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 133 rd 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. T EX . R. A PP . 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 T EX . R. A PP . P. 35.3(a)(2), Appellee’s Motion to Dismiss must be denied.

*3 P RAYER FOR R ELIEF 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 M ACDONALD D EVIN , PC 3800 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 214.744.3300 telephone 214.747.0942 facsimile Attorneys for Appellant

*4 C ERTIFICATE OF S ERVICE 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:

V IA E MAIL : JAG @ JAG - LAWFIRM . COM CJORDAN @ JAG - LAWFIRM . COM Jason A. Gibson Casey L. Jordan T HE G IBSON L AW F IRM The Lyric Centre 440 Louisiana, Suite 2400 Houston, Texas 77002

/s/ J. Edward Johnson J. Edward Johnson

9/14/2015 3:57:40 PM

*5 Chris Daniel - District Clerk Harris County Envelope No. 6916514 By: EVELYN PALMER

J. Edward Johnson Filed: 9/14/2015 3:57:40 PM 214.651.3376 ejohnson@macdonalddevin.com September 14, 2015 Via Electronic Filing Evelyn Palmer Court Clerk 133 rd Judicial District Court, Harris County, Texas Harris County Civil Courthouse 201 Caroline, 11 th 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 133 rd Judicial District Court of Harris County, Texas

DESIGNATION OF CLERK’S RECORD

Dear Ms. Palmer, On September 14, 2015, Defendant Nexion Hea lth 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: Pl aintiff’s Original Petition;

01-14-15 Beechnut ’s Original Answer and Request for Disclosure; 02-20-15 Beechnut ’s CPRC Chapter 74 Motion to Dismiss; 06-29-15 Notice of Hearing on Beechnut ’s Chapter 74 Motion to Dismiss; 07-17-15 Plainti ff’s Response to Beechnut ’s Chapter 74 Motion to Dismiss; 08-21-15 Order Denying Beechnut’s Chapter 74 Motion to Dismiss; 08-24-15 Beechnut ’s Notice of Interlocutory Appeal and Notice of Automatic Trial 09-14-15

Stay; Designation of Clerk’s Record (thi s letter); the Court’s Docket Sheet; and 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 *6 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 Jason A. Gibson Via Electronic Filing and Electronic Mail cc:

Casey L. Jordan T HE G IBSON L AW F IRM The Lyric Centre 440 Louisiana, Suite 2400 Houston, Texas 77002 *7 D 212

9/29/2015 8:43 Remote ID Remote ID 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 *8 D 1/2 9/29/2015 8:43 Remote ID Remote ID Chris Daniel Harris County District C ler·k FAX COVER SHEET DATE: Tuesday, September 29, 2015 08:42AM TO: A TTY 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 *9 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 133 rd 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, Sincerely, J. Edward Johnson JJJJJJJJJJJJJJJJJJJJ. EdEEEEEEEE ward Johnson

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