                                                                                      ACCEPTED
                                                                                  01-15-00530-CV
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                             6/29/2015 2:09:45 PM
                                                                            CHRISTOPHER PRINE
                                                                                           CLERK

                                NO. 01-15-00530-CV

                   IN RE: SUNSET NURSING HOME, INC.              FILED IN
                                                          1st COURT OF APPEALS
                                                              HOUSTON, TEXAS
                                     Relator,             6/29/2015 2:09:45 PM
                                                          CHRISTOPHER A. PRINE
                                                                  Clerk

              Original Proceeding from the 239th District Court
                          Brazoria County, Texas
                     Honorable Pat Sebesta, Presiding


                               REPLY MANDAMUS


Brandy R. Manning
State Bar No. 24029703
BURLESON LLP
223 W. Wall Street, Suite 400
Midland, Texas 79701
bmanning@burlesonllp.com
Telephone: 432.253.8603
Facsimile: 432.253.8601

Felicia L. Harris
State Bar No. 24002438
fharris@burlesonllp.com
BURLESON LLP
700 Milam Street, Suite 1100
Houston, Texas 77002
Telephone: 713.358.1700
Facsimile: 713.358.1717




                                      1
TO THE HONORABLE COURT OF APPEALS:

        The Grethers’1 chief complaint is that trial is currently set for August 2015.

The Responses’ theme is expediency—“a trial court has a duty to schedule its

cases in such a manner as to expeditiously dispose of them.” 2 Response at 26.

They ask this Court to reward their unrelenting obstruction of Sunset’s diligent

search for the truth by forcing Sunset to trial against only half of the responsible

parties and without the evidence to which it is entitled under the Rules. Justice and

fairness must not yield to expediency. Without mandamus relief, trial is not

“expedient”—it is a waste of time.

   I.       The Grethers’ procedural protests are without merit.

        Rather than meet Sunset’s substantive arguments, the Grethers assail the

form of Sunset’s Petition, particularly counsel’s affidavit proving up record

documents and a handful of facts not evident from the written record. Critically,

the Grethers do not question the authenticity of any record document, nor do they

point this Court to any unsupported factual allegation. Counsel’s signature alone

substantiates her good faith belief that every statement has factual and legal

support. TEX. R. CIV. P. 13 (Attorney’s signature certifies that she has read the


        1
          Sunset replies to both Responses filed and will refer to Coleman and the Grethers
collectively as “the Grethers” unless otherwise noted.
        2
         Response at 26. The case cited holds that a trial court had discretion to dismiss a will
contest when a party with ample notice failed to timely post a cost bond. Clanton v. Clark, 639
S.W.2d 929, 931 (Tex. 1982).


                                              2
pleading, motion, or other paper and that she believes, after reasonable inquiry,

that the motion is not groundless or brought in bad faith (i.e., has factual and legal

support)). The matter is easily resolved by counsel’s amended supporting affidavit.

See In re Cahill, 267 S.W.3d 104, 106 (Tex. App.—Corpus Christi 2008, orig.

proceeding) (even a defect in verification is subject to correction, and does not

preclude the Court’s consideration of a mandamus petition).

        Similarly, the Grethers assail the record, and ask this Court to disregard any

document not filed with the Court. Sunset filed an exhaustive record, containing

sworn copies of key documents either filed with the court and/or providing the

basis for its Petition. It also filed a short appendix, containing copies of the most

critical record documents as well as the text of Rule 63, for the court’s

convenience. The purpose of the rules regarding the appendix and record are to

provide the court with both evidentiary support for every factual allegation made

and an expedient method to review these documents. See, generally, TEX. R. APP.

P. 52. Sunset has accomplished both goals and asks the Court to consider the

sworn documents provided as it deems appropriate in reviewing Sunset’s petition.

   I.      This Court should issue mandamus compelling the trial court to
           vacate its order striking Sunset’s amended pleadings.

           a. The trial court clearly abused its discretion in striking Sunset’s
              amended pleadings.




                                          3
      The Grethers agree: “A trial court has no discretion in determining what the

law is or applying law to the facts.” Response at 10. Thus, “a trial court clearly

abuses its discretion when it reaches a decision so arbitrary and unreasonable as to

constitute a clear and prejudicial error of law, or if it clearly fails to correctly

analyze or apply the law.” Id.

      Despite their dissatisfaction with Sunset’s recitation of the facts, the

Grethers do not deny key facts.

         • The only docket control order entered was based on an October 2014
           trial date. R59.

         •   The trial court, in mid-2014, continued the first trial setting (October
             2014). R1A.

         • Sunset proposed a DCO based on an April 13, 2015 trial date (the
           second trial setting)—it included a January 30, 2015 deadline to
           amend pleadings. R64.

         • In response, the Grethers confirmed their approval of the proposed
           pleadings deadline:

             “The DCO dates looked ok to me. I’ll get you a signature on an
             agreed order to submit the dates to the court.”

             Id.; See also R75 at Exhibit P. This October 2014 email exchange
             was months before the exchange cited in the Response. Compare R64
             to R73.

         • The December email exchange cited in the Response occurred after
           Coleman’s deposition and just before Richards’, when the Grethers
           realized that Sunset either knew or would soon confirm facts to
           support pleadings against all of the Grether parties, including
           Coleman. Until then, the Grethers acted consistently with the parties’


                                         4
               and court’s understanding that DCO deadlines had been lifted. 3 See,
               e.g., R75 and Exhibits at P, Q, R (attached thereto).

           •    The Grethers contend that a deadline to amend pleadings “necessarily
               included amended pleadings adding parties.” Response at FN52.
               Thus, an extended deadline to amend pleadings was also an extended
               deadling to add parties.

           • Sunset amended pleadings in response to Coleman’s and Richards’
             depositions, which were sought as early as Spring 2014, but delayed
             by the Grethers 4, and not obtained until near the end of the year.

           • Sunset’s 2014 filings (R105 and R35), deposition questions (R75 at
             Exhibit J), information the Grethers were gathering regarding the
             nursing home market in Southern Brazoria County in early 2011
             (R111, 112, 113), and the Grethers’ own actions during the change of
             control reveal the Grethers not only could have anticipated an antitrust
             claim – but should have anticipated it. See Stephenson v. LeBoeuf, 16
             S.W.3d 829, 839 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)
             (amendment not prejudicial on its face if could have anticipated
             it). The anticompetitive activity is at the heart of Sunset’s case
             against all of the Defendants since there would have been no reason
             for RAI or Plantation (both non-operational) to sabotage the
             operations of the Sunset’s facilities, except to benefit CVC, GHCF
             (and ultimately Richards and Stewart) which were each controlled by
             Ms. Richards and Ms. Stewart -- the sole owners of CVC, which now
             owns 99% of GHCF.



       3
          Critically, the Grethers do not deny the trial court’s statement lifting all deadlines in the
DCO. Their objection is simply to the lack of a transcript from that hearing. A transcript—had
one been created, Sunset would have included it in the Record—is not the only evidence of the
Court’s decision, however. The motion Sunset filed (R62) asking for a continuance and the
lifting of all deadlines (which was granted, even though the Court did not sign an order),
followed by the parties and the court’s actions after that hearing, and the affidavit of Sunset’s
counsel (which the Grethers do not refute) are ample evidence of that decision.

       4
        A summary of the discovery hurdles Sunset faced in 2014 are summarized in Sunset’s
Motion for Sanctions and the First and Second Supplement to that motion. See R35.


                                                 5
           • Moreover, neither the Grethers nor Coleman presented evidence in the
             trial court below, nor argue here, that they were surprised or
             prejudiced by Sunset’s April Amended Pleading. Further, because
             there is no docket control order in place, the deadline to amend
             pleadings still has not expired. TEX. R. CIV. P. 63.

The trial court abused its discretion because it clearly failed to correctly analyze or
apply the law to these undisputed facts when it granted the Motion to Strike. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) Consider:

           • Under Rule 63, parties may freely amend “at such time as not to
             operate as a surprise to the opposite party.” TEX. R. CIV. P. 63.5 Even
             if an amendment is filed within 7 days of trial or after a docket control
             deadline, leave shall be granted “unless there is a showing” of
             “surprise.” Id.

                   • Texas law is clear—continuing the trial date automatically
                     vacates the DCO deadlines unless the court expressly orders
                     otherwise. See, e.g., Killam Ranch Properties, Ltd. v. Webb
                     County, 2008 WL 4958452, *4 (Tex. App.—San Antonio 2008,
                     no pet.) (holding that continuance of more than 30 days
                     nullifies deadlines in pretrial order, so that all deadlines are
                     governed by the Rules of Civil Procedure); Felker v. Petrolon,
                     Inc., 929 S.W.2d 460, 467, n.9 (Tex. App.—Houston [1st Dist.]
                     1996, writ denied). The only case cited in the Response
                     involved “floating” deadlines keyed off a continued trial date, a
                     species of “unless the court expressly orders otherwise.” As a
                     matter of law, continuance of the October 2014 trial date
                     nullified the June 2014 pleadings deadline.



       5
          Parties may amend their pleadings, respond to pleadings on file of other parties, file
suggestions of death and make representative parties, and file such other pleas as they may desire
by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite
party; provided, that any pleadings, responses or pleas offered for filing within seven days of the
date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall
be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless
there is a showing that such filing will operate as a surprise to the opposite party. TEX. R. CIV. P.
63.



                                                6
                 • Neither the Grethers nor Coleman made any showing of
                   “surprise” in the trial court below. See R50 and R73 (Motion to
                   Strike/Supplemental Motion to Strike). Nor could they—they
                   do not deny Sunset’s consistent assertions that this lawsuit is
                   one between competitive nursing facility operators in Southern
                   Brazoria County (R28 and R35) , their own evidence (R75,
                   Exhibits N and O); Sunset’s effort following Gayle Jacob’s
                   deposition to obtain evidence on the interrelationship between
                   the Grether entities (R34 at 152-153), and their own witnesses’
                   testimony that the “new” parties are new in name only R12
                   (Coleman depo testimony, billed GHCF for all Grether
                   entities). See Stephenson, 16 S.W.3d at 839.

                 • Additionally, neither Sara Richards nor Amy Stewart could
                   claim surprise. Contrary to the Grethers’ arguments, both Ms.
                   Richards and Ms. Stewart had been previously disclosed as a
                   potential party in Sunset’s disclosures. (R73) Stephenson, 16
                   S.W.3d at 839.

          • Rule 91a permits a party to move to dismiss claims as “baseless,” but
            includes a corresponding right to the opposing party to amend
            pleadings to meet the motion. TEX. R. CIV. P. 91a. Coleman filed a
            Rule 91a motion, Sunset filed the April amended pleading in
            response, and Coleman withdrew his motion. R74, R49, R76. To the
            extent the amended pleading addressed Coleman’s motion, Coleman
            invited it and Sunset had an absolute right to file it.

          • Rule 38 requires leave of court to add third-party defendants more
            than 30 days after a party files its original answer. TEX. R. CIV. P. 38.
            The Grethers do not deny that the “new” Grether parties are not third-
            party defendants, so that Rule 38 does not apply. The trial court’s
            recent grant of Sunset’s unopposed motion to restyle (its motion for
            realignment had already been granted) confirms the true character of
            the parties—Sunset is the only plaintiff and all other parties are
            simply defendants. 6 R114.

      6
          The trial court’s docket for Cause No. 72817 reflects the Court’s decision. See
http://publicbrazoria-
county.com/PublicAccess/Search.aspx?ID=200&NodeID=100%2c110%2c200%2c210%2c120
%2c130%2c140%2c220%2c230%2c240%2c250&NodeDesc=All+Courts.


                                           7
      Given established law and the undisputed facts, the trial court had no legal

or factual basis for striking the January and April amended pleadings. And the

Grethers recognize that “A trial court has no discretion in determining what the law

is or applying law to the facts.” Response at 10. Thus, the trial court clearly

abused its discretion.

      Coleman’s only substantive response is that he is immune. But, the trial

court has not yet had the opportunity to consider the facts underlying Sunset’s

decision to add him as a party. This Court need only decide whether Sunset’s

amended pleadings against Coleman and the other Grether parties was timely, not

whether on the merits, Sunset can prevail.

          b. Sunset has no adequate remedy by appeal.

      Sunset has no adequate remedy by appeal. “Adequate” is the operative

word, and our Supreme Court acknowledged that it “has no comprehensive

definition; it is simply a proxy for the careful balance of jurisprudential

considerations that determine when appellate courts will use original mandamus

proceedings to review the actions of lower courts.” In re Prudential, 148 S.W.3d

124, 137 (Tex. 2004). The court must consider both public and private interests,

including preserving important substantive and procedural rights, allowing the

appellate courts to give needed and helpful direction to lower courts, and sparing

both private parties and the public the time and money utterly wasted, particularly

                                        8
when such waste is easily avoided. Id. In short, an appellate remedy is “adequate”

when the detriments of mandamus review outweigh the benefits; conversely, when

the benefits of mandamus outweigh the detriments, an appellate remedy is

inadequate. Id.

      This determination is not an abstract or formulaic one; it is practical and

prudential:

      Walker does not require us to turn a blind eye to blatant injustice nor
      does it mandate that we be an accomplice to sixteen trials that will
      amount to little more than a fiction. Appeal may be adequate for a
      particular party, but it is no remedy at all for the irreversible waste of
      judicial and public resources that would be required here if mandamus
      does not issue.

Id. Stated simply, whether an appellate remedy is “adequate” depends heavily on

the circumstances presented. Id.

      The court must consider not only the effect on individual parties, but the

impact on the judicial system. Thus, where the trial court’s complete lack of

authority for its order, and the trial court had set up a proceeding that was likely to

be “little more than a fiction,” the burden on the judiciary justifies mandamus

relief. Id. Likewise, when the trial court’s error is clear and the correction simple,

mandamus is appropriate. Id.

      Here, the trial court’s error is clear—there is simply no legal basis on which

it could strike the Amended Pleadings. Furthermore, the correction is simple.

Trial against all of the admittedly-intertwined Grether parties (including Coleman),

                                          9
particularly when those parties have been present and participants in the

proceedings to date, are represented by the same counsel 7 and witnesses, and

where the claims against each turn on the same evidentiary facts and documents,

causes no disruption to the process. Trial against only a portion of the interrelated

parties, on the other hand, guarantees a retrial. Such is a complete waste of both

private and judicial resources. The benefits of mandamus relief clearly outweigh

any detriment. Sunset has no adequate remedy on appeal.

II.    This Court should issue mandamus to compel the trial court to enforce
       full and fair discovery of the facts.

           The Rules of Civil Procedure favor full and fair discovery of the facts, so

that disputes may be decided by what those facts reveal, rather than what is

concealed. Axelson, Inc. v. McIlhany, 798 S.W.2d 691, 693 (Tex. 1990). To that

end, a party may discover any non-privileged information, whether admissible at

trial, that is relevant or calculated to lead to the discovery of admissible evidence.

Id. And key here—to justify protection from discovery, a party must present facts

showing a particular, specific, and demonstrable injury should discovery proceed.

In re Eurecat US, Inc., 425 S.W.3d 577, 582 (Tex. App.—Houston [14th Dist.]

2014, orig. proceeding). Likewise, denial of discovery in the absence of evidence
       7
          Coleman has been the Grethers’ counsel since the 1990s and, in this proceeding,
appeared at a number of depositions before he was named as a party. (R48a, R49a, R75). In this
proceeding, the similarities in Coleman’s Response to the Grethers’ Response evidences the
cross-pollination and collaboration continues between Coleman and the Grethers (and their
respective counsel). Compare the Grethers’ Response at 31-32 with Coleman’s Response at 11-
12 (almost word-for-word duplications).


                                            10
substantiating a claim of privilege is a clear abuse of discretion. Weisel Enters.,

Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986). Only if the trial court finds that the

likely harm from production outweighs the potential benefit to the requesting party

may it deny discovery. Id.

       Here, there has been no finding of harm to the Grethes. Instead, although

the Grethers failed to present any facts showing a particular, specific, and

demonstrable injury or evidence of privilege, the trial court denied discovery of

information not only relevant, but potentially critical to Sunset’s claims.

Furthermore, the Grethers acknowledge that when, as here, the denial of discovery

(1) vitiates or severely compromises the relator’s ability to present a viable claim

or defense, or (2) renders it impossible for an appellate court to evaluate the effect

of the trial court’s error because the undiscovered information cannot be made a

part of the record, mandamus is appropriate—in other words, where these

circumstances exist, there is no adequate remedy by appeal. Response at 12.

      Sunset complained of six trial court discovery rulings. Interim actions of the

trial court have changed things slightly, so Sunset will address each—including the

Grethers Response—separately:

      1.     “Policies and Procedures.” Following its sua sponte decision in

May 2014 for in camera review, in September 2014, the trial court permitted

Sunset’s counsel to review these documents at the courthouse, but refused to allow



                                         11
their use in the preparation of Sunset’s case—counsel has been prohibited from

using them in depositions, sending them to Sunset’s expert, or utilizing them in

pretrial proceedings or at trial.

       The Grethers offer two justifications for the trial court’s order—that the

documents are “proprietary” and that their substance has no bearing on Sunset’s

claims. Neither contention has merit.

       First, Amy Stewart described the “policies and procedures” as documents

available for purchase, but customized to the needs of the patients at a particular

facility—these are the very documents necessary to effectuate a change of control

to avoid disrupting ongoing operations and the continuity of care for the facilities’

resident patients. R33 at 267-270. To the extent the documents retained their base

provisions, they are not proprietary; to the contrary, they are available for purchase

at will. To the extent, if at all, 8 they had been customized to the Clute and Lake

Jackson facilities, the Grethers had no interest in them once they released control

of the facilities—in fact, they had contracted to leave them at the facility. (R69,

R48a, R49a, Exhibits B and E at XXIX (A, C, and E) Critically, the Grethers

produced no facts to the trial court demonstrating a “particular, specific, and

demonstrable injury” from their production; thus, they failed to meet their

       8
         Spotlighting the challenges faced by Sunset on this point, it is not possible for Sunset to
demonstrate to this Court the content of the policies and procedures (or refute the Grethers’
assertion that they have been customized or are allegedly proprietary) because the documents
remain under the trial court’s control.


                                               12
evidentiary burden. The trial court clearly abused its discretion in sua sponte

refusing to make the policies and procedures documents generally available to

Sunset.

      Second, the substance of the documents bears directly on Sunset’s claims.

To establish its breach of contract claim, Sunset will have to prove the Grethers’

material breach of the leases and that that breach caused injury. The substance of

these documents demonstrate their materiality—they were essentially the “recipe”

by which the facilities were operated; their denial precluded Sunset’s ability to

effect a smooth changeover. (R69, R48a, R49a, Exhibits B and E at XXIX (A, C,

and E) In sum, removal of the policies and procedures documents denied Sunset

the central benefit of the lease requirements—delivery of an ongoing business

concern without disruption. (R69, R48a, R49a, Exhibits B and E at XXIX (A, C,

and E) Likewise, Sunset will look to these documents to establish injury caused by

their removal—the documents describe the benefit of the bargain against which

damages will be measured.

      The trial court’s refusal to permit free use of these documents (1) vitiates or

severely compromises Sunset’s ability to present its breach of contract claim, and

(2) renders it impossible for this Court to evaluate the effect of the trial court’s

error because the policies and procedures canot be made a part of the record. See

Euracat, 425 S.W.3d at 582. Mandamus is appropriate.



                                        13
      2.     MDS documents. The trial court’s recent release of these documents

changes Sunset’s request for mandamus relief, but does not entirely moot it.

Sunset explained its “fox guarding the henhouse” concerns, including the fact that

the release documents were supposed to be sealed, but contain an affidavit dated

ten days after the “sealed” documents were delivered to the Grethers’ counsel, in

its Supplemental Petition.     Supp. Petition at 3-5.    Significantly, the Grethers

offered no explanation for this anomaly in their Response.

      Likewise, Sunset explained in great detail the extent to which the trial

court’s refusal to enforce the subpoena as issued precludes its ability to present its

claims and defenses to the trial court, and precludes meaningful review by this

Court in its Petition. Petition at 65-70. Sunset stands on these arguments, and sees

no need to repeat them here.

      3.     “Discharge books.” Sunset contends the Grethers violated Section

XXIX of the Lease Agreements in transferring resident patients out of the facilities

in the days preceding the April 30, 2011 change over. (R69, R48a, R49a, Exhibits

B and E at XXIX (B and E) It is not disputed the discharge books exist and contain

information directly relevant to this claim.      It is further undisputed that the

Grethers are exclusively in control of this information. Thus, the substance of the

documents bears directly on Sunset’s claims.




                                         14
      To establish its breach of contract claim, Sunset will have to prove the

Grethers’ material breach of the leases and that that breach caused injury. The

substance of these documents demonstrate their materiality—they are a succinct

summary of the resident patients discharged in a relevant time period and by

precluding Sunset’s access to them, effectively, vitiates or severely compromises

Sunset’s ability to prove the Grethers’ breach. (R69, R48a, R49a, Exhibits B and

E at XXIX (B and E) Likewise, Sunset will look to these documents to establish

injury caused by the patients’ transfer.

      The trial court’s refusal to rule six weeks before trial (1) vitiates or severely

compromises Sunset’s ability to present its breach of contract claim, and (2)

renders it impossible for this Court to evaluate the effect of the trial court’s error

because the discharge books cannot be made a part of the record. See Euracat, 425

S.W.3d at 582. Mandamus is appropriate. See Able Supply Co. v. Moye, 898

S.W.2d 766, 771-73 (Tex. 1995).

      4.     Employee communications. Sunset contends the Grethers violated

Section XXIX of the Lease Agreements in transferring key employees out of the

facilities in the days preceding the April 30, 2011 change over. (R69, R48a, R49a,

Exhibits B and E at XXIX (E and F) Ms. Stewart testified that responsive

documents are within the Grethers’ control. (R105 at Exhibit F). It is further




                                           15
undisputed that the Grethers are exclusively in control of this information. Thus,

the substance of the documents bears directly on Sunset’s claims.

      To establish its breach of contract claim, Sunset will have to prove the

Grethers’ material breach of the leases and that that breach caused injury. The

substance of these documents demonstrate their materiality—they are evidence

relevant to the Grethers’ defense, and Sunset’s contentions, concerning breach of

Section XXIX(F) of the Lease Agreements. Without access to them, Sunset’s

ability to present its claim to the jury is, effectively, vitiated or severely

compromised. Additionally, because Sunset will look to these documents to

demonstrate injury caused by the transfer of key employees, and the disruption to

operations that caused, the documents are material and central to the case.

      The trial court’s refusal to rule six weeks before trial (1) vitiates or severely

compromises Sunset’s ability to present its breach of contract claim, and (2)

renders it impossible for this Court to evaluate the effect of the trial court’s error

because the employee communications cannot be made a part of the record. See

Euracat, 425 S.W.3d at 582. Mandamus is appropriate. See Able Supply, 898

S.W.2d at 771-73.

      5. Gayle Jacobs’ knowledge of the interrelationship between the
         Grethers.

      The Grethers only response on each of these issues is that the trial court has

not yet—up to and including the June 23, 2015 hearing—issued an order on

                                         16
Sunset’s relevant motion to compel. Response at 35-36. But the trial court’s

refusal to rule on Sunset’s motion a mere six weeks from trial is effectively, a

denial of that motion. See In re Colonial Pipeline Co., 968 S.W.2d 938, 942 (Tex.

1998) (holding that a trial court abuses its discretion when it fails to permit a

reasonable and sufficient amount of time for review and utilization of the products

of discovery, and explaining that the purpose of discovery is thwarted when parties

are forced to do without the basic facts surrounding the operable claims or

defenses). Because the Grethers offer no substantive response to Sunset’s briefing

on this point, Sunset stands on its Petition in reply as to each of these points. See

Petition at 71-72, 74.

      6.     Appraisals.    The trial court’s release of the appraisal documents

moots Sunset’s request for relief as to these documents, as the record currently

stands. The trial court has yet to render an order as to the use of these documents,

and an order limiting the use of these documents may require Sunset to request

additional relief.

      A mere six weeks from trial, the trial court has refused to rule on many of

Sunset’s motions to compel, which is, effectively, denial of those motions. Sunset

has demonstrated that as to each discovery request, (1) denial of discovery vitiates

or severely compromises its ability to present its case, and (2) precludes this Court

from meaningfully reviewing Sunset’s complaints because the requested



                                        17
information cannot be made part of the appellate record. Sunset has satisfied the

requisites for mandamus relief, and respectfully asks this Court to grant its Petition

for Writ of Mandamus.

                           CONCLUSION AND PRAYER

       The Grethers criticize Sunset’s request for mandamus relief as “desperate.”

But a party should be in dire need of appellate interference before it seeks

extraordinary relief. Here, without mandamus relief, despite its diligent effort to

uncover key facts and the Grethers’ unwavering attempts to hide the truth, Sunset

is facing trial against a fraction of the responsible parties without information to

which it is entitled. Such a proceeding is a complete waste of judicial resources;

more importantly, it makes a mockery of a system devoted to fairness and justice.

       Critically, while assailing the manner in which Sunset proved up the factual

basis for its Petition, the Grethers do not deny a single factual allegation—it is

undisputed on this record that the Grethers are interrelated parties, that they are

represented by the same counsel,9 have participated in these proceedings since

their inception, and rely on the same witnesses and documents. The Grethers

failed to show “surprise” under Rule 63; thus, the trial court clearly abused its

discretion in striking Sunset’s Amended Pleadings.              To the extent the April

pleading responded to Coleman’s Rule 91a motion, Sunset’s amendments were a

       9
          See infra. (discussing the continued collaboration between the Grethers and Coleman
and their respective counsel.


                                            18
matter of right. There is simply no legal basis for the trial court’s action. And

because the benefits of mandamus relief—one trial against all parties—exceed its

detriments—the risk of piecemeal litigation against related parties, with each

proceeding implicating the same witnesses and evidence—Sunset has no adequate

remedy by appeal. Sunset is entitled to mandamus relief.

      Similarly, six weeks from trial, the trial court’s repeated refusal to rule on

Sunset’s motions to compel is effectively a denial of those motions. The trial court

clearly abused its discretion in denying discovery without holding the Grethers to

the requisite evidentiary showing. Denial of the requested discovery both severely

compromises Sunset’s ability to present its claims and does so in a manner that

precludes this Court’s meaningful review. Sunset is entitled to mandamus relief.

      For these reasons, Sunset respectfully asks this Court to grant its Petition for

Writ of Mandamus and for such other and further relief to which it may be entitled.




                                        19
     Respectfully submitted,

     BURLESON LLP
     By:   /s/ Brandy R. Manning
           Brandy R. Manning
           Bar No. 24029703
           Midland Tower
           223 W. Wall Street, Suite 400
           Midland, Texas 79701
           432-253-8600 (office)
           432-253-8601 (Fax)
           brmanning@burlesonllp.com

     By:   /s/ Felicia Harris
           Felicia Harris
           State Bar No. 24002438
           fharris@burlesonllp.com
           Demetri Economou
           State Bar No. 24078461
           deconomou@burlesonllp.com
           700 Milam, Suite 1100
           Houston, Texas 77002
           713.358.1700
           713.358.1717 fax

           ATTORNEYS FOR
           SUNSET NURSING HOME,
           INC.




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                      CERTIFICATE OF COMPLIANCE

       This document complies with the typeface requirements of TEX. R. APP. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point font for text and 12-point for footnotes. This document also complies with
the word-count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it
contains 4,679 words, excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1).

                                             /s/ Brandy R. Manning
                                             Counsel for Relator


                         CERTIFICATE OF SERVICE

       This will certify that on the 29th day of June, 2015, a true and correct copy
of the foregoing document has been sent to the following via certified mail, return
receipt requested, ESERVE, electronic mail and/or facsimile delivery in
accordance with the Texas Rules of Civil Procedure.

Breck Harrison
JACKSON WALKER LLP
100 Congress, Suite 1100
Austin, Texas 78701
(512) 236-2000
(512) 236-2002 – Fax
bharrison@jw.com

Counsel for Paul A. Heinig,
Plantation Health Care, Inc.,
Rebecca Ann, Inc., Donald Grether,
Grether Health Care Facilities, LLC,
Country Village Care, Inc,
Sara Grether Richards, Amy Grether Stewart




                                        21
Zandra Foley
Andrew Johnson
Thompson, Coe, Cousins & Irons, L.L.P.
One Riverway, Suite 1400
Houston, Texas 77056
zfoley@thompsoncoe.com
ajohnson@thompsoncoe.com

Counsel for Stephen M. Coleman
The Honorable Patrick Sebesta
239th Judicial District Court
Brazoria County, Texas
111 E. Locust, Room 310A
Angleton, Texas 77515

RESPONDENT


                                             /s/ Brandy R. Manning
                                             Brandy R. Manning




                                CERTIFICATION
       I certify that I have reviewed the reply and that concluded that every factual
statement in the reply is supported by competent evidence included in the appendix
or record.


                                       ___/s/ Felicia Harris_________
                                       Felicia Harris




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