ACCEPTED 01-15-00793-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/29/2015 3:19:12 PM CHRISTOPHER PRINE CLERK
NO. 01-15-00793-CV
IN THE COURT OF APPEALS FOR THE FILED IN 1"1 JUDICIAL DISTRICT OF HOUSTON 1st COURT OF APPEALS HOUSTON, TEXAS 9/29/2015 3:19:12 PM Nexiofl Health at Beechnut, Inc. v. Maria Moreno, Individually and A. CHRISTOPHER asPRINE Representative of the Estate of Mario Moreno Clerk
On Appeal From the 133rd Judicial District Court of Harris County, Texas Cause No. 2015-01975
APPELLEE'S MOTION TO DISMISS
TO THE HONORABLE FIRST COURT OF APPEALS:
MARIA MORENO, Individually and as Representative of the ESTATE
OF MARIO MORENO ("Appellee") files this Motion to Dismiss to NEXION AT
BEECHNUT, INC., D/B/A BEECHNUT MANOR's ("Appellant") Notice of
Appeal, and would respectfully show the following:
I. BRIEF FACTS
1. Mario Moreno ("Moreno") died from a traumatic head injury suffered in
Appellant's long-term care facility for the cognitively impaired. It was well
known to Appellant's staff Moreno suffered from impaired balance, impaired
cognition and exhibited exit seeking behaviors. 2. However, on May 23, 2013 and again on May 29, 2013, Moreno was
permitted to elope from his room, fall and incur injuries requiring
hospitalization. After the May 29, 2013 fall, Moreno remained in and out of
consciousness until he died from his injuries on May 30, 2013.
11. PROCEDURAL HISTORY
3. Subsequently, Appellee filed suit against Appellant on January 14,
2015. Appellee timely served Appellant with Chapter 74 expert reports for Dr.
Donald Marks and Rhonda Ratterman on February 23, 2015.
4. On August 24, 2015 the trial court heard Appellant's Chapter 74 Motion
to Dismiss regarding the reports. After reviewing the pleadings, the evidence
and arguments by counsel the trial court denied Appellant's Chapter 74
Motion to Dismiss. 1
5. Appellant filed a Notice of Interlocutory Appeal on September 14, 2015 2 and filed a request for Clerk's Record and Reporter's Record the same day.
The Clerk's Record and Reporter's Record were due September 24,
2015, ten (10) days from the date the Notice of Appeal was filed. 3 To date,
1 See Exhibit 1: Order Denying Nexion at Beechnut, lnc.'s Motion to Dismiss. 2 See Exhibit 2: Nexion at Beechnut, lnc.'s Notice of Interlocutory Appeal;. 3 See TEX. R. APP. P. 35.1(b).
2 five days after the deadline, the Clerk's Record and Reporter's Record have
not been filed with the Appellate Clerk because of Appellant's failure to pay.
111. MOTION TO DISMISS
6. When the trial clerk fails to timely file the record because the appellant
failed to pay or make arrangements to pay the clerk's fee, the appellate court
may dismiss the appeal on a party's motion, or on its own initiative. 4 On
September 29, 2015, five days after the deadline to file the record, the trial
clerk informed Appellee the record has not been filed due to lack of payment.
7. Appellant, as the movant, has the responsibility to pay the clerk's fee or
make arrangements to do so. As a result of Appellant's failure to pay or make
arrangements to pay, the record has not been timely filed. Therefore,
Appellee asks the Court to dismiss Appellant's Notice of Appeal for a failure
to file a record pursuant to TEX. R. APP. P. 37.3(b).
IV. PRAYER
8. Appellee respectfully requests the First Court of Appeals to DISMISS
Appellant's Notice of Appeal and for all other relief, both in law and equity, to
which they may be entitled.
4 See TEX. R. APP. P. 37.3(b).
3 Respectfully Submitted,
THE GIBSON LAW F"IRM
Jason A. Gibson State Bar No. 24000606 Casey L. Jordan State Bar No. 24090599 The Lyric Centre 440 Louisiana, Suite 2400 Houston, Texas 77002 Ph: (713) 650-1010 Fax: (713) 650-1011
ATTORNEYS FOR APPELLEE
CERTIFICATION OF FACTS
I have reviewed the above Motion to Dismiss. I certify every factual statement is supported by competent evidence included in the record.
Casey L. Jordan
4 CERTIFICATE OF SERVICE
I certify a true and correct copy of this document has been served on all counsel of record via first class regular mail or fax on September 29, 2015.
5 EXHIBIT 1 Cause No 2016-01976-133 vC~. MARIO MORENO, lndMdually § and as Representative oftlta ESTATE § IN THE DISTRICT COURT OF y OF MARIO MORENO § § § i i v § § § NEXION HEALTH AT BEECHNUT, INC , § dlb/a BEECHNUT MANOR § 133111 JUDICIAL DISTRI ORDER DENYING DEFENDANT NEXION AT BEECHNUT, INC DIB/A BEECHNUT MANOR'S CHAP1ER 74 MOTION TO D!SMJSS
The Court heard Defendant's Chapter 74 Mobon to D1amtas After reviewing 1he pleadings, the evidence and arguments by counsel, If any, the Court OEN/ES Defendanrs
Chapter 74 Motion to Dusm1ss
SIGNED ON tLwJ.u..ib 91± I 2015
Exhibit A··· EXHIBIT 2 9114120151:13:17 PM Chris Danlel - District Clerk Harris County Envelope No. 69092BB By; Phyllis Washington Filed: 9114120151:13:17 PM
NO. 2015-01975-133
MARIA MORENO, Individually and as § IN THE DISTRICT COURT Representative of the Estate of Mario § Moreno, § § Plaintiff, § § ~ § HARRIS COUNTY, TEXAS § NEXIONHEALTHATBEECHNUT, INC., § d/b/a Beechnut Manor § § Defendant. § 133r<1 JUDICIAL DISTRICT
DEFENDANT'S NOTICE OF INTERLOCUTORY APPEAL AND NOTICE OF AUTOMATIC TRIAL STAY
TO THE HONORABLE COURT:
Please take notice that, pursuant to Texas Rule of Appellate Procedure 26.1 (b), Defendant
Nexion Health at Beechnut Inc. d/b/a Beechnut Manor ("Beechnut") desires to appeal to the First
or Fourteenth District Court of Appeals at Houston, Texas, the trial court's August 24, 2015
Order denying Beechnut's Chapter 74 Motion to Dismiss. See Attachment "A." Such Order is
subject to an accelerated interlocutory appeal. See Tex. Civ. Prac. & Rem. Code§ 51.014(a)(9);
Tex. R. App. P. 28.1. This notice of appeal is timely filed within twenty days after the trial
court's Order was signed. See Tex. R. App. P. 26.l(b). As required by the Local Rules Relating
to Assignment of Related Cases to· and Transfers of Related Cases between the First and
Fourteenth Courts of Appeals, I certify that no other related appeal or original proceeding has
been previously filed in either the First or Fourteenth Court of Appeals.
Further, please tal
automatically stayed pending resolution of the interlocutory appeaL See Tex. Civ. Prac. & Rem.
Code§ 51.014(b).
DEFENDANT'S NOTICE OF INTERLOCUTORY APPEAL AND NOTICE OF AUTOMATIC TRIAL STAY PAGEl 943720.1 2014.81 Weston M. Davis is designated as lead counsel for the appeal.
Respectfully submitted,
MACDONALD DEVIN, P.C.
By: Isl Gregory N. Ziegler Gregory N. Ziegler State Bar No. 00791985 gziegler@macdonalddevin.com J. Edward Johnson State Bar No. 24070001 ejohnson@macdonalddevin.com Weston M. Davis State Bar No. 24065126 wdavis@macdonalddevin.com
3800 Renaissance Tower 1201 Elm Street Dallas, Texas 75270-2130 (214) 744-3300 Telephone (214) 747-0942 Facsimile
ATTORNEYS FOR DEFENDANT
DEFENDANT'S NOTICE OF INTERLOCUTORY APPEAL AND NOTICE OF AUTOMATIC TRIAL STAY PAGE2 943720.l 2014.81 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
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ACCEPTED 01-15-00793-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/29/2015 3:19:12 PM CHRISTOPHER PRINE CLERK
NO. 01-15-00793-CV
IN THE COURT OF APPEALS FOR THE FILED IN 1"1 JUDICIAL DISTRICT OF HOUSTON 1st COURT OF APPEALS HOUSTON, TEXAS 9/29/2015 3:19:12 PM Nexiofl Health at Beechnut, Inc. v. Maria Moreno, Individually and A. CHRISTOPHER asPRINE Representative of the Estate of Mario Moreno Clerk
On Appeal From the 133rd Judicial District Court of Harris County, Texas Cause No. 2015-01975
APPELLEE'S MOTION TO DISMISS
TO THE HONORABLE FIRST COURT OF APPEALS:
MARIA MORENO, Individually and as Representative of the ESTATE
OF MARIO MORENO ("Appellee") files this Motion to Dismiss to NEXION AT
BEECHNUT, INC., D/B/A BEECHNUT MANOR's ("Appellant") Notice of
Appeal, and would respectfully show the following:
I. BRIEF FACTS
1. Mario Moreno ("Moreno") died from a traumatic head injury suffered in
Appellant's long-term care facility for the cognitively impaired. It was well
known to Appellant's staff Moreno suffered from impaired balance, impaired
cognition and exhibited exit seeking behaviors. 2. However, on May 23, 2013 and again on May 29, 2013, Moreno was
permitted to elope from his room, fall and incur injuries requiring
hospitalization. After the May 29, 2013 fall, Moreno remained in and out of
consciousness until he died from his injuries on May 30, 2013.
11. PROCEDURAL HISTORY
3. Subsequently, Appellee filed suit against Appellant on January 14,
2015. Appellee timely served Appellant with Chapter 74 expert reports for Dr.
Donald Marks and Rhonda Ratterman on February 23, 2015.
4. On August 24, 2015 the trial court heard Appellant's Chapter 74 Motion
to Dismiss regarding the reports. After reviewing the pleadings, the evidence
and arguments by counsel the trial court denied Appellant's Chapter 74
Motion to Dismiss. 1
5. Appellant filed a Notice of Interlocutory Appeal on September 14, 2015 2 and filed a request for Clerk's Record and Reporter's Record the same day.
The Clerk's Record and Reporter's Record were due September 24,
2015, ten (10) days from the date the Notice of Appeal was filed. 3 To date,
1 See Exhibit 1: Order Denying Nexion at Beechnut, lnc.'s Motion to Dismiss. 2 See Exhibit 2: Nexion at Beechnut, lnc.'s Notice of Interlocutory Appeal;. 3 See TEX. R. APP. P. 35.1(b).
2 five days after the deadline, the Clerk's Record and Reporter's Record have
not been filed with the Appellate Clerk because of Appellant's failure to pay.
111. MOTION TO DISMISS
6. When the trial clerk fails to timely file the record because the appellant
failed to pay or make arrangements to pay the clerk's fee, the appellate court
may dismiss the appeal on a party's motion, or on its own initiative. 4 On
September 29, 2015, five days after the deadline to file the record, the trial
clerk informed Appellee the record has not been filed due to lack of payment.
7. Appellant, as the movant, has the responsibility to pay the clerk's fee or
make arrangements to do so. As a result of Appellant's failure to pay or make
arrangements to pay, the record has not been timely filed. Therefore,
Appellee asks the Court to dismiss Appellant's Notice of Appeal for a failure
to file a record pursuant to TEX. R. APP. P. 37.3(b).
IV. PRAYER
8. Appellee respectfully requests the First Court of Appeals to DISMISS
Appellant's Notice of Appeal and for all other relief, both in law and equity, to
which they may be entitled.
4 See TEX. R. APP. P. 37.3(b).
3 Respectfully Submitted,
THE GIBSON LAW F"IRM
Jason A. Gibson State Bar No. 24000606 Casey L. Jordan State Bar No. 24090599 The Lyric Centre 440 Louisiana, Suite 2400 Houston, Texas 77002 Ph: (713) 650-1010 Fax: (713) 650-1011
ATTORNEYS FOR APPELLEE
CERTIFICATION OF FACTS
I have reviewed the above Motion to Dismiss. I certify every factual statement is supported by competent evidence included in the record.
Casey L. Jordan
4 CERTIFICATE OF SERVICE
I certify a true and correct copy of this document has been served on all counsel of record via first class regular mail or fax on September 29, 2015.
5 EXHIBIT 1 Cause No 2016-01976-133 vC~. MARIO MORENO, lndMdually § and as Representative oftlta ESTATE § IN THE DISTRICT COURT OF y OF MARIO MORENO § § § i i v § § § NEXION HEALTH AT BEECHNUT, INC , § dlb/a BEECHNUT MANOR § 133111 JUDICIAL DISTRI ORDER DENYING DEFENDANT NEXION AT BEECHNUT, INC DIB/A BEECHNUT MANOR'S CHAP1ER 74 MOTION TO D!SMJSS
The Court heard Defendant's Chapter 74 Mobon to D1amtas After reviewing 1he pleadings, the evidence and arguments by counsel, If any, the Court OEN/ES Defendanrs
Chapter 74 Motion to Dusm1ss
SIGNED ON tLwJ.u..ib 91± I 2015
Exhibit A··· EXHIBIT 2 9114120151:13:17 PM Chris Danlel - District Clerk Harris County Envelope No. 69092BB By; Phyllis Washington Filed: 9114120151:13:17 PM
NO. 2015-01975-133
MARIA MORENO, Individually and as § IN THE DISTRICT COURT Representative of the Estate of Mario § Moreno, § § Plaintiff, § § ~ § HARRIS COUNTY, TEXAS § NEXIONHEALTHATBEECHNUT, INC., § d/b/a Beechnut Manor § § Defendant. § 133r<1 JUDICIAL DISTRICT
DEFENDANT'S NOTICE OF INTERLOCUTORY APPEAL AND NOTICE OF AUTOMATIC TRIAL STAY
TO THE HONORABLE COURT:
Please take notice that, pursuant to Texas Rule of Appellate Procedure 26.1 (b), Defendant
Nexion Health at Beechnut Inc. d/b/a Beechnut Manor ("Beechnut") desires to appeal to the First
or Fourteenth District Court of Appeals at Houston, Texas, the trial court's August 24, 2015
Order denying Beechnut's Chapter 74 Motion to Dismiss. See Attachment "A." Such Order is
subject to an accelerated interlocutory appeal. See Tex. Civ. Prac. & Rem. Code§ 51.014(a)(9);
Tex. R. App. P. 28.1. This notice of appeal is timely filed within twenty days after the trial
court's Order was signed. See Tex. R. App. P. 26.l(b). As required by the Local Rules Relating
to Assignment of Related Cases to· and Transfers of Related Cases between the First and
Fourteenth Courts of Appeals, I certify that no other related appeal or original proceeding has
been previously filed in either the First or Fourteenth Court of Appeals.
Further, please tal
automatically stayed pending resolution of the interlocutory appeaL See Tex. Civ. Prac. & Rem.
Code§ 51.014(b).
DEFENDANT'S NOTICE OF INTERLOCUTORY APPEAL AND NOTICE OF AUTOMATIC TRIAL STAY PAGEl 943720.1 2014.81 Weston M. Davis is designated as lead counsel for the appeal.
Respectfully submitted,
MACDONALD DEVIN, P.C.
By: Isl Gregory N. Ziegler Gregory N. Ziegler State Bar No. 00791985 gziegler@macdonalddevin.com J. Edward Johnson State Bar No. 24070001 ejohnson@macdonalddevin.com Weston M. Davis State Bar No. 24065126 wdavis@macdonalddevin.com
3800 Renaissance Tower 1201 Elm Street Dallas, Texas 75270-2130 (214) 744-3300 Telephone (214) 747-0942 Facsimile
ATTORNEYS FOR DEFENDANT
DEFENDANT'S NOTICE OF INTERLOCUTORY APPEAL AND NOTICE OF AUTOMATIC TRIAL STAY PAGE2 943720.l 2014.81 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
upon opposing counsel of record as indicated below in accordance with the Texas Rules of Civil
Procedure, on this 14th day of September, 2015.
VIA EMAIL: JAG@JAG-LAWFIRM.COM CPEEL@JAG-LAWFIRM.COM Jason A. Gibson Clifford D. Peel II Casey L. Jordan THE GIBSON LAW FIRM The Lyric Centre 440 Louisiana, Suite 2400 Houston, Texas 77002
Isl J. Edward Johnson J. Edward Johnson
DEFENDANT'S NOTICE OF INTERLOCUTORY APPEAL AND NOTICE OF AUTOMATIC TRIAL STAY PAGE3 943720.l 2014.Sl ••~·~•••••••••• -COMM. JOURNAL- ••••••••••••••••••• DATE SEP-29-2015 ••••• TIME 14:09 ••••••••
MODE = MEMORY TRANSMISSION START=SEP-29 14:06 END=SEP-29 14:09 FILE NO. =971 STN COMM. STATION NAME/EMAIL ADDRESS/TELEPHONE NO. PAGES DURATION NO. 001 OK a12147470942 012/012 00:03:05
-THE GIBSON LAW FIRM **'*' e-STUDI0190F ••••••••••••••••• -
GI THE G1asoN LAW F'IRM
FAX COVER SHEET
TO: Gregory N. Ziegler FAX: (214) 747-0942 Macdonald Devin, P.C.
DATE: September29, 2015
FROM: Casey L. Jordan/sf
WE ARE SENDING (7) PAGES (including this page).
RE: Cause No. 2015-01975-133; Maria Moreno, Individually and as Representative of the Estate of Mario Moreno v. Nexion Health at Beechnut, Inc.
MESSAGE: Please see attached:
1) Appellee's Motion To Dismiss
If you do not receive the entire FAX, or are not receiving it clearly, please call us at (713) 650-101 o.
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TO: Gregory N. Ziegler FAX: (214) 747-0942 Macdonald Devin, P.C.
DATE: September29,2015
RE: Cause No. 2015-01975-133; Maria Moreno, Individually and as Representative of the Estate of Mario Moreno v. Nexion Health at Beechnut, Inc. dlbla Beechnut Manor
If you do not receive the entire FAX, or are not receiving it clearly, please call us at (713) 650-1010.
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THE LYRIC:: CENTRE, 440 LCJUISIANA, SUITE 2400, HCJUSTCJN, TX 7 7 0 0 2 PH: (713) 650-1010 FAX: (713) 650-1011 TCLL FREE: 1-866-..JAGFIRM (524-3476) WWW.JAG-LAW Fl RM.C::CJ M