in the Guardianship of Ruby Peterson

ACCEPTED
01-15-00567-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/16/2015 7:38:25 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00567-CV
IN THE COURT OF APPEALS FOR FILED IN
1st COURT OF APPEALS
THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS
SITTING AT HOUSTON 11/16/2015 7:38:25 PM
CHRISTOPHER A. PRINE
Clerk
DON PETERSON, MACKEY PETERSON, TONYA PETERSON, AND
LONNY PETERSON,
Appellants,
v
SILVERADO SENIOR LIVING, INC., d/b/a SILVERADO SENIOR
LIVING – SUGAR LAND,
Appellee.
On Appeal from
Probate Court No. One, Harris County, Texas
Honorable Lloyd Wright, presiding
Trial Court Cause No. 427,208-401
on transfer from the 129th Judicial District Court,
Harris County, Texas, Cause No. 2014-40980
APPELLANTS' BRIEF
Respectfully submitted,
Philip M. Ross
ORAL ARGUMENT REQUESTED State Bar No. 017304200
1006 Holbrook Road
San Antonio, Texas 78218
Phone: 210/326-2100
Email: ross_law@hotmail.com
By: /s/ Philip M. Ross
Philip M. Ross
Attorney for Appellants
IDENTITY OF PARTIES AND COUNSEL
Party: Counsel:
Don Peterson Philip M. Ross
Mackey Peterson State Bar No. 17304200
Tonya Peterson 1006 Holbrook Road
Lonny Peterson San Antonio, Texas 78218
Phone: 210/326-2100
Appellants Email: ross_law@hotmail.com
Silverado Senior Living, Inc. Josh Davis
dba Silverado Senior Living - State Bar No. 24031993
Sugar Land Lewis Brisbois Bisgaard & Smith,
LLP
Weslayan Tower, Suite 1400
Appellee 24 Greenway Plaza
Houston, Texas 77046
Phone: 713-659-6767
Email: josh.davis@lewisbrisbois.com
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ..………………………… ii
TABLE OF CONTENTS ……………………………………………… iii
INDEX OF AUTHORITIES ………………………………………….. vii
STATEMENT OF THE CASE ………………………………..………. 2
STATEMENT OF JURISDICTION ………………………………….. 3
STATEMENT REGARDING THE RECORD….……………………… 3
ISSUES PRESENTED ………………………………………………….. 4
ISSUE NO. 1: Whether the trial court granted Silverado's Rule
91a motion to dismiss Appellants' claims for false
imprisonment, assault and battery, and conspiracy in error on
November 10, 2014, notwithstanding Appellants' subsequently
filed Fifth Amended Petition, which adequately stated facts
supporting their claims.
ISSUE NO. 2: Whether the trial court granted Silverado's
plea to the jurisdiction in error on January 9, 2015, although
Appellants' Fifth Amended Petition stated facts supporting the
trial court's jurisdiction over their claims for relief.
ISSUE NO. 3: Whether the trial court granted Silverado's
Rule 91a motion to dismiss Appellants' claims for breach of
trust and/or breach of fiduciary duty in error on January 9,
2015, although Appellants' Fifth Amended Petition adequately
stated facts supporting the trial court's jurisdiction over their
claims for relief.
iii
ISSUE NO. 4: Whether the trial court denied Appellants'
motion to reconsider the Orders granting Silverado's Rule 91a
motion to dismiss and motion for sanctions in error on January
9, 2015, although Appellants' Fifth Amended Petition
adequately stated facts supporting the trial court's jurisdiction
over their claims for relief.
ISSUE NO. 5: Whether the trial court granted Silverado's
application for attorney's fees pursuant to Rule 91a Order
entered on November 10, 2014 in error on January 9, 2015,
although Appellants' Fifth Amended Petition adequately stated
facts supporting the trial court's jurisdiction over their claims
for relief, such that the motions for dismissal of Appellants'
claims should have been denied.
ISSUE NO. 6: Whether Appellants may be entitled to
declaratory judgment as a matter of law that the 1993 Durable
Power of Attorney appointing Carol Manley and David was
revoked as of November 15, 2013 pursuant to Tex. Civ. Prac. &
Rem. Code 37.001-37.005 et seq.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND … 5
STANDARD OF REVIEW …......……………………………………. 15
SUMMARY OF ARGUMENT ………………………………………. 19
ARGUMENT AND AUTHORITIES ………………………………….. 20
ISSUE NO. 1: Whether the trial court granted Silverado's Rule
91a motion to dismiss Appellants' claims for false
imprisonment, assault and battery, and conspiracy in error on
November 10, 2014, notwithstanding Appellants' subsequently
filed Fifth Amended Petition, which adequately stated facts
supporting their claims.
…................................................................................................... 20
iv
ISSUE NO. 2: Whether the trial court granted Silverado's
plea to the jurisdiction in error on January 9, 2015, although
Appellants' Fifth Amended Petition stated facts supporting the
trial court's jurisdiction over their claims for relief.
…................................................................................................... 24
ISSUE NO. 3: Whether the trial court granted Silverado's
Rule 91a motion to dismiss Appellants' claims for breach of
trust and/or breach of fiduciary duty in error on January 9,
2015, although Appellants' Fifth Amended Petition adequately
stated facts supporting the trial court's jurisdiction over their
claims for relief.
…................................................................................................... 25
ISSUE NO. 4: Whether the trial court denied Appellants'
motion to reconsider the Orders granting Silverado's Rule 91a
motion to dismiss and motion for sanctions in error on January
9, 2015, although Appellants' Fifth Amended Petition
adequately stated facts supporting the trial court's jurisdiction
over their claims for relief.
….................................................................................................... 25
ISSUE NO. 5: Whether the trial court granted Silverado's
application for attorney's fees pursuant to Rule 91a Order
entered on November 10, 2014 in error on January 9, 2015,
although Appellants' Fifth Amended Petition adequately stated
facts supporting the trial court's jurisdiction over their claims
for relief, such that the motions for dismissal of Appellants'
claims should have been denied.
….................................................................................................... 28
ISSUE NO. 6: Whether Appellants may be entitled to
declaratory judgment as a matter of law that the 1993 Durable
Power of Attorney appointing Carol Manley and David was
revoked as of November 15, 2013 pursuant to Tex. Civ. Prac. &
Rem. Code 37.001-37.005 et seq.
….................................................................................................... 34
v
CONCLUSION and PRAYER……………………….……………….... 36
CERTIFICATION ……………………………………….....…………... 36
CERTIFICATE OF COMPLIANCE …................................................... 37
CERTIFICATE OF SERVICE …………………………….……...…... 37
vi
INDEX OF AUTHORITIES
CASES PAGE(S)
Ashcroft v. Iqbal
556 U.S. 662 (2009) …................................................................. 18
Bart Turner & Assocs. v. Krenke
No. 3:13–CV–2921–L, 2014 WL 1315896, at *5
(N.D.Tex. Mar. 31, 2014) …......................................................... 19
Bell Atl. Corp. v. Twombly
550 U.S. 544 (2007) …................................................................. 18
City of Keller v. Wilson
168 S.W.3d 802 (Tex.2005) …..................................................... 17
Erickson v. Pardus
551 U.S. 89 (2007) ….................................................................... 18
Godaddy.com, LLC v. Toups
429 S.W.3d 752 (Tex. App., 2014) …........................................ 16, 18
Harris Cnty. Hosp. Dist. v. Textac Partners I
257 S.W.3d 303 (Tex.App.-Houston
[14th Dist.] 2008, no pet.) …......................................................... 16
In re Katrina Canal Breaches Litig.
495 F.3d 191 (5th Cir.2007) …...................................................... 17
In the Matter of Estate of Perry
No. 04-06-00205-CV (Tex. App. 8/15/2007) …............................ 24
James v. Brown
637 S.W.2d 914 (Tex., 1982) …..................................................... 24
Lehmann v. Har-Con Corp.
39 S.W.3d 191 (Tex. 2001) …....................................................... 3
vii
CASES PAGE
Massey v. Armco Steel Co.
652 S.W.2d 932 (Tex. 1983) ….................................................... 24
Moore's Inc. v. Garcia
604 S.W.2d 261 (Tex.Civ.App.--Corpus Christi 1980
writ ref'd n.r.e.) …......................................................................... 24
Nexion Health at Beechnut, Inc. v. Paul
335 S.W.3d 716 (Tex.App.-Houston
[14th Dist.] 2011, no pet.) …........................................................ 16
Operation Rescue-National v. Planned Parenthood
of Houston & Southeast Tex., Inc.
975 S.W.2d 546 (Tex. 1998) ….................................................... 24
Roark v. Allen
633 S.W.2d 804 (Tex.1982) …..................................................... 19
Scanlan v. Tex. A & M Univ.
343 F.3d 533 (5th Cir.2003) …..................................................... 18
Singleton v. Casteel
267 S.W.3d 547 (Tex.App.-Houston
[14th Dist.] 2008, pet. Denied) ….............................................. 16, 18
Tex. Dep't of Parks & Wildlife v. Miranda
133 S.W.3d 217 (Tex.2004) …................................................... 16, 17
Wooley v. Schaffer
447 S.W.3d 71 (Tex. App., 2014) …................................... 15, 16, 17, 19
viii
STATE STATUTES AND RULES PAGE(S)
Federal Rule of Civil Procedure 12(b)(6).10 …........................... 17, 18
Tex. Civ. Prac. & Rem. Code Ann. § 51.014 ................................... 3
Tex. Civ. Prac. & Rem. Code 37.001-37.005 et seq. ….................. 34
TEX. R. APP. P. 25.1(a) .................................................................. 3
TRCP Rule 91a …....................................................................... passim
ix
No. 01-15-00567-CV
IN THE COURT OF APPEALS FOR
THE FIRST DISTRICT OF TEXAS
SITTING AT HOUSTON
DON PETERSON, MACKEY PETERSON, TONYA PETERSON, AND
LONNY PETERSON,
Appellants,
v
SILVERADO SENIOR LIVING, INC., d/b/a SILVERADO SENIOR LIVING –
SUGAR LAND,
Appellee.
On Appeal from
Probate Court No. One, Harris County, Texas
Honorable Lloyd Wright, presiding
Trial Court Cause No. 427,208-401
on transfer from the 129th Judicial District Court,
Harris County, Texas, Cause No. 2014-40980
APPELLANTS' BRIEF
TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:
NOW COME, Don Peterson, Mackey Peterson, Tonya Peterson, and
Lonny Peterson (“Appellants”), by and through the undersigned attorney at law,
1
and file this appeal from the Final Orders of the trial court dismissing their
claims against Silverado Senior Living, Inc., dba Silverado Senior Living –
Sugar Land (“Silverado”) pursuant to TRCP Rule 91a and awarding sanctions
and attorney's fees, and would show the Court as follows:
STATEMENT OF CASE
Appellants filed their Fifth Amended Petition on December 4, 2014
seeking a declaratory judgment regarding the validity of powers of attorney
executed in 1993 and revoked by Ruby S. Peterson (“Mrs. Peterson”) on
November 15, 2013, as well as, claims for false imprisonment, assault and
battery, breach of fiduciary duty and conspiracy related to Silverado's conduct
related to Appellants and their mother Mrs. Peterson. (CR2 page 1537-1555).
The Appellants' claims accrued, when Mrs. Peterson's adult children Carol Ann
Manley and David Peterson, acting pursuant to 1993 powers of attorney, denied
Mrs. Peterson's repeated requests to leave Silverado, which disregarded Mrs.
Peterson's execution of a new power of attorney and revocation of her prior
powers of attorney. Appellants claim that they suffered damages as a proximate
result of Silverado's actions falsely imprisoning Mrs. Peterson, preventing
Appellants from visiting her, involuntarily drugging her, breaching its fiduciary
duty, and conspiring with Carol Ann Manley and David Peterson to violate
2
Appellants' and Mrs. Peterson's rights.
The Appellants respectfully submit that the trial court granted Silverado's
motions for dismissal and attorney's fees pursuant to TRCP Rule 91a in error
because Appellants' Fifth Amended Original Petition alleges facts that support
all their claims for which relief may be granted. (CR2 page 1537-1555).
STATEMENT OF JURISDICTION
Appellants invoked the jurisdiction of this Court by filing their notice of
this appeal pursuant to TEX. R. APP. P. 25.1(a). Appellants submit that they
have complied with all conditions precedent to invoking the jurisdiction of the
First Court of Appeals. As a general rule, a party may appeal only from a final
judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). This
Court has jurisdiction over appeals from final decisions of trial courts and from
interlocutory orders as provided by statute. Id.; see Tex. Civ. Prac. & Rem. Code
Ann. § 51.014 (Vernon Supp. 2006).
STATEMENT REGARDING THE RECORD
The Clerk’s Record consisting of three volumes has been filed. The
Reporter's Record consisting of thirteen volumes has been filed.
3
ISSUES PRESENTED
ISSUE NO. 1: Whether the trial court granted Silverado's Rule 91a motion to
dismiss Appellants' claims for false imprisonment, assault and battery, and
conspiracy in error on November 10, 2014, notwithstanding Appellants'
subsequently filed Fifth Amended Petition, which adequately stated facts
supporting their claims.
ISSUE NO. 2: Whether the trial court granted Silverado's plea to the
jurisdiction in error on January 9, 2015, although Appellants' Fifth Amended
Petition stated facts supporting the trial court's jurisdiction over their claims for
relief.
ISSUE NO. 3: Whether the trial court granted Silverado's Rule 91a motion to
dismiss Appellants' claims for breach of trust and/or breach of fiduciary duty in
error on January 9, 2015, although Appellants' Fifth Amended Petition
adequately stated facts supporting the trial court's jurisdiction over their claims
for relief.
ISSUE NO. 4: Whether the trial court denied Appellants' motion to reconsider
the Orders granting Silverado's Rule 91a motion to dismiss and motion for
sanctions in error on January 9, 2015, although Appellants' Fifth Amended
Petition adequately stated facts supporting the trial court's jurisdiction over their
4
claims for relief.
ISSUE NO. 5: Whether the trial court granted Silverado's application for
attorney's fees pursuant to Rule 91a Order entered on November 10, 2014 in
error on January 9, 2015, although Appellants' Fifth Amended Petition
adequately stated facts supporting the trial court's jurisdiction over their claims
for relief, such that the motions for dismissal of Appellants' claims should have
been denied.
ISSUE NO. 6: Whether Appellants may be entitled to declaratory judgment as
a matter of law that the 1993 Durable Power of Attorney appointing Carol
Manley and David was revoked as of November 15, 2013 pursuant to Tex. Civ.
Prac. & Rem. Code 37.001-37.005 et seq.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
At the time of filing of the guardianship proceeding, Mrs. Peterson was the
92-year old mother of Mack, Don, Lonny, David and Carol. Mrs. Peterson was a
resident at Silverado Senior Living – Sugar Land (“Silverado”) at all times
relevant to this case. (CR2 page 1539).
In 1993, Mrs. Peterson and her husband, both now deceased, executed a
durable power of attorney appointing Carol and David as their agents. (CR2
page 1539).
5
On or about August 27, 2013, purportedly acting pursuant to the 1993
power of attorney, David and Carol moved Mrs. Peterson to Silverado, which is
a locked memory care facility. (CR2 page 1539).
Shortly after Carol and David moved Mrs. Peterson to Silverado they
obtained a letter from Dr. Chris Merkl, M.D. stating that Mrs. Peterson had
severe dementia. (CR2 page 1540) (RR Vol. 5 page 221, lines 2-25; page 222,
lines 1-24; RR Vol. 9, page 111, lines 1-25; page 112, lines 1-14) Carol and
David used Dr. Merkl's diagnosis as authority for their actions as Mrs. Peterson's
agents for making her medical decisions. (CR2 page 1540). Dr. Merkl's
diagnosis of severe dementia was contradicted by his own subsequent testimony
and the testimony of Dr. John Tennison, M.D. (RR Vol. 6 page 221, lines 19-25,
page 222, lines 1-22; Vol. 8, page 59, lines 6-25, page 60, lines 1-2).
Appellants alleged that Carol Manley and David did not have lawful
authority to act as Mrs. Peterson's medical agents because Dr. Merkl's diagnosis
was invalid and Mrs. Peterson did not lack capacity to decide where she did or
did not want to live. (CR2 page 1540). Nevertheless, Silverado refused to allow
Mrs. Peterson to go to church, to restaurants or to the Appellants' homes from
September 2013 until November 2014, when Appellants settled their claims
against Carol Manley and David in the guardianship matter and this case. (CR2
6
page 1540).
Appellants alleged and offered evidence that Mrs. Peterson complained
about the conditions of her residency at Silverado. When Mrs. Peterson refused
to take her medication voluntarily, Silverado staff mixed her drugs in a drink and
told her it was a vitamin drink. (CR2 page 1541) (RR Vol. 5, page 109, lines 16-
25; page 110, lines 1-18). Carol Manley testified that she agreed with Dr. Merkl's
opinion that it was okay to give Mrs. Peterson drugs against her will by
deceiving her. (RR Vol. 8, page 365, lines 17-20). David Peterson testified that
one of the reasons he agreed to keep Mrs. Peterson at Silverado was because they
were able to do whatever it took to medicate Mrs. Peterson, when she refused.
(RR Vol. 9, page 113, lines 2-23). David Peterson also agreed with Dr. Merkl
that it was often appropriate for Silverado to trick Mrs. Peterson into taking
medications involuntarily. (RR Vol. 8, page 365, lines 1-20). Silverado had a
custom or practice of lying or tricking a patient into taking medication if
recommended by a doctor. (RR Vol. 9, page 2127, lines 1-20). (CR2 page
1541).
Mrs. Peterson asked to leave Silverado to go out to eat with Don and his
wife. She asked to go to the church of her choice in Baytown. She asked to go
visit Mack and his wife at their home in Wimberly, Texas. After Silverado
7
repeatedly denied her requests to go to the church of her choice, go out to eat and
go to visit Mack at his home, Mrs. Peterson revoked the 1993 power of attorney
on November 15, 2013, and she executed a new durable power of attorney
appointing her sons Mack and Don as her agents. (CR1 pages 67 and 68-72;
CR2 page 1542). Don Peterson testified regarding the facts and circumstances
of Ruby signing the revocation of her 1993 durable and medical power of
attorney. (RR Vol. 8, pages 227, lines 23-25; pages 228-231). The revocation
was offered and admitted. (RR Vol. 8, page 232, lines 4-11).
Appellants alleged that Silverado had a duty to acknowledge the 2013
revocation of the 1993 Durable and Medical Power of Attorney. However,
Silverado wrongfully refused to acknowledge the 2013 revocation of the 1993
medical power of attorney, which it continued to honor after it had notice of
revocation on November 15, 2013. (RR Vol. 9, page 209, lines 1-25; page 210,
lines 1-11). Silverado acted in bad faith because it knew or should have known
that the 1993 power of attorney had been revoked by Mrs. Peterson on
November 15, 2013.
Appellants requested emergency injunctive relief, which was denied after
a four-day hearing. Appellants respectfully submit that denial of temporary
injunctive relief was an abuse of discretion, for which they lacked an immediate
8
legal remedy under the facts and circumstances of this case. However, the
Appellants compromised and settled their claims against Carol Manley and
David in November 2014. (CR2 pages 1387-1390). The settlement included
agreements that Appellants would not be prevented from visiting Mrs. Peterson
together as a family, and she would be allowed to go to church, to restaurants
and to the homes of her sons and their wives. Carol Manley and David also
agreed to move Mrs. Peterson from Silverado to another memory care facility in
the Houston area. (CR2 pages 1387-1390).
Appellant Tonya Peterson alleged that she had standing to assert her
claims against Silverado. Tonya Peterson also submitted that she had standing as
next friend of Mrs. Peterson to assert her claims against Silverado because Mrs.
Peterson's agents Carol Manley and David Peterson failed or refused to assert
valid claims on her behalf, and she had a right to assert the claims.
Appellants alleged and offered evidence that Silverado unreasonably and
unlawfully restrained Mrs. Peterson from leaving its facility; neglected her
medical care and treatment; unreasonably and unlawfully restricted her
communication and association with her family; denied her right to refuse to take
medications that made her feel sick; over-sedated her at times to control her
behavior in reaction to denial of her requests to leave or move away; failed or
9
refused to provide adequate medical treatment to maintain and improve her
health; and/or retaliated against her and her family for asserting Mrs. Peterson's
rights to leave Silverado and move to a nursing home near her church and friends
in Baytown, live in the community with her son Mack, go to church, go to lunch,
visit her family in their homes, and/or receive adequate medical care and
treatment in order to maintain or improve her health. (CR2 pages 1006-1015;
1017-1020; 1021-1025; and 1031-1039).
Silverado relied on the 1993 power of attorney appointing Carol and
David as Mrs. Peterson's agents to manage her finances and make medical
decisions for her if she became incapacitated. However, Appellants alleged and
offered evidence that on or about November 15, 2013 Mrs. Peterson did not lack
capacity and was presumed to have capacity to (1) decide where she did or did
not want to live, (2) refuse to take medications that made her sick, (3) go to the
church of her choice, (4) visit with her sons and their wives, (4) revoke her
power of attorney and (5) execute new powers of attorney.
When Appellants Don and Mack visited Mrs. Peterson at Silverado in
mid-November 2013, she asked them what they were doing to get her out of
Silverado. They told her that they hired an attorney. She said, “Hire two. I'll
pay for it.” (CR2 page 1542) (RR Vol. 5, page 105, lines 12-25; page 106, lines
10
1-7; page 121, line 25; page 122, lines 1-9). Mrs. Peterson also instructed Don
and Mack to bring her a new power of attorney to sign because she wanted to
revoke her prior power of attorney and appoint Don and Mack as her agents.
(CR2 page 1542)
On November 10, 2013, Don and his wife Carol visited Mrs. Peterson,
who stated verbally and in writing that she wanted to leave Silverado and wanted
her son to get her an attorney to get her out. (CR2 pages 1006-1015; 1017-1020)
(RR Vol. 5, page 47, lines 1-12).
On November 15, 2013, Don and Mack brought Mrs. Peterson document
to sign revoking her prior power of attorney and a new power of attorney
appointing them as her agents, which she executed before a Notary Public for the
State of Texas and a witness. (CR1 pages 67 and 68-72; CR2 page 1542) (RR
Vol. 5, page 124, lines 3-13).
Appellants alleged and offered evidence that Mrs. Peterson had legal
capacity to revoke her prior power of attorney and execute a new power of
attorney, which she voluntarily executed on or about November 15, 2013. (CR2
page 1542) (RR Vol. 5, page 125, lines 18-24; page 223, lines 17-23).
Appellants further alleged and offered evidence that Mrs. Peterson had not been
judicially determined to lack capacity, and she was presumed to have had
11
capacity in November 2013.
As soon as Silverado's staff noticed that Mrs. Peterson was signing a legal
document before a Notary Public, they abruptly terminated her visit with Don
and Mack, told them they had to leave and escorted them out of the facility on
November 15, 2013. (CR2 page 1543). Later that day, Don recorded the
executed powers of attorney and returned to Silverado to move Mrs. Peterson out
of Silverado. (CR2 page 1543).
Appellants alleged and offered evidence that Silverado wrongfully refused
to accept Mrs. Peterson's new power of attorney and allow her to leave with Don.
Instead, Silverado personnel called the City of Sugar Land police and threatened
to have Don and Mack arrested for trespass if they did not leave or ever returned.
(CR2 page 1543) (RR Vol. 5, page 124, lines 3-23; page 217, lines 23-25; page
218, lines 1-4). In response to their request of when they could see their mother
again, a Sugar Land police officer told them "when she's dead." (CR2 page
1543) (RR Vol. 5, page 127, lines 15-18; page 221, lines 2-5). Then, without a
court order, Silverado banned Don and his wife, Mack and his wife, and Lonny
from visiting Mrs. Peterson under any circumstances. (RR Vol. 5, page 221,
lines 10-25; page 222, lines 1-24; Vol. 9, page 72, lines 3-20). On December 9,
2013, Don's wife Carol was visiting Mrs. Peterson in her room for about 30
12
minutes before Silverado asked her who she was, and then, told her she had to
leave. (RR Vol. 5, page 16, lines 16-25; page 17, lines 1-17).
Appellants alleged and offered evidence that Silverado falsely imprisoned
Mrs. Peterson against her will in a conspiracy with Carol and David. (CR2 page
1544) (RR Vol. 5, page 105, lines 12-25; page 106, lines 1-7). To wit, Silverado
has repeatedly refused Mrs. Peterson's requests to leave Silverado to go to lunch,
go shopping, attend social events, celebrate holidays with her family, or any
other purpose unless approved by Carol or David. (CR2 page 1544) (RR Vol. 5,
page 21, lines 15-25; page 22, line 1; page 25, lines 3-25; page 26, lines 1-16).
Evidence showed that it would have been in Mrs. Peterson's best interests
for her to be allowed to choose where she lived and to have unrestricted access
to all of her children and their spouses. (RR Vol. 5, page 36, lines 2-25; page
37, lines 1-25). Evidence also showed that it was in Mrs. Peterson's interest to be
allowed to communicate and associate with her friends and her church. (RR Vol.
5, page 108, lines 1-25; page 109, lines 1-15). There was no reason why Mrs.
Peterson could not live in her own apartment and spend her time with friends and
family. (RR Vol. 5, page 94, lines 11-25; page 95, lines 1-17; page 98, lines 9-
25; page 99, lines 1-13; page 102, lines 6-25; page 103, lines 1-10; page 119,
lines 7-25; page 120, lines 1-22). Alternatively, Mrs. Peterson could have
13
moved to another facility close to her church if she were allowed to leave
Silverado. (RR Vol. 5, page 215, lines 10-25; page 216, lines 1-15).
From November 15, 2013 through December 18, 2013, Appellants were
denied all contact with their mother until Mack and Don hired a lawyer to sue for
guardianship in Probate Court No. 1, Harris County, Texas. (CR2 page 1544).
Appellants alleged and offered evidence that Silverado wrongfully refused
to acknowledge the 2013 revocation of the 1993 durable power of attorney.
Silverado also wrongfully refused to acknowledge the new Durable Power of
Attorney that was executed by Mrs. Peterson on November 15, 2013. (CR2
page 1544).
On or about July 25, 2015, Silverado banned Mrs. Peterson's sons Don and
Mack and their wives, and Lonny from visiting her because of its objection to
publicity regarding Mrs. Peterson. (RR Vol. 5, page 77, lines 11-25; page 78,
lines 1-16; page 192, lines 23-25; page 193, lines 1-4; page 219, lines 13-25;
page 220, lines 1-13; Vol. 9, page 73, lines 9-15; page 221; lines 10-21).
Silverado's ban on visitation arbitrarily and unreasonably denied Mrs. Peterson
and her family their rights to communicate and associate with each other. (RR
Vol. 5, page 120, lines 23-25; page 121, lines 1-6).
14
On October 29, 2015, the parties entered into a binding, non-revocable
mediated settlement agreement. (CR2 page 1545). Although, the settlement
agreement was not approved by the trial court before Mrs. Peterson died, the
settlement included agreements that the Plaintiffs would not be prevented from
visiting Ruby together as a family, and Ruby would be allowed to go to church,
to restaurants and to the homes of her sons and their wives. (CR2 page 1545).
Carol Manley and David also agreed to move Ruby from Silverado to another
memory care facility in the Houston area. (CR2 page 1545). Appellants submit
that the settlement agreement is evidence that it was arbitrary and unreasonable
for Silverado to deny Mrs. Peterson and her adult children and their wives the
right to visit as a family, go to church, to restaurants and to their homes prior to
the agreement, but not after the agreement. (CR2 page 1387-1390).
Mrs. Peterson died at Silverado on or about January 11, 2015.
STANDARD OF REVIEW
A court of appeals reviews the trial court's ruling on a Rule 91a motion to
dismiss de novo, construing the pleadings liberally in favor of the plaintiff,
looking to the pleader's intent, and accepting as true the factual allegations in the
pleadings. Wooley v. Schaffer, 447 S.W.3d 71, 74 (Tex. App., 2014).
A trial court's ruling on a motion to dismiss in other contexts for abuse of
15
discretion; however, we review the trial court's ruling on a question of law de
novo. Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716, 718 (Tex.App.-
Houston [14th Dist.] 2011, no pet.) (applying de novo standard to review motion
to dismiss in healthcare liability case when issue was whether service had been
effected properly); Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex.App.-
Houston [14th Dist.] 2008, pet. denied) (applying de novo standard to review
motion to dismiss to determine whether official immunity applied under Texas
Tort Claims Act); Harris Cnty. Hosp. Dist. v. Textac Partners I, 257 S.W.3d 303,
315 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (applying summary judgment
standard to review motion to dismiss that addressed claims on merits). The
determination of whether a cause of action has a basis in law is, on its face, a
question of law, see Godaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex.
App., 2014), the language of Rule 91a is less clear as to the determination of
whether a cause of action has a basis in fact—in which case “no reasonable
person could have believed the facts pleaded”—is a question of law. Wooley v.
Schaffer, 447 S.W.3d at 75, citing Tex.R. Civ. P. 91a.1.
A Rule 91a motion to dismiss is analogous to pleas to the jurisdiction,
which requires a court to determine whether the pleader has alleged facts
demonstrating jurisdiction. Wooley v. Schaffer, 447 S.W.3d at 75, citing Tex.
16
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.2004). In
that context, the reviewing court construes the pleadings liberally in favor of the
plaintiff, look to the pleader's intent, and accepts as true the factual allegations in
the pleadings to determine if the pleader has alleged facts that affirmatively
demonstrate the trial court's jurisdiction over a claim. Id. at 226.
Rule 91a also requires the court to determine whether a “reasonable person
could believe the facts pleaded” to determine whether a pleading has a basis in
fact. Wooley v. Schaffer, 447 S.W.3d at 75 citing Tex.R. Civ. P. 91a.1. This
language is similar to a legal sufficiency challenge, in which the reviewing court
asks whether the evidence at trial would enable reasonable people to reach the
verdict under review. See City of Keller v. Wilson, 168 S.W.3d 802, 827
(Tex.2005).
Federal courts also apply a de novo standard of review to a trial court's
ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).10
In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007). Rule 91a
has unique language allowing dismissal of causes of action with no basis in law
or fact. Tex.R. Civ. P. 91a. However, Federal Rule of Civil Procedure 12(b)(6)
similarly allows dismissal if a plaintiff fails “to state a claim upon which relief
can be granted”; therefore, case law interpreting Rule 12(b)(6) is instructive.
17
Fed.R.Civ.P. 12(b)(6); see also GoDaddy, 429 S.W.3d at 754.
For a complaint to survive a Federal Rule 12(b)(6) motion to dismiss, it
must contain “enough facts to state a claim to relief that is plausible on its face.”
GoDaddy, 429 S.W.3d at 754 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Facial plausibility requires facts that allow the court “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Essentially, under the
federal rules, the complaint is liberally construed in favor of the plaintiff, and all
well-pleaded facts are taken as true. Id. (citing Ashcroft, 556 U.S. at 678–79 and
Erickson v. Pardus, 551 U.S. 89, 94 (2007)). But “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (quoting Ashcroft, 556 U.S. at 678). Likewise, in determining
whether the trial court erred in denying a defendant's motion to dismiss, federal
courts take all of the plaintiff's allegations as true. Id. (citing Twombly, 550 U.S.
at 570). Federal Rule 12(b)(6) dismissal is appropriate if the court determines
beyond doubt that the plaintiff can prove no set of facts to support a claim that
would entitle him to relief. Id. (citing Scanlan v. Tex. A & M Univ., 343 F.3d
533, 536 (5th Cir.2003)).
Both determinations of whether a cause of action has any basis in law and
18
in fact are legal questions that we review de novo, based on the allegations of the
live petition and any attachments thereto. Wooley v. Schaffer, 447 S.W.3d at 76.
A reviewing court must construe the pleadings liberally in favor of the plaintiff,
look to the pleader's intent, and accept as true the factual allegations in the
pleadings to determine if the cause of action has a basis in law or fact. In doing
so, a reviewing court applies the fair notice pleading standard applicable in
Texas to determine whether the allegations of the petition are sufficient to allege
a cause of action. See Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982) (“A
petition is sufficient if it gives fair and adequate notice of the facts upon which
the pleader bases his claim.”); see also Bart Turner & Assocs. v. Krenke, No.
3:13–CV–2921–L, 2014 WL 1315896, at *5 (N.D.Tex. Mar. 31, 2014) (applying
Texas's fair notice pleading standard to determine whether to grant motion to
dismiss under Rule 91a).
SUMMARY OF ARGUMENT
The trial court granted Silverado's Rule 91a motion to dismiss Appellants'
claims for false imprisonment, assault and battery, and conspiracy on November
10, 2014 in error because Appellants' subsequently filed their Fifth Amended
Petition, which adequately stated facts supporting their claims.
The trial court granted Silverado's plea to the jurisdiction in error on
19
January 9, 2015 because Appellants' Fifth Amended Petition adequately stated
facts supporting the trial court's jurisdiction over their claims for relief.
The trial court granted Silverado's Rule 91a motion to dismiss Appellants'
breach of trust and/or breach of fiduciary duty in error on January 9, 2015
because Appellants' Fifth Amended Petition adequately stated facts supporting
the trial court's jurisdiction over their claims for relief.
The trial court denied Appellants' motion to reconsider the Orders granting
Silverado's Rule 91a motion to dismiss and motion for sanctions in error on
January 9, 2015 because Appellants' Fifth Amended Petition adequately stated
facts supporting the trial court's jurisdiction over their claims for relief.
The trial court granted Silverado's application for attorney's fees pursuant
to Rule 91a Order entered on November 10, 2014 in error on January 9, 2015
because Appellants' Fifth Amended Petition adequately stated facts supporting
the trial court's jurisdiction over their claims for relief.
ARGUMENT AND AUTHORITY
ISSUE NO. 1: Whether the trial court granted Silverado's Rule 91a motion to
dismiss Appellants' claims for false imprisonment, assault and battery, and
conspiracy on November 10, 2014 in error, notwithstanding Appellants'
subsequently filed Fifth Amended Petition, which adequately stated facts
20
supporting their claims.
Appellants submit that the trial court granted Silverado's Rule 91a motion
to dismiss Appellants' claims for false imprisonment, assault and battery, and
conspiracy in error because their Fifth Amended Petition adequately stated facts
supporting the court's jurisdiction to grant remedies on their claims.
To wit, Appellants' Fifth Amended Petition at ¶¶ 11-14, 22-23 alleges
facts, which support their claims for damages related to alleged false
imprisonment, assault and battery, and conspiracy as follows:
11 Shortly after Carol Manley and David moved Ruby to Silverado
they obtained a letter from Dr. Chris Merkl, M.D. stating that Ruby
had severe dementia. Dr. Merkl's diagnosis of severe dementia is
contradicted by his own subsequent testimony and the testimony of
Dr. John Tennison, M.D. Nevertheless, Carol Manley and David
wrongfully used Dr. Merkl's diagnosis as authority for their actions as
Ruby's agents for making her medical decisions including deciding
that Ruby had to stay at Silverado. Plaintiffs allege and would prove
that Carol Manley and David did not have lawful authority to act as
Ruby's medical agents because Dr. Merkl's diagnosis was invalid and
Ruby did not lack capacity to decide where she did or did not want to
live. Nevertheless, Silverado refused to allow Ruby to leave Silverado
to go to church, to restaurants or to the Plaintiffs' homes from
September 2013 until November 2014, when Plaintiffs settled their
claims against Carol Manley and David in the guardianship matter
and this case.
12 Plaintiffs allege and would prove that Ruby complained about
the conditions of her residency at Silverado. When Ruby refused to
take her medication voluntarily, Silverado staff mixed her drugs in a
drink and told her it was a vitamin drink. She also complained that
21
her roommate had a pet dog, and she objected to having a dog in her
bedroom.
13 Ruby asked to leave Silverado to go out to eat with Don and
Carol Peterson. She asked to go to the church of her choice in
Baytown. She asked to go visit Mack and his wife at their home in
Wimberly, Texas. After Silverado repeatedly denied her requests to
go to the church of her choice, go out to eat and go to visit Plaintiffs
at their homes, Ruby revoked the 1993 power of attorney on
November 15, 2013.
14 Plaintiffs allege and would prove that Silverado unreasonably
and unlawfully restrained Ruby from leaving its facility; neglected
her medical care and treatment; unreasonably and unlawfully
restricted her communication and association with her family; denied
her right to refuse to take medications that made her feel sick; over-
sedated her at times to control her behavior in reaction to denial of
her requests to leave or move away; failed or refused to provide
adequate medical treatment to maintain and improve her health;
and/or retaliated against her and her family for asserting Ruby's rights
to leave Silverado and move to a nursing home near her church and
friends in Baytown, live in the community with her son Mack, go to
church, go to lunch, visit her family in their homes, and/or receive
adequate medical care and treatment in order to maintain or improve
her health.
…
22 Plaintiffs allege and would prove that Silverado falsely
imprisoned Ruby against her will in a conspiracy with Carol Manley
and David from September 2013 until November 2014, when Carol
Manley and David settled their claims and defenses in the
guardianship matter and this case. To wit, Silverado repeatedly
refused Ruby's requests to leave for any purpose, although no judge
had ordered that Ruby be committed or denied her right to leave
Silverado to go to lunch, go shopping, attend social events, celebrate
holidays with her family, or any purpose unless approved by Carol
22
Manley or David. She has been repeatedly denied requests to leave
with her sons and their wives.
23 From November 15, 2013 through December 18, 2013,
Silverado denied Plaintiffs any opportunity to visit with Ruby.
(CR2 pages 1541-1543).
The Texas Health and Safety Code, Section 166.155 recognizes a person's
right to revoke a medical power of attorney regardless of the person's capacity.
This section also requires a health care provider, such as Silverado, to verify a
medical power of attorney. Appellants submit that Silverado's failure to verify
the revocation of Mrs. Peterson's medical power of attorney and the fact that her
1993 power of attorney was revoked in November 2013 show that Silverado was
without authority to restrain Mrs. Peterson pursuant to the 1993 power of
attorney after it was revoked. Silverado was also without authority to forcibly
or deceptively administer medication to Mrs. Peterson, which she refused to take
voluntarily because it made her sick. Appellants submit that their pleadings state
a claim for assault and battery, for which Mrs. Peterson suffered damages, which
also caused harm and injury to Appellants, who were deprived of companionship
and society because Mrs. Peterson was drugged during their visits.
Appellants submit that their Fifth Amended Petition at ¶25 alleges facts,
which show that Silverado's wrongful actions falsely imprisoning Mrs. Peterson
23
were arbitrary and unreasonable as follows:
25 Plaintiffs Mack, Don and Lonny requested emergency
injunctive relief, which was denied after a four-day hearing.
Plaintiffs respectfully submit that denial of temporary injunctive relief
was an abuse of discretion, for which Plaintiffs lacked an immediate
legal remedy under the facts and circumstances of this case.
However, Plaintiffs compromised and settled their claims against
Carol Manley and David in November 2014, and the settlement was
approved by the Probate Court. The settlement included agreements
that Plaintiffs will not be prevented from visiting Ruby together as a
family, and Ruby will be allowed to go to church, to restaurants and
to the homes of her sons and their wives. Carol Manley and David
also agreed to move Ruby from Silverado to another memory care
facility in the Houston area. …
(CR2 pages 1545).
Appellants further submit that before the mediated settlement agreement in
the guardianship proceeding, Silverado arbitrarily and unreasonably restricted
Mrs. Peterson's and Appellants' access to each other, but after the settlement
agreement, such restrictions were abated. Additionally, Appellants submit that
proof of their allegations regarding the effectiveness of the November 2013
power of attorney is further evidence to support their claims for false
imprisonment, assault and battery and conspiracy.
The essential elements of false imprisonment are: 1) willful detention; 2)
without consent; and 3) without authority of law. James v. Brown, 637 S.W.2d
914 (Tex., 1982), citing Moore's Inc. v. Garcia, 604 S.W.2d 261 (Tex.Civ.App.--
24
Corpus Christi 1980, writ ref'd n.r.e.)
The elements of a civil conspiracy are: (1) two or more persons; (2) an
object to be accomplished; (3) a meeting of minds on the object or course of
action; (4) one or more unlawful, overt acts; and (5) damages as the proximate
result. In the Matter of Estate of Perry, No. 04-06-00205-CV (Tex. App.
8/15/2007) (Tex. App., 2007) citing Operation Rescue-National v. Planned
Parenthood of Houston & Southeast Tex., Inc., 975 S.W.2d 546, 553 (Tex.
1998); Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983).
ISSUE NO. 2: Whether the trial court granted Silverado's plea to the
jurisdiction in error on January 9, 2015, although Appellants' Fifth Amended
Petition stated facts supporting the trial court's jurisdiction over their claims for
relief.
ISSUE NO. 3: Whether the trial court granted Silverado's Rule 91a motion to
dismiss Appellants' breach of trust and/or breach of fiduciary duty in error on
January 9, 2015, although Appellants' Fifth Amended Petition adequately stated
facts supporting the trial court's jurisdiction over their claims for relief.
ISSUE NO. 4: Whether the trial court denied Appellants' motion to reconsider
the Orders granting Silverado's Rule 91a motion to dismiss and motion for
sanctions in error on January 9, 2015, although Appellants' Fifth Amended
25
Petition adequately stated facts supporting the trial court's jurisdiction over their
claims for relief.
Appellants submit that the trial court granted Silverado's Rule 91a motion
to dismiss Appellants' claims for breach of trust and breach of fiduciary duty in
error because their Fifth Amended Petition adequately stated facts supporting the
court's jurisdiction to grant remedies on their claims.
To wit, Appellants' Fifth Amended Petition at ¶¶ 14-15 & 18-24 alleges
facts, which support their claims for damages related to alleged breach of trust
and breach of fiduciary duty as follows:
14 Plaintiffs allege and would prove that Silverado unreasonably
and unlawfully restrained Ruby from leaving its facility; neglected
her medical care and treatment; unreasonably and unlawfully
restricted her communication and association with her family; denied
her right to refuse to take medications that made her feel sick; over-
sedated her at times to control her behavior in reaction to denial of
her requests to leave or move away; failed or refused to provide
adequate medical treatment to maintain and improve her health;
and/or retaliated against her and her family for asserting Ruby's rights
to leave Silverado and move to a nursing home near her church and
friends in Baytown, live in the community with her son Mack, go to
church, go to lunch, visit her family in their homes, and/or receive
adequate medical care and treatment in order to maintain or improve
her health.
15 Upon information and belief, Silverado relied on the 1993
power of attorney appointing Carol Manley and David as her agents
to manage her finances and make medical decisions for her if she
became incapacitated. However, Plaintiffs allege and would prove
26
that on or about November 15, 2013 Ruby did not lack capacity
and/or was presumed to have capacity to decide where she did or did
not want to live, to refuse to take medications that made her sick, to
go to the church of her choice, to visit with her sons and their wives,
to revoke her power of attorney and execute a new one.
…
18 On November 15, 2013, Don and Mack brought Ruby a revocation
of power of attorney expressly revoking her prior 1993 durable power of
attorney. Ruby executed revocation of power of attorney expressly
revoking her prior 1993 durable power of attorney before a Notary Public
for the State of Texas and a witness.
19 Plaintiffs allege and would prove that Ruby had legal capacity
to revoke her prior power of attorney, and she voluntarily executed a
revocation of the 1993 power of attorney on or about November 15,
2013. Plaintiffs further allege and would prove that Ruby has not
been judicially determined to lack capacity, and she may be presumed
to have had capacity in November 2013.
20 As soon as Silverado's staff noticed that Ruby appeared to be
signing a legal document before a Notary Public, they abruptly
terminated her visit with Don and Mack, told them they had to leave
and escorted them out of the facility on November 15, 2013. Later
that day, Don recorded the executed revocation of medical powers of
attorney and returned to Silverado to move Ruby out of Silverado.
21 Plaintiffs Carol and Tonya Peterson allege and would prove that
Silverado wrongfully refused to accept Ruby's revocation of medical
powers of attorney and allow her to leave with Don. Instead,
Silverado personnel called the City of Sugar Land police and
threatened to have them arrested for trespass if they did not leave or
ever returned. In response to their request of when they could see
their mother again, a Sugar Land police officer told them "when she's
dead." Then, without a court order, Silverado banned Don and his
wife Carol Peterson, Mack and his wife Tonya, and Lonny from
27
visiting Ruby under any circumstances, and it prevented Ruby from
leaving Silverado.
22 Plaintiffs allege and would prove that Silverado falsely
imprisoned Ruby against her will in a conspiracy with Carol Manley
and David from September 2013 until November 2014, when Carol
Manley and David settled their claims and defenses in the
guardianship matter and this case. To wit, Silverado repeatedly
refused Ruby's requests to leave for any purpose, although no judge
had ordered that Ruby be committed or denied her right to leave
Silverado to go to lunch, go shopping, attend social events, celebrate
holidays with her family, or any purpose unless approved by Carol
Manley or David. She has been repeatedly denied requests to leave
with her sons and their wives.
23 From November 15, 2013 through December 18, 2013,
Silverado denied Plaintiffs any opportunity to visit with Ruby.
24 Plaintiffs Carol and Tonya Peterson allege and would prove that
Silverado had a duty to acknowledge the 2013 revocation of the 1993
Durable Power of Attorney, but that Silverado wrongfully refused to
acknowledge the 2013 revocation of the 1993 medical power of
attorney, and it continued to honor the 1993 power of attorney in bad
faith because it knew or should have known that it had been revoked
by Ruby in November 2013.
(CR2 pages 1541-1544).
Appellants submit that the trial court granted Silverado's Rule 91a motion
to dismiss Appellants' claims for breach of trust and breach of fiduciary duty in
error because their Fifth Amended Petition adequately stated facts supporting the
court's jurisdiction to grant remedies on their claims. The Texas Health and
28
Safety Code, Section 166.155 recognizes a person's right to revoke a medical
power of attorney regardless of the person's capacity. This section also requires
a health care provider, such as Silverado, to verify a medical power of attorney.
Therefore, the trial court's Orders granting Silverado's plea to the jurisdiction,
motion to dismiss Appellants' claims for breach of trust and breach of fiduciary
duty should be reversed. Additionally, the trial court's Order denying
Appellants' motion to reconsider the Rule 91a dismissal and sanctions should be
reversed.
ISSUE NO. 5: Whether the trial court granted Silverado's application for
attorney's fees pursuant to Rule 91a Order entered on November 10, 2014 in
error on January 9, 2015, although Appellants' Fifth Amended Petition
adequately stated facts supporting the trial court's jurisdiction over their claims
for relief such that the motions for dismissal of Appellants' claims should have
been denied.
Silverado filed a Rule 91a motion to dismiss on September 25, 2014.
Appellants filed a Fourth Amended Petition on October 6, 2014 and a Response
in Opposition to the pending Rule 91 motion on October 27, 2014. Silverado
filed a partial withdrawal and reply on November 6, 2014. The motion to
dismiss was heard on November 7, 2014, and the Court granted the motion in
29
error, but the Order was not final and appealable because it did not dispose of all
parties and causes of action.
On December 3, 2014, Silverado filed a 91a Motion to Dismiss Plaintiffs'
Sole Remaining Claim Breach of Trust and/or Breach of Fiduciary Duty. On
December 4, 2014, Appellants filed their Fifth Amended Petition, which added
two new plaintiffs individually and as next friends of Ruby Peterson. Silverado
did not object to the filing of the Fifth Amended Petition.
On December 9, 2014, the Court held a hearing but did not consider the
supplement to Silverado's application for an award of attorney's fees alleging a
request to dismiss an additional claim that was not included in its previous
motion for dismissal, which was filed on the same day. The Court ruled that the
Appellants would have until December 16, 2014 to file their objections to
Silverado's motion for Rule 91a award of attorney's fees.
Therefore, Appellants respectfully submit that Silverado waived objection
to the filing of their Fifth Amended Petition; that Silverado did not file an answer
to their Fifth Amended Petition or a motion to dismiss the Fifth Amended
Petition; and that Silverado's motion for Rule 91a dismissal of the Fourth
Amended Petition was moot.
Additionally and alternatively, Appellants respectfully submit that
30
Silverado's motion for dismissal and application for an award of attorney's fees
should have been denied because there was no evidence in the record regarding
Silverado's claim that the Appellants' claims were groundless and frivolous or
groundless and brought for an improper purpose or for harassment.
Appellants respectfully submit that their claims were grounded in fact and
law and that they were brought in good faith and not for any dilatory or improper
purpose according to their knowledge and information at the times the claims
were alleged. Additionally and alternatively, Appellants submit that they alleged
the claims contained in their Fifth Amended Petition in good faith, that they were
supported by good cause, that they were supported by existing law or good faith
argument for meritorious change in the law, and that they should not have been
dismissed.
Therefore, Appellants objected to Silverado's application and supplement
application for award of attorney's fees pursuant to TRCP Rule 91a on the
grounds that their Fifth Amended Petition was not dismissed and that there was
no evidence that their claims were groundless and frivolous or groundless and
brought for an improper purpose or for harassment.
Additionally and alternatively, Appellants respectfully submit that
Silverado's proffered "evidence" consisted of no evidence or insufficient to
31
support it's claim for an award of attorney's fees pursuant to TRCP Rule 91a.
Additionally and alternatively, Appellants respectfully submit that Silverado's
claim for an award of attorney's fees pursuant to TRCP Rule 91a was excessive.
To wit, the affidavit of Josh Davis, Esq. dated December 1, 2014 contains
claims for an award of $44,489.50 for "Case Assessment, Development,
Administration, but the redacted billing statements for the time period beginning
on July 18, 2014 through August 30, 2014 did not provide any evidence of the
reasonableness or necessity of the time spent for "fact
investigation/development" and "analysis/strategy", which comprised the
majority of the 161.5 hours and $28,262 billed by Josh Davis and 91.4 hours and
$14,624 billed by Jacob M. Stephens according to the statement of CNA
Specialty Claims file 50013-1476 dated 9/30/14 attached to the affidavit of Josh
Davis dated December 1, 2014.
Similarly, the statement of CNA Specialty Claims file 50013-1476 dated
10/15/14 attached to the affidavit of Josh Davis dated December 1, 2014 shows a
total amount claimed for "fact investigation/development" = $32,052.39 to date
and "analysis/strategy" = $17,315.47 to date, but there was no reliable evidence
offered to support such claims because the redacted billing statements did not
reveal whether the activities were reasonable or necessary. Likewise, there was
32
no way for the Defendants or the trial court to determine whether the information
that was redacted from Silverado's billing statements was privileged or
discoverable. Therefore, it was not possible to determine whether the 79.4 hours
and $15,086.00 billed by Josh Davis, 43 hours and $7,665.00 billed by Christian
Johnson, and 19.9 hours and $3,482.50 billed by Julianne C. Lomax were
reasonable and necessary current charges for the period ending on 10/15/14.
Similarly, the statement of CNA Specialty Claims file 50013-1476 dated
11/17/14, invoice No. 1408065, attached to the affidavit of Josh Davis dated
December 1, 2014 showed a total current charges in the amount of $18,214.03
including multiple entries for "settlement/non-binding ADR", in which Silverado
did not participate. Appellants submit that there was no reliable evidence
offered to support such claims because the redacted billing statements did not
reveal whether the activities were reasonable or necessary.
Additionally and alternatively, Appellants submit that Silverado claimed
$117,183.40 with regard to defending against the causes of action which were
dismissed on November 10, 2014, but the documents attached to the affidavit of
Josh Davis did not show that Silverado incurred any obligation to pay
$117,183.40 in reasonable and necessary fees related to the causes of action
which were dismissed on November 10, 2014. To wit, the billing statements
33
indicated that they were submitted to CNA Specialty Claims file 50013-1476,
not to Silverado, and there was no evidence as to what amount, if any, Silverado
incurred with regard to defending against the causes of action which were
dismissed on November 10, 2014.
Additionally and alternatively, Appellants submit that Silverado claimed
$117,183.40 to defend against the causes of action, which were dismissed on
November 10, 2014, but it appeared that $18,830.00 of that amount was for fees
related to its defense against a federal lawsuit filed contemporaneously with this
state court proceeding. However, there was no evidence to show which fees
were related to the state court proceeding and which fees related to the federal
court case because the activity descriptions were too heavily redacted and the
fees were not segregated between the two cases. Appellants submit that it was
improper for Silverado to claim reimbursement for fees that were chargeable to
another case and did not relate to claims that were dismissed on November 10,
2014 pursuant to TRCP Rule 91a.
Additionally and alternatively, Silverado claimed prospective fees in the
event of an appeal. However, Appellants submit that the statements of Josh
Davis regarding his opinion as to the amounts of reasonable and necessary fees
for handling appeals of this matter were not supported by evidence and were
34
conclusory. To wit, Mr. Davis' affidavit did not provide any method for
calculating the amounts of reasonable and necessary fees that would be incurred;
it did not state how many hours would be required to be spent; it did not state a
reasonable rate per hour; it did not state what activities would be required; and it
did not state that the amounts of fees requested were usual and customary in the
locality.
Therefore, Appellants respectfully submit that the Order granting
Silverado's application for attorney's fees pursuant to Rule 91a should be
reversed and rendered. Alternatively, the Order granting Silverado's application
for attorney's fees pursuant to Rule 91a should be reversed and remanded to the
trial court.
ISSUE NO. 6: Whether Appellants may be entitled to declaratory judgment as
a matter of law that the 1993 Durable Power of Attorney appointing Carol
Manley and David was revoked as of November 15, 2013 pursuant to Tex. Civ.
Prac. & Rem. Code 37.001-37.005 et seq.
Appellants' Fifth Amended Petition at ¶¶ 18-19 alleges facts, which
support their claims for declaratory judgment as follows:
18 On November 15, 2013, Don and Mack brought Ruby a
revocation of power of attorney expressly revoking her prior 1993
durable power of attorney. Ruby executed revocation of power of
35
attorney expressly revoking her prior 1993 durable power of attorney
before a Notary Public for the State of Texas and a witness.
19 Plaintiffs allege and would prove that Ruby had legal capacity to
revoke her prior power of attorney, and she voluntarily executed a
revocation of the 1993 power of attorney on or about November 15,
2013. Plaintiffs further allege and would prove that Ruby has not
been judicially determined to lack capacity, and she may be presumed
to have had capacity in November 2013.
(CR2 pages 1542 & 1543).
Appellants respectfully submit that they alleged adequate facts to support
their claim for declaratory judgment. However, the trial court did not grant any
motion specifically requesting dismissal of Appellants' declaratory judgment
request. The Texas Health and Safety Code, Section 166.155 recognizes a
person's right to revoke a medical power of attorney regardless of the person's
capacity. Therefore, Appellants submit that the Court should remand the claim
for declaratory judgment to the trial court.
CONCLUSION AND PRAYER
WHEREFORE, Appellants request the Court to reverse the trial court's
Orders granting Silverado's plea to the jurisdiction, motions for dismissal of
Appellants' claims pursuant to Rule 91a and application for attorney's fees and
remand the case to the trial court for further proceedings. Appellants also
request the Court to grant them all additional relief to which they may be justly
36
entitled.
Respectfully submitted,
/s/ Philip M. Ross
Philip M. Ross
State Bar No. 17304200
1006 Holbrook Road
San Antonio, Texas 78218
Phone: 210/326-2100
Email: ross_law@hotmail.com
Candice Schwager
State Bar No.
1417 Ramada Drive
Houston, TX 77062
Phone: 832-315-8489
FAX: 713-583-0355
Attorneys for MACKEY GLEN
PETERSON, TONYA PETERSON,
DON LESLIE PETERSON, and LONNY
PETERSON
CERTIFICATION
I hereby certify that every factual statement in the petition is supported by
competent evidence included in the appendix or record.
/s/ Philip M. Ross
Philip M. Ross
37
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief is in compliance with Texas Rule of
Appellate Procedure Rule 9. It contains 8,184 words, 36 pages, 14 point
typeface.
/s/ Philip M. Ross
Philip M. Ross
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above document was e-
filed and sent by email or electronic delivery by agreement to:
Josh Davis
Lewis Brisbois Bisgaard & Smith, LLP
Weslayan Tower, Suite 1400
24 Greenway Plaza
Houston, TX 77046
on November 16, 2015.
/s/ Philip M. Ross
Philip M. Ross
38