ACCEPTED

03-14-00612-CV

4109871

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/11/2015 2:01:00 PM

JEFFREY D. KYLE NO. 03-14-00612-CV CLERK

IN THE 

THIRD COURT OF APPEALS 

OF TEXAS 

M&M ORTHODONTICS, P.A. 

v. 

THESTATEOFTEXAS 

Appellant, 

Appellees. 

On appeal from the 53rd District Court, Travis County, Texas 

Cause No. NO. D-1-GN-14-000321 

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. Appellant is M&M Orthodontics; 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 of the appeal by M&M Orthodontics (hereinafter "M&M"), 

M&M Orthodontics' Unopposed Motion to Dismiss 

Page 1 of4 

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/11/2015 2:01:00 PM JEFFREY D. KYLE Clerk
the State of Texas brought separate claims against several dentists including 

M&M; 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 M&M have entered into an agreement 

to dismiss this appeal. (See Attached Exhibit A -February 9, 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. 

CONCLUSION AND PRAYER 

7. For these reasons, the Appellant respectfully requests that court vacate and 

dismiss this appeal with prejudice. 

Respectfully Submitted, 

ATTORNEY FOR APPELLANT 

M&M Orthodontics' Unopposed Motion to Dismiss 

Page 2 of4 
CERTIFICATE OF CONFERENCE 

I communicated by e-mail on February 9, 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. 

M&M Orthodontics' Unopposed Motion to Dismiss 

Page 3 of4 
CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing document was 

served by eservice on February 10, 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 A venue, Suite 1 7 50 

Austin, Texas, 78701 

enicho1s@beckredden.com 

ccowan@beckredden.com 

M&M Orthodontics' Unopposed Motion to Dismiss 

Page 4 of4 
EXHIBIT A

February 9, 2015 Rule 11
Raymond Winter 

Chief, Civil Medicaid Fraud Division 

Assistant Attorney General 

Office ofthe Attorney General 

P.O. Box 12548 

Austin, Texas 78711-2548 

February 9, 2015 

via e-mail to: 

raymond.winter(w.texasattornevgeneral.gov 

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 11 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