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.
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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 self- up while CAROL ANN MANLEY AND DAVID PETERSON engaged in persistent self- dealingwiththeirinheritance, 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 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
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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;
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 asco- co-
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
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
Silverado Appx. 0627 No. 1-15-586-CV 3885 0 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
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).
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.
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
Silverado Appx. 0633 No. 1-15-567-CV 2132
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