                                                                                          ACCEPTED
                                                                                      01-15-00793-CV
                                                                           FIRST COURT OF APPEALS
                                                                                   HOUSTON, TEXAS
                                                                                 9/29/2015 3:19:12 PM
                                                                                CHRISTOPHER PRINE
                                                                                               CLERK

                           NO. 01-15-00793-CV

                 IN THE COURT OF APPEALS FOR THE                   FILED IN
                  1"1 JUDICIAL DISTRICT OF HOUSTON          1st COURT OF APPEALS
                                                                HOUSTON, TEXAS
                                                            9/29/2015 3:19:12 PM
 Nexiofl Health at Beechnut, Inc. v. Maria Moreno,     Individually   and A.
                                                            CHRISTOPHER     asPRINE
            Representative of the Estate of Mario      Moreno       Clerk


                           On Appeal From the
                       133rd Judicial District Court
                         of Harris County, Texas
                          Cause No. 2015-01975


                APPELLEE'S MOTION TO DISMISS



TO THE HONORABLE FIRST COURT OF APPEALS:

     MARIA MORENO, Individually and as Representative of the ESTATE

OF MARIO MORENO ("Appellee") files this Motion to Dismiss to NEXION AT

BEECHNUT, INC., D/B/A BEECHNUT MANOR's ("Appellant") Notice of

Appeal, and would respectfully show the following:

                                   I.
                              BRIEF FACTS

1.   Mario Moreno ("Moreno") died from a traumatic head injury suffered in

Appellant's long-term care facility for the cognitively impaired. It was well

known to Appellant's staff Moreno suffered from impaired balance, impaired

cognition and exhibited exit seeking behaviors.
2.   However, on May 23, 2013 and again on May 29, 2013, Moreno was

permitted to elope from his room, fall and incur injuries requiring

hospitalization. After the May 29, 2013 fall, Moreno remained in and out of

consciousness until he died from his injuries on May 30, 2013.

                                      11.
                              PROCEDURAL HISTORY

3.   Subsequently, Appellee filed suit against Appellant on January 14,

2015. Appellee timely served Appellant with Chapter 74 expert reports for Dr.

Donald Marks and Rhonda Ratterman on February 23, 2015.

4.    On August 24, 2015 the trial court heard Appellant's Chapter 74 Motion

to Dismiss regarding the reports. After reviewing the pleadings, the evidence

and arguments by counsel the trial court denied Appellant's Chapter 74

Motion to Dismiss. 1

5.    Appellant filed a Notice of Interlocutory Appeal on September 14, 2015
                                                                                       2
and filed a request for Clerk's Record and Reporter's Record the same day.

The Clerk's Record and Reporter's Record were due September 24,

2015, ten (10) days from the date the Notice of Appeal was filed. 3 To date,


      1
          See Exhibit 1: Order Denying Nexion at Beechnut, lnc.'s Motion to Dismiss.
      2
          See Exhibit 2: Nexion at Beechnut, lnc.'s Notice of Interlocutory Appeal;.
      3
          See TEX. R. APP. P. 35.1(b).

                                              2
five days after the deadline, the Clerk's Record and Reporter's Record have

not been filed with the Appellate Clerk because of Appellant's failure to pay.

                                       111.
                                MOTION TO DISMISS

6.    When the trial clerk fails to timely file the record because the appellant

failed to pay or make arrangements to pay the clerk's fee, the appellate court

may dismiss the appeal on a party's motion, or on its own initiative. 4 On

September 29, 2015, five days after the deadline to file the record, the trial

clerk informed Appellee the record has not been filed due to lack of payment.

7.    Appellant, as the movant, has the responsibility to pay the clerk's fee or

make arrangements to do so. As a result of Appellant's failure to pay or make

arrangements to pay, the record has not been timely filed. Therefore,

Appellee asks the Court to dismiss Appellant's Notice of Appeal for a failure

to file a record pursuant to TEX. R. APP. P. 37.3(b).

                                           IV.
                                         PRAYER

8.    Appellee respectfully requests the First Court of Appeals to DISMISS

Appellant's Notice of Appeal and for all other relief, both in law and equity, to

which they may be entitled.


      4
          See TEX. R. APP. P. 37.3(b).

                                           3
                                        Respectfully Submitted,

                                        THE GIBSON LAW F"IRM




                                        Jason A. Gibson
                                        State Bar No. 24000606
                                        Casey L. Jordan
                                        State Bar No. 24090599
                                        The Lyric Centre
                                        440 Louisiana, Suite 2400
                                        Houston, Texas 77002
                                        Ph: (713) 650-1010
                                        Fax: (713) 650-1011

                                        ATTORNEYS FOR APPELLEE



                      CERTIFICATION OF FACTS

      I have reviewed the above Motion to Dismiss. I certify every factual
statement is supported by competent evidence included in the record.




                                        Casey L. Jordan




                                    4
                        CERTIFICATE OF SERVICE

     I certify a true and correct copy of this document has been served on all
counsel of record via first class regular mail or fax on September 29, 2015.




                                          Casey L. Jordan




                                      5
EXHIBIT 1
                               Cause No 2016-01976-133                           vC~.
MARIO MORENO, lndMdually         §
and as Representative oftlta ESTATE
                                 §
                                                   IN THE DISTRICT COURT OF             y
OF MARIO MORENO                  §
                                 §
                                 §                                           i   i
v                                §
                                 §
                                 §
NEXION HEALTH AT BEECHNUT, INC , §
dlb/a BEECHNUT MANOR             §                  133111 JUDICIAL DISTRI
          ORDER DENYING DEFENDANT NEXION AT BEECHNUT, INC
         DIB/A BEECHNUT MANOR'S CHAP1ER 74 MOTION TO D!SMJSS

      The Court heard Defendant's Chapter 74 Mobon to D1amtas After reviewing 1he
pleadings, the evidence and arguments by counsel, If any, the Court OEN/ES Defendanrs

Chapter 74 Motion to Dusm1ss

      SIGNED ON    tLwJ.u..ib 91±                    I   2015




                                   Exhibit A···
EXHIBIT 2
                                                                                                   9114120151:13:17 PM
                                                                                Chris Danlel - District Clerk Harris County
                                                                                                    Envelope No. 69092BB
                                                                                                    By; Phyllis Washington
                                                                                             Filed: 9114120151:13:17 PM

                                       NO. 2015-01975-133

MARIA MORENO, Individually and as                §                    IN THE DISTRICT COURT
Representative of the Estate of Mario            §
Moreno,                                          §
                                                 §
                   Plaintiff,                    §
                                                 §
~                                                §                   HARRIS COUNTY, TEXAS
                                                 §
NEXIONHEALTHATBEECHNUT, INC.,                    §
d/b/a Beechnut Manor                             §
                                                 §
                   Defendant.                    §                    133r<1 JUDICIAL DISTRICT

                        DEFENDANT'S NOTICE OF INTERLOCUTORY APPEAL
                            AND NOTICE OF AUTOMATIC TRIAL STAY

TO THE HONORABLE COURT:

         Please take notice that, pursuant to Texas Rule of Appellate Procedure 26.1 (b), Defendant

Nexion Health at Beechnut Inc. d/b/a Beechnut Manor ("Beechnut") desires to appeal to the First

or Fourteenth District Court of Appeals at Houston, Texas, the trial court's August 24, 2015

Order denying Beechnut's Chapter 74 Motion to Dismiss. See Attachment "A." Such Order is

subject to an accelerated interlocutory appeal. See Tex. Civ. Prac. & Rem. Code§ 51.014(a)(9);

Tex. R. App. P. 28.1. This notice of appeal is timely filed within twenty days after the trial

court's Order was signed. See Tex. R. App. P. 26.l(b). As required by the Local Rules Relating

to   Assignment of Related Cases to· and Transfers of Related Cases between the First and

Fourteenth Courts of Appeals, I certify that no other related appeal or original proceeding has

been previously filed in either the First or Fourteenth Court of Appeals.

         Further, please tal<e notice that the commencement of the trial of this case is

automatically stayed pending resolution of the interlocutory appeaL See Tex. Civ. Prac. & Rem.

Code§ 51.014(b).



DEFENDANT'S NOTICE OF INTERLOCUTORY APPEAL AND NOTICE OF AUTOMATIC TRIAL STAY                   PAGEl
943720.1 2014.81
       Weston M. Davis is designated as lead counsel for the appeal.



                                            Respectfully submitted,

                                            MACDONALD DEVIN, P.C.


                                           By:     Isl Gregory N. Ziegler
                                                   Gregory N. Ziegler
                                                   State Bar No. 00791985
                                                   gziegler@macdonalddevin.com
                                                   J. Edward Johnson
                                                   State Bar No. 24070001
                                                   ejohnson@macdonalddevin.com
                                                   Weston M. Davis
                                                   State Bar No. 24065126
                                                   wdavis@macdonalddevin.com

                                           3800 Renaissance Tower
                                           1201 Elm Street
                                           Dallas, Texas 75270-2130
                                           (214) 744-3300 Telephone
                                           (214) 747-0942 Facsimile

                                           ATTORNEYS FOR DEFENDANT




DEFENDANT'S NOTICE OF INTERLOCUTORY APPEAL AND NOTICE OF AUTOMATIC TRIAL STAY    PAGE2
943720.l 2014.81
                               CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing document has been served

upon opposing counsel of record as indicated below in accordance with the Texas Rules of Civil

Procedure, on this 14th day of September, 2015.

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


                                                  Isl J. Edward Johnson
                                                   J. Edward Johnson




DEFENDANT'S NOTICE OF INTERLOCUTORY APPEAL AND NOTICE OF AUTOMATIC TRIAL STAY          PAGE3
943720.l 2014.Sl
••~·~••••••••••    -COMM. JOURNAL- ••••••••••••••••••• DATE SEP-29-2015 ••••• TIME 14:09 ••••••••

        MODE = MEMORY TRANSMISSION                                            START=SEP-29 14:06                      END=SEP-29 14:09
         FILE NO. =971
STN     COMM.            STATION NAME/EMAIL ADDRESS/TELEPHONE NO.                                     PAGES             DURATION
NO.
001       OK            a12147470942                                                                  012/012           00:03:05


                                                                                           -THE GIBSON LAW FIRM
**'*'   e-STUDI0190F ••••••••••••••••• -


                  GI           THE G1asoN LAW F'IRM


                                                        FAX COVER SHEET


                       TO:            Gregory N. Ziegler                                              FAX:     (214) 747-0942
                                      Macdonald Devin, P.C.

                       DATE:          September29, 2015


                       FROM:          Casey L. Jordan/sf


                       WE ARE SENDING (7) PAGES (including this page).

                RE:                   Cause No. 2015-01975-133; Maria Moreno, Individually and as Representative
                                      of the Estate of Mario Moreno v. Nexion Health at Beechnut, Inc. <Jib/a
                                      Beechnut Manor


                       MESSAGE:               Please see attached:

                                              1) Appellee's Motion To Dismiss




                If you do not receive the entire FAX, or are not receiving it clearly, please call us
                at (713) 650-101 o.

                       THIS FAX IS INTENDED ONLY FOR USE OF THe ADDRESSEE. THIS INFORMATION IS F'RIVILEGED, CONFIDENTIAL AND SXEMPT
                       FROM RECENED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY U.S IMMEDIATELY AND RETURN TO 1HE ABOVE ADDRESS
                       BY THE U.S. POSTAL SERVICE.




                                                                                                                  ---···--
                               THE:. LYRIC CENTRE: 1 440 LOUISIANA, 5ulTI!: 24CC, HOUSTCIN, TX 77002
                      Pt"'I~ (713} e:.sc-101 c  F'Ax; {71 3) e:.50· 101 1 TOLL. ~EE& 1 ·S06•JAl3F'I RM 1524~3476)
                                                            www.JACi•LAWFIRM.CCM
  G            THE GIBSON LAW FIRM


                                        FAX COVER SHEET


       TO:            Gregory N. Ziegler                                             FAX:    (214) 747-0942
                      Macdonald Devin, P.C.

       DATE:          September29,2015


       FROM:          Casey L. Jordan/sf


       WE ARE SENDING (7) PAGES (including this page).

RE:                   Cause No. 2015-01975-133; Maria Moreno, Individually and as Representative
                      of the Estate of Mario Moreno v. Nexion Health at Beechnut, Inc. dlbla
                      Beechnut Manor



       MESSAGE:               Please see attached:

                              1) Appellee's Motion To Dismiss




If you do not receive the entire FAX, or are not receiving it clearly, please call us
at (713) 650-1010.

       THIS FAX IS INTENDED ONLY FOR USE OF THE ADDRESSEE. THIS INFORMATION IS PRIVILEGED, CONFIDENTIAL AND EXEMPT
       FROM RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY AND RETURN TO THE ABOVE ADDRESS
       BY THE U.S. POSTAL SERVICE.




            THE LYRIC:: CENTRE, 440 LCJUISIANA, SUITE 2400, HCJUSTCJN, TX 7 7 0 0 2
      PH: (713) 650-1010     FAX: (713) 650-1011   TCLL FREE: 1-866-..JAGFIRM (524-3476)
                                           WWW.JAG-LAW Fl RM.C::CJ M
