ACCEPTED
01-15-00793-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/29/2015 3:19:12 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00793-CV
IN THE COURT OF APPEALS FOR THE FILED IN
1"1 JUDICIAL DISTRICT OF HOUSTON 1st COURT OF APPEALS
HOUSTON, TEXAS
9/29/2015 3:19:12 PM
Nexiofl Health at Beechnut, Inc. v. Maria Moreno, Individually and A.
CHRISTOPHER asPRINE
Representative of the Estate of Mario Moreno Clerk
On Appeal From the
133rd Judicial District Court
of Harris County, Texas
Cause No. 2015-01975
APPELLEE'S MOTION TO DISMISS
TO THE HONORABLE FIRST COURT OF APPEALS:
MARIA MORENO, Individually and as Representative of the ESTATE
OF MARIO MORENO ("Appellee") files this Motion to Dismiss to NEXION AT
BEECHNUT, INC., D/B/A BEECHNUT MANOR's ("Appellant") Notice of
Appeal, and would respectfully show the following:
I.
BRIEF FACTS
1. Mario Moreno ("Moreno") died from a traumatic head injury suffered in
Appellant's long-term care facility for the cognitively impaired. It was well
known to Appellant's staff Moreno suffered from impaired balance, impaired
cognition and exhibited exit seeking behaviors.
2. However, on May 23, 2013 and again on May 29, 2013, Moreno was
permitted to elope from his room, fall and incur injuries requiring
hospitalization. After the May 29, 2013 fall, Moreno remained in and out of
consciousness until he died from his injuries on May 30, 2013.
11.
PROCEDURAL HISTORY
3. Subsequently, Appellee filed suit against Appellant on January 14,
2015. Appellee timely served Appellant with Chapter 74 expert reports for Dr.
Donald Marks and Rhonda Ratterman on February 23, 2015.
4. On August 24, 2015 the trial court heard Appellant's Chapter 74 Motion
to Dismiss regarding the reports. After reviewing the pleadings, the evidence
and arguments by counsel the trial court denied Appellant's Chapter 74
Motion to Dismiss. 1
5. Appellant filed a Notice of Interlocutory Appeal on September 14, 2015
2
and filed a request for Clerk's Record and Reporter's Record the same day.
The Clerk's Record and Reporter's Record were due September 24,
2015, ten (10) days from the date the Notice of Appeal was filed. 3 To date,
1
See Exhibit 1: Order Denying Nexion at Beechnut, lnc.'s Motion to Dismiss.
2
See Exhibit 2: Nexion at Beechnut, lnc.'s Notice of Interlocutory Appeal;.
3
See TEX. R. APP. P. 35.1(b).
2
five days after the deadline, the Clerk's Record and Reporter's Record have
not been filed with the Appellate Clerk because of Appellant's failure to pay.
111.
MOTION TO DISMISS
6. When the trial clerk fails to timely file the record because the appellant
failed to pay or make arrangements to pay the clerk's fee, the appellate court
may dismiss the appeal on a party's motion, or on its own initiative. 4 On
September 29, 2015, five days after the deadline to file the record, the trial
clerk informed Appellee the record has not been filed due to lack of payment.
7. Appellant, as the movant, has the responsibility to pay the clerk's fee or
make arrangements to do so. As a result of Appellant's failure to pay or make
arrangements to pay, the record has not been timely filed. Therefore,
Appellee asks the Court to dismiss Appellant's Notice of Appeal for a failure
to file a record pursuant to TEX. R. APP. P. 37.3(b).
IV.
PRAYER
8. Appellee respectfully requests the First Court of Appeals to DISMISS
Appellant's Notice of Appeal and for all other relief, both in law and equity, to
which they may be entitled.
4
See TEX. R. APP. P. 37.3(b).
3
Respectfully Submitted,
THE GIBSON LAW F"IRM
Jason A. Gibson
State Bar No. 24000606
Casey L. Jordan
State Bar No. 24090599
The Lyric Centre
440 Louisiana, Suite 2400
Houston, Texas 77002
Ph: (713) 650-1010
Fax: (713) 650-1011
ATTORNEYS FOR APPELLEE
CERTIFICATION OF FACTS
I have reviewed the above Motion to Dismiss. I certify every factual
statement is supported by competent evidence included in the record.
Casey L. Jordan
4
CERTIFICATE OF SERVICE
I certify a true and correct copy of this document has been served on all
counsel of record via first class regular mail or fax on September 29, 2015.
Casey L. Jordan
5
EXHIBIT 1
Cause No 2016-01976-133 vC~.
MARIO MORENO, lndMdually §
and as Representative oftlta ESTATE
§
IN THE DISTRICT COURT OF y
OF MARIO MORENO §
§
§ i i
v §
§
§
NEXION HEALTH AT BEECHNUT, INC , §
dlb/a BEECHNUT MANOR § 133111 JUDICIAL DISTRI
ORDER DENYING DEFENDANT NEXION AT BEECHNUT, INC
DIB/A BEECHNUT MANOR'S CHAP1ER 74 MOTION TO D!SMJSS
The Court heard Defendant's Chapter 74 Mobon to D1amtas After reviewing 1he
pleadings, the evidence and arguments by counsel, If any, the Court OEN/ES Defendanrs
Chapter 74 Motion to Dusm1ss
SIGNED ON tLwJ.u..ib 91± I 2015
Exhibit A···
EXHIBIT 2
9114120151:13:17 PM
Chris Danlel - District Clerk Harris County
Envelope No. 69092BB
By; Phyllis Washington
Filed: 9114120151:13:17 PM
NO. 2015-01975-133
MARIA MORENO, Individually and as § IN THE DISTRICT COURT
Representative of the Estate of Mario §
Moreno, §
§
Plaintiff, §
§
~ § HARRIS COUNTY, TEXAS
§
NEXIONHEALTHATBEECHNUT, INC., §
d/b/a Beechnut Manor §
§
Defendant. § 133r<1 JUDICIAL DISTRICT
DEFENDANT'S NOTICE OF INTERLOCUTORY APPEAL
AND NOTICE OF AUTOMATIC TRIAL STAY
TO THE HONORABLE COURT:
Please take notice that, pursuant to Texas Rule of Appellate Procedure 26.1 (b), Defendant
Nexion Health at Beechnut Inc. d/b/a Beechnut Manor ("Beechnut") desires to appeal to the First
or Fourteenth District Court of Appeals at Houston, Texas, the trial court's August 24, 2015
Order denying Beechnut's Chapter 74 Motion to Dismiss. See Attachment "A." Such Order is
subject to an accelerated interlocutory appeal. See Tex. Civ. Prac. & Rem. Code§ 51.014(a)(9);
Tex. R. App. P. 28.1. This notice of appeal is timely filed within twenty days after the trial
court's Order was signed. See Tex. R. App. P. 26.l(b). As required by the Local Rules Relating
to Assignment of Related Cases to· and Transfers of Related Cases between the First and
Fourteenth Courts of Appeals, I certify that no other related appeal or original proceeding has
been previously filed in either the First or Fourteenth Court of Appeals.
Further, please tal