in the Guardianship of Ruby Peterson

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
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A AA A
A A V AA
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AAAAAA

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

2

Silverado Appx. 0624
No. 1-15-586-CV 3882
 21.
21. TheCourt
The hastaken
Court has taken Judicial notice
notice ofitsfileandtheprior testimony
of its file and the prior testimony in this
in this
proceeding.
proceeding.
22.
22. Theevidence
The developed
evidence developed the
the above findings andsuch were eachfully
and such findings were each fully
proved andwere
proved and were ssooproved
proved in of this Final
support ofthis
in support Final Judgment.
Judgment
0
23.
This
23. This Final Judgment
Judgment should
should beentered
be entered pursuant to ofthe
theterms of
to the Settlement
the Settlement
attached
hereto
as
Agreement, attached hereto as Exhibit A. A.
TheCourt further
The further byclear
finds by clear a ndconvincing
and evidence
convincing evidence that:
that:
C
Ri 1.
1. Therights
The rightsof
ofMrs. Peterson’s
Mrs. Peterson's property
property willbe
will beprotected bythese
protected by these findings.
Itis
It is accordingly,

ORDERED,
ORDERED, thatthe
that Revocation
the Revocation ofPrevious
of Powers
Previous Powers ofAttorney,
of allegedly
Attorney, allegedly executed
executed by
by

Mrs.Peterson
Mrs. PetersonoonnNovember 15,22013,
November 15, 013,iissinvalid
invalid andshall
and shall bbeevoidandof no effect.
void and of no effect. IIttis
is further,

ORDERED,
ORDERED, that theStatutory
thatthe Durable
Statutory Durable Powers
Powers ofAttorney,
of Attomey, allegedly
allegedly executed
executed byMrs.
by Mrs.
Peterson
Peterson on November
on November 15, 2013appointing
15,2013 appointing MackPeterson
Mack Peterson andDonPeterson
and Don Peterson are invalid
are invalid and
and

shall bevoid
shallbe abinitio
void ab andof
initio and no effect.
of no effect. ItItisfurther,
is further,
ORDERED,
ORDERED, thatCarol
that AnnManley
Carol Ann ManleyandDavid
and Peterson
David Peterson shallcontinue
shall continueto serveas
to serve 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

3

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

unpaid attomeys’
unpaid attorneys' fees
fees and
and expenses.
expenses. isfurther,
ItItis further,
ORDERED,that
ORDERED, thatMack
MackPeterson, DonPeterson, and
Peterson, Don andLonny
LormyPeterson, by and
Peterson,by through
andthrough
ofrecord, PhilipRoss, shallsubmit feeapplication regarding their
. their
their attorney of record,Philip Ross,shall separate
submit aaseparate fee application regarding their

unpaid attorneys’
unpaidattorneys' feesand
fees andexpenses,
expenses, provided
provided thatMack
that Peterson,
Mack Peterson, Peterson
Lonny Peterson andDon
and Don

Peterson
Peterson shallhave
shall haveno righttotoseek
noright forattomeys’
seekreimbursement for feesand
attorneys' fees expenses
and expenses relating
relating to
to
Gri Living
claims
theirclaims
their against
against Silverado
Silverado Senior
Senior Living C enter.
Center. Itis
It is further,

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

C application
application regarding
regarding hisunpaid
his unpaid a ttomeys’
attorneys' feesand
fees expenses,
and expenses, whichsshall
which hallbbeetaxed
taxed as costs. Itis
as costs. It is
C iixrther,ORDERED,
further,
thatJillYoung,
ORDERED, that guardian
Jill Young, guardian adlitem,
ad submit
litem, shall submit feeapplication
aaseparate fee application

regarding herunpaid
regarding her attorneys’
unpaid attorneys' fees andexpenses,
feesand expenses, which
which sshall
hallbbeetaxed
taxed aasscosts. Itisfurther,
costs. It is further,

ORDERED,
ORDERED, thatCarol
that AnnManley
Carol Aim andDavid
Manley and Peterson
David Peterson hereby
arehereby
are released
released and
and

discharged
discharged forallactions relating
takenrelating
for all actions taken totheir
to theirappointments
appointments as
as Mrs. Peterson’s
Mrs.Peterson's medical
medical or
or

the Power o
mderthePower
agent runder
financial agent Attorney dated
offAttomey June 23,1994
dated June on or before
23, 1994 onor before tthe
hedateofthis
date of this

Final udgment.ItItisisfurther,
FinalJJudgment. further,

ORDERED,
ORDERED, thatCarol
that AnnManley
Carol Arm andDavid
Manley and Peterson
David Peterson hereby
arehereby
are released
released and
and

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

Family
Family Trust No. 2
Trust No. on or before
2 onor before tthe
hedate of this Final
date ofthis Final Judgment. Itisfurther,
Judgment. It is further,

ORDERED,
ORDERED, thatallcontroversies
that andclaims
all controversies and byMack
claims by Mack Peterson,
Peterson, DonPeterson
Don andLonny
Peterson and Lonny
and
Peterson,
Peterson, including
including any andallclaims
any causes ofaction
and all claims and causes of action of any kind
ofany kind that
that w or could
ereor
were could have
have

been asserted
been byMack
asserted by Peterson,
Mack Peterson, DonPeterson
Don Peterson andLonny
and Lonny P eterson
Peterson in this proceeding thatin
inthisproceeding any
that in any

wayrelated
way CarolAnn
toCarol
related to Manley,
AnnManley, inany
in capacity,
anycapacity, David
David Peterson,
Peterson, inany
in capacity,
anycapacity, Mrs.
Mrs.

Peterson and/or
and/or thePeterson Family
the Peterson Family Trust No.2,
Trust No. 2,as described
asdescribed inthisFinal
in Judgment,
this Final Judgment, hereby
arehereby
are

4 -

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

discharged
discharged released
and released with prejudice,
withprejudice, whether
whether known
known o unknown. ItItis
orrunknown. is further,

ORDERED,
ORDERED, thatthis
that Judgment
this Final Judgment fullyand
fully disposes ofall
andfinally disposes of all Parties andissues
and issues

theCourt and
before the andis andappealable
is final and forall
appealable for purposes
all purposes andall
and all relief not expressly
notexpressly granted
granted

herein
herein isdenied.
is denied.

SIGNED
SIGNED on this________day
on this day of 2015.
, 2015.
of ___________________,

JUDGE
JUDGE PRESIDING

5

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

6

Silverado Appx. 0628
No. 1-15-586-CV 3886
TAB 76
 F ED
0 4/7/2| PM
DV 11
DATA-ENTRY
UP DATE
art
Jerk
PICK UP THIS DATE ounty

PROBATECOURT
PROBATE 11
COURT
427,208
·
CAUSE NO. 427,208 401
MACKEY
MACKEY("MACK")
("MACK")GLEN
GLENPETERSON
PETERSON § INPROBATE COURT
IN PROBATE NO.I
COURT NO. 1
PETERSON;TONYAPETERSON
PETERSON;TONYA PETERSON §
Individuallyand asNext
andas NextFriend
Friendof
of §
RUBY
RUBYPETERSON;
PETERSON;DONLESLIE
DON LESLIEPETERSON;§
PETERSON; ‘
CAROL
CAROLPETERSON, andasasNext
PETERSON, Individually'and Next
asp
cm'
Friend
FriendofRUBY
of RUBYPETERSON;
PETERSON;and
andLONNY
LONNY §
PETERSON,
PETERSON, § —C

· § 7
VS. rn
SILVERADO
SENIORLIVING,INC.
SILVERADO SENIOR LIVING, INC. § t,t2S
4p
d/b/aSILVERADO SENIOR LIVING
d/b/a SILVERADO SENIOR LIVING -— § ., L in
LAND
SUGAR LAND § HARRISCOUNTY, c
lidSILVERADO’S HARRIS COUNTY, TEXAS
MOTION TOMODIFY ORDER
SILVERADO'S MOTION TO MODIFY ORDER
GRANTINGFIRST AMENDEDPLEA TOTHEJURISDICTION
GRANTING FIRST AMENDED PLEA TO THE JURISDICTION
Defendant,
Silverado SeniorLiving,Inc.d/b/aSilverado SeniorLivingSugarLand
Defendant, Silverado Senior Living, Inc. d/b/a Silverado Senior Living Sugar Land
filesthisMotion
toModify
OrderGranting
FirstAmended
PleatotheJurisdiction.
(Silverado) files this Motion to Modify Order Granting First Amended Plea to the Jurisdiction.
BACKGROUND
BACKGROUND
TheCourtwillrecallthat onNovember10,2014,it grantedSilverado’s
91adismissing
The Court will recall that on November 10, 2014, it granted Silverado's 91a dismissing
Plaintiffs’
assaultand battery,falseimprisonment claimswithprejudice.
andconspiracy
Plaintiffs' assault and battery, false imprisonment and conspiracy claims with prejudice.
Unfortunately,
Plaintiffshadfileda FourthAmendedPetitionon October6, 2014to dropsome
Unfortunately, Plaintiffs had filed a Fourth Amended Petition on October 6, 2014 to drop some
partiesandoneclaimwhichforced
Silverado
to withdrawal
a partial inordertoproceed
withthe
parties and one claim which forced Silverado to file a partial withdrawal in order to proceed with the
pending
91a.TheFourth Petition
Amended alsoappeared
toaddanindividual
breachoffiduciary
pending 91a. The Fourth Amended Petition also appeared to add an individual breach of fiduciary
dutycauseofactionagainstSilverado
although
Plaintiffs
refused
toclarifytheirposition.Instead,
duty cause of action against Silverado although Plaintiffs refused to clarify their position. Instead,
Plaintiffs
forcedthesecond9Iato address
the remaining
causeofaction.Boththe9laand
Plaintiffs forced the second 91a to address the final remaining cause of action. Both the 91a and
Amended
Pleatothe weresetforthefirstavailable
hearing
date—-
January
8,2015.
Amended Plea to the Jurisdiction were set for the first available hearing date — January 8, 2015.
Onceagain,Plaintiffsfileda FifthAmended
PetitiononDecember
4,2014whichnon·suited
Once again, Plaintiffs filed a Fifth Amended Petition on December 4, 2014 which non-suited
c0—defendants
DavidPeterson
andCarolManley
andjoinedPlaintiffs’ CarolandTonya
spouses
co-defendants David Peterson and Carol Manley and joined Plaintiffs' spouses Carol and Tonya

4849-4764-0354.1

Silverado Appx. 0629
No. 1-15-567-CV 2128
 Peterson
Peterson individuallyand nextfriends
asnext
andas friendsofRuby
of Ruby Peterson.1What notimmediately
wasnot
Whatwas apparent
immediately apparent

wasthatDonPeterson,
was that Don Peterson,MackPeterson
Mack PetersonandLonny
and LonnyPeterson
Petersonimproperlyattempted
improperly reviveand
toto
attempted revive and

assertthefollowing
assert causesofaction
the followingcauses of actionagainst
againstSilverado
Silveradointheir
in theirindividualcapacities
individual despite
capacities thefact
despite the fact
ci thatthatthese eredismissed
that that thesecauses
causesw
were onNovember
dismissedon Novemberl0,
10,2014:1)falseimprisonment and2)
2014: 1) false imprisonment and 2)

conspiracy.2 Additionally,Carol eterson
Additionally, CarolPPetersonandTonya attempted
and TonyaPPeterson
eterson toto assertthefollowing
attempted the following

causesof action asnext
causes of actionas
friendsof RubyPetersonin theFifthAmended Petition:1)false
next friends of Ruby Peterson in the Fifth Amended Petition: 1) false
imprisonment;
2) assaultandbattery;3) breachof trust and4) breachof duty; and
In imprisonment; 2) assault and battery; 3) breach of trust and 4) breach of fiduciary duty; and
Withthe exception
of assaultandbattery,CarolPetersonandTonyaPeterson
conspiracy.; With the exception of assault and battery, Carol Peterson and Tonya Peterson
additionallyasserteachofthoseclaims against As result,theFifth
additionally assert each of those claims individually against Silverado.4 Asaa result, the Fifth
AmendedPetition created additional liveclaims forCarolPeterson andTonya Peterson thatwerenot
Amended Petition created additional live claims for Carol Peterson and Tonya Peterson that were not
addressed
ineitherpending
motion:
falseimprisonment
andconspiracy.
addressed in either pending motion: false imprisonment and conspiracy.
OnThursday,January 8,2015,theCourthelda hearing ontheFirstAmended Pleatothe
On Thursday, January 8, 2015, the Court held a hearing on the First Amended Plea to the
Jurisdiction aswellas Silverado’s 9laMotionto DismissPlaintiffs’SoleRemaining ClaimBreach
Jurisdiction as well as Silverado's 91a Motion to Dismiss Plaintiffs' Sole Remaining Claim Breach
ofTrustand/orBreach ofFiduciary Dutyassupplemented. TheCourtaskedfor during
of Trust and/or Breach of Fiduciary Duty as supplemented. The Court asked for clarification during
thehearing ontheeffectofgranting thepending motions. Itwasexplained thatgranting boththe
the hearing on the effect of granting the pending motions. It was explained that granting both the
pending
Rule91aandthePleatotheJurisdiction allclaimsinlightofthenew
wouldnotdismiss
pending Rule 91a and the Plea to the Jurisdiction would not dismiss all claims in light of the new
individual
claimsasserted
byPlaintiffs
CarolPeterson
andTonya thenaskedfor
Counsel
Peterson.
individual claims asserted by Plaintiffs Carol Peterson and Tonya Peterson. Counsel then asked for
direction
fromtheCourtregarding
thebestprocedural toputanendtotheabusive
method pleading
direction from the Court regarding the best procedural method to put an end to the abusive pleading
OnfilewiththeCourtandincorporated byreference asifsetoutfullyherein.
On file with the Court and incorporated by reference as if set out fully herein.
I
See November 10,2014Orderdismissing claims on withtheCourtandincorporated by
reference asifNovember
2 See setoutfully 10,herein.Seealso,
2014 Order Plaintiffs’
dismissing Fifth
claims onAmended Petition.
file with the Court and incorporated by
reference as if set out fully herein. See also, Plaintiffs' Fifth Amended Petition.
SeePlaintiffs’ FifthAmended Petition;seealsoOrderGranting Silverado’sFirstAmended
PleatotheJurisdiction
See Plaintiffs'on filewith
Fifth theCourt
Amended andincorporated
Petition; byreference
see also Order asifsetoutFirst
Granting Silverado's fullyAmended
herein.
Plea to the Jurisdiction on file with the Court and incorporated by reference as if set out fully herein.
OrderGranting Silverado’s 91a Motion toDismiss Plaintiffs’Breach of
Trustand/or
4 1d.Breach
CompareofFiduciary
with OrderDuty (Tonya
Granting andCarol91
Silverado's Peterson’s to surviving
a Motionsole individual
Dismiss Plaintiffs' claims
Breach of
are false
Trust and/or Breach of andconspiracy).
imprisonment Fiduciary Duty (Tonya and Carol Peterson's sole surviving individual claims
are false imprisonment and conspiracy).

4849-4764-0354.1

Silverado Appx. 0630
No. 1-15-567-CV 2129
 tactics employed
employed by
by Plaintiffs since
since aatrial
trialssetting
ettinghhad
adnot
notbeen
beenissued ndscheduling
issuedaand schedulingorder asnot
orderwwas not

inplace.
in place.

OnJanuary
On January9,2015,
9, 2015,theCourt
the Courtsigned
signedOOrders
rders
granting
grantingSilverado’s
Silverado'smotions.
motions.Unfortunately,
Unfortunately,

theOrder
the Order submitted
submitted with
withthePlea tothe
the Pleato wasoverbroad
the Jurisdictionwas overbroadinitslanguage anderroneously
in its languageand erroneously
stated
stated theMotion
the Motion would
wouldterminate
terminateallclaims.Theoverbreadth
all claims. The overbreadthof
of theproposed
the proposedO rderwwas
Order as
inadvertentand notsubmitted
wasnot
andwas submittedwith
withconscience
conscienceindifference.
indifference.Thelanguage becameincorrect
The languagebecame incorrect
0
11
when
when Plaintiffs
Plaintiffs filed
filedtheir AmendedPetition
their FifthAmendedPetitionaddingnewclaims.
addingnew claims.In
Inorder toclarify
orderto clarifythe
theO rder,
Order,

Vi Silverado
Silveradowould requestthisCourt
wouldrequest this Court m odifyiits
modify tspriororder
prior order recognizing
recognizingthependency
the pendencyofCarol
of Carol
Peterson
Petersonaand
ndTonya Peterson's falseimprisonment
Tonya Peterson’s false imprisonmentandconspiracy
and conspiracyclaims s discussed
claimsaas atthe
discussedat the
hearing.
hearing.
MOTION
MOTIONTOMODIFY
TO MODIFY
Silverado’s
Silverado's Plea to theJurisdiction
Plea to was at
the Jurisdiction was all times llimited
at alltimes imited tosubject
to subjectmatterjurisdiction
matter jurisdictionand
and
Plaintiffs’ lackofauthority and/orstandingto
Plaintiffs' lack of authority and/or standing
tobring
bringclaims onbehalf
claimson behalfofRuby
of Ruby Peterson.5TheCourt
The Court
properly grantedthePleatotheJurisdiction
properly granted the Pleato
supplemented;
as supplemented;however,
the Jurisdictionas
thesecond paragraph ofthe
however, the second paragraph of the
Order
Order purportsto
dismiss theentire auseofaction
to dismiss the entireccause sto
of actionaas
Silverado withprejudice whichbecame
to Silverado with prejudice which became
impossible theirFifthAmended Petition due toPlaintiffs’
once Plaintiff's filed their Fifth Amended Petition dueto
impossibleonce
artfulpleading and
Plaintiffs' artful pleading and
theremaining individualclaims of:falseimprisonment andconspiracy
the remaining individual claims of: false imprisonment and conspiracyas
addressed indetailabove.
as addressed in detail above.
Assuch,Silverado tomodify thesecond paragraph oftheOrderto stateas
moves to modify the second paragraph of the Ordertostate
As such, Silverado moves
follows:
as follows:
ItisHEREBY
ORDERED,
and
ADJUDGED
DECREED
that
PLAINTIFFS
Carol
It is HEREBY ORDERED, ADJUDGED and DECREED that PLAINTIFFS Carol
PetersonandTonyaPeterson donothavestanding to bringclaims nbehalf of
Peterson and Tonya Peterson do not have standing to bring claimsoon behalf of
RUBYPETERSONnextfriends otherwise. Thesolepersonswith standing to
RUBY PETERSONas
as next friendsor
or otherwise. The solepersons
with standing to

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

4849-4764-0354.1

Silverado Appx. 0631
No. 1-15-567-CV 2130
 5 bringclaims
bring behalfof
on behalf
claims on of RUBY PETERSON
RUBYPETERSON are DavidPeterson,
areDavid CarolManley
Peterson, Carol Manley

0
and/orher
and/or herCourt appointed
Court appointed adlitems.
ad litems.
a.
bedone.
Silverado
Silverado does notfile thisMotion
does not

Silverado Living,
SeniorLiving,
PRAYER
this Motion ttoocause
causeundue
PRAYER

Inc.d/b/aSilverado Senior
that jjustice
sothat
butso
unduedelay, but

Living
usticemay

SugarLand
maybe

Landprays
done.

theCourt
praysthe grant
Silverado Senior Inc. d/b/a Silverado Senior Living Sugar Court grant
I/1
its Motion ttoo Modify
itsMotion itsOrder
Modify its Granting
Order Granting First
First A mended
Amended Plea to theJurisdiction.
Plea to the Jurisdiction.
0
Respectfully
Respectfully submitted,
submitted,

LEWIS
LEWIS BRISBOIS
BRISBOIS BISGAARD
BISGAARD &SMITH,
& LLP
SMITH, LLP

/s/ Davis
/s/ Josh K. Davis

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

Weslayan
Weslayan
DAVIS
StateBarNo.24031993
State Bar No. 24031993
CHRISTIAN
CHRISTIAN

24Greenway
24
R.JOHNSON
R. JOHNSON
State Bar No. 24062345
Tower,
Tower, Suite
Plaza
Greenway Plaza
Houston, Texas 77046
Texas 77046
1400
Suite1400

659-6767 T
(713)659-6767
(713) elephone
Telephone
(713)759-6830
(713) Facsimile
759-6830 Facsimile

ATTORNEYS
ATTORNEYS FORDEFENDANTS,
FOR DEFENDANTS,
SILVERADO
SILVERADO SENIOR INC. D
LIVING, INC.
SENIOR LIVING, /B/A
D/B/A
SILVERADO
SILVERADO SENIOR
SENIOR L
LIVING SUGAR
IVINGSUGAR L AND
LAND

4849-4764-0354.1
4849-4764-0354.1

Silverado Appx. 0632
No. 1-15-567-CV 2131
 CERTIFICATE
OFSERVICE
CERTIFICATE OF SERVICE

hereby c
I1hereby ertify
certify tthat
hataa true
true and
and correct copy ofthe
correct copy of the foregoing
foregoing instrument
instrument was served
was served uupon all
ponall
counsel
counsel ofrecord
of viae-file,
record via facsimile,
e-file, facsimile, hand
hand and/or
delivery and/or mail,return
certified mail, retum receipt
receipt requested
requested on
on
this dayof
this6th day of`April, 2015.
April, 2015.

SJ Philip Ross
M.Ross
Philip M.
1006 Road
Holbrook
1006 Holbrook Road
Ui San Antonio,Texas78218
San Antonio, Texas 78218
Attorney for
for Plaintiffs

Candice
Candice LSchwager
L Schwager
TheSchwager
The Schwager Law Firm
LawFirm
1417Ramada
1417 Ramada Dr.
Dr.
Houston,Texas
Houston, Texas77062
77062
Attorney
Attorney for Plaintiffs

Sarah
Patel
Pacheco
Sarah Patel Pacheco
Crain,Caton
Crain, Caton&&James, PC
James, PC
1401McKinney
1401 Street
McKinney Street
1700
1700 FiveHouston
Five Houston Center
Center
Texas
Houston, 77010
Houston, Texas 77010
Attorneys andDavid
Attorneys for Carol Manley and David P eterson
Peterson

JillW.Young
Jill W. Young
Maclntyre,
MacIntyre, McCulloch,
McCulloch, Stanfield&
Stanfield & Young, LLP
Young,LLP
Weslayan,
2900Weslayan,
2900 Suite150
Suite 150
Texas
Houston, 77027
Houston, Texas 77027

W. RussJones
W. Russ Jones
Underwood, JonesScherrer
Underwood, Jones &Malouf,
Scherrer & PLLC
Malouf, PLLC
5177
Richmond Suite
Ave, 505
5177 Richmond Ave, Suite 505
Houston, 77056
Texas
Houston, Texas 77056

s/Josh
s/ Josh K Davis
K Davis

JOSHK.
JOSH K.DAVIS
DAVIS

4849-4764-0354.1

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