Heritage SNF D/B/A Heritage Plaza Nursing and Rehabilitation Center v. George Fisher, Individually and as Independent of the Estate of Wilmer Giddens

• Court: Court of Appeals of Texas
• Decided: November 10, 2015
• Docket: 06-15-00070-CV
• Status: Published

Opinion

ACCEPTED 06-15-00070-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 11/10/2015 10:48:53 AM DEBBIE AUTREY CLERK

CAUSE NO. 06-15-00070-CV

HERITAGE SNF D/B/A HERITAGE § IN THE COURT OF APPEALS FILED IN PLAZA NURSING AND § 6th COURT OF APPEALS REHABILITATION CENTER § TEXARKANA, TEXAS § 11/10/2015 10:48:53 AM PLAINTIFF § DEBBIE AUTREY § Clerk VS. § SIXTH APPELLATE DISTRICT § GEORGE FISHER, INDIVIDUALLY § AND AS INDEPENDENT EXECUTOR OF § THE ESTATE OF WILMER GIDDENS § DECEASED § § DEFENDANT § STATE OF TEXAS

MOTION TO DISMISS APPEAL

TO THE HONORABLE JUDGE OF SAID COURT:

Comes now Plaintiff Heritage SNF, LP d/b/a Heritage Plaza Nursing and Rehabilitation

Center (“Plaintiff”) and moves to dismiss its appeal of this case and would show the court as

follows:

1. On June 25, 2015, the trial court, in case number 06-C1701-CCL, issued a

judgment awarding Plaintiff damages, pre- and post-judgment interest, and court costs but

denying an award for attorneys’ fees.

2. Less than thirty days from the date of judgment, Plaintiff filed a motion to modify

the judgment to allow an award for attorneys’ fees, thereby extending the trial court’s plenary

power to modify the judgment. See Tex. R. Civ. Pro. 329b (a), (e), (g).

3. On September 23, 2015, the trial court had yet to rule on Plaintiff’s motion to

modify, and Plaintiff filed its notice of appeal to preserve an appeal. See Tex. R. App. Pro.

26.1(a).

MOTION TO DISMISS APPEAL PAGE 1 4. On October 5, 2015, the trial court, still having plenary power, issued an

Amended Final Judgment, effectively modifying its original judgment to add an award for

attorneys’ fees.

5. Accordingly, there no longer being any need to appeal the trial court’s original

judgment, Plaintiff hereby moves to dismiss its appeal.

Respectfully submitted,

/s/ David H. Estes__________________ DAVID H. ESTES State Bar No. 24012599 destes@hdbdlaw.com NEIL J. STOCKBRIDGE State Bar No. 24088474 nstockbridge@hdbdlaw.com HARTLINE DACUS BARGER DREYER LLP 8750 North Central Expressway, Suite 1600 Dallas, Texas 75231 (214) 369-2100 (214) 369-2118 - Facsimile

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been forwarded to all known counsel of record in accordance with the Texas Rules of Civil Procedure on this 10th day of November 2015.

/s/ David H. Estes__________________ DAVID H. ESTES

MOTION TO DISMISS APPEAL PAGE 2