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 58 - 68

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 58
 FILED
1
DATA-ENTRY
DATE
PICK UP THIS DATE
12/16/2014 4:03:16 PM
St n rt
Stan Stanart
County Clerk
Harris County

PROBATE 1
COURT
PROBATE COURT 1
;LI NO. 427,208
NO.427,208
0
O MACKEY
MACKEY (("MACK")
"MACK") GLEN PETERSON, §§
GLEN PETERSON, INPROBATE
IN COURT
PROBATE COURT N O.1
NO. 1
PETERSON; TONYA PETERS
PETERSON; TONYA PETERSON, ON, §
Individuallyand asNext
andas of RUBY §§
Next FriendofRUBY
DON LESLIEPETERSON;
PETERSON; DONLESLIE
PETERSON; PETERSON; §§
CAROL PETERSON,
CAROL PETERSON, Individually and and §
asNext
as ofRUBY
NextFriend, of PETERSON; §
RUBY PETERSON;
LONNYPETERSON,
andLONNY
and PETERSON, §

ti
Plaintiffs, §
V.
§
SILVERADO
SILVERADO SENIOR
SENIOR LIVING, INC., §§
LIVING, INC.,
Senior L iving—SugarLLand,
d/b/aSilverado Senior Living —
d/b/a Sugar and,§§
§
Defendants.
Defendants. § HARRIS
HARRIS COUNTY,
COUNTY, TEXAS
TEXAS

OBJECTION
OBJECTION TOAPPLICATION
TO APPLICATION FOR ATTORNEY'S
FORATTORNEY'S FEES
FEES
TO RULE 91(a) ENTERED ON
PURSUANT TORULE91(a)ENTERED
PURSUANT NOVEMBER 10,2014
ON NOVEMBER 10, 2014

TO:THE
TO: HONORABLE
THE HONORABLE LLOYD
JUDGE LLOYD WRIGHT:
WRIGHT:

NOWCOME, MACKEY
NOW COME, MACKEY GLEN
GLEN PETERSON;
PETERSON; TONYA
TONYA PETERSON,
PETERSON,

Individuallyand
Individually and as
as Next Friend ofofRUBY
NextFriend RUBY PETERSON;
PETERSON; DONLESLIE
DON LESLIE

PETERSON;
PETERSON; CAROL P
CAROL ETERSON,
PETERSON, Individually
Individuallyand as Next
and as ofRUBY
Next Friend of RUBY
PETERSON;
PETERSON; andLONNY PETERSON (("Plaintiffs"),
and LONNY PETERSON "Plaintiffs"), file theirobjection
their objection tto the
o the
application
application forattorney's feesincluding
for attorney's fees including the supplemental
andsupplemental
theoriginal and applications
applications

filed by DEFENDANT
by DEFENDANT SILVERADO SENIOR LIVING,INC.,
SILVERADOSENIOR LIVING, INC., d/b/a Silverado
d/b/aSilverado

1

Silverado Appx. 0478
No. 1-15-586-CV 3768
 SeniorLiving
Living— and("SILVERADO"),
("SILVERADO"),andin support would the show
Senior —Sugar
Sugar L
Land and in support would show the

Court
asfollows:
Court as follows:

RULE
RULE 91a MOTION TODISMISS:
9laMOTION BACKGROUND
TO DISMISS: BACKGROUND

Silverado
Silverado filed Rule9la
filed a Rule motionto
91a motion dismiss
todismiss September
onSeptember
on 25,2014.
25, 2014.

Plaintiffs Mack,
Plaintiffs Mack, Don andLonny
Don and Lonny Fourth
filed aaFourth Amended
Amended Petition
Petition October
onOctober
on 6,
6,

2014and
2014 Response
and aa Response inOpposition
in thepending
to the
Opposition to pending R ule91
Rule motionon
91 motion October27,
onOctober 27,
2014.Silverado
2014. withdrawal
Silverado filed aapartial withdrawal andreply
and reply on November 6,
on November 6, 2014.The
2014. The

motionto
motion dismisswas
to dismiss heardon
washeard November
on November 7, 2014,andtheCourtgranted
7, 2014, the
and the Court granted the

motionin
motion becausethe
errorbecause
in error theallegations, takenas
allegations, taken togetherwith
true,together
astrue, withinferences
inferences

reasonably
reasonably drawnfrom
drawn from thementitlethe Plaintiffstto
them entitle the Plaintiffs o the reliefsought,and
the relief sought, and

additionally
additionally alternatively, Plaintiffs'
andalternatively,
and cause ofaction
Plaintiffs' cause of action has a basisinfactbecause
has a basis in fact because

reasonable
aa reasonable person could
person believe thefactspleaded.
could believe TheOrder
the facts pleaded. The Order was and
notfinal and
wasnot
appealable
appealable becauseititdid
because disposeof
notdispose
did not ofallparties andclaims.
all parties and claims.

OnDecember
On 3,2014,
December 3, Silverado
2014, Silverado filed 91aMotion
filedaa 91a Dismiss
toDismiss
Motion to Plaintiffs'
Plaintiffs'

Sole Remaining C
SoleRemaining Breach of
laimBreach
Claim Trust and/or Breach of
of Trustand/orBreach of Fiduciary
Fiduciary Duty. On
Duty. On

December
December 4, 2014,Plaintiffs
4, 2014, Plaintiffs timely theirFifthAmended
timelyfiled their Fifth Amended Petition, which
Petition,which
addedtwo
added twonew
newplaintiffs individually
plaintiffsindividually aand
nd as ofRuby
nextfriends of
as next RubyPeterson.
Peterson.
Silverado
Silverado did objectto
notobject
did not ofthe
thefiling of
to the amended p
the fifth amended etition.
petition.

2

Silverado Appx. 0479
No. 1-15-586-CV 3769
 OnDecember the
9,2014, held butdidnotconsider
ahearing the
On December 9, 2014, the Court held a hearing but did not consider the

supplement
supplement to Silverado's
to Silverado's application for
for an awardof
an award of attorney's feesalleging
attomey'sfees alleging aa

request dismissan
request ttoo dismiss additional
anadditional claimthat
claim thatwas included
notincluded
wasnot initsprevious
in motion
its previous motion

fordismissal,
for whichwas
dismissal, which wasfiled on the
filed on same d
the same ay.The
day. ruledthat
The Court ruled thePlaintiffs
thatthe
would
would have
have until
until December
December 16,2014
16, 2014 their
tofile their
to objections
objections Silverado's
toSilverado's
to motion
motion

9laaward
forRule fees.
ofattorney's
for Rule 91a award of attorney's fees.

Therefore,
Therefore, Plaintiffsrespectfully
Plaintiffs respectfullysubmit
submit tthat
hatSilverado
Silverado waived objection
waivedobjection to
to

thefilingoftheir
the amended
filing of their fifth amended petition;that
petition; Silverado h
thatSilverado asnot
has filedan
not filed ananswer to
answer to

their fifth amended p
theirfifthamended etitionor
petition motionto
oraa motion dismissthe
todismiss amended
thefifth amended petition;
petition; and
and

Silverado's motion
thatSilverado's
that motion forRule91adismissal of the
for Rule 91a dismissal of thefourthamended petitionis
fourth amended petition is
moot.Additionally
moot.

alternatively, Plaintiffs
andalternatively,
Additionally and Plaintiffs respectfully submitthat
respectfully submit Silverado's
thatSilverado's
motionfor
motion for dismissal
dismissaland application ffor
andapplication or an awardof
an award of attorney's feesshould
attomey'sfees be
should be

deniedbecause
denied becausethe
thePlaintiffs' allegations,
Plaintiffs' allegations, taken
taken as togetherwith
true,together
as true, withinferences
inferences

drawn from them entitlethe
reasonablydrawnfromthem
reasonably Plaintiffstto
entitle the Plaintiffs o the reliefsought,and
the relief sought, and

additionally
additionally alternatively, Plaintiffs'
andalternatively,
and cause ofaction
Plaintiffs' cause of action has basisinfactbecause
has aa basis in fact because

reasonable
aa reasonable couldbelievethe
personcould
person factspleaded.
believe the facts Furthermore,
pleaded. Furthermore, Plaintiffs'
Plaintiffs'

pleadings,
pleadings, taken togetherwith
true,together
taken as true, withreasonable inferencesdo
reasonable inferences do not support
notsupport

33

Silverado Appx. 0480
No. 1-15-586-CV 3770
 Silverado'sthattheP1aintiffs'
claimsaregroundless
and
Silverado's claim that the Plaintiffs' claims are groundless and frivolous or or
groundless
groundless andbrought
and foran
brought for improper
animproper purposeor
purpose forharassment.
orfor harassment.

Plaintiffs
Plaintiffs respectfully
respectfully submit
submit tthat
hattheirclaims
their claims are grounded
are grounded iinnfactandlaw
fact and law

andthatthey
and werebrought
that they were in good
broughtin goodfaithand forany
notfor
faith and not dilatoryor
anydilatory improper
orimproper
purpose according
purpose according tto thePlaintiffs'
o the knowledge
Plaintiffs' knowledge and information
and at thetimesthe
information at the times the

claimswere
claims alleged.Additionally
werealleged. andalternatively,
Additionally and Plaintiffssubmit
alternatively, Plaintiffs submitthat
thatthey
they

havealleged
have theclaims
alleged the contained
claims contained intheir
in amended
their fifth amended petition ingood
petitionin faith,that
good faith, that
theyare
they supported
aresupported bygood
by thatthey
cause,that
good cause, byexisting
aresupported by
they are lawor
existing law good
orgood
faithargument
faith for meritorious
argumentfor changein
meritorious change the law,andthattheyshould
in the be
not be
law, and that they should not

dismissed.Therefore,
dismissed.

Plaintiffsobject
Therefore, Plaintiffs Silverado's
toSilverado's
object to application
application and supplement
andsupplement
application
application foraward ofattomey's
for award of feespursuant
attorney's fees pursuant TRCPRule91a
to TRCP
to Rule 91a on thegrounds
on the grounds

that Plaintiffs' allegations,
thatPlaintiffs' takenas
allegations, taken astrue, together
true, together withinferences
with reasonably
inferences reasonably drawn
drawn

fromthemdo
from them do not showthattheirclaims
notshow groundless
aregroundless
that their claims are andfrivolous or
and or
groundless
groundless andbrought
and foran
brought for improper
animproper purpose orforharassment.
purposeor for harassment.

Additionally
Additionally alternatively,
andalternatively,
and Plaintiffs respectfully
Plaintiffs submitthat
respectfully submit thatSilverado's
Silverado's

proffered
proffered " evidence"
"evidence" consists o
consists off no
no evidence insufficient
evidenceoorr insufficient to it‘sclaim
supportit's
to support claim

for an
for awardof
anaward of $117,183.40 attorney's fees pursuant
attomey'sfees pursuantto TRCPRule
to TRCP 91a.
Rule 91a.

4

Silverado Appx. 0481
No. 1-15-586-CV 3771
 alternatively, Plaintiffs
andalternatively,
Additionally and submitthat
Plaintiffs respectfully submit thatSilverado's claim
Silverado's claim

foran
for ofattomey's
anaward of feespursuant
attorney's fees pursuanttoTRCP
to TRCP Rule9la
Rule 91a isexcessive.
is excessive.

Towit,
To theaffidavit
wit, the ofJosh
affidavit of Davis,
Josh Davis, Esq.dated
Esq. December
datedDecember 1,2014
1, contains
2014 contains

award
anaward
claims for an ofof $44,489.50
$44,489.50 forfor "CaseAssessment,
"Case Development,
Assessment, Development,

Administratn,
Administratn, buttheredacted billingstatements
but the redacted billing statementsforthetimeperiod beginning
for the time period beginning on
on

July18,
July 18,2014through August330,
2014 through August 0, 2014
2014do provideany
notprovide
do not anyevidence the
of the
evidenceof
reasonableness
reasonableness or necessity
or necessity ofthetime
of the time spent for"fact
spentfor investigation/development"
"fact investigation/development"

and"analysis/strategy",
and "analysis/strategy",
whichcomprise the majority
which comprisethe majorityof
of the 161.5hoursand
the 161.5 hours and

$28,262billedby
$28,262 billed by JoshDavisand91.4hoursand $14,624billed
Josh Davis and 91.4 hours and $14,624 billedby JacobM.
by Jacob M.

accordingttoo the
Stephensaccording
Stephens thestatement
statementofCNA
of CNASpecialty
Specialty Claims 50013-1476
Claimsfile 50013-1476
dated 9/30/14
dated 9/30/14 attached
attached to affidavit
theaffidavit
tothe ofJJosh
of oshDavis dated
Davis dated December 1,22014.
December 1, 014.
Similarly,
Similarly, the statementof
the statement CNASpecialty
of CNA Specialty Claims 50013-1476
Claimsfile 50013-1476 dated
dated

10/15/14
10/15/14 attached theaffidavit ofJoshDavis
attachedttoo the datedDecember
of Josh Davis dated 1,2014shows
December 1, 2014 shows aa

totalamount
total claimedfor
amountclaimed "factinvestigation/development"
for"fact $32,052.39
investigation/development" = $32,052.39 to date
to date

"analysis/strategy"
and"analysis/strategy"
and == $17,315.47 o date,but
$17,315.47tto thereis
date, but there reliableevidence
noreliable
is no evidence
offeredto
offered suchclaimsbecause
supportsuch
to support theredacted
claims because the billingstatements
redactedbilling do not
statementsdo not
reveal whetherthe
reveal whether theactivities reasonable
werereasonable
activities were or necessary.
or necessary. Likewise,
Likewise, thereis no
there is no

way forthePlaintiffs
wayfor determine
todetermine
the Plaintiffs to whetherthe
whether theinformation thatwas
information that redacted ffrom
was redacted rom
Silverado's
Silverado's billing statements
billing statements was privileged
was privileged o discoverable.
orr discoverable. Therefore,
Therefore, it
it is not
is not
5

Silverado Appx. 0482
No. 1-15-586-CV 3772
 possible determine
possible ttoo determine whetherthe
whether the79.4hours
79.4 hours and $15,086.00
and$15,086.00 billed byJoshDavis,
billed by Josh Davis,

43hours and
43 and$7,665.00 billedby
$7,665.00 billed byChristian Johnson,
Christian Johnson, and19.9
and hoursand
19.9 hours and$3,482.50
$3,482.50

billedby
billed byJulianne C.
C.Lomax reasonable
werereasonable
Lomax were andnecessary
and necessary chargesfor
currentcharges
current forthe
the

period
period ending 10/15/14.
on10/15/14.
ending on

Similarly,
Similarly, the statementof
the statement CNASpecialty
of CNA Specialty Claims 50013-1476
Claimsfile 50013-1476 dated
dated

ll/17/14,invoice
11/17/14, invoice No. 1408065,attached
No. 1408065, attached to the affidavit of
to the JoshDavisdated
of Josh Davis dated

December11,, 2014
December 2014shows totalcurrent
shows aa total chargesin
currentcharges theamount
inthe amountof $18,214.03
of$18,214.03
including
including entriesfor
multipleentries
multiple for"settlement/non—binding ADR", iinn which
"settlement/non-binding ADR", Silverado
whichSilverado
didnot
did participate.
notparticipate. Plaintiffs
Plaintiffs submit thatthereis
submitthat noreliable
there is no evidence
reliableevidence to
offered to

claimsbecause
suchclaims
supportsuch
support becausethe
theredacted billingstatements
redacted billing statementsdo notreveal
do not whether
revealwhether
theactivities
the activities were reasonable
werereasonable ornecessary.
or necessary.

Additionally Plaintiffs ssubmit
and alternatively, Plaintiffs
Additionally andaltematively, ubmittthat
hatSilverado is claiming
Silverado is claiming
$117,183.40
$117,183.40 withregard
with regard to defendingaagainst
to defending gainsttthe
he causes of action
causes of actionwhich were
which were

dismissed butthedocuments
10,2014,
onNovember attached of
totheaffidavit
dismissed on November 10, 2014, but the documents attached to the affidavit of

JoshDavis
Josh donot
Davis do showthat
notshow thatSilverado incurred
Silverado incurred obligation
anyobligation
any topay
to $117,183.40
pay$117,183.40
reasonableaand
in reasonable
in nd necessary
necessaryfees related
fees related to the causes
to the ofaction
causesof actionwhich were
which were

dismissed
dismissed November
onNovember
on 10,2014.Towit,thebilling
10, statements
2014. To wit, the billing statements indicatethat
indicate thatthey
they

submitted
weresubmitted
were CNASpecialty
to CNA
to Specialty Claims 50013-1476,
Claimsfile 50013-1476, notto
not Silverado,
to Silverado, and2
and

thereis
there evidence
noevidence
is no asto
as whatamount,
towhat amount, ifany,
if Silverado
any,Silverado withregard
incurred with to
regard to
6

Silverado Appx. 0483
No. 1-15-586-CV 3773
 defending thecauses
ofaction
which dismissed
were 10,
onNovember
defending against the causes of action which were dismissed on November 10,
0 2014.
2014.

Additionally and alternatively, Plaintiffs submit
Additionally andaltematively, submit tthat
hatSilverado is claiming
Silverado is claiming
$117,183.40
$117,183.40 withregard
with regard to defendingaagainst
to defending gainsttthe
he causes actionwhich
of action
causes of were
which were
dismissed 10,2014,
onNovember that$18,830.00
butit appears ofthatamount
dismissed on November 10, 2014, but it appears that $18,830.00 of that amount

was forfeesrelated
was for toitsitsdefense
fees related to defenseagainst
against federal
aafederal lawsuit
lawsuit filed
filed

with
contemporaneously
contemporaneously withthis state courtproceeding.However,
thisstate proceeding. However, tthere
hereis no
is no

evidencettoo show
evidence showwhich feeswere
whichfees relatedto
wererelated thestate
tothe statecourt proceeding
court proceeding andwhich
and which

feesrelated
fees thefederal
to the
related to courtcase
federal court casebecause theactivity
becausethe too
weretoo
activity descriptions were

heavilyredacted
heavily redacted and
and the feeswere
the fees segregated
notsegregated
werenot betweenthe
between twocases.
the two cases.
Plaintiffs
Plaintiffs ssubmit
ubmittthat
hatit
it was improper
wasimproper forSilverado
for claimreimbursement
toclaim
Silverado to for
reimbursement for

feesthat chargeable
werechargeable
fees that were to anotherccase
to another aseanddid relatedto
notrelated
and did not claimsthat
to claims thatwere
were
dismissed
dismissed November
onNovember
on 10,2014
10, pursuant
2014 pursuant to TRCPRule91a.
toTRCP Rule 91a.
Silverado
Additionally
Additionally and altematively,
and alternatively, claims prospective ffees
Silverado claimsprospective ees in the
in the

of an
eventof
event appeal.However,
anappeal. Plaintiffs
However, Plaintiffs submitthat
submit thatthe statements
the statements ofJoshDavis
of Josh Davis

regardinghhis
regarding opinionas to
is opinion theamounts
to the ofreasonable
amountsof reasonableandnecessary
and feesfor
necessaryfees for

handlingappeals
handling ofthis
appealsof matterare
this matter supported
notsupported
arenot byevidence
by andare
evidence and conclusory.
areconclusory.
To wit,
To wit,Mr.Davis' doesnot
Mr. Davis' affidavit does provideany
notprovide methodfor
anymethod calculating
forcalculating the
the

ofreasonable
amountsof
amounts andnecessary
reasonable and necessaryfeesthatwould beincurred; it
fees that would be doesnot
it does notstate
state
7

Silverado Appx. 0484
No. 1-15-586-CV 3774
 how many
how many hours
hours would
would berequired
be required to bespent;
tobe spent; itdoes
it notstate
does not state reasonable
aareasonable rate
rate

per hour;ititdoes
per hour; notstate
does not state what activities
whatactivities wouldbbeerequired;
would anditdoes
required; and notstate
it does not state

thatthe
that amounts
the amounts offeesrequested
of areusual
fees requested are andcustomary
usualand customaryinthelocality.
in the locality.

CONCLUSION & PRAYER FOR RELIEF

Fortthe
For hereasons
reasonsstated
stated herein,
herein, Plaintiffs pray thattthis
pray that hisCourt deny Silverado's
denySilverado's
application
application supplemental application
andsupplemental
and application for
for an awardof
an award ofattorney's feespursuant
attorney's fees pursuant
toTRCP
to TRCP Rule91a.Plaintiffs
Rule 91a. Plaintiffs respectfully request thatthisCourt
respectfully request allrequested
grantall
that this Court grant requested

reliefandallotherandfurther reliefto
relief and all other and further relief whichthey
to which maybejustlyentitled
theymay lawor
at law
be justly entitled at or
inequity.Respectfully
in equity.

submitted
Respectfully submitted

PhilipM.Ross
Philip M. Ross
1006Holbrook
1006 Holbrook Road
Road
SanAntonio,
San Antonio, T
TXX78218
78218
Phone: 210/326-2100
Phone: 210/326-2100
Email: ross_law@hotmail.com
Email: ross_law@hotmail.com
By: /s/ M.Ross
By: /s/ Philip M. Ross
Philip
Philip M.Ross
M. Ross
StateBar
State BarNo.17304200
No. 17304200

THESCHWAGER
THE SCHWAGER LAW LAWFIRM
FIRM
Candice
Candice L
L..Schwager
Schwager
1417Ramada
1417 Ramada Dr.
Dr.
Houston,
Houston, Texas 77062
Texas77062
Tel: ( 832)3 15-8489
Tel: (832) 315-8489
Fax:(713)
Fax: 583-0355
(713) 583-0355
schwagerlawfirm@live.com
schwagerlawfirm@live.com

8

Silverado Appx. 0485
No. 1-15-586-CV 3775
 ATTORNEYS
ATTORNEYS FOR
FOR MACK
MACK GLEN
GLEN
PETERSON, TONYA P ETERS
ON,
PETERSON, TONYA PETERSON,
PETERSON,
DoN
LESLIE
LONNY PETERSON, DON LESLIE
PETERSON,
ANDCAROL
PETERSON, AND CAROL
PETERSON
PETERSON

CERTIFICATE
OFSERVICE
CERTIFICATE OF SERVICE

II hereby
herebycertify that
thatthisdocument andserved on
wase-filed and
this document was JoshDavis,
onJosh Davis,

counselof
counsel ofrecord forSilverado,
record for the16th
onthe
Silverado, on dayofDecember,
16th day of December, 2014.
2014.
/s/ M.
/s/ Philip M. Ross
Ross
PhilipM.Ross
Philip M. Ross

9

Silverado Appx. 0486
No. 1-15-586-CV 3776
 427,208
NO. 427,208
MACKEY
MACKEY (("MACK")
"MACK") GLEN
GLENPETERSON,§ § ININPROBATE
PETERSON, COURT
PROBATE COURT NO.1
NO. 1
PETERSON; TONYA
PETERSON; TONYA PPETERSON,
ETERSON, §
Individuallyand asNext
andas NextFriend
FriendofRUBY§
of RUBY §
PETERSON;
PETERSON;DONLESLIE
DON LESLIEPETERSON;
PETERSON; §§
CAROL
CAROL P ETERSON,
PETERSON, Individually
Individually and §§
and
NextFriend, of
asNext
as ofRUBY PETERSON; §§
RUBY PETERSON;
andLONNY
and LONNY PETERSON,
PETERSON, §

Plaintiffs, §
V.

SILVERADO
SILVERADO SENIOR
SENIOR LIVING,
LIVING, INC., §§
d/b/a Silverado Living
d/b/a Silverado Senior Living ·- L
Sugar and,§
— Sugar Land, §

Defendants.
Defendants. §§ HARRISCOUNTY, TEXAS
HARRIS TEXAS

ORDER
ORDER

ONTHIS
ON DAYCAME
THIS DAY ON TO BE CONSIDERED theDefendant's
CAME ONTOBECONSIDERED application
the Defendant's application
andsupplemental
and application
supplemental application foran
for awardof
anaward attorney's feesfiledbySilverado
ofattorney’s Senior
fees filed by Silverado Senior

Living,Inc.
Living, thepleadings
Afterconsidering the
Inc.After fileandhearing
onfile
pleadings on argument
and hearing argument ofcounsel
of counsel

forthe
for theCourtfindsthatthemotion
the parties, the lacksmeritandshould
Court finds that the motion lacks merit and should be Denied.
beDenied.
Therefore,
Therefore, themotion
the isDENIED
motion is follows.
asfollows.
DENIED as

ITISORDERED,
IT ADJUDGED
IS ORDERED, ADJUDGED andDECREED
and thatthe
DECREED that Defendant's
the Defendant's application
application and
and

supplemental
supplemental application ffor
application or an awardof
an award of attorney's feesfiledby
attomey'sfees Silverado
filed by Silverado Senior
Senior

Living,
Living, Inc.ishereby DENIED.
Inc. is hereby DENIED.

1

Silverado Appx. 0487
No. 1-15-586-CV 3777
 SIGNED:
SIGNED: .
0
0

Hon. Lloyd
Hon. Lloyd Wright
Wright
Judge, No.1
Judge, Probate Court No. 1

Silverado Appx. 0488
No. 1-15-586-CV 3778
 Respectfully
Respectfully submitted,
submitted,

Philip M.
M. R oss,SBN 17304200

210/326-21
Phone:
Philip Ross, SBN 17304200
1006
1006 Holbrook
Holbrook Road
Road
SanAntonio,
San Antonio, T exas78218
Texas 78218
Phone: 210/326-2100
Email: ross_law@hotmail.com
Email: ross_law@hotmail.com
By:
By: /s/ Phili M.
/s/ Philip M.Ross
Ross
Philip
M.Ross
Philip M. Ross
CandiceSchwager
Candice Schwager
1417
1417 Ramada
Ramada Drive
Houston, TX 77062
Houston, TX 77062
Phone: 832—315—8489
Phone: 832-315-8489
FAX: 713-583-0355
FAX: 713-583-0355
Attorneys
Attorneys forDonPeterson,
for Don Peterson,
Lonny Peterson andMack
Lonny Peterson and Mack
Peterson
Peterson

ofService
Certificate of Service
herebycertify that
II hereby andcorrect
thataa true and correctcopy oftheabove
copyof document
the above document e-filed
wase-filed
was
December 16,2014 and sent byemail
onDecember 16, 2014 and sent by email or
on electronic delivery b yagreement to:
orelectronic delivery by agreement to:
Josh Davis
Josh Davis
Weslayan
Weslayan Tower,Suite
Tower, Suite1400
1400
24Greenway
24 Greenway Plaza
Houston,T
Houston, X 77046
TX 77046/s/

M.Ross
/s/ Philip M. Ross
Philip M.Ross
Philip M. Ross

33

Silverado Appx. 0489
No. 1-15-586-CV 3779
TAB 59
 FILED FILED
12/18/2014 PM
12/18/2014 4:44:26 PM
n
Stan Stanart
DATA-ENTRY County Clerk
County
Harris County
· PICK UP THIS DATE

CAUSENO.427,208
CAUSE NO. 427,208
PROBATE
COURT
1
PROBATE COURT 1

MACKEY
MACKEY (“MACK") GLEN
("MACK") GLEN PETERSON §
PETERSON INPROBATE
IN COURT
PROBATE COURT NO.l1
NO.
PETERSON; TONYAPETERSON
PETERSON; TONYA PETERSON §
Individually and as NextFriend
and as of
Next Friend of §
RUBYPETERSON;
RUBY PETERSON;DONLESLIE
DON LESLIEPETERSON;§
PETERSON; §
CAROL
CAROL PETERSON,
PETERSON, andas
Individually and asNext
Next §§
Friend
Friend ofRUBY
of RUBY PETERSON;
PETERSON; and LONNY
and LONNY §
PETERSON,
PETERSON, §
VS.
VS. §
§
SILVERADO
SILVERADO SENIOR
SENIOR LIVING, INC.
LIVING, INC. §
SILVERADO
d/b/a SILVERADO SENIOR
SENIOR LIVING
LIVING —— §
SUGAR
SUGAR LAND
LAND § HARRIS COUNTY,
HARRIS COUNTY, TEXAS
TEXAS

SILVERADO’S
SILVERADO'S RESPONSE
RESPONSE TO
TO
PLAINTIFFS’
PLAINTIFFS' OBJECTION
OBJECTION TO APPLICATION FORATTORNEY’S
TOAPPLICATION FEES
FOR ATTORNEY'S FEES
PURSUANT
PURSUANT TORULE
TO ENTERED
RULE 91(a) ENTERED ONNOVEMBER2014
ON NOVEMBER 10, 2014

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

(Silverado)files thisResponse
(Silverado) to Plaintiffs’
this Response to Objection
Plaintiffs' Objection ttooApplication
Application forAttorney’s FeesPursuant
for Attorney's Fees Pursuant

to Rule91(a)
to Rule 9l(a)Entered
Entered On November
OnNovember (Plaintiffs’
I0,20141 (Plaintiffs'
10, Objection)
Objection) Ordered
asOrdered
as bytheCourt
by and
the Court and

expressly agreedby
expresslyagreed bytheparties December
onDecember
the parties on 9,2014.I
9, 2014.

PROCEDURAL
PROCEDURAL POSTURE
POSTURE

OnNovember
On 10,2014,
November 10, 2014,the Court entered
theCourt itsOrder
entered its granting Silverado’s
Order granting Rule91a
Silverado's Rule 9laMotion
Motion to
to

Dismiss
Dismiss thefollowing causes
the following causes ofaction
of whichwere
action which theonly
werethe causes
only causes ripeforinclusion
ripe intheinitial
for inclusion in the initial

falseimprisonment,
91afiling: false
91a imprisonment, assault
assault andbattery,
and battery, andconspiracy. Silverado
and conspiracy. Silverado timelyfiled its
timely its
Application
Application forAttomey
for FeesPursuant
Attorney Fees Pursuant Rule91a
toRule
to 9laOrder Entered
Order Entered onNovember
on 10,20142 and
November 10, and First
First

Supplement
Supplement (hereinafter
thereto3 (hereinafter globally
globally referred
referred to as "Silverado’s
to as "Silverado's Fee Application")
FeeApplication") required
asrequired
as

1 Onfile with
On withthe
theCourt andincorporated
Court and byreference
incorporated by asififset
reference as setout fullyherein.
out fully herein.
2 Id.
3 id

4844-7770-7809.1

Silverado Appx. 0490
No. 1-15-586-CV 3780
 bytheCourt
by andpursuant
the Court and to Rule
pursuant to Rule 91a.The onlyother
91a. The only otherpending
pending motion
motion issuerelated
atissue
at related theRule
ttoothe Rule

entered
91aOrder onNovember Motion
isPlaintiffs
10,2014 toReconsider,
Brief
inSupport
and
91a Order entered on November 10, 2014 is Plaintiffs Motion to Reconsider, Brief in Support and

Silverado’s
Silverado's Response
Response thesame.4
tothe
to

II
RULE 11

OnDecember
On December 9,2014, during tthe
9, 2014, during hehearing onSilverado’s
hearingon FeeApplication,
Silverado's Fee Application, theCourt
the Court afforded

Plaintiffs
Plaintiffs opportunity
anopportunity
an totochoose
choose themethod
the bywhich
method by thefeeapplication
which the fee application and evidence
andevidence in
in support
support

ofthe
of samew
the same ouldbbeeadmitted.
would admitted. The
TheCourt to permit
Court offered to a full
permit a full e videntiary
evidentiary hearing
hearing proceed
toproceed
to in
in

which leadcounsel
which lead forSilverado
counsel for would
Silverado would takethestand,
take besubject
the stand, be cross-examination
tocross-examination
subject to the
onthe
on

itemized
itemized invoices
invoices andhis
and Plaintiffs
hisaffidavits, Plaintiffs could
could preserve
preserve objections
objections andthe
and theevidence
evidence would
would tthen
hen
be admitted for
be consideration
incamera consideration
for final in andruling. Thealtemative
and ruling. The offeredbbyytheCourt
alternative offered the Court

required
required agreement
agreement bytheparties
by the parties o
on the recordtthat
ntherecord hattthe
heApplication forAttomey
Application for FeesPursuant
Attorney Fees Pursuantto
to

Rule91a
Rule 91aOrder Entered
Order Entered November
onNovember
on 10,2014
10, andFirst
2014and Supplement
First Supplement constituted
theretos constituted prima
prima

facieevidence
facie evidenceofthe reasonablenessand
of the reasonableness necessityofSilverado’s
andnecessity attorneys' fees
of Silverado'sattomeys’ ubjecttotoPlaintiff’
feesssubject Plaintiff'ss

evidentiary
evidentiary objections,
objections, ififany, filed
any,filed no later
nolater than5:00
than 5:00PM
PMon Tuesday,
onTuesday, December
December 16,22014
16, at which
014at which

time allpending
time all briefing
pending briefing andevidence
and evidence would
would beconsidered
be by submission. Plaintiffs
considered bysubmission. elected
Plaintiffs elected nnototttoo
proceed
proceed w ithaa formal
with formal hearing,
hearing, agreedto
agreed theCourt’s
tothe terms
Court's terms andchose
and takeadvantage
totake
chose to advantage ofthe
of the

additional
additional timeto
time submit
tosubmit written
written evidentiary
evidentiary objections.
objections. Once
Once Silverado’s
Silverado's Response
Response deadline
deadline was
was

dictated
dictated intothe
into therecord bytheCourt
record by as5:00
the Court as PM, T
5:00 PM, hursday
Thursday December
December 18,22014,
18, Silverado deferred
014,Silverado deferred

andalso
and agreed.
also agreed.

4 See Silverado’s
See Silverado's Response
Response totoPlaintiffs’ Motion
Plaintiffs' Motion Reconsider
toReconsider
to Rulings, Counter Motion
Rulings, Counter Motion for
for
Sanctions
Sanctions and
and Brief
Brief iinnSupport
Support ofMotion
of Motion to Reconsider
toReconsider and Rescindwhich
andRescind which iisson
on file
file with
with theCourt
the Court
andincorporated
and incorporated byreference
by reference asas if set out fully
if setout herein.
fully herein.
Bothon
5 Both filewith
onfile thecourt
with the court andincorporated
and byreference
incorporated by as if
reference as set out fully
if setout herein.
fully herein.

4844-7770-7809.1

Silverado Appx. 0491
No. 1-15-586-CV 3781
 <4J III
III
Cli OBJECTION

Silverado
objects
toallarguments
andissues inPlaintiffs’ which
raised arebeyond
Silverado objects to all arguments and issues raised in Plaintiffs' Objection which are beyond

and/or
and/or outside
outside thescope
the ofSilverado’s
scopeof Silverado's Fee Application,
FeeApplication, moves
moves to enforce
toenforce theOrder
the Courtand
Order of the Court and

Rule11
Rule 11Agreement entered
Agreement entered December
onDecember
on 9,201
9, 1,and
2011, moves
and moves to strike
to strike p wothrough
agesttwo
pages through four
four ((2-4)
2-4)
ofPlaintiffs’
of Objection
Plaintiffs' Objection beginning
beginning withthe
with thefirst complete
first complete paragraph
paragraph atpage
at pagetwo through
twothrough thelast
the last

complete
complete paragraph page four.Pages
atpage
paragraph at through
twothrough
four. Pages two fourooffPlaintiffs’
four Objection
Plaintiffs' Objection simply
simply hhighlight
ighlight
thetime, skill
the time, skill and briefing
andbriefing required
required inthis
in matter
this matter due Plaintiffs
duetotoPlaintiffs repeated
repeated refusal
refusal follow
tofollow
to the
the
Cd
e- Court's Ordersand
Court’sOrders andagreements
agreementsoftheparties.Plaintiffs’ argument
of the parties. Plaintiffs' argument insupport
in ofits
supportof itsconclusory
conclusory

assertion
assertion thattheCourt granted
that the Court granted tthe
heRule 9lain
Rule 91a errorisiscumulative
in error cumulative in part,isisincomplete
inpart, incomplete as to
asto
background,
background, mischaracterizes
mischaracterizes theprocedural
the history
procedural history andlaw
and goveming
lawgoverning theRule
the Rule 91(a) Order entered
91(a)Order entered

onNovember
on 10,2014
November 10, 2014and pending
andpending FeeApplication,
Fee andimproperly
Application, and inserts
improperly inserts aa novel argument
novel argument that
that

theFifth
the Amended
Fifth Amended Petition
Petition iiss somehow
somehow rrelevant
elevant to the pending iissues.
to thepending ssues.Theparties not
werenot
The parties were

authorized
authorized to submit
tosubmit further
further briefing
briefing related
related toPlaintiffs’
to Motion
Plaintiffs' Motion to Reconsider
toReconsider themerits
orthe
or ofthe
merits of the

underlying
underlying Rule91a
Rule 91aMotion
Motion to Dismiss which
to Dismiss which ssupports
upports Silverado’s mandatory
Silverado's mandatory attomey
attorney feeaward.
fee award.

Silverado
Silverado objects
objects a ndmoves
and theimproper
strikethe
tostrike
movesto additional
improper additional argument
argument sectionrelated
section relatedto the
tothe
substantive
substantive Rule91a
Rule 9laMotion Dismiss
Motion ttooDismiss which violates
whichviolates theRule
the 11Agreement
Rule 11 andOrder
Agreement and ofthe
Order of the

Court.In
Court.

addition
In addition tothe
to foregoing
theforegoing objection,
objection, Silverado
Silverado specifically
specifically objectsto
objects Plaintiffs’
toPlaintiffs'
mischaracterization
mischaracterization andobfuscation oftherecord:
and obfuscation of the record:

OnDecember
On 2014, theCourt
9,2014,
December 9, heldaa hearing
the Court held hearing butdid not c
but did not onsider
consider thesupplement
the supplement

Silverado’s
toSilverado's
to application
application for
for an
an award ofattomey’s
awardof feesalleging
attorney's fees requestto
alleging aa request to
dismissaann additional
dismiss additional claim
claim that
that was included
notincluded
was not inits
in itsprevious
previous motion for
motionfor
dismissal,
dismissal, which filedon
wasfiled
which was thesame.day.
onthe

4844-7770-7809.1
4844-7770-7809.1

Silverado Appx. 0492
No. 1-15-586-CV 3782
 See (Plaintiffs’
See (Plaintiffs' Objection
Objection TheCourt
3).The
atat3). Courtmade
made ititclear during
clear during thehearing
the December
onDecember
hearing on 9, 2014 tthat
9,2014 hat
theApplication for
the forAttorney FeesPursuant
Attorney Fees Pursuant Rule91
toRule
to a Order
91a Order Entered on November
Entered on 10,22014
November 10, 014and
and

FirstSupplement
First theretowere
Supplement thereto properly
wereproperly beforethe
before theCourt andconstituted
Court and constituted prima evidence
primafacie evidence ofthe
of the

reasonableness
reasonableness andnecessary
and necessaryattorney
attorney fees incurred
fees incurred bySilverado
by Silverado subject to Plaintiffs’
subject to evidentiary
Plaintiffs' evidentiary

objections,
objections, if any, aand
if any, ndSilverado’s
Silverado's response. Allparties
response. All expressly agreed
parties expressly othe
agreed tto same. S
the same. ilverado’s
Silverado's

First Supplement
First Supplement toApplication
to forAttomey
Application for FeesP
Attorney Fees ursuant
Pursuant to Rule
to Rule 91a Order
91a Order Entered on November
Entered on November

10, 2014 ,, which
10,2014 which was the date of hearing, does
on thedateofhearing,
was filed on not request d
does notrequest ismissal
dismissal of an additional
of an additional claim
claim

andwas
and forthelimited
wasfiled for the limited purpose ofsupplementing
purpose of itsreasonable
supplementing its andnecessary
reasonable and necessary costs andfees
costsand fees

incurred between
between December
December 1
1,, 2014
2014andDecember 9, 2014.6 Silverado
and December 9, furtherobjects
Silveradofurther the
on the
objects on

grounds
grounds thatPlaintiffs’ recitation
that Plaintiffs' recitation andcharacterization
and ofthebackground
characterization of andprocedural
the background and history
procedural history

relatedto
related to Silverado’s FeeApplication
Silverado's Fee as incomplete,
Application as inaccurate and/or
incomplete, inaccurate and/or m isleading.
misleading. TEX.
TEX.R. P.
R. M. P.

106,4403.
106, 03.IVISSUES

IV
PENDINGFORTHECOURT’S
ISSUES PENDING RULING
FOR THE COURT'S RULING

Plaintiffs
Plaintiffs c ontinuedoobfuscation
continued bfuscation ooff thefactsandissuesbeforetheCourtnecessitate this
the facts and issues before the Court necessitate this

simple
simple issuestatement
issue statementfor the benefit oftheCourt
forthebenefit and clarity o
of the Court andclarity offtherecord. Thereare
the record. There issues
twoissues
aretwo
pending before
pending before tthe
heCourt related
Court related theRule
tothe
to 9laOrder
Rule 91a entered
Order entered onNovember
on 10,2014.7
November 10,

Whether
l. Whether
1. Plaintiffs’ motion
Plaintiffs' motion reconsider
toreconsider
to and briefin
andbrief insupport
supportshould
should bedenied.
be denied.

6 SeeFirst
See Supplement.
First Supplement.
Despite
7 Despite Plaintiffs
Plaintiffs efforts
efforts to obtain
toobtain a ruling onnSilverado’s
ruling o 91aa Motion
Silverado's 9l Motion to to Dismiss
Dismiss Plaintiffs’
Plaintiffs'
SoleRemaining
Sole Remaining Claim
Claim ofBreach
of Breach ofofTrust and/or
Trust and/or Breach
Breach ofFiduciary Duty,
of Duty,ititis notbbefore
is not efore the
the Court
forruling
for untilJanuary 8,
ruling until 8,2015.The datethat
2015. 7 The date thatcontrols
controls Silverado’s
Silverado's deadlines
deadlines related
related ttooPlaintiffs’
Plaintiffs'
FifthAmended
Fifth Amended Petition
Petition theextent,
tothe
to extent,ififany, it impacts tthat
any,itimpacts hat91amotion o dismiss
91a motion tto dismiss aand/or
nd/ornnecessitates
ecessitates
objection,
objection, reply, p
reply, artialwithdrawal
partial withdrawal and/or a
and/or mendment
amendment related
relatedtto same is
o same is thedateofhearing:
the date of hearing:
January 8,2015.
January 8, TEX.R.CIV.
2015. TEX. R. Civ. P.91a.
P. 91a.

4844-7770-7809.1

Silverado Appx. 0493
No. 1-15-586-CV 3783
 2. Upondenialof
2. Upon themotion
denial of the motion reconsider,
totoreconsider, theCourt
the Courtwill
will then determine
thendetermine Silverado’s
Silverado's

reasonable attorney ffees
reasonable attorney eeswith
with regard o the
regard tto challenged
the challenged ofaction
causesof
causes pursuant
action pursuant the
tothe
to

lodestar
lodestar method.
method. IfIfthemotion reconsider
the motion totoreconsider isisgranted andthe
granted and the9laisovertumed, thisissue
91a is overturned, this issue

will bereached
notbe
will not reached

V
SUBSTANTIVE
SUBSTANTIVE SUBJECT TOOBJECTION
RESPONSE SUBJECT
RESPONSE ABOVE
TO OBJECTION ABOVE

A)PLAINTIFFS' OBJECTIONS
A) OBJECTIONS FEEAPPLICATION
TOSILVERADO'S FEE
TO APPLICATION

Plaintiffs
Plaintiffs assert thefollowing
the following objections to Silverado’s
objections to FeeApplication:
Silverado's Fee Application:

1) Silverado’s
1) proffered
Silverado's proffered ‘evidence’
'evidence' consists
consists ofno
of evidence
noevidence or to support it’s[sic]
orinsufficient tosupport it's [sic]
claimfor
claim foran award o
an award off$1l7,l83.40
$117,183.40 a ttomey’s
attorney's feespursuant
fees pursuantto TRCP
to TRCP Rule
Rule 9la.(Plaintiffs’
91a. (Plaintiffs'
Objection
Objection 4).
at 4).
at

2) Silverado's
2) Silverado’s claim foran
claimfor ofattomey’s
awardof
anaward feespursuant
attorney's fees TRCPRule
toTRCP
pursuantto Rule9la isexcessive.
91a is excessive.
(Plaintiffs’
(Plaintiffs' Objection
Objection 5).
at 5).
at

3) Generally,
3) Generally, Plaintiffs
Plaintiffs object
object that theredacted
thatthe invoices
redacted invoices insupport
in supportof fees "do
offees notpprovide
"do not rovide any
any
evidence
evidence ofthereasonableness
of the reasonableness or necessity
or necessity ofthetimespent" and/ordo
of the time spent" and/or donot constitute
notconstitute
"reliable
"reliable evidence"
evidence" and/or
and/or "noevidence"
are"no
are withregard
evidence" with regard segregation
tosegregation
to between
between Stateand
State and
Federalcclaims.
Federal laims.((Plaintiffs'
Plaintiffs’ Objection
Objection at 5-7).
at 5-7).
4)
4) Plaintiffs object
Plaintiffs object that S
that ilverado’s
Silverado's insurer
insurer assumed
assumed thecost
the ofdefense.
costof defense. (Plaintiffs’ Objection
(Plaintiffs' Objection at
at
6).
6).

5)
5) Plaintiffs submit
Plaintiffs submit it was
it improper
wasimproper forSilverado
for claimreimbursement
toclaim
Silverado to reimbursement forfees
for thatwere
fees that were
chargeable
chargeable to another
to case anddid
another case related[sic]
notrelated
and did not [sic]to claimsthat
toclaims thatwere dismissed
weredismissed on
on
November
November 10,10,2014
2014pursuant
pursuant to TRCP R
to TRCP ule9la.(Plaintiffs’
Rule Objection
91a. (Plaintiffs' Objection 7).
at7).
at

6) Plaintiffs’
6) objectto
Plaintiffs' object Silverado’s
toSilverado's request
request forappellate
for appellate costs: Thestatements
costs:The statementsofJosh
of Davis
Josh Davis
regarding
regarding hisopinion
his opinion aass to theamounts
tothe amounts ofreasonable
of andnecessary
reasonable and necessaryfeesforhandling
fees for handling
appealsooffthis
appeals matterare
this matter arenotnotsupported bybyevidence andare
evidence and conclusory.
areconclusory. (Plaintiffs’
(Plaintiffs'
Objection
Objection 7-8).
at7-8).
at

4844-7770.7809.1

Silverado Appx. 0494
No. 1-15-586-CV 3784
 B) To
RESPONSE To APPLICATION
B) SILVERADO'S RESPONSE To PLAINTIFFS' OBJECTIONS TO FEE APPLICATION

Subject
Subject to itsobjections
to its andconsistent
objections and consistent withtheCourt’s andRulell
with the Court's Order and Agreement
Rule 11 Agreement

intotherecord
dictated into December
the record December 9,2014,
9, Silverado
2014, Silverado files thefollowing limited
the following limited response
response to redress
to redress

theissues
the issuesand/or
and/orobjections
objectionsraised by Plaintiffs
byPlaintiffs thatspecifically pertain
that pertain to Silverado’s
to Silverado's Fee
Fee

Application.
Application.

l)
I) EVIDENCE
REDACTED EVIDENCE

Silverado
Silverado andserved
filed and served one hundred
onehundred thirty-six
thirty-six pages
pages (SSL00000l-SSL000l36)
(SSL000001-SSL000136) of
of

properly redacted
properly redacted itemized
itemized billing
billing entries
entries insupport
in supportofits
of attomey
its attorney feesand
fees costs a
andcosts ndconcurrently
and concurrently

tendered
tendered unredacted
unredacted copies
copies theCourt
tothe
to forits
Court for incamera
its in camerainspection
inspection and
and lodestar
lodestar analysis. Plaintiffs
analysis. Plaintiffs

generically
generically object to allevidence
object to all evidence proffered "no evidence," and/or
as "insufficient," "noevidence,"
proffered as "not rreliable"
and/or “not eliable"
largely
largely onthebasis
on the basis tthat
hatportions
portionsofthe
of the filed billing
billing rrecords
ecords were rredacted;
were edacted; however,
however, Plaintiffs
Plaintiffs failttoo
fail

pincite single
pin cite aasingle batesnumber,
bates number, lineitembilling
line and/or
entryand/or
item billing entry lodge
lodge substantive
aasubstantive evidentiary
evidentiary

objection
objection to afford
to afford S ilverado
Silverado an opportunity
an to meaningfully
opportunity to meaningfully respond. Additionally,
respond. Additionally, ititis
is important

tonote
to thatSilverado
note that Silverado timely itsfeeapplication
timelyfiled its andPlaintiffs
fee application and failedto
Plaintiffs failed timelyfile aa motion
totimely motionto
to

compel
compel and/or
and/or anyother
any substantive
othersubstantive response
response to thesame
tothe priorttoothe
sameprior thehearing dateto
hearing date seekaa ruling
to seek

theissues
onthe
on forwhich
issues for theynow
which they generically
nowgenerically complain
complain andwholly failto
and wholly fail citeany
tocite authority.
anyauthority.
Plaintiffs
Plaintiffs waived
waived tthis
hiscomplaint andexpressly
complaint and expressly agreed
agreed o therecord
onnthe thattheFeeApplication
record that and
the Fee Application and

First Supplement
First Supplement constitute
constitute prima acieevidence
prima ffacie evidence ofthereasonable
of the reasonable and necessary
and necessary feesand
fees costs
and costs

incurred
incurred dduring
uringthehearing
the hearing o
onn December
December 9,2014.Inaddition, numerous
9, 2014. In addition, numerous entries
entries wholly
arewholly
are

unredacted andthose
unredacted and thatare
thosethat redacted
areredacted onlyredacted
areonly
are redacted thelimited
tothe
to limited extent to protect the
necessary toprotect
extent necessary the

thatare
portions that subject
aresubject work
towork
to product,
product, attomey-client
attorney-client and/orjoint
and/or jointdefense privileges.
defense privileges. See
See

4844-7770-7809.1

Silverado Appx. 0495
No. 1-15-586-CV 3785
 Thelegal
(SSL000001-SSL000136).8 The sufficiency
legal sufficiency oftheevidence
of isfortheCourt’s
the evidence is review
for the Court's review and
and

—notcounsels.
determination—not SeeLong
counsels. See v.Griffin, 442S.W.3d
Long v. 442 S.W.3d 2 53,2255
253, (Tex. 2
55(Tex. 014)cciting
2014) iting(El
(ElApple
Apple

Ltdv.
I, Ltd Olivas,370
v.Olivas, 370S.W.3d 757,763(Tex.
S.W.3d 757, 2012)(attorneys
763(Tex. 2012) (attomeys providetthe
mustprovide
must trial court withthe
hetrial with the

information)); seealso,
information)); see also, B org-
Warner
Borg-Warner Servs.
Protective Servs. Corp.v.v.Flores,
Corp. 955S.W.2d
Flores, 955 S.W.2d861,870
861, 870(Tex.
(Tex.

App.—
App. —Corpus
CorpusCChristi
hristi11997,
997,nno pet.h.)(attorney
opet. h.) (attorney ffees
eesand
and costs are determined
costs are determined bythe
by the trial judge);
judge);

Boyaki v. JohnM
Boyaki v. John M 0O’Quinn &Assocs.,
'Quinn & Assocs., PLLC, No.01-12-00984-CV,
PLLC, No. 2014Tex.
01-12-00984-CV, 2014 Tex.App. LEXIS10862
App.LEXIS 10862
(Tex.App.
(Tex. App. -—Houston[1st
Houston Dist.]Sept.
[lst Dist.] 30,2014,
Sept. 30, pet.)(theCourt
nopet.)
2014, no determines
(the Court determines whatconstitutes
what constitutes

reasonable andnecessary
reasonable and attorneys
necessary attorneys feesand
fees sufficient evidence
andsufficient underthelodestar
evidence under the lodestar method). Fortthe
method). For he
foregoing
foregoing reasons, Plaintiffs
reasons, Plaintiffs generic
generic a boilerplate objections
ndboilerplate
and objections related
related tto insufficiency
o insufficiency ofthe
of the

evidencebased
evidence basedupon redaction
uponredaction shouldbe
should beoverruled.
overruled.

2)SEGREGATION OF FEES
2)

Plaintiffs
Plaintiffs complain
complain thatSilverado improperly
that Silverado improperly seek feesfordefense
seek ofthecorresponding
fees for defense of the corresponding

federal
federal lawsuit
lawsuit andfailing segregate the
to segregate
and failing to the same. Forthe
same. For reasons
the reasons outlined
outlined inSilverado’s
in Fee
Silverado's Fee

Application, thecosts
Application, the ofdefending
costsof thefederal
defending the lawsuit
federal lawsuit incurred
wereincurred
were with respect
with respect tothechallenged
to the challenged

ofaction.
causesof
causes See Application forAttorney
action. SeeApplication for Attorney FeesPursuant
Fees Pursuant to Rule91aOrder
to Rule Entered
91a Order Entered On
On

November
November 10,22014
10, 014at However,
at 6-8.9 However, Silverado
Silverado segregated
segregated itsfederal
its feesin
federal fees abundance
anabundance
in an of
of

cautionforthebenefit
caution of the
for the benefit of theCourt andhighlighted
Court and eachentry
highlighted each entryon the in
onthe incamera records.
camerarecords.
Plaintiffs’
Furthermore, Plaintiffs' admit
admit thatSilverado
that Silverado segregated
segregated thefederal
the feesfor
federal fees forthebenefit ofthe
the benefit of Court
the Court

andsolely
and inan
solelyin anabundance ofcaution
abundance of byciting
caution by thedollar
citing the amount
dollar amount offees
of fees attributable saiddefense
tosaid
attributable to defense

ofNovember
asof
as 30,2014:
November 30, $18,830.00.
2014: $18,830.00. SeePlaintiffs’
See Objection
Plaintiffs' Objection at page77citing
atpage (Exhibit
citing (Exhibit "A" to
"A" to

Application
Application forFees
for Fees at butssee
at¶8); but (Exhibit
ee(Exhibit "A"to
"A" toFirst Supplement
FirstSupplement at¶7 reflecting
at amount
reflecting amount offees
of fees

8 Onfilewith
On theCourt
file with the andincorporated
Court and byreference
incorporated by reference as ifset
as if setout fullyherein.
out fully herein.
9 Incorporated
Incorporated byreference
by asififset
reference as setout verbatim
out verbatim herein.
herein.

4844-7770-7809.1
4944-7770-7809.1

Silverado Appx. 0496
No. 1-15-586-CV 3786
 incurred
incurred with regard
with regard ttoocontemporaneous federal
contemporaneous federal filingequals
filing equals$19,223.00
$19,223.00 ofDecember
asof
as 9,2014).
December 9, 2014).

C thereasons
For enumerated Application,
inSilverado’s
Fee should
Silverado itsfederal
beawarded
For the reasons enumerated in Silverado's Fee Application, Silverado should be awarded its federal

feespursuant
fees toRule
pursuant to and Plaintiffs
9la.7and
Rule 91a.7 objections regarding
Plaintiffs objections segregation
regarding segregation beoverruled
mustbe
must asthe
overruled as the

fees infact
werein
fees were segregated
fact segregated inan
in abundance
anabundance ofcaution.
of caution.

3)
3) APPELLATE FEES FEES
obj
Plaintiffs donot
Plaintiffs do not a ttack
attack tthe
hequalifications ofMr.
qualifications of Mr. D avis;
Davis; however, theyobject
however, they thattthe
ectthat heaffidavit
0
supporting
supporting feesisisconclusory
fees asto
conclusory as appellate
toappellate fees forthefollowing
feesfor reasons:
the following reasons: ititdoes notpprovide
does not rovideany
any
01
method
method for calculating the
forcalculating amounts
the amounts ofreasonable
of andnecessary
reasonable and necessaryfeeswhich
fees which w ouldbe
would beincurred; it
incurred; it

not indicate
doesnot
does indicate tthe amount o
heamount offhours
hours required;
required; thereasonable
the reasonable rate per hour;activities
rate per required;or
hour; activities required; or
the amounts
the amounts offees
of usualand
fees usual andcustomary inthelocality.
in the locality. To thecontrary,
Tothe contrary, thecurrent
the current contractual
contractual

defenserrates
defense atesare included
areincluded whichaffords
which method
affordsaamethod bywhich
by Plaintiffs
which Plaintiffs could extrapolate
couldextrapolate and
and

calculate
calculate thehours required
the hours required andfeeswhich
and wouldbe
fees which would bereasonably incurred.
reasonably incurred. See Exhibit
See Exhibit "A,"
"A," to
to

Silverado’s
Silverado's FirstSupplement
First Supplement Additionally,
at¶6. Additionally,
at Mr. Davis
Mr.Davis testifies
testifies thatthe
that theamounts
amounts offees
of are
fees are

usual andcustomary
usual and customaryinthelocality.
in the locality. Id at¶10. Mr.
Id at Davis’
Mr.Davis' qualifications
qualifications notat
arenot
are issueand
at issue andhis
his

opinions
opinions are basedupon
are based hiseducation,
uponhis knowledge,
education, knowledge, skill, e
skill, xperience
experience andtraining. Plaintiffs
and training. Plaintiffs

objections
objections are misplaced
are as theunderlying
misplaced as data complainedofissufficiently
the underlying datacomplained of is sufficientlypresent. Forthe
present. For the

foregoing
foregoing reasons, Plaintiffs
reasons, objections should
Plaintiffs objections should b overruled andSilverado
beeoverruled shouldbbeegranted
and Silverado should its
granted its

appellate
appellate andfees
costsand
costs inthe
fees in Plaintiffs
eventPlaintiffs
the event choose
choose to appeal.
to appeal.

4)
4) EXCESSIVENESS & ASSUMPTION
& INSURER'S ASSUMPTION OF DEFENSE

Rule91a
Rule includes
9la includes feeaward
aa mandatory fee award ttoothe prevailing party. TEX.
theprevailing TEX. R. P.91a.7.
R. Civ. P. 91a.7.

Plaintiffs that Silverado did
objectthatSilverado
Plaintiffs object actually
notactually
did not incurtthe
incur hecost ofdefense.
cost of However,
defense. However, itisirrelevant
it is irrelevant

who ultimately
whoultimately incurs
incurs the costofofdefense
thecost —theprevailing
defense — party, inthis
the prevailing party, case Defendant,
in this case Defendant, isentitled
is entitled to
to

recover itsfees.
recover its fees. Id.

4844-7770-7809.1

Silverado Appx. 0497
No. 1-15-586-CV 3787
 With
With regard
regard ttooPlaintiffs’ generic
Plaintiffs' generic objection
objection excessiveness,
astotoexcessiveness,
as theCourt isisthesole
the the sole jjudge
udgeaass
to thereasonableness and
to the necessity
andnecessity ofthe
of amount
the amount offees
of andmay
fees and adjustthe
mayadjust theamount
amount upor
up down.
or down.

Boyaki, 2014Tex.
Boyaki, 2014 Tex.App.
App.LEXIS
LEXIS10862
10862 FN3citing
atFN3
at (Dillard
citing(Dillard D ep’tStores,
Dep't Gonzales,
Inc.v.v.Gonzales,
Stores, Inc. 72
72

S.W.3d
S.W.3d 398,412
398, 412(Tex. App.—
(Tex. App. —ElPaso
El Paso2002,pet.denied)).
2002,pet. TheDillard
denied)). The Dillard trial applied
courtapplied
trial court the
the

lodestarm
lodestar ethodof
method ofdetermining fees. SeeGonzales,
determining fees. 72S.W.3d
See Gonzales, 72 S.W.3d at 412. Applying
412. Applying thetwo
the twoprong
prong
lodestar
lodestar analysis, the
analysis, the Dillard adjusted
courtadjusted
Dillard court theamount
the amount up, doubled
up, doubled the
the hourly rateand
hourly rate then awarded
and then awarded

fees.Id. The
fees. appellate
Theappellate Court
Court found
found theaward
the award was notan
wasnot anabuse ofdiscretion
abuseof andtheTexas
discretion and the Texas S upreme
Supreme

Courtdenied
Court deniedthe
thepetition forreview.
petition for Id. Plaintiffs’
review. Id generalobjection
Plaintiffs' general objectionthatSilverado’s feesare
that Silverado's fees are
excessive shouldbe
excessive should bedenied. Furthermore,
denied. Furthermore, thetimeandlabor
the required;
time and labor required; levelof
level skill required; effect
ofskillrequired; effect

onother
on other e mployment
employment due to Plaintiffs
due to latenight
Plaintiffs late night ffilings,
ilings, refusal to follow
refusal to follow theCourt’s ordersand/or
the Court's orders and/or

agreements
agreements ofthe
of parties,
the parties, ethical
ethical rules and/or
rulesand/or basicttenants
basic enants of law which
oflaw which m andated
mandated pulling
pulling numerous
numerous

associates
associates andresources
and resourcesto devote
todevote thismatter
tothis
to matter asopposed
as opposed to time limitations
others; time
to others; imposed
limitations imposed due
due

to thecircumstances;
to the involved
amountinvolved
circumstances; amount andissues
and stake;and
atstake;
issues at andtheoverall
the overall u ndesirability
undesirability ofthe
of the case
case

supportan
support increase
an increase iinntheaward ofattomeys’
the award of feesifadjustment
attorneys' fees iswarranted
if adjustment is pursuant
warranted pursuant the
tothe
to

Johnson factors.
Johnson factors. Id
Id.

VI
VI
PRAYER
PRAYER

Silverado
Silverado Senior
Senior Living,
Living, d/b/aSilverado
Inc.d/b/a
Inc. Silverado Senior
Senior Living
Living SugarLand
Sugar Landrequests
requests theCourt
the Court

itsobjections,
grantits
grant objections, deny Plaintiffs’
deny Plaintiffs' objections,
objections, awardititits
award itscosts andreasonable
costsand andnecessary
reasonable and necessary
feesincurred inan not
lessthan $120,552.90.TEX. R. also,
attomey
attorney fees incurred in amount
anamount not less than $120,552.90. TEX. R. Civ. P.9la.7;
P. 91a.7; s eealso,
see

Drake, 2014Tex.App.Lexis12572
Drake, 2014 (Tex.App.
Tex. App. Lexis 12572 (Tex. App.— Fort WorthNov.20,2014).Silverado
—FortWorth further
Nov. 20, 2014). Silverado further

requests itsfeesforhandling
requests theappellee’s
its fees for handling the case
appellee's case ininthe court
the court ofappeals
of inthe
appeals in amount
the amount of$10,000,
of $10,000,

and $7,500
and$7,500 ifplaintiff
if WritooffError
plaintiff files aa Writ orrPetition
Error o Petition forReview
for Review w iththeSupreme
with the Supreme Court ofTexas,
Court of Texas,

and$7,500
and iftheWrit
$7,500 if ofError
the Writ of Petition
orPetition
Error or forReview
for isGranted
Review is bytheSupreme
Granted by the Supreme Court ofTexas.
Courtof Texas.

4844-7770-7809.1

Silverado Appx. 0498
No. 1-15-586-CV 3788
 Respectfully submitted,
Respectfully submitted,
C.rJ
0 LEWIS
LEWIS BRISBOIS BISGAARD
BRISBOIS BISGAARD &SMITH,
& LLP
SMITH, LLP

/S/Christian
R.
/S/ Christian R. Johnson

pJ DAVIS
JOSH K. DAVIS
State
BarNo.24031993
State Bar No. 24031993
CHRISTIAN
R.JOHNSON
CHRISTIAN R. JOHNSON
StateBar
State Bar N o.24062345
No. 24062345
Weslayan
Weslayan Tower, Suite1400
Tower, Suite 1400
24Greenway
24 Plaza
Greenway Plaza
Houston,
Texas
77046
Houston, Texas 77046
(713)659-6767
(713) Telephone
659-6767 Telephone
(713)759-6830
(713) Facsimile
759-6830 Facsimile

ATTORNEYS FOR DEFENDANTS,DEFENDANTS,
SILVERADO
SILVERADO SENIOR
SENIOR LIVING, INC.D/B/A
LIVING, INC. D/B/A
SILVERADO
SILVERADO SENIOR
SENIOR LIVING
LIVING SUGAR
SUGAR LAND
LAND

CERTIFICATE
OFSERVICE
CERTIFICATE OF SERVICE

IIhereby
hereby c ertify
certify tthat
hataa true
true and
and correct copy ofthe
correct copy of the foregoing
foregoing instrument
instrument was served
was served all
uponall
upon
counsel
counsel ofrecord
of record v iae-file, facsimile,
via facsimile,handdelivery
hand deliveryand/or
and/or mail,return
certified mail, retum receipt
receipt requested
requested on
on

Philip
M.
Ross
this ofDecember,
this 18th of 2014.
December, 2014.

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

Candice
LSchwager
Candice L Schwager

1417
Ramada
Dr.
TheSchwager
LawFirm
The Schwager Law Firm

Houston,
Texas
77062
1417 Ramada Dr.
Houston, Texas 77062
Attorney for
Attorney for Plaintiffs

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

JillW.Young
Jill W. Young

4844-7770-7809.1

Silverado Appx. 0499
No. 1-15-586-CV 3789
 ·

Maclntyre,
Maclntyre, McCulloch,
McCulloch, &Young,
Stanfield & LLP
Young, LLP
2900Weslayan,
2900 Suite150
Weslayan, Suite 150
Houston,Texas
Houston, Texas77027
77027

W.Russ
Jones
W. Russ Jones
JonesScherrer &
Underwood, Jones &Malouf, PLLC
Malouf, PLLC
5177Richmond
5177 Richmond Ave,Suite
Ave, Suite505
505
Houston,
Houston, Texas
Texas 77056
77056

/S/ R.J0hns0n
/S/ Christian R. Johnson

CHRISTIAN
CHRISTIAN R. JOHNSON

4844-7770-7809 I

Silverado Appx. 0500
No. 1-15-586-CV 3790
 CAUSENO.427,208
CAUSE NO. 427,208

MACKEY
MACKEY ("MACK”) GLENPETERSON
("MACK") GLEN PETERSON § INPROBATE COURTNO.
IN PROBATE COURT NO.1
1
C PETERSON;
PETERSON; PETERSON
TONYAPETERSON
TONYA §
Individually and as Next
and as Next F riend
Friend ooff §
RUBYPETERSON;
RUBY PETERSON; DONLESLIE PETERSON;§
DON LESLIE PETERSON;
CAROL
CAROL PETERSON,
PETERSON, Individually
Individually andas
and asNext
Next §
FriendofRUBY
Friend PETERSON; and
of RUBY PETERSON; LONNY
and LONNY §
PETERSON,
PETERSON, §
VS.
VS. §
SILVERADO
SILVERADO SENIOR
SENIOR LIVING,
LIVING, INC. §
d/b/aSILVERADO
d/b/a SENIOR
SILVERADO SENIOR LIVING—-
LIVING §
SUGARLAND
SUGAR LAND § HARRISCOUNTY,
HARRIS COUNTY,TEXAS
TEXAS
1n
ORDER
ORDER DENYING PLAINTIFFS’
DENYING PLAINTIFFS' OBJECTIONS
OBJECTIONS TOAPPLICATION
TO APPLICATION FOR
FOR
ATTORNEY’S
ATTORNEY'S FEESPURSUANT
FEES PURSUANT T O RULE
TO RULE91(A)
91(A)
ENTERED
ENTERED ONNOVEMBER2014
ON NOVEMBER 10, 2014

BEITREMEMBERED
BE IT REMEMBERED that onthisday
that on this day came to beconsidered
onnto
came o be considered Plaintiffs’ Objections
Plaintiffs' Objections to
to

Application
Application forAttomey’s FeesPursuant
for Attorney's Fees Pursuant to Rule91(a)
to Rule 9l(a)Entered OnNovember
Entered On November 10, 10,2014
2014and
andthe
the

Courtafter reviewing
Court reviewing Plaintiffs’ Objections
Plaintiffs' Objections should
should beDENIED.
be DENIED.

It istherefore
It is ORDERED
therefore ORDERED thatPlaintiffs’ Objections
that Plaintiffs' Objections to Application
to Application forAttomey’s Fees
for Attorney's Fees

Pursuantto
Pursuant Rule9l(a)Entered
to Rule OnNovember
91(a) Entered On 10,2014isHEREBY
November 10, DENIED
2014 is HEREBY DENIED initsentirety.
in its entirety.

Allrelief
All relief not expressly
notexpressly granted
granted hereinisisdenied.
herein denied.

SIGNED
SIGNED this
this dayof
day of 2014.
2014.

JUDGE
JUDGE P RESIDING
PRESIDING

4840-2426-4225.1
4840-2426-4225.1

Silverado Appx. 0501
No. 1-15-586-CV 3791
TAB 60
 FILED
12/18/2014 5:01:13 PM

DATA-ENTRY
DATA-ENTRY
Stan Stanart
County Clerk
Harris County
PICK UP THIS DATE
COURT
PROBATE 1
PROBATE COURT 1
CAUSE
CAUSE NO. 427,208
NO. 427,208

MACKEY
MACKEY (“MACK")
("MACK") GLENPETERSON
GLEN PETERSON § INPROBATE
IN COURTNO.1
PROBATE COURT NO. 1
TONYA
PETERSON; PETERSON
PETERSON; TONYA PETERSON §
Friend
andasNext of
Individually and as Next Friend of §
RUBY PETERSON;
RUBYPETERSON; DONLESLIE
DON LESLIE PETERSON;§
PETERSON;
CAROL
CAROL PETERSON,
PETERSON, Individually
Individually andas
and asNext
Next §
FriendofRUBY
Friend of RUBY PETERSON;
PETERSON; and LONNY
and LONNY §
PETERSON,
PETERSON, §
VS.

SILVERADO
SILVERADO SENIOR
SENIOR LIVING,
LIVING, INC.
INC. §
d/b/aSILVERADO
d/b/a SILVERADO SENIOR
SENIOR LIVING
LIVING —— §
N
SUGAR
SUGAR LAND
LAND § HARRIS
HARRIS COUNTY,
COUNTY, TEXAS
TEXAS

SILVERADO’S
SILVERADO'S MOTION
MOTION TOSTRIKE
TO PLAINTIFFS’
STRIKE PLAINTIFFS' OBJECTION
OBJECTION TORULE 9lA
TO RULE 91A
DISMISSAL
DISMISSAL OFCLAIMS
OF AGAINST
CLAIMS AGAINST FEEAPPLICATION
SILVERADO, FEE APPLICATION AND
AND
MOTIONS FOR SANCTIONS
FOR SANCTIONS

Defendant, Silverado S
Defendant, Silverado eniorL
Senior iving,Inc.d/b/aSilverado
Living, Inc. d/b/a Silverado Senior LivingSugar
SeniorLiving Land
SugarLand
("Silverado")
("Silverado") filesthisMotion
files Strikethe
to Strike
this Motion to theObjection ToRule9la
Objection To Dismissal
Rule 91a Dismissal OfClaims
Of Against
Claims Against

Silverado,
Silverado, FeeApplication
Fee Application AndMotions
And Motions ForSanctions byPlaintiffs'
For Sanctions filed by Plaintiffs’ counsel
counsel Candice
Candice

Schwager,
Schwager, on December
on Second Objection").
16, 2014 ("Plaintiffs' Second
December 16,2014("Plaintiffs’ Thismotion
Objection"). This doesnot
motion does not
address
address Plaintiffs’ Objection
Plaintiffs' Objection to Application
to Application forAttomey’s Fees Pursuant
for Attorney's Fees Pursuant to Rule91(a)
to Rule 9l(a)Entered
Entered

OnNovember
On 10,2014filedby
November 10, Plaintiffs’
2014 filed by Plaintiffs' counsel,Phillip
counsel, PhillipRoss,
Ross, on thesame
on the day("Plaintiffs’
sameday ("Plaintiffs'

FeeObjection).
Fee Objection).

OnDecember
On thisCourt
December 9th, this heldaa hearing
Court held hearing Silverado’s
onSilverado's
on Application
Application to PayAttomey
toPay Attorney

Feespursuant
Fees to the
pursuant to grant of
the grant of a Rule9la
a Rule Motionttoo Dismiss.
91a Motion Plaintiffs
Dismiss.Plaintiffs didnot
did objectto
notobject to
Silverado’s
Silverado's attomey
attorney fees,but
fees, butclaimed haveobjections.
tohave
claimed to objections. TheCourt
The magnanimously
Court magnanimously granted
granted

Plaintiffs
Plaintiffs additional
additional time properly rrespond
to properly
time to espondaand
ndobject
object tto Silverado’s
o Silverado's attorney
attorney ffees,
ees,on the
onthe
condition
condition thattheystipulate
that they stipulate thatthefees admissible.
wereadmissible.
that the fees were Plaintiffs
Plaintiffs agreed
agreed thisstipulation
tothis
to stipulation

andwere
and required
wererequired tofile their
to objections
theirobjections byDecember
by Silverado
December 16th. Silverado agreed
agreed to thisprocedure
tothis procedure

4851-0770-3329.1

Silverado Appx. 0502
No. 1-15-586-CV 3792
 well,and
as well,
as givenuntilDecember
wasgiven
and was until December 18th to respond
torespond anyofofPlaintiff's
toany
to Plaintiffs fee
attorney fee

objections.
OnDecember
16, boththeirFeeObjection
aswellasPlaintiffs’
objections. On December 16, Plaintiffs filed both their Fee Objection as well as Plaintiffs'

SecondObjection.
Second Objection.Plaintiffs’
Plaintiffs' SecondObjection
Second Objectioniin
n no addresses
no way addresses Silverado’s
Silverado's Fee
Fee

Application. such, the extentthatPlaintiffs’ Objectionis objector
Application.As
As such, to SecondObjection
to the extent that Plaintiffs' Second meantttoo object
is meant or
respond
respond to theamount,
to the reasonableness,
amount,reasonableness, necessityof
or necessity
or of Silverado's
Silverado’s fees,Silverado
attomeyfees,
attorney Silverado

requests
requests that theCourt
that the disregard
Court disregard thismotion
this initsentirety.
motion in its entirety.

Alternatively,
Alternatively, to the
to thatPlaintiffs’
extentthat
the extent Second
Plaintiffs' Second Objection
Objection isaasupplement
is supplementand/or
and/or

additional
additional briefing to Plaintiffs’
to Plaintiffs' Motion
Motion Reconsider
toReconsider
to theRule9la
the Order,
Rule 91a Order, Silverado
Silverado hereby
hereby

incorporates
incorporates byreference the objections and
by reference theobjections responses contained
and responses contained initsResponse
in its Response to Plaintiffs
to Plaintiff's

Motion
Motion Reconsider
ttooReconsider Rulings,
Rulings, filed December
onDecember
filed on Plaintiffs’
9th. Plaintiffs' Second
Second Objection
Objection contains
contains no
no

new factsor
new facts lawbut
orlaw merely
but merely regurgitates
regurgitates Plaintiffs’
Plaintiffs' Briefin
Brief in Support of their
Supportof theirMotion to
Motion to

Reconsider.
Reconsider. Moreover, it
Moreover, contains
it contains thesame,
the inapplicable
same,inapplicable arguments
arguments regarding
regarding thesanctions
the sanctions

awarded
awarded aagainst
gainstMs.Schwager. Sanctions
Ms. Schwager. Sanctions are notpart
are oftheRule9la
not part of Order,and
the Rule 91a Order, andhave no
have no

bearingon
bearing on reconsideration
reconsideration of the Rule 91a Order.Plaintiffs’
of theRule9la Second
Order. Plaintiffs' Second Objection
Objection isissuperfluous
superfluous
andwholly
and irrelevant
wholly irrelevant toany
to proceeding
anyproceeding currently
currently beforetthis
before hisCourt, anditshould
Court, and bedisregarded.
it should be disregarded.

PRAYER
PRAYER

WHEREFORE, PREMISES C
WHEREFORE, PREMISES ONSIDERED,
CONSIDERED, Defendant, Silverado SeniorLiving,
Defendant, Silverado Inc.
Senior Living, Inc.

d/b/aSilverado
d/b/a Senior L
Silverado Senior ivingSugar
Living Sugar L prays thatthisCourt
andprays
Land itsMotion
grantits
that this Court grant Motionto Strike
toStrike
Plaintiffs’ Objection
Plaintiffs' Objection ToRule
To 9laDismissal
Rule 91a OfClaims
Dismissal Of Against
Claims Against Silverado,
Silverado, FeeApplication
Fee And
Application And

Sanctions
Motions
For andthat beawarded
Defendant of and
taxable
costs that
the
Court
Motions For Sanctions and that Defendant be awarded taxable costs of Court and that the Court

otherand
suchother
grantsuch
grant andfurther reliefttoowhich
further relief Defendant
which Defendant isjustly
is justly entitled.
entitled.

4851-0770-3329.1

Silverado Appx. 0503
No. 1-15-586-CV 3793
 Respectfully submitted,
Respectfully submitted,

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

/s/Josh Davis
/s/ Josh K. Davis

JOSH K.DAVIS
JOSH K. DAVIS
State
State Bar
Bar No. 24031993
No. 24031993
CHRISTIAN
CHRISTIAN R
R..JOHNSON
JOHNSON
State Bar
Bar N o.24062345
No. 24062345
Weslayan
Weslayan T Suite1400
ower,Suite
Tower, 1400
24Greenway Plaza
24 Greenway Plaza
Houston,
Houston, Texas 77046
Texas 77046
(713)
(713) 659-6767
659-6767 Telephone
Telephone
(713)
(713) 759-6830
759-6830 Facsimile
Facsimile

ATTORNEYS FOR DEFENDANT,
SILVERADO
SILVERADO SENIORLIVING,
SENIOR LIVING,INC.
INC.D/B/A
D/B/A
SENIOR
SILVERADO LIVING
SUGAR
LAND
SILVERADO SENIOR LIVING SUGAR LAND

4851-0770-3329.1

Silverado Appx. 0504
No. 1-15-586-CV 3794
 .

OFSERVICE
CERTIFICATE
CERTIFICATE OF SERVICE

herebycertify that
II hereby that aa true andcorrect
trueand correct oftheforegoing
copyof
copy instrument
the foregoing instrument served
wasserved
was upon
upon
all counsel
all counselofofrecord
recordvia e-file,facsimile,
via e-file, handdelivery
facsimile, hand and/orcertified
delivery and/or mail,return
certified mail, receipt
retumreceipt
requested onthis18thDecember,
requested on this 18th December, 2014.
2014.

PhilipM.
Philip M.Ross
Ross
Holbrook
1006 Road
1006 Holbrook Road
SanAntonio,
San Antonio, Texas 78218
Texas 78218
Attorney
Attorney for
for Plaintiffs

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

SarahPatel
Sarah PatelP acheco
Pacheco
Crain,Caton
Crain, Caton&&James,
James,PC
PC
1401McKinney
1401 Street
McKinney Street
1700
Five Center
Houston
1700 Five Houston Center
Houston, Texas
Houston, 77010
Texas 77010
Attorneys for
Attorneys andDavid
for Carol Manley and David Peterson

Jill
w.Young
Jill W. Young
Maclntyre, McCulloch, Stanfield &Young,
Young,LLP
LLP
Maclntyre, McCulloch, Stanfield &
2900Weslayan,
2900 Weslayan,Suite150
Suite 150
Houston,Texas
Houston, Texas77027
77027
W.Russ
W. Russ J ones
Jones
Underwood, JonesScherrer
Underwood, Jones &Malouf,
Scherrer & PLLC
Malouf, PLLC
Richmond
5177Richmond
5177 Ave,Suite
Ave, 505
Suite505
Houston,Texas77056/S/
Houston, Texas 77056

JoshK.
/S/ Josh KDavis
Davis

DAVIS1
JOSH K. DAVIS

4851-0770-3329.1

Silverado Appx. 0505
No. 1-15-586-CV 3795
 CAUSE
NO.427,208
CAUSE NO. 427,208

MACKEY
MACKEY (“MACK")
("MACK") GLENPETERSON
GLEN PETERSON § INPROBATE
IN NO.l1
COURTNO.
PROBATE COURT
PETERSON;
PETERSON; TONYA PETERSON
TONYA PETERSON §
andas
Individually and Next Friend of
as NextFriend of §
RUBYPETERSON;
RUBY PETERSON; DONLESLIE
DON LESLIE PETERSON;§
PETERSON;
CAROL
CAROL PETERSON,
PETERSON, Individually andandas
asNext
Next §
Friend
ofRUBY andLONNY §
PETERSON;
Friend of RUBY PETERSON; and LONNY
PETERSON,
PETERSON,

VS.
VS. §
SILVERADO
SILVERADO LIVING,INC.
SENIORLIVING,
SENIOR INC. §
d/b/a
d/b/a SILVERADO
SILVERADO SENIOR
SENIOR LIVING
LIVING —— §
SUGAR
SUGAR LAND
LAND § HARRIS
HARRIS COUNTY,
COUNTY, TEXAS
TEXAS

ORDER TO
GRANTING STRIKE
MOTION PLAINTIFFS’TO
OBJECTION
RULE
9lA
ORDER GRANTING MOTION TO STRIKE PLAINTIFFS' OBJECTION TO RULE 91A
DISMISSAL
DISMISSAL OFCLAIMS
OF AGAINSTSILVERADO,
CLAIMS AGAINST SILVERADO,FEEAPPLICATION
FEE AND
APPLICATION AND
MOTIONS
MOTIONS FORSANCTIONS
FOR SANCTIONS
BE IT REMEMBERED that
BEITREMEMBERED onnthisday
that o this day came to beconsidered
on to
came on Silverado’s
be considered Silverado's Motion
Motion to
to

StrikeP
Strike laintiffs’
Plaintiffs' Objection
Objection ToRule
To 9laDismissal
Rule 91a OfClaims
Dismissal Of Against
Claims Against Silverado,
Silverado, FeeApplication
Fee Application

AndMotions
And ForSanctions
Motions For andthe
Sanctions and the Court after reviewing
afterreviewing thePlaintiffs’
the Motion
Plaintiffs' Motion andDefendant
and Defendant

Silverado’s
Silverado's Motion
Motion to Strike
toStrike Silverado’s
finds Silverado's Motion
Motion should
should beGRANTED.
be GRANTED.

Itistherefore ORDERED
It is therefore ORDERED that Plaintiffs’
that Plaintiffs' Objection
Objection ToRule
To Rule9laDismissal
91a OfClaims
Dismissal Of Claims
Against
Against Silverado,
Silverado, FeeApplication
Fee Application AndMotions ForSanctions
And Motions For isHEREBY
Sanctions is STRICKEN
HEREBY STRICKEN inits
in its

entirety.All
entirety.

All relief expressly
notexpressly
relief not granted
granted hereinisisdenied.
herein denied.

SIGNED
SIGNED this
this dayof
day of 2014.
2014.

JUDGE
JUDGE PRESIDING
PRESIDING

4840-2426-4225 1

Silverado Appx. 0506
No. 1-15-586-CV 3796
TAB 61
 . PM
1/7/201
ILED
1/7/201
rt
LED
PM
art
DATA-ENTRY
THIS DATE
PICK UP
PICK UP THIS DATE
PROBATECOURT
PROBATECOURT11
427,208'
CAUSE NO. 427,205 401

MACKEY
MACKEY ("MACK") GLEN PETERSON
("MACK") GLEN PETERSON § IN PROBATECOURT
INPROBATE COURTNO.l
NO. 1
PETERSON; TONYA PETERSON
PETERSON; TONYA PETERSON §
Individually and NextF
asNext
and as riendooff
Friend §
RUBY PETERSON; DON LESLIE P
RUBY PETERSON; DON LESLIE PETERSON; § ETERSON;
CAROL P
CAROL ETERSON,
PETERSON, Individuallyand asNext
andas Next §
FriendofRUBY
Friendof RUBYPETERSON; and LONNY
PETERSON;and LONNY §
PETERSON,
PETERSON, §
vs.
VS. §
H SILVERADO SENIOR LIVING,INC.
SENIOR LIVING, INC. §
d/b/aSILVERADO SENIOR
d/b/a SILVERADO SENIOR LIVING
LIVING —
— §
IN SUGAR
SUGAR LAND
LAND § HARRISCOUNTY,TEXAS
HARRISCOUNTY, TEXAS
ANDSUPPLEMENT
WITHDRAWAL
PARTIAL TO
PARTIAL WITHDRAWAL AND SUPPLEMENT TO
SILVERADO'S 91a
SlLVERADO’S TO DISMISS PLAINTIFFS’
MOTIONTODISMISS
91a MOTION
SOLE REMAINING CLAIM
PLAINTIFFS' SOLE REMAINING CLAIM
BREACH OF TRUSTAND/OR
BREACH OFTRUST BREACHOFFIDUCIARY
AND/ORBREACH
DUTY
OF FIDUCIARY DUTY

SeniorLLiving,
Defendant, SilveradoSenior
Defendant, iving,Inc. d/b/aSilverado SeniorLivingSugarLand
Inc. d/b/a Silverado Senior Living Sugar Land
Withdrawal
filesthisPartial toitspending
andSupplement toDismiss
Rule9l Motion a Motion to Dismiss
(S ilverad o) files this Partial Withdrawal and Supplement to its pending Rule 91a
Plaintiffs’
Plaintiffs' Sole Remaining Claim
Sole Remaining
nd/orBreach
Breach Trustaand/or
Claim Breach ooffTrust
ofFiduciary Duty.
Breach of Fiduciary Duty.
TRCP PARTIAL WITHDRAWAL
TRCP 91a5 PARTIAL WITHDRAWAL
l.1. Petition December
FifthAmended co-defendants
4,2014whichnon-suited
Plaintiffs filed aa Fifth Amended Petitionoon
n December 4, 2014 which non-suited co-defendants
David
David Peterson
andCarolManley and Plaintiffs’
Peterson and Carol Manley and joined Plaintiffs' spouses
CarolandTonyaPeterson
spouses Carol and Tonya Peterson
individuallyandasnext
individually andas
friends ofRuby
next friends of Ruby Peterson.'
2. InPlaintiffs latestpleading, CarolPeterson andTonyaPeterson nowattempt to assertthe
2. In Plaintiffs latest pleading, Carol Peterson and Tonya Peterson now attempt to assert the
following causesofactionasnextfriendsofRubyPeterson: false assaultand
following causes of action as next friends of Ruby Peterson: false imprisonment; assault and
duty;and
breachoftrustandbreachoffiduciary Carol
Additionally,
battery; breach of trust and breach of fiduciary duty; and conspiracy.2 Additionally, Carol

On withtheCourtandincorporated byreference asifsetoutfullyherein.
On file with the Court and incorporated by reference as if set out fully herein.
2 SeePlaintiffs’ Fifth Amended Petition.
See Plaintiffs' Fifth Amended Petition.

4841-3975-3249.1

Silverado Appx. 0507
No. 1-15-567-CV 1525
 Peterson and
Peterson and Tonya
Tonya P eterson
Peterson all claimsindividually
assertallclaims againstSilverado
individuallyagainst withtheexception
Silveradowith the exception

of assault andbattery.
ofassault and battery.

3. Don
3. Peterson, Mack
Don Peterson, Mack P eterson
Peterson andLonny
andLonnyPPeterson
eterson assertthefollowing
assert the followingcauses of actionaagainst
causesofaction gainst
Silverado in their iindividual
Silverado intheir ndividual capacities despitethefact
capacities hattthat
the facttthat hatthese
theseccauses
auses weredismissed
were dismissedon
on

November
November 1 2014: false imprisonment and
0,2014:falseimprisonment
10, Notably,Don
and conspiracy.3 Notably, Peterson, M
DonPeterson, ack
Mack

Peterson aand
Peterson ndLonny Peterson cchose
Lonny Peterson hoseto non-suittheir
voluntarilynon-suit
tovoluntarily theirsoleindividually survivingclaim
sole individuallysurviving claim

breach o
-- breach offtrust breachooff fiduciaryduty.
nd/orbreach
trust aand/or duty.

4. Silverado
4. hereby w
Silverado hereby ithdraws
withdraws the pendingRule
thepending Rule91a Motion
91a Motionto Dismisssolely
toDismiss stotoDon
solelyaas DonPeterson,
Peterson,

Mack Peterson,
Mack Peterson's individual
and LonnyPeterson’s
Peterson,andLonny individualclaims.SeeTEX. R. Civ.P.91a5(b)(c).
claims. See TEX.R. P. 91a5(b)(c).
SUPPLEMENT
SUPPLEMENT
PETITION
AMENDED
FIFTH AMENDED PETITION

As ratified bby
5. Asratified
5. the Courtand
ytheCourt expressly agreed bytheparties,theonlypersonswith standingto
with standingto
and expressly agreed by the parties, the onlypersons

bring claims
bring claims oonnbehalf
behalf o
offRuby
Ruby Peterson
Petersonare
CarolManley and/orDavid Newly
are Carol Manley and/or David Peterson.4 Newly
joinedPlaintiffs
joined Plaintiffsttake
aketheposition thattheyhavestandingtobringclaims
the position that they have standingto bring claimson
RubyPeterson’s
on Ruby Peterson's
behalf s they
behalf aas are not
they are
in agreement
not in agreement
withthesettlement andbelievethatall ofRuby
with the settlement and believe that all five of Ruby
Peterson’s children (includingtheirhusbands)andtwoadlitems
Peterson's children (including their husbands) and
"havefailedrrefused
ad !items "have failedoor refusedto
to assert
validclaims nher Tosupport thisallegation, Plaintiffs globally allegethatCarol
valid claims oon her behalf."5 To support this allegation, Plaintiffs globally allege that Carol
Manley andDavidPeterson "exceeded theirauthority and/orabusedtheirpowers" as Ruby
Manley and David Peterson "exceeded their authority and/or abused their powers" as Ruby
Peterson’s "theywantedher to beforced
agents, "they wanted her to
Peterson's agents,
to takemedication thatshe mayotherwise
be forced to take medication that shemayotherwise

SeeNovember 10,2014Orderdismissing claimson withtheCourtand
3 See November 10, 2014 Order dismissing claims on file with the Court and
incorporated byreference as if setoutfullyherein. See also,Plaintiffs’ Amended Petition.
incorporated by reference as if set out fully herein. See also, Plaintiffs' Fifth Amended Petition.
OrderGranting Authority forGuardian AdLitem&Attomey AdLitemtoExecute
4 See Order Granting Authority for Guardian Ad Litem & Attorney Ad Litem to Execute
Peterson Rulel 1Agreement at ExhibitA,
Peterson Rule 11 Agreement at Exhibit A, ¶2.
SeePlaintiffs’ FifthAmended Petitionat
5 See Plaintiffs' Fifth Amended Petition at ¶25.

4841-3975-3249.1
4841-3975-3249.1

Silverado Appx. 0508
No. 1-15-567-CV 1526
 refuse take, aand
o take,
refusetto ndthey exercise completecontrol
to exercise
they wantedto overRuby
controlover Peterson's placeof
RubyPeterson’s of

Interestingly,
residence."6 Interestingly, all Plaintiffs
allPlaintiffs joinin theseallegations
join in these yet thethreebrothers
allegations yet the three brothers

acknowledged that the 1993POA
acknowledgedthatthe1993 waseffective,
POAwas effective,chose leaveititinplace
chosetotoleave partofthe
aspart
in placeas of the

settlement, and leftttheir
settlement, andleft heirm other
motherunder
undertthe careofCarol
hecare Manelyaand
of CarolManely ndDavid eterson.lfthere
DavidPPeterson. If there

nymerit
were aany
were tothese
meritto theseh ollow
hollowaallegations,
llegations, onewould
one wouldthink
thinktthe brothersand
hebrothers theirwives
andtheir wiveswould
would

have been
have more interested
beenmore inobtaining
interested inobtainingcontroloverMrs.
controlover Peterson'smedical
Mrs.Peterson’s carethan
medicalcare accessto
thanaccess to

her
her estate.'

6. Because
6. Because itisclear romPlaintiffs’
it is clear ffrom Plaintiffs' pleadings
pleadingsthatnewly oinedPPlaintiffs
that newlyjjoined laintiffs also lackstanding
alsolack standingto
to
bring any claims
bring any nbehalf
claims oon behalf o
offRuby the Courtddoes
Peterson,theCourt
Ruby Peterson, oesnot havejurisdiction
nothave tohear
jurisdictionto hear
Plaintiffs’
Plaintiffs' claim,
claim, a ndtheCourt
and the Courtm ismissPPlaintiffs'
ustddismiss
must laintiffs’ breach
breachof duty and/orbbreach
of fiduciarydutyand/or reachoof
f
breach
breach of
of trust cause ofaction
trust cause matteroof
as amatter
of actionasa flaw.
law.H
Heckmanvv.. Williamson
eckman 369 S.W.3d137,
Williamson Cty.,369S.W.3d 137,

150(Tex.2012); ee also,Scanlan
150 (Tex. 2012); ssee Tex. A
v. Tex.
also, Scanlan v. A&M Univ., 3343
&MUniv., F.3d 533, 536 (5th Cir.2003)
43F.3d533,536(5thCir. 2003)
(Dismissal
(Dismissal isappropriate as Plaintiffs
is appropriate as Plaintiffscanprove setoffacts
oset
can provenno of factstto
osupport standing).
support standing).
7. Thepleadings andevidence permitted byRule59requiredismissal ofPlaintiffs’ breachof
7. The pleadings and evidence permitted by Rule 59 require dismissal of Plaintiffs' breach of

duty and/or
fiduciary duty breach of
and/or breach of trust
ofaction as a matter
cause of action asa
trust cause
oflaw.TEX.
R.CIV.
P.91 a.
matter of law. TEX. R. Civ. P. 91a.
APPLICATION
APPLICATION FOR ATTORNEYS' FEES

8. As theCourt
8. As the Court is aware, itmust
isaware, wardrreasonable
it mustaaward easonable andattomeys’ feestotheprevailing
costs and attorneys' feesto
costs party
the prevailing party
with
with respect
respect to
thechallenged
to the challenged causes
ofaction. TEX. R. P.9la.7; 2014Tex.App.
causes of action. TEx. R. Civ. P. 91a.7; Drake, 2014 Tex. App.
Lexis 12572 (Tex.App.-FortWorth Nov.20,2014,nopet.
Lexis 12572 (Tex. App. — Fort Worth Nov. 20, 2014,no
h.);Longv. Griffin,No.11-1021,
pet. h.); Longv. No. 11-1021,
2014Tex.LEXIS 304(Tex.April25,2014)(percuriam).Inlightofthe narrowscope ofthis
2014 Tex. LEXIS 304 (Tex. April 25, 2014) (per curiam). In light of thenarrowscope of this

6
at
Id at 1126.
SeeOrderGranting Authority forGuardian AdLitem&Attomey AdLitemtoExecute
7 See Order Granting Authority for Guardian Ad Litem & Attorney Ad Litem to Execute
PetersonRule 11Agreement at Exhibit A. Plaintiffs’ Fourth A mendedOriginalPetition
Plaintiffs' Fourth Amended Original Petition
atat
Peterson Rule 11 Agreement at Exhibit A. Compare
Breach ofTrustandBreach ofFiduciary Duty(related toCarolManley andDavidPeterson) toFifth
Breach of Trust and Breach of Fiduciary Duty (related to Carol Manley and David Peterson) to Fifth
Amended PetitionatBreach ofTrustandBreach ofFiduciary Duty.
Amended Petition at Breach of Trust and Breach of Fiduciary Duty.

4841-39753249.1

Silverado Appx. 0509
No. 1-15-567-CV 1527
 9laMotion oDismiss,
91a Motion tto Dismiss,Silveradoherebyffiles
Silveradohereby ilesiits
ts applicationofattomeys’ feesconsistent
of attorneys'fees consistentwith
with

theCourt’
the Court'ss local Thetotal
local rules. The feesincurred defending
totalfees defending against
against thechallenged causesofaction
the challengedcauses of action

as ofJanuary
as of January 7,2015 are $2,692.50.
7, 2015 are See Exhibit
$2,692.50. See Exhibit"A," (AffidavitofJosh
"A,"(Affidavit K..Davis)attached
of JoshK attached

hereto
hereto and by reference
and incorporatedby asiiffset
referenceas outfully
setoutfullyherein.
herein.

9.
9. ItItisiswithin theCourt’s
within the sound
Court's sound discretion
discretion the legal sufficiency oftheevidence
todetermine thelegal
to of the evidence

presented regarding
presented regardingthe amountoffees
the amountof feeswhicharereasonable
whichare reasonableand necessary.Ridge
andnecessary. RidgeO il Co.v.v.
Oil

Guinn
Guinn hays., Inc.,
Inc., 148
148 S.W.3d.
S.W.3d. 143 (Tex.2004)
143(Tex. 2004)(court-ordered
(court-orderedaward of attorneys'fees
awardofattomeys’ feesis
is
reviewed
reviewed under
under the abuse ofdiscretion
the abuse of discretionstandard).
standard).The Courtreinforces
The DrakeCourt thatR
reinforcesthat ule
Rule 991a.7
1a.7
requires an"award
requires an "awardooffall costsaand
allcosts reasonableand
ndreasonable attorneyfees
necessaryattorney
andnecessary feesincurred
incurredwith
withrespect
respect

to thechallenged
to causeooffaction."
the challengedcause action."2014
2014Tex.
Tex.A pp.LLexis
App. exis112572
2572 aatt *6.Silverado
*6. Silveradoisentitled
is entitledto
to

recover itsreasonable
recover its reasonable and attorneyfees
necessaryattorney
andnecessary feesand costsiin
andcosts nthe
theevent Plaintiffsappeal
eventPlaintiffs appealand/or
and/or

engage iin
engage nsubsequent
subsequentmotion
practice relatedtothechallenged
motion practice relatedto causesoof
the challengedcauses faction
actionaand
nd Court's
Worth
findings.
findings.Drake,
Drake, 22014 Tex. App. L
014Tex.App. exis12572
Lexis 12572 (Tex.
(Tex. A —Fort
pp.—
App. Fort WorthNov.20,2014, opet.
Nov. 20, 2014,nno pet.
h.). Plaintiffs
IfPlaintiffs
h.). If
findit necessary
find it necessary to
Motion
fileaa Motion
tofile Reconsider
toReconsider
to
and/orRescind, Silverado
and/or Rescind, Silverado
requests$750.00
requests $750.00 as
thereasonable andnecessaryfees
as the reasonable andnecessary
forhandling theresponsive briefing and
fees for handling the responsive briefing and
hearingrelated
hearing related to
thesame. SeeExhibit"A,"Affidavit ofJoshK.Davis.lfthematterisis
See Exhibit "A," Affidavit of Josh K. Davis. If thematter
to the same.
appealed,Silverado
appealed, Silverado requests
$10,000.00 foritsreasonable and feesforhandling the
requests $10,000.00 for its reasonable and necessary fees for handling the
appellee’s inthe
casein
appellee's case the court
ofappeals, $7,500.00 ifplaintiff files WritofError rPetition
court of appeals, $7,500.00 if plaintiff filesaa Writ of Erroroor
for
Petition for
Review withtheSupreme CourtofTexas,and$7,500.00 iftheWritofError rPetition
Review with the Supreme Court of Texas, and $7,500.00 if the Writ of Erroroor
for
Petition for
ReviewisGranted bytheSupreme CourtofTexas.See Inaddition to itsfees,Silverado
Review is Granted by the Supreme Court of Texas. See id. In addition to its fees, Silverado
requestsitscosts.Drake,2014Tex.App.Lexis12572(Tex.App. FortWorthNov.20,2014,
requests its costs. Drake, 2014 Tex. App. Lexis 12572 (Tex. App. —
— Fort Worth Nov. 20, 2014,
nopet.h.).
no pet. h.).

4841-3975-3249.1

Silverado Appx. 0510
No. 1-15-567-CV 1528
 PRAYER
PRAYER

0
Plaintiffs’
Plaintiffs' breach
breach of trust and/or
of trust breach offiduciary
and/or breach of fiduciaryduty
dutyccause
auseofaction
of actionhas obasis
hasnno basisinlaw
in law

or factand must bedismissed.
fact and must be dismissed.TEX. P.9la.
TEX.R.CIV.
R. CDT. P. 91a.Thechallenged causeofaction,
The challengedcause of action,taken astrue,
takenas true,

together with
together with inferences
inferences reasonably drawn ffrom
reasonably drawn romit,does oteentitle
it, doesnnot ntitlePPlaintiffs
laintiffs totherelief
to the reliefssought
oughtfor
for

thefollowing reasons: l)Plaintiffs
the following reasons: lack standing;
1) Plaintiffs lack standing;2)Silverado cannotbeheld
2) Silveradocannotbe heldliable
liableffor
orrelying
relyingoon
naa
durable
durable and/ormedical owerof
and/or medicalppower ofattorney matterof
asaamatter
attorneyas oflaw;and,3)
law; and, 3)Silverado
Silveradoddoes
oesnot
notowea
owe a
• 0
fiduciary
fiduciary dduty
utyand/or
and/or dduty
utyof trust toPlaintiffs.
oftrustto Plaintiffs. Furthermore,
Furthermore,the causeofaction
thecause mustbbe
of actionmust edismissed
dismissed
N
as no reasonable
as no personcouldbelieve
reasonableperson could believethefactspleaded.
the facts pleaded. As result,PPlaintiffs'
As aa result, laintiffs’breach
breachof
oftrust
trust
and/or
and/or breach
breach o
off fiduciarydutycauseooffaction
dutycause mustbedismissed
action must andSilverado
be dismissedand mustbbe
Silveradomust eawarded
awardedits
its
feesand costs. TEX.R.
fees and costs. R. Civ. P.9la;
P. 91a; FED.
FED.R. P.l2(b)(6);
R. Civ.P. ee also, Scanlan,343F.3d
12(b)(6);ssee 343 F.3datat536.
536.
Respectfully
Respectfullysubmitted,
submitted,
LEWIS
LEWISBRISBOISBISGAARD&
BRISBOIS BISGAARD &SMITH,LLP
SMITH, LLP
/s/
Josh
/s/ Josh K Davis

JOSH K. DAVIS
State
StateBar
BarN o.224031993
No. 4031993
CHRISTIAN
CHRISTIANR. R.JJOHNSON
OHNSON
State
StateBar
BarN o.224062345
No. 4062345
Weslayan
WeslayanTower,
Tower,Suite
Suite1400
1400
24Greenway
24 GreenwayPlaza
Plaza
Houston,
Houston,Texas77046
Texas 77046
(713)659-6767 Telephone
(713) 659-6767 Telephone
(713) 759-6830 Facsimile
(713) 759-6830 Facsimile
ATTORNEYS FORDEFENDANTS,
ATTORNEYS FOR DEFENDANTS,
SILVERADOSENIOR LIVING,INC.D/B/A
SILVERADO SENIOR LIVING, INC. D/B/A
SILVERADO SENIORLIVING SUGAR LAND
SILVERADO SENIOR LIVING SUGAR LAND
CERTIFICATEOFSERVICE
CERTIFICATE OF SERVICE
certify
Ihereby thatatrueandcorrect
copyoftheforegoing
instrument uponall
wasserved
counselIofrecord
hereby certify that a true and correct copy of the foregoing instrument was served upon all
viae-file,facsimile, handdeliveryand/orcertifiedmail,retumreceiptrequested on
counsel of record via e-file, facsimile, hand delivery and/or certified mail, return receipt requested on
this7thJanuary, 2015.
this 7th January, 2015.

4841-3975-3249.1

Silverado Appx. 0511
No. 1-15-567-CV 1529
 M.Ross
Philip M. Ross
1006
1006 Holbrook
Holbrook Road
Road
San Texas 778218
San Antonio, Texas 8218
Attorney Jbr Plaintiffs

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

Sarah Patel
Patel Pacheco
Pacheco
Crain,
Crain, Caton
Caton & James, PC
& James, PC
1401
1401McKinney
McKinney S treet
Street
1700 F
1700 iveH
Five ouston
Houston Center
Center
Houston,
Houston, Texas
Texas 77010
77010
Attorneys for Carol ManleyandDavid
and David Peterson
Jill
Jill w.
W. Young
Young
Maclntyre, McCulloch,
Maclntyre, McCulloch, Stanfield
Stanfield&
&Young,
Young,LLP
LLP
2900 Weslayan, Suite150
2900Weslayan, Suite 150
Houston, Texas77027
Houston, Texas77027
Russ
W. Jones
W. Russ Jones
Underwood,
Underwood,Jones
Scherrer &Malouf, PLLC
Jones Scherrer & Malouf, PLLC
5177R ichmond Ave, Suite505
5177 Richmond Ave, Suite 505
Houston,Texas 77056
Houston, Texas 77056

Josh
s/ Davis
s/ Josh K. Davis

JOSH K. DAVIS

4841-3975-3249. 1

Silverado Appx. 0512
No. 1-15-567-CV 1530
TAB 62
 CAUSE NO. 427,208-401

MACKEY
MACKEY ("MACK")
("MACK") GLEN PETERSON
GLENPETERSON § INPROBATE
IN COURTNO.
PROBATE COURT NO.l1
PETERSON;
PETERSON; TONYA PETERSON
TONYA PETERSON §
Individually and as Next
and as Next F riend
Friend ooff §
RUBYPETERSON;
RUBY PETERSON; DON DONLESLIE PETERSON;§
LESLIE PETERSON;
CAROL
CAROL PETERSON,
PETERSON, andas
Individually and Next §
asNext
Friend
Friend ofRUBY
of RUBY P ETERSON;
PETERSON; and LONNY §
and LONNY
PETERSON, §

§
PETERSON,
§
PP
q
VS.
VS. §
SILVERADO
SILVERADO SENIOR
SENIOR LIVING,
LIVING, INC.
INC. §
d/b/a
SILVERADO
SENIOR
LIVING
—
d/b/a SILVERADO SENIOR LIVING — §
SUGARLAND
SUGAR LAND § HARRIS
HARRIS C OUNTY,
COUNTY, TEXAS
TEXAS

ORDER GRANTING SILVERADO’S
FIRST
AMENDED
PLEA
THE
TO
ORDER
JURISDICTION
GRANTING SILVERADO'S
FIRST AMENDED PLEA TO THE JURISDICTION

BEITREMEMBERED
BE IT REMEMBERED that thisday
onthis
that on cameon
day came on to beconsidered
tobe Defendant,
considered Defendant, Silverado
Silverado

SeniorLiving,
Senior Living,Inc.
Inc.d/b/aSilverado SeniorLiving
d/b/a Silverado Senior Living— SugarL
—Sugar and’sFFirst
Land's irstA mended
Amended Plea
Plea to the
to the

Jurisdiction and the Court after reviewing
Jurisdiction andtheCourt reviewing such
such motion
motion iissoftheopinion
of the opinion tthat
hattthis
hisMotion iswell
Motion is well

takenshould
taken should beinallthings GRANTED.
be in all things GRANTED.

ItisHEREBY ORDERED,
It is HEREBY ORDERED, ADJUDGED and
ADJUDGED and DECREED
DECREED that CAUSE
thatCAUSE NO.427,208
NO. 427,208is
is

DISMISSED
DISMISSED W ITHPREJUDICE
WITH PREJUDICE to as to
to refiling as Silverado
to Silverado SeniorLiving,
Senior Living,Inc.
Inc.d/b/aSilverado
d/b/a Silverado

Senior
Senior Living
Living —Sugar
— Sugar L and.
Land.

Allrelief expressly
notexpressly
All relief not granted
granted herein isdenied.
herein is denied.

SIGNED
SIGNED this
this dayof
'44 day of C-72.4 u 20 5-•

.
GEP SIDING
GE P '1 SIDING

4816-7740-7520.]
4816-7740-7520.1

Silverado Appx. 0513
No. 1-15-567-CV 1513
TAB 63
 010BATE COURT
1

CAUSENO.
CAUSE NO. 427,208— 4o

MACKEY ("MACK") GLEN PETERSONPETERSON § PROBATE COURT
INPROBATE
IN COURT NO. 11
PETERSON;
PETERSON; TONYA
TONYA PETERSON
PETERSON §
Individually
Individually and asNext
and as Friendooff
NextFriend § on
RUBY PETERSON; DON LESLIE PETERSON;
CAROL
PETERSON,
CAROL PETERSON, Individually and as Next § 31.
"T1
FriendofRUBY
Friend of RUBY PETERSON;
PETERSON; and LONNY
and LONNY §
PETERSON,
PETERSON,
tv 7-7
rn

vs.
VS.
twa
SILVERADO SENIORLIVING, INC. "wa
SILVERADO SENIOR LIVING, INC. §
d/b/aSILVERADO
d/b/a SENIOR
SILVERADO SENIOR LIVING
LIVING —— §
SUGARLAND
SUGAR LAND § HARRISC
HARRIS OUNTY,
COUNTY, TEXAS
TEXAS

ORDER
GRANTING
APPLICATION
FORATTORNEY
FEES
PURSUANT
TO
ORDER GRANTING APPLICATION FOR ATTORNEY FEES PURSUANT TO
RULE91a ORDER
RULE ORDER ENTERED ONNOVEMBER
ENTERED ON 2014
NOVEMBER 10, 2014

BEITREMEMBERED thaton
BE IT REMEMBERED that thisday
onthis day came beconsidered
ontotobe
cameon Defendant,
considered Defendant, Silverado
Silverado

SeniorLiving,
Senior Inc.d/b/aSilverado
Living, Inc. SeniorLiving
d/b/a Silverado Senior Living —
—— SilveradoSeniorLiving,
Sugar Silverado Inc.d/b/a
Senior Living, Inc. d/b/a

SilveradoSenior
Silverado SeniorLivingSugar LandA
Living Sugar Land PP
licationforAttorney
Application for Attorney FeesPursuant Rule91aOrder
Fees Pursuant ttoo Rule 91a Order

Entered OnNovember
Entered On 10,2014
November 10, andtheCourt
2014 and after
the Court after reviewin
reviewing suchmotion,
such motion, supplement,
supplement, any
any

response
response thereto, objections
thereto, objections andresponse,
and response,andoral
and argument
oral argument isoftheopinion
is of the opinion tthat
hatthisMotion
this Motion iiss

welltaken
well takenshould
should beinallthings
be GRANTED.
in all things GRANTED.

ITISTHEREFORE
IT ORDERED,
IS THEREFORE ORDERED, thatSilverado
that SeniorL
Silverado Senior iving,IInc.
Living, nc.d/b/aSilverado Senior
d/b/a Silverado Senior

Living s.•••9
Living —Sugar
— SugarLand
Landbbe
eawarded
awardedits costsaand
itscosts ndattorneys’
attorneys' fees
fees iinnthe amount of$
the amount of $ 13 •

ITISFURTHER
IT ORDERED,
IS FURTHER ORDERED, that Silverado
thatSilverado Senior
Senior Living,
Living, d/b/aSilverado
Inc.d/b/a
Inc. Silverado Senior
Senior

Living
Living —Sugar
— SugarLLand
andbeawarded
be awardedits costsaand
itscosts ndattorneys’
attorneys' fees
fees inthe amount of$
in the amount of $ r) not, --in
an
theevent
the event of appeal, $$ 7S0 0 — ifplaintiff
of appeal, filesaa WritofError
if plaintiff files or Petition
Writ of Error or Petition forReview
for Review with
with
tr)
theSupreme
the SupremeCourt
Court ofTexas,
of and$
Texas, and ZSCIO =if the Writ ofError
the Writ or Petition
of Error or Petition for
for R eview
Review isGranted
is Granted

bytheSupreme CourtofTexas.
by the Supreme Court of Texas.

4811-0648·8097.1
4811-0648-8097.1

Silverado Appx. 0514
No. 1-15-567-CV 1514
 Allrelief
All notexpressly
relief not granted
expressly granted hereinisisdenied.
herein denied.

SIGNEDthis
SIGNED 7 144 dayof
day of 2015.

GPR1I G

Approved andEntry
Approved and Requested
Entry Requested By:
By:

/S/Christian
IS/ Christian R.J0hns0n
R. Johnson

JOSH DAVIS
JOSH K. DAVIS
StateBarNo. 24031993
State Bar No. 24031993
CHRISTIAN
R.JOHNSON
CHRISTIAN R. JOHNSON
StateBarNo.24062345
State Bar No. 24062345
LEWISBRISBOIS
LEWIS BRISBOISBISGAARD
BISGAARD &SMITH,
& LLP
SMITH, LLP
WeslayanTower,
Weslayan Tower,Suite
Suite1400
1400
24Greenway
24 Plaza
Greenway Plaza
Houston,
Houston, Texas77046
Texas 77046
(713)659-6767
(713) 659-6767Telephone
Telephone
(713)759-6830
(713) 759-6830 Facsimile
Facsimile
ATTORNEYS FOR FORDEFENDANTS,
DEFENDANTS,
SILVERADO
SILVERADO SENIOR
SENIOR LIVING,
LIVING, INC. D
INC. /B/A
D/B/A
SILVERADO
SILVERADO SENIOR
SENIOR LIVING
LIVING SUGAR
SUGAR LAND
LAND

481
4811-0648-8097.1

Silverado Appx. 0515
No. 1-15-567-CV 1515