ACCEPTED
01-15-00530-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/29/2015 2:09:45 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00530-CV
IN RE: SUNSET NURSING HOME, INC. FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
Relator, 6/29/2015 2:09:45 PM
CHRISTOPHER A. PRINE
Clerk
Original Proceeding from the 239th District Court
Brazoria County, Texas
Honorable Pat Sebesta, Presiding
REPLY MANDAMUS
Brandy R. Manning
State Bar No. 24029703
BURLESON LLP
223 W. Wall Street, Suite 400
Midland, Texas 79701
bmanning@burlesonllp.com
Telephone: 432.253.8603
Facsimile: 432.253.8601
Felicia L. Harris
State Bar No. 24002438
fharris@burlesonllp.com
BURLESON LLP
700 Milam Street, Suite 1100
Houston, Texas 77002
Telephone: 713.358.1700
Facsimile: 713.358.1717
1
TO THE HONORABLE COURT OF APPEALS:
The Grethers’1 chief complaint is that trial is currently set for August 2015.
The Responses’ theme is expediency—“a trial court has a duty to schedule its
cases in such a manner as to expeditiously dispose of them.” 2 Response at 26.
They ask this Court to reward their unrelenting obstruction of Sunset’s diligent
search for the truth by forcing Sunset to trial against only half of the responsible
parties and without the evidence to which it is entitled under the Rules. Justice and
fairness must not yield to expediency. Without mandamus relief, trial is not
“expedient”—it is a waste of time.
I. The Grethers’ procedural protests are without merit.
Rather than meet Sunset’s substantive arguments, the Grethers assail the
form of Sunset’s Petition, particularly counsel’s affidavit proving up record
documents and a handful of facts not evident from the written record. Critically,
the Grethers do not question the authenticity of any record document, nor do they
point this Court to any unsupported factual allegation. Counsel’s signature alone
substantiates her good faith belief that every statement has factual and legal
support. TEX. R. CIV. P. 13 (Attorney’s signature certifies that she has read the
1
Sunset replies to both Responses filed and will refer to Coleman and the Grethers
collectively as “the Grethers” unless otherwise noted.
2
Response at 26. The case cited holds that a trial court had discretion to dismiss a will
contest when a party with ample notice failed to timely post a cost bond. Clanton v. Clark, 639
S.W.2d 929, 931 (Tex. 1982).
2
pleading, motion, or other paper and that she believes, after reasonable inquiry,
that the motion is not groundless or brought in bad faith (i.e., has factual and legal
support)). The matter is easily resolved by counsel’s amended supporting affidavit.
See In re Cahill, 267 S.W.3d 104, 106 (Tex. App.—Corpus Christi 2008, orig.
proceeding) (even a defect in verification is subject to correction, and does not
preclude the Court’s consideration of a mandamus petition).
Similarly, the Grethers assail the record, and ask this Court to disregard any
document not filed with the Court. Sunset filed an exhaustive record, containing
sworn copies of key documents either filed with the court and/or providing the
basis for its Petition. It also filed a short appendix, containing copies of the most
critical record documents as well as the text of Rule 63, for the court’s
convenience. The purpose of the rules regarding the appendix and record are to
provide the court with both evidentiary support for every factual allegation made
and an expedient method to review these documents. See, generally, TEX. R. APP.
P. 52. Sunset has accomplished both goals and asks the Court to consider the
sworn documents provided as it deems appropriate in reviewing Sunset’s petition.
I. This Court should issue mandamus compelling the trial court to
vacate its order striking Sunset’s amended pleadings.
a. The trial court clearly abused its discretion in striking Sunset’s
amended pleadings.
3
The Grethers agree: “A trial court has no discretion in determining what the
law is or applying law to the facts.” Response at 10. Thus, “a trial court clearly
abuses its discretion when it reaches a decision so arbitrary and unreasonable as to
constitute a clear and prejudicial error of law, or if it clearly fails to correctly
analyze or apply the law.” Id.
Despite their dissatisfaction with Sunset’s recitation of the facts, the
Grethers do not deny key facts.
• The only docket control order entered was based on an October 2014
trial date. R59.
• The trial court, in mid-2014, continued the first trial setting (October
2014). R1A.
• Sunset proposed a DCO based on an April 13, 2015 trial date (the
second trial setting)—it included a January 30, 2015 deadline to
amend pleadings. R64.
• In response, the Grethers confirmed their approval of the proposed
pleadings deadline:
“The DCO dates looked ok to me. I’ll get you a signature on an
agreed order to submit the dates to the court.”
Id.; See also R75 at Exhibit P. This October 2014 email exchange
was months before the exchange cited in the Response. Compare R64
to R73.
• The December email exchange cited in the Response occurred after
Coleman’s deposition and just before Richards’, when the Grethers
realized that Sunset either knew or would soon confirm facts to
support pleadings against all of the Grether parties, including
Coleman. Until then, the Grethers acted consistently with the parties’
4
and court’s understanding that DCO deadlines had been lifted. 3 See,
e.g., R75 and Exhibits at P, Q, R (attached thereto).
• The Grethers contend that a deadline to amend pleadings “necessarily
included amended pleadings adding parties.” Response at FN52.
Thus, an extended deadline to amend pleadings was also an extended
deadling to add parties.
• Sunset amended pleadings in response to Coleman’s and Richards’
depositions, which were sought as early as Spring 2014, but delayed
by the Grethers 4, and not obtained until near the end of the year.
• Sunset’s 2014 filings (R105 and R35), deposition questions (R75 at
Exhibit J), information the Grethers were gathering regarding the
nursing home market in Southern Brazoria County in early 2011
(R111, 112, 113), and the Grethers’ own actions during the change of
control reveal the Grethers not only could have anticipated an antitrust
claim – but should have anticipated it. See Stephenson v. LeBoeuf, 16
S.W.3d 829, 839 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)
(amendment not prejudicial on its face if could have anticipated
it). The anticompetitive activity is at the heart of Sunset’s case
against all of the Defendants since there would have been no reason
for RAI or Plantation (both non-operational) to sabotage the
operations of the Sunset’s facilities, except to benefit CVC, GHCF
(and ultimately Richards and Stewart) which were each controlled by
Ms. Richards and Ms. Stewart -- the sole owners of CVC, which now
owns 99% of GHCF.
3
Critically, the Grethers do not deny the trial court’s statement lifting all deadlines in the
DCO. Their objection is simply to the lack of a transcript from that hearing. A transcript—had
one been created, Sunset would have included it in the Record—is not the only evidence of the
Court’s decision, however. The motion Sunset filed (R62) asking for a continuance and the
lifting of all deadlines (which was granted, even though the Court did not sign an order),
followed by the parties and the court’s actions after that hearing, and the affidavit of Sunset’s
counsel (which the Grethers do not refute) are ample evidence of that decision.
4
A summary of the discovery hurdles Sunset faced in 2014 are summarized in Sunset’s
Motion for Sanctions and the First and Second Supplement to that motion. See R35.
5
• Moreover, neither the Grethers nor Coleman presented evidence in the
trial court below, nor argue here, that they were surprised or
prejudiced by Sunset’s April Amended Pleading. Further, because
there is no docket control order in place, the deadline to amend
pleadings still has not expired. TEX. R. CIV. P. 63.
The trial court abused its discretion because it clearly failed to correctly analyze or
apply the law to these undisputed facts when it granted the Motion to Strike. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) Consider:
• Under Rule 63, parties may freely amend “at such time as not to
operate as a surprise to the opposite party.” TEX. R. CIV. P. 63.5 Even
if an amendment is filed within 7 days of trial or after a docket control
deadline, leave shall be granted “unless there is a showing” of
“surprise.” Id.
• Texas law is clear—continuing the trial date automatically
vacates the DCO deadlines unless the court expressly orders
otherwise. See, e.g., Killam Ranch Properties, Ltd. v. Webb
County, 2008 WL 4958452, *4 (Tex. App.—San Antonio 2008,
no pet.) (holding that continuance of more than 30 days
nullifies deadlines in pretrial order, so that all deadlines are
governed by the Rules of Civil Procedure); Felker v. Petrolon,
Inc., 929 S.W.2d 460, 467, n.9 (Tex. App.—Houston [1st Dist.]
1996, writ denied). The only case cited in the Response
involved “floating” deadlines keyed off a continued trial date, a
species of “unless the court expressly orders otherwise.” As a
matter of law, continuance of the October 2014 trial date
nullified the June 2014 pleadings deadline.
5
Parties may amend their pleadings, respond to pleadings on file of other parties, file
suggestions of death and make representative parties, and file such other pleas as they may desire
by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite
party; provided, that any pleadings, responses or pleas offered for filing within seven days of the
date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall
be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless
there is a showing that such filing will operate as a surprise to the opposite party. TEX. R. CIV. P.
63.
6
• Neither the Grethers nor Coleman made any showing of
“surprise” in the trial court below. See R50 and R73 (Motion to
Strike/Supplemental Motion to Strike). Nor could they—they
do not deny Sunset’s consistent assertions that this lawsuit is
one between competitive nursing facility operators in Southern
Brazoria County (R28 and R35) , their own evidence (R75,
Exhibits N and O); Sunset’s effort following Gayle Jacob’s
deposition to obtain evidence on the interrelationship between
the Grether entities (R34 at 152-153), and their own witnesses’
testimony that the “new” parties are new in name only R12
(Coleman depo testimony, billed GHCF for all Grether
entities). See Stephenson, 16 S.W.3d at 839.
• Additionally, neither Sara Richards nor Amy Stewart could
claim surprise. Contrary to the Grethers’ arguments, both Ms.
Richards and Ms. Stewart had been previously disclosed as a
potential party in Sunset’s disclosures. (R73) Stephenson, 16
S.W.3d at 839.
• Rule 91a permits a party to move to dismiss claims as “baseless,” but
includes a corresponding right to the opposing party to amend
pleadings to meet the motion. TEX. R. CIV. P. 91a. Coleman filed a
Rule 91a motion, Sunset filed the April amended pleading in
response, and Coleman withdrew his motion. R74, R49, R76. To the
extent the amended pleading addressed Coleman’s motion, Coleman
invited it and Sunset had an absolute right to file it.
• Rule 38 requires leave of court to add third-party defendants more
than 30 days after a party files its original answer. TEX. R. CIV. P. 38.
The Grethers do not deny that the “new” Grether parties are not third-
party defendants, so that Rule 38 does not apply. The trial court’s
recent grant of Sunset’s unopposed motion to restyle (its motion for
realignment had already been granted) confirms the true character of
the parties—Sunset is the only plaintiff and all other parties are
simply defendants. 6 R114.
6
The trial court’s docket for Cause No. 72817 reflects the Court’s decision. See
http://publicbrazoria-
county.com/PublicAccess/Search.aspx?ID=200&NodeID=100%2c110%2c200%2c210%2c120
%2c130%2c140%2c220%2c230%2c240%2c250&NodeDesc=All+Courts.
7
Given established law and the undisputed facts, the trial court had no legal
or factual basis for striking the January and April amended pleadings. And the
Grethers recognize that “A trial court has no discretion in determining what the law
is or applying law to the facts.” Response at 10. Thus, the trial court clearly
abused its discretion.
Coleman’s only substantive response is that he is immune. But, the trial
court has not yet had the opportunity to consider the facts underlying Sunset’s
decision to add him as a party. This Court need only decide whether Sunset’s
amended pleadings against Coleman and the other Grether parties was timely, not
whether on the merits, Sunset can prevail.
b. Sunset has no adequate remedy by appeal.
Sunset has no adequate remedy by appeal. “Adequate” is the operative
word, and our Supreme Court acknowledged that it “has no comprehensive
definition; it is simply a proxy for the careful balance of jurisprudential
considerations that determine when appellate courts will use original mandamus
proceedings to review the actions of lower courts.” In re Prudential, 148 S.W.3d
124, 137 (Tex. 2004). The court must consider both public and private interests,
including preserving important substantive and procedural rights, allowing the
appellate courts to give needed and helpful direction to lower courts, and sparing
both private parties and the public the time and money utterly wasted, particularly
8
when such waste is easily avoided. Id. In short, an appellate remedy is “adequate”
when the detriments of mandamus review outweigh the benefits; conversely, when
the benefits of mandamus outweigh the detriments, an appellate remedy is
inadequate. Id.
This determination is not an abstract or formulaic one; it is practical and
prudential:
Walker does not require us to turn a blind eye to blatant injustice nor
does it mandate that we be an accomplice to sixteen trials that will
amount to little more than a fiction. Appeal may be adequate for a
particular party, but it is no remedy at all for the irreversible waste of
judicial and public resources that would be required here if mandamus
does not issue.
Id. Stated simply, whether an appellate remedy is “adequate” depends heavily on
the circumstances presented. Id.
The court must consider not only the effect on individual parties, but the
impact on the judicial system. Thus, where the trial court’s complete lack of
authority for its order, and the trial court had set up a proceeding that was likely to
be “little more than a fiction,” the burden on the judiciary justifies mandamus
relief. Id. Likewise, when the trial court’s error is clear and the correction simple,
mandamus is appropriate. Id.
Here, the trial court’s error is clear—there is simply no legal basis on which
it could strike the Amended Pleadings. Furthermore, the correction is simple.
Trial against all of the admittedly-intertwined Grether parties (including Coleman),
9
particularly when those parties have been present and participants in the
proceedings to date, are represented by the same counsel 7 and witnesses, and
where the claims against each turn on the same evidentiary facts and documents,
causes no disruption to the process. Trial against only a portion of the interrelated
parties, on the other hand, guarantees a retrial. Such is a complete waste of both
private and judicial resources. The benefits of mandamus relief clearly outweigh
any detriment. Sunset has no adequate remedy on appeal.
II. This Court should issue mandamus to compel the trial court to enforce
full and fair discovery of the facts.
The Rules of Civil Procedure favor full and fair discovery of the facts, so
that disputes may be decided by what those facts reveal, rather than what is
concealed. Axelson, Inc. v. McIlhany, 798 S.W.2d 691, 693 (Tex. 1990). To that
end, a party may discover any non-privileged information, whether admissible at
trial, that is relevant or calculated to lead to the discovery of admissible evidence.
Id. And key here—to justify protection from discovery, a party must present facts
showing a particular, specific, and demonstrable injury should discovery proceed.
In re Eurecat US, Inc., 425 S.W.3d 577, 582 (Tex. App.—Houston [14th Dist.]
2014, orig. proceeding). Likewise, denial of discovery in the absence of evidence
7
Coleman has been the Grethers’ counsel since the 1990s and, in this proceeding,
appeared at a number of depositions before he was named as a party. (R48a, R49a, R75). In this
proceeding, the similarities in Coleman’s Response to the Grethers’ Response evidences the
cross-pollination and collaboration continues between Coleman and the Grethers (and their
respective counsel). Compare the Grethers’ Response at 31-32 with Coleman’s Response at 11-
12 (almost word-for-word duplications).
10
substantiating a claim of privilege is a clear abuse of discretion. Weisel Enters.,
Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986). Only if the trial court finds that the
likely harm from production outweighs the potential benefit to the requesting party
may it deny discovery. Id.
Here, there has been no finding of harm to the Grethes. Instead, although
the Grethers failed to present any facts showing a particular, specific, and
demonstrable injury or evidence of privilege, the trial court denied discovery of
information not only relevant, but potentially critical to Sunset’s claims.
Furthermore, the Grethers acknowledge that when, as here, the denial of discovery
(1) vitiates or severely compromises the relator’s ability to present a viable claim
or defense, or (2) renders it impossible for an appellate court to evaluate the effect
of the trial court’s error because the undiscovered information cannot be made a
part of the record, mandamus is appropriate—in other words, where these
circumstances exist, there is no adequate remedy by appeal. Response at 12.
Sunset complained of six trial court discovery rulings. Interim actions of the
trial court have changed things slightly, so Sunset will address each—including the
Grethers Response—separately:
1. “Policies and Procedures.” Following its sua sponte decision in
May 2014 for in camera review, in September 2014, the trial court permitted
Sunset’s counsel to review these documents at the courthouse, but refused to allow
11
their use in the preparation of Sunset’s case—counsel has been prohibited from
using them in depositions, sending them to Sunset’s expert, or utilizing them in
pretrial proceedings or at trial.
The Grethers offer two justifications for the trial court’s order—that the
documents are “proprietary” and that their substance has no bearing on Sunset’s
claims. Neither contention has merit.
First, Amy Stewart described the “policies and procedures” as documents
available for purchase, but customized to the needs of the patients at a particular
facility—these are the very documents necessary to effectuate a change of control
to avoid disrupting ongoing operations and the continuity of care for the facilities’
resident patients. R33 at 267-270. To the extent the documents retained their base
provisions, they are not proprietary; to the contrary, they are available for purchase
at will. To the extent, if at all, 8 they had been customized to the Clute and Lake
Jackson facilities, the Grethers had no interest in them once they released control
of the facilities—in fact, they had contracted to leave them at the facility. (R69,
R48a, R49a, Exhibits B and E at XXIX (A, C, and E) Critically, the Grethers
produced no facts to the trial court demonstrating a “particular, specific, and
demonstrable injury” from their production; thus, they failed to meet their
8
Spotlighting the challenges faced by Sunset on this point, it is not possible for Sunset to
demonstrate to this Court the content of the policies and procedures (or refute the Grethers’
assertion that they have been customized or are allegedly proprietary) because the documents
remain under the trial court’s control.
12
evidentiary burden. The trial court clearly abused its discretion in sua sponte
refusing to make the policies and procedures documents generally available to
Sunset.
Second, the substance of the documents bears directly on Sunset’s claims.
To establish its breach of contract claim, Sunset will have to prove the Grethers’
material breach of the leases and that that breach caused injury. The substance of
these documents demonstrate their materiality—they were essentially the “recipe”
by which the facilities were operated; their denial precluded Sunset’s ability to
effect a smooth changeover. (R69, R48a, R49a, Exhibits B and E at XXIX (A, C,
and E) In sum, removal of the policies and procedures documents denied Sunset
the central benefit of the lease requirements—delivery of an ongoing business
concern without disruption. (R69, R48a, R49a, Exhibits B and E at XXIX (A, C,
and E) Likewise, Sunset will look to these documents to establish injury caused by
their removal—the documents describe the benefit of the bargain against which
damages will be measured.
The trial court’s refusal to permit free use of these documents (1) vitiates or
severely compromises Sunset’s ability to present its breach of contract claim, and
(2) renders it impossible for this Court to evaluate the effect of the trial court’s
error because the policies and procedures canot be made a part of the record. See
Euracat, 425 S.W.3d at 582. Mandamus is appropriate.
13
2. MDS documents. The trial court’s recent release of these documents
changes Sunset’s request for mandamus relief, but does not entirely moot it.
Sunset explained its “fox guarding the henhouse” concerns, including the fact that
the release documents were supposed to be sealed, but contain an affidavit dated
ten days after the “sealed” documents were delivered to the Grethers’ counsel, in
its Supplemental Petition. Supp. Petition at 3-5. Significantly, the Grethers
offered no explanation for this anomaly in their Response.
Likewise, Sunset explained in great detail the extent to which the trial
court’s refusal to enforce the subpoena as issued precludes its ability to present its
claims and defenses to the trial court, and precludes meaningful review by this
Court in its Petition. Petition at 65-70. Sunset stands on these arguments, and sees
no need to repeat them here.
3. “Discharge books.” Sunset contends the Grethers violated Section
XXIX of the Lease Agreements in transferring resident patients out of the facilities
in the days preceding the April 30, 2011 change over. (R69, R48a, R49a, Exhibits
B and E at XXIX (B and E) It is not disputed the discharge books exist and contain
information directly relevant to this claim. It is further undisputed that the
Grethers are exclusively in control of this information. Thus, the substance of the
documents bears directly on Sunset’s claims.
14
To establish its breach of contract claim, Sunset will have to prove the
Grethers’ material breach of the leases and that that breach caused injury. The
substance of these documents demonstrate their materiality—they are a succinct
summary of the resident patients discharged in a relevant time period and by
precluding Sunset’s access to them, effectively, vitiates or severely compromises
Sunset’s ability to prove the Grethers’ breach. (R69, R48a, R49a, Exhibits B and
E at XXIX (B and E) Likewise, Sunset will look to these documents to establish
injury caused by the patients’ transfer.
The trial court’s refusal to rule six weeks before trial (1) vitiates or severely
compromises Sunset’s ability to present its breach of contract claim, and (2)
renders it impossible for this Court to evaluate the effect of the trial court’s error
because the discharge books cannot be made a part of the record. See Euracat, 425
S.W.3d at 582. Mandamus is appropriate. See Able Supply Co. v. Moye, 898
S.W.2d 766, 771-73 (Tex. 1995).
4. Employee communications. Sunset contends the Grethers violated
Section XXIX of the Lease Agreements in transferring key employees out of the
facilities in the days preceding the April 30, 2011 change over. (R69, R48a, R49a,
Exhibits B and E at XXIX (E and F) Ms. Stewart testified that responsive
documents are within the Grethers’ control. (R105 at Exhibit F). It is further
15
undisputed that the Grethers are exclusively in control of this information. Thus,
the substance of the documents bears directly on Sunset’s claims.
To establish its breach of contract claim, Sunset will have to prove the
Grethers’ material breach of the leases and that that breach caused injury. The
substance of these documents demonstrate their materiality—they are evidence
relevant to the Grethers’ defense, and Sunset’s contentions, concerning breach of
Section XXIX(F) of the Lease Agreements. Without access to them, Sunset’s
ability to present its claim to the jury is, effectively, vitiated or severely
compromised. Additionally, because Sunset will look to these documents to
demonstrate injury caused by the transfer of key employees, and the disruption to
operations that caused, the documents are material and central to the case.
The trial court’s refusal to rule six weeks before trial (1) vitiates or severely
compromises Sunset’s ability to present its breach of contract claim, and (2)
renders it impossible for this Court to evaluate the effect of the trial court’s error
because the employee communications cannot be made a part of the record. See
Euracat, 425 S.W.3d at 582. Mandamus is appropriate. See Able Supply, 898
S.W.2d at 771-73.
5. Gayle Jacobs’ knowledge of the interrelationship between the
Grethers.
The Grethers only response on each of these issues is that the trial court has
not yet—up to and including the June 23, 2015 hearing—issued an order on
16
Sunset’s relevant motion to compel. Response at 35-36. But the trial court’s
refusal to rule on Sunset’s motion a mere six weeks from trial is effectively, a
denial of that motion. See In re Colonial Pipeline Co., 968 S.W.2d 938, 942 (Tex.
1998) (holding that a trial court abuses its discretion when it fails to permit a
reasonable and sufficient amount of time for review and utilization of the products
of discovery, and explaining that the purpose of discovery is thwarted when parties
are forced to do without the basic facts surrounding the operable claims or
defenses). Because the Grethers offer no substantive response to Sunset’s briefing
on this point, Sunset stands on its Petition in reply as to each of these points. See
Petition at 71-72, 74.
6. Appraisals. The trial court’s release of the appraisal documents
moots Sunset’s request for relief as to these documents, as the record currently
stands. The trial court has yet to render an order as to the use of these documents,
and an order limiting the use of these documents may require Sunset to request
additional relief.
A mere six weeks from trial, the trial court has refused to rule on many of
Sunset’s motions to compel, which is, effectively, denial of those motions. Sunset
has demonstrated that as to each discovery request, (1) denial of discovery vitiates
or severely compromises its ability to present its case, and (2) precludes this Court
from meaningfully reviewing Sunset’s complaints because the requested
17
information cannot be made part of the appellate record. Sunset has satisfied the
requisites for mandamus relief, and respectfully asks this Court to grant its Petition
for Writ of Mandamus.
CONCLUSION AND PRAYER
The Grethers criticize Sunset’s request for mandamus relief as “desperate.”
But a party should be in dire need of appellate interference before it seeks
extraordinary relief. Here, without mandamus relief, despite its diligent effort to
uncover key facts and the Grethers’ unwavering attempts to hide the truth, Sunset
is facing trial against a fraction of the responsible parties without information to
which it is entitled. Such a proceeding is a complete waste of judicial resources;
more importantly, it makes a mockery of a system devoted to fairness and justice.
Critically, while assailing the manner in which Sunset proved up the factual
basis for its Petition, the Grethers do not deny a single factual allegation—it is
undisputed on this record that the Grethers are interrelated parties, that they are
represented by the same counsel,9 have participated in these proceedings since
their inception, and rely on the same witnesses and documents. The Grethers
failed to show “surprise” under Rule 63; thus, the trial court clearly abused its
discretion in striking Sunset’s Amended Pleadings. To the extent the April
pleading responded to Coleman’s Rule 91a motion, Sunset’s amendments were a
9
See infra. (discussing the continued collaboration between the Grethers and Coleman
and their respective counsel.
18
matter of right. There is simply no legal basis for the trial court’s action. And
because the benefits of mandamus relief—one trial against all parties—exceed its
detriments—the risk of piecemeal litigation against related parties, with each
proceeding implicating the same witnesses and evidence—Sunset has no adequate
remedy by appeal. Sunset is entitled to mandamus relief.
Similarly, six weeks from trial, the trial court’s repeated refusal to rule on
Sunset’s motions to compel is effectively a denial of those motions. The trial court
clearly abused its discretion in denying discovery without holding the Grethers to
the requisite evidentiary showing. Denial of the requested discovery both severely
compromises Sunset’s ability to present its claims and does so in a manner that
precludes this Court’s meaningful review. Sunset is entitled to mandamus relief.
For these reasons, Sunset respectfully asks this Court to grant its Petition for
Writ of Mandamus and for such other and further relief to which it may be entitled.
19
Respectfully submitted,
BURLESON LLP
By: /s/ Brandy R. Manning
Brandy R. Manning
Bar No. 24029703
Midland Tower
223 W. Wall Street, Suite 400
Midland, Texas 79701
432-253-8600 (office)
432-253-8601 (Fax)
brmanning@burlesonllp.com
By: /s/ Felicia Harris
Felicia Harris
State Bar No. 24002438
fharris@burlesonllp.com
Demetri Economou
State Bar No. 24078461
deconomou@burlesonllp.com
700 Milam, Suite 1100
Houston, Texas 77002
713.358.1700
713.358.1717 fax
ATTORNEYS FOR
SUNSET NURSING HOME,
INC.
20
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of TEX. R. APP. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point font for text and 12-point for footnotes. This document also complies with
the word-count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it
contains 4,679 words, excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1).
/s/ Brandy R. Manning
Counsel for Relator
CERTIFICATE OF SERVICE
This will certify that on the 29th day of June, 2015, a true and correct copy
of the foregoing document has been sent to the following via certified mail, return
receipt requested, ESERVE, electronic mail and/or facsimile delivery in
accordance with the Texas Rules of Civil Procedure.
Breck Harrison
JACKSON WALKER LLP
100 Congress, Suite 1100
Austin, Texas 78701
(512) 236-2000
(512) 236-2002 – Fax
bharrison@jw.com
Counsel for Paul A. Heinig,
Plantation Health Care, Inc.,
Rebecca Ann, Inc., Donald Grether,
Grether Health Care Facilities, LLC,
Country Village Care, Inc,
Sara Grether Richards, Amy Grether Stewart
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Zandra Foley
Andrew Johnson
Thompson, Coe, Cousins & Irons, L.L.P.
One Riverway, Suite 1400
Houston, Texas 77056
zfoley@thompsoncoe.com
ajohnson@thompsoncoe.com
Counsel for Stephen M. Coleman
The Honorable Patrick Sebesta
239th Judicial District Court
Brazoria County, Texas
111 E. Locust, Room 310A
Angleton, Texas 77515
RESPONDENT
/s/ Brandy R. Manning
Brandy R. Manning
CERTIFICATION
I certify that I have reviewed the reply and that concluded that every factual
statement in the reply is supported by competent evidence included in the appendix
or record.
___/s/ Felicia Harris_________
Felicia Harris
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