                                                                                             ACCEPTED
                                                                                        01-15-00327-CV
                                                                              FIRST COURT OF APPEALS
                                                                                      HOUSTON, TEXAS
                                                                                  4/10/2015 10:48:05 AM
                                                                                    CHRISTOPHER PRINE
                                                                                                 CLERK

                            No. 01-15-00327-CV

                           In the Court of Appeals               FILED IN
                                                           1st COURT
                  For the First District of Texas at Houston HOUSTON,OF APPEALS
                                                                         TEXAS
                                                       4/10/2015 10:48:05 AM
                                                       CHRISTOPHER A. PRINE
            In re NEXION HEALTH AT             BEECHNUT, INC. Clerk
                    D/B/A BEECHNUT MANOR,
                            Relator


                       Original Proceeding from the
                    Probate Court No. 1 of Harris County
                The Honorable Loyd Wright, Presiding Judge
                        Cause Number 404,607-401


            RELATOR’S EMERGENCY MOTION TO STAY


TO THE HONORABLE COURT OF APPEALS:

      Relator Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor (“Relator”)

files this Emergency Motion to Stay enforcement of two discovery orders pending

the disposition of Relator’s Writ of Mandamus, pursuant to Texas Rule of

Appellate Procedure 52.10(a), and respectfully shows as follows:

      1.    On April 10, 2015, simultaneously with the filing of this Motion,

Relator filed its Petition for Writ of Mandamus seeking review of the trial court’s

order compelling production of documents protected from discovery by Texas’

medical peer-review privilege.




                                        1                           880162.1 2014.60
      2.     If the Court does not grant this Mandamus, Relator will not have an

adequate remedy by ordinary appeal as it will lose the protections afforded Relator

by Texas law. Similarly, Relator will not have an adequate remedy at law and the

ripeness of this original proceeding will be impacted unless this Court grants this

Motion for Emergency Stay and maintains the status quo by staying the production

of these privileged documents until such time as this Court has the opportunity to

rule on the merits of this original proceeding.

      3.     This Court may grant temporary relief pending its determination of an

original proceeding. TEX. R. APP. P. 52.10(b). This emergency stay is necessary

to maintain the status quo of the parties and preserve the Court’s jurisdiction to

consider the merits of the original proceeding. In re Reed, 901 S.W.2d 604, 609

(Tex. App.—San Antonio 1995, orig. proceeding).

      4.     Mandamus relief is appropriate to protect confidential and privileged

information from discovery. In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 256

(Tex. 2005) (orig. proceeding); Mem'l Hosp.-The Woodlands v. McCown, 927

S.W.2d 1, 12 (Tex. 1996). An appellate court cannot cure the error when a trial

court erroneously orders disclosure of privileged information that affects the rights

of the aggrieved party. In re Osteopathic Med. Ctr. of Tex., 16 S.W.3d 881, 883

(Tex. App.—Fort Worth 2000, orig. proceeding).




                                          2                           880162.1 2014.60
      5.     Relator is confident that this Court will vacate the discovery orders at

issue and rule that the documents are privileged and not subject to production.

However, before this Court rules, the orders at issue are live and outstanding.

Therefore, Relator requests this Emergency Stay and asks that this Court stay the

production of the documents identified in Respondent’s January 20, 2015 and

April 6, 2015 orders until such time as this Court can rule on the original

proceeding before it.

                                  CONCLUSION

      Relator respectfully requests that this Court grant this emergency stay until

the resolution of this original proceeding, and in doing so stay the production of the

documents identified in Respondent’s January 20, 2015 and April 6, 2015 orders.

The issue at stake in this original proceeding is an important issue for this Court to

resolve for this District given that it appears that Respondent’s orders directly

contradict Texas law.     Furthermore, Relator’s rights cannot be protected by

ordinary appeal if the documents at issue are produced in accordance with the

January 20, 2015 and April 6, 2015 orders. Thus, in order to preserve the

jurisdiction of this Court and maintain the status quo until it can rule, Relator

requests that this Court grant this emergency stay.




                                         3                            880162.1 2014.60
                                             Respectfully submitted,

                                               /s/ Weston M. Davis
                                             Gregory N. Ziegler
                                             Texas Bar No. 00791985
                                             GZiegler@macdonalddevin.com
                                             Jason A. Burris
                                             Texas Bar No. 24049591
                                             JBurris@macdonalddevin.com
                                             Weston M. Davis
                                             Texas Bar No. 24065126
                                             WDavis@macdonalddevin.com

                                             MACDONALD DEVIN, PC
                                             3800 Renaissance Tower
                                             1201 Elm Street
                                             Dallas, Texas 75270
                                             214.744.3300 telephone
                                             214.747.0942 facsimile
                                             Attorneys for Relators


                            CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing

document was served on all counsel of record, pursuant to Texas Rules of Civil

Procedure on this 10th day of April, 2015.



                                               /s/ Weston M. Davis
                                             Weston M. Davis




                                        4                         880162.1 2014.60
                         CERTIFICATE OF CONFERENCE

      Pursuant to Texas Rule of Appellate Procedure 10, I hereby certify that

counsel for Relator conferred with counsel for Real Party in Interest regarding an

agreed stay of discovery of the privileged material at issue in this proceeding.

Counsel for Real Party in Interest did not agree to stay discovery of those

materials.


                                              /s/ Weston M. Davis
                                            Weston M. Davis




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