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

Related Cases

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