Dr. Behzad Nazari, D.D.S. D/B/A Antoine Dental Center Dr. Behzad Nazari Harlingen Family Dentistry, P.C. A/K/A Practical Business Solutions, Series LLC Juan D. Villarreal D.D.S., Series PLLC D/B/A Harlingen Family Dentistry Group v. State

ACCEPTED
03-15-00252-CV
7360615
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/13/2015 5:14:01 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00252-CV

IN THE COURT OF APPEALS FILED IN
FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS
AUSTIN, TEXAS
10/13/2015 5:14:01 PM
DR. BEHZAD NAZARI, D.D.S., ET AL., JEFFREY D. KYLE
Appellants, Clerk

v.
THE STATE OF TEXAS,
Appellee,
V.

XEROX CORPORATION, XEROX STATE HEALTHCARE, LLC
F/K/A ACS STATE HEALTHCARE, LLC,
Appellees.

On Appeal from the 53rd Judicial District Court of Travis County, Texas,
Trial Court Cause No. D-1-GN-14-005380

UNOPPOSED MOTION TO CONSOLIDATE
CAUSES FOR SUBMISSION ON ORAL ARGUMENT

BECK REDDEN LLP BECK REDDEN LLP
Eric J.R. Nichols Constance H. Pfeiffer
State Bar No. 14994900 State Bar No. 24046627
enichols@beckredden.com cpfeiffer@beckredden.com
Gretchen Sween 1221 McKinney St., Ste. 4500
State Bar No. 24041996 Houston, TX 77010
Christopher R. Cowan Tel: 713.951.3700
State Bar No. 24084975 Fax: 713.951.3720
515 Congress Ave., Ste. 1900
Austin, TX 78701
Tel: 512.708.1000
Fax: 512.708.1002
GIBSON, DUNN & CRUTCHER LLP KELLY HART & HALLMAN LLP
Robert C. Walters C. Andrew Weber
State Bar No. 20820300 State Bar No. 00797641
rwalters@gibsondunn.com andrew.weber@kellyhart.com
2100 McKinney Ave., Ste. 1100 301 Congress, Ste. 2000
Dallas, TX 75201 Austin, TX 78701
Tel: 214.698.3100 Tel: 512.495.6451
Fax: 214.571.2900 Fax: 512.495.6930
COUNSEL FOR APPELLEES / RELATORS
TO THE HONORABLE THIRD COURT OF APPEALS:

Appellees/Relators Xerox Corporation and Xerox State Healthcare, LLC

respectfully move to consolidate Cause No. 03-15-00252-CV (“Nazari appeal”)

and Cause No. 03-15-00401-CV (“In re Xerox Corporation”) for purposes of oral

argument only. This motion is unopposed and rests on the following good cause:

1. On October 8, 2015, this Court set the Nazari appeal in Cause No. 03-

15-00252-CV for oral argument on November 4, 2015.

2. Counsel for all parties have conferred about a common preference to

have oral argument in the Nazari appeal heard on the same date as any argument

that the Court may hear in In re Xerox Corporation. To be clear, the State

maintains that the In re Xerox Corporation petition should be denied without oral

argument. Xerox (a party in both causes) and the Dental Group (the Nazari

appellants) believe that hearing argument on both matters would make sense, given

the overlap on the underlying legal issues.

4. From Xerox’s perspective, consolidating oral argument in these two

causes would assist the Court in its decisional process for the following reasons:

First, the Nazari appeal and Xerox’s original proceeding involve closely

related issues, affect the same parties, involve the same counsel, and arise in the

same trial court. The causes are both fully briefed and ready for submission.

1802.008/568918
 Both causes present the issue of whether the State may exclude parties and

prohibit third-party claims when it brings suit under the Texas Medicaid Fraud

Prevention Act. The Nazari appeal raises this issue in the context of the Dental

Group’s third-party claims against Xerox. Xerox’s original proceeding raises this

issue in the context of Xerox’s third-party claims and responsible third party

designations against the Dental Group. In light of the Dental Group’s positions in

its reply brief in the Nazari appeal, both proceedings also involve the issue of

whether Chapter 33 applies to a claim brought under the TMFPA.

Second, the briefing from Xerox’s original proceeding is incorporated by

reference into the Nazari appellate positions. See Xerox Appellees Br. 14

(incorporating mandamus briefing); Nazari Reply Br. 1 (adopting Xerox’s

briefing).

Third, the parties are all agreed that it serves judicial economy and would

aid in the Court’s decision process to decide the two causes in light of each other.

See Nazari Reply Br. 6 (“The Dental Group agrees with Xerox that this Court

should decide Xerox’s original proceeding in Cause 03-15-00401-CV in

conjunction with this appeal.”); State of Texas Response to Mandamus Petition 12

n.6 (“In its Appellee’s Brief in 03-15-00252-CV, Xerox argues that this Court

should decide the merits of the Nazari appeal alongside the merits of this original

proceeding. On that point, the State and Xerox agree.”).

1802.008/568918
 It is not necessary to consolidate the two causes into one; rather, Xerox

moves solely to consolidate the submission on oral argument so that the Court

benefits from a full hearing on the parties’ respective positions. As the Dental

Group puts it: “In the interest of judicial economy, consistency … and overall

justice, all of the parties’ claims regarding medical necessity and proportionate

party responsibility should be determined with an acknowledgement that rulings

with regard to any one party’s claims affect all of the parties.” Nazari Reply Br. 8.

Xerox therefore respectfully submits it would be most efficient and helpful

to the Court to set both causes for submission on oral argument on the same day.

5. When the parties conferred about this motion, they discussed

proposing that the arguments be set consecutively rather than holding one

expanded argument. This format has the benefit of keeping the positions clear

with respect to each cause. Regardless of the form of argument chosen by the

Court, there are undeniably common issues of law among parties to interrelated

litigation that has been specially assigned to one Travis County district judge.

Accordingly, Xerox submits that holding argument on both causes on the same day

would best serve the interests of economy of both this Court and the trial court, and

of the parties.

PRAYER FOR RELIEF

For the reasons explained above, Xerox respectfully requests that the Court

consolidate the Nazari appeal and Xerox’s original proceeding for oral argument.
1802.008/568918
 Respectfully submitted,

Eric J.R. Nichols By: /s/ Constance H. Pfeiffer
State Bar No. 14994900 Constance H. Pfeiffer
Gretchen Sween State Bar No. 24046627
State Bar No. 24041996 BECK REDDEN LLP
Christopher R. Cowan 1221 McKinney St., Ste. 4500
State Bar No. 24084975 Houston, TX 77010
BECK REDDEN LLP Tel: 713.951.3700
515 Congress Ave., Ste. 1900
Austin, TX 78701
Tel: 512.708.1000

Robert C. Walters C. Andrew Weber
State Bar No. 20820300 State Bar No. 00797641
GIBSON, DUNN & CRUTCHER LLP 301 Congress, Ste. 2000
2100 McKinney Ave., Ste. 1100 KELLY HART & HALLMAN LLP
Dallas, TX 75201 Austin, TX 78701
Tel: 214.698.3100 Tel: 512.495.6451

COUNSEL FOR RELATORS

1802.008/568918
 CERTIFICATE OF SERVICE

I hereby certify that on October 13, 2015, a true and correct copy of the
above and foregoing Unopposed Motion to Consolidate Causes for Submission on
Oral Argument was forwarded to all counsel of record by the Electronic Service
Provider, if registered, otherwise by email, as follows:

Raymond Winter Reynolds Brissenden
Chief, Civil Medicaid Fraud Division Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL Office of the Attorney General
P.O. Box 12548 P.O. Box 12548
Austin, TX 78711-2548 Austin, TX 78711-2548
raymond.winter@texasattorneygeneral.gov reynolds.brissenden@texasattorneygeneral.gov

Counsel for Real Party in Interest, The State of Texas

Jason Ray E. Hart Green
Riggs, Aleshire & Ray, P.C. Weller, Green, Toups & Terrell, L.L.P.
700 Lavaca, Suite 920 Post Office Box 350
Austin, TX 78701 Beaumont, TX 77704-0350
jray@r-alaw.com hartgr@wgttlaw.com

Counsel for Intervenors,
Atlas Dental, LP, et al. and Antoine Dental Center, et al.

Honorable Stephen Yelenosky
Judge, 345th District Court
Travis County Courthouse
P.O. Box 1748
Austin, TX 78767

Respondent

By: /s/ Constance H. Pfeiffer
Constance H. Pfeiffer

1802.008/568918