ACCEPTED 01-15-00530-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 6/12/2015 3:54:12 PM CHRISTOPHER PRINE CLERK
NO. 01-15-00530-CV FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS 6/12/2015 3:54:12 PM FOR THE FIRST DISTRICT OF TEXASCHRISTOPHER A. PRINE HOUSTON, TEXAS Clerk
lnre SUNSET NURSING HOME, INC., Relator
The Honorable Pat Sebesta, Brazoria County Judge, Respondent
AFFIDAVIT OF FELICIA HARRIS
STATE OF TEXAS § § COUNTY OF HARRIS §
BEFORE ME, the undersigned notary public, on this day personally appeared Felicia Harris, who being by me duly sworn, deposed and stated:
1. "My name is Felicia Harris. I am over the age of twenty-one (21) years and of sound mind. I have never been convicted of a felony or a crime involving moral turpitude and I am fully qualified and competent in all respects to make this affidavit. I am a partner in the law firm of Burleson LLP which represents Sunset Nursing Home, Inc., in the above captioned litigation.
2. I have personal knowledge of the facts stated herein; they are true and correct. I am the attorney-in-charge for Sunset Nursing Home, Inc. ("Sunset") in the above referenced matter.
3. In 2013, I conferred with opposing counsel (law firm of Griffin & Matthews) for Rebecca Ann, Inc.; Plantation Health Care Center, Inc.; Donald Grether and Paul Heinig (collectively "RAI") regarding a docket control order in Cause No. 72817, pending before the Honorable Pat Sebesta, in Brazoria County, Texas.
4. At a hearing on or about August 27, 2014, the Trial Court verbally granted a continuance of the October 2014 trial date; and, in response to Sunset's written and verbal requests for confirmation that all DCO deadlines were lifted, stated that all such deadlines were lifted. The Trial Court told the parties to confer regarding deadlines for an Amended DCO, and asked to receive an update by September 2, 2014.
5. The evidence in this case reveals RAI retained the law firm of Jackson Walker after Sunset filed its first motion to compel on Friday, March 14, 2014 in Cause No. 72817. That motion was set for hearing in March 2014. RAI produced a retention agreement with Jackson Walker, dated March 18, 2014 (see Tab 102 below). The retention agreement was addressed to Donald Grether, Paul A. Heinig, and Rebecca Ann, Inc., "c/o Stephen Coleman" at Mr. Coleman's address, 129 Country Road 51, Rosharon, Texas. Thereafter, RAI requested the Trial Court to postpone the March hearing on that motion and the scheduled deposition of RAI's corporate representative. The hearing was rescheduled to April 2, 2014 and the deposition postponed.
6. In May 2014, the Court heard arguments on another motion to compel filed by Sunset. In that motion, among other things, Sunset sought production of RAI's policies and procedures for the Clute and Lake Jackson facilities. The Court, sua sponte, ordered RAI to produce the policies and procedures for in camera review. Sunset has filed two motions requesting the Court to reconsider its ruling regarding the policies and procedure documents. (See Tabs 85 and 105, below.)
7. At a hearing in January 2015, the Trial Court sua sponte ordered RAI to produce for in camera inspection documents from a 2010 appraisal of the Clute and Lake Jackson facilities that were the subject of a motion to compel filed by Sunset. See also Tab 104 below.
8. At a hearing in February 2015, the Trial Court heard arguments on Sunset's motion to compel and Country Village Care, Inc.'s ("CVC") (a Grether-owned nursing facility located in Angleton, Texas) motion for protection concerning a subpoena for documents that Sunset served on third- party MDS Research ("MDS"). At that hearing, the Court sua sponte ordered MDS to tmn over all responsive documents to CVC's counsel (who is also RAI' s counsel) and for him to submit MDS' documents to the Trial Court for in
2 camera inspection. At the March 2015 hearing, Sunset requested the Court reconsider that ruling. The request was denied. See Tab 39 below.
9. Sunset has been informed that, at present, the Trial Court maintains possession of three groups of documents Sunset has sought in discovery, which were the subject of motions to compel, and sua sponte ordered for in camera review by the Court. No claim of privilege has been asserted by any party over any of the groups of documents. Those three groups of documents are: the MDS documents (~8 above), the policies and procedures that were in use at the Clute and Lake Jackson facilities under RAI (~6 above), and the 2010 appraisal documents (~7 above).
10. In the days immediately preceding the filing of the petition for writ of mandamus, in response to a request as to the status of the in camera reviews on the appraisal and MDS documents, the Court Coordinator notified me that the documents would be available for review at the courthouse, but that no decision had yet been made by the Trial Court regarding production. (See also Tab 103 below). 11. Steve Coleman attended several depositions in this matter, over Sunset's objection (because he is a fact witness). See Tab 12 below.
12. The documents numbered 2-101 and included in this Record on Mandamus are true and correct copies, described as follows:
TAB DOCUMENT 2 Consolidated Order from Judge Sebesta, signed May 5, 2015
3 Lease Agreement, dated July 1, 1990, between Sunset Nursing Home, Inc. and Plantation Health Care Center, Inc. for the Clute Facility
4 Lease Agreement, dated May 1, 1991, between Sunset Nursing Home and Plantation Health Care Center, Inc. for the Lake Jackson Facility
5 Lease Guaranty Agreement, dated October 19, 1990, between Sunset Nursing Home, Inc. and Donald and Rebecca Grether for the Clute Facility
6 Lease Guaranty Agreement, dated April 29, 1991, between Sunset Nursing Home, Inc., and Donald and Rebecca Grether for the Lake Jackson Facility
3 TAB DOCUMENT 7 Sublease Agreement between Plantation Health Care Center, Inc. and Rebecca Ann, Inc., effective January 1, 1994
8 RAI' s 2010 State Cost Reports for Clute and Lake Jackson facilities
9 Correspondence, dated October 25, 2010, from Steve Coleman to Kim Richardson re offer by the Grether Family to buy the Lake Jackson Facility
.10 Deposition transcript of Sara Richards, taken on December 19, 2014
11 Deposition transcript of Guindal Smith, taken on October 1, 2014
12 Deposition transcript of Steve Coleman, taken on November 20, 2014
13 Email correspondence, dated February 28, 2011, from Steve Coleman to Kim Richardson re change of ownership
14 Email correspondence from Fawncyne Worley (then-Administrator, Clute Facility) to Sara Richards re "put the scare in Sunset"
15 Email correspondence, dated April 4, 2011, from Phillip Wells (Hallmark Medicare services provider to the Grethers) to Kathy Simpson re updated on the Smiths (Sunset) and the Grethers
16 Email c01Tespondence, dated April 1, 2011, from Steve Coleman to Kim Richardson re not transferring the facility names
17 RAI letters to terminate vendor contractors, dated March 29, 2011
18 CMS Forms 855, signed by RAI, terminating Medicare for (1) Clute and (2) Lake Jackson facilities
19 Lease Extension Agreements for (1) Clute and (2) Lake Jackson facilities
20 Email correspondence, dated May 4, 2011, from Dee Ann Toro (State of Texas) to Sunset re Medicare Certification Process
21 2010 State Cost Report for Country Village Care, Inc., Angleton, Texas
22 [BLANK]
4 TAB DOCUMENT
23 2011 State Cost Report for Country Village Care, Inc., Angleton, Texas
24 2012 State Cost Report for Country Village Care, Inc., Angleton, Texas
25 2012 Cost Report (Sunset) for the Clute Facility [CONFIDENTIAL]
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ACCEPTED 01-15-00530-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 6/12/2015 3:54:12 PM CHRISTOPHER PRINE CLERK
NO. 01-15-00530-CV FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS 6/12/2015 3:54:12 PM FOR THE FIRST DISTRICT OF TEXASCHRISTOPHER A. PRINE HOUSTON, TEXAS Clerk
lnre SUNSET NURSING HOME, INC., Relator
The Honorable Pat Sebesta, Brazoria County Judge, Respondent
AFFIDAVIT OF FELICIA HARRIS
STATE OF TEXAS § § COUNTY OF HARRIS §
BEFORE ME, the undersigned notary public, on this day personally appeared Felicia Harris, who being by me duly sworn, deposed and stated:
1. "My name is Felicia Harris. I am over the age of twenty-one (21) years and of sound mind. I have never been convicted of a felony or a crime involving moral turpitude and I am fully qualified and competent in all respects to make this affidavit. I am a partner in the law firm of Burleson LLP which represents Sunset Nursing Home, Inc., in the above captioned litigation.
2. I have personal knowledge of the facts stated herein; they are true and correct. I am the attorney-in-charge for Sunset Nursing Home, Inc. ("Sunset") in the above referenced matter.
3. In 2013, I conferred with opposing counsel (law firm of Griffin & Matthews) for Rebecca Ann, Inc.; Plantation Health Care Center, Inc.; Donald Grether and Paul Heinig (collectively "RAI") regarding a docket control order in Cause No. 72817, pending before the Honorable Pat Sebesta, in Brazoria County, Texas.
4. At a hearing on or about August 27, 2014, the Trial Court verbally granted a continuance of the October 2014 trial date; and, in response to Sunset's written and verbal requests for confirmation that all DCO deadlines were lifted, stated that all such deadlines were lifted. The Trial Court told the parties to confer regarding deadlines for an Amended DCO, and asked to receive an update by September 2, 2014.
5. The evidence in this case reveals RAI retained the law firm of Jackson Walker after Sunset filed its first motion to compel on Friday, March 14, 2014 in Cause No. 72817. That motion was set for hearing in March 2014. RAI produced a retention agreement with Jackson Walker, dated March 18, 2014 (see Tab 102 below). The retention agreement was addressed to Donald Grether, Paul A. Heinig, and Rebecca Ann, Inc., "c/o Stephen Coleman" at Mr. Coleman's address, 129 Country Road 51, Rosharon, Texas. Thereafter, RAI requested the Trial Court to postpone the March hearing on that motion and the scheduled deposition of RAI's corporate representative. The hearing was rescheduled to April 2, 2014 and the deposition postponed.
6. In May 2014, the Court heard arguments on another motion to compel filed by Sunset. In that motion, among other things, Sunset sought production of RAI's policies and procedures for the Clute and Lake Jackson facilities. The Court, sua sponte, ordered RAI to produce the policies and procedures for in camera review. Sunset has filed two motions requesting the Court to reconsider its ruling regarding the policies and procedure documents. (See Tabs 85 and 105, below.)
7. At a hearing in January 2015, the Trial Court sua sponte ordered RAI to produce for in camera inspection documents from a 2010 appraisal of the Clute and Lake Jackson facilities that were the subject of a motion to compel filed by Sunset. See also Tab 104 below.
8. At a hearing in February 2015, the Trial Court heard arguments on Sunset's motion to compel and Country Village Care, Inc.'s ("CVC") (a Grether-owned nursing facility located in Angleton, Texas) motion for protection concerning a subpoena for documents that Sunset served on third- party MDS Research ("MDS"). At that hearing, the Court sua sponte ordered MDS to tmn over all responsive documents to CVC's counsel (who is also RAI' s counsel) and for him to submit MDS' documents to the Trial Court for in
2 camera inspection. At the March 2015 hearing, Sunset requested the Court reconsider that ruling. The request was denied. See Tab 39 below.
9. Sunset has been informed that, at present, the Trial Court maintains possession of three groups of documents Sunset has sought in discovery, which were the subject of motions to compel, and sua sponte ordered for in camera review by the Court. No claim of privilege has been asserted by any party over any of the groups of documents. Those three groups of documents are: the MDS documents (~8 above), the policies and procedures that were in use at the Clute and Lake Jackson facilities under RAI (~6 above), and the 2010 appraisal documents (~7 above).
10. In the days immediately preceding the filing of the petition for writ of mandamus, in response to a request as to the status of the in camera reviews on the appraisal and MDS documents, the Court Coordinator notified me that the documents would be available for review at the courthouse, but that no decision had yet been made by the Trial Court regarding production. (See also Tab 103 below). 11. Steve Coleman attended several depositions in this matter, over Sunset's objection (because he is a fact witness). See Tab 12 below.
12. The documents numbered 2-101 and included in this Record on Mandamus are true and correct copies, described as follows:
TAB DOCUMENT 2 Consolidated Order from Judge Sebesta, signed May 5, 2015
3 Lease Agreement, dated July 1, 1990, between Sunset Nursing Home, Inc. and Plantation Health Care Center, Inc. for the Clute Facility
4 Lease Agreement, dated May 1, 1991, between Sunset Nursing Home and Plantation Health Care Center, Inc. for the Lake Jackson Facility
5 Lease Guaranty Agreement, dated October 19, 1990, between Sunset Nursing Home, Inc. and Donald and Rebecca Grether for the Clute Facility
6 Lease Guaranty Agreement, dated April 29, 1991, between Sunset Nursing Home, Inc., and Donald and Rebecca Grether for the Lake Jackson Facility
3 TAB DOCUMENT 7 Sublease Agreement between Plantation Health Care Center, Inc. and Rebecca Ann, Inc., effective January 1, 1994
8 RAI' s 2010 State Cost Reports for Clute and Lake Jackson facilities
9 Correspondence, dated October 25, 2010, from Steve Coleman to Kim Richardson re offer by the Grether Family to buy the Lake Jackson Facility
.10 Deposition transcript of Sara Richards, taken on December 19, 2014
11 Deposition transcript of Guindal Smith, taken on October 1, 2014
12 Deposition transcript of Steve Coleman, taken on November 20, 2014
13 Email correspondence, dated February 28, 2011, from Steve Coleman to Kim Richardson re change of ownership
14 Email correspondence from Fawncyne Worley (then-Administrator, Clute Facility) to Sara Richards re "put the scare in Sunset"
15 Email correspondence, dated April 4, 2011, from Phillip Wells (Hallmark Medicare services provider to the Grethers) to Kathy Simpson re updated on the Smiths (Sunset) and the Grethers
16 Email c01Tespondence, dated April 1, 2011, from Steve Coleman to Kim Richardson re not transferring the facility names
17 RAI letters to terminate vendor contractors, dated March 29, 2011
18 CMS Forms 855, signed by RAI, terminating Medicare for (1) Clute and (2) Lake Jackson facilities
19 Lease Extension Agreements for (1) Clute and (2) Lake Jackson facilities
20 Email correspondence, dated May 4, 2011, from Dee Ann Toro (State of Texas) to Sunset re Medicare Certification Process
21 2010 State Cost Report for Country Village Care, Inc., Angleton, Texas
22 [BLANK]
4 TAB DOCUMENT
23 2011 State Cost Report for Country Village Care, Inc., Angleton, Texas
24 2012 State Cost Report for Country Village Care, Inc., Angleton, Texas
25 2012 Cost Report (Sunset) for the Clute Facility [CONFIDENTIAL]
26 2012 Cost Report (Sunset) for the Lake Jackson Facility [CONFIDENTIAL]
27 Sunset Nursing Home, Inc.' Second Set of Request for Production, served October 29, 2013
28 Sunset Nursing Home, Inc.' s Motion to Compel Plaintiffs Production of Documents, filed March 14, 2014
29 Plaintiffs' Collective Responses to Defendant, Sunset Nursing Home, Inc.'s Requests for Production, served November 4, 2013
30 Correspondence, dated September 2, 2014, from Felicia Harris to Judge Sebesta re deadlines for an amended DCO
31 Order, signed April 2, 2014
32 Email correspondence, dated April 23, 2014, from Breck Harrison to Felicia Harris re Medicare termination documents [CMS Forms 855,see also 18 above]
33 Rebecca Ann, Inc. corporate representative's (Amy Stewart) deposition transcript, taken on May 6, 2014
34 Gayle Jacobs' deposition transcript, taken on July 11, 2014
35 Sunset Nursing Home, Inc.' s ( 1) Motion for Sanctions, filed August 25, 2014; (2) Supplemental Motion for Sanctions, filed September 15, 2014; and (3) Second Supplemental Motion for Sanctions, filed September 19, 2014
36 Sunset Nursing Home, Inc. 's Motion to Compel Plaintiff and Counter- Defendants' Production of Documents, filed May 21, 2014
37 Order, signed September 30, 2014, re RAI's policies and procedures
5 TAB DOCUMENT
38 Agreed Protective Order, signed November 25, 2013
39 Hearing transcript, March 24, 2015
40 Email correspondence, dated June 19, 2014, from Breck Harrison to Felicia Harris re depositions
41 Fourth Amended Notices of Deposition for Guindal and Jimmy Smith, served on September 25, 2014
42 Plaintiffs' Motion to Quash Deposition of Steve Coleman, filed July 9, 2014
43 Email correspondence, dated October 20, 2014, from Felicia Harris to Breck Harrison re Sara Richards' deposition
44 Notice of Deposition for Sara Richards, served October 20, 2014
45 Motion to Quash Sara Richards Deposition, filed October 23, 2014
46 Amended Notice of Deposition for Sara Richards, served November 10, 2014
47 Plaintiffs' Motion to Compel Mediation, filed on December 5, 2014
48 Sunset Nursing Home, Inc.'s Second Amended Answer, Fifth Amended Counterclaim and 4th Amended Third-Party Petition, dated January 26, 2015
49 Sunset Nursing Home, Inc. 's 2nct Amended Answer, 5th Amended Counterclaim and 4th Amended Third-Party Petition, filed on April 21, 2015
50 Plaintiffs' and Third-Party Defendants' Supplemental Motion to Strike and for Sanctions, dated April 22, 2015
51 Email correspondence, dated December 8, 2014, from Scott Weatherford to Felicia Harris re deadline for amended DCO
52 RAI's Response to Sunset Nursing Home, Inc. 's 6th [ih] Request for Production, served December 3, 2014
6 TAB DOCUMENT 53 Sunset's Subpoena Duces Tecum to MDS Research Company, served on February 4, 2015
54 Sunset Nursing Home, Inc.' s Supplemental Combined Motion to Compel, served on January 23, 2014
55 Non-Party Country Village Care, Inc. 's Motion for Protection (Subpoena: MDS Research), filed on February 16, 2015
56 Hearing transcript (re subpoena served on MDS Research Company), dated February 24, 2015
57 Correspondence, dated March 30, 2015, from Scott Weatherford to Judge Sebesta re MDS Research documents for in camera inspection
58 Order, signed April 6, 2015, re MDS Research documents for in camera inspection
59 Sunset Nursing Home, Inc.'s Motion for Entry of Proposed Docket Control Order, filed March 11, 2014
60 Docket Control Order, signed April 2, 2014
61 Hearing Transcript, June 23, 2014
62 Sunset Nursing Home, Inc.' s Motion to Compel, Supplemental Motion for Amended Docket Control Order and Motion for Continuance, filed August 21, 2014
63 Email correspondence, dated August 27, 2014, between Breck Harrison and Felicia Harris re amended DCO
64 Email correspondence, dated October, 2014, between Felicia Harris to Breck Harrison re amended DCO
65 Email correspondence, dated October 15, 2014, from Scott Weatherford to Felicia Harris re deadlines re deadlines for amended DCO
66 Email string between Felicia Harris and Breck Harrison re amended DCO
67 Email correspondence, dated September 8, 2014, from Court Coordinator
7 TAB DOCUMENT
to Counsel re deadlines for amended DCO
68 Sunset Nursing Home, Inc. 's (1) No Evidence and Traditional Motion for Partial Summary Judgment, filed February 13, 2015, and (2) Reply in Support of No Evidence and Traditional Motion Partial for Summary Judgment, filed on February 24, 2015
69 Sunset Nursing Home, Inc.'s Second Amended Answer, Fourth Amended Counterclaim and Third Amended Third-Party Petition, filed September 18,2014
70 Email, dated November 21, 2014, from Breck Harrison to Felicia Harris re depositions
71 Plaintiffs' Motion to Quash Amy Stewart Deposition, filed on January 26, 2015
72 Email correspondence, dated January 19, 2015, from Court Coordinator to Felicia Harris re hearing
73 Plaintiffand Third-Party Defendants' Motion to Strike and for Sanctions, filed February 13, 2015
74 Third-Party Defendant Stephen M. Coleman's Rule 91a Motion to Dismiss, filed March 18, 2015
75 Sunset Nursing Home, Inc.'s Supplemental Opposition to Motion to Strike, filed April 27, 2015
76 Third-Party Defendant Stephen M. Coleman's Notice of Withdrawing Rule 91 a Motion to Dismiss, filed on April 22, 2015
77 Paul Heinig Deposition transcript, taken on May 16, 2014
78 Donald Grether Deposition transcript, taken on January 29, 2015
79 Sunset's demand letter, dated February 4, 2013, from Luis Acevedo to Paul Heinig and RAI
80 Plaintiffs' (RAI, et al.) Original Petition, filed on May 23, 2013
8 TAB DOCUMENT 81 Defendant's (Sunset) Answer to Plaintiff's Original Petition and Counterclaim, filed on June 4, 2013
82 Sunset Nursing Home, Inc. ' s First Amended Answer, Counterclaim and Third-Party Petition, filed on October 29, 2013
83 Original Answer of Country Village Care, Inc., Grether Health Facilities, LLC, Sara Richards and Amy Stewart, filed on February 23, 2015
84 Correspondence, dated May 4, 2011, from Center for Medicare & Medicaid Services to Amy Stewart
85 Sunset Nursing Home, Inc. 's Motion to Reconsider (Policies and Procedures in camera ruling), filed September 17, 2014
86 Affiliation Agreement between Grether Health Care Facilities, LLC and RAI, for the Lake Jackson Facility
87 Affiliation Agreement between Grether Health Care Facilities, LLC and RAI, for the Clute Facility
88 Original Answer of Country Village Care, Inc., Grether Health Care Facilities, LLC, Sara Grether Richards and Amy Grether Stewart, filed February 23, 2015
89 Plaintiffs' and Counter-Defendants ' Objections and Responses to Sunset Nursing Home, Inc.' s Fourth Request for Production of Documents, served on June 9, 2014
90 Plaintiff and Counter-Defendant Rebecca Ann, Inc.' s Objections and Responses to Sunset Nursing Home, Inc.'s Eighth [Ninth] Request for Production, served on February 2, 2015
91 Subpoena Duces Tecum to Country Village Care, Inc., dated May 1, 2014
92 Correspondence, dated February 12, 2015, from Breck Harrison to Judge Sebesta re appraisal records for in camera review
93 Correspondence, dated October 31, 2014, from Felicia Harris to Judge Sebesta re depositions scheduling
9 TAB DOCUMENT
94 Correspondence, dated September 25, 2014, from Felicia Harris to Judge Sebesta attaching Proposed Order on Motions to Compel
95 Correspondence, dated December 10, 2014, from Felicia Harris to Judge Sebesta re Plaintiffs' Motion to Compel Mediation
96 Email correspondence, dated July 17, 2014, from Scott Weatherford to Felicia Harris re in camera production of policies and procedures
97 Email correspondence, dated April 13, 2015, from Court Coordinator to Felicia Harris re status of in camera review on appraisal and MDS documents
98 Correspondence, dated September 15, 2014, from Breck Harrison to Judge Sebesta re submission of RAI vendor agreements for in camera review
99 Email correspondence, dated April 1, 2015, from Court Coordinator to Counsel re Court's unilateral decision to continue trial from April to August 2015
100 Email correspondence, dated April 24, 2015, from Court Coordinator to Counsel re matters taken under advisement and expected ruling on in camera documents
101 Third-Party Defendant Stephen M. Coleman's Original Answer and Request for Disclosure, filed February 23, 2015
102 Jackson Walker retention agreement, dated March 18, 2014
103 Email correspondence with Court Coordinator re in camera documents, June 2015
104 Correspondence, dated February 17, 2015, from Felicia Harris to Judge Sebesta re in camera review of 2010 appraisal documents
105 Sunset's (1) Consolidated Motion to Compel from the Grethers, filed March 17, 2015 and (2) Supplemental Motion to Compel, filed March 19, 2015
10 FURTHER AFFIANT SAYETH NOT."
SIGNEDthis \1"dayof ~ ,2015.
BEFORE ME, Justine Fjeldal, Notary Public in and for the State of Texas, on this Ith day of June 2015, personally appeared Felicia Harris, known to me to be the person whose name is subscribed to the foregoing instrument and sworn to me that she executed the same, that she has personal knowledge of the facts stated therein, and that said facts are true and correct.