The opinion
ACCEPTED
03-14-00614-CV
4147868
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/13/2015 2:34:45 PM
JEFFREY D. KYLE
NO. 03-14-00614-CV CLERK
IN THE
THIRD COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
OF TEXAS AUSTIN, TEXAS
2/13/2015 2:34:45 PM
JEFFREY D. KYLE
Clerk
ATLAS DENTAL, LP, ET AL
Appellant,
v.
THESTATEOFTEXAS
Appellees.
On appeal from the 53rd District Court, Travis County, Texas
Cause No. NO. D-1-GV-14-000581
APPELLANT'S UNOPPOSED MOTION TO VACATE AND DISMISS
APPEAL WITH PREJUDICE
Appellant asks the court to vacate and dismiss this appeal with prejudice.
A. INTRODUCTION
1.. Appellants are Atlas Dental, LP and Dr. Hieu Huynh; Irma Cantu-
Thompson, DDS, PC and Irma Cantu-Thompson; Dr. Stephen Chu; Dr. Richard
F. Herrscher; MAN & CFN Ortho, PLLC, Navarro Orthodontix of Irving, PC,
Navarro Orthodontix of Ft. Worth, PLLC, Navarro Orthodontix of Mcallen,
PLLC, Navarro Orthodontix of Edinburg, PLLC, Navarro Orthodontix, PC, and
Dr. Carlos F. Navarro; RGV Smiles by Rocky L. Salinas, DDS, PA and Dr.
Appellant Atlas Dental, LLP, et al. Motion to Dismiss
Page 1 of5
Rocky Salinas (hereinafter "Atlas Dental, LP, et al."); Victor M. Zurita, DDS;
appellee is the State of Texas.
2. Appellant perfected the appeal on September 23, 2014, when it filed a
notice of appeal.
B. ARGUMENT & AUTHORITIES
3. The court has the authority under Texas Rule of Appellant Procedure
42.1(a) to grant this motion to dismiss.
4. Since the filing ofthe appeal by Atlas Dental, LP, et al., the State of Texas
brought separate claims against several dentists including Richard F. Herrscher,
D.D.S., RGV Smiles by Rocky L. Salinas, DDS, PA and Dr. Rocky Salinas; that
new case is styled State v. Nazari, et al., Cause No. D-1-GN-14-005380
(hereinafter "5380").
5. Subsequently, the State of Texas and Atlas Dental, LP, et al., have entered
into an agreement to dismiss this appeal. (See Attached Exhibit A -February 12,
2015 Rule 11 Agreement). The parties have agreed that the issues in this appeal
will likely be duplicative of the issues to be considered in 5380, so this appeal can
be vacated.
6. Appellant asks the Court to vacate this appeal and dismiss it with prejudice.
Appellant Atlas Dental, LLP, et al. Motion to Dismiss
Page 2 of5
CONCLUSION AND PRAYER
7. For these reasons, the Appellant respectfully requests that court vacate and
dismiss this appeal with prejudice.
Respectfully Submitted,
JasonRay U
"' l
State Bar No. 24000511
RIGGS ALESHIRE & RAY, P.C.
700 Lavaca, Suite 920
Austin, Texas 78701
(512) 457-9806 Telephone
(512) 457-9066 Facsimile
jray@r-alaw.com
ATTORNEY FOR APPELLANT
Appellant Atlas Dental, LLP, et al. Motion to Dismiss
Page 3 of5
CERTIFICATE OF CONFERENCE
I communicated by e-mail on February 12, 2015 with opposing counsel,
Raymond Winter (for the State of Texas) and the attached Rule 11 agreement with
the State indicates that the State does not oppose this motion.
Appellant Atlas Dental, LLP, et al. Motion to Dismiss
Page 4 of5
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was
served by eservice on February 13, 2015 to the following:
Counsel (or State o(Texas:
Raymond Winter
Office of the Attorney General
P.O. Box 12458
Austin, TX 78711-2548
raymond. winter@texasattomeygeneral.gov
Counsel (or ACS State Healthcare,LLC:
Eric J.R. Nichols
Christopher R. Cowan
Beck Redden, LLP
515 Congress Avenue, Suite 1750
Austin, Texas, 78701
enichols@beckredden.com
ccowan@beckredden.com
Appellant Atlas Dental, LLP, et al. Motion to Dismiss
Page 5 of5
EXHIBIT A
February 12, 2015 Rule 11
2/9/2015 2:58:18 PM
Velva L. Price
District Clerk
Jennifer S. Riggs FranklirciWpllotmty
( "ertifted in Admini.rtrative Law RIGGS&RAY Cert!/WJ1 dtflrfif'!'t21.!!f)illv380
Te.ra• Board qf Legal Speclaflzatwn A PROFESSIONAL CORPORATION Te..tci.r ~;ard OfJ.ega) Specl'dh'::atmn
jriggs!ii)r·alaw.com ATTORNEYS AND COUNSELORS fhopkins!ii)r·alaw.com
700 LAVACA, SUITE 920
Jason Ray AUSTIN, TEXAS 78701
Certified in Admlnlstra/il'e Law 512 457-9806 TELEPHONE
Texa< Bnard ofLegal Specialization 512 457-9066 FACSIMILE
jray~r-alaw.com
February 9, 2015
Raymond Winter via e-mail to:
Chief, Civil Medicaid Fraud Division raymond.winter@.texasattornevgeneral.gov
Assistant Attorney General
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
Re: Cause No. D-1-GN-000319; Harlingen Family Dentistry, P.C. and Dr. Juan Villarreal,
D.D.S. v. ACS State Healthcare, LLC, in the 53rd Judicial District, Travis County, Texas
and
Cause No. D-1-GN-000321; M&M Orthodontics, PA, Dr. Scott Malone, DDS and Dr.
Diana Malone, DDS, v ACS State Healthcare, LLC, in the 1261h Judicial District, Travis
County, Texas.
Dear Ray:
The Harlingen Family Dentistry plaintiffs brought claims against the State of Texas in Cause No.
D-1-GN-14-000319 (hereinafter "319"). The M&M Orthodontics plaintiffs brought claims
against the State of Texas in Cause No. D-1-GN-14-000321 (hereinafter "321"). The District
Court signed an order granting the State's Plea to the Jurisdiction in 319 and 321 on September
18, 2014. The plaintiffs in 319 and 321 appealed the Order Granting the State's Plea to the
Jurisdiction and that appeal is pending. The State subsequently brought separate claims against
several dentists and, inter alia, the plaintiffs in 319 and 321; that new case is styled State v.
Nazari, et al., Cause No. D-1-GN-14-005380 (hereinafter "5380").
By this agreement, the plaintiffs in 319 and 321 agree to dismiss with prejudice the appeal of the
Order Granting the State's Plea to the Jurisdiction. The parties agree that the plaintiffs are not
required to dismiss any claims against Xerox in 319 and 321. In exchange, the State agrees and
stipulates that the plaintiffs in 319 and 321 do not waive and by their dismissal of the appeal of
the Order Granting the State's Plea to the Jurisdiction do not settle, any causes of action the
plaintiffs in 319 and 321 may have against third parties, including Xerox. The State agrees that
the dismissal of the appeal of the Order Granting the State's Plea to the Jurisdiction in 319 and
321 will not act to prevent the assertion or appeal of any claims or defenses that may be raised in
5380.
Raymond Winter
February 9, 2015
Page 2 of2
If the State agrees, please sign this and return it to me. I will consider it a Rule II agreement, and
each side can proceed with our respective arguments in the 5380 case, which should make for a
smaller, cleaner appellate record.
Sincerely,
.
Ray nd Winter
on behalf of the State of Texas
in Cause Nos. D-1-GN-14-000319,
D-1-GN-14-000321, and D-1-GN-14-005380