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in the Guardianship of Ruby Peterson ( 2015 )


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  •                  FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
12/14/2015 12:29:57 PM
CHRISTOPHER A. PRINE
Clerk
TAB 33
FILE
10 /2 1 6:05:55 PM
StanStanart
Stan Stanart
``                                                                                                                 CountyCler
Clef
HarrisCo
Co y
Cause
CauseN o.4427208
No.   27208
1N
IN THE
THE GUARDIANSHIP
GUARDIANSHIPOF
OF                            §             IN THEPROBATE
INTHE  PROBATECOURT
COURT
RUBY
RUBY S.PETERSON,
S. PETERSON,                                §            NUMBERONE
NUMBER ONE((1)
1)OFOF
ANINCAPACITATED
AN INCAPACITATED PERSON
PERSON                          §            HARRIS
HARRISCOUNTY,
COUNTY, TE
FIRSTAMENDEDANSWER
FIRSTAMENDEDANSWER
-o
TO
TO THE
THE HONORABLE
HONORABLE JUDGEOFSAID
JUDGEOFSAIDC OURT:
COURT:
COMES
COMES NOW,
NOW, W.
W. R ussJJones,
Russ   ones,acting inhis           asAttomey
in his capacity as         Ad LitemforMrs.
AttorneyAdLitem  for Mrs.
Ruby
Ruby S.Peterson,
S. Peterson, having been duly appointed
been duly          assuch
appointedas     by JudgeL
suchbyJudge   oydH
Loyd H..Wright on February25,
Wrighton           25,
2014,          toTexas
2014, pursuantto TexasEstates
EstatesCCode Section1054.001,
odeSection 1054.001, and
and entersan appearanceon
entersan
behalfof
on behalf of
theproposed wardand
the proposedward and respectfullyshows  untothe
showsunto  the Courtthe
following:
the following:
I.I. General Denial
The
The proposed
wardgenerally  denieseachofthe
proposed ward generally denieseach
allegations
of the material allegationsset
forthinthei
set forth in the
applicationfor
application for guardianship,and
demandsstrictproofthereof   byclearandconvincing    evidence.S
and demands strict proof thereof by clear and convincing evidence.
II.Lesser  RestrictiveAlternatives
II. Lesser Restrictive Alternatives
Proposedwardhasvalidgeneral    durableandmedicalpowersofofattomey
Proposed ward has valid general durable and medicalpowers
whichhavebeen
attorney which have been
inplace  andfunctioning formanyyyears.
in place and functioning formany ears.A ssuch,thereis no need
As such, there is no
forguardianship protection,
need for guardianship protection,
given the           and               oftheselesser              alternatives to
given the existence and functionality of these lesser restrictive alternatives to guardianship.
III.DEFENSESQ
III. DEFENSES
l.1.   NOFALSE IMPRISONMENT: RubyPeterson  isnotbeing,andhasnotbeen,falsely
NO FALSE IMPRISONMENT: Ruby Peterson is not being, and has not been, falsely
imprisonedattheSilverado   Senior Living Center-Sugar Landbecause Mrs.Peterson  consented
imprisoned at the Silverado Senior Living Center-Sugar Land because Mrs. Peterson consented
(byvalidDurable  Medical Power ofAttorney  executed in1993)forhealthcaredecisions     tobe
(by valid Durable Medical Power of Attorney executed in 1993) for health care decisions to be
madeonherbehalfbyCarolAnnManley       andDavid  TroyPeterson  intheeventthatsheshouldtt
made on her behalf by Carol Ann Manley and David Troy Peterson in the event that she should
Silverado Appx. 0177
No. 1-15-586-CV 3122
become
become physically or mentally incapable
or mentally incapable ofmaking  such decisions
of making such decisions for          Oneofthe
for herself. One of the
reasons fortheDurable
reasons for the Durable Medical Power ofAttomey
Medical Power                 to avoid
was to
of Attorney was    avoid tthe need for
heneed  for a guardianship of
of
her person tthrough
her person   hrough the creation of
thecreation       lesser restrictive alternative
of a lesser                         to guardianship.
alternativeto                Further,
guardianship. Further, the
the
decision
decision thatMrs.
that Mrs.Peterson
Peterson beadmitted
be admitted to  secured
toaasecured memory
memory      facility
carefacility
care         forhersafety
for            and
her safety and
protection
protection was not madesolely
was not             at thewhim
made solely at            discretion ooffMrs.
the whim ordiscretion     Mrs. P eterson’s
Peterson's healthcare
health care agents;
agents;
rather,
rather, it was based
it was          the p
on the
based on       rofessional
professional medical recommendations
medical recommendations and
and a dvice
advice of
of M
Mrs.rs.
Peterson’s
Peterson's
treating
treating physicians. Thus,
physicians. Thus,  residential
residential placement at Silverado
atSilverado was pursuant
waspursuant    legalauthority
tolegal
to      authority and
and
which
justification which RubyPeterson
Ruby Petersonhadexpressly
had expresslyconferred upon CarolAnn
upon Carol     Manley
Ann Manley and
and David
David
TroyPeterson
Troy Petersonin1993.
in 1993.
2.
2.     NOVALID  REVOCATION
NO VALID REVOCATION OF DURABLE POWER
OFDURABLE  POWER OFATTORNEY:  RubyPeterson
OF ATTORNEY: Ruby Peterson
didnot
did notexecute    validrevocation
execute aa valid revocationofthe1993
of          Durable
the 1993 Durable Medical
Medical Power
Power ofAttorney
of          onNovember
Attorney on November
2013because
15,2013
15,     because thepurported
the purported but denied
butdenied revocation
revocation was not
was not made orallyor
madeorally    inwriting
orin writing byMrs.
by Mrs.
Peterson,
Peterson, inher
in hercapacity    Principal,
asPrincipal,
capacity as           to
to Carol AnnManley
CarolAnn        orto
Manley or    DavidT
to David Troy Peterson, intheir
royPeterson, in their
capacity
capacity as Agents.
as         Rather,
Agents. Rather, ititwas theproduct
wasthe         ofsecretive
product of                ofundue
actsof
secretive acts         influence
undue influence which
which Mackey
Mackey
GlenPeterson
Glen PetersonandDon
and    Leslie
DonLeslie Peterson
Peterson perpetrated
perpetrated upon Ruby
upon      Peterson,
Ruby Peterson, whothey
who they knew
knew was
was
susceptible
susceptible    manipulation
tomanipulation
to             and lacking
andlacking inmental
in        capacity
mental capacity secondary
secondary to moderate
to          dementia
moderate dementia with
with
severe
severe cognitive
cognitive impairment as a result.
impairment asa          Additionally,
result. Additionally, thepurported but
the              denied rrevocation
butdenied    evocation of
of
durable
durable medical
medical power ofattorney
power of attorneyis invalid because
isinvalid  because Mrs.
Mrs. P eterson
Peterson never m
never   anifested
manifested any
any specific
intent
intent to revoke
to revoke thehealthcare  decision-making
the healthcare decision-making authority
authority ofCarol
of Carol Ann Manley
Ann Manley or David
or       Troy
David Troy
Peterson whomshe
Peterson whom she trusts, admires
trusts, admires and
and adores.      Peterson
Mrs.Peterson
adores. Mrs.         onlymanifested
only manifested   intentto
anintent
an          sign
tosign
somepapers
some papers(anypapers)
(any            thatshe
sothat
papers) so              leaveSilverado
couldleave
shecould       Silveradoandreturn to
and          herhome
to her      inBaytown,
home in Baytown,
(aprior
Texas(a
Texas   prior h omewhich
home whichnnoolonger
longer exists).      limited
Thislimited
exists). This        andlegally
and legallyinsufficient
insufficient intentwas
intent    the
wasthe
directresult
direct       ofUndue
resultof       Influence
Undue Influence exerted
exerted      Mrs.Peterson
uponMrs.
upon     Peterson byMackey
by        GlenPeterson,
Mackey Glen Peterson, Don
Don
Silverado Appx. 0178
No. 1-15-586-CV 3123
Leslie
Leslie P eterson
Peterson and
and their wiveswho
their wives whoknew
knew that
that R ubyP
Ruby   eterson
Peterson was susceptible
was susceptible to
to manipulation
andwho
and who they
they knew would
knew would signANYTHING
sign ANYTHINGifshe
if she could goohome
could g  home ttooBaytown (ahome
(a home w hichno
which no
longer
longer exists). ThePlaintiffs'
exists). The P1aintiffs’ undue
undue  influence
influence subverted
subverted thewill
the      ofMrs.
will of      Peterson
Mrs. Peterson making the
the
execution
their
act,nothers,
and                      hertodothatwhich
shewould
not
document execution their act, not hers, and influenced her to do that which she would not
otherwise
otherwise havedone.TheNovember     15,2013
have done. The November 15,               executions
2013 document executions tookplace
took       insecrecy,
place in secrecy,
notice
without toCarol     orDavid
AnnManley   Troy     because
Peterson   Plaintiffs
knew thatifCarol
without notice to Carol Ann Manley or David Troy Peterson because Plaintiffs knew that if Carol
Ann andDavid
Ann and Davidwere
wereppresent
resent and permitted
andpermitted to explain
to         theconsequences
explain the consequencesofheractions,
of              Mrs.
her actions, Mrs.
Peterson
Peterson would
would     havesigned
nothave
not     signed thenew
the newpower ofattomey
power of          and purported
attorney and purported revocation
revocation ofdurable
of durable
ofattomey.
powerof
power                                     actedin
attorney. Furthermore, Plaintiffs acted   badfaithbecause
inbad               theyhadbeen
faith because they had been advised
advised more
more
than40
than 40days
days p riorttooNovember
prior              15,2013
November 15,     thatM
2013that   rs.P
Mrs.   eterson
Peterson suffered
suffered fromdementia,
from dementia, was
was
extremely susceptible
extremely susceptible to manipulation,
to manipulation, and,most
and,                  that she lacked sufficient mental
mostimportantly, thatshelacked              mental
capacity
capacity to manage
to manage herfinancial     otheraffairs.
orother
her financial or      affairs.
3.
3.      NOASSAULT  ANDBATTERY:
NO ASSAULT AND BA I I ERY: Ruby
Ruby P eterson
Peterson did not suffer
did not           "assault and
an "assault
suffer an          and battery"
battery"
by being administered
bybeing  administered doctor-prescribed
doctor-prescribed medications
medications against
against herwill.Byvirtue    ofthe1993
her will. By virtue of the 1993
Durable
Durable         Power
Medical Power ofAttomey,
of Attorney, Ruby
Ruby P eterson,
Peterson, as Principal,
as Principal, consented tohealthcare
consented to healthcare
decision-making
decision-making    herbehalf
onher
on           byCarol
behalf by       AnnManley
Carol Ann Manleyand
and David TroyPeterson,
David Troy           as herauthorized
Peterson, as her authorized
agents.
agents. Knowing,
Knowing,        fulldisclosure,
after full disclosure, thatRuby
that RubyPeterson's
Peterson’s prescriptive
prescriptive medications
medications were
were
medically
medically necessary for
for the
the proper careand
proper care     treatment ofheranxiety
and treatment of her anxiety disorder,
disorder, depression,
depression,
degenerative
degenerative joint disease,
joint disease,              arthritis,
degenerative arthritis, dementia
dementia and other m
andother    edical
medical conditions,
conditions, and
and
having
having R ubyPeterson’s
Ruby            express
Peterson's express consent
consent    makemedical
tomake
to     medical decisions
decisions    herbehalf
onher
on           (including
behalf (including the
the
rightto
right toconsent
consent to medical
tomedical    psychiatric
orpsychiatric
or                 andtreatment),
careand
care    treatment), Defendants
Defendants Manley
Manley and Peterson
andPeterson
consented
consented ontheir
on their m other’s
mother's behalf
behalf    theadministration
tothe
to                   ofprescriptive
administration of              medications
prescriptive medications andvitamin
and vitamin
supplements
supplements which Ruby’s
whichRuby's  treating
treating physicians
physicians prescribed
prescribed forthe
for     proper
the proper andtreatment
and           ofher
treatment of her
Silverado Appx. 0179
No. 1-15-586-CV 3124
conditions.
Consent
isan                          defense
to and
battery.
Effectiveincludes
consent
conditions. Consent is an affirmative defense to assault and battery. Effective consent includes
consent byaa personal legally
consent by            legally aauthorized
uthorized toact  on behalf
to act on behalfofthealleged
of the allegedvictim
victimof anassault.
ofan assault. See
See
Tex. Pen.
Tex. Pen. Code
Code Section
Section l.07(a)(l9). Consent
1.07(a)(19). Consent isis
also
also   defense
aadefense       assault
toananassault
to            ifthe
if the D efendants’
Defendants'
conduct
conduct didnot
did              or inflict
not threaten or inflict serious
serious bodily
bodily iinjury.
njury.See
SeeTex.
Tex.Pen.
Pen.Code
CodeSection
Section22.06.
22.06.
Basedoonntheabove,
Based    the above, there
there was no "assault
wasno  "assault and
and battery" with
with respect to medication
respect to medication administration,
administration,
with respect
with respect toassistance
to assistance with
with showering Ruby
Ruby Peterson,
Peterson, etc. Defendants
etc. Defendants were
were authorized
authorized to
to
consent
consent to suchcare
tosuch careon behalf
onbehalf ofRuby
of      Peterson,
Ruby Peterson, andRuby
and Rubysuffered
suffered no bodily
nobodily injuryasa
injury as a result
result
thereof.
4.
4.    LACK
LACK OFSTANDING
OF STANDING &  &SUBJECT
SUBJECT MATTER      JURISDICTION:
MATTER JURISDICTION:          Plaintiffs Mackey
Mackey
GlenPeterson,
Glen Peterson,DonLeslie
Don LesliePeterson
Peterson andLonny Peterson
and               lacklegal
Peterson lack       standing
legal standing to
to sue forFalse
suefor  False
Imprisomnent,
Imprisonment, Assault
Assault andBattery,
and          Breach
Battery, Breach ofFiduciary
of Fiduciary Duty,
Duty, Conversion, Conspiracy,
Conversion, Conspiracy, Invasion
Invasion
ofPrivacy,
of Privacy, Intentional
Intentional Infliction
Infliction ofEmotional
of Emotional Distress or any other
Distress orany  other sstate or federal
tateor          cause o
federal cause off
action
action on behalf of
onbehalf  of Ruby
Ruby P eterson.
Peterson. Ruby
Ruby Peterson
Peterson hadbeen
had been diagnosed
diagnosed with Dementia by(1)
Dementia by (1)
Federico               (2)Saeed
Federico Dancel,M.D.'; (2)       Kahkeshani,
Saeed Kahkeshani,        (3)Samiran
M.D.2; (3)         K.Das,
Samiran K.             (4)Salah
Das, M.D.3; (4)       U.
Salah U.
June
of
2013.
Board           Internist
Board Certified Internist and
and Ruby
Ruby P eterson’s
Peterson's longtime
long timeprimary care physician.
carephysician,
2       BoardCertified Neurologist
Board          Neurologist whodiagnosed
who diagnosed Ruby
Ruby with
with dementia
dementia inapproximately
in approximately
June of 2013.
3
Board                                     Ruby
with
dementia
atthePasadena
Board Certified Internist who diagnosed Ruby with dementia at the Pasadena
Bayshore
Bayshore Hospital Adult
Adult Psychiatric Unit in approximately August
Unit m                August 2013.
2013.
Silverado Appx. 0180
No. 1-15-586-CV 3125
Qureshi,         (5) Suleman Lalani,
Qureshi, M.D.4.; (5)Suleman                 and(6)Christopher
Lalani, M.D.5;and                  0. Merkl, M.D.6prior
(6) ChristopherO.Merkl,         priorto
to
November
November 15,   013when
15, 22013                manipulatedRuby
when PlaintiffsmanipulatedRubyPPeterson
eterson(through
(throughthesecretive
the secretive exercise
of Undue Influence)
ofUndue  Influence)into signingaapurported
intosigning            butddenied
purportedbut  eniedrrevocation
evocation ofdurable   powerof
of durablepower  ofattomey
attorney
and          butddenied
purported but
andpurported      enied  ewstatutorydurable
nnew                 powerof
durablepower     attorneywhich,
ofattorney        predictably,replaced
which,predictably,  replaced
Defendants
Defendants Carol
Carol A   Manleyaand
nnManley
Ann         ndDavid
DavidTroy           ithPlaintiffs
Petersonwwith
TroyPeterson       PlaintiffsMackey  lenPeterson
MackeyGGlen Peterson
andDonLeslie
and Don Leslie Peterson
Petersonaassthepurported    gentsooffRuby
the purportedaagents    RubyPeterson.
Peterson.
Ruby
Ruby P eterson
Peterson lacked  herequisite
lackedtthe          mentalcapacity
requisitemental capacitytoexecute   newdisability
to executenew  disabilityplanning
planning
documents  onNovember
documents on  November 15,          (sincesshe
013(since
15, 22013          hewas
wasalready   mentallyincapacitated
alreadymentally                 andhad
incapacitatedand   hadbeen
been
forapproximately
for approximately ayear p riorb ythat  t ime).           acted inbad faithbecause   they
a year prior by that time). Plaintiff's acted in bad faith because theywere
were
informed,
informed, inwriting, onOctober
in writing,on                 by Board CertifiedGeriatric
4, 2013byBoard
October4,2013                                PsychiatristChristopher
GeriatricPsychiatrist  ChristopherO.
0.
Merkl, M.D.
Merkl, M.D. tthat
hatRuby
RubyPeterson
Petersonhhad
addementia,
dementia,was                               and lackedthe
susceptibletoto manipulation,andlacked
wassusceptible                               the
requisite m
requisite   entalcapacityto
mental            manageherfinancial
tomanage               orother
her financialor
RubyPeterson’s  authorized
other affairs. Ruby Peterson's authorized
for both financial
agents forboth
agents          financialandpersonal/healthcare
decision-making remain DefendantCarolAnn
and personal/healthcare decision-making remain Defendant Carol Ann
Manley
Manleyaand
ndDavid
DavidTroyPeterson.
Troy Peterson.
Assuch,            Mackey GlenPeterson,  DonLesliePeterson   andLormy  Peterson have
As such, Plaintiffs Mackey Glen Peterson, Don Leslie Peterson and Lonny Peterson have
legalstanding
no legal standingto
no                  bringany causesofaction
to bringanycauses             nbehalf
of actionoon
ofRubyPeterson.    Under   Texaslaw,
behalf of Ruby Peterson. Under Texas law,
standing is a necessarycomponent
standing is anecessary
ofsubject  matter jurisdiction. SincePlaintiffs  lackstanding to
component of subject matter jurisdiction. Since Plaintiffs lack standing to
behalfofRubyPeterson,    theirclaimsmustbbeedismissed for wantofsubject    matter
sue on behalf of Ruby Peterson, their claimsmust
sueon                                              dismissed foraa want of subject matter
4      Board Certified          Psychiatrist
Board Certified Geriatric Psychiatrist
who diagnosed
who diagnosed
Rubywithdementia   atthe
Ruby with dementia at the
PasadenaBayshore Hospital Adult             UnitinAugust    of2013.
Pasadena Bayshore Hospital Adult Psychiatric Unit in August of 2013.
5     BoardCertified    Intemist, Board           Geriatric physicianandRubyPeterson’s
attending      Board Certified
physician             Internist,
theSilverado   SeniorBoard Certified
Living FacilityGeriatric physician
whodiagnosed    RubyandwRuby Peterson's
ithdementia in
attending physician
at
at the of2013.
Silverado Senior Living Facility who diagnosed Ruby with dementia in
approximately September
approximately September of 2013.
BoardCertified    Psychiatrist
andtreating      whodiagnosed
physician        Ruby
with
Peterson
6
inOGeriatric
dementia     ctober
of2013.r
Board Certified Geriatric Psychiatrist and treating physician who diagnosed Ruby
Peterson with dementia in October of 2013.
Silverado Appx. 0181
No. 1-15-586-CV 3126
jurisdiction.
jurisdiction.
n
WHEREFORE,
WHEREFORE, PREMISES CONSIDERED,
PREMISES CONSIDERED, Proposed
Proposed Ward RUBY
RUBY S.PETERSON,
S. PETERSON,
respectfully prays tthat
respectfully prays   hattthe
hePlaintiffs Mackey
Mackey Glen Peterson, Don
Glen Peterson, Don Leslie Peterson
Leslie Peterson andLonny
and
takenothing
Peterson      byreason
ofthissuit;
thatcosts
including, limitation,
without     all
Peterson take nothing by reason of this suit; that costs including, without limitation, all court
appointees’
appointees'  feesand
fees     expenses,
and expenses, beadjudged
be          againstthe
adjudged against thePlaintiffs; andthatshe
Plaintiffs; and             hencewithout
gohence
that she go      without
day.
day.
Respectfully submitted,
submitted,
UNDERW
UNDERW    OD, JJONES,
•I OD,   ONES, SCHERRER
SCHERRER &
&
MALOUF,
MALOUF,   .L.L.C.
By:
By:
W.RU  ·s
W. RUS JO
StateB No.
adig
|8050
State B No. 1 P8050
5177
5177  R ichmond
Richmond    Avenue,
Avenue,  Suite
Suite 505
505
_                                                              Houston,
Houston, Texas   77056
Texas 77056
;                                                              (713)
552-1144
(713) 552-1144
(713)781-4448
(713) 781-4448  ffacsimile
acsimile
rjones@ujsmlaw.com
ATTORNEY
ATTORNEY  ADLITEM
AD       FORRUBY
LITEM FOR RUBYS.
S.
PETERSON,
PETERSON, PROPOSED
PROPOSED  WARD
WARD
Silverado Appx. 0182
No. 1-15-586-CV 3127
CERTIFICATE OF SERVICE
hereby c
IIhereby   ertify
certify tthat
hataa true
true and        copyoftheforegoing
and correctcopyof the foregoing instrument hasbeen
has been
forwarded
forwarded to:
to:
Sarah Patel
Patel Pacheco
Pacheco                               Candice
Candice Schwager
Schwager
Kathleen Tanner Beduze
Beduze                           1417
1417 Ramada
Ramada Drive
Drive
Crain,
Crain, Caton  & James, P.C.
Caton &James,    P.C.                       Houston,
Houston, Texas 77062
Texas 77062
McKim1ey,
1401McKinney,
1401              Suite1700
Suite 1700
Houston,
Houston,  Texas 7
Texas   7010
77010
PhilipM
Philip M. .Ross
Ross                                    JoshK.Davis
Josh K. Davis
1006
1006  Holbrook
Holbrook  Road
Road                               Lewis, Brisbois,
Lewis, Brisbois, Bisgaard
Bisgaard &Smith,
&        L.L.P.
Smith, L.L.P.
SanAntonio,
San  Antonio, Texas
Texas 78218
78218                          Weslayan  Tower, Suite
Weslayan Tower,         1400
Suite 1400
24Greenway Plaza
24           Plaza
Houston,
Houston, Texas77046
Texas 77046
_
byfacsimile
by           and/ore-file on
facsimile and/or          the2' day
onthe     dayofOctober,
of October, 22|t 14.
14.
w. J
Agall4/11§
W. RUSS JONES
Silverado Appx. 0183
No. 1-15-586-CV 3128
TAB 34
10/6/2014                 FILED
10/6/2014 8:51:06 PM
Stan Stanart
County Clerk
D| UPTH\$
DATA-ENTRY   DATE              U              Harris County
PICK UP THIS DATE
NO. 427,208
PROBATE
COURT
1
PROBATE COURT 'I
NO. 427,208
IN RE: GUARDIANSHIP OF
INRE:GUARDIANSHIP   OF      §           INTHEPROBATE   COURT
IN THE PROBATE COURT
RUBY
RUBY PETERSON,
PETERSON,              §           NUMBER
NUMBER ONE
ONE
PROPOSED
PROPOSED WARD
WARD               §           HARRIS
HARRIS COUNTY
COUNTY, TEXAS
TEXAS
C
cv                                    2014-40980
N0.
CAUSE NO. 2014-40980
("MACK")
PETERSON,
MACKEY
Friend
Next    § INTHEDISTRICTCOURT
GLENPETERSON,
§
MACKEY ("MACK") GLEN PETERSON, § IN THE DISTRICT COURT
PETERSON, Individually, Next Friend
0fRUBYPETERSON,       DONLESLIE     §
of RUBY PETERSON, DON     LESLIE
PETERSON,               and as Next
PETERSON, Individually and as Next  §
Friend,0f  RUBYPETERSON,
Friend, of RUBY              and
PETERSON, and      §
0fRUBY
Friend
LONNY
Next
LONNY
§§
S.PETERSON,
PETERSON,
PETERSON, Individually
Next Friend of RUBY S. PETERSON,
and §
Individually
and
Plaintiffs,
Plaintiffs,
V.
V.                                      HARRIS COUNTYTEXAS
HARRISCOUNTY, TEXAS
§
CAROL     §
ANNE MANLEY
DAVID
CAROL
§
PETERSON,
SILVERADO
ANNE
SENIORLIVING
MANLEY,
DAVID PETERSON, SILVERADO
CAREFACILITY,
LIVINGCARE                  §
SENIOR             FACILITY,
TAN
TANAAMCMILLON,
MCMILLON,                     §
LINDALAVINS
LINDA        ON,DR.REBECCA
LAVINSON, DR. REBECCA        §
CLEARMAN,   DR.CHRISMERKL
CLEARMAN, DR. CHRIS MERKL
Defendants.
Defendants.                         §   129TH
129TH JUDICIAL
JUDICIAL DISTRICT
DISTRICT
OFNONSUIT
NOTICEOF
NOTICE            OFTAN
NONSUIT OF    AMCMILLON,
TANA MCMILLON, LINDA LAVINSON,
LINDALAVINSON,
DR. REBECCA C LEARMAN AND DR.CHRIS MERKL
DR. REBECCA CLEARMAN AND DR. CHRIS MERKL
1
Silverado Appx. 0184
No. 1-15-586-CV 3211
COME,
NOW        PETERSON,
GLEN
MACKEY     LONNY     and
PETERSON,
NOW COME, MACKEY GLEN PETERSON, LONNY PETERSON, and
DON LESLIE
DON        PETERSON, Individuallyand
LESLIEPETERSON,                   as Next
andas       Friendsof
Next Friends     RUBY
of RUBY
PETERSON ("Plaintiffs"),
PETERSON                and file this
("Plaintiffs"),and           Notice
this Notice ofNonsuit
of         ofTana
Nonsuit of      McMill0n,
Tana McMillon,
Lavinson,
Linda          Clearman
Dr.Rebecca  and     Merkl,
Dr.Chris          would
andinsupport
Linda Lavinson, Dr. Rebecca Clearman and Dr. Chris Merkl, and in support would
show     asfollows:
theCourt
show the Court as follows:
Plaintiffs give
hereby      thatthey
notice     have   tononsuit
decided       claims
their
Plaintiffs hereby give notice that they have decided to nonsuit their claims
against
against theindividual
the            Defendants
individual Defendants Tana McMill0n,
TanaMcMillon, Linda
Linda Lavinson,
Lavinson, Dr.Rebecca
Dr. Rebecca
Clearman
Clearman andDr.
and    Chris
Dr.Chris Merkl.PRAYER
Merkl.
PRAYER
WHEREFORE, Plaintiffs
WHEREFORE,            request tthe
Plaintiffs request   heCourt    o takenotice
Court tto take notice ofthenonsuit   of
of the nonsuit of
the individual
the            Defendants
individual Defendants Tana
Tana M cMill0n,
McMillon, Linda Lavinson,
Linda Lavinson, Dr.R
Dr.   ebecca
Rebecca Clearman
Clearman
and Dr.
and     ChrisMerkl.Plaintiffs
Dr.Chris                   respectfully
Merkl. Plaintiffs respectfully   equestthat
rrequest that this Courtgrant
this Court      all
grantall
requested reliefand
requested relief andallother  andfurther
all other and         reliefto
further relief   whichthey
towhich theymay bejustlyentitled
maybe justly entitled
at lawor
atlaw    inequity.Respectfully
orin equity.
submitted
Respectfully submitted
Philip
Philip M.Ross
M. Ross
1006
1006 H  olbrook
Holbrook  Road
Road
SanAntonio,
San          TX 78218
Antonio, TX 78218
Phone: 210/326-2100
Phone: 210/326-2100
Email: ross_law@h0tmail.com
Email: ross_law@hotmail.com
By: /s//s/Philip M.
By:              M.Ross
Ross
2
2
Silverado Appx. 0185
No. 1-15-586-CV 3212
PhilipM.Ross
Philip M. Ross
StateBar
State     N0.17304200
BarNo. 17304200
ATTORNEY FOR
ATTORNEY           MACKGLEN
FOR MACK  GLEN
PETERSON,     LONNY   PETERSON,
PETERSON, LONNY PETERSON,
AND
AND    DON
DON LESLIE PETERSON
LESLIE PETERSON
THESCHWAGER
THE SCHWAGER LAW  LAWFIRM
FIRM
/s/Candice
/s/Candice L.Schwager
L. Schwager
CandiceL.
Candice L.Schwager
Schwager
1417Ramada
1417 Ramada   Dr.
Dr.
Houston,
Houston,  Texas
Texas 77062
77062
Tel:(832)315-8489
Tel: (832) 315-8489
Fax:(713)
Fax:        583-0355
(713) 583-0355
schwagerlawfirm@live.com
ATTORNEY
ATTORNEY       FOR    MACKGLEN
FOR MACK   GLEN
PETERSON,      L ONNYPETERSON,
PETERSON, LONNY PETERSON,
AND
AND DON      LESLIE PETERSON
DONLESLIE     PETERSON
CERTIFICATE
CERTIFICATE OFSERVICE
OF SERVICE
II hereby        thatthisdocument
herebycertify that               wase—filed
this document was         andserved
e-filed and served on allcounsel
on all         of
counsel of
recordon
record   the6thdayofSeptember,
onthe                       2014./s/
6th day of September, 2014.
M.Ross
Is/ Philip M. Ross
PhilipM.Ross
Philip M. Ross
33
Silverado Appx. 0186
No. 1-15-586-CV 3213
TAB 35
FILED
10/6/2014 8:51:06 PM
SI
Stan Stanart
County Clerk
DATA-ENTRY
UPTHIS  DATE                              Harris County
PICK UP THIS DATE
PROBATE
COURT
1
PROBATE COURT 1
NO.427,208
NO. 427,208
IN
IN RE: GUARDIANSHIP
RE:GUARDIANSHIP OF
OF §§                         THE
INTHE
IN    PROBATE
PROBATE COURT
COURT
§
RUBY
RUBY PETERSON,
PETERSON,                   §§           NUMBER
NUMBER ONE
ONE
§
§
PROPOSED WARD
PROPOSED WARD                    §            HARRIS
HARRIS COUNTY,
COUNTY, TEXAS
TEXAS
CAUSE
CAUSE NO.2014-40980
NO. 2014-40980
MACKEY
MACKEY("MACK")
("MACK")GGLEN
LENPETERSON, § § ININTHEDISTRICT
PETERSON,                   COURT
THE DISTRICT COURT
PETERSON,               NextFriend
PETERSON, Individually, Next Friend       §§
ofRUBYPETERSON,
of                DONLESLIE
RUBY PETERSON, DON LESLIE              §
PETERSON,              andas
PETERSON, Individually and    Next
asNext         §§
Friend, ofRUBY
Friend, of      PETERSON,
RUBY PETERSON,   and
and           §§
LONNY
LONNY PETERSON,    Individuallyand
PETERSON, Individually and        §§
Next Friendof
NextFriend ofRUBY  S.PETERSON,
RUBY S. PETERSON,           §§§
§
Plaintiffs,
Plaintiffs,                               §
§
V.
V.                                        §    HARRIS
§ HARRIS   COUNTY,
COUNTY,   TEXAS
TEXAS
§§
CAROL
CAROL    ANNEMANLEY,
ANNE                             §§
DAVID PETERSON,
DAVID                SILVERADO
PETERSON, SILVERADO              §§
SENIOR
SENIOR    LIVING,
LIVING, INC.,d/b/a
INC.,      Silverado
d/b/aSilverado    §§
Senior L iving  Sugar
L and,
—Sugar Land,
Senior Living —                           §
§
Defendants.
Defendants.                               §§   129THJUDICIAL
129TH         DISTRICT
JUDICIALDISTRICT
FOURTH
FOURTH AMENDED  ORIGINAL
AMENDED ORIGINAL  PETITION
PETITION AND
AND
CONTEST TO GUARDIANSHIP A PPLICATION
CONTEST TO GUARDIANSHIP APPLICATION
1
1
Silverado Appx. 0187
No. 1-15-586-CV 3214
MACKEY ("MACK")
MACKEY          GLEN
("MACK") GLEN  PETERSON,
PETERSON, LONNY
LONNY  PETERSON
PETERSON
("Lonny"),
("Lonny"), andDONLESLIE            "Don"),Individuallyand
PETERSON(("Don"),
and DON LESLIE PETERSON                         asNext
andas Next
Friends of
Friends         PETERSON (("Plaintiffs"),
RUBY PETERSON
of RUBY            "Plaintiffs"),                   Amended O
this Fourth Amended
file thisFourth             riginal
Original
Petition
Petition andContest
and Contest to                          of Defendants,CAROL
complaining ofDefendants,
to Guardianship complaining
ANNE
CAROL ANNE
MANLEY ("Carol"),
MANLEY            DAVID PETERSON
("Carol"), DAVID         ("David"),and
PETERSON("David"),    SILVERADOSENIOR
and SILVERADOSENIOR
LIVING,
LIVING, INC.,d/b/aSilverado   SeniorLiving
INC., d/b/a Silverado Senior       —SugarLand
Living—            ("SILVERADO"),
Sugar Land ("SILVERADO"),
andin  support would
and in support       show theCourt
would show
follows:
the Court aass follows:
DISCOVERYCONTROL PLAN
DISCOVERY CONTROL PLAN
Discovery inthislawsuit
Discovery                  to beconducted
in this lawsuit to  be conductedunder
Level3 ofRule190.1ofthe
under Level 3 of Rule 190.1 of the
TexasRules  ofCivil  Procedure. Tex.R.Civ.  P.190.1.
JUDGMENT
DECLARATORY
Texas Rules of Civil Procedure. Tex. R. Civ. P. 190.1.
DECLARATORY JUDGMENT
Plaintiffsallegeandwouldprovethatthey
Plaintiffs allege and wouldprove that theymay
be entitledto declaratory
may be entitled to declaratory
judgment as a matter
judgment asa
oflawthatthe 1993DurablePowerofAttomeyappointing
matter of law that the 1993 Durable Power of Attorney appointing
Carol andDavidwas
Carol and David w asrevoked
revokedas
ofNovember  15,2013.Tex.Civ.Prac.&Rem.
as of November 15, 2013. Tex. Civ. Prac. & Rem.
Code37.001-37.005         Additionally
et seq. Additionally andaltematively,  Rubyexecuted  a new
Code 37.001-37.005 etseq.              and alternatively, Ruby executed a new
durable      of attorney n November   15,2013appointing   her sonsMackand
power of attorney oon
durable power                 November 15, 2013 appointing her sons Mack and
Don   heragents.Plaintiffs    seek declaration  thatMackandDonareauthorized
as her agents. Plaintiffs seek a
Don as                             a declaration that Mack and Don are authorized
to          Ruby'sagentspursuanttotheNovember     2013powerof attomey.
serve as
to serve as Ruby's agents pursuant to the November 2013 power of attorney.
2
Silverado Appx. 0188
No. 1-15-586-CV 3215
33
33    Therefore,Plaintiffssubmitthat
Therefore,           submit that they  may be
they may    entitledto
be entitled to the  following
thefollowing
remedies
remedies a vailable
available        court when
ttoo a court                of trust
when aa breach of       hasoccurred:
trusthas           (a)compel
occurred: (a)        the
compel the
trusteeto
trustee to perform the trustee’s
performthe  trustee's dduty or duties;
uty or          (b)enjoin
duties; (b)  enjointhe
the trustee  from
trusteefrom
a breach
committing  oftrust;
(c)compel      toredress
thetrustee           oftrust,
a breach
committing a breach of trust; (c) compel the trustee to redress a breach of trust,
including
including ccompelling
ompelling tthe
he trustee
trustee to pay money or
to paymoney             property;(d)
restoreproperty;
or restore              orderaa
(d) order
trustee to          (e)appoint
account;(e)
to account;               receiverto
appoint aa receiver   takepossession
totake            ofthe
possession of thetrust
trustproperty
property
andadminister
and            thetrust;
administer the       (f)suspend
trust;(0         thetrustee;
suspend the         (g)remove
trustee;(g)       thetrustee
removethe trusteeas provided
as provided
C)
underSection113.082;    (h)reduce
under Section 113.082; (h)           denycompensation
ordeny
reduce or                     thetrustee;
to the
compensation to             (i) void
trustee;(i) voidan
an
ofthe
actof
act   thetrustee;
trustee;and/or (j)impose
and/or(j)            lienor
impose aa lien    constructive
orconstructive truston
trust    trustproperty
ontrust property
according
according to    Texas T
theTexas
tothe         rustC
Trust   ode.Section
Code.         114.008.
Section114.008.
ACTION
OF
CAUSES
CAUSES OF ACTION
FALSE
A FALSE
A       IMPRISONMENT
IMPRISONMENT
34.Plaintiffs
34. Plaintiffs allege allfactsstated
allegeall              hereinabove
facts stated hereinabove as      fullyset
as ifif fully          below.Texas
setforth below. Texas
law               imprisonment
falseimprisonment
law defines false             as
as the unlawfulrestraint
theunlawful           of an
restraintof      individual’s
anindividual's
personal         or freedom
personal liberty or freedom of
of movement against hhis
movement against      or herwill.
isor            Plaintiffs
her will. Plaintiffs allege
allege
andwould
and       provethat
would prove     Silverado h
thatSilverado has restrictedR
asrestricted  uby’smovement
Ruby's movementto andfromthe
to and from the
premises withoutaa court
premises without         order.
courtorder.
68. To
68.    date,thereis
Todate,              Courtdeclaring
noCourt
there is no                 Rubyto
declaring Ruby to be incompetent
beincompetent or
or to  lack
to lack
capacity.
capacity. Thereisisno
There       presumption
nopresumption ofincompetence
of                 incapacity.
orincapacity.
incompetence or
12
12
Silverado Appx. 0189
No. 1-15-586-CV 3225
69
69                   next friends
as next
Plaintiffs, as                 Ruby,cclaim
friendsooffRuby,       all of her rights undertheElderly
laimallofherrights           the Elderly
of
Billof
Bill of Rights          Section 102
in Section
Rights found in                          Resource C
the Human Resource
102 of theHuman           Code  including:(a)
odeincluding:  (a)
An elderly individual
Anelderly  individual hasalltherights,    benefits,
has all the rights, benefits, responsibilities, and
responsibilities, and privileges
granted by theconstitution
granted by                 and laws of this
the constitutionandlawsof    this state and the United
state andthe  United States,
States,eexcept
xcept
wherelawfully              Theelderlyindividual
restricted.The
where lawfullyrestricted.                      has
elderly individual has      righttotobe
theright
the              befree
of
free of
interference,                          andreprisal
coercion, discrimination,and
interference, coercion,                             in exercisingthese
reprisalinexercising
civilrights.
these civil rights.
C        (b)    elderly individualhhas
An elderlyindividual
(b) An                     astheright
the rightto betreatedwithdignityand
tobe treated with dignity andrespect
forthe
respect for the
personal iintegrity
personal   ntegrityof
of the individual,without
the individual,
regard to race,
without regardto
religion,national
race, religion, national
origin,
origin, ssex, age, disability,
ex,age,             marital tatus,oorr source
disability, maritalsstatus,
of payment.This
source of payment.
Thismeans
that
means that
the elderlyindividual:(1) has the rightto makethe individual's      ownchoices
the elderly individual: (1) has the right to make the individual's own choices
regarding     individual'spersonalaffairs, care,benefits,   and services;(2)hasthe
regarding the
the individual's personal affairs,care, benefits, and services; (2) has the
um.Resource Codes
right
right to
befreefromabuse,neglect,andexploitation.     ..Tex.H
to be free from abuse, neglect, and exploitation...Tex. Hum. Resource Code s
102.003. Clearly,thisStatutehasbeenrepeatedly     violatedwithrespecttoRuby.
102.003. Clearly, this Statute has been repeatedly violated with respect to Ruby.
70    Plaintiffs, as next
Plaintiffs, as
friendsof Ruby,claimallof her rightsundertheTexas
next friends of Ruby, claim all of her rights under the Texas
70
Code 19.401,et seq., which
Administrative
Administrative Code 19.401, etseq.,
guaranteesthe elderlywiththei
which guarantees the elderly with the
uninhibitedrightto free         andegressoftheirfacilitiesinwhichtheyreside,
uninhibited right to free access
access and egress of their facilities in which they reside,
thatanelderlypatient’s
mandating                                           bynotinterfering
privacyrightsberespected
mandating that an elderly patient's privacy rights be respected by not interfering in
anymanner  withtheirreceiptof unopened   mail,telephone  calls,privatemeeting
any manner with their receipt of unopened mail, telephone calls, private meeting
13
13
Silverado Appx. 0190
No. 1-15-586-CV 3226
areas withtheirfamily.
areas with their family. Section 19.401              states thefollowing
19.401 specificallystates  the following
guarantees:
guarantees:
a. The resident hastheright
a. Theresident                 to exercise
has the right to  exercisehhis
isrights  as aresident
rightsasa   residentaatt thefacility
the facilityand
and
as a citizen
asa  citizen or resident ofthe
or resident of the United
United States.
States.
b. The
b. The resident
resident hastheright     obefree
has the right tto be free ofinterference, coercion,discrimination,
of interference,coercion,discrimination,or
or
reprisal from
from thefacility
the facility inexercising
in exercisinghisrights.
his rights.
c. In
c. In the case of
the case of a residentaadjudged
a resident  djudgediincompetent
ncompetent under the lawsof
underthelaws    oftheStateof
the State of
Texasby               competentjurisdiction,
of competent
courtof
Texas by aa court              jurisdiction,the
therightsof
rights of the
resident re
the resident aare
exercised
exercisedby
by the
appointedunderTexaslaw toact
person appointed under Texas lawto
the person                             act on
the resident``s
on the resident's
behalf.
d. The facilitymust comply
d. The facility must
complywith all applicableprovisionsof the Human
with all applicable provisions of the Human
ResourcesCode,Title  6, and Chapter102.An individual may ay not be denied
Resources Code, Title 6, and Chapter 102. An individualm     not be denied
appropriate
appropriatecareon
thebasisof his race, religion,
care on the basis of his race,
color,nationalorigin, ex,
religion, color, national origin,ssex,
handicap,         status, sourceooffpayment.
age, handicap, marital status, oorr source
age,                                       payment.
e. Thefacilitymustallowtheresidentthe            to observehisreligiousbeliefs.
e. The facility must allow the resident the right to observe his religious beliefs.
Thefacilitymustrespectthereligious     beliefsoftheresidentinaccordance      with
The facility must respect the religious beliefs of the resident in accordance with
42UnitedStatesCode§l396f.
42 United States Code §1396f.
71 Section19.401et seq          mandates thatallnursinghomefacilitiesunder
71 Section 19.401 et seq further mandates that all nursing home facilities under
of theDepartment
thejurisdiction                                to ensureprivacywith
ofAgingandDisability
the jurisdiction of the Department of Aging and Disability to ensure privacy with
14
14
Silverado Appx. 0191
No. 1-15-586-CV 3227
respect to accommodations, medical
respect to                                                  access, visitation,
care, access,
medical treatment, personalcare,         visitation,
andotherpotentially
and other potentially iinvasive,
nvasive,uunwanted
nwantedororintrusive
intrusiveacts  orpractices
actsor practicesbby
y the
the
facility. 19.401.
72
72     Plaintiffs
Plaintiffsaallege
llegeandwould  provethatSilverado
and wouldprove that Silveradohhas
asfailed   orrefused
failedor  refusedto
to
provide pprivacy
provide   rivacyto
to Ruby
Ruby andthePlaintiffs
and the Plaintiffs regarding
regardingpphone calls,m
honecalls,   ail,oorr personal
mail,      personal
0
:         visitation with
visitation with Plaintiffs
Plaintiffs and
andttheir
heir wives.
wives.
73
73    Plaintiffs
Plaintiffsallegeand
allege and would provethat
wouldprove  that Rubyand
Ruby and they havesustained
they have sustained
substantial
substantial damages as a proximate
damages asa             resultooffSilverado's
proximate result     Silverado'swrongful
wrongful imprisonmentof
of
Ruby.
Ruby.
74
74    Plaintiffsfurtherallege
Plaintiffs further allege and wouldprove
and would       thatSilverado's
provethat             wrongful
Silverado'swrongful
ofRuby
imprisonment of Ruby was
intentional
andmalicious,
suchthatSilverado
should
was intentional and malicious, such that Silverado should
beassessed exemplaryorpunitive
be assessed exemplary or punitiveddamages.
amages.
B
B
ASSAULTAND BATTERY
ASSAULT AND BA11ERY
75
75
Plaintiffsallegeandwouldprove thatSilverado
Plaintiffs allege and wouldprove
hascommitted  assaultand
that Silverado has committed assault and
batteryof Rubywithrespect tto
battery of Ruby with respecto psychotropicdrugsforced uponheragainst
psychotropic drugs forcedupon
her
her against her
willinfoodandotherwise.     Plaintiffs allegeandwouldprove thatSilverado
will in food and otherwise. Plaintiffs allege and would prove
k11ew
that Silverado knew
or shouldhaveknownthatRubyrefusedto takemedications       thatshecomplained
or should have known that Ruby refused to take medications that she complained
made hersick.
made her sick.
15
Silverado Appx. 0192
No. 1-15-586-CV 3228
76
76     Plaintiffs allege
allege andwould        thatSilverado
provethat
and would prove     Silverado placed Rubyinreasonable
placedRuby in reasonable
fearof
fear       harmfulor
of aa harmful    offensive
oroffensive contactand/or
contact       forcingor
and/orforcing or tricking herinto
trickingher into taking
drugs, which sherefused
whichshe            takevoluntarily,
totake
refused to     voluntarily, which wrongful
whichwrongful conduct causedRuby
conductcaused Ruby
(0
to feel
to      sick.
feel sick.
tT        77
77    Plaintiffsaallege
Plaintiffs  llegeandwould
and would prove thatSilverado
prove that           placedthem
Silverado placed themin reasonable
in reasonable
b
fearofa           oroffensive
contact
orarrest          authorities,
bylawenforcement
fear of a harmful or offensive contact or arrest by law enforcement authorities,
CO
Silverado
whenSilverado
when          wrongfully
wrongfully orderedthem
ordered themto leavethe
toleave     premises
thepremises andissued
and        criminal
issued criminal
trespass w
trespass   arnings.
warnings.
78
78    Plaintiffs
Plaintiffs allegeand  wouldprove
allege and would       that Ruby
prove that Rubyand   theyhave
and they       sustained
havesustained
substantial
substantial damages
damages a      proximate
ass aa proximate resultof
result    Silverado's
of Silverado's wrongful
wrongful assaultand/or
assault and/or
battery.79
battery.
79    Plaintiffs ffurther
Plaintiffs   urtherallege
allegeand wouldprove
andwould       thatSilverado's
provethat             wrongful
Silverado's wrongful assault
assault
andbattery
and             intentional
wasintentional
battery was            andmalicious,
and            suchthatSilverado
malicious, such that Silverado should beassessed
shouldbe assessed
exemplary
exemplary    punitivedamages.
orpunitive
or         damages.
C
C     BREACH
BREACH OFTRUST
OF       andBREACH
TRUST and        OFFIDUCIARY
BREACH OF           DUTY
FIDUCIARY DUTY
80
80    Plaintiffs c
Plaintiffs   laimdamages
claim         jointly and severally a
damages jointlyandseverally   against DavidandCarol
gainstDavid           for
and Carol for
fraud,breachof
fraud,           fiduciaryduty,and/orbreachof
breach of fiduciary                              withrespect
trustwith
duty, and/or breach of trust     respectto   their
to their
obligations
fiduciary obligations toRuby
to     andthemselves.
Rubyand themselves.
16
16
Silverado Appx. 0193
No. 1-15-586-CV 3229
81
81 TheEstates
The Estates Code                           breacheshis
thataa fiduciarybreaches
Code providesthat                             her dutyby
orherduty
hisor         by
neglecting   o provide accounting,
neglecting tto                     records,funds,
accounting,records,  funds,aand
ndinformation
informationwhenasked
when askedor
or
under
under aa duty to provide
duty to provide the same. IItt further includes
the same.              includes ffailure
ailureto  meetthehighest
to meet the highest
degree
degree of care owed
of care owed to
to any humanbeing.Tex.
anyhuman being. Tex. E    Code.7751.001
st.Code.
Est.        51.001eett seq.
seq.
82    Carol
Carol aand
ndDavid  have duties
David have dutiestto: account,keep
o:account,       accuraterrecords,
keepaccurate  ecords,andproduce
and produce
the
the same      demand bby
upon demand
same upon          ythe
the beneficiariesincluding
includingR ubyandthePlaintiffs.
Ruby  and the Plaintiffs.
Sec.751.102.
Sec. 751.102. Duty to Timely Inform
Duty to        Inform Principal. [TPC§489B(b)]   states:"(a)
[TPC §489B(b)]states:  (a)The
The
attorney in
attorney  in fact
fact or       shalltimely
agentshall
or agent      timely inform the principal of
inform theprincipal  of eachactiontaken
each action taken
underthe       of attorney.(b)Failure
power of attorney.
under the power
of anattomey
(b) Failure ofan attorneyin
fact oragentto
in factor
timely
agent to timely
inform, as to
inform, as
third         doesnot invalidate
to third parties, does not
actionofthe attorneyinfact
any action of theattomey
invalidateany                     in factor
or
agent."Sec.  751.103.            of Records.[TPC§489B(c),(f)] states:"(a)
agent." Sec. 751.103. Maintenance of Records. [TPC §489B(c), (f)]states: "(a)
The
The attorney
in fact or agent
attorney in fact or
shallmaintain
agentshall         recordsof eachactiontaken or
maintain records of each action takenor
decisionmadeby the attorneyin
decision made by the attomey
fact or agent.
in fact or
(b)Theattorneyin fact oragent
agent. (b) The attorney in factor agent
shallmaintainallrecordsuntildelivered     to theprincipal,  releasedbytheprincipal,
shall maintain all records until delivered to the principal, released by the principal,
or dischargedby court."Sec.751.104.      Accounting. [TPC§489B(d),  (e)]states
or discharged by aa court." Sec. 751.104. Accounting. [TPC §489B(d), (e)1 states
"(a)Theprincipalmaydemandan accounting     bytheattorneyinfact agent.(b)
"(a) The principal may demand an accounting by the attorney in factor
or agent. (b)
Unlessotherwisedirectedby the                     accounting
underSubsection
(a)
Unless otherwise directed by the principal, an
an accounting under Subsection (a)
must include:(1)the propertybelongingto theprincipalthathas cometo the
must include: (1) the property belonging to the principal that has come to the
attorneyin fact’sor agent’sknowledge   or intothe attorneyin fact’sor agent’s
17
attorney in fact's or agent's knowledge or into the attorney in fact's or agent's
17
Silverado Appx. 0194
No. 1-15-586-CV 3230
possession;
possession; (2) each action taken
(2)eachaction         ordecision
taken or decision m adebythe
made                 infact
by the attorney in         agent;
or agent;
fact or
(3)aa complete
(3)   complete         ofreceipts,
accountof
account             disbursements,
receipts, disbursements, andother
and other actions ofthe
actionsof     attorney
the attorney
infact
in         agentthat
oragent
fact or           includes
thatincludes thesource
the sourceandnature
and natureofeach
of      receipt,
each receipt, disbursement,
disbursement,
action,with
or action,
or         withreceipts
receipts of          andincome
ofprincipal and income shown separately;
shownseparately; (4)    listingof
(4) aa listing of
all property
all propertyover whichthe
overwhich              in fact
attorneyin
the attorney    factor
oragent hasexercised
agenthas exercised control that
controlthat
N        includes:
includes: (A)
(A) an adequate
an adequate description ofeach
description         asset; and(B)theasset’s
of each asset;                     current
and (B) the asset's current
value, ifthevalue
value, if           isknown
the value is          theattorney
tothe
known to    attorney infact
in      oragent.
fact or       (5)thecashbalance
agent.(5)                  on
the cash balance on
handandthe        andlocation
nameand
hand and the name    location of thedepository
of the               whichthe
at which
depository at       thecash
cash balance is
balanceis
kept;(6)eachknown
kept; (6) each known liability; and(7)
liability;and         otherinformation
anyother
(7) any                  andfactsknown
information and             to
facts known to
the attorneyin
the attorney    factor
in fact   agentas
oragent asnecessary
necessary for   fulland
foraa full and definite understanding
definiteunderstanding of
of
the       condition
exactcondition
the exact          ofthe
of     property
the property belonging
belonging tothe
to    principal.
theprincipal. (c)Unless
(c)        directed
Unless directed
otherwise
otherwise bbyythe principal,the
the principal,     attorneyiinn fact
the attorney     fact or
or agent shallalsoprovide
agentshall also provide tto the
o the
alldocumentation
principal all               regarding
documentation regarding theprincipal’s
the principal's property.
83    TheTexas  DurablePower of AttorneyAct,TexasEstatesCode751.001
Powerof
83    The Texas Durable         Attorney Act, Texas Estates Code 751.001
governsDurable
governs         Powers of
Durable Powers    Attorney.In
of Attorney.    1993,Ruby
In 1993,      executedthis
Ruby executed      Powerof
this Power
of
Aattomey,
Aattorney, declaring iit
declaring  t to
to be "unlimited
be "unlimited in nature.
in         Basedupon
nature.Based            completetrust."
uponcomplete trust."
1993Durable
1993 DurablePower
Power ofAttorney.
of Attorney.
84
84    Plaintiffs
Plaintiffs allegeand
allege andwould       thatCarol
provethat
would prove           andDavid
Carol and
theirduties
breached
David breached their duties
of disclosure,
of disclosure, accounting
accounting anddisbursement.
and               Sec.751.105.
disbursement. Sec.
Failure
751.105. Effect of Failure to
18 18
Silverado Appx. 0195
No. 1-15-586-CV 3231
Suit.[TPC§489B(g)]
Comply; Suit.                states: "If
[TPC §489B(g)] states:   If the
the attorney in fact
attorney in fact or       failsor
agentfails
or agent      or
refuses to
to inform theprincipal,
informthe principal, provide documentation,
providedocumentation,    deliveran
or deliver
or           accounting
anaccounting
under        751.104 w
Section751.104
underSection           ithin60daysof
within               demandunder
60 days of aa demand      thatsection,
underthat               longer
oraa longer
section, or
or         periodas
or shorter period   demanded
asdemanded bytheprincipal
by               or ordered
the principal or         byaa court,
orderedby           theprincipal
court,the principal
may      suitto:
may file suit to:
Compel tthe
(1)Compel
(1)             attorneyin
he attorney    factor
in fact    agentto
or agent to deliver theaccounting
deliverthe               the
or the
accounting or
assets; or
assets;
(2)Terminate
(2) Terminate the       ofattorney.
powerof
the power   attorney.
85
85    Plaintiffs
Plaintiffs allegeand  wouldprove
allege and would prove that Rubyand
that Ruby      theyhave
and they       sustained
havesustained
substantial
substantial damages
damages aas    proximate
s aa proximate rresult
esultof  CarolandDavid's
of Carol and David's breach of trust
breachof  trust
and/orbreach
and/or       offiduciary
breachof           duty.
fiduciary duty.
86
86     Plaintiffs
Plaintiffs allege andwould
allege and             thatCarol
provethat
would prove     Carol and David's ffailure
andDavid's    ailureor refusalto
orrefusal to
providewrittenannual   accountingooff the
provide written annual accounting     the Peterson Trustis
PetersonTrust     intentional
is intentional and
and
malicious, suchthatthey
malicious, such           shouldbeassessed
that they should             exemplary
be assessed exemplary    punitivedamages.
orpunitive
or         damages.
87 Ruby
87   Rubyrevokedthe   1993Powerof
revoked the 1993           Attorney
Power of Attorney     November
onNovember
on           15,2013.
15,  2013.
Silverado
Silverado hhad
adnotice  ofthe
notice of     newpowers
the new        ofattorney
powers of         appointing
attorneyappointing MackandDon   as
Mack and Don as
Ruby's
Ruby's a gentson
agents    November 15,2013.Silverado
on November                     hadaaduty
15, 2013. Silverado had
acknowledge
dutytotoacknowledge and
and
honor Ruby'snew
honor Ruby's newpowers ofattorney.
powers of attorney.19
19
Silverado Appx. 0196
No. 1-15-586-CV 3232
88
88    Plaintiffs allegeand  wouldprove
allege and would      that Ruby
provethat Rubyand   theyhave
and they       sustained
havesustained
substantial
damages
asa                                           oftrustand/or
breach
ofSilverado``s
substantial damages as a proximate result of Silverado's breach of trust and/or
breach offiduciary duty
breach of          dutyregarding  Ruby'snew
regarding Ruby's newpowers  ofattorney.
powers of  attorney.Additionally,
Additionally,
intentionally
Silverado intentionally and maliciously failed
andmaliciously  failed or refusedto
or refused    honorandrecognize
to honor and recognize
Ruby's
Ruby's rrevocation
evocation ooffherprevious
her previous p     of attorney
owerof
power             andherappointment
attomeyand                  ofDon
her appointment of Don
andMack
and         heragents,
asher
Mack as             suchthat
agents,such       Silverado
that Silverado  shouldbe
should    assessed
beassessed  exemplary
exemplary or
or
punitive damages.
punitive damages.
E   CONSPIRACY
E CONSPIRACY
89
89    Plaintiffs
Plaintiffs claimdamages  againstthe
claim damages against    Defendants jointly
theDefendants         andseverally
jointly and           based
severally based
thealleged
on the
on             conspiracy
alleged conspiracy       Carol,David
amongCarol,
among       DavidandSilverado
and Silverado to accomplish
toaccomplish an
an
unlawful
unlawful p        Conspiracy
urpose.Conspiracy
purpose.            eexists here because there
xistsherebecause         are (l)
there are     twoor
(1) two    more
or more
persons, (2)an
persons, (2)   objectto
anobject    beaccomplished,
to be               (3)aa meeting
accomplished, (3)           oftheminds
meetingof              theobject
onthe
the minds on    object
ofthe
of            ofaction,
courseof
the course           (4)one
action,(4) oneor       unlawful,
moreunlawful,
or more          overtacts,
overt       and(5)damages
acts, and             as
(5) damages as
theproximate
the           result.
proximate result.
90
90    Plaintiffs
Plaintiffs a llegeandwould
allege                 thattheDefendants
provethat
and would prove                    agreedto
the Defendants agreed    violateor
to violate or
infringeRuby's
infringe              againstfalse
rightsagainst
Ruby'srights        falseimprisonment  and/orassault
imprisonment and/or        andbattery,
assaultand          under
battery, under
thefactsalleged   inthis
the facts alleged in      case.JURY
this case.
JURY DEMAND
DEMAND
Plaintiffs demandaajury
Plaintiffs demand  jury trial and have paid aa juryfee.
andhavepaid      jury fee.
20
20
Silverado Appx. 0197
No. 1-15-586-CV 3233
TAB 36
1
1     APPELLATE COURT CASE NO. 01-15-00567-CV & 01-15-00586-CV
2                 TRIAL COURT CASE NO. 427,208 & 427,208-401
FILED IN
1st COURT OF APPEALS
3                                                        HOUSTON, TEXAS
9/15/2015 10:04:54 AM
4   IN THE GUARDIANSHIP               *         IN   THE PROBATE COURT       OF
CHRISTOPHER A. PRINE
Clerk
5                                     *
6   RUBY PETERSON,                    *         HARRIS COUNTY, T E X A S
7                                     *
8   INCAPACITATED ADULT               *         COURT    NUMBER    (1)       ONE
9
10                    MOTION TO RULE FOR SECURITY FOR COSTS
11                      AND MOTIONS FOR SANCTIONS HEARING
12
13                  Came to be heard on this the 9th day of October,
14    2014, Motion to Rule for Security for Costs and Motions for
15    Sanctions Hearing, in the above-entitled and numbered cause,
16    and all parties appeared in person and/or being represented by
17    Counsel of Record, before the Honorable Loyd Wright, Judge
18    Presiding.
19
20                          VOLUME _10_ OF   13
21
22                            O R I G I N A L
23
24
25
Silverado Appx. 0198
RR Vol. 10
2
1                        APPEARANCES
2         ATTORNEY FOR RESPONDENTS/PLAINTIFFS, MACKEY GLEN PETERSON,
DON LESLIE PETERSON AND LONNY PETERSON:
3
Philip Ross
4                    State Bar No. 17304200
1006 Holbrook Rd
5                    San Antonio, TX 78218-3325
Telephone: 210-326-2100
6
ATTORNEYS FOR MOVANTS/DEFENDANTS, CAROL ANN MANLEY
7         AND DAVID PETERSON:
8                    Sarah Patel Pacheco
State Bar No. 00788164
9                    1401 McKinney Street
1700 Five Houston Center
10                     Houston, Texas 77010
Telephone: 713-658-2323
11
ATTORNEYS FOR MOVANTS/DEFENDANTS:   SILVERADO SENIOR LIVING
12          CENTER SUGAR LAND:
13                     Josh Davis
State Bar No. 24031993
14                     Greenway Plaza, Suite 1400
Houston, TX 77046-2410
15                     Telephone: (713)659-6767
16          GUARDIAN AD LITEM FOR RUBY PETERSON:
17                     Jill Young
State Bar No. 00797670
18                     2900 Weslayan, Suite 150
Houston, Tx 77027
19                     Telephone: 713-572-2900
20
ATTORNEY AD LITEM FOR RUBY PETERSON:
21
W. Russ Jones
22                     State Bar No. 10968050
5177 Richmond Ave, Suite 505
23                     Houston, Tx 77056-6775
Telephone: 713-552-1144
24
25
Silverado Appx. 0199
RR Vol. 10
3
1                   CHRONOLOGICAL INDEX
2                                                                Page
3   Preliminary discussions between Court and Counsels--------    8
4   Mr. Ross explains Ms. Schwager's absence------------------ 14
5   Ms. Young updates Court on Mrs. Peterson's condition------ 15
6   Mr. Jones presents his motions---------------------------- 19
7   Ms. Young presents her motions---------------------------- 33
8   Ms. Pacheco interjects just on their motions-------------- 35
9   Mr. Ross responds----------------------------------------- 37
10    Ms. Pacheco responds-------------------------------------- 53
11    Mr. Ross responds----------------------------------------- 55
12    Mr. Jones responds---------------------------------------- 61
13    Ms. Young responds---------------------------------------- 62
14    Mr. Jones responds---------------------------------------- 63
15    Mr. Ross responds----------------------------------------- 63
16    Ms. Pacheco presents her motions-------------------------- 69
17    Defendant's Exhibit No. 1 admitted------------------------ 73
18    Defendant's Exhibit No. 2 admitted------------------------ 75
19    Defendant's Exhibit No. 3 admitted------------------------ 76
20    Defendant's Exhibit No. 4 admitted------------------------ 77
21    Defendant's Exhibit No. 5 admitted------------------------ 78
22    Defendant's Exhibit No. 6 admitted------------------------ 79
23    Defendant's Exhibit No. 7 admitted------------------------ 80
24    Defendant's Exhibit No. 8 admitted------------------------ 83
25    Mr. Davis presents his motions---------------------------- 87
Silverado Appx. 0200
RR Vol. 10
4
1                   CHRONOLOGICAL INDEX
2   (continued)                                               Page
3   Defendant's Exibit No. A admitted------------------------- 94
4   Defendant's Exibit No. B admitted------------------------- 97
5   Defendant's Exibit No. C admitted------------------------- 101
6   Defendant's Exibit No. D admitted------------------------- 104
7   Ms. Pacheco requests sanctions---------------------------- 105
8   Mr. Davis requests sanctions----------------------------- 106
9   Ms. Young is excused-------------------------------------- 107
10    Mr. Ross responds----------------------------------------- 107
11    Ms. Pacheco responds-------------------------------------- 110
12    Mr. Davis responds---------------------------------------- 111
13    Mr. Ross responds----------------------------------------- 113
14    Court Reporter's Certificate------------------------------ 119
15
16
17
18
19
20
21
22
23
24
25
Silverado Appx. 0201
RR Vol. 10
TAB 37
·                                                       -                           ·           FILED
DATA—ENT                                                        Stan
Stanart
Stan Stanart
County Clerk
DATA DATE
UP                                                       Harris County
PICK UP THIS DATE
Cause No. 427208
PROBATE
PROBATECOURT
COURT11
INTHE
IN THE GUARDIANSHIP
GUARDIANSHIPOOFF                        §           INTHE
IN     PROBATECOURT
THEPROBATE COURT
.                                                      §
RUBY
RUBY S.PETERSON,
S. PETERSON,                              §          NUMBER
NUMBERONE
ONE(1)OF
(1) OF
§
ANINCAPACITATED
AN INCAPACITATEDPERSON
PERSON                         §          HARRISCOUNTY,TEXAS
HARRISCOUNTY, TEXAS
Cause
CauseN o.22014-40980
No.   014-40980
MACKEY ("MACK") GLEN
MACKEY ("MACK") GLENPETERSON,
PETERSON, §                             IN THE DISTRICTCCOURT
INTHEDISTRICT     OURTOF
OF
Individually
Individually and    NextFriend
asNext
and as     FriendofRUBY
of RUBY §
PETERSON,
PETERSON, DON
DON LESLIE PETERSON,                  §
Individually and asNextFriend
andas Next FriendofRUBY
of RUBY          §
PETERSON,
PETERSON, andLONNY
and LONNYPETERSON,
PETERSON,             §
Plaintiffs
§
Individually
Individually and   NextFFriend
asNext
andas       riendooffRUBY
RUBY          §
PETERSON,
PETERSON,                                       §
Plaintiffs
§
vs.
vs.
§                COUNTY,TEXAS
HARRISCOUNTY,
HARRIS        TEXAS
§
CAROL ANNE   MANLEY,DAVID
CAROL ANNE MANLEY, DAVID          §
PETERSON,
PETERSON, SILVERADO
SILVERADO SENIOR
SENIORLIVING
LIVING §
FACILITY,
FACILITY, TANA
TANAMCMILLON,
MCMILLON,DR.
DR.      §
REBECCA
REBECCA CLEARMAN,
CLEARMAN,and
andDR.
DR. CHRIS                  §
MERKL,
MERKL,                                          §
§
Defendants
§                           DISTRICT
129th JUDICIAL DISTRICT
GUARDIAN
ADLITEM      AD
&ATTORNEY
GUARDIAN AD LITEM & ATTORNEY AD LITEMS' MOTION TO DISMISS
TODISMISS
MOTION
PLAINTIFFS’CLAIMS BROUGHT INTHEIR  PURPORTED CAPACITY ASNEXT
PLAINTIFFS' CLAIMS BROUGHT IN THEIR PURPORTED CAPACITY AS NEXT
FRIENDOFRUBY  S.PETERSON  FORLACK  OFSTANDING  AND LACK OF
FRIEND OF RUBY S. PETERSON FOR LACK OF STANDING AND LACK OF
SUBJECT  MATTER JURISDICTION
SUBJECT MATTER JURISDICTION
TO THE HONORABLEJUDGE LOYD H.WRIGHT:
TO THE HONORABLE JUDGE LOYD H. WRIGHT:
COMENOW,            W.YOUNG&W.RUSSJONES,actionintheirrespective
COME NOW, JILL W. YOUNG & W. RUSS JONES, action in their respective
AdLitemandAttorney
Guardian                                     and thistheir
AdLitemforRubyS.Peterson,
capacities as
as Guardian Ad Litem and Attorney Ad Litem for Ruby S. Peterson, and file this their
MOTION TODISMISS PLAINTIFFS’ CLAIMS BROUGHT INTHEIR  PURPORTED
MOTION TO DISMISS PLAINTIFFS' CLAIMS BROUGHT IN THEIR PURPORTED
Silverado Appx. 0202
No. 1-15-586-CV 3320
CAPACITY
CAPACITY AS
AS N EXT
NEXT FRIEND
FRIEND OF
OFR UBY
RUBY S.P
S.  ETERSON
PETERSONFOR
FORLACKOFSTAN
LACKOF      GAND
STANDING AND
LACK
LACK O
OFFSUBJECTMAT'I``ER JURISDICTION,
MAI Iblt JURISDICTION, and
and in supportfor
in support forthe
the dismissalofsaid
of said
would
show  theCourt
unto     the
claims, would show unto the Court the following:
I.Plaintiffs
L PlaintiffsHave
HaveNo           toAct
No Authorityto    onBehalf
ActonBehalf of RubyS.
S.P eterson
Peterson
1.
1. In 1993, when
In1993,       she wasof
when she      ofssound
ound mind   andffully
mindand    ullycompetent
competentto  executeaaDurable
toexecute            Powerof
DurablePower   of
Attomey
Attorneyfor
forb oth
bothher                   andffor
her financial affairsand  orhherermedicalandhhealthcare
medicaland   ealthcare
decision-
decision-
making,
making, Ruby S. Peterson,after
Ruby S.Peterson, afterddue
ueconsideration,
consideration,appointed
appointedCarol
CarolA   Manleyand
nnManley
Ann        and
David
David T royPeterson
Troy Peterson (Defendants
(Defendantsherein) tobeherlawfully
herein)to be her lawfullydesignated
designatedAgents
Agents and
Attomeys-in-Fact.
Attorneys-in-Fact.
2.
2.     Fortheensuing
For the ensuing20 years,Ruby
20years, RubyPPeterson
eterson wasmentally
was mentallycompetent
competentto manageher
tomanage herown
own
and
make   medical
herown    healthcare
and     decisions.
financial affairs and make her own medical and healthcare decisions.
3.
3.     However,in late2012
However, in late
andearly2013,Ruby
2012 and early2013,
RubyS.Peterson
developed increasing confusion,
S. Peterson developed increasing confusion,
disorientation,
disorientation, andshort
and shorttterm
ermmemory impairment.
4.
4.
Beginninginapproximately  Marchof2013, seriesofRubyS.Peterson’s         treating
Beginning in approximately March of 2013,aa series of Ruby S. Peterson's treating
physiciansexamined, evaluated andassessed  herphysical andmentalhealth,   andeach
physicians examined, evaluated and assessed her physical and mental health, and each
concludedthatshehaddeveloped    Dementia.
concluded that she had developed Dementia.
5.
5.
TheBoard           Specialists andtreating  physicians whoEACHDIAGNOSED   RUBY
The Board Certified Specialists and treating physicians who EACH DIAGNOSED RUBY
PETERSONWITH DEMENTIA IN2013include:
PETERSON WITH DEMENTIA IN 2013 include:
a.     FedericoDancel,M.D.(Board             Intemal Medicine  specialistand
a.     Federico Dancel, M.D. (Board Certified Internal Medicine specialist and
RubyPeterson’s longtime``primary physician       whodiagnosed  Mrs.
Ruby Peterson's long time primarycare
care physician who diagnosed Mrs.
withdementia
Peterson         inapproximately
March2013);
Peterson with dementia in approximately March 2013);
b.     SaeedKahkeshani, M.D.(Board                        whodiagnosed
Neurologist
b.     Saeed Kahkeshani, M.D.     (Board Certified Neurologist who diagnosed
withdementia
Mrs.Peterson         inapproximately
June2013);
Mrs. Peterson with dementia in approximately June 2013);
Silverado Appx. 0203
No. 1-15-586-CV 3321
c.      SamiranK.Das,M.D.(Board
Samiran                     Certified
K. Das, M.D. (Board Certified  Intemistwho
Internist whodiagnosed Ruby
diagnosed Ruby
withdementia
with dementiaat             Bayshore
thePasadena Bayshore
atthe                   Hospital
Hospital Geriatric
Geriatric Psychiatric
Psychiatric
Unit inAugust
Unit in August 2013);
2013);
d.
d.      SalahU.
Salah            M.D.
U.Qureshi, M.D.  (Board
(Board  Certified
Certified Geriatric
Geriatric Psychiatrist
Psychiatrist who
who
diagnosed
diagnosed Rubywith
Ruby withdementia
dementia    thePasadena
atthe
at             Bayshore
Pasadena Bayshore Hospital
Hospital
Geriatric Psychiatric Unit inAugust of 2013);
Unit in
Suleman
e. Suleman
e.         Lalani, M.D.
Lalani, M.D. (Board
(Board           Internist,
Certified Internist, Board Certified
Board Certified
Geriatric
Geriatric physician
physician andRuby
and Ruby P eterson’s
Peterson's attending
attending physician atthe
physician at the
Silverado
Silverado Senior
Senior Living
Living Facility
Facility inSugar
in       Land,Texas
Sugar Land, Texas who diagnosed
whodiagnosed
Rubywithdementia
Ruby               inlateAugust
with dementia in late August o   early September of2013.);
orr earlySeptember  of 2013.);
f.      Christopher
Christopher O.Merkl,       (Board
M.D.(Board
0. Merkl, M.D.       Certified
Certified Geriatric
Geriatric Psychiatrist
Psychiatrist who
who
performed
performed a mental
a mental capacity
capacity examination on Ruby
examination on Ruby Peterson      October
onOctober
Peterson on        4,
4,
anddiagnosed
2013and
2013     diagnosed herwith  dementia,
her with dementia, severe
severe ccognitive
ognitive impairment,
impairment,
susceptibility
susceptibility    manipulation,
tomanipulation,
to              and   lackof
andaa lack ofmental capacity
mental capacity tomanage
to manageher
her
financial    other a
or other
financial or         ff``airs
affairs inOctober
in         of2013).
October of 2013).
6.
6.     Despite
Despite knowledge
knowledge oftheabove-findings
of the above-findings regarding their m
regarding their   other’s
mother's diminished
diminished mental
mental
capacity
capacity andsusceptibility  to manipulation,
and susceptibility to manipulation, Plaintiffs orchestrated
Plaintiffs orchestrated    meeting
aa meeting with Ruby
with Ruby
Peterson
Peterson onNovember
on          15,22013,
November 15,       without
013,without noticeto
notice   herlawfully designated
toher                    agents
designated agents and
and
attorneys-in-fact,
attorneys-in-fact, CarolAnn
Carol Ann Manley
Manley a ndDavid
and David T    Peterson, andmanipulated
royPeterson,
Troy           and manipulated Ruby
Ruby
Peterson
Peterson into signing
intosigning              Revocation
aa purported Revocation ofPrior
of       Durable
Prior Durable Power ofAttomey
Powerof          andaa
Attorney and
purported Statutory
purported Statutory Durable
Durable Power ofAttorney
Powerof Attorney in favor o
infavor  offPlaintiff``
Plaintiff Donny Leslie
Donny Leslie
Peterson
Peterson with
with p romises
promises that with
that      thenew
with the newdocuments,
documents, Plaintiffs
Plaintiffs could
could move Mrs.
move Mrs. Peterson
Peterson
the
ofthe Silverado
outof
out       Silverado Senior
Senior Living
Living Facility
Facility    secured Memory
(asecured
(a         Memory Care
Care Unit).
Silverado Appx. 0204
No. 1-15-586-CV 3322
II.
II. JUDICIAL
JUDICIAL ADMISSION
ADMISSIONOF
OFM ENTAL
MENTALINCAPACITY
INCAPACITYTO
TOC ONTRACT
CONTRACT
7.
7.     Less
Less tthan
hanthirty
thirty(30)
(30)ddays
aysaftersecuring
securingthe  newdocuments,
thenew             Plaintiffsinitiated
documents,Plaintiffs  initiatedthis
this
guardianshipproceeding
proceedingby
by filingtheir
their OriginalPetition
PetitionforAppointment
for Appointmentof
of Temporary
and
and P ermanent
Permanent Guardianof
ofR   S.
uby
Ruby              Inconnection
S. Peterson. Inconnection therewith, PlaintiffsDonny
Donny
Leslie
LeslieP eterson
Peterson and
and MackeyGlen
GlenPeterson sworeuunder
Petersonswore   nderooath
aththatthey
that theyhadreadthe
had read the
Plainttffs' Original
OriginalPetition oAppoint
Petitiontto Appoint TemporaryandPermanent
and PermanentGuardian
Guardianoof
fthe
the
Person
Person aand
ndEstate
EstateooffRuby
RubySS..Peterson
PetersonAND
ANDTHAT
THATEEACH
ACHOF  THEFACTUAL
OFTHE  FACTUAL
STATEMENTS
STATEMENTSCONTAINED
CONTAINEDTTHEREIN
HEREINWERE(A)WITHIN
WERE (A) WITHIN THEIR
PERSONAL
PERSONAL K NOWLEDGE;
KNOWLEDGE; AND(2)WERETRUEANDCORRECT.
AND (2) WERE TRUE AND CORRECT.
8.
8.     InParagraph
In Paragraph 113
3oftheir
of their OriginalPetition,
Petition, PlaintiffDonny
DonnyLeslie  Petersonaand
LesliePeterson  ndMackey
Mackey
their
Glen
Glen Peterson sworetthat
Peterson swore hattthe
hefollowing
followingfacts
factsw erewithin
were within theirpersonal
personalknowledge
knowledgeand
and
were true and
were true andcorrect:
correct:
also          topetitioners
appearsto
"It also appears    petitionersthat
that becauseofthe
proposed
of the proposedwward's
ard's mental
condition,
condition,she
sheiissunabletoprotect
to protectherselformake
herselfor makedecisions
decisionsthat arein
thatare inthe
the
bestinterest ofhererpersonaland
best interest ofh           andffmancial
inancial
affairs.
affairs.Still,
Still,believing
believingin
inthe
the
petitioners
foregoing, petitionersaccepted
theproposedward's    signed         of
owerofattorney
accepted the proposed ward's signedppower   attorneyon
on
ll-15-13,
11-15-13,not
not contradictorytotheir
belief
to their beliefintheir
in theirmother's
mother'smental
mental
limitations, butperhapsin lucidmomentthat
limitations, but perhaps inaa lucidmoment
sheunderstood  whatshe was
that she understood what shewas
signing.”
signing."
9.
9.
Theabove statements
The above statementsare
considered TRUE JUDICIAL  ADMISSIONS under Texas
are considered TRUE JUDICIAL ADMISSIONS under Texas
law.A  truejudicialadmission  is formalwaiver     ofproofusually  FOUND  IN
law. A true judicial admission is aa formal waiver of proof usually FOUND IN
PLEADINGS   thestipulations  oftheparties.Ajudicial              is
PLEADINGS or
or the stipulations of the parties. A judicial admission is CONCLUSIVE
Silverado Appx. 0205
No. 1-15-586-CV 3323
UPON
UPON THE
THEPARTY
PARTYMAKING
MAKINGIT,
IT.AND
ANDIT
ITRELIEVESTHEOPPOSING
RELIEVESTHEOPPOSING
PARTY'S
PARTY'S BURDENOFPROVING
BURDENOFPROVINGTHE
THEA DMITTED
ADMITTEDFACT, ANDBARS
FACT.ANDBARSTHE
THE
ADMITTING
ADMITTING PARTY
PARTYFROM
FROMDISPUTING IT. SeeMendoza
DISPUTINGIT.See          v.Fidelity
Mendozav.  Fidelity Guaranty
Ins.
Ins. U nderwriters,
Underwriters, 606
606 S .W.2d
S.W.2d 692,
692,694
694(Tex. 1980),citing
(Tex. 1980),citingGevinson v.M
Gevinsonv.   anhattan
Manhattan
Construction C0.ofOklahoma,
Co. of Oklahoma,449S.W.2d
449 S.W.2d458,467(Tex.1969);
458, 467 (Tex. 1969);M cCormick
McCormickandRay,
and Ray,
Texas
Texas L awofEvidence
Law            § 1127(2ded.1956).
of Evidence§1127  (2d ed. 1956).
10.
10. Thus,
Thus, PLAINTIFFS
PLAINTIFFSDONNY
DONNYLESLIE
LESLIEPETERSON
PETERSONAND
ANDMACKEY
MACKEYGLEN
GLEN
PETERSON
PETERSON HAVE
HAVECONCLUSIVELY
CONCLUSIVELYADMITTEDTHAT,byNovember
ADMITTEDTHAT,             15,22013:
by November15,  013:
(a)BECAUSE
(a) BECAUSE OF
OF THEPROPOSED     'SMENTAL
PROPOSED WARD'S MENTALCONDITION,
CONDITION. SHEIS
IS
UNABLE
UNABLE TO
TOP ROTECT
PROTECTHERSELF
HERSELFOR
ORM AKE
MAKEDECISIONS
DECISIONS THAT AREIN
TARE   INTHE
THE
BESTINTEREST  OF HER PERSONALANDFINANCIAL
BEST INTEREST OFHERPERSONAL  AND FINANCIALAFFAIRS;
AFFAIRS;aand
nd(b)
(b)
TIL4
TSTILL
THAT STILLBELIEVINGINTHE
BELIEVING  THEFOREGOING,
FOREGOING,PETITIONERS
PETITIONERSACCEPTED
ACCEPTED
THEPROPOSED        SIGNED
THE PROPOSED WARD'S SIGNEDPOWER
POWEROFATTORNEY
OF ATTORNEYON
ON1       NOT
1-15-13,
11-15-13, NOT
CONTRADICTORYTOTHEIR  BELIEFIN THEIRMOTHERMENTAL
CONTRADICTORY TO THEIR BELIEFINTHEIRMOTHER'S MENTAL
LIMITATIONS.
11.
11.
Theabove          admissions arenot
The above judicial admissionsare
onlyconclusive  againstPlaintiffs  herein,
not only conclusive against Plaintiffs herein,
butTHEY ALSO RELIEVE THE OPPOSING PARTIES'BURDEN
but THEY ALSO RELIEVE THE OPPOSING PARTIES' BURDENOF
OF
PROVINGTHE ADMITTED FACT, AND BARS THE PLAINTIFFS
PROVING THE ADMITTED FACT, AND BARS THE PLAINTIFFS
FROMDISPUTING IT.Id
FROM DISPUTING IT.
    Id. 12. Basedontheabove 
      judicialadmissions,  itisconclusively               thatRuby
12. Based on the above judicial admissions, it is conclusively established that Ruby
S.Peterson lacked therequisite  mentalcapacity  toprotect herself make
S. Peterson lacked the requisite mental capacity to protect herselfor
or make
Silverado Appx. 0206
No. 1-15-586-CV 3324
decisions
decisions that  are inthebest
that are  in the bestiinterest
nterestofherpersonal   or financialaffairs
of her personalor           affairsoon
n
November
November 15,
15, 22013,
013,which
whichw ouldiinclude,
would  nclude, without
withoutlimitation,
limitation,thecapacity
the capacityto
to
contract, andPlaintiffs
contract,                arelegally
and Plaintiffs are legally barredfrom disputingit.
fromdisputing it.
13.
13. Therefore,
Therefore,thepurported
the purportedbutdenied
but deniedR evocation
RevocationofPrior DurablePowerofof
of Prior DurablePower
Attorney
Attorney dated
datedNovember
November 15,
15, 2013isnull,
is null,void
voidand
ando
offn
noolegaleffect.
effect.
Likewise,
Likewise,the           butdenied
the purportedbut        StatutoryDurable
deniedStatutory          Powerof
DurablePower    ofAttorney
Attorneydated
dated
15, 2013
November 15,  2013 isnull,
is null,void
void andof                    Asaaresult,
no legal effect.' As
ofno                      result,the
theoonly
nly
persons with
persons withlawful
lawfulauthority
authoritytoact   onbehalf
to acton  behalfofRuby
of RubyS.Peterson’s
S. Peterson'sestate  rtoto
estateoor
make m
make   edical
medical orhealthcare
or healthcaredecisionsonherbehalf
decisionson            areCarol
her behalfare      AnnManley
CarolAnn Manleyand
and
David
David T royPeterson,
Troy Peterson,acting
actingiin
ntheir
theirccapacity
apacity asRuby
as RubyS.Peterson’s
S. Peterson'sduly
duly
appointed
appointed aand
nddesignated  gentsunder
designatedaagents      Mrs. Peterson's1993
underMrs.Peterson’s  1993Durable
DurablePPower
oweroof
f
Attorney.
Attorney.
III.
III. P LAINTIFFS’
PLAINTIFFS' LACK OFSTANDING
LACK OF        & LACKOF
STANDING&LACK OFSUBJECT
SUBJECTMATTER
MATTER
JURISDICTION
JURISDICTION
14.
14. Lacking    legalauthority
any legal authoritytorepresent
Lacking any
RubyS. Peterson,an
to represent RubyS.Peterson,
Incapacitated
an Incapacitated
Person,Plaintiffs Donny LesliePeterson,  Mackey GlenPeterson  andLonny
Person, Plaintiffs Donny Leslie Peterson, Mackey Glen Peterson and Lonny
Petersonlackstandingobring
Peterson lack standingtto bringor
maintain thislawsuit  inthepurported   but
or maintain this lawsuit in the purported but
deniedcapacity
denied capacityas
Next        ofRubyS.Peterson.
as Next Friend of Ruby S. Peterson.
Indeed, RubyPetersonwasmanipulated    intosigningitbased      promises  thatby
Indeed, Ruby Petersonwas   manipulatedwould          basedon
sodoing,Plaintiffs   Donny Peterson andMack Petersoninto signing
m ove hiterout  on promises that by
oftheSilverado
so doing, medical
Plaintiffsand
facility——a          Donny Peterson
healthcare   and Mack
decision    Peterson
expressly    would move her durable
denied               out of the Silverado
toa statutory          powerof
facility—a medical and healthcare decision expressly denied to a statutory durable power of
attomey.
attorney.
Silverado Appx. 0207
No. 1-15-586-CV 3325
15.
15.            isan
Standing is   integral
anintegral component of, andisimplicit
component                     in,the
and is implicit in,     concept ofsubject
the concept of subject
.
matter jurisdiction.      Ass'n o
Tex.Ass'n
jurisdiction. Tex.       offBus. v. Tex.
Bus. v.     Air Control
Tex.Air Control Bd,
    852 S.W.2d 852S
    .W.2d 440,
440,
443(Tex.
443 (Tex.1993).
1993).  Subject
Subject matter
matter jurisdiction isisessential to theauthority
tothe authority of
of a
C.
decide
todecide
court to       a case. Id.Whether
acase.              a trial
    Id. Whether a 
    trial c ourthhas
court   assubject  matter jurisdiction
subject matter jurisdiction is
is
questionof
aa question oflawsubject       denovo
law subject ttoo de novo review.
review. See
See Mayhew v. TownofSunnyvale,
v. Town of Sunnyvale,
964S.W.2d
964        922,928(Tex.1998).
S.W.2d 922, 928 (Tex. 1998).
16.
16.   Ifaa party
If         failsttooestablish
party fails              standing,
establish standing, thetrial        must d
the trial court must   ismiss
dismiss thesuit.
the suit. IInnre
re
344S.W.3d
N.L.D.,
    344 S.W.3d 3 
    3,3377(Tex.
33,     (Tex. App.--Texarkana
App.--Texarkana 2011, no pet.).See,
2011, no             alsoIn
pet.). See, also In
ReMcDaniel,  01-11-00711-CV
Re McDaniel, 01-11-00711-CV (Tex.App.--Houston
(Tex.               [lstDist.]
App.--Houston [1st Dist.] original
10-11-2011).
proceeding, 10-11-2011). The trialcourt
Thetrial courtcan consider
canconsider evidence
evidence       standing
onthe standing
on
issuewhen
issue     evidence
whenevidence isnecessary to
is             determine jurisdictional
to determine jurisdictional facts.
facts. Bland
Bland IISD
SDv.v.
Blue, 34S.W.3d
Blue, 34        547,5555
S.W.3d 547,  55(Tex.
(Tex. 2000).                  evidence
2000). Here, no further evidence isnecessary
is necessary
because Plaintiffs
because Plaintiffs havejjudicially
have  udicially admitted
admitted thatRuby
that RubyS.  Peterson lacked
S.Peterson   lacked m ental
mental
capacity
capacity tocontract  on November
to contract on November 15,15,22013 intheir
013in       Original
their Original Petition,
Petition,
Defendants andtheProposed
Defendants and                   are relieved
Wardare
the Proposed Ward                 the burden o
oftheburden
relieved of            offproving
proving llack
ackof
of
capacity
capacity toexecute
to         theNovember
execute the          15,22013
November 15,      documents,
013documents, andPlaintiffs are
and               barred
are barred
disputing
from disputing herlack
her      ofcapacity.
lack of capacity.
17.
17.   The
The petitioner
petitioner must      the facts e
showthefacts
must show             stablishing
establishing standing
standing existed att thetime
existed a   the time suit
suit
inthetrial
wasfiled in
was         the trial c
court. M.D. A
ourt.MD.    nderson
Anderson Cancer Ctr. v.        52S.W.3d
v. Novak, 52 S.W.3d
704,708
704, 708(Tex.       Inre
2001);In
(Tex.2001);    re Vogel,
    261 S.W.3d 9 
                                                     Vogel, 261S.W.3d  917, 921(Tex.
17,921 (Tex. App.--Houston
App.--Houston
[14thDist.]
[14th Dist.]2008, orig.pproceeding).
2008,orig.   roceeding). Here, Petitioners/Plaintiffs
Here,Petitioners/Plaintiffs havejjudicially
have  udicially
admitted
admitted that capacity didNOT
thatcapacity  did NOT exist. lfthepetitioner
exist. If                failstomeet
the petitioner fails to meet tthis
hisburden,
burden,
Silverado Appx. 0208
No. 1-15-586-CV 3326
thetrial        must dismiss
courtmust
the trial court      dismiss tthe suit. In re NL.D.,344S.W.3d
hesuit.In                         at 37.
    N.L.D., 344 S.W.3d at 37
    .
18.
18.    SincePetitioners/Plaintiffs
Since Petitioners/Plaintiffsarebarred
are            establishing
barredfrom establishing that   heyhad
that tthey had standing to
to
represent RubyS.
represent Ruby S.Peterson    thetime
atthe
Peterson at         suitwas
time suit           thenthey
wasfiled, then      lackstanding
they lack standing to
to
bringsuit
bring suiton
ontheProposed
the Proposed Ward’s         andthe
Ward's behalf, and                dismiss
mustdismiss
the Court must        thesuit
the suit
forlack
for      ofsubject
lack of         matter jurisdiction.
subject matter               In re NL.D.,
jurisdiction. In            344S.W.3d
N.L.D.,
    344 S.W.3d 3
    7.
at37.
at
WHEREFORE,
WHEREFORE, PREMISES
PREMISES CONSIDERED,
CONSIDERED, Movants Jill W. Young a
Movants JillW.Young     ndW.
and W.
RussJones,
Russ       Guardian
Jones,Guardian AdLitem
Ad Litem and
and Attorney Ad Litem, respectively,
Attorney AdLitem,                forRuby
respectively, for      S.
Ruby S.
Peterson, respectfully
Peterson,              pray that,
respectfully pray that, a fternnotice
after   oticeaand oral h
ndoral    earing,
hearing, theCourt  GRANT tthis
the Court GRANT   his
Motion andDISMISS
Motion and DISMISS thePlaintiff``s’ claims
the Plaintiffs' claims brought
brought    their purported butdenied
intheir
in                 but denied
capacity
capacity asNext
as      Friend
Next Friend ofRuby
of      S.Peterson
Ruby S.          forlack
Peterson for      ofstanding
lack of          andlack
standing and lack ofsubject
of subject
matter
matter jurisdiction; andthat
jurisdiction; and thatthe Court
theCourt     allcosts
taxall
tax    costs against
against            forwhich+
Plaintiffs for which
execution
execution        issueififnot
should issue        timely
nottimely paid;and
paid; andforsuch  otherand
for such other    further
andfurther         atlaw
relief, at law or
or
inequity,
in         towhich
equity, to       Movants
which Movants may     themselves
showthemselves
mayshow            justly entitled
justly entitled and for which they
andforwl1ich  they
shall induty
shallin      boundforever
duty bound foreverpray.
submitted,
Respectfully submitted,
UNDERWOOD,
UNDERWOOD,  JONES,
JONES, S CHERRER
SCHERRER
MALOUF,P.L.L.C.
& MALOUF,
W. RUSS
W. RUSS JONES
By:
JONES
TBA ##10968050
TBA   10968050
Richmond A
5177Richmond
5177            Avenue, Suite505
venue,Suite 505
Houston,Texas77056
Houston, Texas 77056
Telephone:  (713)552-1144
Telephone: (713) 552-1144
Facsimile:
Facsimile: (713)781-4448
(713) 781-44482
Silverado Appx. 0209
No. 1-15-586-CV 3327
rjones@ujsmlaw.com
0                                                             ADLITEM RUBY
ATTORNEY AD LITEM FOR RUBY
S.PETERSON,
S.           ANINCAPACITATED
PETERSON, AN INCAPACITATED
PERSON
PERSON
·                                               MACINTYRE,
MACINTYRE,  MCCULLOCH,
MCCULLOCH,
STANFIELD
STANFIELD &YOUNG,
&        L.L.P.
YOUNG, L.L.P.
0                                                        By:
W.YOUNG
JILL W. YOUNG
0                                                               T.B.A.
T.B.A. #00797670
#00797670
2900
2900                 150
Weslayan, Suite 150
Houston,TX
Houston,     77027
TX 77027
Telephone:
Telephone: (713)5572-2900
(713)  72-2900
Facsimile:(713)
Facsimile: (713)572-2902
572-2902
GUARDIAN
GUARDIAN  ADLITEM
AD  LITEM FOR
FOR RUBY S.
RUBY S.
PETERSON, ANINCAPACITATED
PETERSON, AN INCAPACITATED
PERSON
PERSON
CERTIFICATE
CERTIFICATE OFSERVICE
OF SERVICE
I hereby c
Ihereby    ertify
certify tthat  true and
hata true and correct copy oftheforegoing
correct copy of the foregoing instrument
instrument hasbeen
has been
forwarded
forwarded to:
to:
SarahP
Sarah   atelP
Patel  acheco
Pacheco                            Candice
Candice Schwager
Schwager
Kathleen
Kathleen  Tanner
Tanner Beduze
Beduze                         1417Ramada
1417 Ramada Drive
Drive
Crain,Caton
Crain, Caton& &James,   P.C.
James, P.C.                     Houston, Texas 77062
Texas 77062
1401McKinney,
1401 McKirmey,    Suite1700
Suite 1700
Houston,Texas77010
Houston,  Texas 77010
Philip
Philip M.Ross
M. Ross                                Josh K.Davis
Josh K.  Davis
1006Holbrook
1006  Holbrook Road
Road                           Lewis,
Lewis, Brisbois,
Brisbois, Bisgaard &Smith, L.L.P.
Bisgaard &       L.L.P.
SanAntonio,
San Antonio, Texas 78218
Texas 78218                      Weslayan
Weslayan Tower,   Suite1400
Tower, Suite 1400
24Greenway
24 Greenway Plaza
Plaza
Byfacsimile
By facsimile and/or        on the
and/or e-file on the 17thdayofOctober,
day of October, 2014.
2014.
W.RUSS
W. RUSS JONES
JONES
Silverado Appx. 0210
No. 1-15-586-CV 3328
TAB 38
FILED
10/27/2014 9:02:08 PM
Stan Stanart
County Clerk
DATA-ENTRY                                                                          Harris County
PICK
PICKUP
UP THISDATE
DATE
PROBATE
NO.427,208
NO. 427,208                                coulir1
IN RE: GUARDIANSHIPOF
OF              §§              IN THE PROBATECOURT
INTHEPROBATE    COURT
RUBYPETERSON,
RUBYPETERSON,
§§             NUMBERONE
NUMBER ONE
PROPOSED                           §§             HARRIS        TEXAS
PROPOSEDWARD
WARD                                       HARRIS COUNTY, TEXAS
CAUSENO.2014-40980
CAUSE NO. 2014-40980
MACKEY ("MACK")GLENPETERSON,§     INTHEDISTRICTCOURT
MACKEY ("MACK") GLEN PETERSON, § IN THE DISTRICT COURT
PETERSON,Individually,Next  §
PETERSON, Individually,
DON  Next  Friend
LESLIE              §
ofRUBY  PETERSON,
of RUBY PETERSON, DON LESLIE                  §
PETERSON,             andasNext
PETERSON, Individually  and and
as Next           §
ofRUBYPETERSON,
Friend, of RUBY PETERSON, andand
PETERSON,                            §
LONNY
LONNY PETERSON,     Individually and
of RUBYS.PETERSON,                §
Next
Next Friend of RUBY S. PETERSON,
§
Plaintiffs,
V.                                            §        COUNT TEXAS
HARRIS
V.                                                 HARRIS COUNTY, TEXAS
CAROLANNE                                     §
CAROLPETERSON,
DAVID ANNE MANLEY,
SILVERADO                       §
DAVID PETERSON,
SENIOR          SILVERADO
LIVING,INC.,d/b/a                       §
SENIOR    LIVING, INC., d/b/a Silverado
Living                                  §
Senior Living —
— Sugar Land,
Defendants.                              §               DISTRICT
129THJUDICIAL
Defendants.                                  129TH JUDICIAL DISTRICT
RESPONSEINOPPOSITION  TODEFENDANTS' MOTIONTODISMISS
PURSUANT
RESPONSE IN OPPOSITION  TOTRCP
TO      RULE91MOTION TO DISMISS
DEFENDANTS'
PURSUANT TO TRCP RULE 91a
WRIGHT:
JUDGELLOYD
TOTHEHONORABLE
TO THE HONORABLE JUDGE LLOYD WRIGHT:
DonPeterson,LonnyPetersonandMackPeterson              thisResponseto in
Don Peterson, Lonny Peterson and Mack Peterson file this Response to in
1
1
Silverado Appx. 0211
No. 1-15-586-CV 3347
Rule
toDismiss toTRCP
Motion                 andwould
91a,
toDefendants‘
Opposition to Defendants' Motion to Dismiss Pursuant to TRCP Rule 91a, and would
0                       follows:
A
showthe
show the Courtas
as follows:
INTRODUCTION
INTRODUCTION
i 0
U1      11                filed          25,2014.
onJuly
thissuit
Plaintiffs filed this suit on July 25, 2014.
andentered anappearance    onJuly28,2014.
22       Defendants waived service and enteredan
Defendants                                  appearance on July 28, 2014.
theirmotionto          onSeptember   25,2014.
33 Defendants
Defendants filed their motion to dismiss on September 25, 2014.
CO
UNDISPUTED     MATERIAL     FACTS
UNDISPUTED MATERIAL FACTS
is aninvoluntary residentof Silverado  SeniorLiving,
4        Ruby            ("Ruby")
Peterson ("Ruby") isan
RubyPeterson                   involuntary resident of Silverado Senior Living,
4
Silverado  SeniorLiving SugarLand("Silverado").
Inc.d/b/a
Inc.  d/b/a Silverado Senior Living— - Sugar Land ("Silverado").
durablepowerofattorneyappointing      CarolManley
5           1993,R
In 1993,
In          ubyexecuted
Ruby  executedaa durable power of attorney appointing Carol Manley
5
2013,Ruby
("Carol")aand
("Carol")     ndDavid   Peterson("David").However,on November15,
David Peterson (''David"). However, on November 15, 2013, Ruby
appointing
Revocation  ofPowerofAttorneyandnewpowersofattorney
executedaa Revocation of Power of Attorney and new powers of attorney appointing
her       DonandMackPetersonasheragents.
hersons
sons Don and Mack Peterson as her agents.
Dr. Christopher
6       There   are conflictingdiagnosesregardingRuby``scapacity.
There are conflicting diagnoses regarding Ruby's capacity. Dr. Christopher
6
dementia,  althoughhe later
Merkl,   M.D.hasreportedthatRubyhas severe
Merkl, M.D. has reported that Ruby has severe dementia, although he later testified
M.D.reportedthatRuby
that she  has mildto moderatedementia.Dr.MarkKunik,
that she has mild to moderate dementia. Dr. Mark Kunik, M.D. reported that Ruby
Dr.JohnTennison,   M.D.
has mild   to moderatedementiaandthatshelackscapacity.
has mild to moderate dementia and that she lacks capacity. Dr. John Tennison, M.D.
butto a reasonabledegreeof
reportedthatRubyhas mildto moderatedementia,
reported that Ruby has mild to moderate dementia, but to a reasonable degree of
of attorneyon
medical          sheprobablyhadcapacityto executenewpowers
medical certainty, she probably had capacity to execute new powers of attorney on
15,2013.
November
November 15, 2013.
2
Silverado Appx. 0212
No. 1-15-586-CV 3348
RULE 1aSTANDARD
RULE991a STANDARD
77       TRCPRule91a
TRCPRule 91a allowsaapartyto  movethe
party tomove
groundless cause
the courttoto dismissa a groundless cause
The rule
of action. The
of                          in part:
rule provides inpart:
dismiss causeofaction       thegroundsthatithas
[A]
[A]party may moveto
partymaymove  to dismissaacause of actionon
on the grounds that it has
basisinlaw
nobasis
no            orfact.
in lawor fact. A
ofaction  has obasis
cause of action hasnno
A cause
inlawifthe
basis in law if the
allegations,taken
allegations,       astrue,
takenas
togetherwith inferencesreasonablydrawn
true, together with inferences reasonably drawn
entitle theclaimant tothereliefsought.     Acause  of
from  them,do
fromthem,  donot
not entitle the claimant to the relief sought. A cause of
actionhas nobasisin
action hasno
factif reasonable
basis in fact ifno
personcouldbelievethefacts
no reasonable person could believe the facts
pleaded.
pleaded.
TRCPRule 9la.
TRCP Rule 91a.
ARGUMENT
ARGUMENT
A.       Plaintiffs          inthiscase.
havestanding
A.       Plaintiffs have standing in this case.
8                  havestandingtopursueclaimsonRuby'sbehalf,andthiscaseshould
Plaintiffs
8        Plaintiffs have standing to pursue claims on Ruby's behalf, and this case should
not be dismissedfor wantof subjectmatterjurisdiction.Plaintiffsbringsuit on
not be dismissed for want of subject matter jurisdiction. Plaintiffs bring suit on
Ruby'sbehalfas nextfriendandattomeys-in-fact.  Claimsbroughton Ruby'sbehalf
Ruby's behalf as next friend and attorneys-in-fact. Claims brought on Ruby's behalf
forlackofstanding.
shouldnotbe dismissed
should not be dismissed for lack of standing.
9    AlthoughRuby executeda durablepowerof attorney,whichincludeda
9    Although Ruby executed a durable power of attorney, which included a
medicalpowerof attorney, in 1993,thatpowerof attorneywasexpressly      revokedon
medical power of attorney, in 1993, that power of attorney was expressly revoked on
November  15,2013,andtherevocation     wasrecordedinthe          publicrecordsof
November 15, 2013, and the revocation was recorded in the official public records of
Texas.3
HarrisCounty,
Harris County, Texas.
3
Silverado Appx. 0213
No. 1-15-586-CV 3349
Thereis
10 There
10                                       ubyhad
hetherRRuby
evidencewwhether
is conflictingevidence                            to executea acontract
had capacitytoexecute      contract
0      in November2013.
inNovember                the T
However, the
2013. However,       exas
Texas Healthand
Health     Safety Code,Section 166.155
and Safety Code, Section 166.155
provides               ofaamedical
or revocationof
providesffor
of attorneyasasfollows:
power ofattorney
medicalpower                follows:
(a) Amedicalpowerooff attorneyis
Sec. 166.155. REVOCATION.
Sec.166.155.  REVOCATION. (a) A medicalpower    attorney is
revoked by:
revoked by:
(1)  oralor written notification
(1) oral or        notificationat
atany
timeby the           to the
any time by the principal to the
CO
agent  raalicensed
agentoor            r certified
licensedoor
health residential
certified healthor
careprovideror
or residential care provider or
by    otheract evidencing             intentto revokethe power,
any other act evidencingaa specific intent to revoke the power,
by any
withoutregard to whetherthe principalis competentor the
without regard to whether the principal is competent or the
mentalstate.
principal's
principal's mental state.
of medicalpowerof attorneysignedby Rubywas
therevocation
11 Therefore,
11      Therefore, the revocation of medical power of attorney signed by Ruby was
effective"withoutregardto whetherthe principalis competentor the principal's
effective "without regard to whether the principal is competent or the principal's
Rubydoesnothaveagentspursuantto anymedicalpowerof
mentalstate.Presently,
mental state. Presently, Ruby does not have agents pursuant to any medical power of
attorney.
attorney.
factquestionsremainwhetherRuby'sexecutionof newdurable
12 Additionally,
12      Additionally, fact questions remain whether Ruby's execution of new durable
powersof attorneyonNovember    15,2013waseffective.Construing    contested facts
powers of attorney on November 15, 2013 was effective. Construing contested facts
in favorofthe Plaintiffsindicatesthattherevocationof the 1993powerof attorney
in favor of the Plaintiffs indicates that the revocation of the 1993 power of attorney
on November15,2013was                  andtheexecutionof newpowersof attorney
on November 15, 2013 was effective, and the execution of new powers of attorney
werealsoeffective.
were also effective.
prerequisite
13 Standingis a constitutional        to                suit.           v
13     Standing is a constitutional prerequisite to filing suit. Heckman v Williamson
4
Silverado Appx. 0214
No. 1-15-586-CV 3350
S.W.3d137,150(Tex.2012).                  haveallegedthattheypersonally
Ciy., 369
    369 S.W.3d 137
    , 150 (Tex. 2012). Plaintiffs have alleged that they personally
wrongfulactsand/or
resultof Defendants'
harm andinjury
sufferedharmand          asaaproximate
injuryas   proximate result of Defendants' wrongful acts and/or
omissions. T
omissions. To  wit, Defendants
o wit,           retaliatedagainstDonandhis wife,Mackandhis
Defendants retaliated against Don and his wife, Mack and his
wife,and Lonnyas well as Rubyfor revokingthe 1993powerof attorneyon
wife, and Lonny as well as Ruby for revoking the 1993 power of attorney on
allegeand would provethat     Rubyhad a rightto
November115,
November         2013. Plaintiffs allege and wouldprove
5,2013.                                        that Ruby had a right to
her priormedical
revokeherprior
revoke                     owerofofattomey
medicalppower
pursuantto theTexasHealthandSafety
attorney pursuant to the Texas Health and Safety
Code, Section 166.155,andDefendants'  retaliation waswrongful.In fact,
Code, Section 166.155, and Defendants' retaliation was wrongful. In fact,
Defendants‘ retaliation asknowing,    intentionalandmalicious   becausetheyknewor
Defendants' retaliationwwas knowing, intentional and malicious because they knew or
knownthattheyhad noauthority       topreventthePlaintiffsfromvisiting
should  have known that they hadno
shouldhave                             authority to prevent the Plaintiffs from visiting
each otherandthatdenyingvisitation     wouldcauseirreparable   harmandinjuryto the
each other and that denying visitation would cause irreparable harm and injury to the
Plaintiffs.
Plaintiffs.
Therefore,Caroland Davidwerewithoutauthorityto preventRubyfrom
14 Therefore, Carol and David were without authority to prevent Ruby from
Silverado becausetheirpowerof attorney   wasrevoked  on November 15,
leaving
leaving Silverado because their power of attorney was revoked on November 15,
2013,andSilverado   wrongfully deniedDon,MackandRubyaccessto eachotherfor
2013, and Silverado wrongfully denied Don, Mack and Ruby access to each other for
haveproperly
thepurposeof movingheroutofSilverado.Plaintiffssubmitthatthey
the purpose of moving her out of Silverado. Plaintiffs submit that they have properly
pleadedfacts,whichdemonstrate    thattheyhavestandingto bringclaimsonbehalfof
pleaded facts, which demonstrate that they have standing to bring claims on behalf of
Ruby.
Ruby.
standingto
15 Becauseit is clearfromthe Plaintiffs'pleadingsthat theyhave
15    Because   it is clear from  the Plaintiffs' pleadings that they have  standing to
o fRuby,t heCourt h asjurisdictionto heartheir claims, andthe
bringclaimsonbehalf
bring claims on behalf of Ruby, the Court has jurisdiction to hear their claims, and the
Courtlacksdiscretion   to dismissPlaintiffs'suitagainsttheDefendants    initsentirety.
Court lacks discretion to dismiss Plaintiffs' suit against the Defendants in its entirety.
5
5
Silverado Appx. 0215
No. 1-15-586-CV 3351
at150.
369S.W.3d
    Heckman, 369 S.W.3d at 150
    .
Defendants
Defendants
Ruby,Don,MackandLonny.
toRuby, Don, Mack and Lonny.
areliable to
are
B.
B.
t heyknew or        haveknownthatthe 1993
liable because
16 Defendants
Defendants are liable because they knew or should have known that the 1993
are
continued reliance
16                                               andtheir
15,2013,
of           was           onNovember
power of attorney was revoked on November 15, 2013, and their continued reliance
noticeoftherevocation,    which
unreasonable   after they  had  express
was arbitrary
wasarbitrary  andunreasonable after they had express notice of the revocation, which
and
Public  Records.     Texas  HealthandSafetyCode,
Harris County
the Harris
wasrecordediinn the
was recorded                 County Public Records. Texas Health and Safety Code,
166.155
Section166.155
Section
statesC   odeprovides   in relevant
17    Specifically,
Specifically, the Texas E
the Texas  Estates Code provides in relevant part:
faithon
thirdpartywhoreliesin good
17
If a durable  power ofattorney
of attorney  i
iss used,aa third
used,         party who  relies in good faith on
lf a durablepower                                                                   of
performed     in the scope   of the power
the acts         attorneyin   fact
in fact or   agent
oragent performed in the scope of the power of
the actsofof an
anattorney
not liable
isnot            theprincipal.
to the principal.
attorneyis
attorney       liable to
751.056.
Section
Texas
Texas Estates Code
Estates Code Section 751.056.
thatDefendants   didnotrelyon theactsof
Plaintiffsaallege
Plaintiffs        and would
llegeand  would prove
prove that Defendants did not rely on the acts of
18                                                                                  knewor
15,2013becauseDefendants
18
in  good  faith after November
Carol  and
Caroland    David
David  in  good faith after November    15, 2013  because   Defendants  knew or
authority t o actafter the 1993power
andCarol
Davidand           lacked
Carollacked
should   have known
shouldhave   known thatthatDavid                     authority to act after the 1993 power
Therefore,  Defendant  areliabletoRuby.
of attorney w
ofattorney    asrevoked.
was  revoked. Therefore,    Defendant are liable to Ruby.
provides:
H ealth and  Safety Code,Section166.155
Texas
theTexas Health and Safety Code, Section 166.155 provides:
19 Additionally,
19
Additionally, the
(a)  A medical  power  ofattorneyis revokedby:
REVOCATION.
REVOCATION.        (a) A  medical  power  of attorney is revoked by:
notification atany  timeby the principalto the
anytime
(1) oralororwritten notification
(1)oral                             at           by the principal to the
certified healthor  residential careprovideror
orresidential care
agent or
agentora a  licensed
licensed  or
or certified health                     provider or
6
6
Silverado Appx. 0216
No. 1-15-586-CV 3352
by any other
by any otheract              specificintent
evidencingaaspecific
actevidencing
revokethe power,
intenttoto revoke thepower,
without regardtotowhetherthe
without                               is competentororthe
whether the principal iscompetent    the
principal'smental
mentalstate.
state.
20      Plaintiffsallege
would
allegeand
reliance Carol
thatDefendants'
prove that Defendants' relianceon
and wouldprove                            on Carol
20
nderthe1993
uthorityuunder
aauthority                   of attomey not
David'sppurported
and David's
and          urported                         power of attorneywas
the 1993power              was not
faithafterthat powerof                revokedon November15,
in
in good
good faith after that power of attomey
attorneywas
was revoked on November 15,
2013because therevocation asrecorded   in thepublicrecordsof Harris
2013 because the revocationwwas recorded in the public records of Harris
County,Texas,andDefendants   hadexpressnoticeofthatfact. Therefore,
County, Texas, and Defendants had express notice of that fact. Therefore,
Silverado
Silveradocan
be held liableto Rubyfor all its wrongfulacts and/or
can be held liable to Ruby for all its wrongful acts and/or
whichwereperformed
omissions,                     inbadfaithrelianceon the1993power
omissions, which were performed in bad faith reliance on the 1993 power
15,2013.
onNovember
of attorneybeginning
of attorney beginning on November 15, 2013.
21    Plaintiffs'claimshave a basisin law, and they shouldnot be
21      Plaintiffs' claims have a basis in law, and they should not be
dismissedbecause eachofPlaintiffs'  claims, taken astrue,together   with
dismissed because each of Plaintiffs' claims, taken as true, together with
inferencesreasonablydrawntherefrom,entitlePlaintiffsto the relief
inferences reasonably drawn therefrom, entitle Plaintiffs to the relief
can be held
sought,i.e., 1) Plaintiffshavestanding,and2) Defendants
sought, i.e., 1) Plaintiffs have standing, and 2) Defendants can be held
liablefor theirbadfaithrelianceona medicalpowerof attorneythathad
liable for their bad faith reliance on a medical power of attorney that had
beenrevokedas a matterof law. Therefore,   dismissalis not appropriate
been revoked as a matter of law. Therefore, dismissal is not appropriate
becausePlaintiffscanprovefacts,whichwouldentitlethemto relieffrom
because Plaintiffs can prove facts, which would entitle them to relief from
Defendants.                    at150.7
369S.W.3d
Defendants.
    Heckman, 369 S.W.3d at 150
    .
7
Silverado Appx. 0217
No. 1-15-586-CV 3353
PRAYER
PRAYER
PREMISESCONSIDERED,
WHEREFORE,PREMISES
WHEREFORE,                               respectfully        the
CONSIDERED, Plaintiffs respectfully request the
kx
Living,Inc.,TanaMcMillan    andLinda
Court
Courttto                 of SilveradoSenior
deny the motionof
o denythemotion                 Senior Living, Inc., Tana McMillan and Linda
Lavinson in itsentirety.
Lavinsoninits
alsorequestthat
entirety. Plaintiffs alsorequest
theCourt  taxcostsagainst   the
that the Court tax costs against the
shouldissueif not   timelypaid. Plaintiffspray   for
for whichexecution
Defendants,forwhich
Defendants,           execution should issue if not timely paid. Plaintiffs pray for
andfurtherrelief, towhich   they maybebejustly entitled.
such other and further relief,to
suchother                        which theymay      justly entitled.
submitted,
Respectfully
Respectfully submitted,
210/326-2
Phone:
PhilipM.Ross,SBN17304200
1006  Holbrook
Philip M. Ross,
San
1006Antonio,
Email:
By: Philip
Holbrook
Road
SBN 17304200
Texas78218
Road
San Antonio, Texas 78218
Phone:ross_law@hotmail.com
Email:   210/326-2100
ross_law@hotmail.com
By: /s/ Phili M.Ross
M.Ross
/s/ Philip M. Ross
Philip M. Ross
CandiceSchwager
1417Ramada
Candice
1417
Drive
Schwager
Ramada  Drive
Houston,TX77062
Phone: 832-315-8489
Houston, TX 77062
FAX:  713-583-0355
Phone: 832-315-8489
FAX: 713-583-0355
AttorneysforDonPeterson,
Peterson
Attorneys
Lonny Peterson andMack
for Don Peterson,
Lonny Peterson and Mack
Peterson
8
Silverado Appx. 0218
No. 1-15-586-CV 3354
Certificateof
of Service
hereby certifythat
IIhereby                trueand
thataatrue              copyoftheabove
and correctcopy  of the above documentwas
was e-filed
and
and sent byemail
sent by emailoorelectronic  deliveryb y
r electronic delivery by agreementto:
agreement   to:
Sarah
Sarah Pacheco
Jill
JillY oung
Young
Maclntyre,McCulloch, Stanfield,Young, LLP
KathleenBeduze
Kathleen Beduze                         Maclntyre, McCulloch, Stanfield, Young, LLP
Suite150
aton&& James,PC                2900Weslayan,
Crain,CCaton
Crain,                 PC               2900 Weslayan, Suite 150
1401 McKinneySSt.,
1401McKinney     t.,Suite 1700
Suite 1700         Houston,TX77027
Houston,  TX 77027
Houston,TX77010
Houston, TX 77010                      JoshDavis
Josh Davis
RussJones                              LewisBrisbois Bisgaard &Smith,
Lewis Brisbois Bisgaard
LLP
& Smith, LLP
Russ Jones       Scherrer&             WeslayanTower,  Suite 1 400
Underwood, Jones,
Underwood, Jones, Scherrer &            Weslayan Tower,  Suite 1400
Malouf,PLLC                            24Greenway  Plaza
24 Greenway Plaza
Malouf, PLLC                           Houston,TX 77046
5177RichmondAve.,Suite 505              Houston, TX 77046
5177 Richmond Ave., Suite 505
Houston,TX77056
Houston, TX 77056
onOctober 27,2014.
on October 27, 2014.
/s/       M.Ross
Is/ Philip
PhilipM.RossM. Ross
Philip M. Ross
9
Silverado Appx. 0219
No. 1-15-586-CV 3355
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Document Info

Docket Number： 01-15-00567-CV

Filed Date： 12/14/2015

Precedential Status： Precedential

Modified Date： 9/30/2016