in the Guardianship of Ruby Peterson

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ACCEPTED 01-15-00586-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/28/2015 11:20:03 AM 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 10/28/2015 11:20:03 AM CHRISTOPHER A. PRINE Clerk ******************** MACKEY GLEN PETERSON, TONYA PETERSON, DON LESLIE PETERSON AND LONNY PETERSON, APPELLANT v. CAROL ANNE MANLEY, DAVID PATTERSON, SILVERADO SENIOR LIVING, INC., D/B/A SILVERADO SENIOR LIVING SUGAR LAND AND No. 01-15-00586-CV IN THE COURT OF APPEALS FOR THE FIRST DISTRICT HOUSTON, TEXAS ******************** MACKEY GLEN PETERSON, TONYA PETERSON, DON LESLIE PETERSON AND LONNY PETERSON, APPELLANT v. CAROL ANNE MANLEY, DAVID PATTERSON, SILVERADO SENIOR LIVING, INC., D/B/A SILVERADO SENIOR LIVING SUGAR LAND UNAGREED MOTION BY APPELLEE SILVERADO FOR JUDICIAL NOTICE AND ADMINISTRATIVE RELIEF Page 1 of 8;4829-8294-8905.1 TO THE HONORABLE JUSTICES OF SAID COURT: 1. This Motion is filed in both of the captioned cases by Defendant-Appellee, Silverado Senior Living, Inc. d/b/a Silverado Senior Living – Sugarland, Texas (“Silverado”). 2. The Chart filed as an Exhibit to this Motion is provided for the Court’s convenient reference. This Chart lists various items contained in the Clerk’s Record filed in each case shown in the caption above. It also includes references to the Orders from which Appellants appeal.1 3. The parties’ dispute originates in a guardianship case filed in a statutory probate court. Donny Leslie Peterson (“Don”) and Mackey Glen Peterson (“Mack”) filed an action seeking guardianship of their mother, Ruby S. Peterson (“Ruby”) on December 11, 2013. The action was filed with the County Clerk of Harris County, Texas, given Cause Number 427208, and assigned to Statutory Probate Court Number 1. R 586:14- 45. The original guardianship petition named Carol Peterson Manley (“Manley”) and David Troy Peterson (“David”) as Respondents. Original Guardianship Petition, CR 586:14, at 15, ¶¶ 4, 5. 4. Ruby (allegedly appearing In Proper Person), Mack, Don and Lonny Peterson (“Lonny”) later filed a separate lawsuit in Harris County District Court (the “State 1 In order to distinguish the two Records on Appeal, the unique 3-digit case number precedes the reference to the Record. Thus, CR 586:14-45 refers to Clerk’s Record, pages 14-45, in Case Number 01-15-00586-CV. Page 2 of 8;4829-8294-8905.1 District Court Lawsuit”).2 The State District Court Lawsuit, filed on July 17, 2014, was given Cause Number 2014-409807 by the Harris County District Clerk, and assigned to the 129th Judicial District Court in and for Harris County, Texas. CR 567:23. Plaintiffs sued Manley, David, Silverado Senior Living of Sugarland, Texas (“Silverado”), Tanna McMillan (“McMillan”), Linda Lavinson (“Lavinson”) and Dr. Rebecca Clearman (“Clearman”). CR 567: 23, at 23, 25-26. 5. Upon Motion to Transfer, the Statutory Probate Court signed its Order of Transfer on July 25, 2014, requiring the State District Court Lawsuit to be transferred to the Probate Court, and ordered the proceeding to be assigned Cause Number 427,208-401. The Judge in the State District Court Lawsuit also ordered the State District Court Lawsuit to be transferred to the Statutory Probate Court, in furtherance of the Order of Transfer by the Statutory Probate Court. See, Order of Transfer to Probate Court Pursuant to Probate Court Order, signed August 19, 2014, (with a copy of the Statutory Probate Court’s Order of Transfer attached as Exhibit “A”). CR 567:15-20. 6. After the conclusion of all proceedings in both cases below in the Statutory Probate Court, Appellants filed their original Notice of Appeal. CR 586:3955-3960. That Notice carried a caption that included both the initial guardianship case and also 2 The designation, “State District Court,” is inserted to distinguish it from the state Statutory Probate Court. Page 3 of 8;4829-8294-8905.1 the transferred State District Court Lawsuit. Id. The Notice of Appeal is included in the Clerk’s Record in #586, but is not included in the Clerk’s Record in #567 (which appears to relate primarily to the transferred State District Court Lawsuit). 7. Appellants then filed an Amended Notice of Appeal. CR 567:2155-2159; CR 586:3961-3964. In doing so, Appellants allocated various Orders listed in their original Notice of Appeal, from which Orders two separate appeals were taken. Id. 8. Each of the two appeals should be considered within the context of the other appeal, due to the inter-related proceedings below. 9. Therefore, this Court is requested, in each case on appeal, to take judicial notice of the Record on Appeal and the adjudicative facts in the Record on Appeal of the other case. See generally, Tex. R. Evid. 201, Judicial Notice of Adjudicative Facts. Appellate civil proceedings are not outside the application of those Rules insofar as they relate to judicial notice. See, e.g., D&M Marine v. Turner, 409 S.W.3d 853, 856 (Tex. App. – Ft. Worth, 2013, no sub. hist.) (even if related federal court proceedings were outside of the appellate record, inclusion of the items in a party’s appendix was not improper because the appellate court was allowed to take judicial notice of such adjudicative facts, citing, Tex. R. Evid. 201 & Thomas v. Cook, 350 S.W.3d 382, 387 n.2 (Tex. App. – Houston [14th Dist.] 2011, pet. denied) (appellate court took judicial notice of the docket sheet in a related federal district court proceeding). Page 4 of 8;4829-8294-8905.1 10. This Court also is respectfully requested to assign both cases to the same judicial panel, in order to avoid the risk of inconsistent or contradictory determinations of the issues on appeal in both cases. WHEREFORE, PREMISES CONSIDERED, Silverado prays that the Court take judicial notice as requested in this Motion; assign both appeals to the same judicial panel; and for general and equitable relief. Respectfully submitted, LEWIS, BRISBOIS, BISGAARD & SMITH, LLP /s/ P. Alan Sanders PANNAL ALAN SANDERS TBN: 17602100 JOSH K. DAVIS TBN: 24031993 Weslayan Tower, Suite 1400 24 Greenway Plaza Houston, Texas 77046 (713) 659-6767 Telephone (713) 759-6830 Facsimile Alan.Sanders@lewisbrisbois.com Josh.Davis@lewisbrisbois.com ATTORNEYS FOR APPELLEE, SILVERADO SENIOR LIVING, INC. D/B/A SILVERADO SENIOR LIVING - SUGAR LAND (“SILVERADO”) Page 5 of 8;4829-8294-8905.1 CERTIFICATE OF CONFERENCE I certify that I have communicated with all other counsel of record in the foregoing appeals, initially last week and in follow up yesterday, October 26, 2015, and none of them opposed the relief requested in this Motion by the time this Motion was filed. More particularly, Russ Jones and Jill Young expressly agreed to the relief requested in this Motion. However, no response whether by way of objection, agreement or otherwise was received from the remaining record counsel. Therefore, this Motion has been characterized as “unagreed” in contrast to being “agreed,” “unopposed” or “opposed.” Thus certified on October 27, 2015. /S/ P. Alan Sanders P. ALAN SANDERS Page 6 of 8;4829-8294-8905.1 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing instrument was served upon all counsel of record via electronic filing on October 28, 2015. Candice L Schwager The Schwager Law Firm 1417 Ramada Dr. Houston, Texas 77062 Attorney for Plaintiffs/Appellants Philip M. Ross 1006 Holbrook Road San Antonio, Texas 78218 Attorney for Plaintiffs/Appellants Sarah Patel Pacheco Crain, Caton & James, PC 1401 McKinney Street 1700 Five Houston Center Houston, Texas 77010 Attorneys for /Appellees / Respondents / Defendants, Carol Manley and David Peterson Jill W. Young MacIntyre, McCulloch, Stanfield & Young, LLP 2900 Weslayan, Suite 150 Houston, Texas 77027 Guardian Ad Litem for Ruby S. Peterson (now deceased) W. Russ Jones Underwood, Jones Scherrer & Malouf, PLLC 5177 Richmond Ave, Suite 505 Houston, Texas 77056 Attorney Ad Litem for Ruby S. Peterson (now deceased) /S/ P. Alan Sanders P. ALAN SANDERS Page 7 of 8;4829-8294-8905.1 Appellate Clerk’s Date /Date Description/Title Case Record # Signed Number3 Order Granting Authority for Guardian Ad Litem & Attorney Ad Litem to Execute Peterson Rule 11 11/07/2014 567 1386 - 1390 Agreement Order Granting Authority for Guardian Ad Litem & Attorney Ad Litem to Execute Peterson Rule 11 11/07/2014 586 3541-3545 Agreement Order on David Peterson and Carol Anne Manley’s 11/10/2014 1385 Motion for Sanctions 567 Order for Sanctions 11/10/2014 586 3538-3540 Order Granting Defendant Silverado Senior Living, Inc. d/b/a Silverado Senior Living – Sugar Land’s Rule 91a 11/10/2014 586 3546 Motion to Dismiss Order Granting Silverado’s First Amended Plea to the 01/09/2015 1513 Jurisdiction 567 Order Authorizing Payment of Appointee’s Fees and Expenses Pursuant to Texas Estates Code 01/09/2015 586 3819-3820 Section 1054.055 for the Time Period March 27, 2014 through October 31, 2014 Order Granting Application for Attorney Fees Pursuant to Rule 91a Order Entered on November 01/09/2015 567 1514-1515 10, 2014 Order Denying Motion to Reconsider 91a Motion to 01/09/2015 1524 Dismiss and Motion for Sanctions 567 Order Granting Silverado’s 91a Motion to Dismiss Plaintiffs’ Breach of Trust and/or Breach of 01/09/2015 567 1531-1532 Fiduciary Duty Order Approving Appointee’s Fees & Expenses 01/09/2015 567 1614-1615 Order Granting Silverado’s Motion to Modify Order 05/12/2015 2133-2134 Granting First Amended Plea to the Jurisdiction 567 Modified Order Granting Silverado’s First 05/12/2015 567 2135 Amended Plea to the Jurisdiction Final Judgment 05/12/2015 586 3948-3951 Order Denying Motion to Dismiss 05/12/2015 586 3952-3953 Order Granting Silverado’s Motion for Summary 05/12/2015 2145 Judgment 567 Original Notice of Appeal (dual case caption, for Probate 06/08/2015 3955-3960 Court Nos. 427,208 and 427,208-401) 586 Amended Notice of Appeal (in 567) 06/17/2015 567 2155-2159 Amended Notice of Appeal (in 586) 06/16/2015 586 3961-3964 3 The additional identifying numerical strings, e.g., 01-15-xxxx-cv, are omitted for brevity of reference in this Chart. 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