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.
Page 8 of 8;4829-8294-8905.1
in the Guardianship of Ruby Peterson
Combined Opinion