in Re Nexion Health at Beechnut, Inc. D/B/A Beechnut Manor ( 2015 )

ACCEPTED
01-15-00327-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/10/2015 10:48:05 AM
CHRISTOPHER PRINE
CLERK
No. 01-15-00327-CV
In the Court of Appeals FILED IN
1st COURT
For the First District of Texas at Houston HOUSTON,OF APPEALS
TEXAS
4/10/2015 10:48:05 AM
CHRISTOPHER A. PRINE
In re NEXION HEALTH AT BEECHNUT, INC. Clerk
D/B/A BEECHNUT MANOR,
Relator
Original Proceeding from the
Probate Court No. 1 of Harris County
The Honorable Loyd Wright, Presiding Judge
Cause Number 404,607-401
RELATOR’S EMERGENCY MOTION TO STAY
TO THE HONORABLE COURT OF APPEALS:
Relator Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor (“Relator”)
files this Emergency Motion to Stay enforcement of two discovery orders pending
the disposition of Relator’s Writ of Mandamus, pursuant to Texas Rule of
Appellate Procedure 52.10(a), and respectfully shows as follows:
1. On April 10, 2015, simultaneously with the filing of this Motion,
Relator filed its Petition for Writ of Mandamus seeking review of the trial court’s
order compelling production of documents protected from discovery by Texas’
medical peer-review privilege.
1 880162.1 2014.60
2. If the Court does not grant this Mandamus, Relator will not have an
adequate remedy by ordinary appeal as it will lose the protections afforded Relator
by Texas law. Similarly, Relator will not have an adequate remedy at law and the
ripeness of this original proceeding will be impacted unless this Court grants this
Motion for Emergency Stay and maintains the status quo by staying the production
of these privileged documents until such time as this Court has the opportunity to
rule on the merits of this original proceeding.
3. This Court may grant temporary relief pending its determination of an
original proceeding. TEX. R. APP. P. 52.10(b). This emergency stay is necessary
to maintain the status quo of the parties and preserve the Court’s jurisdiction to
consider the merits of the original proceeding. In re Reed, 901 S.W.2d 604, 609
(Tex. App.—San Antonio 1995, orig. proceeding).
4. Mandamus relief is appropriate to protect confidential and privileged
information from discovery. In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 256
(Tex. 2005) (orig. proceeding); Mem'l Hosp.-The Woodlands v. McCown, 927
S.W.2d 1, 12 (Tex. 1996). An appellate court cannot cure the error when a trial
court erroneously orders disclosure of privileged information that affects the rights
of the aggrieved party. In re Osteopathic Med. Ctr. of Tex., 16 S.W.3d 881, 883
(Tex. App.—Fort Worth 2000, orig. proceeding).
2 880162.1 2014.60
5. Relator is confident that this Court will vacate the discovery orders at
issue and rule that the documents are privileged and not subject to production.
However, before this Court rules, the orders at issue are live and outstanding.
Therefore, Relator requests this Emergency Stay and asks that this Court stay the
production of the documents identified in Respondent’s January 20, 2015 and
April 6, 2015 orders until such time as this Court can rule on the original
proceeding before it.
CONCLUSION
Relator respectfully requests that this Court grant this emergency stay until
the resolution of this original proceeding, and in doing so stay the production of the
documents identified in Respondent’s January 20, 2015 and April 6, 2015 orders.
The issue at stake in this original proceeding is an important issue for this Court to
resolve for this District given that it appears that Respondent’s orders directly
contradict Texas law. Furthermore, Relator’s rights cannot be protected by
ordinary appeal if the documents at issue are produced in accordance with the
January 20, 2015 and April 6, 2015 orders. Thus, in order to preserve the
jurisdiction of this Court and maintain the status quo until it can rule, Relator
requests that this Court grant this emergency stay.
3 880162.1 2014.60
Respectfully submitted,
/s/ Weston M. Davis
Gregory N. Ziegler
Texas Bar No. 00791985
GZiegler@macdonalddevin.com
Jason A. Burris
Texas Bar No. 24049591
JBurris@macdonalddevin.com
Weston M. Davis
Texas Bar No. 24065126
WDavis@macdonalddevin.com
MACDONALD DEVIN, PC
3800 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
214.744.3300 telephone
214.747.0942 facsimile
Attorneys for Relators
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
document was served on all counsel of record, pursuant to Texas Rules of Civil
Procedure on this 10th day of April, 2015.
/s/ Weston M. Davis
Weston M. Davis
4 880162.1 2014.60
CERTIFICATE OF CONFERENCE
Pursuant to Texas Rule of Appellate Procedure 10, I hereby certify that
counsel for Relator conferred with counsel for Real Party in Interest regarding an
agreed stay of discovery of the privileged material at issue in this proceeding.
Counsel for Real Party in Interest did not agree to stay discovery of those
materials.
/s/ Weston M. Davis
Weston M. Davis
5 880162.1 2014.60