Specialty Select Care Center of San Antonio LLC D/B/A Casa Rio Healthcare and Rehabilitation v. Jose Flores, as Next Friend of Julie Flores ( 2015 )

ACCEPTED
04-13-00888-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
6/11/2015 4:06:55 PM
KEITH HOTTLE
CLERK
NO. 04-13-00888-CV
FILED IN
IN THE COURT OF APPEALS 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
FOR THE FOURTH JUDICIAL DISTRICT OF 06/11/15
TEXAS4:06:55 PM
AT SAN ANTONIO KEITH E. HOTTLE
Clerk
SPECIALTY SELECT CARE CENTER OF SAN ANTONIO, LLC D/B/A
CASA RIO HEALTHCARE AND REHABILITATION,
Appellant,
v.
JOSE FLORES, AS NEXT FRIEND OF JULIE FLORES,
Appellee.
On Appeal from the 131st Judicial District Court,
Bexar County, Texas, Cause No. 2013-CI-04577
APPELLANT’S MOTION TO LIFT
ABATEMENT AND REINSTATE APPEAL
Breck Harrison – 24007325
bharrison@jw.com
Jorge A. Padilla – 24054512
jpadilla@jw.com
JACKSON WALKER L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
512-236-2000
512-236-2002 (Facsimile)
ATTORNEYS FOR APPELLANT
SPECIALTY SELECT CARE
CENTER OF SAN ANTONIO LLC
D/B/A CASA RIO HEALTHCARE
AND REHABILITATION
June 11, 2015
1
TO THE HONORABLE FOURTH COURT OF APPEALS:
Appellant Specialty Select Care Center of San Antonio LLC d/b/a Casa Rio
Healthcare and Rehabilitation (“Appellant”) files this Motion to Lift Abatement
and Reinstate Appeal and respectfully shows the following:
FACTS AND ARGUMENT
This is an interlocutory appeal of the trial court’s order denying Appellant’s
Motion to Compel Arbitration and Stay Proceedings. See TEX. CIV. PRAC. & REM.
CODE §51.016 (authorizing an interlocutory appeal from an order denying a motion
to compel arbitration under the Federal Arbitration Act).
Appellant filed its Appellant’s Brief on January 30, 2014. Appellee filed his
Appellee’s Brief on February 18, 2014. On March 10, 2014, Appellant filed its
Motion for Extension of Time to File Reply Brief.
On March 19, 2014, this Court entered an order that abated this case pending
the Texas Supreme Court’s resolution of three cases previously decided by this
Court: Williamsburg Care Co. L.P. v. Acosta, 406 S.W.3d 711 (Tex. App.—San
Antonio 2013, pet. filed); Fredericksburg Care Co. L.P. v. Lira, 407 S.W.3d 810
(Tex. App.—San Antonio 2013, pet. filed); and Fredericksburg Care Co. L.P. v.
Perez, 406 S.W.3d 313 (Tex. App.—San Antonio 2013, pet. filed) (collectively
these three cases are referred to as “Acosta, Lira and Perez”). See March 19, 2014
Order, attached hereto as Exhibit “A.” In granting Appellant’s Motion to Abate,
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this Court ordered that this case would “be treated as a closed case, unless and until
appellant files a motion requesting its reinstatement following the Texas Supreme
Court’s resolution of the issue.” Id. The Court’s March 19, 2014 order also denied
Appellant’s Motion for Extension of Time to File Reply Brief as moot. Id.
The Texas Supreme Court decided Acosta, Lira and Perez on March 6,
2015. In those opinions, the Texas Supreme Court resolved the central issue in this
case: whether Section 74.451 of the Civil Practice and Remedies Code invalidated
the parties’ arbitration agreement.
Now that the Texas Supreme Court has resolved this issue, Appellant seeks
to have this Court lift the abatement and reinstate the appeal. Furthermore,
Appellant seeks for the Court to reconsider its Motion for Extension of Time to
File Reply Brief and set a deadline for Appellant to file its Reply to Appellee’s
Brief.
PRAYER
Accordingly, Appellant Specialty Select Care Center of San Antonio LLC
d/b/a Casa Rio Healthcare and Rehabilitation requests that this Court grant the
Motion to Lift Abatement and Reinstate Appeal, to reconsider its Motion for
Extension of Time to File Reply Brief, and to set a deadline for Appellant to file its
Reply to Appellee’s Brief.
3
Respectfully submitted,
JACKSON WALKER L.L.P.
By: /s/ Jorge A. Padilla
Breck Harrison
State Bar No. 24007325
bharrison@jw.com
Jorge A. Padilla
State Bar No. 24054512
jpadilla@jw.com
100 Congress, Suite 1100
Austin, TX 78701
(512) 236-2000
(512) 236-2002 – Facsimile
ATTORNEYS FOR APPELLANT
SPECIALTY SELECT CARE
CENTER OF SAN ANTONIO LLC
D/B/A CASA RIO HEALTHCARE
AND REHABILITATION
4
CERTIFICATE OF CONFERENCE
I certify that I have conferred with Andrew J. Skemp by email and I have
attempted in good faith to reach an agreement regarding the motion. Mr. Skemp
has not responded to an email to determine whether he is opposed to this Motion to
Lift Abatement and Reinstate Appeal. However, Mr. Skemp has previously
requested the undersigned to file a motion to reinstate the appeal.
/s/ Jorge A. Padilla
Jorge A. Padilla
CERTIFICATE OF SERVICE
I hereby certify that, on the 11th day of June 2015, a true and correct copy of
the foregoing was served on all counsel of record listed below in accordance with
Rule 9.5(c) of the Texas Rules of Appellate Procedure via e-mail and certified
mail, return receipt requested:
Beth S. Janicek
Andrew J. Skemp
Janicek Law Firm, PC
1100 NE Loop 410, Suite 550
San Antonio, Texas 78209
andrew@janiceklaw.com
beth@janiceklaw.com
/s/ Jorge A. Padilla
Jorge A. Padilla
5
13572383v.1
EXHIBIT “A”
FILE COPY
§ourtb QCourt of ~ppeal%
~an %lntonio, W:exas
March 19,2014
No. 04-13-00888-CV
SPECIALTY SELECT CARE CENTER OF SAN ANTONIO LLC
d/b/a Casa Rio Healthcare and Rehabilitation,
Appellant
v.
Jose FLORES, as next friend of Julie Flores,
Appellee
From the l3lst Judicial District Court, Bexar County, Texas
Trial Comt No. 2013-CI-04577
Honorable Karen H. Pozza, Judge Presiding
ORDER
Sitting: Sandee Btyan Marion, Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Appellant has filed a motion to abate this appeal because one of the issues presented in
the appeal is the same issue pending in petitions for review filed in Williamsburg Care Co. L.P.
v. Acosta, 406 S.W.3d 711 (Tex. App.-San Antonio 2013, pet. filed), Fredericksburg Care Co.
L.P. v. Lira, 407 S.W.3d 810 (Tex. App.-San Antonio 2013, pet. filed), and Fredericksburg
Care Co. L.P. v. Perez, 406 S.W.3d 313 (Tex. App.-San Antonio 2013, pet. filed). This comt
has considered the motion, the appellee's response, and the appellant's reply to the appellee's
response. In light of the pending higher court review of the precedent previously established by
this court, the comt has determined that abating this appeal pending the Texas Supreme Comt's
resolution of the issue will likely achieve the greatest judicial efficiency. Accordingly,
appellant's motion to abate is GRANTED. For administrative purposes, this appeal will be
treated as a closed case, unless and until appellant files a motion requesting its reinstatement
following the Texas Supreme Comi's resolution ofthe issue.
Appellant's motion for extension oftime to file reply brief is DENIED AS MOOT.
It is so ORDERED on March 19,2014.
ATIRSTRDTO ~ qJw
Keith E. Hottle
Clerk of Court