                                                                                       ACCEPTED
                                                                                   01-15-00793-CV
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                              9/30/2015 3:42:21 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK

                          No. 01-15-00793-CV

                          In the Court of Appeals               FILED IN
                                                          1st COURT
                 For the First District of Texas at Houston HOUSTON,OF APPEALS
                                                                        TEXAS
                                                         9/30/2015 3:42:21 PM
                                                         CHRISTOPHER A. PRINE
   Nexion Health at Beechnut, Inc. d/b/a            Beechnut Manor,
                                                                 Clerk
                           Appellant

                                     v.

Maria Moreno, Individually and as Representative of the Estate
                     of Mario Moreno,
                            Appellee


                         On Appeal from the
         133rdJudicial District Court of Harris County, Texas
                     Cause Number 2015-01975
         The Honorable Jaclanel McFarland, Presiding Judge


    Appellant’s Response to Appellee’s Motion to Dismiss


    Gregory N. Ziegler                         Weston M. Davis
    Texas Bar No. 00791985                     Texas Bar No. 24065126
    J. Edward Johnson
    State Bar No. 24070001

                          MACDONALD DEVIN, PC
                          3800 Renaissance Tower
                              1201 Elm Street
                            Dallas, Texas 75270
                          214.744.3300 Telephone
                          214.747.0942 Facsimile

                         Attorneys for Appellants




                                     1                           949112 2014.81
TO THE HONORABLE COURT OF APPEALS:

      Appellant Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor

(“Appellant”) files this Response to the Motion to Dismiss filed by Appellee Maria

Moreno, Individually and as Representative of the Estate of Mario Moreno

(“Appellee”), and would respectfully show the Court as follows:

      1.    On September 14, 2015, simultaneously with the filing of its Notice of

Appeal in this cause, Appellant filed its Designation of Clerk’s Record with the

Court Clerk for the 133rd Judicial District Court, Harris County, Texas. The

Designation of Clerk’s Record is attached hereto as Exhibit “1.” As a result, the

Clerk’s Record was due in this case on September 24, 2015. TEX. R. APP. P.

35.1(b).

      2.    On September 29, 2015, Appellant received, for the first time, an

invoice from the Harris County District Clerk requesting payment for the Clerk’s

Record in this case. A copy of such invoice is attached hereto as Exhibit “2.”

      3.    On September 30, 2015, Appellant forwarded a check for $160.00 to

the District Clerk for payment of the Clerk’s Record.        A copy of the letter

accompanying such payment is attached hereto as Exhibit “3.”

      4.    As Appellant has timely tendered payment for the Clerk’s Record in

accordance with TEX. R. APP. P. 35.3(a)(2), Appellee’s Motion to Dismiss must be

denied.



                                         2                             949112 2014.81
                              PRAYER FOR RELIEF

      Appellant respectfully requests that the Court deny Appellee’s Motion to

Dismiss, and for all such other and further relief to which Appellant shows itself

entitled, in law or equity.




                                            Respectfully submitted,

                                            /s/ Weston M. Davis
                                            Weston M. Davis
                                            Texas Bar No. 24065126
                                            WDavis@macdonalddevin.com
                                            Gregory N. Ziegler
                                            Texas Bar No. 00791985
                                            GZiegler@macdonalddevin.com
                                            J. Edward Johnson
                                            Texas Bar No. 24070001
                                            EJohnson@macdonalddevin.com

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

                                            Attorneys for Appellant




                                        3                             949112 2014.81
                            CERTIFICATE OF SERVICE

       As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that on September 30, 2015, I have served this document on all other parties
listed below as follows:

      VIA EMAIL:
      JAG@JAG-LAWFIRM.COM
      CJORDAN@JAG-LAWFIRM.COM
      Jason A. Gibson
      Casey L. Jordan
      THE GIBSON LAW FIRM
      The Lyric Centre
      440 Louisiana, Suite 2400
      Houston, Texas 77002




                                             /s/ J. Edward Johnson
                                             J. Edward Johnson




                                         4                             949112 2014.81
                                                                                                                              9/14/2015 3:57:40 PM
                                                                                                         Chris Daniel - District Clerk Harris County
                                                                                                                            Envelope No. 6916514
                                                                                                                             By: EVELYN PALMER
                                                                                                                        J. Edward
                                                                                                                      Filed:         Johnson
                                                                                                                              9/14/2015 3:57:40 PM
                                                                                                                         214.651.3376
                                                                                                          ejohnson@macdonalddevin.com


                                                         September 14, 2015


          Evelyn Palmer                                                                     Via Electronic Filing
          Court Clerk
          133rd Judicial District Court, Harris County, Texas
          Harris County Civil Courthouse
          201 Caroline, 11th Floor
          Houston, TX 75202

                   RE:      Maria Moreno, Individually and as Representative of the Estate of Mario Moreno
                            v. Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor, Cause No. 2015-
                            01975, in the 133rd Judicial District Court of Harris County, Texas

                                          DESIGNATION OF CLERK’S RECORD

          Dear Ms. Palmer,

                  On September 14, 2015, Defendant Nexion Health at Beechnut, Inc. (“Beechnut”)
          appealed the Court's August 24, 2015 Order denying Beechnut’s Chapter 74 Motion to Dismiss
          to the First or Fourteenth Court of Appeals. Accordingly, Beechnut respectfully requests the
          Court Clerk to prepare, certify, and file the Clerk's Record for appeal. Pursuant to Texas Rule of
          Appellate Procedure 34.5(a)(13). Beechnut requests that the following documents and any
          exhibits and attachments thereto—identified by approximate filing date and title—be included in
          the Clerk's Record:

          1.       01-14-15          Plaintiff’s Original Petition;

          2.       02-20-15          Beechnut’s Original Answer and Request for Disclosure;

          3.       06-29-15          Beechnut’s CPRC Chapter 74 Motion to Dismiss;

          4.       07-17-15          Notice of Hearing on Beechnut’s Chapter 74 Motion to Dismiss;

          5.       08-21-15          Plaintiff’s Response to Beechnut’s Chapter 74 Motion to Dismiss;

          6.       08-24-15          Order Denying Beechnut’s Chapter 74 Motion to Dismiss;

          7.       09-14-15          Beechnut’s Notice of Interlocutory Appeal and Notice of Automatic Trial
                                     Stay;

          8.                         Designation of Clerk’s Record (this letter);

          9.                         the Court’s Docket Sheet; and

          10.                        a Certified Bill of Costs.

3800 Renaissance Tower ▪ 1201 Elm Street ▪ Dallas, Texas 75270 ▪ Telephone: 214.744.3300 ▪ Facsimile: 214.747.0942 ▪ www.macdonalddevin.com
Letter to Clerk Palmer
September 14, 2015
Page 2

        Beechnut requests that the documents listed above be prepared, certified, and filed in the
First or Fourteenth Court of Appeals, in the cause styled Nexion Health at Beechnut, Inc. d/b/a
Beechnut Manor v. Maria Moreno, Individually and as Representative of the Estate of Mario
Moreno. This is an accelerated interlocutory appeal, filed under Texas Rule of Appellate
Procedure 26.1(b). Consequently, Texas Rule of Appellate Procedure 35.1(b) requires that the
Clerk’s Record be prepared, certified, and filed with the Clerk of the Court of Appeals within ten
days of the filing of the notice of appeal.

        Please advise regarding the costs to prepare the original and a copy of this record, so we
may make payment arrangements. If you have any questions, please do not hesitate to call me
directly. Thank you for your assistance in this matter.


                                             Sincerely,




                                             J. Edward Johnson


JEJ/jej
943730 2014.81

cc:       Jason A. Gibson                           Via Electronic Filing and Electronic Mail
          Casey L. Jordan
          THE GIBSON LAW FIRM
          The Lyric Centre
          440 Louisiana, Suite 2400
          Houston, Texas 77002
9/29/2015     8:43      Remote ID     Remote ID                                                                                  D 212




                                                               9n912015
  GREGORY~.      ZIEGLER
  STJ\TE BAR NO. 00791985
  3800 RENAISSANCE TOWER
  1201 E LM STREET
  DALLAS, TEXAS 75270-2130
  (214) 744-3300 TELEPHONE
  (2 14) 747-0942 FACSIMILE


  Re: No.: 2015-01975

  Dear Custom er:

  This Jetter is to inform you of the balance, which represents the cost to our office of preparing, at your request,
  the O riginal Cl erk's Record in the above numbered case. Rule (35.3) of the Texas Rules of Appellate
  Procedure requires that payment of this cost be remitted to our office prior to forwarding the clerk's record to
  the Court of Appeals.


  ORIGI NAL C LER KS RECORD                                                                       $160.00




  DELIVERED TO THE 1ST COURT OF APPEALS

                                                                       BA L ANCE DUE                 $160.00

  You may remit your payment in the fonn of attorney or law finn check, money order or cashier's check, payable to Chris Danie~
  District Clerk, by mailing to: Cluis Danie~ District Clerk, Attn: Civil/Family Post Trial, P.O. Box 4651, Houston, TX 77210-
  465 1.

  Payment also may be remitted in person at the following location: Cluis Daniel, District Clerk, Civil/Family Post Trial, 201
  Caroline, Room 250, Houston, TX 77002.

  Please be infonned that this correspondence is the only notice you will receive from this office regarding this payment.


                                                                            CHRIS DANIEL,
                                                                            CLERK DISTRICT COURT,
                                                                            HARJUS COUNTY, TEXAS


                                                                            BY: Is/ MICHELLE LOPEZ
                                                                                     :MICHELLE LOPEZ, DEP UTY




  APl R04 - 30 - 92
9/29/2015   8:43   Remote ID   Remote ID                                                                D 1/2




                                                    Chris Daniel
                                                Harris County District C ler·k


                                            FAX COVER SHEET

             DATE:     Tuesday, September 29, 2015 08:42AM


            TO:        ATTY ZIEGLER




             FAX:      2147470942


             SUBJECT:      20 15-01975 Original Clerks Rec Balance Due


             FROI\1:   Civil -Family Post Trial Clerk, Michelle Lopez


            VOICE:      713-755-7300


             FAX:      713-755-1173


             COMMENTS:




                                         Total Pages (including cover sheet): 2




                         201 CaroUne •    P.O. Box 4651 • Houston, Texas 77210 4651 • (~ 13) 75S.57J4
                                                      www.hcdJ.strictclerk.com
                                                                                                                    J. Edward Johnson
                                                                                                                         214.651.3376
                                                                                                          ejohnson@macdonalddevin.com



                                                         September 30, 2015


          Chris Daniel
          District Clerk
          Attn: Civil/Family Post Trial
          P.O. Box 4651
          Houston, Texas 77010-4651

                   Re:      Maria Moreno, Individually and as Representative of the Estate of Mario Moreno
                            vs. Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor; Cause No. 2015-
                            01975 in the 133rd District Court, Harris County Texas

          Dear Clerk:

                 Please find enclosed our firm’s check in the amount of $160.00 for preparing a copy of
          the Original Clerk’s Record to be forwarded to the Court of Appeals in regard to the above-
          referenced matter. Also enclosed is a copy of the invoice.

                    Thank you.


                                                                 Sincerely,



                                                                 J.
                                                                 J. Edward
                                                                    E ward Johnson
                                                                    Ed




          JEJ:kdt
          Enclosures
          948712 2014.81




3800 Renaissance Tower ▪ 1201 Elm Street ▪ Dallas, Texas 75270 ▪ Telephone: 214.744.3300 ▪ Facsimile: 214.747.0942 ▪ www.macdonalddevin.com
