My Three Sons, LTD., My Three Sons Management, LLC, Prestonwood OB/GYN Associates, P.A., Christopher Riegel, M.D., P.A., and Christopher Riegel v. 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.

Summarize Case

Related Cases

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 1949578v.1