in the Guardianship of Ruby Peterson

Opinion

ACCEPTED

01-15-00567-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

12/14/2015 12:39:08 PM CHRISTOPHER PRINE

CLERK

No. 01-15-00567-CV

FILED IN

1st COURT OF APPEALS

IN THE COURT OF APPEALS FOR THE FIRST DISTRICT HOUSTON, TEXAS

HOUSTON, TEXAS 12/14/2015 12:39:08 PM CHRISTOPHER A. PRINE

Clerk

MACKEY GLEN PETERSON, TONYA PETERSON, DON LESLIE PETERSON AND LONNY PETERSON, APPELLANTS

v.

SILVERADO SENIOR LIVING, INC., D/B/A SILVERADO SENIOR LIVING SUGAR LAND, APPELLEE

Appendix Tab 74 - 83

P. Alan Sanders Tx. State Bar No: 17602100 Joshua Davis Tx. State Bar No. 24031993 Lewis Brisbois Bisgaard & Smith, LLP Weslayan Tower, Suite 1400 24 Greenway Plaza Houston, Texas, 77046 (713) 659-6767 (713) 759-6830 – Fax Alan.Sanders@LewisBrisbois.com Josh.Davis@LewisBrisbois.com

TAB 74

FILED

_ DATA 3/2312015 5:27:48 PM

Stan Stanart

PI TE

DATE DA County Clerk Harris County

NO. 427,208 --AC)) PROBATE PROBATECOURT

COURT11

IN RE: GUARDIANSHIP OF INRE:GUARDIANSHIP OF § IN THE PROBATECCOURT INTHEPROBATE OURT

_

RUBY PETERSON, RUBY PETERSON, § NUMBER NUMBERONE

ONE

PROPOSED PROPOSED W ARD

WARD § COUNTY,TEXAS HARRISCOUNTY, TEXAS

No.2014-40980

CAUSE NO. 2014-40980

MACKEY ("MACK") MACKEY ("MACK") GLEN

GLENPETERSON,

PETERSON, § IN THEDISTRICT INTHE DISTRICTCOURT

COURT

PETERSON, Individually, PETERSON, Individually,NextFriend Next Friend §

ofRUBY of RUBY PETERSON,

PETERSON, DON

DONLESLIE

LESLIE §

PETERSON, Individuallyand PETERSON, asNext andas Next §

Friend, ofRUBY Friend, of RUBY P ETERSON, PETERSON,and

and §

LONNY PETERSON,Individually LONNY PETERSON, Individuallyand and §

Next Friend ofRUBY NextFriend of RUBY S.PETERSON, S. PETERSON, §

Plaintiffs,

§

; V. V.

§ HARRISCOUNTY,TEXAS HARRIS COUNTY, TEXAS

CAROLANNEMANLEY, CAROL ANNE MANLEY,

§

DAVIDPETERSON, SILVERADO § DAVID PETERSON, SILVERADO SENIORLIVINGCAREFACILITY, SENIOR LIVING CARE FACILITY, §

TANA MCMILLON, TANA MCMILLON,

§

LAVINSON,DR.REBECCA

LINDA LAVINSON, DR. REBECCA §

CLEARMAN, DR.CHRISMERKYL CLEARMAN, DR. CHRIS MERKYL §

Defendants. § 129THJUDICIAL DISTRICT 129TH JUDICIAL DISTRICT

Defendants.

AMENDEDMOTIONTO SETASIDERULE11AGREEMENT FORILLEGALITY, AMENDED MOTION TO SET ASIDE RULE 11 AGREEMENT FOR ILLEGALITY, LACKOFCONSIDERATION, FRAUD, AND EMOTIONAL/FINANCIAL DURESS LACK OF CONSIDERATION, FRAUD, AND EMOTIONAL/FINANCIAL DURESS AND

MACKEYGLENPETERSON,

COMESNOW,DONLESLIEPETERSON, COMES NOW, DON LESLIE PETERSON, MACKEY GLEN PETERSON, AND LONNYPETERSON orthishonorable to setasidethe and movesffor RuleIl LONNY PETERSON andmoves this honorable Judge to set aside the purported Rule 11 agreementexecuted between thePlaintiffs withDefendants, CAROL ANNMANLEY AND agreement executed between the Plaintiffs with Defendants, CAROL ANN MANLEY AND onor aboutOctober18,2014dueto fraud, DAVIDPETERSON, duress,and DAVID PETERSON, on or about October 18, 2014 due to fraud, emotional/financial duress, and lackofconsideration thesame.Thepurported tosupport ("Rulell" or"Agreement")

agreement

lack of consideration to support the same. The purported agreement ("Rule 11" or "Agreement")

Silverado Appx. 0599 No. 1-15-567-CV 2078

isvoid matter o

as a matter

is void asa offlaw.

law. S eepurported

See purportedR ule11Agreement Rule heretoandincorporated 11 Agreement attachedhereto and incorporated N 0 by by reference. In support tthereof, In support hereof,PLAINTIFFS asfollows:

PLAINTIFFS allegeas follows:

I. FACTS

1. On 1. or about On or about O ctober

October 18, 2

18, 2014, enterediinto the PLAINTIFFSentered

014,thePLAINTIFFS ntotheattached purportedillegal the attachedpurported illegalRule Rule

ll Agreement with CAROL ANN MANLEY AND DAVID PETERSONunder PETERSON

0 11 Agreement with CAROL ANN MANLEY AND DAVID under threats

constituting emotional constituting and financialduress emotionalandfinancial duressaand ndfraudulent inducement;however, fraudulentinducement; however,thefaceofthe the face of the

0 N df agreement demonstratesthat agreement demonstrates thatno considerationexistedfromthe no consideration outset to supportthe existed from theoutsetto theagreement.

agreement.

tJ As such, w Assuch, hetherfor lack ofconsideration forlack ordue of considerationor dueto fraud,duress, tofraud, duress,or illegality,the orillegality, agreementisis theagreement

void. void.

whether

2. 2. PLAINTIFFS PLAINTIFFSwere given little choicebut weregivenlittlechoice tosignthe butto sign theagreement outof agreementout ofconcern

thattheirmother

concern that their mother facedimminent faced imminent deathif not allowed death if not to leaveSilverado allowed to eniorLiving.

leave Silverado SSenior

Unfortunately,the worst

Living. Unfortunately, theworst happenedand PLAINTIFFS'fearsbore happenedandPLAlNTIFFS’ fears bore true whenRUBYPETERSON DIED onJanuary11, true when RUBY PETERSON DIEDon January 11, 2014. 2014. A ttorneyR

Attorney Jones threatenedtthat ussJonesthreatened Russ hatiftheydid if they didnot

signthe agreement, theirmother not sign theagreement,

would

mother would

likely likely beassigned

privateguardian a private guardian and never be assigned a

eaveSILVERADO

andnever lleave SENIOR LIVING.RUSS SILVERADO SENIOR LIVING. RUSS wouldbeassessedhisfeesanddenied threatenedthatPLAINTIFFS

JONES further threatened that PLAINTIFFS would be assessed his fees and deniedrecovery recovery of

of

their their o wn,iinnaddition

own, addition to

possibly facingsanctions, iftheyrefused tosigntheRulell Agreement. to possibly facing sanctions, if they refused to sign the Rule 11 Agreement.

SeeA ofMackPeterson. See Affidavit of Mack Peterson. 3. MACKPETERSON testifies byAffidavit totheforegoing factsandhisfear(thatboretrue)that 3. MACK PETERSON testifies by Affidavit to the foregoing facts and his fear (that bore true) that his MOTHER, faced

PETERSON, RUBY ifleft

imminent

death SENIOR

atSILVERADO

his MOTHER, RUBY PETERSON, faced imminent death if left at SILVERADO SENIOR LIVING He furthertestifiedthat the reasonhe ("SILVERADO"). signedthe purported LIVING ("SILVERADO"). He further testified that thereason he signed the purported agreement agreementwas

due to the emotional andfinancialduressof the threats.See Affidavit.

was due to the emotional and financial duress of the threats. See Affidavit.

PLAINTIFFS had alreadyproducedattorneyfee bills to this Court,reflecting personal PLAINTIFFS had already produced attorney fee bills to this Court, reflecting personal expendituresexceeding$200,000.If the PARTIESproceededto jury trial,the attorneyfees expenditures exceeding $200,000. If the PARTIES proceeded to jury trial, the attorney fees

Silverado Appx. 0600 No. 1-15-567-CV 2079 would substantially increase———including would the ad litems'fees.

increase—includingtheadlitems’ fees.M ACK MACK PETERSONfurther

PETERSON furthertestified testified

thathe was unhappy withthefactthatCAROL that he was ANNMANLEY with the fact that CAROL ANN MANLEYA AND DAVID PETERSON

NDDAVID PETERSON

were using PLAINTIFFS' inheritance and/or were usingPLAlNTIFFS’ rustfunds and/orttrust fundsto

topay their lawyerswwhat paytheirlawyers hatisbelieved is believedto

to

be be well date and DON LESLIE PETERSON to dateandDONLESLIE

over $200,000 to

well over ("DON PETERSON")testified PETERSON ("DONPETERSON") testified

about DAVID PETERSON'Sppersistent about DAVIDPETERSON’S ersistenttheft and/or self-dealingwith theftand/orself—dealing withregard to RUBY regardto RUBY

PETERSON’S estate and/or PETERSON'S estate and/or the the P ETERSON

PETERSON FAMILYTRUST

FAMILYTRUSTII.

4. PLAINTIFFS 4. PLAINTIFFSwwere essentiallygiven ere essentially givenan offer they could hardly refuse whenRUSSJONES anoffertheycouldhardlyrefusewhen RUSS JONES

threatened costs, sanctions threatened costs, sanctions andguardianship of theirM and guardianshipoftheir OTHER, MOTHER, RUBYPETERSON.

RUBY PETERSON.Inaddition

In addition

to DEFENDANTS’ to DEFENDANTS' fraudulent representationsof fraudulentrepresentations ofintent intentto

tomove RUBYPETERSON

moveRUBY outof

PETERSONout of

SILVERADO, which SILVERADO, was to

whichwas occur imminently to occur imminentlybut neverdid,it butnever wasthisemotional did, itwas this emotionaland and financial

that left PLAINTIFFSfeeling duress thatleftPLAINTIFFS duress asififtheyhad feelingas they hadno rationalcchoice norational hoicebut tosignthe butto sign theonerous,

onerous,

distasteful Rulell distasteful Rule 11 Agreement.

Agreement.

5. Nevertheless, 5 Nevertheless, the"promises"

the made,however "promises"made, wereillusory however fraudulently,were illusoryat best. Illusory at best. Illusory

promises promisescannot

cannotsserve as consideration erveas considerationto

tosupport

bindingontractbecause

supportaa bindingccontract they arenot

because theyare not

enforceable. enforceable. 6. Finally,the Rulell is voidand mustbe 6. Finally, the purported Rule 11 is void andmust be set asidefor illegality. Texaslawis set aside for illegality. Texas law is

unambiguous inproviding unambiguous thatillegalcontractsare in providing that illegalcontracts voidas amatter are voidasa

oflaw.

matter of law.

7. Fortheforegoing PLAINTIFFSrespectfully reasons, PLAINTIFFS respectfullypray thatthe attached Rulell 7. For the foregoing reasons, pray that the purported attached Rule 11 Agreementbedeclared voidandsetaside Agreement be declared void and set accordingly.

aside accordingly.

II. II.

ARGUMENTAND AUTHORITIES ARGUMENT AND AUTHORITIES

8. This Rulell Agreement isvoidforallofthesereasons: fraud,emotional andfinancial 8. This purported Rule 11 Agreement is void for all of these reasons: fraud, emotional and financial duress,illegality, andlackofconsideration. Furthermore, itisvoid,ratherthanvoidable. duress, illegality, and lack of consideration. Furthermore, it is void, rather than voidable.

Silverado Appx. 0601 No. 1-15-567-CV 2080 9. 9. Contract law agreementsmade governs agreements

law govems madeppursuant ursuant torule11.

to oninvv.. Lerner,7S.W.3d rule 11.RRooth 7 S.W.3d 0 883, 883, 8

886 (Tex. App.—Houston

86(Tex. [1st Dist.] 1 App.—Houston [lstDist.] 999,no 1999, pet.).A

nopet.). Acontract is legallybbinding contractislegally inding nlyifits oonly if its

terms sufficientlydefinite resufficiently

terms aare toenable definiteto enableaacourt ounderstand courttto the parties'obligations.

understandtheparties’ obligations.SeeFort See Fort

Worth Indep. S Worth Indep. ch.Dist.

Sch. Dist. v. City of Fort Worth,222 v. CityofFortWorth, S.W.3d831,846(Tex.

2S.W.3d 000)."EEach 831, 846 (Tex.22000)." achcontract contract

0 should b should beeconsidered

considered separately todetermine separately to its materialterms."

determineitsmaterial T.O.SStanley terms."T.O. tanleyBoot o.,Inc.

BootCCo., Inc.vv.

.

11 Bank ofElPaso, Bank of El Paso, 8 47S.W.2d 847 S.W.2d 2218,

18,2221 (Tex. 1

21(Tex. 992).

1992).

A.IILLEGALITY A. LLEGALITY

10. The purportedRulell 10.The Rule 11 Agreement violatesthe void becauseititviolates

Agreementisisvoidbecause thelawwith the

respecttoto the

law withrespect

Texas aand Texas ndHealth

Health aand Safety Code

ndSafety on medical Code on powersoof

medicalpowers attorneyaand f attomey ndthe

theestates

code,which

estates code, which

presumes capacity presumes capacityiin the absenceofclear ntheabsence and convincingevidence of clearandconvincing evidenceby juryfinding. The net

byaa jury finding. Thenet effect effect iis

sthatRuby

that Ruby Peterson

Petersonw aspresumed

was presumedto tohavecapacity ndasassuch, have capacityaand

it was errorforthe

such, itwaserror for the Court to assignRussJones Court to assign Russ Jonesor JillW.

orJill W. Youngto

sign onher

Young to signon

behalf. Furthermore, the 1993 her behalf. Furthermore, the 1993 medical owerof medical ppower of attorney was revoked attorney was

andforeverterminatedn November revoked and forever terminatedoon 15,2013and as

November 15, 2013 andas

such, annotbbee revived such, ccannot evenbyRubyPeterson’s revivedeven by Ruby Peterson'sagreement.

It was alegalfiction

agreement. Itwasa

forthe

legal fiction for the

PARTIES to pretendthatthe 1993powerof attomeygrantedDEFENDANTS had any PARTIES to pretend that the 1993 power of attorney granted DEFENDANTS had any continuingvalidityandtheCourtshouldnothaveratified the same.TTo odo violated Ruby

continuing validity and the Court shouldnot have ratified thesame. doso so violated Ruby

Peterson’srights. Peterson's rights, 11.Section 166.155oftheTexasHealthandSafetyCodeunambiguously provides theabilityto 11. Section 166.155 of the Texas Health and Safety Code unambiguously provides the ability to revoke MEDICALowerof attorneywithoutregardto mentalstatusor competency, suchthat revoke aa MEDICAL ppower of attorney without regard to mental status or competency, such that

personcan aa person thesame revokethe canrevoke sameeven if incompetent.Tex.Health.Saf.Code166.155. A even if incompetent. Tex. Health. Saf. Code 166.155. A MEDICAL is not‘DURABLE’

powerof attomey likeits becauseit does MEDICAL power of attorney is not 'DURABLE' like its financial counterpart, because it does notbecome effective until personiissdeemedincapacitated.Forthisreason,"Durable Powerof not become effective untilaaperson deemed incapacitated. For this reason, "Durable Power of Attomey" necessarily means"Financial PowerofAttorney," notmedical. Attorney" necessarily means "Financial Power of Attorney," not medical.

Silverado Appx. 0602 No. 1-15-567-CV 2081 12. T 12. heTexas

The Coderregarding and Safety Code

Texas Health and egardingMedical of Attorneyprovides Medical PowersofAttorney providesthatonly that only

0 1 the the principal can power of can terminate aa medical power canrevoke of attorney,can evenifif incompetent revokeeven incompetent 0 and without rregard andwithout egardto competency,and to competency, once revoked, and once revoked,the

the document is terminated documentis terminatedaand nd

cannotbe revived by aa settlement cannot be revivedby greement.SSec.

settlement aagreement. ec.166.155. This isparticularly 166.155.Thisis particularlytrue astoto trueas

RubyPeterson, Ruby Peterson, w hoispresumed who competentuunder is presumedcompetent the Texas Estates Code untildetermined ndertheTexasEstatesCodeuntil determined

by by a jury to

a jury beincompetent to be by clear incompetentby andconvincing clearand evidence.AAreviewof convincingevidence. caselaw review ofcase law

0 concerningtherights concerning the rights o the disabled andincapacitated offthedisabled and incapacitatedto refusem torefuse edical

medical supportsthis treatmentsupports treatment this

premise premise andbased upon the and based upon Amendment, 5thAmendment, 14thAmendment,

the 14th aswell 5th Amendment,as wellas the Constitutional as the Constitutional

Right o Privacy. Right tto Privacy. Forthis reason,tthe For this reason, Court erred allowingRRuss heCourterredallowing ussJonesandJillYoung tosignthe Jones and Jill Youngto sign the

agreement agreementononRuby’s

Ruby's b ehalf.Ruby

behalf. Petersonis

Ruby Peterson necessary partyabsent isaa necessary absentfrom theRule11and

from the Rule 11 and

cannot even revive cannot even revive aa terminated powerooffattorney.

terminatedpower attorney.Tex.

HealthandSafetyCode166.155.

Tex. Health and Safety Code 166.155.

Sec. 166.155. REVOCATION. Sec.166.155. REVOCATION.(a)Amedical owerof (a) A medicalppower ofattorney is

attorney is

revoked revoked by:

by:

(1)oral or writtennotification (1) oral or written notificationaat t any timebythe principalto the any time by the principal to the agent licensedr certifiedhealth orraa licensed oor

agent o healthor residentialcareprovider or residentialcare provideror or

by any otheractevidencing by any

specificintentto revokethe power, other act evidencingaa specific intent to revoke thepower, withoutregardowhether without regard tto

theprincipal iscompetent whether the principal is competentor the or the

principal'smentalstate; principal's mental state; (2)execution bytheprincipalof subsequent medicalpowerof (2) execution by the principal ofaa subsequent medical power of attorney; attorney; or

or

(3)thedivorce oftheprincipaland if the spouseisthe the divorce of the principal andspouse, (3) spouse, if the spouse is the principal'sagent,unlessthemedical powerofattorneyprovides otherwise. principal's agent, unless the medical power of attorney provides

otherwise.

Silverado Appx. 0603 No. 1-15-567-CV 2082

(b) A principal'slicensed (b) A or certified principal's licensedor or residentialcare certified healthor provider whoisis careproviderwho

informedoof informed f or providedwith or provided revocationoof with aa revocation f aa medicalpowerof medicalpower attorneyshall of attorney shall

immediately immediatelyrecord the revocationintheprincipal's recordtherevocation medicalrecord in the principal'smedical recordandgivenotice and give notice

oftherevocation to the agent aand of the revocation totheagent ndany any known healthandresidential known health careproviders and residentialcare providers

currently responsiblefor currentlyresponsible theprincipal's forthe principal'scare. Added byActs1991,72ndLeg.,ch.

care.Addedby Acts 1991, 72nd Leg., ch.

16, Sec. 3.02(a), eeff. 16,Sec.3.02(a), ff.Aug.26, Renumbered from 1991.Renumbered

Aug. 26, 1991. Civil Practice & Remedies from CivilPractice& Remedies

Code Sec. Code Sec. 1 35.005

135.005 and amendedbby

andamended Acts1999,

yActs 76th Leg.,cch.

1999,76thLeg., h.450, ec.11.05, 450,SSec. .05,eff.Sept.

eff. Sept.

1,1999. 1, 1999.

13. The PARTIES ccould 13.ThePARTIES not legally ouldnot legallyagree thataaterminated agreethat owerof terminatedppower attorneyhadvalidity, ofattorney had validity,nnor or

could the Court rratify could theCourt atifythe the same. Instead,their

same. Instead, nlyoption theiroonly optionw tohave asto was haveRuby

RubyPeterson

Petersonexecute

executeaa

new medical new owerof

medical ppower attorney if of attorney if shehadcapacity o do she had capacitytto doso, whichallPARTIESconcedeRUBY so, which all PARTIES concede RUBY

PETERSONlikely PETERSON lacked,though likelylacked, thoughtheycontinue they continueto

beboundbythepresumption ofcapacity to be bound by the presumption of capacity untilsuch is made. until such finding is made. R ussJones acknowledged Russ

thefactthathe understood themedical acknowledged the fact that he understood the medical

power of power terminated attomeyterminated of attorney

w henhe threatened S that he wouldpursue PLAINTIFF

when he threatened PLAINTIFFS that he would pursue uardianshiofRUBY guardianship

seek

PETERSON,

of RUBY PETERSON, seekcosts, fees,andsanctions ainstPLAINTIF FSif they

costs, fees, and sanctionsaagainst PLAINTIFFS if they theRulell. Neitherthead litems DEFENDANTS haveproduced

refused to agree to

to agree nor DEFENDANTS have producedany to the Rule 11. Neither the ad litems nor any legalauthoritieswhichindicatethey had the powertotoagree legal authorities which indicate they had thepower to continueusing

agree to continue usingaa medical of

attorney it because suchlegal terminated/revoked medicalpower was never revoked becauseno power of attorney as if itwas no such legal authorityexists.Consequently, theagreementwasillegal andvoid.Texaslawisclearthatany authority exists. Consequently, the agreementwas illegal and void. Texas law is clear that any illegalagreement isvoidas amatter illegal agreement is void asa oflaw.

matter of law.

B.LACK OFCONSIDERATION / ILLUSORY PROMISES B. LACK OF CONSIDERATION / ILLUSORY PROMISES 12.The agreement is voidfor lackof consideration——mutuality of obligation or 12. The agreement is further void for lack of consideration—mutuality of obligation or somethingofvaluegiventoPLAINTIFFS inexchange fortheirpromise to settleclaimsagainst something of value given to PLAINTIFFS in exchange for their promise to settle claims against

Silverado Appx. 0604 No. 1-15-567-CV 2083 them.Consideration consists them. Consideration consists ofeither of benefit

either aabenefit thepromisor tothe to ora

promisor or detriment

a detriment tothe

to promisee.

thepromisee.

See Tamez Transp.,Inc.,155 MotorTransp.,

Tamezv.v.Southwestern Motor S.W.3d Inc., 155 S.W.3d 564, 571(Tex.

564,571 App.-San

(Tex. App.-San Antonio

Antonio

2004,no 2004, isaa present no pet.). Consideration is present exchange exchange bargained forin

bargained for returnfor in return promise.Roark foraa promise.

Stallworth v.Stallworth v. Oil&Gas,

Oil & Gas, IInc.,

nc.,813S.W.2d 492,4496

813 S.W.2d 492, 96(Tex.

(Tex. 1991). Consideration 1991).Consideration consistof mayconsist may of

right,interest,

someright, some interest, p

profit, benefitthat

rofit,or benefit to one accruesto

that accrues party;or, oneparty; alternatively, or,alternatively, of some of some

forbearance,loss, forbearance, loss, or responsibility or responsibility thatis

that is undertakenor incurredby or incurred theother

by the otherparty.

party.

Frequent FlyerDepot,Inc.

Flyer Depot, Inc. v. Airlines,Inc., Am.Airlines, v. Am. S.W.3d215, 281S.W.3d

Inc., 281 215, 224 (Tex.App.—Fort 224(Tex. App.—Fort

Worth2009, Worth 2009,pet. denied).

pet.denied). Paying

Paying money

money surrendering

orsurrendering or aa legal ordinarily rightordinarily

legalright represents valid represents valid

consideration. consideration. See GasCo.

See N. Natural Gas v.Conoco, Co. v. S.W.2d603,607 986 S.W.2d

Inc., 986

Conoco,Inc., 603, 607 (Tex. 1998).

(Tex.1998).

WhilePLAINTIFFS While PLAINTIFFSgave somethingof gave something value, tthey of value, received n heyreceived othingof

nothing of return andwere returnand were

promised nothing promised inreturn.

nothing in Thepromises return.The madeby promises made byDEFENDANTS DEFENDANTS were wereillusory. An illusory Anillusory

promise isnot promise is consideration notconsideration underTexas under law.As

Texaslaw. Assuch, theRule such, the Rule 11 Agreement ll Agreement isvoid.

is void.

13.Lackof 13. consideration Lack of consideration is thefaceof evidentfrom the is evident thedocument, face of the whichgivesPLAINTIFFS document, which gives PLAINTIFFS

nothing nothing ofvalue

of inreturn for

value in fortheir agreement their agreement tosettle to claims

settleclaims asserted

asserted against

against DEFENDANTS.

DEFENDANTS.

Thepromises The illusory wereillusory

promises were because because theywere

they incapable

wereincapable ofenforcement of byPLAINTIFFS enforcement by dueto:

PLAINTIFFS due to:

(a) the (a) failureto

the failure to specify dateby specifyaadate whichRUBYPETERSON bywhich wouldbe RUBY PETERSON would movedout be moved of

out of

SILVERADO SILVERADOand

and (b) thelack

(b) the lackof authority of authority DEFENDANTS

DEFENDANTS had determine hadtotodetermine whether whether

PLAINTIFFS PLAINTIFFS begranted wouldbe would feesby

granted fees bythe Court.Notably, the Court. Notably,theagreement the agreementdidnot

did promise

not promise topay

to pay

theirfees; butrather, their fees; but DEFENDANTS rather, DEFENDANTS merely p merely romised

promised not to object

notto object tto theirfees.

o their Without

fees. Without aa

promise promise thatPLAINTIFFS’ attomeys’

that PLAINTIFFS' attorneys' feeswould fees bepaidby

would be DEFENDANTS, paid by DEFENDANTS, the question of thequestion of

whether whether PLAINTIFFS

PLAINTIFFS were granted ffees were granted eesis solelywithin is solely thediscretion within the oftheCourt.

discretion of Notably, the Court. Notably,

promising

afterpromising after notto objectto not to object PLAlNTlFFS’

toPLAINTIFFS' fees, DEFENDANTS fees,DEFENDANTS didjustthatwhen did Sarah

just that when Sarah

Pacheco Pacheco filed objections

filedobjections to PLAINTlFFS’

to feeapplication.

PLAINTIFFS' fee application.

Silverado Appx. 0605 No. 1-15-567-CV 2084 14.A 14. must b

A contract must beebased upon aa valid based upon in otherw consideration,inother

valid consideration, words,mutuality ords,mutualityofobligation.

of obligation.

See Texas Gas Util.Co. SeeTexasGas Barrett, 4460 v. Barrett,

Util. Co. v. 409, 412 (Tex.1970);Langley S.W.2d409,412(Tex.1970); 60S.W.2d v.Norris,141 Langleyv. Norris, 141

Tex.405,173S.W.2d Bureau Cotton 454, 458 (1943); Texas Farm Bureau Tex. 405, 173 S.W.2d 454,458(1943);TexasFarm CottonAss'n v.Stovall, Ass'nv. Stovall,1113

13Tex.

Tex.

273, 253 S.W. 1101, 1105(1923). 273,253S.W.1101,1105 Consideration (1923). Consideration is aa bargained is bargainedfor exchangeooff promises.

for exchange promises.

Roark v. StallworthOil Roark v. Gas,Inc., &Gas, Oil& 813SS.W.2d Inc.,813 .W.2d 492,496

492, Considerationconsists (Tex.1991). Consideration 496(Tex.199l). consists

of benefits anddetriments of to thecontracting and detrimentsto parties. Roark,8813 the contractingparties.Roark, 13S.W.2d S.W.2dat 496. The

at 496. The

detriments inducetheparties mustinduce

detrimentsmust maketthe tomake

the partiesto hepromises andthepromises promisesand the promisesmust inducethe mustinduce the

parties to incur partiesto incur thedetriments. Roark, the detriments. Roark, 813 S.W.2d 813 at 496.

S.W.2dat A contractthatlacks 496. Acontract that lacks

consideration, lacks mutualityofobligation consideration,lacksmutuality andisunenforceable.

of obligationand

SeeTexasFarmBureau,

is unenforceable. See Texas Farm Bureau,

253 S.W. 1 253S.W. 101at

1101 1105. If

at 1105. contract lacks a purported contract If a

mutuality ofobligation, such here,itis lacks mutuality of obligation, such as here, it is

not enforceable not and void.T enforceableandvoid. hisisisthe This casewhere

thecase whereone

promise isillusorys nothing one party's promise is illusoryaas of

nothing of

valueis givento value is given thepromisee.

to the promisee. Notably, DEFENDANTS

Notably,DEFENDANTS failed failedto

honoreventheillusory to honoreven the illusory

made—of moving

promises made—of promises moving R UBYPETERSON RUBY PETERSONfrom

SILVERADO

from SILVERADOto

suitable facility and/or

toaa suitable facility and/or

not objecting not o PLA1NTIFFS’

objectingtto

feeapplication.

PLAINTIFFS' fee application.

15.Anillusorypromiseanpotentially becomeconsideration ifvalueisgiventosupportit, 15. An illusory promise ccan potentially become consideration if value is given to support it, but occurredhere.Light that neveroccurred CellularCo. Tex.,883S.W.2d642,647 but that never here. Lightvv.. Centel Cellular Co. of Tex., 883 S.W.2d 642, 647 (Tex.1994).DEFENDANTS nevermovedRUBYPETERSON as agreedto intheRule11and (Tex.1994). DEFENDANTS never moved RUBY PETERSON as agreed to in the Rule 11 and violatedtheirpromisenot toobject PLAINTIFFS’ feesbydoingjustthat.Thereisnothing of violated their promisenotto objectto to PLAINTIFFS' fees by doing just that. There is nothing of value flowingo thePLAINTIFFS thatiscapable ofenforcement. Assuch,theContract failed value flowing tto the PLAINTIFFS that is capable of enforcement. As such, the Contract failed and isvoid forlack ofconsideration and is void for lack of consideration

15.TheTexasSupreme Courthasheldthatanagreement containing illusory promisesis notan 15. The Texas Supreme Court has held that an agreement containing illusory promises is not an enforceablecontractandcanonlypotentially become enforceable ifthepromised valueisgiven enforceable contract and can only potentially become enforceable if the promised value is given to thepromisee. Lightv. CentelCellularC0.ofTex.,883S.W.2d642,647(Tex.1994). It is to the promisee. Light v. Centel Cellular Co. of Tex., 883 S.W.2d 642, 647 (Tex.1994). It is

Silverado Appx. 0606 No. 1-15-567-CV 2085 indisputable indisputable thatDEFENDANTS that DEFENDANTSnever avePLAINTIFFS neverggave and in fact,ssought of valueandinfact,

PLAINTIFFS anythingofvalue ought to denythem to deny attorneys

them attorneys feesafterpromising not to object fees after promisingnotto objecttto them. F o them. irstandforemost, First and foremost,an

an

0 li agreementnot to object agreementnotto toPLAINTIFFS’

objectto attorneysfees, PLAINTIFFS' attomeys venifkept, fees,eeven if kept,is not"value"

isnot "value"sufficient

sufficientto

to

er support the "mutualityooff obligation"

the "mutuality obligation" requirement requirementfor

foraa contract

contract tto beenforceable.

o be enforceable.

DEFENDANTS neverhad DEFENDANTSnever haddiscretion overwhetherPLAINTIFFS discretionover were whether PLAINTIFFS paid were feesininthe

paidfees the

guardianship or tortaction guardianshipor actionandcould and couldonly agreeaffirmatively onlyagree paytheirfeesin affirmativelytotopay termsof their fees interms of

10 consideration, consideration,whichtheydid which they didnot. Second, aa promise not. Second, promise tto o move RUBYPETERSON

moveRUBY PETERSON from

from

SILVERADO SILVERADOw ithoutaadeadline without deadlinebby

ywhichDEFENDANTS wereobligated which DEFENDANTSwere obligatedtotodo so,isisillusory doso, illusory

because because iitt is

is incapable

incapable ofenforcement.

of enforcement.Assuch, ovalidconsideration As such,nno valid considerationexisted existedto supportthe

tosupport the

nakedpromises, naked promises, suchthatPLAINTIFFS such that PLAINTIFFShave no obligation haveno o release obligationtto DEFENDANTSandthe releaseDEFENDANTS and the Rulell must bbe Rule 11 must e set

set aside as void.

aside as void.L ightvv..Centel Light Co. of Tex.,8883 Centel CellularC0.ofTex., 83S.W.2d S.W.2d6642,

42,6647

47

(Tex.l994). Anillusory (Tex.1994). .. An promise,like illusory promise, consideration, likenominal consideration, lookslike contractaand looks likeaacontract ndsounds sounds

like contract butitis like aa contract but it is not contractbecause not aa contract oneofthe becauseone of the partiesis notbound.

isnot bound.Because

Becausean anillusory

illusory

illusoryppromise

promise forms promise contract inwhich forms aa contract in which only partyisrequired oneparty

onlyone is requiredtotoperform, anillusory perform,an romise isis

not valid not valid consideration

consideration andneither

and neitherparty

partyto contractcontaining toaacontract containingan illusorypromiseisbound an illusorypromiseis boundbby

y

the the contract.

contract.

C.FRAUDULENT INDUCEMENT C. FRAUDULENT INDUCEMENT

16.Asimple examinationofDEFENDANTS’ actions, fromthetimetheRulell wassigned 16. A simple examination of DEFENDANTS' actions, from the time the Rule 11was signed untilRUBY PETERSON died on hospice until RUBY PETERSON diedon hospice at SILVERADOJanuaryll, 2014,demonstrates that at SILVERADO January 11, 2014, demonstrates that CAROLANNMANLEY ANDDAVID PETERSONfraudulently induced PLAINTIFFS into CAROL ANN MANLEY AND DAVID PETERSON fraudulently induced PLAINTIFFS into agreeing agreeingto

the Rulell by promisesthey never intended to the Rule 11 by promises they never to keep.Werethat not so,

intended to keep. Were that not so, DEFENDANTSwouldhaveevidenced ofgoodfaithtowards performance.Not once DEFENDANTS would have evidencedaa modicum of good faith towards performance. Notonce any effortsto evenlocatea suitablealternative did CAROLANNORDAVIDcommunicate did CAROL ANN OR DAVID communicate any efforts to even locate a suitable alternative

Silverado Appx. 0607 No. 1-15-567-CV 2086 facility forRUBY PETERSON,butinstead, for RUBY PETERSON,but instead,they they allowedher todie

herto atSILVERADO

dieat SILVERADOand

andnever

never

once communicated once communicatedgoodfaith good faith effortto move her to move her to PLAINTIFFS.

to PLAINTIFFS. PLAINTIFFStried PLAINTIFFS triedto

to

communicate and llearn communicate and earnwhen whenRUBY tobe

wasto

RUBYwas bemovedonmultiple movedonmultipleoccasions

occasionsand

andw ere

were metwith

met with

open hostility open hostility rrather

atherthangoodfaith.

than good faith. S arahPacheco’s Sarah Pacheco's objection totheirfee objectionto request sshortly their fee request hortly thereafter thereafter iis

s additional

additionalproofthatthey neverintended proof that theynever tocomply intendedto complywiththe agreementwhenthey with theagreement when they signed signed iittandfraudulently and fraudulently induced

inducedPLAINTIFFS signit.

tosign

PLAINTIFFSto it.

17. PLAINTIFFS signed 17. PLAINTIFFS signed the the Rule with tthe

11 with

Rule 11 heunderstanding understandingthat

thatRUBY

RUBYPETERSON

PETERSONwould

wouldbe

be

moved moved imminently

imminentlyand gave DEFENDANTS and gave windowofopportunity DEFENDANTSaawindow find suitablelliving tofindsuitable

of opportunityto iving arrangements, which arrangements, was abused.

which was abused. HadPLAINTIFFS Had PLAINTIFFSknown

knowntthat

hatDEFENDANTS

DEFENDANTShad nointent

hadno intent

to move R to move UBYPETERSON

RUBY or intended PETERSON or todispute intendedto disputettheir

heirfees,

fees,tthey

heywould everhhave

wouldnnever avesigned

signedthe

the

agreement. The promises agreement. The were material, promiseswere evenifillusory.

material,even if illusory.

17.For fraudulentnducement, 17. For fraudulent iinducement, the

theagreement mustbe

agreementmust setaside beset asvoid.UnderTexaslaw, asideas void. Under Texas law, fraudulentinducementexists whereaaparty fraudulent inducementexistswhere partyproves: 1) aamaterial proves:((1) materialrrepresentation, epresentation,(2)that

(2) thatwas

was

false,(3)that was either false, (3) that was

knownto befalsewhenmade

either known to be false when madeorwas assertedwithoutknowledge ofthe or was asserted without knowledge of the (4)that intended beacted was intended to

truth, (4) that was

(5)

to be actedupon,

relied

upon, (5)was

was reliedupon,

and(6)thatcausedinjury.See upon, and (6) that caused injury. See [Plastics

Corp.USA PresidioEng'rsContractors], Formosa [Plastics Corp. USA v.

960S.W.2d[41,]47 [(Tex.

v. Presidio Eng'rs Contractors], 960 S.W.2d [41,] 47 [(Tex.

1998)];DeSantis 1998)]; DeSantis v.

WackenhutCorp.,793S.W.2d 670,688(Tex.1990), denied, 498U.S. v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990), cert. denied, 498 U.S.

1048,111S.Ct.755,112L.Ed.2d 775(1991)."Apromiseof performance constitutesan 1048, 111 S.Ct. 755, 112 L.Ed.2d 775 (1991). "A promise of future performance constitutesan actionablemisrepresentation ifthepromisewasmade actionable misrepresentation if the promisewas withnointention

made withno

of atthetime

intention of performing at the time itit was made."Formosa, 960S.W.2dat 48. Circumstantial evidence is to prove was made." Formosa, 960 S.W.2d at 48. Circumstantial evidence is sufficient toprove fraudulentinducement andthe merefactthatDEFENDANTS took actioninpursuitoftheir fraudulent inducement and themerefact that DEFENDANTS tookno no action in pursuit of their promiseto move RUBY promise to move

fromSILVERADO forsixtydays—to evendemonstrate a modicum RUBY from SILVERADO for sixty days—to even demonstrate a modicum of goodfaith——shows ThehostilitywithwhichPLAINTIFFS inducement.

fraudulent have of good faith—shows fraudulent inducement. The hostility with which PLAINTIFFS have

Silverado Appx. 0608 No. 1-15-567-CV 2087 continuously continuouslybeen met after signing been met he purportedRulell signing tthe Rule 11 Agreementprovides moreevidence providesmore evidence

thatDEFENDANTS that DEFENDANTS tricked

trickedtthem

hemintosigning

into signingiittand neveriintended andnever ntended totocomply.

comply.

18. Fraudulent inducement 18.Fraudulent canalso inducementcan occurbby alsooccur ynondisclosure nondisclosurewhen

whenthePARTY

the PARTYhas

has aduty

dutyto

to

in disclose. YI disclose. DEFENDANTS

DEFENDANTShad

hadaa duty

dutyto move RUBY

tomove RUBYPETERSON

PETERSONfrom

fromSILVERADO

SILVERADOingood

in good

faithandwouldhave faith and would have alerted PLAINTIFFS f the PLAINTIFFSoof thesame—if

same—ifthey wereactingin

theywere acting ingoodfaith.

good faith.

CONTRACTSmustbe CONTRACTSmust seta

beset side

aside orvoided

or voidedif

ifthere

thereisevidence

is evidencethat

thatAPARTY wasffraudulently A PARTYwas raudulently

induced to sign induced to an agreement sign an or did

agreement or so under did so under duress. The elements duress. The elementsofa causeof ofacause ofaction

actionfor

forffraud

raud

bynondisclosure by nondisclosure are

are

(l) (1) thedefendant

the defendant failed odisclose failedtto disclosefacts othe factstto the plaintiff;

(2) (2) thedefendant

the defendant had

had aa duty todisclose

dutyto disclosetthose

hosefacts;

facts;

(3) (3) thefacts werematerial;

the factswere material;

(4) (4) thedefendant

the defendantknew

knewtheplaintiff wasignorant the plaintiffwas ignorantofthefacts of the factsandtheplaintiff and the plaintiffdid

didnot

not

have an equal have an equal oopportunity pportunity todiscover

to discoverthefacts;

the facts;

(5) (5)

thedefendant the defendant was

deliberately was deliberatelysilent

silentwhen

ithad dutytotospeak;

when it hadaaduty speak;

(6) (6)

byfailing o disclose by failing tto

thefacts,thedefendant intendedtoinduce disclose the facts, the defendant intendedto theplaintifftotake

induce the plaintiffto take someactionor refrain some action or

fromacting;

refrain from acting;

(7) theplaintiff relied nthedefendant’s the plaintiff reliedoon

nondisclosure; and

the defendant's nondisclosure; and (7) (8) theplaintiff

the plaintiff was

injured resultofactingwithout thatknowledge. was injuredaassaa result of acting without that knowledge.

(8)

Syst.,Inc. TGS—NOPEC Co.,L.P., 335 S.W.3d297, 306 v.TGS—NOPEC Geophysical Co., L.P., 335 S.W.3d 297, 306 Reservoir Syst., Inc. v. (Tex.App.—Houston [14thDist.]2010,pet.denied). (Tex.App.-Houston [14th Dist.] 2010, pet. denied). 19._WhethertheCourt deems DEFENDANTS’ fraudulent inducement tobe 19. Whether the Court deems DEFENDANTS' fraudulent inducement to be affirmativeor fraud or fraud

bynondisclosure ofmaterial facts—it isclearthatDEFENDANTS madethe promise by nondisclosure of material facts—it is clear that DEFENDANTS made the illusory promise withnointention tokeepit.Evidence tosupport thisliesintheirfailureto demonstrate good with no intention to keep it. Evidence to support this lies in their failure to demonstrate good

Silverado Appx. 0609 No. 1-15-567-CV 2088 faith to performtheir faith to theirppurported urported obligations.Not oncedidthey Notonce did theyevidence evenaascintilla evidenceeven scintillaofgood of good

faithin faith in theiractions.

their actions. DEFENDANTS DEFENDANTSdid notkeep

didnot of theirpromises anyof

keepany their promisesandclearly and clearlynnever

ever

0 11 intendedto do intendedto do so. Were it so. Were it not so, SARAH not so, SARAH PACHECO

PACHECOwouldnothave

wouldnothavedisputed

disputedPLAINTIFFS’

PLAINTIFFS'

1 fees after ppromising fees after romising not todothis notto as"consideration"

do thisas "consideration"forthesettlement.

for the settlement.

0 D.E D. MOTIONAL

EMOTIONAL AND

ANDFINANCIAL

FINANCIALDURESS

DURESS

20.Finally, 20. Finally, where

where dduress

uresseexists,

xists,emotionally contractisvoid.

or financially,aacontract emotionallyor exaslawdefines is void.TTexas law defines duress duress iin

nfourelements:

four elements:(1)there isaathreat (1) thereis o do threattto actwhich someact do some whichthethreatening partyhas the threateningparty hasno no

legalright to do;(2)the legal right to threatmust do; (2) the threat mustbe ofsuch beof character

suchcharacter to destroy

to destroy tthe

hefree agencyoof

free agency fthe

the

10 threatened arty;(3)therestraint threatenedpparty; (3) the restraintccaused ausedbythethreat

by the threatm

must beimminent;

ustbe imminent;and(4)thethreat and (4) the threatmust

must

besuchthatthethreatened partyhas be such that the threatenedparty no present has no present m

means of protection.

eansof protection. McCallum McCallumH ighlands,

Highlands,

Ltd. Ltd. v. Washington

v. Washington CapitalDus,Inc.,66F.3d89,92 Capital (5th Cir. 1995);

Dus, Inc.,66 F.3d 89, 92(SthCir. v.Alcoa 1995); Perezv. AlcoaFujikura, Fujikura,

F. Supp.991,

Ltd.,969F. 1012(W.D.Tex.

Supp. 991, 1012 1997);King (W.D. Tex. 1997); v. Bishop,879 Kingv. Bishop, 879 S.W.2d222,223-24 S.W.2d 222,223-24

(Tex.App.-Houston (Tex.App.-Houston 1994,

1994,N

NOOwrit).

writ).

21.RUSSJONES 21. RUSS JONEShad to threaten no right to

had no

sanctions nd costs

threaten sanctions aand

against LAINTIFF S, asasthere costs against PPLAINTIFFS, there

was basisforeither.Infact,heviolated Texas RuleofProfessional 4.04 no basis for either. In fact, he violated Texas Disciplinary Rule of ProfessionalConduct was no Conduct 4.04 bythreatening actionsolelyforthe purposeooff obtaining by threatening action solely for the purpose advantageto thePLAlNTIFFS’ an advantageto

obtainingan the PLAINTIFFS'

detriment—andhisown cclient, detriment—and his own

lient, RUBYPETERSON. Thecombination offinancial duress and RUBY PETERSON. The combination of financial duress and emotionalduress,watching theirmotherslowlydiefromdrugsandneglect,astheir emotional duress, watching their mother slowly die from drugs and neglect,as legalfees

their legal fees

piled piled up

whileCAROL ANNMANLEY ANDDAVID PETERSON engaged inpersistent selfup while CAROL ANN MANLEY AND DAVID PETERSON engaged in persistent selfdealingwiththeirinheritance , dealing with their inheritance,was sufficient todestroy PLAINTlFFS’ freewillandduressthem was sufficient to destroy PLAINTIFFS' free will and duress them intosigning theRulel1.MACK PETERSON testifies thathewouldnothavesigned butforthis into signing the Rule 11. MACK PETERSON testifies that he would not have signed but for this duress,norwouldLONNY ORDONPETERSON havesigned.PLAINTIFFS left duress, nor would LONNY OR DON PETERSON have signed. PLAINTIFFSwere werewere

were left

withnoreasonable choicebuttosignthedistasteful Rule11,iftheyhopedto savetheir mother’s with no reasonable choice but to sign the distasteful Rule 11, if they hoped tosave their mother's

Silverado Appx. 0610 No. 1-15-567-CV 2089 life.Yet,despite life. Yet, despite theirsignatures, their signatures,RUBY

RUBYPETERSON

PETERSONwas movedanddied notmoved

wasnot astheyfeared and diedas they fearedatat O SILVERADO. SILVERADO.

LL 22.PLAINTIFFS 22. PLAINTIFFSfiledthislawsuit filed this lawsuitto savetheirmother’s tosave their mother's llife ifeand

and spent over $200,000,

spentover $200,000,which which

theyhave not beenreimbursed. they have not Atthe been reimbursed.At sametime,they the same werelied time, theywere to,threatened liedto, threatenedaand

ndforcedinto

forced into

the corner as theywatched the corneras they watched theirmotherdie their mother die andinheritance and inheritance sstolen

tolenby

by DEFENDANTS.

DEFENDANTS.RUSS

RUSS

JONES JONES stated

statedtthat

hatifthey

if they did

did not signthe

not sign theagreement,

agreement, RUBY

RUBY P ETERSON

PETERSONwould everleave wouldnnever leave

0 SILVERADO SILVERADO SENIOR

SENIOR L IVING

LIVING((the

thefacility

facilityddrugging

ruggingher todeath

herto deathandfalsely

and falselyiimprisoning

mprisoning her)

her)

andthis was enough and this was to effectively enoughto estroythePLAINTIFFS’

effectivelyddestroy the PLAINTIFFS'freewill.It was anoffertheytruly free will. Itwasan offer they truly could not afford could not to refuse, afford to otheysigned refuse, sso it. Clearly,theforegoing they signed it.Clearly, andfinancial the foregoingeemotional

motional and financialduress duress

is to satisfy is sufficient to satisfy T exasllaw, Texas aw,rrendering

enderingtheContract

the Contractvoid.

void.SSee

ee AffidavitofMack

of MackPPeterson.

eterson.

III. III.PRAYER

PRAYERFORRELIEF

FOR RELIEF

22.In lightof thearguments 22. In light of the argumentsaand ndauthorities

authorities ccited

itedherein,

herein,aand

ndDEFENDANTS’

DEFENDANTS'duress,

duress,ffraud,

raud,

lack of consideration,

and the illegality ofthe

lack of consideration, and theillegalityof Rule the Rulell,11,ititmust

mustbe set aside

beset as void.

aside as void.

PLAINTIFFS thatthisHonorableJudge setasidethe pray that this Honorable Judgeset PLAINTIFFSpray aside the purportedRulell Rule 11Agreement

Agreementas

as

void.PLAINTIFFS void. PLAINTIFFS further request allotherandfurtherreliefo which request all other and further relieftto they arejustly

which theyare

entitled

justly entitled

at lawor inequity. at law or in equity.

submitted,

Respectfully submitted, PhilipM.Ross SBN17304200 Philip M. Ross 1006

Holbrook

Road

SBN 17304200 1006 Holbrook Road

210/326-2100 Phone: SanAntonio,Texas78218 San Antonio, Texas 78218 Email:lawhotmail.com Phone: 210/326-2100 ross Email: ross lawhotmail.com

'F5'airfnee- a-ona.,/ Pv% Candice

Leonard

Schwager

Candice Leonard Schwager SCHWAGER

LAWFIRM

24005603 SBN SCHWAGER LAW FIRM SBN 24005603

Silverado Appx. 0611 No. 1-15-567-CV 2090

1417 Dr.

Ramada Dr.

Houston, Texas77062 Houston, Texas 77062 TEL: TEL: 832.315.8489 FAX: FAX: 832.514.4738 schwagerlawfinnAlive.com

FORDON

ATTORNEYS LESLIE

PETERSON,

ATTORNEYS FOR DON LESLIE PETERSON, MACKEY PETERSON,

GLEN ANDLONNY

PETERSON MACKEY GLEN PETERSON, AND LONNY PETERSON

CERTIFICATE

OFSERVICE

CERTIFICATE OF SERVICE

CANDICESCHWAGER, I, CANDICE I, SCHWAGER,hereby hereby certify that on this that on dayof

this 23"1 day MARCH,

of MARCH, 2015,

2015,

the pleading the foregoing pleading was e-filed and was and served upon allcounsel upon all ofrecord counsel of inaccordance record in with accordance with

theTexas Rulesof the Texas Rules ofCivil

Civil Procedure.

(&andlecte geomaod Orekoecipep

Silverado Appx. 0612 No. 1-15-567-CV 2091

TAB 75

' PILED 4/3/2016 2:19:28 PM

Sion Simon

I

DATA EN I, RY County Clork T61 TIUS DATE Harris County

Cause No. 427208 PROBATE COURT 1 ·

wN INTHE IN THEGUARDIANSHIP

GUARDIANSHIP OF

OF §§ IN THE PROBATE COURT INTHE COURT

RUBYS. RUBY S.PETERSON,

PETERSON, §§ NUMBER NUMBER ONE(1)

ONE (1)OF

OF

ANINCAPACITATED

PERSON

AN INCAPACITATED PERSON § § COUNTY,

HARRIS TEXAS HARRIS COUNTY, TEXAS

AD LITEMS’ AD LITEMS' MOTION

MOTION FORENTRY

FOR ENTRYOF JUDGMENT

OFJUDGMENT ON BINDING

ON BINDING NON-

NON-

REVOCABLE REVOCABLE SETTLEMENT

SETTLEMENT AGREEMENT

AGREEMENT PURSUANT

PURSUANT TOSECTION 1055.1S1(C)

TO SECTION 1055.151(C)

wi OFTHE OF THETEXAS

TEXASESTATES CODE

ESTATES CODE

N.

TO THE TO THE HONORABLE

HONORABLE LOYD

LOYD H. WRIGHT:

H.WRIGHT:

COMENOW, COME NOW, JILL YOUNG,

JILLYOUNG, actingin

acting inher as Guardian her capacity as Guardian A Litem forthe AddLitem for the person

person

andestate and ofRuby

estateof S.Peterson

Ruby S. andW.

Peterson (deceased) and W.R USS RUSS JJONES,

ONES, acting

acting inhiscapacity

in his capacity as

as

Attorney Attorney AdLitem

Ad forthe

Litem for person

the person and ofRuby andestate of Ruby S Peterson (deceased), S..Peterson and file this (deceased), and this their their

ADLITEM’S AD MOTION

LITEM'S MOTION FOR

FOR ENTRY

ENTRY OFJUDGMENT

OF JUDGMENTON BINDING

ONBINDING NON-REVOCABLE

NON-REVOCABLE

SETTLEMENT AGREEMENT SETTLEMENT PURSUANT AGREEMENT PURSUANT TOSECTION OF THE T TO SECTION 1055.151(C) OFTI-IE EXAS TEXAS

ESTATES ESTATES CODE,

CODE, andin

and support

in support would thereof, would rrespectfully espectfully show unto the show unto the Court thefollowing:

the following:

J. BACKGROUND

1. 1. Peterson, MackPeterson,

Plaintiffs Mack andLonny DonPeterson and Don Peterson aand Lonny Peterson their counsel, PhilRoss, ndtheircounsel, Phil Ross, Defendants Defendants CarolAnn

Carol Manley

AnnManley and David

andDavid Peterson

Peterson and their

and counsel,

their counsel, SarahPacheco, Sarah Pacheco,and

and

the Movant the Movant Ad Litems

Ad Litems forthe

for person and

the person and estate of Ruby S estate ofRuby JillYoung S..Peterson, Jill YoungandW.

and W.

Russ Jones RussJones attended

attended mediation

mediation before

before the Honorable

the Honorable Jim Scanlan Jim Scanlan October

onOctober on 29,

29, 2 014.

2014.

2. 2. At mediation,

At theparties

mediation, the reached parties reached mediated aamediated settlement

settlement agreement

agreement (MSA),

(MSA), subject

subject to

to

approval approval bythis

by this Court (See attached (Seeattached Exhibit

Exhibit Awhich

A which is herein isincorporated herein byreference by reference

asififset as verbatim).

forthverbatim).

setforth

Silverado Appx. 0613 No. 1-15-586-CV 3871 3. 3. on November Thereafter, on 7,2014, November 7, the Court authorized, 2014, the authorized, ratified and and approved theMSA

the MSA

andits and itsexecution by

bymovants

movants behalf

onbehalf on ofRuby

of S.Peterson,

Ruby S. as being Peterson, as being iinnthebest interest the best interest

oftheproposed of the proposed ward andher ward and herestate.

estate. 14. atatpage 5.

pageS.

'N II. BINDING NON-REVOCABLE AGREEMENT PURSUANT TO C SEC 1055.151

TEXAS ESTATES CODE SECTION 1055,151 4. 4. anintegral part oftheMSA, Asan As allparties of the MSA, all parties agreed, in that tthe in writing, that hemediated settlement agreement agreement was BINDING

was BINDING AND NON-REVOCABLE ANDNON-REVOCABLE pursuant Section toSection

pursuant to 1055.151 1055.151 of

of

the the Texas Estates

Estates Code.

Code. Id. at

atpage 3.

page3.

0 5. 5. Inprominently displayed, bold In prominently displayed, face,20 bold face, 20 pt., allcaps pt., all capsttypeface,

ypeface, the

the agreement

agreement states:

states:

PARTIES

THEPARTIES THE AGREE

AGREE THAT THIS

THAT THIS

AGREEMENT AGREEMENT SHALL

SHALL BEABINDING

BE A BINDING

NONREVOCABLE NONREVOCABLE AGREEMENT AGREEMENT UNDER

UNDER

THE TEXAS E STATES CODE SECTION THE TEXAS ESTATES CODE SECTION 1055.151 1055.151 ISNOT

ANDIS AND SUBJECT

NOT SUBJECT TO

TO

REVOCATION BYTHE PARTIES. REVOCATION BY THE PARTIES.

6. Thenon-revocation statement fullycomplies complieswith the requirements ofSection 6. The non-revocation statement fully with the statutory statutory requirements of Section 1055.15 1055.151(b) because the

1(b)because agreement:

the agreement: (1) inaa prominently displayed statement (1)provides, in statement thatisinboldfaced that underlined, orunderlined,

is in boldfaced typed, or thatthe that agreement is not subject the agreementnot to revocation subject to revocation

bytheparties; by (2)is signed the parties; (2) signedby byeach

each party theagreement;

tothe

party to agreement; and(3)

and bythe

(3) is signed by the

attorney,

party's attorney, whois present any,who if any, present at thetime atthe time the agreement

the agreement issigned.

is signed.

7. 7. Sincetthe

Since henonrevocation statement nonrevocation statement oftheMSA of meets a

the MSA meets allllthe

the statutory requirements requirements of

of

Section1055.151(b), Section 1055.151(b),"a is entitled to judgment on "a party is themediated on the mediated settlement 11, Texas

Rules

ofCivil

Procedure,

oranother

rule

agreement notwithstanding Rule 11. Texas Rules of Civil Procedure, or another rule [Emphasis

of law." [Emphasis added.]

added.] SeeTexas EstatesC See Texas Estates odeSection Code 1055.151

Section 1055.151 ((c).

c).

Silverado Appx. 0614 No. 1-15-586-CV 3872 ·

8. 8. Therefore,

Therefore, Defendants CarolAnn Defendants Carol Manley AnnManley and

and David Peterson andthe Peterson and theguardianship estate estate

ofRuby of S.Peterson

Ruby S. Peterson are entitled are entitled tojudgment

to judgment on themediated onthe mediated settlement agreement

pursuant to Section

to Section 1055.15l(c)

1055.151(c) ofthe

of Estates

the Texas Estates Code,

Code, forwhich

for which they respectfully theyrespectfully

. pray and forwhich prayand for which tthe

heAdLitems

Ad Litems jointly

jointly m ovetthe

move heCourt. Acopy

Court. A oftheproposed copyof the proposed Final

Judgment Judgment containing

containing thematerial

the material terms oftheMSA terms of isattached the MSA is heretoas attached hereto ExhibitB, asExhibit B,and

and

isincorporated

herein

byreference

asifsetforth

verbatim.

is incorporated herein by reference as if set forth verbatim. WHEREFORE, WHEREFORE, PREMISES

PREMISES CONSIDERED, JILL YOUNG, JILLYOUNG, actingin

acting inhercapacity as

her capacity as

AdLitem

Guardian Ad forthe

Litem for person

the person and estateooffRuby andguardianship estate Ruby S.Peterson, and W.

S. Peterson, and W. R USS RUSS

JONES, acting JONES, acting inhiscapacity in Attorney asAttorney

his capacity as Ad Litem forthe AdLitem person a for the person ndguardianship and estate o guardianship estate off

RubyS. Ruby S.Peterson, respectfully Peterson, respectfully request that, request afterddue

that, after notice, theCourt uenotice, the Court to signand to sign andenter

enter tthe

he

attached attached FinalJudgment

Final Judgmentinthis

in cause;

this cause; andfor

and forsuch further

such further general relief; general or special, orspecial, atlaw

at or in

law or in

equity, equity, to which

to which tthey

heymay show themselves

may show themselves justly justly entitled and forwhich entitled and for which tthey heyshall

shalliinnduty

duty bound

bound

forever forever pray.

pray. 'Respectfully

Respectfully submitted,

submitted,

UNDERW0D,JONES&SCHERRER, UNDERWO I D, JONES & SCHERRER, P.L.L.C.By: P.L.L.C.

By:

W.RUSS

J NES

W. RUSS SNES TBA#1068050 TBA # 10 68050 5177Ric 5177 Ric andond Avenue,

Avenue, Suite

Suite 505

505

Houston, Houston, Texas 77056

Texas 77056

Telephone: Telephone: (713)552-1144 (713) 552-1144

Facsimile: (713)781-4448 Facsimile: (713) 781-4448 6onesaujsrnlaw.com

ATTORNEY ATTORNEY AD

AD LITEM FORRUBY

LITEM FOR RUBY S.

S.

PETERSON, ANINCAPACITATED AN INCAPACITATED PERSONE

PERSON

Silverado Appx. 0615 No. 1-15-586-CV 3873

MACINTYRE, MCCULLOCH, MACINTYRE, STANFIELD MCCULLOCH, STANFIELD &

&

YOUNG, L.L.P.

w. W. YOUNG

- .

.A.#00797670 .A.#00797670

2900

Weslayan,

0

2900 Weslayan, Sui Houston, Houston, TX77027

TX 77027

C) Telephone:

Telephone: (713) 572-2900 (713) 572-2900

CLJ Facsimile:

Facsimile: (713) 572-2902 (713)572-2902

N C jill.young@mmlawtexas.com V GUARDIAN GUARDIAN AD LITEM

AD LITEM FOR RUBY

FOR RUBY S.

S.

PETERSON, PETERSON, ANINCAPACITATED AN INCAPACITATED PERSON

PERSON

OFCONFERENCE

CERTIFICATE OF

I certify tthat Icertify hatoonnFriday, Friday, January 9,2015 at 2:33 9, 2015 at 2:33 p.m., in writing with p.m., II conferred inwriting with counsel counsel

for PhilRoss for Defendants, Phil andCandice Rossand Schwager, Candice Schwager, regarding whether they regarding whether wereoopposed they were pposedto

to aa

_ motion enter final judgment motion ttooenter the mediated settle on themediated

judgment on entagreement, settle ent agreement, andandtotodate received havereceived

datehave

no response no response from either.»W.

either.

RUSSO

Silverado Appx. 0616 No. 1-15-586-CV 3874

.

.

CERTIFICATE OF SERVICE

IIhereby

hereby c ertify

certify that a true

that a andcorrect

true and correctcopy the foregoing instrument hasbeen copyoofftheforegoing served has been served

upon thefollowing: upon the following:

SarahPatel Pacheco Sarah Candice Candice Schwager

Schwager

Kathleen Tanner Beduze

Beduze 1417 1417 Ramada Drive

Crain,Caton Crain, Caton&

&James,

James, P.C.

P.C. Houston, Texas77062 Houston, Texas 77062

McKinney,

1401McKinney, 1401 Suite1700 Suite 1700

Houston, Houston, Texas777010

Texas 7010

Philip M.Ross

M. Ross Josh K.Davis Josh K. Davis

1006 1006 Holbrook

Holbrook Road

Road Lewis, Lewis, Brisbois,

Brisbois, Bisgaard

Bisgaard &Smith,

& Smith, L.L.P.

L.L.P.

C) SanAntonio, San Antonio, Texas 78218

Texas 78218 Weslayan Tower, Suite Weslayan Tower, 1400 Suite 1400

V 24 Greenway Plaza 24Greenway Plaza

by email

email and/or on the and/or e-service on dayof the 3' day ofApril, 2015.

April, 2015.

JO S

W.RUSS

Silverado Appx. 0617 No. 1-15-586-CV 3875

".- A1\11',2

Peterson RultallAireeMent

Ifitnarties to this agreement are;

Mack Peterson;

b. Don Peterson

c. Lonny Peterson:

A_

Carol Ann Manley, Individually, as oloWgt Petiestftfedd cotrustee of the Peterson Family Trust no. 2; and

A

David Peterson, Individually; aSegent*Nr.s4ttempn:0tOtrustee of the Peterson Family Trust no. 2. '

ro' Ann Manleyand David Peterson shall continue to acteS eiept fof. Mrs. Peterson pursuant to.the Durable Power of Attorney, Appointment of the Dikehle 'PbWer ofAttorney for Health Care, Directive to'Physicians, Sale of Real Property; et at document dated June 23, 15931.'1993 POW), The parties will jointly request that the COUrt find theaira,FDA.to., be valid end remaining In effect and that any revocation of the 1993 P001'00c0tOtiln NM/ember of 2013 to be invalid.

A 3. Carol Ann Manley and David Peterson agree to locate a newrealdenttaffachity•fpf Mrs.

• Peterson. They will investigate and locate a new facility In %rt....904.0r Harris!:00urityWIth •opmparable ore, Ott athenItiet. The Parties acknowledgialhat.the•neWfaCIIIIYAadtbe a . 14,* • Memory carefecility and maybe as or more expenslyethen.99VerOdis4•: CifoirAini•Meri py a

A

pavict,Peterson Will execute all necessary admissiondocullnentana.litra PeterSon's medical agentaand notify the other parties of the nevddelliti4.

A • Mrs. Reterspos dhiltIten shall the right to visit.hor at reildOValfic1111y seietted.W. . • •

A_

• Carol Ann Manley and-David Peterson as for Mrs, Petersen AnrInknermal visiting host .

provided tilivisitors Shall comply with the rulesehdlegelinforri thist Mine thanene family or familles-rnayvish together;:

.7the. Ps rties agftiti A .••• S. :..Carol Ann Manley ond David Peterson as agentfor Mrs:..Peferstiti WknOtifyDtm,..LOnny p.q0 • .

Mack Peterson ofany $tgolfloont Owlet Um. Peteritaifsinetileel eiondttleei; Dori,: Lonoif • Mack PeterSOnShell:deSignate-en email addreas for such nett* • •

6. 'Mrs, Vaterenre children maytake Der-for outings reSielential facility PrOVIdedlitat .(1).the outingswill•be'409.40!OA:00:Ra001.40.01'. will eciompany Mrs, Peterson, Carol Ann ManiqyarldDield Peterson may extend these times • itkii.ot!tiecigktliat a :OrogIvOlk•OOtregOlrog.0.0r .• A ·- - .. A-

remain medically stable Any PerilOnAvii0. remowie•Mts, Pleerad0f0X/Inhin'00tInitaliall11)Ec... •

Silverado Appx. 0618 No. 1-15-586-CV 3876

‘- .000/111311)Aturn

· medication that needs to be:taken cibring-$ Mrs. Petersanaltp.resarlbed her to the fealty.

thriely. D D 1. No person Prentkraftell attempt to have Mrs. Peterson sign any legal,Medicator:cither • shall Mrs.

prevent

..documents; provided tbpt nothing shall prevent Mrs. Peterson:frOm.SIgnihOOOOOOOOOOOOOOOOO letters Of a lierSonillhoil legal matter.

. • . .. . . __ Carol Ann Manley and David Peterson shall shall continue to serireastriraiee.OfthefPafe.rabh.rarnily Trust DON:Lonny and Mack Peterson approve Carol Adn'Marileir!abdOttvid;FeferSon'S acemintimof Peterson Family Trust no. 2 and agrees to dislitlasialth:prepdice`ill:cia:ims relating Ann and

to' uck-m.15mo two, Carol Ann Manley and David Peterstdri shall corittritie',10Payeity.expenses D initatingctblbettiot from the trust estate.

9, tarisiAnnhrighley and-David Peterson shall continue to serve es.firiencialfp*erSO:eitorney for mrs:•Peterson. Carol Ann Manley and David Peterson acknowiedge,and•agieecthat the Amegy D Ann and aecdunts in the hatne of Carol Ann Manley and David Peterson are..pOwer-of.atterney accounts Ann

and they.WIll.qoqfirril the same to Amegy, Carol Ann Manley anckprov.4..'O.tolOoo011 continue Mrs. andher

0.* any .experoto relating to Mrs. Peterson and her estate as agenii.

The Parties agree to submit the following fees and D.

and expenses rilatlrri. .to•)#.00etiltrgrs ittpfpbote • hurt to:Probate tourt Number 1: -· :prof Ann Peterson and•David Peterson's undiiitifeeSSIntl:egperia.e5;. • •DDD : .

• 1:11:0; Lannyerid :Meet Peterson's legal fees and. eakeiSeslisioilded there shall D. •••• • pb right to seek reimbursement relating to clatheyba!e:rnadp against Silverado);

l'.iusSJOnts and J111 Young's unpaid fees and explifiiite • • .. . __ ;at Anyfees relating; to the guardianship and approved by the Calltlh.kbUlleld.

:PeteirsOresEstate...

.W Mock Peterson•and iris wife, Don Peteraonend his wile ant LOrinY..Pete40:0aWrernor and direat'hisattiatne•ye to remove alt aotlal medial and other PublICVOlisgCtelesing In Mrs: *etersOnt- Carol Ann: Mahley, Steve Marlin Pavia and Betty Peteraoitor;lolatieg to fhis cases

IL Pon, .LcinnYArici Ma tit 'Peteradit afteiltrOlteet wid dismiss with against lifof -. :Arai Manley end DaVidPetrallOrt, in ell

Russ4ones, -All Young, CarotAnn monloy and David Peterson agree. 40thdrowontilOroot seek' ;an-aloha or costa from•MackPetersortand his wire, Don Peterson atokhlawlkLonny .pe*rstip. entilor IMO:goes. '

D D • • • • • 11:1lpeo0Ories •and•J'ilfatbAtwlittequesteourtganniesion to ., :

DD

.` ·. D

Silverado Appx. 0619 No. 1-15-586-CV 3877

A AAAA

A A A 16.Counsel for Carol Ann Manley and David Peterson will circulate a final releaSa:000ifeiiftiKt: 16.

proposed final ItIcightient atinCOrpotates the forgoing terms.

terms, A

V

A.

THE PART1ESAGREE THAT 'THIS AGREEMENT SM.). B&.A BINDING NONREVOCABLE AGREEMENT UNDER THE TEXAS ESTATES CODE SECTION 1055.153. AND IS NOT suBJEcr To AND|

REVOCATION BY THE PARTIES.

Agreed:

ti czy . AA 4-0 Don Peterson

A

Lonny on A A A

A

62fAcej:;2—._ Mack Peterson A A A A A VjA azikonici Phil Ross, as counsel far'Don;•Lohity and Mack Peterson

A A A A A

A

ACaro( Ann Manley A| i |1;

A1

A A A A- A |A|;VA

A A Aj thee°, aS counsel fer *MIMI MatileY

A

A -A

Son

A A

A

VA|

I

-. ; V A AA A A A V AA AAAAAAAAAAA

AAAAAA

Silverado Appx. 0620 No. 1-15-586-CV 3878

A A` V

|_ AV

V A.

AA A AV.A A V V A A _ · V VV _V

V

V A A AA A -'

V V V A A V -· VA V - V V VA VV - V- A V - V - - · V V V A VA V__AA_ AV V A -

.A A A A |A V |_ V AV V :AV A _—

V- AV V

V V A A . V VA AA A AV —V

V V=V V V . V V -V A A _A -

V _ -

VV|V -VA A= - V A V V VV_V; V-| - A A.

V V _-

A -A_V V A A V4 V V V V V VV V V A _;

V - VV V V · · A A __ V V V V · V, A V V VA

V

V `A

V - VV VA

A A V

VV A VA A V V 4 V _‘ V ; A`

A

V V V V_A V . V VV A V V V1 ` V V VA VV4V

V V-

A V: A A V_. V A ` · VV V VV; V

V

A-VV· V V4 A;

V

4 V A A_ V V44 V V V-|

V 4 4 •

V V-__ VV

V 4 V V VV A-A

V A A 4 VV V VA

VV V VVA V 4 A V_:

4 4 A 4 V V - V V V 4.444 -4 - V.

VA 4-V

V

AV

A _ . V

V VA A A _V A A V A V.. A V

A

V VV V V A AA| V A A · , A VA A- V V- V A-

A V V AV A A- V VV V-

V A- - - A`| V, - V V A A`A `A A V. A

V

A A V.| A-A.V

A.| A= A .

;V

-V V A V VV V VV . VV V V - AV -A

· VA A. _ V .V A;

A A, ,

AA

VV V V • V.|• V 1:4 .;V A-

A V A.

V AV

V -A A .- A V V A A .. \: •s, V V A ·A ·V AV V A V AA VA • : .

AV V A - A VAA A VV A.

A

VA. A A A .·. A V V AV V_ __| V _A V -V V·A A ; AA-A V - V Aj A V V A- V V - VA V. _A V A-` · V VV A V V- A V A _ V- V VA V V . VA V

Silverado Appx. 0621 No. 1-15-586-CV 3879

PROBATE COURT

NO.427,208 .4.

114*.ti GUARDIANSHIP OF § Pm PROBATE COURT

t

p PETERSON,

f

§

.

'NUMBER ONE

ONE (1)OF

(I) OF

•• :

i

AN INCAPACITATED

KAPACITATED PERSON §§§ TEXAS . 110,RIS COUNTY, TEXAS i

1

ORDER. GRANTING. AUTHOKTY FOR GUADIAN Al) LRENir & ATTORNEY AD IATEM TOEXECUTE PETERSON RULE 11 AGREEMENT TO

W.Young

On this day Jill W. Young W.

and W. Russ,TOrtea; in their respeetive•Oapacities as Ad as Guardian Ad

Ruby

Litem and Attorney Ad Litem for Ruby S.S,.

Peterson, an IneaPacttateci Person, requested that the

toenter

Cow ,grant them permission to as enter into the PetorsOn B.* is Agreement attached hereto as

4*bit A, and after.considering the request and eA44pot autimitttd, the Court finds that the request sitoPRI be granted, It is therefore, W.|

W.Young and W. RuaaJones,, in their tespective capacities as Guardian ORDERED that Jill W.

.Litem and Attorney Ad Litem for Ruby S. PeterSon, an Inc,apacitated Person, are hereby 1 authorized to execute the Peterson Rule I I Agreement attached Wei° as Exhibit A.

VGNED and ENTERED this 714

-. -. 3 . -

.020200/00000 13D-nal 5ty I

Silverado Appx. 0622 No. 1-15-586-CV 3880

NO. NO. 427,208

INRE: GUARDIANSHIP IN RE: GUARDIANSHIP OF

OF § IN THE PROBATE INTHE PROBATE COURT

COURT

RUBY RUBY PETERSON,

PETERSON, § NUMBER NUMBER ONE(1)

ONE (I)OF

OF

. ANINCAPACITATED AN INCAPACITATED PERSON

PERSON § HARRIS HARRIS COUNTY,

COUNTY, TEXAS

TEXAS

FINikL JUDGMENT

Onthisday, ontobeheard

came the Amended Petition andContest

to

On this day, came on to be heard the Fourth Amended Original Petition and Contest to C Zi Guardianship Application, Application, filed byDonny by Donny L esliePPeterson Leslie eterson andMackey and Mackey Glen

Glen Peterson, andthe

and the

Contest

Answer, Contest theOriginal tothe to Petition

Original Petition forAppointment for ofTemporary and Appointment of andPermanent Guardian ofthePerson of andEstate

the Person and ofRuby Estate of Ruby S.S.Peterson, forDeclaratory Peterson, for Judgment, Declaratory Judgment, andfor and Altemative

for Alternative

Restraining

Relief, Temporary Restraining Order,Temporary Order, Temporary Injunction Injunction andPermanent

and and Permanent Injunction, and supplements supplements thereto, i`iled thereto, filed byCarol

by Carol Ann Manley

AnnManley andDavid

and Peterson,

David Peterson, individually, individually, and as Ruby and as Ruby

Peterson’s Peterson's agentunder

agent durable

underaadurable ofattorney.

powerof power attorney. ThisCourt, This having

Court, having reviewed

reviewed thepleadings

the pleadings

andbeen and advised

been advised thatthe

that requested the relief requested isnot is notopposed byany

opposed by makes party,makes anyparty, thefollowing the following

byapreponderance

oftheevidence:

findings by a preponderance of the evidence:

1. 1. ThisCourt

This Court hasjjurisdiction has urisdiction ofthis

of cause

this cause and

and retains over the retains jurisdiction over the oftheguardianship estateof RubyS.

finalization of the guardianship estate of Ruby S.Peterson, Peterson, Deceased

Deceased ("Mrs.

("Mrs.

Peterson"); Peterson");

2. 2. ThisCourt

This hasvenue

Courthas venueunder

under theprovisions

the ofSection

provisions of 1023.001 Section 1023.001 oftheTexas of the Texas

Estates Codeas Estates Code Mrs.Peterson’s asMrs. residence Peterson's permanent residence inHarris wasin was Harris County,

County,

Texas; Texas;

3. 3. Due notice

Duenotice ofthepleading

of hasbeen

the pleading has givenas been given required

asrequired bylaw;

by law;

4. 4. Mrs. Peterson,

Mrs. Peterson, priorttooher prior herdeath,

death, was served w

was served ithcitation

with citation as required bylaw;!

as required by law;

5. 5. Mack Peterson,

Mack Peterson, DonPeterson Don PetersonandLonny

and Lonny Peterson

Peterson appeared through their appeared through their aattorney ttomey

ofrecord, of record, Philip

Philip R oss;i

Ross;

6. 6. CarolAnn

Carol Manley

ArmManley andDavid

and Peterson

David Peterson appeared

appeared through

through their

their a ttorney

attorney ofrecord,

of record,

SarahPatel Sarah PatelPacheco;

I a

EXHIBIT

Silverado Appx. 0623 No. 1-15-586-CV 3881 7. 7. Theguardianship

The estate o guardianship estate offMrs.

Mrs. P eterson

Peterson appeared byandthrough herattorney by and through her attomey adlitem, ad litem,W.

W.RussJones,

Russ Jones, an attomey anattorney practice topractice

licensed to lawinthe of law in the State of

N Texas;

Texas;

8. 8. Mrs.Peterson's

Mrs. Peterson’s father

father andmother

and motherare

are deceased;

9. 9. Mrs. Peterson

Mrs. Peterson iswidowed.

is widowed.

10. 10. Mrs.Peterson

Mrs. hasfive living Peterson has children:

livingchildren: MackPeterson, Mack Peterson, DonPeterson Don andLonny

Peterson and Lonny

Peterson Peterson CarolAnn

Carol AnnManley andDavid Peterson and David Peterson (collectively, (collectively, the"Parties");

the "Parties");

l1. 11. Mrs.Peterson

Mrs. Petersonhasno

has ofher nopermanent guardian of her person orrestate;

person o estate;

12. 12. Mrs.Peterson

Mrs. Peterson executed

executed Durable

aaDurable Power

Power ofAttomey,

of Appointment

Attorney, Appointment oftheDurable of the Durable

Power Power of ofAttomey forHealth Attorney for Health Care, Directive Care,Directive to Physicians, to Physicians, SaleofRealProperty, Sale of Real Property,

etal., et June23,1993

onJune

al., on (collectively, 23, 1993 (collectively, "Powerof "Power appointing ofAttorney"), appointing CarolAnn Carol Ann

Manley Manley and David

andDavid P eterson

Peterson as her

as her agents;

agents;

13. 13. Mrs.Peterson purported Mrs. Peterson purported ttoo revoke the Power o revoke thePower offAttomey Attorney d atedJune23,1993 dated by

June 23, 1993 by

instruments datedNovember instruments dated November 15,2013;

15, 2013;

14. 14. Theinstruments entitled The instruments entitled Revocation Revocation of Previous

of Previous Power o

Power offAttomey signedby Attorney signed by

Mrs. Peterson Mrs. Peterson datedNovember dated November 15,2013

15, 2013are voidand

arevoid andof

of no

no effect.

15. 15. ThePower

The ofAttorney

Power of Attorney d atedJune23,1993 dated isvalid June 23, 1993 is andremains valid and remains iinn effect;

16. 16. ThePower

The ofAttomey

Power of datedJune Attorney dated June23,

23,1993 provides

1993 provides leastrestrictive aaleast restrictivealtemative alternative

to theappointment of a guardianMrs. P eterson’sperson a ndestate; to the appointment of a guardian of Mrs. Peterson's person and estate;

17. 17. ThePeterson

The Family

Peterson Family T rustN

Trust o.2

No. (the"Tmst")

2 (the created wascreated

"Trust") was underthe under theLast Will

Last Will

andTestament and ofTroy

Testament of Peterson, Troy Peterson, Deceased,

Deceased, datedJune24,1994.

dated June 24, 1994.

18. 18. CarolArm and

Carol andDavid appointed wereappointed

David were initialco-trustees asinitial as co-trustees oftheTrust.

of Since

the Trust. Since

theirappointment their appointment and through tthe andthrough heEffective Date, CarolAnn Date, Carol AnnandDavid have and David have

actedin acted inaccordance withthe accordance with theterms

termsofoftheTrust should andshould

the Trust and bereleased be fromall

released from all

liability liability date.

todate. to

19. 19. OnOctober

On 29,2014,

October 29, resolve toresolve

2014, to disputes, anydisputes, any theParties

the entered

Parties entered iinto binding ntoaa binding

non-revocable non-revocable mediated

mediated settlement

settlement agreement, pursuant to Texas pursuant to EstatesCode Texas Estates Code

Section Section 1055.151,

1055.151, theconclusion atthe at conclusion of

of mediation (the

(the “Agreement");

"Agreement");

20. 20. TheAgreement,

The Agreement, which isattached which is attached hereto

hereto as Exhibit

as Exhibit Aandincorporated A bythis and incorporated by this

referenceas reference as ififfully

fullyset

setout verbatim,

out verbatim, is binding,non-revocable, valid,binding, isvalid, non-revocable,andin the and in the

bestinterest best interest ofofthe

theguardianship estate of guardianship estate RubyS.

of Ruby Peterson,

S. Peterson, andis

and hereby

is hereby

approved;2 approved;

2

Silverado Appx. 0624 No. 1-15-586-CV 3882 21. 21. TheCourt

The hastaken

Court has taken Judicial notice notice ofitsfileandtheprior testimony of its file and the prior testimony in this in this

proceeding. proceeding.

22. 22. Theevidence

The developed

evidence developed the

the above findings andsuch were eachfully and such findings were each fully proved andwere proved and were ssooproved proved in of this Final support ofthis in support Final Judgment.

Judgment

0 23.

This

23. This Final Judgment

Judgment should

should beentered

be entered pursuant to ofthe theterms of to the Settlement the Settlement

attached

hereto

as

Agreement, attached hereto as Exhibit A. A.

TheCourt further The further byclear finds by clear a ndconvincing and evidence

convincing evidence that:

that:

C Ri 1.

1. Therights

The rightsof

ofMrs. Peterson’s

Mrs. Peterson's property

property willbe

will beprotected bythese

protected by these findings.

Itis It is accordingly,

ORDERED, ORDERED, thatthe

that Revocation

the Revocation ofPrevious of Powers

Previous Powers ofAttorney, of allegedly

Attorney, allegedly executed executed by

by

Mrs.Peterson Mrs. PetersonoonnNovember 15,22013, November 15, 013,iissinvalid invalid andshall

and shall bbeevoidandof no effect.

void and of no effect. IIttis is further,

ORDERED, ORDERED, that theStatutory thatthe Durable Statutory Durable Powers

Powers ofAttorney,

of Attomey, allegedly

allegedly executed

executed byMrs.

by Mrs.

Peterson Peterson on November

on November 15, 2013appointing 15,2013 appointing MackPeterson Mack Peterson andDonPeterson and Don Peterson are invalid are invalid and

and

shall bevoid shallbe abinitio

void ab andof

initio and no effect.

of no effect. ItItisfurther, is further,

ORDERED, ORDERED, thatCarol

that AnnManley

Carol Ann ManleyandDavid

and Peterson

David Peterson shallcontinue shall continueto serveas

to serve ascoco

-

trustees ofthe Peterson Family of the Peterson Trust No.

Family Trust No. 22.. It

Itisfurther,

is further,

ORDERED, ORDERED, thatMack

that Peterson andhiswife, Mack Peterson and his wife, T onyaPeterson, Tonya Peterson, Don Peterson DonPeterson andhis

and his

wife,C wife, arolPPeterson,

Carol eterson,Lormy

LonnyPPeterson,

eterson,Philip Ross, aand Philip Ross, ndCandice Schwager Candice Schwager shall

shall remove all

remove all

social mediaand socialmedia andother publicpostings other public postingsrelatingttoo Mrs.

relating CarolAnn Mrs.Peterson, Carol AnnManley, Steve Manley, Steve

Manley,DavidPeterson, Manley, BettyPeterson David Peterson, Betty otherwise orotherwise

Peterson or relating relating tothethe

to above-referenced above-referenced

litigation litigation within

within ten (10)

(10) c ale nd ar

calendar days

days of theEffective

of the Date

Effective Date ofofthisFinal Judgment.

this Final Judgment. Itis It is

further,ORDERED, further,

thatCarol

ORDERED, that AnnManley Carol Ann andDavid Manley and Peterson, David Peterson, byandthrough by their

and through their

attorney attorney of record, Sarah ofrecord, Sarah Patel

PatelPPacheco,

acheco,shall

shallssubmit

ubmitaaseparate

separate ffee

eeapplication regarding

application regarding their their

3

Silverado Appx. 0625 No. 1-15-586-CV 3883

-

unpaid attomeys’ unpaid attorneys' fees

fees and

and expenses.

expenses. isfurther,

ItItis further,

ORDERED,that ORDERED, thatMack

MackPeterson, DonPeterson, and Peterson, Don andLonny LormyPeterson, by and

Peterson,by through

andthrough

ofrecord, PhilipRoss, shallsubmit feeapplication regarding their . their

their attorney of record,Philip Ross,shall separate submit aaseparate fee application regarding their

unpaid attorneys’ unpaidattorneys' feesand fees andexpenses,

expenses, provided

provided thatMack

that Peterson,

Mack Peterson, Peterson Lonny Peterson andDon

and Don

Peterson Peterson shallhave

shall haveno righttotoseek noright forattomeys’

seekreimbursement for feesand attorneys' fees expenses and expenses relating

relating to

to

Gri Living claims

theirclaims their against

against Silverado

Silverado Senior

Senior Living C enter.

Center. Itis

It is further,

ORDERED, ORDERED, thatW. RussJones, that W. Russ attomeyaadd litem, Jones, attorney shallsubmit litem,shall separate submit aa separate fee

fee

C application application regarding

regarding hisunpaid

his unpaid a ttomeys’

attorneys' feesand

fees expenses,

and expenses, whichsshall which hallbbeetaxed

taxed as costs. Itis

as costs. It is

C iixrther,ORDERED, further,

thatJillYoung,

ORDERED, that guardian Jill Young, guardian adlitem, ad submit

litem, shall submit feeapplication aaseparate fee application

regarding herunpaid regarding her attorneys’

unpaid attorneys' fees andexpenses, feesand expenses, which

which sshall

hallbbeetaxed

taxed aasscosts. Itisfurther, costs. It is further,

ORDERED, ORDERED, thatCarol

that AnnManley

Carol Aim andDavid Manley and Peterson David Peterson hereby arehereby are released

released and

and

discharged discharged forallactions relating takenrelating

for all actions taken totheir to theirappointments

appointments as

as Mrs. Peterson’s

Mrs.Peterson's medical

medical or

or

the Power o

mderthePower

agent runder

financial agent Attorney dated offAttomey June 23,1994 dated June on or before 23, 1994 onor before tthe hedateofthis

date of this

Final udgment.ItItisisfurther, FinalJJudgment. further,

ORDERED, ORDERED, thatCarol

that AnnManley

Carol Arm andDavid Manley and Peterson David Peterson hereby arehereby are released

released and

and

discharged discharged forallactions

for all actions taken relating takenrelating theirappointments totheir to asco-trustees ofthePeterson appointments as of the Peterson

Family Family Trust No. 2

Trust No. on or before

2 onor before tthe

hedate of this Final

date ofthis Final Judgment. Itisfurther, Judgment. It is further,

ORDERED, ORDERED, thatallcontroversies that andclaims all controversies and byMack claims by Mack Peterson,

Peterson, DonPeterson

Don andLonny

Peterson and Lonny

and

Peterson, Peterson, including

including any andallclaims any causes ofaction and all claims and causes of action of any kind ofany kind that

that w or could

ereor were could have

have

been asserted been byMack

asserted by Peterson, Mack Peterson, DonPeterson Don Peterson andLonny

and Lonny P eterson

Peterson in this proceeding thatin inthisproceeding any that in any

wayrelated way CarolAnn

toCarol

related to Manley, AnnManley, inany

in capacity,

anycapacity, David

David Peterson,

Peterson, inany

in capacity,

anycapacity, Mrs.

Mrs.

Peterson and/or

and/or thePeterson Family the Peterson Family Trust No.2, Trust No. 2,as described

asdescribed inthisFinal

in Judgment,

this Final Judgment, hereby arehereby are

4 -

Silverado Appx. 0626 No. 1-15-586-CV 3884

—

discharged discharged released

and released with prejudice, withprejudice, whether

whether known

known o unknown. ItItis

orrunknown. is further,

ORDERED, ORDERED, thatthis

that Judgment

this Final Judgment fullyand fully disposes ofall andfinally disposes of all Parties andissues and issues

theCourt and

before the andis andappealable is final and forall appealable for purposes all purposes andall

and all relief not expressly notexpressly granted

granted

herein herein isdenied.

is denied.

SIGNED SIGNED on this________day on this day of 2015.

, 2015.

of ___________________,

JUDGE JUDGE PRESIDING

5

Silverado Appx. 0627 No. 1-15-586-CV 3885

APPROVED

FORM: TO AS CRAIN, CRAIN, CATON

·

APPROVED AS TO FORM:

CATON &

& JAMES,

JAMES, P.C.

P.C.

BY: 1,6,6LAAao By:

SARAH ARAH PAPA1.17' ACHECO

ACHECO PHILIP ROSS ROSS

(TBA (TBA ##00788164)

00788164) (TBA (IBA #17304200)

#17304200)

ton.com

spacheco@craincaton.com ross lawighotmail.com KATHLEEN KATHLEEN TANNER

TANNER BEDUZE

BEDUZE 1006 Holbrook 1006Holbrook Road

Road

('I`BA (TEA #24052205)

#24052205) SanAntonio, San Texas78218

Antonio, Texas 78218

NJ kbeduze@craincaton.com (210)326-2100 (210) 326-2100

McKim1ey,

1401 McKinney, Suite1700 Suite 1700

0 Houston, Texas 77010-4035 Texas 77010-4035 CANDICE CANDICE SCHWAGER

SCHWAGER

658-2323

(713) 658-2323 (TBA#24005603)

(TBA #24005603)

tit (713)658-1921 658-1921

(713) (Fanshnile) schwaaerlawfirm@live.com 1417 Ramada Drive

Attorneys DavidPeterson Attorneys for David andCarol Ann Petersonand Ann Houston, Texas 77062 Texas 77062

Manley (832)

(832) 315-8489

315-8489

(713)583-0355 (713) 583-0355(Facsimile)

(Facsimile)

Attorneys MackPeterson, Lonny Peterson Attorneys for Mack andDon and Don P eterson

Peterson

UNDERWOOD,

JONES

&SCHERRER,

MACINTYRE,

UNDERWOOD, JONES & SCHERRER, MACINTYRE, STANFIELD McCULLOCH, STANFIELD

PLLC PLLC &YOUNG, & LLP

YOUNG, LLP

‘

By: By;

RUSS W. J|NES W. RUSS I (TBA #109

OUNG

(TBA #109 ·8050) #00797670)

=· . Weslayan¤= 5177 Richmond 5177Richmond Avenue,

Avenue, Suite

Suite 505

505 2900

2900 Weslayan Street,

Street, Suite150

Suite 150

Houston, Texas 7 Houston, Texas 7056

77056 Houston, Houston, Texas 7

Texas 7027

77027

(713)5552-1144 (713) 52-1144 (713) 572-2900 (713) 572-2900

(281)768-8588 (281) 768-8588 (Facsimile) _ (Facsimile) (713)572-2902 (713) 572-2902 (Facsimile)

AttorneyLitem Attorney Ad Litem ffor

orRuby Peterson

Ruby S. Peterson Guardian Guardian Ad

Ad Litem for RubyPeterson Ruby S. Peterson

6

Silverado Appx. 0628 No. 1-15-586-CV 3886

TAB 76

F ED

0 4/7/2| PM DV 11

DATA-ENTRY

UP DATE

art Jerk

PICK UP THIS DATE ounty

PROBATECOURT PROBATE 11

COURT

427,208

·

CAUSE NO. 427,208 401

MACKEY MACKEY("MACK")

("MACK")GLEN

GLENPETERSON

PETERSON § INPROBATE COURT IN PROBATE NO.I

COURT NO. 1

PETERSON;TONYAPETERSON PETERSON;TONYA PETERSON § Individuallyand asNext

andas NextFriend

Friendof

of §

RUBY RUBYPETERSON;

PETERSON;DONLESLIE

DON LESLIEPETERSON;§

PETERSON; ‘ CAROL CAROLPETERSON, andasasNext PETERSON, Individually'and Next asp cm'

Friend FriendofRUBY

of RUBYPETERSON;

PETERSON;and

andLONNY

LONNY § PETERSON, PETERSON, § —C

· § 7 VS. rn SILVERADO

SENIORLIVING,INC.

SILVERADO SENIOR LIVING, INC. § t,t2S 4p

d/b/aSILVERADO SENIOR LIVING d/b/a SILVERADO SENIOR LIVING -— § ., L in LAND

SUGAR LAND § HARRISCOUNTY, c lidSILVERADO’S HARRIS COUNTY, TEXAS MOTION TOMODIFY ORDER

SILVERADO'S MOTION TO MODIFY ORDER GRANTINGFIRST AMENDEDPLEA TOTHEJURISDICTION GRANTING FIRST AMENDED PLEA TO THE JURISDICTION Defendant,

Silverado SeniorLiving,Inc.d/b/aSilverado SeniorLivingSugarLand Defendant, Silverado Senior Living, Inc. d/b/a Silverado Senior Living Sugar Land filesthisMotion

toModify

OrderGranting

FirstAmended

PleatotheJurisdiction.

(Silverado) files this Motion to Modify Order Granting First Amended Plea to the Jurisdiction.

BACKGROUND

BACKGROUND

TheCourtwillrecallthat onNovember10,2014,it grantedSilverado’s 91adismissing

The Court will recall that on November 10, 2014, it granted Silverado's 91a dismissing Plaintiffs’

assaultand battery,falseimprisonment claimswithprejudice.

andconspiracy

Plaintiffs' assault and battery, false imprisonment and conspiracy claims with prejudice. Unfortunately,

Plaintiffshadfileda FourthAmendedPetitionon October6, 2014to dropsome Unfortunately, Plaintiffs had filed a Fourth Amended Petition on October 6, 2014 to drop some partiesandoneclaimwhichforced Silverado

to withdrawal a partial inordertoproceed withthe

parties and one claim which forced Silverado to file a partial withdrawal in order to proceed with the pending

91a.TheFourth Petition Amended alsoappeared

toaddanindividual

breachoffiduciary

pending 91a. The Fourth Amended Petition also appeared to add an individual breach of fiduciary dutycauseofactionagainstSilverado although

Plaintiffs

refused

toclarifytheirposition.Instead, duty cause of action against Silverado although Plaintiffs refused to clarify their position. Instead, Plaintiffs

forcedthesecond9Iato address the remaining causeofaction.Boththe9laand Plaintiffs forced the second 91a to address the final remaining cause of action. Both the 91a and Amended

Pleatothe weresetforthefirstavailable hearing

date—-

January

8,2015.

Amended Plea to the Jurisdiction were set for the first available hearing date — January 8, 2015.

Onceagain,Plaintiffsfileda FifthAmended PetitiononDecember

4,2014whichnon·suited

Once again, Plaintiffs filed a Fifth Amended Petition on December 4, 2014 which non-suited c0—defendants

DavidPeterson

andCarolManley

andjoinedPlaintiffs’ CarolandTonya spouses

co-defendants David Peterson and Carol Manley and joined Plaintiffs' spouses Carol and Tonya

4849-4764-0354.1

Silverado Appx. 0629 No. 1-15-567-CV 2128

Peterson Peterson individuallyand nextfriends asnext

andas friendsofRuby of Ruby Peterson.1What notimmediately wasnot

Whatwas apparent immediately apparent

wasthatDonPeterson, was that Don Peterson,MackPeterson Mack PetersonandLonny

and LonnyPeterson

Petersonimproperlyattempted improperly reviveand toto

attempted revive and

assertthefollowing assert causesofaction the followingcauses of actionagainst againstSilverado

Silveradointheir

in theirindividualcapacities individual despite capacities thefact

despite the fact

ci thatthatthese eredismissed that that thesecauses

causesw

were onNovember dismissedon Novemberl0,

10,2014:1)falseimprisonment and2)

2014: 1) false imprisonment and 2)

conspiracy.2 Additionally,Carol eterson Additionally, CarolPPetersonandTonya attempted and TonyaPPeterson

eterson toto assertthefollowing attempted the following

causesof action asnext causes of actionas

friendsof RubyPetersonin theFifthAmended Petition:1)false next friends of Ruby Peterson in the Fifth Amended Petition: 1) false imprisonment;

2) assaultandbattery;3) breachof trust and4) breachof duty; and In imprisonment; 2) assault and battery; 3) breach of trust and 4) breach of fiduciary duty; and Withthe exception

of assaultandbattery,CarolPetersonandTonyaPeterson conspiracy.; With the exception of assault and battery, Carol Peterson and Tonya Peterson additionallyasserteachofthoseclaims against As result,theFifth additionally assert each of those claims individually against Silverado.4 Asaa result, the Fifth AmendedPetition created additional liveclaims forCarolPeterson andTonya Peterson thatwerenot Amended Petition created additional live claims for Carol Peterson and Tonya Peterson that were not addressed

ineitherpending

motion:

falseimprisonment

andconspiracy.

addressed in either pending motion: false imprisonment and conspiracy.

OnThursday,January 8,2015,theCourthelda hearing ontheFirstAmended Pleatothe On Thursday, January 8, 2015, the Court held a hearing on the First Amended Plea to the Jurisdiction aswellas Silverado’s 9laMotionto DismissPlaintiffs’SoleRemaining ClaimBreach Jurisdiction as well as Silverado's 91a Motion to Dismiss Plaintiffs' Sole Remaining Claim Breach ofTrustand/orBreach ofFiduciary Dutyassupplemented. TheCourtaskedfor during of Trust and/or Breach of Fiduciary Duty as supplemented. The Court asked for clarification during thehearing ontheeffectofgranting thepending motions. Itwasexplained thatgranting boththe the hearing on the effect of granting the pending motions. It was explained that granting both the pending

Rule91aandthePleatotheJurisdiction allclaimsinlightofthenew wouldnotdismiss

pending Rule 91a and the Plea to the Jurisdiction would not dismiss all claims in light of the new individual

claimsasserted

byPlaintiffs

CarolPeterson

andTonya thenaskedfor Counsel

Peterson.

individual claims asserted by Plaintiffs Carol Peterson and Tonya Peterson. Counsel then asked for direction

fromtheCourtregarding

thebestprocedural toputanendtotheabusive method pleading direction from the Court regarding the best procedural method to put an end to the abusive pleading OnfilewiththeCourtandincorporated byreference asifsetoutfullyherein. On file with the Court and incorporated by reference as if set out fully herein.

I

See November 10,2014Orderdismissing claims on withtheCourtandincorporated by reference asifNovember

2 See setoutfully 10,herein.Seealso, 2014 Order Plaintiffs’

dismissing Fifth

claims onAmended Petition.

file with the Court and incorporated by reference as if set out fully herein. See also, Plaintiffs' Fifth Amended Petition.

SeePlaintiffs’ FifthAmended Petition;seealsoOrderGranting Silverado’sFirstAmended PleatotheJurisdiction

See Plaintiffs'on filewith Fifth theCourt

Amended andincorporated Petition; byreference see also Order asifsetoutFirst Granting Silverado's fullyAmended herein.

Plea to the Jurisdiction on file with the Court and incorporated by reference as if set out fully herein.

OrderGranting Silverado’s 91a Motion toDismiss Plaintiffs’Breach of Trustand/or

4 1d.Breach

CompareofFiduciary

with OrderDuty (Tonya

Granting andCarol91

Silverado's Peterson’s to surviving a Motionsole individual Dismiss Plaintiffs' claims Breach of

are false Trust and/or Breach of andconspiracy).

imprisonment Fiduciary Duty (Tonya and Carol Peterson's sole surviving individual claims are false imprisonment and conspiracy).

4849-4764-0354.1

Silverado Appx. 0630 No. 1-15-567-CV 2129

tactics employed

employed by

by Plaintiffs since

since aatrial

trialssetting

ettinghhad

adnot

notbeen

beenissued ndscheduling

issuedaand schedulingorder asnot orderwwas not

inplace. in place.

OnJanuary On January9,2015,

9, 2015,theCourt

the Courtsigned

signedOOrders

rders

granting

grantingSilverado’s

Silverado'smotions.

motions.Unfortunately,

Unfortunately,

theOrder the Order submitted

submitted with

withthePlea tothe

the Pleato wasoverbroad the Jurisdictionwas overbroadinitslanguage anderroneously in its languageand erroneously stated stated theMotion

the Motion would

wouldterminate

terminateallclaims.Theoverbreadth all claims. The overbreadthof of theproposed

the proposedO rderwwas

Order as

inadvertentand notsubmitted wasnot

andwas submittedwith

withconscience

conscienceindifference.

indifference.Thelanguage becameincorrect The languagebecame incorrect 0 11 when when Plaintiffs

Plaintiffs filed

filedtheir AmendedPetition their FifthAmendedPetitionaddingnewclaims.

addingnew claims.In

Inorder toclarify

orderto clarifythe

theO rder,

Order,

Vi Silverado Silveradowould requestthisCourt wouldrequest this Court m odifyiits modify tspriororder

prior order recognizing

recognizingthependency

the pendencyofCarol

of Carol

Peterson Petersonaand

ndTonya Peterson's falseimprisonment Tonya Peterson’s false imprisonmentandconspiracy and conspiracyclaims s discussed claimsaas atthe discussedat the

hearing. hearing.

MOTION MOTIONTOMODIFY

TO MODIFY

Silverado’s Silverado's Plea to theJurisdiction Plea to was at the Jurisdiction was all times llimited at alltimes imited tosubject to subjectmatterjurisdiction matter jurisdictionand

and

Plaintiffs’ lackofauthority and/orstandingto Plaintiffs' lack of authority and/or standing tobring

bringclaims onbehalf

claimson behalfofRuby

of Ruby Peterson.5TheCourt The Court

properly grantedthePleatotheJurisdiction properly granted the Pleato supplemented; as supplemented;however,

the Jurisdictionas

thesecond paragraph ofthe however, the second paragraph of the Order Order purportsto

dismiss theentire auseofaction to dismiss the entireccause sto of actionaas

Silverado withprejudice whichbecame to Silverado with prejudice which became impossible theirFifthAmended Petition due toPlaintiffs’

once Plaintiff's filed their Fifth Amended Petition dueto impossibleonce

artfulpleading and

Plaintiffs' artful pleading and theremaining individualclaims of:falseimprisonment andconspiracy the remaining individual claims of: false imprisonment and conspiracyas addressed indetailabove. as addressed in detail above.

Assuch,Silverado tomodify thesecond paragraph oftheOrderto stateas moves to modify the second paragraph of the Ordertostate As such, Silverado moves

follows: as follows:

ItisHEREBY

ORDERED,

and ADJUDGED

DECREED

that

PLAINTIFFS

Carol

It is HEREBY ORDERED, ADJUDGED and DECREED that PLAINTIFFS Carol PetersonandTonyaPeterson donothavestanding to bringclaims nbehalf of Peterson and Tonya Peterson do not have standing to bring claimsoon behalf of RUBYPETERSONnextfriends otherwise. Thesolepersonswith standing to RUBY PETERSONas

as next friendsor

or otherwise. The solepersons with standing to

FirstSupplement to itsFirstAmended PleatotheJurisdiction andFirstAmended 5 See First Supplement to its First Amended Plea to the Jurisdiction and First Amended Answeron withtheCourtandincorporated byreference as ifsetoutherein. Answer on file with the Court and incorporated by reference as if set out herein.

4849-4764-0354.1

Silverado Appx. 0631 No. 1-15-567-CV 2130 5 bringclaims bring behalfof

on behalf

claims on of RUBY PETERSON RUBYPETERSON are DavidPeterson, areDavid CarolManley Peterson, Carol Manley

0 and/orher and/or herCourt appointed Court appointed adlitems.

ad litems.

a.

bedone.

Silverado Silverado does notfile thisMotion does not

Silverado Living,

SeniorLiving,

PRAYER

this Motion ttoocause

causeundue

PRAYER

Inc.d/b/aSilverado Senior that jjustice sothat

butso

unduedelay, but

Living

usticemay

SugarLand

maybe

Landprays

done.

theCourt

praysthe grant

Silverado Senior Inc. d/b/a Silverado Senior Living Sugar Court grant I/1 its Motion ttoo Modify itsMotion itsOrder Modify its Granting Order Granting First

First A mended

Amended Plea to theJurisdiction.

Plea to the Jurisdiction.

0 Respectfully Respectfully submitted,

submitted,

LEWIS LEWIS BRISBOIS

BRISBOIS BISGAARD

BISGAARD &SMITH,

& LLP

SMITH, LLP

/s/ Davis /s/ Josh K. Davis

2406234 No. State Bar JOSH JOSH K.K.DAVIS

Weslayan Weslayan

DAVIS

StateBarNo.24031993 State Bar No. 24031993 CHRISTIAN CHRISTIAN

24Greenway

24

R.JOHNSON R. JOHNSON

State Bar No. 24062345

Tower, Tower, Suite

Plaza

Greenway Plaza Houston, Texas 77046

Texas 77046

1400

Suite1400

659-6767 T

(713)659-6767 (713) elephone Telephone

(713)759-6830 (713) Facsimile

759-6830 Facsimile

ATTORNEYS ATTORNEYS FORDEFENDANTS,

FOR DEFENDANTS,

SILVERADO SILVERADO SENIOR INC. D LIVING, INC.

SENIOR LIVING, /B/A D/B/A

SILVERADO SILVERADO SENIOR

SENIOR L

LIVING SUGAR

IVINGSUGAR L AND

LAND

4849-4764-0354.1 4849-4764-0354.1

Silverado Appx. 0632 No. 1-15-567-CV 2131

CERTIFICATE

OFSERVICE

CERTIFICATE OF SERVICE

hereby c I1hereby ertify

certify tthat

hataa true

true and

and correct copy ofthe

correct copy of the foregoing foregoing instrument

instrument was served

was served uupon all

ponall

counsel counsel ofrecord

of viae-file,

record via facsimile, e-file, facsimile, hand

hand and/or

delivery and/or mail,return certified mail, retum receipt receipt requested

requested on

on

this dayof this6th day of`April, 2015.

April, 2015.

SJ Philip Ross M.Ross

Philip M. 1006 Road

Holbrook 1006 Holbrook Road

Ui San Antonio,Texas78218 San Antonio, Texas 78218 Attorney for

for Plaintiffs

Candice Candice LSchwager

L Schwager

TheSchwager The Schwager Law Firm LawFirm

1417Ramada 1417 Ramada Dr.

Dr.

Houston,Texas Houston, Texas77062

77062

Attorney Attorney for Plaintiffs

Sarah

Patel

Pacheco

Sarah Patel Pacheco Crain,Caton Crain, Caton&&James, PC

James, PC

1401McKinney 1401 Street

McKinney Street

1700 1700 FiveHouston

Five Houston Center

Center

Texas

Houston, 77010 Houston, Texas 77010 Attorneys andDavid Attorneys for Carol Manley and David P eterson Peterson

JillW.Young Jill W. Young Maclntyre, MacIntyre, McCulloch,

McCulloch, Stanfield&

Stanfield & Young, LLP

Young,LLP

Weslayan,

2900Weslayan, 2900 Suite150

Suite 150

Texas

Houston, 77027 Houston, Texas 77027

W. RussJones W. Russ Jones Underwood, JonesScherrer Underwood, Jones &Malouf, Scherrer & PLLC

Malouf, PLLC

5177

Richmond Suite

Ave, 505

5177 Richmond Ave, Suite 505 Houston, 77056

Texas

Houston, Texas 77056

s/Josh s/ Josh K Davis

K Davis

JOSHK. JOSH K.DAVIS

DAVIS

4849-4764-0354.1

Silverado Appx. 0633 No. 1-15-567-CV 2132