis FURTHER ORDERED, ADJUDGED and DECREED that all costs of the court are taxed

against each party incurring same.

It is FURTHER ORDERED, ADJUDGED and DECREED that ClikRx and Approved

Health shall file affidavits in support of their respective attorneys’ fee and expense awards within

twenty (20) days from the date this Judgment is signed. Each party shall have fifteen (15) days

from the date of filing of the attorney fee affidavit of the other party in which to file any response

or affidavits relating thereto, if any. Each party shall have ten (10) days from the date of any

response or affidavit in response relating to attorneys’ fees and expenses in which to file a reply

to the response, if any. The Court will determine the attorneys fee and expense requests on

JUDGMENT FOLLOWING BENCH TRIAL PAGE 2 OF 3
submission. Thereafter, the Court will sign a final judgment in this action resolving all claims

and issues in this action in conformity with its FOF/COL and the above

DATED: 3/25/2024

LEM
HONORABLEPRERESIDING JUDGE
lets
APPROVED AS TO FORM:

HERRIN LAW PLLC

By. /s/ Nicholas Shahbazi
Nicholas Shahbazi
Texas Bar No. 24126819

ATTORNEYS FOR PLAINTIFF

AKERLY LAW PLLC

By. /s/ Bruce W. Akerly
Bruce W. Akerly
Texas Bar No. 00953200

ATTORNEYS FOR DEFENDANTS AND COUNTER-PLAINTIFFS

JUDGMENT FOLLOWING BENCH TRIAL PAGE 3 OF 3
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Amy Conine on behalf of Nick Shahbazi
Bar No. 24126819
amy@herrinlaw.com
Envelope ID: 85807795
Filing Code Description: Non-Signed Proposed Order/Judgment
Filing Description: PROPOSED JUDGMENT NON JURY
Status as of 3/22/2024 3:44 PM CST

Associated Case Party: CLIKRX INC.

Name BarNumber | Email TimestampSubmitted | Status

C DANIELHERRIN mycase@herrinlaw.com | 3/21/2024 12:06:16 PM | SENT
Amy Conine amy@herrinlaw.com 3/21/2024 12:06:16 PM | SENT

Associated Case Party: TERRYJACKRISENHOOVER

Name BarNumber | Email TimestampSubmitted Status
Bruce W.Akerly bakerly@akerlylaw.com 3/21/2024 12:06:16 PM SENT

Firm Copy lawclerk@akerlylaw.com 3/21/2024 12:06:16 PM SENT
Linda Walker lwalker@akerlylaw.com 3/21/2024 12:06:16 PM SENT

Case Contacts

Name BarNumber | Email TimestampSubmitted | Status
Nicholas Shahbazi nick@herrinlaw.com | 3/21/2024 12:06:16 PM | SENT
EXHIBIT 3
FILED
4/4/2022 3:01 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker-Ayodele DEPUTY

Cause No. DC-22-05127

CLIKRX INC., IN THE DISTRICT COURT

Plaintiff,

VS. OF DALLAS COUNTY, TEXAS

APPROVED HEALTH, LLC,
VELOCITY HEALTH, LLC, AND
TERRY JACK RISENHOOVER,

Defendants. 192N? JUDICIAL DISTRICT

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

Defendants APPROVED HEALTH, LLC, (“Approved Health”) VELOCITY HEALTH,

LLC (“Velocity Health”), and TERRY JACK RISENHOOVER (“Risenhoover”)! (unless

otherwise noted, collectively, “Defendants”), in the above-styled and numbered cause and files

this Defendants’ Original Answer and Counterclaim in response to Plaintiff's Original Petition as

follows:

SPECIAL EXCEPTIONS

1 Defendants specially except to Plaintiff's Petition under Rule 91 of the Texas Rules

of Civil Procedure, Tex. R. Civ. P. 91.

2. Paragraph 1: Defendants except to the pleading and would request the Court

require Plaintiff to demonstrate its legal or contractual right to the customer and financial

information to (i) Approved Health, (ii) Velocity Health, or (iii) Risenhoover individually.

3 Paragraph 6: Defendants except to the pleading that the Agreement stipulates that

“Defendants were responsible for...” Defendants requests the Court require Plaintiff to

| Unless otherwise noted, Approve Health, Velocity Health and Risenhoover will be referred to collectively as
“Defendants.”

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM -PAGE 1
demonstrate what contractual obligations are bestowed upon Velocity Health and Risenhoover

who are not parties to the Agreement.

4 Velocity Health reserves the right to file a motion under Rule 91a of Texas Rule of

Civil Procedure. Based on the Original Petition, no cause of action against Velocity Health has a

basis in law or fact.

NATURE OF DISPUTE

5 This lawsuit represents either a final attempt to squeeze blood from the turnip that

is the inherently flawed and unfinished software developed by ClikRX, Inc. (“ClikRx”) or a

fundamental misunderstanding of the facts and Master Information Technology License and

Services Agreement (the Agreement’) between the parties. Assuming this action is based on a

misunderstanding and not a shakedown, and in an effort to remedy this misunderstanding, the facts

as they relate to the parties are more accurately set forth, as follows:

a. Background

6. Prior to the parties signing the Agreement on or about January 15, 2019, ClikRX

was a developer with an idea to create a platform to manage durable medical equipment orders for

clinics. At that time, a different company (“Medvalue”), of which Risenhoover was a member,

had entered into an agreement to develop a digital prior authorization software solution.

Healthcare technology startups typically face two large hurdles to success: (1) developing a

product the marketplace desires and (2) obtaining clients, particularly early adopters.

7 Medvalue engaged Wiles Bolt, LLC (“Wiles Bolt”), a healthcare technology sales

and marketing company established in or about 2016, to solve that second problem. That is exactly

what Wiles Bolt did. In 2018, Wiles Bolt entered into an agreement with a hospital to provide

service for the prior authorization software. However, simultaneously, and for reasons outside of

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM -PAGE 2
the control of any of the parties, Medvalue no longer had access to the prior authorization software

being developed by the former developer. With an agreement signed, and a deadline approaching

a new company (“NewCo”) was formed to tackle the prior authorization software for healthcare

providers issue while Medvalue focused on the software needs and hub services for specialty

pharmacies and other entities. The NewCo ultimately became Approved Health. Around this time

is when Risenhoover met Britt Thompson (“Thompson”), founder of ClikRx. After several

meetings and negotiations, the parties entered into the Agreement, wherein “[Approved Health]

and [ClikRx] intend to create a new software platform to assist healthcare organization...”

Importantly, the Agreement states “[Approved Health] and [ClikRx] are contributing, licensing,

and creating intellectual property for the purpose of creating a new product that will be

owned by [Approved Health].” Thus, out of the Agreement a truth emerges as undeniable as

gravity, the prior authorization software is owned by Approved Health.

b. Troublesome Pleadings

8 At the time of the Agreement, ClikRx was a small company with Thompson as its

lone developer. Tragically, Thompson passed away on October 31, 2019, leaving ClikRx without

any further development capabilities. What was left, and continues to date, is a partially automated

piece of software which is simply inadequate to meet the needs of the marketplace. ClikRx is

aware of the software’s shortcoming and how in its current form it requires thousands of dollars

in manual labor to have people review and fax documents with extensive manual input to have

responses populate behind the scenes for the end user. Performing its best Wizard of Oz

impression, ClikRx is asking the Court to “ignore the man behind the curtain” and pretend the

software is complete and that ClikRx fully performed its obligations under the Agreement.

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM -PAGE 3
9 Perhaps most troublesome is that Plaintiff seems to claim ownership of the

software. “The field that Plaintiff operates in is highly-competitive, and it requires that they

constantly preserve and update their software platform and servers...” Petition pg. 6 (emphasis

added). “The Parties (sic) entered into the agreement on January 15, 2019, with the intent that the

Plaintiff would license the software/system they’d developed to the Defendants (sic) who would

in turn the use Plaintiff's property in order to provide services highlighted in any and all Service

Contracts. Jd. At 7. This, of course, flies in the face of what the Agreement states and the parties’

behavior. Again, the Agreement provides: “[Approved Health] and [ClikRx] are contributing,

licensing, and creating intellectual property for the purpose of creating a new product that

will be owned by [Approved Health].” All of this begs the question: what has Plaintiff done and

what does Plaintiff continue to do with Approved Health’s intellectual property? More

troublingly, discovery will show that ClikRx knows it does not own the software and has expressly

said as much.

10. Without letting the truth get in the way of a good story, Plaintiff alleges that it is

owed an 18% royalty fee for every Service Contracted entered into...” Id. at 7. The Agreement,

simply does not state that. Instead, it reads, “[Approved Health] will pay an 18% royalty to

[ClikRx] within 10 days after the end of each month based on the receipt of the customer fees

retained by [Approved Health] under written contracted executed between the healthcare provider

organization and [Approved Health].” Further, there is no base fee provision of the agreement as

Plaintiff suggests, but a provision for “Fees for New Development Services.” Unfortunately, the

passing of Thompson left ClikRx without a qualified developer rendering new development a

commercial impossibility.

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM -PAGE 4
11. These troublesome assertions have led Defendants to perform their own

investigation, leading to the counterclaims described below.

GENERAL DENIAL

12, Pursuant to Tex. R. Civ. P. 92, Defendants invoke their right to generally deny each

and every, all and singular, the material allegations contained in Plaintiff's Original Petition,

thereby requiring Plaintiff to prove the same, if it can, by preponderance of the credible evidence,

where appropriate; clear, and convincing evidence, where appropriate.

AFFIRMATIVE DEFENSES

13. Subject to and without waiving the foregoing General Denial, Defendants assert,

pursuant to Tex. R. Civ. P. 94, the following affirmative defenses which, separately or in

combination, bar Plaintiff's right to recover, in whole or in part, on any claims or causes of action

asserted in Plaintiff's Original Petition:

a. The affirmative defense of waiver;

b The affirmative defense of laches;

The affirmative defense of accord and satisfaction;

The affirmative defense of failure of consideration;

The affirmative defense of setoff;

The affirmative defense of prior breach of contract by the plaintiff;

The affirmative defense of impossibility; and

The affirmative defense of unclean hands.

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM -PAGE 5
WHEREFORE, Defendants respectfully request that the Court allow the Plaintiff to

recover nothing by its suit. Defendants further pray that they recover their costs, and pray for such

other and further relief, both legal and equitable, as they may be entitled.

COUNTERCLAIM

Defendant/Counter-Plaintiff APPROVED HEALTH, LLC, (“Approved Health”) and

TERRY JACK RISENHOOVER (“Risenhoover’”) collectively referred to herein as (“Counter-

Plaintiffs”), asserts the following counterclaim against Plaintiff/Counter-Defendant CLICKRX,

INC. (“ClikRx”) as follows:

Parties

1 Counter-Plaintiff Approved Health LLC, is a Wyoming LLC.

2 Counter-Plaintiff Risenhoover is an individual resident of Tarrant County, Texas.

3 Counter-Defendant ClikRx is a Texas for-profit corporation and may be served with

this Counterclaim by and through its attorney-of-record in this action in accordance with the Texas

Rule of Civil Procedure 21a.

Rule 47

4 Counter-Plaintiff seeks monetary relief over $1,000,000.00, and demand for

judgment for all the other relief to which the Counter-Plaintiff’s are entitled.

Facts

5 Approved Health entered into a Master Information Technology License and

Services Agreement (the Agreement”) on or about January 15, 2019. At the core of this dispute is

the Agreement. Importantly, The Agreement states two things. First, “[Approved Health] and

[ClikRx] are contributing, licensing, and creating intellectual property for the purpose of

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM -PAGE 6
creating a new product that will be owned by [Approved Health].” Second, “This project

contemplates the development of technology for healthcare provider organizations providing

patient care. Time is of the essence. All products must meet the highest commercial standards

regarding reliability, security, accuracy, completeness, consistency, responsiveness, and ease

of use.”, Counter-Defendant did not meet the statement of work contemplated under the

Agreement. Now, Counter-Defendant’s Counter-Defendant is attempting to usurp the Agreement

and take ownership of the software.

6 Further the Agreement contains confidentiality and non-compete provisions.

Respectively, these provisions state, “each party agrees to maintain the confidentiality of the other

Party’s Confidential Information”. 7; and “[ClikRx] shall not solicit competitive business from

healthcare organizations who are customers of [Approved Health]”. Counter-Defendant has

violated these provisions on numerous occasions.
7
While Approved Health was evaluating the development options with replacement

software programmers hired by Approved Health, the new programmers suggested the Approved

Software code was so immature and poorly built, that the product needed to be scrapped and an

entirely new product needed to be developed. Curiously, Zack Thompson at ClikRx agreed with

this assessment and described the Approved Software as a “time bomb” incapable of meeting its

intended purpose as an enterprise solution for providers across the country. As it turns out, that

was accurate. And this caused the later projects to fail; ultimately, damaging Counter-Plaintiffs.

8 ClikRx then proceeded as a hostage-taker by preventing the transfer of data to a

new host as required under the Agreement. Having received some type of grant or fee waiver from

for its hosting services, ClikRx entered into the agreement with Approved and offered to provide

the hosting at no cost. The early invoices document the hosting charges and an equal amount of

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM -PAGE 7
credit, with no costs resulting to Approved. At some point, the invoices stop in their entirety.

Over time, ClikRx refuses to allow Approved Health developers to transfer the hosting to a hosting

environment owned and controlled by Approved Health. Then, for reasons yet unknown, ClikRx

transferred data and code to a competitor, ultimately foreclosing on Approved Health’s ability to

benefit from the renewal of the only remaining customer contract and effectively ending the

business.

Causes of Action

a. Breach of Contract
Counter-Plaintiffs incorporates the foregoing factual allegations herein as if fully

set forth.

10 There is a valid, enforceable contract between Approved Health and ClikRx.

11 Approved Health is the proper party to bring the suit.

12 Approved Health tendered performance under the Agreement prior to ClikRx’s

breach.

13 ClikRx has breached the terms of the Agreement.

14 ClikRx’s breach has causes damage to Counter-Plaintiffs.

15 Counter-Plaintiffs should have and recover from ClikRx as a result of ClikRx’s

breach.

b. Breach of contract (noncompete and confidentiality)
16 There is a valid, enforceable noncompete and confidentiality agreement in place.

17 Approved Health is the proper party to bring the suit.

18 ClikRx has breached the terms of the Agreement.

19 ClikRx’s breach of the noncompete and confidentiality agreement has caused

damage to Approved Health.

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM -PAGE 8
20 Approved Health should have and recover from ClikRx as a result of ClikRx’s

breach.

a Trade Secret Misappropiration
21 Approved-Health owns a trade secret.

22. ClikRx misappropriated the trade secret.

23 The misappropriation caused actual injury to Approved Health.

d. Tortious Interference
24 Counter-Plaintiffs had a valid, existing contract

25 ClikRx willfully and intentionally interfered with the contract.

26 The interference by ClikRx proximately caused damage to Counter-Plaintiffs.

27 Counter-Plaintiff incurred actual damage or loss.

Requested Relief

Based on the foregoing, Counter-Plaintiffs request the following relief:

i Actual Damages. Plaintiff be granted the full amount of damages

causes by the Agreement;

ii. Pre-Judgment Interest on the amounts awarded, as permitted

under applicable law;

iii. Post-Judgment Interest at the highest legal or contractual rate

allowed by law;

IV. Plaintiff be granted all further relief to which Plaintiff may be

entitled.

[INTENTIONALLY BLANK]

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM -PAGE 9
AKERLY LAW PLLC

By: /s/ Bruce W. Akerly

Bruce W. Akerly
Texas Bar No. 00953200
Robert N. Loughran
Texas Bar No. 24111197

878 S. Denton Tap Rd., Suite 100
Coppell, Texas 75019
469-444-1878 telephone
469-444-1801 facsimile
bakerly@akerlylaw.com
loughran@akerlylaw.com

ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE

The undersigned counsel for Defendants and Counter-Plaintiffs certifies that on April 4,
2022, he caused to be served a true and correct copy of the foregoing to Plaintiff's counsel by
electronic submission.

/s/ Bruce W. Akerly
Bruce W. Akerly

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM -PAGE 10
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Linda Walker on behalf of Bruce W. Akerly
Bar No. 953200
lwalker@akerlylaw.com
Envelope ID: 63238228
Status as of 4/4/2022 4:11 PM CST

Associated Case Party: CLIKRX INC.

Name BarNumber | Email TimestampSubmitted Status
C DANIELHERRIN mycase@herrinlaw.com | 4/4/2022 3:01:58 PM SENT

Associated Case Party: TERRYJACKRISENHOOVER

Name BarNumber | Email TimestampSubmitted Status
Bruce W.Akerly bakerly@akerlylaw.com 4/4/2022 3:01:58 PM SENT

Firm Copy lawclerk@akerlylaw.com 4/4/2022 3:01:58 PM SENT

Robert Loughran rloughran@akerlylaw.com 4/4/2022 3:01:58 PM SENT
Linda Walker lwalker@akerlylaw.com 4/4/2022 3:01:58 PM SENT
EXHIBIT 4
Cause No. DC-22-01527

CLIKRX INC., § IN THE DISTRICT COURT
§
Plaintiff/Counter Defendant,
§
VS. § 1928P JUDICIAL DISTRICT

APPROVED HEALTH, LLC,
VELOCITY HEALTH, LLC,
WILES BOLT, LLC AND
TERRY JACK RISENHOOVER,

Defendants/Counter-Plaintiffs. § DALLAS COUNTY, TEXAS

DEFENDANTS’ PROPOSED
FINDINGS OF FACT AND CONCLUSIONS OF LAW

Defendants/Counter-Plaintiffs, APPROVED HEALTH, LLC (“Approved Health”),

VELOCITY HEALTH, LLC (“Velocity”), WILES BOLT, LLC (“Wiles Bolt”), and TERRY JACK.

RISENHOOVER (“Risenhoover”)! file these Defendants’ Proposed Findings of Fact and

Conclusions of Law following trial of this action before the Court on December 5, 2023, as follows:

FINDINGS OF FACT

A. The Parties’ Claims

1 Plaintiff CLIKRX, INC. (“ClikRx”) sues Defendants for breach of contract, fraud

in the inducement and fraud by nondisclosure (Trial Transcript (“TR ”) at 16, 23).

2. Defendants assert the following defenses to ClikRx’s claims: waiver; equitable

estoppel, laches; accord and satisfaction; failure of consideration; setoff; prior breach of contract

by the plaintiff; impossibility; and unclean hands.

3 Defendants filed counterclaims against ClikRx for: breach of contract (generally

and with respect to violation of non-compete and confidentiality provisions), trade secret

| Unless otherwise noted, Approved Health, Velocity, Wiles Bolt and Risenhoover will be referred to collectively
herein as the “Defendants.”

DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 1
misappropriation, and tortious interference with contract rights. Defendants seek to recover

attorneys’ fees and expenses, including costs of court, relating to these claims.”

4 Zack Thompson testified for ClikRx at trial. Risenhoover testified credibly at trial

for Defendants.

B Wiles Bolt

5 Risenhoover created Wiles Bolt in 2015 to assist start-up healthcare technology

companies market and sell their new products to early adopter customers. (TR36).

6. Wiles Bolt is a healthcare technology reseller, a sales and marketing company. (/d.).

It essentially assists the owner of a software product to sell it to a healthcare provider.

i Risenhoover is the sole member of Wiles Bolt. (TR 34).

8 At the time Wiles Bolt was formed, ClikRx did not exist.

9 Wiles Bolt exists because it is expensive, risky, and time-consuming for start-up

healthcare technology companies to hire direct sales professionals. The sales process in healthcare

technology is slow, often 18 months or longer. Healthcare organizations are risk-averse and

reticent to explore new technologies until the technology has been proven effective.

10. Sales professionals in healthcare technology are expensive, often costing more than

$250,000 annually in incentive compensation, travel expenses, and marketing support per person.

Sales professionals in new healthcare technology companies often fail to win a new client during

their first and second year, leaving the start-up company with no clients and generally $300,000 to

$500,000 in losses solely from the failed sales efforts.

? The parties stipulated that evidence on attorneys’ fees and expenses would be presented following a ruling on the
merits. (TR 15-16).

DEFENDANTS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 2
11. Wiles Bolt is a properly formed limited liability company with its own operating

agreement, management agreements, annual reports, registered agents, tax filings, bank accounts,

contracts, and business relationships.

12. There is no evidence of the existence of a contract, oral or written, between Wiles

Bolt and ClikRx.

13¢ ClikRx never invoiced Wiles Bolt or made any claim for Wiles Bolt to make any

payment for any reason to ClikRx.

14. The evidence shows that Risenhoover is not the alter ego of Wiles Bolt. Wiles Bolt

is a legitima

Case Info

Judge

ACEVES, MARIA Track Judge’s New Case

Case No.

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Document Filed Date

May 31, 2024

Case Filing Date

February 07, 2022

County

Parties

AKERLY, BRUCE W Attorney for the Defendant
APPROVED HEALTH, LLC Defendant
CLIKRX INC. Plaintiff
HERRIN, C DANIEL Attorney for the Plaintiff
RISENHOOVER, TERRY JACK Defendant
SHAHBAZI, NICHOLAS HABIB OHAH Attorney for the Plaintiff
VELOCITY HEALTH, LLC Defendant
WILES BOLT LLC Defendant
Cyrus Herrin Attorneys for Plaintiffs
Robert Loughran Attorneys for Defendants
Robert Meyers Attorney

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Hearing: CLIKRX INC. vs. APPROVED HEALTH, LLC, et al

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