                                                                                                                       ACCEPTED
                                                                                                                   05-15-01068-CV
                                                                                                        FIFTH COURT OF APPEALS
                                                                                                                   DALLAS, TEXAS
                                                                                                            11/16/2015 12:24:56 PM
                           ,k WILSON ELSER
                                   SON 11:LSCR rs,OSK(1,8111. LOCILMAN h DICKLIt
                                                                                                                        LISA MATZ
                                                                                                                            CLERK




                                                                                           FILED IN
                                                                                    5th COURT OF APPEALS
                                                                                        DALLAS, TEXAS
                                                                                   11/16/2015 12:24:56 PM
November 16, 2015                                                                         LISASean
                                                                                                MATZ M. Higgins
                                                                                            713.353.2000
                                                                                             Clerk       (main)
                                                                                          713.785.7780 (facsimile)
                                                                                   Sctin.11igginsiirwilsonelser.com



Via E-file

Lisa Matz
Clerk of the Court
Fifth Court of Appeals at Dallas
600 Commerce Street, Suite 200
Dallas, Texas 75202

Re:          Court of Appeals Number:
             05-15-01068-CV
             5th Court of Appeals- Dallas, Texas

             Trial Court Case Number:
             380-00398-2013
             My Three Sons, LTD., et al vs. Midway/Parker Medical Center, L.P.,
             et al.; In the 380th Judicial District Court of Collin County, Texas

Dear Ms. Matz:

       The Court requested letter briefs concerning the basis for appellate
jurisdiction. This will serve as the responsive brief of Appellee Southstar Fire
Protection Company.

Summary:

      Any question as to the finality of the judgment was resolved on November 9,
2015, when the District Court disposed of all lingering claims through an order
granting nonsuits. A copy of the order is attached, and the undersigned has
requested preparation of a supplemental clerk's record. Consequently, this Court




2112965v.1
Ms. Lisa Matz
November 16, 2015
Page 2

possesses jurisdiction and the notice of appeal, while premature, is deemed filed as
of November 9, 2015.

Which of the two dismissal orders is the appealable order?

       The clerk's record contains two dismissal orders. One, appearing at CR 366,
dismisses the entire case, while the other, appearing at CR 367, dismisses only
Plaintiffs' claims. As between the two orders, it appears that the last one signed by
the Court controls. The undersigned believes that the order appearing at CR 367
was signed after the order appearing at CR 366.

How, then, does the Court possess appellate jurisdiction?

      The following notices of nonsuit appearing in the clerk's record lacked
corresponding orders granting them:
        1.   Plaintiffs' Partial Notice of Nonsuit of Claims Against TD Industries,
             Inc. CR 200-01.

        2.   Manhattan Construction Company's notice of nonsuit without
             prejudice of its cross claims against TD Industries, Inc. and Southstar
             Fire Protection Company.CR 401-03.
        3.   Midway/Parker Medical Center, LP's notice of nonsuit without
             prejudice of its claims against Plaintiffs/Counter-Defendants
             Christopher Riegel, MD and My Three Sons Management,
             LLC. CR 407-09.
        4.   Cross-Plaintiff Kinsman Ventures LLC's Notice of Nonsuit
             without prejudice of its claims against cross-defendant
             Manhattan Construction Company. CR 410-12.
       As to Plaintiffs' notice of nonsuit, no further order is required, irrespective
of which of dismissal order controls, as both orders expressly dispose of all of
Plaintiffs' claims.

      On November 9, 2015, the District Court entered an order granting the
nonsuits by Manhattan Construction, Midway/Parker and Kinsman Ventures. This
order disposes of the last remaining claims. As a result, the judgment is now final
and appealable. A copy of the order is attached to this letter, and the undersigned
has requested preparation of a supplemental clerk's record containing the order.
      In light of the foregoing facts, Plaintiffs' notice of appeal, while premature,


2112965v.1
Ms. Lisa Matz
November 16, 2015
Page 3

is effective and deemed filed as of November 9, 2015, the latest date on which the
judgment became final and appealable. Tex. R. App. P. 27.1(a).

Appellant's motion for new trial was overruled by operation of law:

        Appellant asserts that the District Court has yet to rule on its motion for new
trial. In fact, that motion was overruled by operation of law on August 18, 2015,
which is 75 days after the District Court signed the dismissal orders. Tex. R. Civ.
P. 329(b)(c).

Conclusion:

      For the reasons stated, this Court now possesses appellate jurisdiction over
this matter.

Best regards,

Wilson Elser Moskowitz Edelman & Dicker LLP

(St SeCWV M. -146043-1414(

Sean M. Higgins
SMH/jmf

cc:


Craig P. Henderson                                   Via Facsimile: 214-368-1395
WOLF & HENDERSON, P.C.
4309 Irving Avenue, Suite 200
Dallas, Texas 75219
Attorney for Appellants

J. David Apple                                       Via Facsimile: 972-315-1955
APPLE & FINK, LLP
735 Plaza Blvd., Suite 200
Coppell, Texas 75019
Attorney for Kinsman Ventures, LLC and
Midway/Parker Medical Center, L.P.




2112965v,1
Ms. Lisa Matz
November 16, 2015
Page 4

Chad Robinson                                   Via Facsimile: 214-521-4246
RIDDLE & WILLIAMS, P.C.
3710 Rawlins Street, Suite 1400 — Regency Plaza
Dallas, Texas 75219
Attorney for CllIA Management Company and
Midway Medical Center Owners Association, Inc.

Robert Shapiro                                 Via Facsimile: 972-490-7739
CANTERBURY Good SURRATT SHAPIRO,
STEIN & GASWIRTH, P.C.
Occidental Tower
5005 LBJ Freeway, Suite 1000
Dallas, Texas 75244
Attorney for Manhattan Construction Company

Theodore J. Riney                              Via Facsimile: 214-461-1210
RINEY PACKARD, PLLC
5420 LBJ Freeway, Suite 220
Dallas, Texas 75240
Attorney for TD Industries, Inc.




2112965v.1
                                                                              Filed: 11/4/2015 4:07:52 PM
                                                                              Andrea S. Thompson
                                                                              District Clerk
                                                                              Collin County, Texas
                                                                              By Laura Edwards Deputy
                                                                              Envelope ID: 7687235
                                  CAUSE NO. 380-00398-2013

 MY THREE SONS, LTD., MY                                  IN THE DISTRICT COURT OF
 THREE SONS MANAGEMENT,
 LLC, PRESTONWOOD OB/GYN
 ASSOCIATES, P.A.,
 CHRISTOPHER RIEGEL, MD,
 P.A., and CHRISTOPHER RIEGEL

        Plaintiffs,

v.                                                        COLLIN COUNTY, TEXAS

 MIDWAY/PARKER MEDICAL
 CENTER, L.P., KINSMAN
 VENTURES, LLC, MANHATTAN
 CONSTRUCTION COMPANY, TD
 INDUSTRIES, INC., SOUTHSTAR
 FIRE PROTECTION COMPANY,
 CMA MANAGEMENT
 COMPANY, and MIDWAY
 MEDICAL CENTER OWNERS
 ASSOCIATION, INC.

       Defendants.
                                                          380TH JUDICIAL DISTRICT

                                   ORDER GRANTING NONSUITS

        The following notices of nonsuit are before the Court:

        1.      Manhattan Construction Company's notice of nonsuit without prejudice of

                its cross claims against TD Industries, Inc. and Southstar Fire Protection

                Company.

        2.      Midway/Parker Medical Center, LP's notice of nonsuit without prejudice

                of its claims against Plaintiffs/Counter-Defendants Christopher Riegel, MD

                and My Three Sons Management, LLC; and

        3.      Cross-Plaintiff Kinsman Ventures LLC's Notice of Nonsuit without

                prejudice of its claims against cross-defendant Manhattan Construction

                Company.

Order Granting Nonsuits— Page 1
1949578v.1
        The Court, being fully advised in the premises, hereby orders that the claims identified

above shall be and hereby are nonsuited and dismissed without prejudice pursuant to Tex R. Civ.

P. 162. Costs shall be taxed against the party incurring same

         So ordered.




        Dated .1/09/2015



                                            /s/ BENJAMIN N. SMITH
                                             JUDGE PRESIDING




Agreed as to form and substance:


   go-be,vt T. Shapiro-
Robert J. Shapiro, attorney for Manhattan
Construction Company


/.I T. Dcw141,AppLe.
J. David Apple, attorney for Midway/Parker
Medical Center, LP and Kinsman Ventures LLC




Agreed Order Granting Nonsuits — Page 2
1948038v.1

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