ACCEPTED
01-15-00793-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/30/2015 3:42:21 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00793-CV
In the Court of Appeals FILED IN
1st COURT
For the First District of Texas at Houston HOUSTON,OF APPEALS
TEXAS
9/30/2015 3:42:21 PM
CHRISTOPHER A. PRINE
Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor,
Clerk
Appellant
v.
Maria Moreno, Individually and as Representative of the Estate
of Mario Moreno,
Appellee
On Appeal from the
133rdJudicial District Court of Harris County, Texas
Cause Number 2015-01975
The Honorable Jaclanel McFarland, Presiding Judge
Appellant’s Response to Appellee’s Motion to Dismiss
Gregory N. Ziegler Weston M. Davis
Texas Bar No. 00791985 Texas Bar No. 24065126
J. Edward Johnson
State Bar No. 24070001
MACDONALD DEVIN, PC
3800 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
214.744.3300 Telephone
214.747.0942 Facsimile
Attorneys for Appellants
1 949112 2014.81
TO THE HONORABLE COURT OF APPEALS:
Appellant Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor
(“Appellant”) files this Response to the Motion to Dismiss filed by Appellee Maria
Moreno, Individually and as Representative of the Estate of Mario Moreno
(“Appellee”), and would respectfully show the Court as follows:
1. On September 14, 2015, simultaneously with the filing of its Notice of
Appeal in this cause, Appellant filed its Designation of Clerk’s Record with the
Court Clerk for the 133rd Judicial District Court, Harris County, Texas. The
Designation of Clerk’s Record is attached hereto as Exhibit “1.” As a result, the
Clerk’s Record was due in this case on September 24, 2015. TEX. R. APP. P.
35.1(b).
2. On September 29, 2015, Appellant received, for the first time, an
invoice from the Harris County District Clerk requesting payment for the Clerk’s
Record in this case. A copy of such invoice is attached hereto as Exhibit “2.”
3. On September 30, 2015, Appellant forwarded a check for $160.00 to
the District Clerk for payment of the Clerk’s Record. A copy of the letter
accompanying such payment is attached hereto as Exhibit “3.”
4. As Appellant has timely tendered payment for the Clerk’s Record in
accordance with TEX. R. APP. P. 35.3(a)(2), Appellee’s Motion to Dismiss must be
denied.
2 949112 2014.81
PRAYER FOR RELIEF
Appellant respectfully requests that the Court deny Appellee’s Motion to
Dismiss, and for all such other and further relief to which Appellant shows itself
entitled, in law or equity.
Respectfully submitted,
/s/ Weston M. Davis
Weston M. Davis
Texas Bar No. 24065126
WDavis@macdonalddevin.com
Gregory N. Ziegler
Texas Bar No. 00791985
GZiegler@macdonalddevin.com
J. Edward Johnson
Texas Bar No. 24070001
EJohnson@macdonalddevin.com
MACDONALD DEVIN, PC
3800 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
214.744.3300 telephone
214.747.0942 facsimile
Attorneys for Appellant
3 949112 2014.81
CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that on September 30, 2015, I have served this document on all other parties
listed below as follows:
VIA EMAIL:
JAG@JAG-LAWFIRM.COM
CJORDAN@JAG-LAWFIRM.COM
Jason A. Gibson
Casey L. Jordan
THE GIBSON LAW FIRM
The Lyric Centre
440 Louisiana, Suite 2400
Houston, Texas 77002
/s/ J. Edward Johnson
J. Edward Johnson
4 949112 2014.81
9/14/2015 3:57:40 PM
Chris Daniel - District Clerk Harris County
Envelope No. 6916514
By: EVELYN PALMER
J. Edward
Filed: Johnson
9/14/2015 3:57:40 PM
214.651.3376
ejohnson@macdonalddevin.com
September 14, 2015
Evelyn Palmer Via Electronic Filing
Court Clerk
133rd Judicial District Court, Harris County, Texas
Harris County Civil Courthouse
201 Caroline, 11th Floor
Houston, TX 75202
RE: Maria Moreno, Individually and as Representative of the Estate of Mario Moreno
v. Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor, Cause No. 2015-
01975, in the 133rd Judicial District Court of Harris County, Texas
DESIGNATION OF CLERK’S RECORD
Dear Ms. Palmer,
On September 14, 2015, Defendant Nexion Health at Beechnut, Inc. (“Beechnut”)
appealed the Court's August 24, 2015 Order denying Beechnut’s Chapter 74 Motion to Dismiss
to the First or Fourteenth Court of Appeals. Accordingly, Beechnut respectfully requests the
Court Clerk to prepare, certify, and file the Clerk's Record for appeal. Pursuant to Texas Rule of
Appellate Procedure 34.5(a)(13). Beechnut requests that the following documents and any
exhibits and attachments thereto—identified by approximate filing date and title—be included in
the Clerk's Record:
1. 01-14-15 Plaintiff’s Original Petition;
2. 02-20-15 Beechnut’s Original Answer and Request for Disclosure;
3. 06-29-15 Beechnut’s CPRC Chapter 74 Motion to Dismiss;
4. 07-17-15 Notice of Hearing on Beechnut’s Chapter 74 Motion to Dismiss;
5. 08-21-15 Plaintiff’s Response to Beechnut’s Chapter 74 Motion to Dismiss;
6. 08-24-15 Order Denying Beechnut’s Chapter 74 Motion to Dismiss;
7. 09-14-15 Beechnut’s Notice of Interlocutory Appeal and Notice of Automatic Trial
Stay;
8. Designation of Clerk’s Record (this letter);
9. the Court’s Docket Sheet; and
10. a Certified Bill of Costs.
3800 Renaissance Tower ▪ 1201 Elm Street ▪ Dallas, Texas 75270 ▪ Telephone: 214.744.3300 ▪ Facsimile: 214.747.0942 ▪ www.macdonalddevin.com
Letter to Clerk Palmer
September 14, 2015
Page 2
Beechnut requests that the documents listed above be prepared, certified, and filed in the
First or Fourteenth Court of Appeals, in the cause styled Nexion Health at Beechnut, Inc. d/b/a
Beechnut Manor v. Maria Moreno, Individually and as Representative of the Estate of Mario
Moreno. This is an accelerated interlocutory appeal, filed under Texas Rule of Appellate
Procedure 26.1(b). Consequently, Texas Rule of Appellate Procedure 35.1(b) requires that the
Clerk’s Record be prepared, certified, and filed with the Clerk of the Court of Appeals within ten
days of the filing of the notice of appeal.
Please advise regarding the costs to prepare the original and a copy of this record, so we
may make payment arrangements. If you have any questions, please do not hesitate to call me
directly. Thank you for your assistance in this matter.
Sincerely,
J. Edward Johnson
JEJ/jej
943730 2014.81
cc: Jason A. Gibson Via Electronic Filing and Electronic Mail
Casey L. Jordan
THE GIBSON LAW FIRM
The Lyric Centre
440 Louisiana, Suite 2400
Houston, Texas 77002
9/29/2015 8:43 Remote ID Remote ID D 212
9n912015
GREGORY~. ZIEGLER
STJ\TE BAR NO. 00791985
3800 RENAISSANCE TOWER
1201 E LM STREET
DALLAS, TEXAS 75270-2130
(214) 744-3300 TELEPHONE
(2 14) 747-0942 FACSIMILE
Re: No.: 2015-01975
Dear Custom er:
This Jetter is to inform you of the balance, which represents the cost to our office of preparing, at your request,
the O riginal Cl erk's Record in the above numbered case. Rule (35.3) of the Texas Rules of Appellate
Procedure requires that payment of this cost be remitted to our office prior to forwarding the clerk's record to
the Court of Appeals.
ORIGI NAL C LER KS RECORD $160.00
DELIVERED TO THE 1ST COURT OF APPEALS
BA L ANCE DUE $160.00
You may remit your payment in the fonn of attorney or law finn check, money order or cashier's check, payable to Chris Danie~
District Clerk, by mailing to: Cluis Danie~ District Clerk, Attn: Civil/Family Post Trial, P.O. Box 4651, Houston, TX 77210-
465 1.
Payment also may be remitted in person at the following location: Cluis Daniel, District Clerk, Civil/Family Post Trial, 201
Caroline, Room 250, Houston, TX 77002.
Please be infonned that this correspondence is the only notice you will receive from this office regarding this payment.
CHRIS DANIEL,
CLERK DISTRICT COURT,
HARJUS COUNTY, TEXAS
BY: Is/ MICHELLE LOPEZ
:MICHELLE LOPEZ, DEP UTY
APl R04 - 30 - 92
9/29/2015 8:43 Remote ID Remote ID D 1/2
Chris Daniel
Harris County District C ler·k
FAX COVER SHEET
DATE: Tuesday, September 29, 2015 08:42AM
TO: ATTY ZIEGLER
FAX: 2147470942
SUBJECT: 20 15-01975 Original Clerks Rec Balance Due
FROI\1: Civil -Family Post Trial Clerk, Michelle Lopez
VOICE: 713-755-7300
FAX: 713-755-1173
COMMENTS:
Total Pages (including cover sheet): 2
201 CaroUne • P.O. Box 4651 • Houston, Texas 77210 4651 • (~ 13) 75S.57J4
www.hcdJ.strictclerk.com
J. Edward Johnson
214.651.3376
ejohnson@macdonalddevin.com
September 30, 2015
Chris Daniel
District Clerk
Attn: Civil/Family Post Trial
P.O. Box 4651
Houston, Texas 77010-4651
Re: Maria Moreno, Individually and as Representative of the Estate of Mario Moreno
vs. Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor; Cause No. 2015-
01975 in the 133rd District Court, Harris County Texas
Dear Clerk:
Please find enclosed our firm’s check in the amount of $160.00 for preparing a copy of
the Original Clerk’s Record to be forwarded to the Court of Appeals in regard to the above-
referenced matter. Also enclosed is a copy of the invoice.
Thank you.
Sincerely,
J.
J. Edward
E ward Johnson
Ed
JEJ:kdt
Enclosures
948712 2014.81
3800 Renaissance Tower ▪ 1201 Elm Street ▪ Dallas, Texas 75270 ▪ Telephone: 214.744.3300 ▪ Facsimile: 214.747.0942 ▪ www.macdonalddevin.com