Pinecrest SNF, LLC D/B/A Pinecrest Nursing & Rehabilitation Center v. Tasco Bailey, Nathan Bailey, Carlie Bailey, Roy Bailey, Bill Bailey, James Bailey, Earl Bailey, Mary Dunlap and Licille Martin, as Heirs of Archie Bailey

Opinion

ACCEPTED

12-14-00357-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

12/29/2014 4:35:48 PM

CATHY LUSK

Appellate Docket Number: 12-14-00357-CV CLERK

Appellate Case Style: Pinecrest SNF, LLC d/b/a Pinecrest Nursing & Rehabilitation Center

Vs. Tasco Bailey, Nathan Bailey, Carlie Bailey, Roy Bailey, Bill Bailey, James Bailey, Earl Bailey, Mary Dunlap and Licille Martin as Heirs of Archie Bailey FILED IN

Companion Case No.: 12th COURT OF APPEALS TYLER, TEXAS

12/29/2014 4:35:48 PM

CATHY S. LUSK

Clerk

Amended/corrected statement: DOCKETING STATEMENT (Civil)

Appellate Court: 12th Court of Appeals (to be filed in the court of appeals upon perfection or appeal under TRAP 32)

I. Appellant II. Appellant Attomey(s)

❑ Person 0 Organization (choose one) 0 Lead Attorney Organization Name: Pinecrest SNF, LLC d/b/a Pinecrest Nursing First Name: Nichol First Name: Middle Name: L.

Middle Name: Last Name: Bunn Last Name: Suffix:

Suffix: Law Firm Name: Lewis Brisbois Bisgaard & Smith, LLP

Pro Se: Q Address I : 2100 Ross Avenue Address 2: Suite 2000 City: Dallas State: Texas Zipi 4: 75201

Telephone: (214) 722-7100 ext. 7105

Fax: (214) 722-7111 Email: nichol.bunnAlewisbrisbois.com SBN: 00790394

III. Appellee IV. Appellee Attomey(s)

x Person I Organization (choose one) 0 Lead Attorney First Name: Robert First Name: Tasco Middle Name:

Middle Name: Last Name: Wharton Last Name: Bailey Suffix: Suffix: Law Firm Name: McIver Brown Law Firm Pro Se: 0 Address I: 712 Main Street Address 2: Suite 800 City: Houston

State: Texas Zip+4: 77002 Telephone: (832) 767-1673 ext. Fax: (832) 767-1783 Email: rwharton(Onciverbrown.com SRN: 24079562

V. Perfection Of Appeal And Jurisdiction

Nature of Case (Subject matter or type of case): Professional Malpractice Date order or judgment signed: November 25, 2014 Type of judgment: Interlocutory Order Date notice of appeal filed in trial court: December 15, 2014 if mailed to the trial court clerk, also give the date mailed: December 15, 2014 Interlocutory appeal of appealable order: x Yes ❑ No If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28): Civ. Prac. & Rem. Code Sec 51.014(a)( 10) Accelerated appeal (See TRAP 28): Ci Yes ❑ No If yes, please specify statutory or other basis on which appeal is accelerated: TRAP 28.1(a)

Parental Termination or Child Protection? (See TRAP 28.4): ❑ Yes No

Permissive? (See TRAP 28.3): ❑ Yes x No If yes, please specify statutory or other basis for such status:

Agreed? (See TRAP 28.2): ❑ Yes x No If yes, please specify statutory or other basis for such status:

Appeal should receive precedence, preference, or priority under statute or rule: • Yes x No If yes, please specify statutory or other basis for such status:

Does this case involve an amount under $100,000? • Yes 0 No Judgment or order disposes of all parties and issues: ❑ Yes x No Appeal from final judgment: • Yes x No Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? • Yes END

VI. Actions Extending Time To Perfect Appeal

Motion for New Trial: •Yes x No If yes, date filed: Motion to Modify Judgment: •Yes El No if yes, date filed: Request for Findings of Fact ❑ Yes Ei No If yes, date filed: and Conclusions of Law:

DYes x No If yes, date filed:

Motion to Reinstate:

❑ Ycs U No If yes, date filed:

Motion under TRCP 306a: Other: ❑ Yes 0 No If other, please specify:

VII:. Indigency Of Party: (Attach file-stamped copy of affidavit, and extension motion if filed.)

Affidavit filed in trial court: ❑ Yes FA No I f yes, date filed:

Contest filed in trial court: ■ Yes [J No If yes, date filed:

Date ruling on contest due:

Ruling on contest: • Sustained ❑ Overruled Date of ruling:

VIII. Bankruptcy

Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? • Yes I=1 No If yes, please attach a copy of the petition.

Date bankruptcy filed: Bankruptcy Case Number:

IX. Trial Court And Record

Court: 114th District Court Clerk's Record:

County: Smith County Trial Court Clerk: x District ❑ County Trial Court Docket Number (Cause No.): 14-0856-B Was clerk's record requested? x Yes ■ No

Ryes, date requested: December 17, 2014 frial Judge (who tried or disposed of case): If no, date it will be requested: First Name: Christi Were payment arrangements made with clerk? Middle Name: (1 Yes • No Cl 1 ndigent Last Name: Kennedy (Note: No request required under TRAP 34.5(a),(b))

Suffix: Address 1: 100 N. Broadway Address 2 : Room 209 City: Tyler State: Texas Zip I- 4: 75702 Telephone: (903) 590-1625 ext.

Fax: Email:

Reporter's or Recorder's Record: Is there a reporter's record? • Yes 13 No Was reporter's record requested? ❑ Yes ei No Was there a reporter's record electronically recorded? ❑ Yes x No If yes, date requested:

If no, date it will be requested: Were payment arrangements made with the court reporter/court recorder? es • No E Indigent

❑ Court Reporter ❑ Court Recorder Official ■ Substitute

First Name: Middle Name: Last Name: Suffix: Address 1: Address 2: City: State: Texas Zip + 4: Telephone: ext. Fax: Email:

X. Supersedeas Bond Supersedeas bond filed: / Yes x No If yes, date filed:

Will file: ❑ Yes x No

XI. Extraordinary Relief

Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? x No • Yes ❑

If yes, briefly state the basis for your request:

XII. Alternative Dispute Resolution/Mediation (Complete section if filing in the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, or 14th Court of Appeal) Should this appeal be referred to mediation? © No ❑ Yes

If no, please specify:

■ Court Reporter ■ Court Recorder ❑ Official ❑ Substitute

First Name: Middle Name: Last Name: Suffix: Address 1: Address 2: City: State: Texas Zip t- 4: Telephone: ext. Fax: Email:

X. Supersedeas Bond

Supersedeas bond filed:[] Yes ❑ No If yes, date filed:

Will file: ❑ Yes ❑ No

Xl. Extraordinary Relief

Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? • Yes al No If yes, briefly state the basis for your request:

XII. Alternative Dispute Resolution/Mediation (Complete section if filing in the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, or 14th Court of Appeal) Should this appeal be referred to mediation?

❑ Yes ©No

If no, please specify: appellate issues not suitable for appeal Has the case been through an ADR procedure? ❑Yes x No If yes, who was the mediator? What type of ADR procedure? At what stage did the case go through ADR? ❑ Pro-Trial ❑ Post-Trial El Other 1 f other, please specify:

Type of case? Professional Malpractice Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without prejudice to the right to raise additional issues or request additional relief): Interlocutory appeal of denial of motion to dismiss under Chapter 74 of the Texas Civil Practice and Remedies Code

How was the case disposed of? Summary of relief granted, including amount of money judgment, and if any, damages awarded. If money judgment, what was the amount? Actual damages:

Punitive (or similar) damages:

Attorney's fees (trial): Attorney's fees (appellate): Other: If other, please specify:

Will you challenge this Court's jurisdiction? E Yes ci No Does judgment have language that one or more parties "take nothing"? D Yes El No Does judgment have a Mother Hubbard clause? ❑Yes Q No Other basis for finality? Rate the complexity of the case (use I for least and 5 for most complex): El 02 E3 E4 E5 Please make my answer to the preceding questions known to other parties in this case. ❑ Yes No Can the parties agree on an appellate mediator? ❑ Yes 17] No If yes, please give name, address, telephone, fax and email address: Name Address Telephone Fax Email

Languages other than English in which the mediator should be proficient: Name of person filing out mediation section of docketing statement:

XIII. Related Matters

List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.

Docket Number: Trial Court:

Style:

Vs.

XIV. Pro Bono Program: (Complete section if filing in the 1st, 3rd, 5th, or 14th Courts of Appeals)

The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar Associations, are conducting a program to place a limited number of civil appeals with appellate counsel who will represent the appellant in the appeal before this Court.

The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can be matched with appellate counsel, that counsel will take over representation of the appellant or appellee without charging legal fees. More information regarding this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the Internet at www.tex-app.org. If your case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Committee within thirty (30) to forty-five (45) days after submitting this Docketing Statement. Note: there is no guarantee that if you submit your case for possible inclusion in the Pro Bono Program, the Pro Bono Committee will select your case and that pro bono counsel can be found to represent you. Accordingly, you should not forego seeking other counsel to represent you in this proceeding. By signing your name below, you are authorizing the Pro Bono committee to transmit publicly available facts and information about your case, including parties and background, through selected Internet sites and Listsery to its pool of volunteer appellate attorneys. Do you want this case to be considered for inclusion in the Pro Bono Program? ❑ Yes 0 No

Do you authorize the PrcWono Cpa mittee to contact your trial counsel of record in this matter to answer questions the committee may have regarding the appeal? 11 Yes xL( No

Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for the purposes of considering the case for inclusion in the Pro Bono Program.

If you have not previously filed an affidavit of Indigency and attached a file-stamped copy of that affidavit, does your income exceed 200% of the U.S. Department of Health and Human Services Federal Poverty Guidelines? ❑ Yes p No

These guidelines can be found in the Pro Bono Program Pamphlet as well as on the internct at http://aspe.hhs.gov/poverty/06poverty.shtml.

Are you willing to disclose your financial circumstances to the Pro Bono Committee? 111 Yes No If yes, please attach an Affidavit of Indigency completed and executed by the appellant or appellee. Sample forms may be found in the Clerk's Office or on the internet at http://www.tex-app.org. Your participation in the Pro Bono Program may be conditioned upon your execution of an affidavit under oath as to your financial circumstances.

Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary).

XV. Signature

,via ► Lee ,,,„ Signature of counse (or pro se party) Date: December 29, 2014

Printed Name: Nichol L. Bunn State Bar No.: 00790394

Electronic Signature: /s/Nichol L. Bunn (Optional)

XVI. Certificate of Service

The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial court's order or judgment as follows on December 29, 2014 •

114.4,,r7 vo- Y cteet Signature of counsel (or pro se p rtY) Electronic Signature:

(Optional

State liar No.: 00790394

Person Served Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must state:

(1) the date and manner of service; (2) the name and address of each person served, and (3) if the person served is a party's attorney, the name of the party represented by that attorney

Please enter the following for each person served:

Date Served: December 29, 2014

Manner Served: Email

F irst Name: Robert

Middle Name:

Last Name: Wharton Suffix:

Law Firm Name: McIver Brown Law Firm

Address 1: 712 Main Street Address 2: Suite 800

City: Houston

State Texas Zip+4: 77002

Telephone: (832) 767-1673 ext.

Fax: (832) 767-1783

Email: rwhartonamciverbrown.com

lf Attorney, Representing Party's Name: Tasco Bailey a