                                                                                         ACCEPTED
                                                                                     01-15-00530-CV
                                                                          FIRST COURT OF APPEALS
                                                                                  HOUSTON, TEXAS
                                                                                6/12/2015 3:54:12 PM
                                                                               CHRISTOPHER PRINE
                                                                                              CLERK


                            NO. 01-15-00530-CV
                                                        FILED IN
                                                 1st COURT OF APPEALS
                     IN THE COURT OF APPEALS         HOUSTON, TEXAS
                                                 6/12/2015 3:54:12 PM
                  FOR THE FIRST DISTRICT OF TEXASCHRISTOPHER A. PRINE
                          HOUSTON, TEXAS                 Clerk



                                    lnre
             SUNSET NURSING HOME, INC.,
                                    Relator

                            The Honorable Pat Sebesta,
                       Brazoria County Judge, Respondent

                 AFFIDAVIT OF FELICIA HARRIS

STATE OF TEXAS   §
                 §
COUNTY OF HARRIS §

    BEFORE ME, the undersigned notary public, on this day personally
appeared Felicia Harris, who being by me duly sworn, deposed and stated:

       1. "My name is Felicia Harris. I am over the age of twenty-one (21)
years and of sound mind. I have never been convicted of a felony or a crime
involving moral turpitude and I am fully qualified and competent in all respects
to make this affidavit. I am a partner in the law firm of Burleson LLP which
represents Sunset Nursing Home, Inc., in the above captioned litigation.

      2. I have personal knowledge of the facts stated herein; they are true
and correct. I am the attorney-in-charge for Sunset Nursing Home, Inc.
("Sunset") in the above referenced matter.

      3. In 2013, I conferred with opposing counsel (law firm of Griffin &
Matthews) for Rebecca Ann, Inc.; Plantation Health Care Center, Inc.; Donald
Grether and Paul Heinig (collectively "RAI") regarding a docket control order in
Cause No. 72817, pending before the Honorable Pat Sebesta, in Brazoria
County, Texas.

       4. At a hearing on or about August 27, 2014, the Trial Court verbally
granted a continuance of the October 2014 trial date; and, in response to
Sunset's written and verbal requests for confirmation that all DCO deadlines
were lifted, stated that all such deadlines were lifted. The Trial Court told the
parties to confer regarding deadlines for an Amended DCO, and asked to receive
an update by September 2, 2014.

      5. The evidence in this case reveals RAI retained the law firm of
Jackson Walker after Sunset filed its first motion to compel on Friday, March
14, 2014 in Cause No. 72817. That motion was set for hearing in March 2014.
RAI produced a retention agreement with Jackson Walker, dated March 18,
2014 (see Tab 102 below). The retention agreement was addressed to Donald
Grether, Paul A. Heinig, and Rebecca Ann, Inc., "c/o Stephen Coleman" at Mr.
Coleman's address, 129 Country Road 51, Rosharon, Texas. Thereafter, RAI
requested the Trial Court to postpone the March hearing on that motion and the
scheduled deposition of RAI's corporate representative. The hearing was
rescheduled to April 2, 2014 and the deposition postponed.

        6. In May 2014, the Court heard arguments on another motion to
compel filed by Sunset. In that motion, among other things, Sunset sought
production of RAI's policies and procedures for the Clute and Lake Jackson
facilities. The Court, sua sponte, ordered RAI to produce the policies and
procedures for in camera review. Sunset has filed two motions requesting the
Court to reconsider its ruling regarding the policies and procedure documents.
(See Tabs 85 and 105, below.)

       7.   At a hearing in January 2015, the Trial Court sua sponte ordered
RAI to produce for in camera inspection documents from a 2010 appraisal of
the Clute and Lake Jackson facilities that were the subject of a motion to compel
filed by Sunset. See also Tab 104 below.

       8. At a hearing in February 2015, the Trial Court heard arguments on
Sunset's motion to compel and Country Village Care, Inc.'s ("CVC") (a
Grether-owned nursing facility located in Angleton, Texas) motion for
protection concerning a subpoena for documents that Sunset served on third-
party MDS Research ("MDS"). At that hearing, the Court sua sponte ordered
MDS to tmn over all responsive documents to CVC's counsel (who is also
RAI' s counsel) and for him to submit MDS' documents to the Trial Court for in


                                       2
camera inspection. At the March 2015 hearing, Sunset requested the Court
reconsider that ruling. The request was denied. See Tab 39 below.

      9. Sunset has been informed that, at present, the Trial Court maintains
possession of three groups of documents Sunset has sought in discovery, which
were the subject of motions to compel, and sua sponte ordered for in camera
review by the Court. No claim of privilege has been asserted by any party over
any of the groups of documents. Those three groups of documents are: the
MDS documents (~8 above), the policies and procedures that were in use at the
Clute and Lake Jackson facilities under RAI (~6 above), and the 2010 appraisal
documents (~7 above).

       10. In the days immediately preceding the filing of the petition for writ
of mandamus, in response to a request as to the status of the in camera reviews
on the appraisal and MDS documents, the Court Coordinator notified me that
the documents would be available for review at the courthouse, but that no
decision had yet been made by the Trial Court regarding production. (See also
Tab 103 below).
      11. Steve Coleman attended several depositions in this matter, over
Sunset's objection (because he is a fact witness). See Tab 12 below.

     12. The documents numbered 2-101 and included in this Record on
Mandamus are true and correct copies, described as follows:

TAB                                  DOCUMENT
 2    Consolidated Order from Judge Sebesta, signed May 5, 2015

 3    Lease Agreement, dated July 1, 1990, between Sunset Nursing Home, Inc.
      and Plantation Health Care Center, Inc. for the Clute Facility

 4    Lease Agreement, dated May 1, 1991, between Sunset Nursing Home and
      Plantation Health Care Center, Inc. for the Lake Jackson Facility

 5    Lease Guaranty Agreement, dated October 19, 1990, between Sunset
      Nursing Home, Inc. and Donald and Rebecca Grether for the Clute
      Facility

 6    Lease Guaranty Agreement, dated April 29, 1991, between Sunset
      Nursing Home, Inc., and Donald and Rebecca Grether for the Lake
      Jackson Facility


                                       3
TAB                                   DOCUMENT
 7    Sublease Agreement between Plantation Health Care Center, Inc. and
      Rebecca Ann, Inc., effective January 1, 1994

 8    RAI' s 2010 State Cost Reports for Clute and Lake Jackson facilities

 9    Correspondence, dated October 25, 2010, from Steve Coleman to Kim
      Richardson re offer by the Grether Family to buy the Lake Jackson
      Facility

.10   Deposition transcript of Sara Richards, taken on December 19, 2014

 11   Deposition transcript of Guindal Smith, taken on October 1, 2014

 12   Deposition transcript of Steve Coleman, taken on November 20, 2014

 13   Email correspondence, dated February 28, 2011, from Steve Coleman to
      Kim Richardson re change of ownership

 14   Email correspondence from Fawncyne Worley (then-Administrator, Clute
      Facility) to Sara Richards re "put the scare in Sunset"

 15   Email correspondence, dated April 4, 2011, from Phillip Wells (Hallmark
      Medicare services provider to the Grethers) to Kathy Simpson re updated
      on the Smiths (Sunset) and the Grethers

 16   Email c01Tespondence, dated April 1, 2011, from Steve Coleman to Kim
      Richardson re not transferring the facility names

 17   RAI letters to terminate vendor contractors, dated March 29, 2011

 18   CMS Forms 855, signed by RAI, terminating Medicare for (1) Clute and
      (2) Lake Jackson facilities

 19   Lease Extension Agreements for (1) Clute and (2) Lake Jackson facilities

 20   Email correspondence, dated May 4, 2011, from Dee Ann Toro (State of
      Texas) to Sunset re Medicare Certification Process

 21   2010 State Cost Report for Country Village Care, Inc., Angleton, Texas

 22   [BLANK]



                                       4
TAB                                   DOCUMENT

 23   2011 State Cost Report for Country Village Care, Inc., Angleton, Texas

 24   2012 State Cost Report for Country Village Care, Inc., Angleton, Texas

 25   2012 Cost Report (Sunset) for the Clute Facility [CONFIDENTIAL]

 26   2012 Cost Report (Sunset) for the Lake Jackson Facility
      [CONFIDENTIAL]

 27   Sunset Nursing Home, Inc.' Second Set of Request for Production, served
      October 29, 2013

 28   Sunset Nursing Home, Inc.' s Motion to Compel Plaintiffs Production of
      Documents, filed March 14, 2014

 29   Plaintiffs' Collective Responses to Defendant, Sunset Nursing Home,
      Inc.'s Requests for Production, served November 4, 2013

 30   Correspondence, dated September 2, 2014, from Felicia Harris to Judge
      Sebesta re deadlines for an amended DCO

 31   Order, signed April 2, 2014

 32   Email correspondence, dated April 23, 2014, from Breck Harrison to
      Felicia Harris re Medicare termination documents [CMS Forms 855,see
      also 18 above]

 33   Rebecca Ann, Inc. corporate representative's (Amy Stewart) deposition
      transcript, taken on May 6, 2014

 34   Gayle Jacobs' deposition transcript, taken on July 11, 2014

 35   Sunset Nursing Home, Inc.' s ( 1) Motion for Sanctions, filed August 25,
      2014; (2) Supplemental Motion for Sanctions, filed September 15, 2014;
      and (3) Second Supplemental Motion for Sanctions, filed September 19,
      2014

36    Sunset Nursing Home, Inc. 's Motion to Compel Plaintiff and Counter-
      Defendants' Production of Documents, filed May 21, 2014

 37   Order, signed September 30, 2014, re RAI's policies and procedures


                                        5
TAB                                  DOCUMENT

 38   Agreed Protective Order, signed November 25, 2013

 39   Hearing transcript, March 24, 2015

 40   Email correspondence, dated June 19, 2014, from Breck Harrison to
      Felicia Harris re depositions

 41   Fourth Amended Notices of Deposition for Guindal and Jimmy Smith,
      served on September 25, 2014

 42   Plaintiffs' Motion to Quash Deposition of Steve Coleman, filed July 9,
      2014

 43   Email correspondence, dated October 20, 2014, from Felicia Harris to
      Breck Harrison re Sara Richards' deposition

 44   Notice of Deposition for Sara Richards, served October 20, 2014

 45   Motion to Quash Sara Richards Deposition, filed October 23, 2014

 46   Amended Notice of Deposition for Sara Richards, served November 10,
      2014

 47   Plaintiffs' Motion to Compel Mediation, filed on December 5, 2014

 48   Sunset Nursing Home, Inc.'s Second Amended Answer, Fifth Amended
      Counterclaim and 4th Amended Third-Party Petition, dated January 26,
      2015

 49   Sunset Nursing Home, Inc. 's 2nct Amended Answer, 5th Amended
      Counterclaim and 4th Amended Third-Party Petition, filed on April 21,
      2015

 50   Plaintiffs' and Third-Party Defendants' Supplemental Motion to Strike
      and for Sanctions, dated April 22, 2015

 51   Email correspondence, dated December 8, 2014, from Scott Weatherford
      to Felicia Harris re deadline for amended DCO

 52   RAI's Response to Sunset Nursing Home, Inc. 's 6th [ih] Request for
      Production, served December 3, 2014



                                       6
TAB                                  DOCUMENT
 53   Sunset's Subpoena Duces Tecum to MDS Research Company, served on
      February 4, 2015

 54   Sunset Nursing Home, Inc.' s Supplemental Combined Motion to Compel,
      served on January 23, 2014

 55   Non-Party Country Village Care, Inc. 's Motion for Protection (Subpoena:
      MDS Research), filed on February 16, 2015

 56   Hearing transcript (re subpoena served on MDS Research Company),
      dated February 24, 2015

 57   Correspondence, dated March 30, 2015, from Scott Weatherford to Judge
      Sebesta re MDS Research documents for in camera inspection

 58   Order, signed April 6, 2015, re MDS Research documents for in camera
      inspection

 59   Sunset Nursing Home, Inc.'s Motion for Entry of Proposed Docket
      Control Order, filed March 11, 2014

 60   Docket Control Order, signed April 2, 2014

 61   Hearing Transcript, June 23, 2014

 62   Sunset Nursing Home, Inc.' s Motion to Compel, Supplemental Motion for
      Amended Docket Control Order and Motion for Continuance, filed
      August 21, 2014

 63   Email correspondence, dated August 27, 2014, between Breck Harrison
      and Felicia Harris re amended DCO

 64   Email correspondence, dated October, 2014, between Felicia Harris to
      Breck Harrison re amended DCO

 65   Email correspondence, dated October 15, 2014, from Scott Weatherford to
      Felicia Harris re deadlines re deadlines for amended DCO

 66   Email string between Felicia Harris and Breck Harrison re amended DCO

 67   Email correspondence, dated September 8, 2014, from Court Coordinator



                                       7
TAB                                    DOCUMENT

      to Counsel re deadlines for amended DCO

 68   Sunset Nursing Home, Inc. 's (1) No Evidence and Traditional Motion for
      Partial Summary Judgment, filed February 13, 2015, and (2) Reply in
      Support of No Evidence and Traditional Motion Partial for Summary
      Judgment, filed on February 24, 2015

 69   Sunset Nursing Home, Inc.'s Second Amended Answer, Fourth Amended
      Counterclaim and Third Amended Third-Party Petition, filed September
      18,2014

 70   Email, dated November 21, 2014, from Breck Harrison to Felicia Harris re
      depositions

 71   Plaintiffs' Motion to Quash Amy Stewart Deposition, filed on January 26,
      2015

 72   Email correspondence, dated January 19, 2015, from Court Coordinator to
      Felicia Harris re hearing

 73   Plaintiffand Third-Party Defendants' Motion to Strike and for Sanctions,
      filed February 13, 2015

 74   Third-Party Defendant Stephen M. Coleman's Rule 91a Motion to
      Dismiss, filed March 18, 2015

 75   Sunset Nursing Home, Inc.'s Supplemental Opposition to Motion to
      Strike, filed April 27, 2015

 76   Third-Party Defendant Stephen M. Coleman's Notice of Withdrawing
      Rule 91 a Motion to Dismiss, filed on April 22, 2015

 77   Paul Heinig Deposition transcript, taken on May 16, 2014

 78   Donald Grether Deposition transcript, taken on January 29, 2015

 79   Sunset's demand letter, dated February 4, 2013, from Luis Acevedo to
      Paul Heinig and RAI

 80   Plaintiffs' (RAI, et al.) Original Petition, filed on May 23, 2013



                                         8
TAB                                   DOCUMENT
 81   Defendant's (Sunset) Answer to Plaintiff's Original Petition and
      Counterclaim, filed on June 4, 2013

 82   Sunset Nursing Home, Inc. ' s First Amended Answer, Counterclaim and
      Third-Party Petition, filed on October 29, 2013

 83   Original Answer of Country Village Care, Inc., Grether Health Facilities,
      LLC, Sara Richards and Amy Stewart, filed on February 23, 2015

 84   Correspondence, dated May 4, 2011, from Center for Medicare &
      Medicaid Services to Amy Stewart

 85   Sunset Nursing Home, Inc. 's Motion to Reconsider (Policies and
      Procedures in camera ruling), filed September 17, 2014

 86   Affiliation Agreement between Grether Health Care Facilities, LLC and
      RAI, for the Lake Jackson Facility

 87   Affiliation Agreement between Grether Health Care Facilities, LLC and
      RAI, for the Clute Facility

 88   Original Answer of Country Village Care, Inc., Grether Health Care
      Facilities, LLC, Sara Grether Richards and Amy Grether Stewart, filed
      February 23, 2015

89    Plaintiffs' and Counter-Defendants ' Objections and Responses to Sunset
      Nursing Home, Inc.' s Fourth Request for Production of Documents,
      served on June 9, 2014

90    Plaintiff and Counter-Defendant Rebecca Ann, Inc.' s Objections and
      Responses to Sunset Nursing Home, Inc.'s Eighth [Ninth] Request for
      Production, served on February 2, 2015

91    Subpoena Duces Tecum to Country Village Care, Inc., dated May 1, 2014

92    Correspondence, dated February 12, 2015, from Breck Harrison to Judge
      Sebesta re appraisal records for in camera review

93    Correspondence, dated October 31, 2014, from Felicia Harris to Judge
      Sebesta re depositions scheduling



                                       9
TAB                                    DOCUMENT

  94   Correspondence, dated September 25, 2014, from Felicia Harris to Judge
       Sebesta attaching Proposed Order on Motions to Compel

  95   Correspondence, dated December 10, 2014, from Felicia Harris to Judge
       Sebesta re Plaintiffs' Motion to Compel Mediation

  96   Email correspondence, dated July 17, 2014, from Scott Weatherford to
       Felicia Harris re in camera production of policies and procedures

  97   Email correspondence, dated April 13, 2015, from Court Coordinator to
       Felicia Harris re status of in camera review on appraisal and MDS
       documents

  98   Correspondence, dated September 15, 2014, from Breck Harrison to Judge
       Sebesta re submission of RAI vendor agreements for in camera review

  99   Email correspondence, dated April 1, 2015, from Court Coordinator to
       Counsel re Court's unilateral decision to continue trial from April to
       August 2015

100    Email correspondence, dated April 24, 2015, from Court Coordinator to
       Counsel re matters taken under advisement and expected ruling on in
       camera documents

101    Third-Party Defendant Stephen M. Coleman's Original Answer and
       Request for Disclosure, filed February 23, 2015

102    Jackson Walker retention agreement, dated March 18, 2014

103    Email correspondence with Court Coordinator re in camera documents,
       June 2015

104    Correspondence, dated February 17, 2015, from Felicia Harris to Judge
       Sebesta re in camera review of 2010 appraisal documents

105    Sunset's (1) Consolidated Motion to Compel from the Grethers, filed
       March 17, 2015 and (2) Supplemental Motion to Compel, filed March 19,
       2015




                                        10
      FURTHER AFFIANT SAYETH NOT."


      SIGNEDthis \1"dayof        ~          ,2015.




       BEFORE ME, Justine Fjeldal, Notary Public in and for the State of Texas,
on this Ith day of June 2015, personally appeared Felicia Harris, known to me to
be the person whose name is subscribed to the foregoing instrument and sworn to
me that she executed the same, that she has personal knowledge of the facts stated
therein, and that said facts are true and correct.




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