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CAUSE NO. 2017-62467
FIRST-CITIZENS BANK & TRUST
COMPANY,
CIVIL DISTRICT COURT
Plaintiff,
v. HARRIS COUNTY, TEXAS
EXCELLENCE MEDICAL GROUP, LLC,
DR. RICHARD FRANCIS, DR. YUEH LEE,
AND DR. SHERMAN NAGLER,
Defendants. 151st JUDICIAL DISTRICT
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PLAINTIFF’S REQUEST FOR SPECIFIED ADDITIONAL OR AMENDED FINDINGS
OF FACT
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now Plaintiff, First-Citizens Bank & Trust Company, and pursuant to Rule 298 of
the Texas Rules of Civil Procedure respectfully shows as follows:
1.
The Court denied Plaintiff's Motion for Summary Judgment on October 2, 2019.
2.
The Court granted a partial interlocutory summary judgment in favor of Defendants on
November 12, 2019.
3.
The case was tried to the Court without a jury on December 10, 2019. At the beginning of
trial, the Court verbally modified its November 12, 2019 summary judgment ruling to grant more
relief for Defendants than what appeared to be granted under the November 12 written order.
4,
The Court signed a written final Judgment on December 15, 2019, which awards Plaintiff
some of, but not all, the relief Plaintiff seeks in this case.
1
028367.000006
131 - 5505732.15.
Plaintiff filed a Request for Findings of Fact and Conclusions of Law on December 27,
2019.
6.
Plaintiff filed a Notice of Past Due Findings of Fact and Conclusions of law on January 20,
2020.
7.
The Court filed Findings of Fact and Conclusions of Law on January 28 or 29, 2020.
8.
Plaintiff files this request pursuant to Rule 298 of the Texas Rules of Civil Procedure
because one of the Court’s findings appears to be inconsistent with the relief granted in the Court’s
Judgment. Plaintiff does not hereby waive its right to appeal the Court’s summary judgment
rulings or reconsiderations thereof. Plaintiff also does not waive any other basis it has for appeal.
9.
Plaintiff files this request to alert the Court as to one potential inconsistency that the Court’s
current Findings have with the Court’s Judgment. Specifically, Section 24 of the Court’s Findings
of Fact appears to be inconsistent with the Court’s Judgment wherein it awarded Plaintiff actual
damages in the amount of $20,809.44. Section 24 currently reads as follows:
The only funding for goods or services to EMG were the items on
invoices in categories in paragraph 21(f) in the amount of
$20,809.44; however, the Court finds that Plaintiff funded these
amounts pursuant to the new and different agreement apparently
entered into between Plaintiff and Russell as described above.
Those invoices were not for equipment titled in Plaintiff and leased
to Defendant as provided in the MASTER LEASE AGREEMENT
but were for the payment of Texas ($17,796.74) and for the purchase
of a biometric clock ($2,623.00) and so were funded pursuant to the
later agreement.
028367.000006
131 - 5505732.110.
Pursuant to Rule 298, Plaintiff asks that the Court file an amended finding, in lieu of the
current Section 24, that deletes the portion of Section 24 that comes after the words “in the amount
of $20,809.44” so that Section 24 is consistent with the Court’s ruling and Judgment awarding
Plaintiff actual damages in the amount of $20,809.44. A form of Amended Findings of Fact is
being filed contemporaneously herewith.
Wherefore, Plaintiff asks that the Court the Court file an amended or additional finding
that is consistent with the Court’s ruling and Judgment awarding Plaintiff actual damages in the
amount of $20,809.44. Plaintiff asks for all other relief to which it is entitled.
Respectfully submitted,
CRAIN, CATON & JAMES, P.C.
By: /s/Peter C. Smart
Peter C. Smart
State Bar No. 00784989
psmart@craincaton.com
Joe R. Savoie
State Bar No. 24083797
savoie-efile@craincaton.com
1401 McKinney, Suite 1700
Five Houston Center
Houston, Texas 77010
713- 658-2323
713-658-1921 (fax)
Attorneys for Plaintiff,
First-Citizens Bank & Trust Company
028367.000006
131 - 5505732.1CERTIFICATE OF SERVICE
Thereby certify that the foregoing has been served on the following counsel via the Court’s
electronic filing system this the 6th day of February 2020:
Edward L. Rothberg
rothberg@hooverslovaceck.com
Deirdre Carey Brown
brown@hooverslovacek.com
Hoover Slovaceck, LLP
5051 Westheimer, Suite 1200
Galleria Tower II
Houston, Texas 77056
Counsel for Dr. Lee and Dr. Nagler
Stephen A. Roberts
stephen.roberts@clarkhillstrasburger.com
Derek Quick
derek.quick@clarkhillstrasburger.com
Clark Hill Strasburger, LLP
720 Brazos Street, Suite 700
Austin, Texas 78701
Counsel for Dr. Francis
James M. Kimbell
James.kimbell@clarkhillstrasburger.com
Kelly H. Leonard
Kelly.leonard@clarkhillstrasburger.com
Clark Hill Strasburger, LLP
909 Fannin, Suite 2300
Houston, Texas 77010
Counsel for Dr. Francis
028367.000006
131 - 5505732.1
/s/ Peter C. Smart
Peter C. Smart
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CAUSE NO. 2017-62467 FIRST-CITIZENS BANK & TRUST COMPANY, CIVIL DISTRICT COURT Plaintiff, v. HARRIS COUNTY, TEXAS EXCELLENCE MEDICAL GROUP, LLC, DR. RICHARD FRANCIS, DR. YUEH LEE, AND DR. SHERMAN NAGLER, Defendants. 151st JUDICIAL DISTRICT § § § § § § § § § § § § PLAINTIFF’S REQUEST FOR SPECIFIED ADDITIONAL OR AMENDED FINDINGS OF FACT TO THE HONORABLE JUDGE OF SAID COURT: Comes now Plaintiff, First-Citizens Bank & Trust Company, and pursuant to Rule 298 of the Texas Rules of Civil Procedure respectfully shows as follows: 1. The Court denied Plaintiff's Motion for Summary Judgment on October 2, 2019. 2. The Court granted a partial interlocutory summary judgment in favor of Defendants on November 12, 2019. 3. The case was tried to the Court without a jury on December 10, 2019. At the beginning of trial, the Court verbally modified its November 12, 2019 summary judgment ruling to grant more relief for Defendants than what appeared to be granted under the November 12 written order. 4, The Court signed a written final Judgment on December 15, 2019, which awards Plaintiff some of, but not all, the relief Plaintiff seeks in this case. 1 028367.000006 131 - 5505732.15. Plaintiff filed a Request for Findings of Fact and Conclusions of Law on December 27, 2019. 6. Plaintiff filed a Notice of Past Due Findings of Fact and Conclusions of law on January 20, 2020. 7. The Court filed Findings of Fact and Conclusions of Law on January 28 or 29, 2020. 8. Plaintiff files this request pursuant to Rule 298 of the Texas Rules of Civil Procedure because one of the Court’s findings appears to be inconsistent with the relief granted in the Court’s Judgment. Plaintiff does not hereby waive its right to appeal the Court’s summary judgment rulings or reconsiderations thereof. Plaintiff also does not waive any other basis it has for appeal. 9. Plaintiff files this request to alert the Court as to one potential inconsistency that the Court’s current Findings have with the Court’s Judgment. Specifically, Section 24 of the Court’s Findings of Fact appears to be inconsistent with the Court’s Judgment wherein it awarded Plaintiff actual damages in the amount of $20,809.44. Section 24 currently reads as follows: The only funding for goods or services to EMG were the items on invoices in categories in paragraph 21(f) in the amount of $20,809.44; however, the Court finds that Plaintiff funded these amounts pursuant to the new and different agreement apparently entered into between Plaintiff and Russell as described above. Those invoices were not for equipment titled in Plaintiff and leased to Defendant as provided in the MASTER LEASE AGREEMENT but were for the payment of Texas ($17,796.74) and for the purchase of a biometric clock ($2,623.00) and so were funded pursuant to the later agreement. 028367.000006 131 - 5505732.110. Pursuant to Rule 298, Plaintiff asks that the Court file an amended finding, in lieu of the current Section 24, that deletes the portion of Section 24 that comes after the words “in the amount of $20,809.44” so that Section 24 is consistent with the Court’s ruling and Judgment awarding Plaintiff actual damages in the amount of $20,809.44. A form of Amended Findings of Fact is being filed contemporaneously herewith. Wherefore, Plaintiff asks that the Court the Court file an amended or additional finding that is consistent with the Court’s ruling and Judgment awarding Plaintiff actual damages in the amount of $20,809.44. Plaintiff asks for all other relief to which it is entitled. Respectfully submitted, CRAIN, CATON & JAMES, P.C. By: /s/Peter C. Smart Peter C. Smart State Bar No. 00784989 psmart@craincaton.com Joe R. Savoie State Bar No. 24083797 savoie-efile@craincaton.com 1401 McKinney, Suite 1700 Five Houston Center Houston, Texas 77010 713- 658-2323 713-658-1921 (fax) Attorneys for Plaintiff, First-Citizens Bank & Trust Company 028367.000006 131 - 5505732.1CERTIFICATE OF SERVICE Thereby certify that the foregoing has been served on the following counsel via the Court’s electronic filing system this the 6th day of February 2020: Edward L. Rothberg rothberg@hooverslovaceck.com Deirdre Carey Brown brown@hooverslovacek.com Hoover Slovaceck, LLP 5051 Westheimer, Suite 1200 Galleria Tower II Houston, Texas 77056 Counsel for Dr. Lee and Dr. Nagler Stephen A. Roberts stephen.roberts@clarkhillstrasburger.com Derek Quick derek.quick@clarkhillstrasburger.com Clark Hill Strasburger, LLP 720 Brazos Street, Suite 700 Austin, Texas 78701 Counsel for Dr. Francis James M. Kimbell James.kimbell@clarkhillstrasburger.com Kelly H. Leonard Kelly.leonard@clarkhillstrasburger.com Clark Hill Strasburger, LLP 909 Fannin, Suite 2300 Houston, Texas 77010 Counsel for Dr. Francis 028367.000006 131 - 5505732.1 /s/ Peter C. Smart Peter C. Smart