                                                                                            ACCEPTED
                                                                                       03-14-00614-CV
                                                                                              4147868
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                  2/13/2015 2:34:45 PM
                                                                                     JEFFREY D. KYLE
                                  NO. 03-14-00614-CV                                            CLERK



                                   IN THE
                           THIRD COURT OF APPEALS                      FILED IN
                                                                3rd COURT OF APPEALS
                                  OF TEXAS                          AUSTIN, TEXAS
                                                                2/13/2015 2:34:45 PM
                                                                  JEFFREY D. KYLE
                                                                        Clerk
                            ATLAS DENTAL, LP, ET AL
                                                              Appellant,

                                              v.

                                THESTATEOFTEXAS
                                                              Appellees.


          On appeal from the 53rd District Court, Travis County, Texas
                       Cause No. NO. D-1-GV-14-000581



      APPELLANT'S UNOPPOSED MOTION TO VACATE AND DISMISS
                    APPEAL WITH PREJUDICE

Appellant asks the court to vacate and dismiss this appeal with prejudice.

                                 A. INTRODUCTION

1..     Appellants are Atlas Dental, LP and Dr. Hieu Huynh; Irma Cantu-

Thompson, DDS, PC and Irma Cantu-Thompson; Dr. Stephen Chu; Dr. Richard

F. Herrscher; MAN & CFN Ortho, PLLC, Navarro Orthodontix of Irving, PC,

Navarro Orthodontix of Ft. Worth, PLLC, Navarro Orthodontix of Mcallen,

PLLC, Navarro Orthodontix of Edinburg, PLLC, Navarro Orthodontix, PC, and

Dr. Carlos F. Navarro; RGV Smiles by Rocky L. Salinas, DDS, PA and Dr.


 Appellant Atlas Dental, LLP, et al. Motion to Dismiss
 Page 1 of5
Rocky Salinas (hereinafter "Atlas Dental, LP, et al."); Victor M. Zurita, DDS;

appellee is the State of Texas.

2.        Appellant perfected the appeal on September 23, 2014, when it filed a

notice of appeal.

                            B. ARGUMENT & AUTHORITIES

3.        The court has the authority under Texas Rule of Appellant Procedure

42.1(a) to grant this motion to dismiss.

4.        Since the filing ofthe appeal by Atlas Dental, LP, et al., the State of Texas

brought separate claims against several dentists including Richard F. Herrscher,

D.D.S., RGV Smiles by Rocky L. Salinas, DDS, PA and Dr. Rocky Salinas; that

new case is styled State v. Nazari, et al., Cause No. D-1-GN-14-005380

(hereinafter "5380").

5.        Subsequently, the State of Texas and Atlas Dental, LP, et al., have entered

into an agreement to dismiss this appeal. (See Attached Exhibit A -February 12,

2015 Rule 11 Agreement). The parties have agreed that the issues in this appeal

will likely be duplicative of the issues to be considered in 5380, so this appeal can

be vacated.

6.        Appellant asks the Court to vacate this appeal and dismiss it with prejudice.




     Appellant Atlas Dental, LLP, et al. Motion to Dismiss
     Page 2 of5
                                 CONCLUSION AND PRAYER

7.        For these reasons, the Appellant respectfully requests that court vacate and

dismiss this appeal with prejudice.

                                              Respectfully Submitted,




                                              JasonRay       U
                                                             "' l

                                              State Bar No. 24000511
                                              RIGGS ALESHIRE & RAY, P.C.
                                              700 Lavaca, Suite 920
                                              Austin, Texas 78701
                                              (512) 457-9806 Telephone
                                              (512) 457-9066 Facsimile
                                              jray@r-alaw.com
                                              ATTORNEY FOR APPELLANT




     Appellant Atlas Dental, LLP, et al. Motion to Dismiss
     Page 3 of5
                         CERTIFICATE OF CONFERENCE

       I communicated by e-mail on February 12, 2015 with opposing counsel,

Raymond Winter (for the State of Texas) and the attached Rule 11 agreement with

the State indicates that the State does not oppose this motion.




  Appellant Atlas Dental, LLP, et al. Motion to Dismiss
  Page 4 of5
                            CERTIFICATE OF SERVICE

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

served by eservice on February 13, 2015 to the following:


Counsel (or State o(Texas:
Raymond Winter
Office of the Attorney General
P.O. Box 12458
Austin, TX 78711-2548
raymond. winter@texasattomeygeneral.gov


Counsel (or ACS State Healthcare,LLC:
Eric J.R. Nichols
Christopher R. Cowan
Beck Redden, LLP
515 Congress Avenue, Suite 1750
Austin, Texas, 78701
enichols@beckredden.com
ccowan@beckredden.com




 Appellant Atlas Dental, LLP, et al. Motion to Dismiss
 Page 5 of5
      EXHIBIT A



February 12, 2015 Rule 11
                                                                                         2/9/2015 2:58:18 PM
                                                                                                            Velva L. Price
                                                                                                           District Clerk
Jennifer S. Riggs                                                                                    FranklirciWpllotmty
( "ertifted in Admini.rtrative Law                    RIGGS&RAY                                      Cert!/WJ1 dtflrfif'!'t21.!!f)illv380
Te.ra• Board qf Legal Speclaflzatwn                A PROFESSIONAL CORPORATION                        Te..tci.r ~;ard OfJ.ega) Specl'dh'::atmn
jriggs!ii)r·alaw.com                                ATTORNEYS AND COUNSELORS                         fhopkins!ii)r·alaw.com

                                                       700 LAVACA, SUITE 920
Jason Ray                                               AUSTIN, TEXAS 78701
Certified in Admlnlstra/il'e Law                      512 457-9806 TELEPHONE
Texa< Bnard ofLegal Specialization                    512 457-9066 FACSIMILE
jray~r-alaw.com




                                                         February 9, 2015


             Raymond Winter                                          via e-mail to:
             Chief, Civil Medicaid Fraud Division                    raymond.winter@.texasattornevgeneral.gov
             Assistant Attorney General
             Office of the Attorney General
             P.O. Box 12548
             Austin, Texas 78711-2548


             Re:         Cause No. D-1-GN-000319; Harlingen Family Dentistry, P.C. and Dr. Juan Villarreal,
                         D.D.S. v. ACS State Healthcare, LLC, in the 53rd Judicial District, Travis County, Texas
                         and
                         Cause No. D-1-GN-000321; M&M Orthodontics, PA, Dr. Scott Malone, DDS and Dr.
                         Diana Malone, DDS, v ACS State Healthcare, LLC, in the 1261h Judicial District, Travis
                         County, Texas.


             Dear Ray:

             The Harlingen Family Dentistry plaintiffs brought claims against the State of Texas in Cause No.
             D-1-GN-14-000319 (hereinafter "319"). The M&M Orthodontics plaintiffs brought claims
             against the State of Texas in Cause No. D-1-GN-14-000321 (hereinafter "321"). The District
             Court signed an order granting the State's Plea to the Jurisdiction in 319 and 321 on September
             18, 2014. The plaintiffs in 319 and 321 appealed the Order Granting the State's Plea to the
             Jurisdiction and that appeal is pending. The State subsequently brought separate claims against
             several dentists and, inter alia, the plaintiffs in 319 and 321; that new case is styled State v.
             Nazari, et al., Cause No. D-1-GN-14-005380 (hereinafter "5380").

             By this agreement, the plaintiffs in 319 and 321 agree to dismiss with prejudice the appeal of the
             Order Granting the State's Plea to the Jurisdiction. The parties agree that the plaintiffs are not
             required to dismiss any claims against Xerox in 319 and 321. In exchange, the State agrees and
             stipulates that the plaintiffs in 319 and 321 do not waive and by their dismissal of the appeal of
             the Order Granting the State's Plea to the Jurisdiction do not settle, any causes of action the
             plaintiffs in 319 and 321 may have against third parties, including Xerox. The State agrees that
             the dismissal of the appeal of the Order Granting the State's Plea to the Jurisdiction in 319 and
             321 will not act to prevent the assertion or appeal of any claims or defenses that may be raised in
             5380.
Raymond Winter
February 9, 2015
Page 2 of2

If the State agrees, please sign this and return it to me. I will consider it a Rule II agreement, and
each side can proceed with our respective arguments in the 5380 case, which should make for a
smaller, cleaner appellate record.

                                             Sincerely,




                                             .

Ray nd Winter
on behalf of the State of Texas
in Cause Nos. D-1-GN-14-000319,
D-1-GN-14-000321, and D-1-GN-14-005380
