M&M Orthodontics, P.A. v. ACS State Healthcare, LLC and the State of Texas

ACCEPTED
03-14-00612-CV
4109871
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/11/2015 2:01:00 PM
JEFFREY D. KYLE
NO. 03-14-00612-CV CLERK

IN THE
THIRD COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
OF TEXAS AUSTIN, TEXAS
2/11/2015 2:01:00 PM
JEFFREY D. KYLE
Clerk
M&M ORTHODONTICS, P.A.
Appellant,
v.

THESTATEOFTEXAS
Appellees.

On appeal from the 53rd District Court, Travis County, Texas
Cause No. NO. D-1-GN-14-000321

APPELLANT'S UNOPPOSED MOTION TO VACATE AND DISMISS
APPEAL WITH PREJUDICE

Appellant asks the court to vacate and dismiss this appeal with prejudice.

A. INTRODUCTION

1. Appellant is M&M Orthodontics; appellee is the State of Texas.

2. Appellant perfected the appeal on September 23, 2014, when it filed a

notice of appeal.

B. ARGUMENT & AUTHORITIES

3. The court has the authority under Texas Rule of Appellant Procedure

42.1(a) to grant this motion to dismiss.

4. Since the filing of the appeal by M&M Orthodontics (hereinafter "M&M"),

M&M Orthodontics' Unopposed Motion to Dismiss
Page 1 of4
the State of Texas brought separate claims against several dentists including

M&M; that new case is styled State v. Nazari, et al., Cause No. D-1-GN-14-

005380 (hereinafter "5380").

5. Subsequently, the State of Texas and M&M have entered into an agreement

to dismiss this appeal. (See Attached Exhibit A -February 9, 2015 Rule 11

Agreement). The parties have agreed that the issues in this appeal will likely be

duplicative of the issues to be considered in 5380, so this appeal can be vacated.

6. Appellant asks the Court to vacate this appeal and dismiss it with prejudice.

CONCLUSION AND PRAYER

7. For these reasons, the Appellant respectfully requests that court vacate and

dismiss this appeal with prejudice.

Respectfully Submitted,

ATTORNEY FOR APPELLANT

M&M Orthodontics' Unopposed Motion to Dismiss
Page 2 of4
 CERTIFICATE OF CONFERENCE

I communicated by e-mail on February 9, 2015 with opposing counsel,

Raymond Winter (for the State of Texas) and the attached Rule 11 agreement with

the State indicates that the State does not oppose this motion.

M&M Orthodontics' Unopposed Motion to Dismiss
Page 3 of4
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was

served by eservice on February 10, 2015 to the following:

Counsel (or State o(Texas:
Raymond Winter
Office of the Attorney General
P.O. Box 12458
Austin, TX 78711-2548
raymond. winter@texasattomeygeneral.gov

Counsel (or ACS State Healthcare,LLC:
Eric J.R. Nichols
Christopher R. Cowan
Beck Redden, LLP
515 Congress Avenue, Suite 17 50
Austin, Texas, 78701
enicho1s@beckredden.com
ccowan@beckredden.com

M&M Orthodontics' Unopposed Motion to Dismiss
Page 4 of4
 EXHIBIT A

February 9, 2015 Rule 11
 2/9/2015 2:50:01 PM
Velva L. Price
District Clerk
Jennifer S. Riggs Franklin TravisHopkins County
( 'ertified in Admini.•lralive l.aw RlGGS&RAY D-1-GN-14-000319
Cert{fied In Admilli.flrati••c l.aw
Texa• Board rif /.ega/ Specialrzarwn A PROFESSIONAL CORPORATION Te.ta.• Board rif !.ega/ Specia/i::nlimr
jriggst4lr-alaw.com ATTORNEYS AND COUNSELORS fbopkins!ii)r-alaw.com

700 LAVACA, SUITE 910
Jason Ray AUSTIN, TEXAS 78701
Certified m Administrative l.aw 511 457-9806 TELEPHONE
Texa.• Board of /.ega/ Specialization 511 457-9066 FACSIMILE
jray@r-alaw.com

February 9, 2015

Raymond Winter via e-mail to:
Chief, Civil Medicaid Fraud Division raymond.winter(w.texasattornevgeneral.gov
Assistant Attorney General
Office ofthe Attorney General
P.O. Box 12548
Austin, Texas 78711-2548

Re: Cause No. D-1-GN-000319; Harlingen Family Dentistry, P.C. and Dr. Juan Villarreal,
D.D.S. v. ACS State Healthcare, LLC, in the 53rd Judicial District, Travis County, Texas
and
Cause No. D-1-GN-000321; M&M Orthodontics, PA, Dr. Scott Malone, DDS and Dr.
Diana Malone, DDS, v ACS State Healthcare, LLC, in the 1261h Judicial District, Travis
County, Texas.

Dear Ray:

The Harlingen Family Dentistry plaintiffs brought claims against the State of Texas in Cause No.
D-1-GN-14-000319 (hereinafter "319"). The M&M Orthodontics plaintiffs brought claims
against the State of Texas in Cause No. D-1-GN-14-000321 (hereinafter "321"). The District
Court signed an order granting the State's Plea to the Jurisdiction in 319 and 321 on September
18, 2014. The plaintiffs in 319 and 321 appealed the Order Granting the State's Plea to the
Jurisdiction and that appeal is pending. The State subsequently brought separate claims against
several dentists and, inter alia, the plaintiffs in 319 and 321; that new case is styled State v.
Nazari, et al., Cause No. D-1-GN-14-005380 (hereinafter "5380").

By this agreement, the plaintiffs in 319 and 321 agree to dismiss with prejudice the appeal of the
Order Granting the State's Plea to the Jurisdiction. The parties agree that the plaintiffs are not
required to dismiss any claims against Xerox in 319 and 321. In exchange, the State agrees and
stipulates that the plaintiffs in 319 and 321 do not waive and by their dismissal of the appeal of
the Order Granting the State's Plea to the Jurisdiction do not settle, any causes of action the
plaintiffs in 319 and 321 may have against third parties, including Xerox. The State agrees that
the dismissal of the appeal of the Order Granting the State's Plea to the Jurisdiction in 319 and
321 will not act to prevent the assertion or appeal of any claims or defenses that may be raised in
5380.
Raymond Winter
February 9, 2015
Page 2 of2

If the State agrees, please sign this and return it to me. I will consider it a Rule 11 agreement, and
each side can proceed with our respective arguments in the 5380 case, which should make for a
smaller, cleaner appellate record.

Sincerely,

..

Ray nd Winter
on behalf of the State of Texas
in Cause Nos. D-1-GN-14-000319,
D-1-GN-14-000321, and D-1-GN-14-005380