Nexion Health at Beechnut, Inc., D/B/A Beechnut Manor v. Maria Moreno, Individually and as Representative of the Estate of Mario Moreno
Opinion
ACCEPTED 01-15-00793-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/30/2015 3:42:21 PM CHRISTOPHER PRINE CLERK
No. 01-15-00793-CV
In the Court of Appeals FILED IN 1st COURT For the First District of Texas at Houston HOUSTON,OF APPEALS TEXAS 9/30/2015 3:42:21 PM CHRISTOPHER A. PRINE Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor, Clerk Appellant
v.
Maria Moreno, Individually and as Representative of the Estate of Mario Moreno, Appellee
On Appeal from the 133rdJudicial District Court of Harris County, Texas Cause Number 2015-01975 The Honorable Jaclanel McFarland, Presiding Judge
Appellant’s Response to Appellee’s Motion to Dismiss
Gregory N. Ziegler Weston M. Davis Texas Bar No. 00791985 Texas Bar No. 24065126 J. Edward Johnson State Bar No. 24070001
MACDONALD DEVIN, PC 3800 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 214.744.3300 Telephone 214.747.0942 Facsimile
Attorneys for Appellants
1 949112 2014.81
TO THE HONORABLE COURT OF APPEALS:
Appellant Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor
(“Appellant”) files this Response to the Motion to Dismiss filed by Appellee Maria
Moreno, Individually and as Representative of the Estate of Mario Moreno
(“Appellee”), and would respectfully show the Court as follows:
1. On September 14, 2015, simultaneously with the filing of its Notice of
Appeal in this cause, Appellant filed its Designation of Clerk’s Record with the
Court Clerk for the 133rd Judicial District Court, Harris County, Texas. The
Designation of Clerk’s Record is attached hereto as Exhibit “1.” As a result, the
Clerk’s Record was due in this case on September 24, 2015. TEX. R. APP. P.
35.1(b).
2. On September 29, 2015, Appellant received, for the first time, an
invoice from the Harris County District Clerk requesting payment for the Clerk’s
Record in this case. A copy of such invoice is attached hereto as Exhibit “2.”
3. On September 30, 2015, Appellant forwarded a check for $160.00 to
the District Clerk for payment of the Clerk’s Record. A copy of the letter
accompanying such payment is attached hereto as Exhibit “3.”
4. As Appellant has timely tendered payment for the Clerk’s Record in
accordance with TEX. R. APP. P. 35.3(a)(2), Appellee’s Motion to Dismiss must be
denied.
2 949112 2014.81
PRAYER FOR RELIEF
Appellant respectfully requests that the Court deny Appellee’s Motion to
Dismiss, and for all such other and further relief to which Appellant shows itself
entitled, in law or equity.
Respectfully submitted,
/s/ Weston M. Davis Weston M. Davis Texas Bar No. 24065126 WDavis@macdonalddevin.com Gregory N. Ziegler Texas Bar No. 00791985 GZiegler@macdonalddevin.com J. Edward Johnson Texas Bar No. 24070001 EJohnson@macdonalddevin.com
MACDONALD DEVIN, PC 3800 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 214.744.3300 telephone 214.747.0942 facsimile
Attorneys for Appellant
3 949112 2014.81
CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that on September 30, 2015, I have served this document on all other parties listed below as follows:
VIA EMAIL: JAG@JAG-LAWFIRM.COM CJORDAN@JAG-LAWFIRM.COM Jason A. Gibson Casey L. Jordan THE GIBSON LAW FIRM The Lyric Centre 440 Louisiana, Suite 2400 Houston, Texas 77002
/s/ J. Edward Johnson J. Edward Johnson
4 949112 2014.81
9/14/2015 3:57:40 PM Chris Daniel - District Clerk Harris County Envelope No. 6916514 By: EVELYN PALMER J. Edward Filed: Johnson 9/14/2015 3:57:40 PM 214.651.3376 ejohnson@macdonalddevin.com
September 14, 2015
Evelyn Palmer Via Electronic Filing Court Clerk 133rd Judicial District Court, Harris County, Texas Harris County Civil Courthouse 201 Caroline, 11th Floor Houston, TX 75202
RE: Maria Moreno, Individually and as Representative of the Estate of Mario Moreno v. Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor, Cause No. 2015- 01975, in the 133rd Judicial District Court of Harris County, Texas
DESIGNATION OF CLERK’S RECORD
Dear Ms. Palmer,
On September 14, 2015, Defendant Nexion Health at Beechnut, Inc. (“Beechnut”)
appealed the Court's August 24, 2015 Order denying Beechnut’s Chapter 74 Motion to Dismiss to the First or Fourteenth Court of Appeals. Accordingly, Beechnut respectfully requests the Court Clerk to prepare, certify, and file the Clerk's Record for appeal. Pursuant to Texas Rule of Appellate Procedure 34.5(a)(13). Beechnut requests that the following documents and any exhibits and attachments thereto—identified by approximate filing date and title—be included in the Clerk's Record:
1. 01-14-15 Plaintiff’s Original Petition;
2. 02-20-15 Beechnut’s Original Answer and Request for Disclosure;
3. 06-29-15 Beechnut’s CPRC Chapter 74 Motion to Dismiss;
4. 07-17-15 Notice of Hearing on Beechnut’s Chapter 74 Motion to Dismiss;
5. 08-21-15 Plaintiff’s Response to Beechnut’s Chapter 74 Motion to Dismiss;
6. 08-24-15 Order Denying Beechnut’s Chapter 74 Motion to Dismiss;
7. 09-14-15 Beechnut’s Notice of Interlocutory Appeal and Notice of Automatic Trial Stay;
8. Designation of Clerk’s Record (this letter);
9. the Court’s Docket Sheet; and
10. a Certified Bill of Costs.
3800 Renaissance Tower ▪ 1201 Elm Street ▪ Dallas, Texas 75270 ▪ Telephone: 214.744.3300 ▪ Facsimile: 214.747.0942 ▪ www.macdonalddevin.com
Letter to Clerk Palmer September 14, 2015 Page 2
Beechnut requests that the documents listed above be prepared, certified, and filed in the First or Fourteenth Court of Appeals, in the cause styled Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor v. Maria Moreno, Individually and as Representative of the Estate of Mario Moreno. This is an accelerated interlocutory appeal, filed under Texas Rule of Appellate Procedure 26.1(b). Consequently, Texas Rule of Appellate Procedure 35.1(b) requires that the Clerk’s Record be prepared, certified, and filed with the Clerk of the Court of Appeals within ten days of the filing of the notice of appeal.
Please advise regarding the costs to prepare the original and a copy of this record, so we may make payment arrangements. If you have any questions, please do not hesitate to call me directly. Thank you for your assistance in this matter.
Sincerely,
J. Edward Johnson
JEJ/jej 943730 2014.81
cc: Jason A. Gibson Via Electronic Filing and Electronic Mail Casey L. Jordan THE GIBSON LAW FIRM The Lyric Centre 440 Louisiana, Suite 2400 Houston, Texas 77002 9/29/2015 8:43 Remote ID Remote ID D 212
9n912015 GREGORY~. ZIEGLER STJ\TE BAR NO. 00791985 3800 RENAISSANCE TOWER 1201 E LM STREET DALLAS, TEXAS 75270-2130 (214) 744-3300 TELEPHONE (2 14) 747-0942 FACSIMILE
Re: No.: 2015-01975
Dear Custom er:
This Jetter is to inform you of the balance, which represents the cost to our office of preparing, at your request, the O riginal Cl erk's Record in the above numbered case. Rule (35.3) of the Texas Rules of Appellate Procedure requires that payment of this cost be remitted to our office prior to forwarding the clerk's record to the Court of Appeals.
ORIGI NAL C LER KS RECORD $160.00
DELIVERED TO THE 1ST COURT OF APPEALS
BA L ANCE DUE $160.00
You may remit your payment in the fonn of attorney or law finn check, money order or cashier's check, payable to Chris Danie~ District Clerk, by mailing to: Cluis Danie~ District Clerk, Attn: Civil/Family Post Trial, P.O. Box 4651, Houston, TX 77210- 465 1.
Payment also may be remitted in person at the following location: Cluis Daniel, District Clerk, Civil/Family Post Trial, 201 Caroline, Room 250, Houston, TX 77002.
Please be infonned that this correspondence is the only notice you will receive from this office regarding this payment.
CHRIS DANIEL, CLERK DISTRICT COURT, HARJUS COUNTY, TEXAS
BY: Is/ MICHELLE LOPEZ :MICHELLE LOPEZ, DEP UTY
APl R04 - 30 - 92 9/29/2015 8:43 Remote ID Remote ID D 1/2
Chris Daniel Harris County District C ler·k
FAX COVER SHEET
DATE: Tuesday, September 29, 2015 08:42AM
TO: ATTY ZIEGLER
FAX: 2147470942
SUBJECT: 20 15-01975 Original Clerks Rec Balance Due
FROI\1: Civil -Family Post Trial Clerk, Michelle Lopez
VOICE: 713-755-7300
FAX: 713-755-1173
COMMENTS:
Total Pages (including cover sheet): 2
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Nexion Health at Beechnut, Inc., D/B/A Beechnut Manor v. Maria Moreno, Individually and as Representative of the Estate of Mario Moreno (Nexion Health at Beechnut, Inc., D/B/A Beechnut Manor v. Maria Moreno, Individually and as Representative of the Estate of Mario Moreno) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.