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Ghergich v. Toye

Court of Appeals of Louisiana, Fifth Circuit

October 29, 2014

MATTHEW S. GHERGICH, IV
v.
PAUL TOYE, III, PAUL TOYE, IV, SAL MICHEL, AND ADVANCED PAIN MANAGEMENT CLINIC, LLC

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 696-768, DIVISION " D" . HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING.

JOHN A. VENEZIA, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

W. CLIFTON STOUTZ, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg.

OPINION

Page 239

HANS J. LILJEBERG, Judge.

[14-300 La.App. 5 Cir. 2] Plaintiff appeals a summary judgment granted in favor of defendants, dismissing plaintiff's lawsuit against them. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 11, 2011, plaintiff, Matthew Ghergich, IV, filed a " Petition for Declaratory Judgment and to Inspect Records Pursuant to LSA-R.S. 22:1319," against defendants, Paul Toye, III, Paul Toye, IV, Sal Michel, and Advanced Pain Management Clinic, L.L.C. (" Advanced" ).[1] According to Mr. Ghergich, he and John DeFraites formed Health Tech Wellness Center, L.L.C. (" Health Tech" ), a pain management clinic, on October 14, 2004. Mr. Ghergich states that Paul Toye, III, and Sal Michel formed Advanced, a pain management clinic, on February 28, 2005, with Paul Toye, IV, listed as a member of Advanced.

In his petition, Mr. Ghergich contends that Health Tech merged with Advanced in October of 2005, and that Mr. Ghergich, Mr. DeFraites, Mr. Toye, III, and Mr. Michel were to have equal 25% membership interests in Advanced after [14-300 La.App. 5 Cir. 3] December 31, 2005. According to Mr. Ghergich, the parties hired an attorney to prepare a written operating agreement, but not all of the members signed it.[2] Nevertheless, he asserts that the parties acted in conformity with the agreement and paid profit distributions to Mr. Ghergich for several years.

Mr. Ghergich asserts that at some point, his profit distributions were steadily reduced, so he demanded that he be allowed to review Advanced's records. He claims that this request was denied by Mr. Toye, III. As a result, Mr. Ghergich filed this lawsuit seeking a declaration that he is a member of Advanced, as well as an order from the court allowing him to inspect Advanced's records, pursuant to La. R.S. 12:1319(B).[3]

Page 240

On May 7, 2013, defendants filed a motion for summary judgment, asserting that Mr. Ghergich is not a member of Advanced and that he has never been able to produce any documentation or other evidence to prove he has an ownership interest in Advanced. Defendants further argued that even if Mr. Ghergich could prove that there was a merger between Health Tech and Advanced, which is denied, Mr. Ghergich is not legally able to hold an ownership interest in Advanced, because he pled guilty to the charge of possession of marijuana in 1986 and thus, [14-300 La.App. 5 Cir. 4] pursuant to La. R.S. 40:2198.12 and La. Admin. Code, Title 48, Part I, § 7803, he cannot legally own or operate a pain management clinic.[4]

In opposition to defendants' motion for summary judgment, Mr. Ghergich argued that he does not have a conviction for any " disqualifying crime," because his conviction was set aside and his arrest record was expunged during the pendency of the present case, by order dated June 21, 2013. Mr. Ghergich further argued that the Louisiana Department of Health and Hospitals waived any issues pertaining to his criminal history, ...


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