in the Guardianship of Ruby Peterson

FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
12/14/2015 12:29:57 PM
CHRISTOPHER A. PRINE
Clerk

TAB 33
 FILE
10 /2 1 6:05:55 PM
StanStanart
Stan Stanart
` CountyCler
Clef
HarrisCo
Co y

Cause
CauseN o.4427208
No. 27208
1N
IN THE
THE GUARDIANSHIP
GUARDIANSHIPOF
OF § IN THEPROBATE
INTHE PROBATECOURT
COURT

RUBY
RUBY S.PETERSON,
S. PETERSON, § NUMBERONE
NUMBER ONE((1)
1)OFOF

ANINCAPACITATED
AN INCAPACITATED PERSON
PERSON § HARRIS
HARRISCOUNTY,
COUNTY, TE

FIRSTAMENDEDANSWER
FIRSTAMENDEDANSWER
-o
TO
TO THE
THE HONORABLE
HONORABLE JUDGEOFSAID
JUDGEOFSAIDC OURT:
COURT:
COMES
COMES NOW,
NOW, W.
W. R ussJJones,
Russ ones,acting inhis asAttomey
in his capacity as Ad LitemforMrs.
AttorneyAdLitem for Mrs.
Ruby
Ruby S.Peterson,
S. Peterson, having been duly appointed
been duly assuch
appointedas by JudgeL
suchbyJudge oydH
Loyd H..Wright on February25,
Wrighton 25,
2014, toTexas
2014, pursuantto TexasEstates
EstatesCCode Section1054.001,
odeSection 1054.001, and
and entersan appearanceon
entersan
behalfof
on behalf of
theproposed wardand
the proposedward and respectfullyshows untothe
showsunto the Courtthe
following:
the following:
I.I. General Denial
The
The proposed
wardgenerally denieseachofthe
proposed ward generally denieseach
allegations
of the material allegationsset
forthinthei
set forth in the
applicationfor
application for guardianship,and
demandsstrictproofthereof byclearandconvincing evidence.S
and demands strict proof thereof by clear and convincing evidence.
II.Lesser RestrictiveAlternatives
II. Lesser Restrictive Alternatives
Proposedwardhasvalidgeneral durableandmedicalpowersofofattomey
Proposed ward has valid general durable and medicalpowers
whichhavebeen
attorney which have been
inplace andfunctioning formanyyyears.
in place and functioning formany ears.A ssuch,thereis no need
As such, there is no
forguardianship protection,
need for guardianship protection,

given the and oftheselesser alternatives to
given the existence and functionality of these lesser restrictive alternatives to guardianship.
III.DEFENSESQ
III. DEFENSES
l.1. NOFALSE IMPRISONMENT: RubyPeterson isnotbeing,andhasnotbeen,falsely
NO FALSE IMPRISONMENT: Ruby Peterson is not being, and has not been, falsely
imprisonedattheSilverado Senior Living Center-Sugar Landbecause Mrs.Peterson consented
imprisoned at the Silverado Senior Living Center-Sugar Land because Mrs. Peterson consented
(byvalidDurable Medical Power ofAttorney executed in1993)forhealthcaredecisions tobe
(by valid Durable Medical Power of Attorney executed in 1993) for health care decisions to be
madeonherbehalfbyCarolAnnManley andDavid TroyPeterson intheeventthatsheshouldtt
made on her behalf by Carol Ann Manley and David Troy Peterson in the event that she should

Silverado Appx. 0177
No. 1-15-586-CV 3122
 become
become physically or mentally incapable
or mentally incapable ofmaking such decisions
of making such decisions for Oneofthe
for herself. One of the

reasons fortheDurable
reasons for the Durable Medical Power ofAttomey
Medical Power to avoid
was to
of Attorney was avoid tthe need for
heneed for a guardianship of
of

her person tthrough
her person hrough the creation of
thecreation lesser restrictive alternative
of a lesser to guardianship.
alternativeto Further,
guardianship. Further, the
the

decision
decision thatMrs.
that Mrs.Peterson
Peterson beadmitted
be admitted to secured
toaasecured memory
memory facility
carefacility
care forhersafety
for and
her safety and

protection
protection was not madesolely
was not at thewhim
made solely at discretion ooffMrs.
the whim ordiscretion Mrs. P eterson’s
Peterson's healthcare
health care agents;
agents;

rather,
rather, it was based
it was the p
on the
based on rofessional
professional medical recommendations
medical recommendations and
and a dvice
advice of
of M
Mrs.rs.
Peterson’s
Peterson's

treating
treating physicians. Thus,
physicians. Thus, residential
residential placement at Silverado
atSilverado was pursuant
waspursuant legalauthority
tolegal
to authority and
and

which
justification which RubyPeterson
Ruby Petersonhadexpressly
had expresslyconferred upon CarolAnn
upon Carol Manley
Ann Manley and
and David
David

TroyPeterson
Troy Petersonin1993.
in 1993.

2.
2. NOVALID REVOCATION
NO VALID REVOCATION OF DURABLE POWER
OFDURABLE POWER OFATTORNEY: RubyPeterson
OF ATTORNEY: Ruby Peterson

didnot
did notexecute validrevocation
execute aa valid revocationofthe1993
of Durable
the 1993 Durable Medical
Medical Power
Power ofAttorney
of onNovember
Attorney on November

2013because
15,2013
15, because thepurported
the purported but denied
butdenied revocation
revocation was not
was not made orallyor
madeorally inwriting
orin writing byMrs.
by Mrs.

Peterson,
Peterson, inher
in hercapacity Principal,
asPrincipal,
capacity as to
to Carol AnnManley
CarolAnn orto
Manley or DavidT
to David Troy Peterson, intheir
royPeterson, in their

capacity
capacity as Agents.
as Rather,
Agents. Rather, ititwas theproduct
wasthe ofsecretive
product of ofundue
actsof
secretive acts influence
undue influence which
which Mackey
Mackey

GlenPeterson
Glen PetersonandDon
and Leslie
DonLeslie Peterson
Peterson perpetrated
perpetrated upon Ruby
upon Peterson,
Ruby Peterson, whothey
who they knew
knew was
was

susceptible
susceptible manipulation
tomanipulation
to and lacking
andlacking inmental
in capacity
mental capacity secondary
secondary to moderate
to dementia
moderate dementia with
with

severe
severe cognitive
cognitive impairment as a result.
impairment asa Additionally,
result. Additionally, thepurported but
the denied rrevocation
butdenied evocation of
of

durable
durable medical
medical power ofattorney
power of attorneyis invalid because
isinvalid because Mrs.
Mrs. P eterson
Peterson never m
never anifested
manifested any
any specific

intent
intent to revoke
to revoke thehealthcare decision-making
the healthcare decision-making authority
authority ofCarol
of Carol Ann Manley
Ann Manley or David
or Troy
David Troy

Peterson whomshe
Peterson whom she trusts, admires
trusts, admires and
and adores. Peterson
Mrs.Peterson
adores. Mrs. onlymanifested
only manifested intentto
anintent
an sign
tosign
somepapers
some papers(anypapers)
(any thatshe
sothat
papers) so leaveSilverado
couldleave
shecould Silveradoandreturn to
and herhome
to her inBaytown,
home in Baytown,

(aprior
Texas(a
Texas prior h omewhich
home whichnnoolonger
longer exists). limited
Thislimited
exists). This andlegally
and legallyinsufficient
insufficient intentwas
intent the
wasthe
directresult
direct ofUndue
resultof Influence
Undue Influence exerted
exerted Mrs.Peterson
uponMrs.
upon Peterson byMackey
by GlenPeterson,
Mackey Glen Peterson, Don
Don

Silverado Appx. 0178
No. 1-15-586-CV 3123
 Leslie
Leslie P eterson
Peterson and
and their wiveswho
their wives whoknew
knew that
that R ubyP
Ruby eterson
Peterson was susceptible
was susceptible to
to manipulation

andwho
and who they
they knew would
knew would signANYTHING
sign ANYTHINGifshe
if she could goohome
could g home ttooBaytown (ahome
(a home w hichno
which no
longer
longer exists). ThePlaintiffs'
exists). The P1aintiffs’ undue
undue influence
influence subverted
subverted thewill
the ofMrs.
will of Peterson
Mrs. Peterson making the
the

execution
their
act,nothers,
and hertodothatwhich
shewould
not
document execution their act, not hers, and influenced her to do that which she would not

otherwise
otherwise havedone.TheNovember 15,2013
have done. The November 15, executions
2013 document executions tookplace
took insecrecy,
place in secrecy,
notice
without toCarol orDavid
AnnManley Troy because
Peterson Plaintiffs
knew thatifCarol
without notice to Carol Ann Manley or David Troy Peterson because Plaintiffs knew that if Carol

Ann andDavid
Ann and Davidwere
wereppresent
resent and permitted
andpermitted to explain
to theconsequences
explain the consequencesofheractions,
of Mrs.
her actions, Mrs.

Peterson
Peterson would
would havesigned
nothave
not signed thenew
the newpower ofattomey
power of and purported
attorney and purported revocation
revocation ofdurable
of durable

ofattomey.
powerof
power actedin
attorney. Furthermore, Plaintiffs acted badfaithbecause
inbad theyhadbeen
faith because they had been advised
advised more
more

than40
than 40days
days p riorttooNovember
prior 15,2013
November 15, thatM
2013that rs.P
Mrs. eterson
Peterson suffered
suffered fromdementia,
from dementia, was
was

extremely susceptible
extremely susceptible to manipulation,
to manipulation, and,most
and, that she lacked sufficient mental
mostimportantly, thatshelacked mental

capacity
capacity to manage
to manage herfinancial otheraffairs.
orother
her financial or affairs.
3.
3. NOASSAULT ANDBATTERY:
NO ASSAULT AND BA I I ERY: Ruby
Ruby P eterson
Peterson did not suffer
did not "assault and
an "assault
suffer an and battery"
battery"

by being administered
bybeing administered doctor-prescribed
doctor-prescribed medications
medications against
against herwill.Byvirtue ofthe1993
her will. By virtue of the 1993

Durable
Durable Power
Medical Power ofAttomey,
of Attorney, Ruby
Ruby P eterson,
Peterson, as Principal,
as Principal, consented tohealthcare
consented to healthcare

decision-making
decision-making herbehalf
onher
on byCarol
behalf by AnnManley
Carol Ann Manleyand
and David TroyPeterson,
David Troy as herauthorized
Peterson, as her authorized

agents.
agents. Knowing,
Knowing, fulldisclosure,
after full disclosure, thatRuby
that RubyPeterson's
Peterson’s prescriptive
prescriptive medications
medications were
were

medically
medically necessary for
for the
the proper careand
proper care treatment ofheranxiety
and treatment of her anxiety disorder,
disorder, depression,
depression,

degenerative
degenerative joint disease,
joint disease, arthritis,
degenerative arthritis, dementia
dementia and other m
andother edical
medical conditions,
conditions, and
and

having
having R ubyPeterson’s
Ruby express
Peterson's express consent
consent makemedical
tomake
to medical decisions
decisions herbehalf
onher
on (including
behalf (including the
the

rightto
right toconsent
consent to medical
tomedical psychiatric
orpsychiatric
or andtreatment),
careand
care treatment), Defendants
Defendants Manley
Manley and Peterson
andPeterson
consented
consented ontheir
on their m other’s
mother's behalf
behalf theadministration
tothe
to ofprescriptive
administration of medications
prescriptive medications andvitamin
and vitamin

supplements
supplements which Ruby’s
whichRuby's treating
treating physicians
physicians prescribed
prescribed forthe
for proper
the proper andtreatment
and ofher
treatment of her

Silverado Appx. 0179
No. 1-15-586-CV 3124
 conditions.
Consent
isan defense
to and
battery.
Effectiveincludes
consent
conditions. Consent is an affirmative defense to assault and battery. Effective consent includes
consent byaa personal legally
consent by legally aauthorized
uthorized toact on behalf
to act on behalfofthealleged
of the allegedvictim
victimof anassault.
ofan assault. See
See
Tex. Pen.
Tex. Pen. Code
Code Section
Section l.07(a)(l9). Consent
1.07(a)(19). Consent isis
also
also defense
aadefense assault
toananassault
to ifthe
if the D efendants’
Defendants'
conduct
conduct didnot
did or inflict
not threaten or inflict serious
serious bodily
bodily iinjury.
njury.See
SeeTex.
Tex.Pen.
Pen.Code
CodeSection
Section22.06.
22.06.
Basedoonntheabove,
Based the above, there
there was no "assault
wasno "assault and
and battery" with
with respect to medication
respect to medication administration,
administration,
with respect
with respect toassistance
to assistance with
with showering Ruby
Ruby Peterson,
Peterson, etc. Defendants
etc. Defendants were
were authorized
authorized to
to
consent
consent to suchcare
tosuch careon behalf
onbehalf ofRuby
of Peterson,
Ruby Peterson, andRuby
and Rubysuffered
suffered no bodily
nobodily injuryasa
injury as a result
result

thereof.

4.
4. LACK
LACK OFSTANDING
OF STANDING & &SUBJECT
SUBJECT MATTER JURISDICTION:
MATTER JURISDICTION: Plaintiffs Mackey
Mackey
GlenPeterson,
Glen Peterson,DonLeslie
Don LesliePeterson
Peterson andLonny Peterson
and lacklegal
Peterson lack standing
legal standing to
to sue forFalse
suefor False
Imprisomnent,
Imprisonment, Assault
Assault andBattery,
and Breach
Battery, Breach ofFiduciary
of Fiduciary Duty,
Duty, Conversion, Conspiracy,
Conversion, Conspiracy, Invasion
Invasion
ofPrivacy,
of Privacy, Intentional
Intentional Infliction
Infliction ofEmotional
of Emotional Distress or any other
Distress orany other sstate or federal
tateor cause o
federal cause off
action
action on behalf of
onbehalf of Ruby
Ruby P eterson.
Peterson. Ruby
Ruby Peterson
Peterson hadbeen
had been diagnosed
diagnosed with Dementia by(1)
Dementia by (1)
Federico (2)Saeed
Federico Dancel,M.D.'; (2) Kahkeshani,
Saeed Kahkeshani, (3)Samiran
M.D.2; (3) K.Das,
Samiran K. (4)Salah
Das, M.D.3; (4) U.
Salah U.

June
of
2013.
Board Internist
Board Certified Internist and
and Ruby
Ruby P eterson’s
Peterson's longtime
long timeprimary care physician.
carephysician,
2 BoardCertified Neurologist
Board Neurologist whodiagnosed
who diagnosed Ruby
Ruby with
with dementia
dementia inapproximately
in approximately
June of 2013.
3
Board Ruby
with
dementia
atthePasadena
Board Certified Internist who diagnosed Ruby with dementia at the Pasadena
Bayshore
Bayshore Hospital Adult
Adult Psychiatric Unit in approximately August
Unit m August 2013.
2013.

Silverado Appx. 0180
No. 1-15-586-CV 3125
 Qureshi, (5) Suleman Lalani,
Qureshi, M.D.4.; (5)Suleman and(6)Christopher
Lalani, M.D.5;and 0. Merkl, M.D.6prior
(6) ChristopherO.Merkl, priorto
to

November
November 15, 013when
15, 22013 manipulatedRuby
when PlaintiffsmanipulatedRubyPPeterson
eterson(through
(throughthesecretive
the secretive exercise

of Undue Influence)
ofUndue Influence)into signingaapurported
intosigning butddenied
purportedbut eniedrrevocation
evocation ofdurable powerof
of durablepower ofattomey
attorney
and butddenied
purported but
andpurported enied ewstatutorydurable
nnew powerof
durablepower attorneywhich,
ofattorney predictably,replaced
which,predictably, replaced
Defendants
Defendants Carol
Carol A Manleyaand
nnManley
Ann ndDavid
DavidTroy ithPlaintiffs
Petersonwwith
TroyPeterson PlaintiffsMackey lenPeterson
MackeyGGlen Peterson
andDonLeslie
and Don Leslie Peterson
Petersonaassthepurported gentsooffRuby
the purportedaagents RubyPeterson.
Peterson.
Ruby
Ruby P eterson
Peterson lacked herequisite
lackedtthe mentalcapacity
requisitemental capacitytoexecute newdisability
to executenew disabilityplanning
planning
documents onNovember
documents on November 15, (sincesshe
013(since
15, 22013 hewas
wasalready mentallyincapacitated
alreadymentally andhad
incapacitatedand hadbeen
been
forapproximately
for approximately ayear p riorb ythat t ime). acted inbad faithbecause they
a year prior by that time). Plaintiff's acted in bad faith because theywere
were
informed,
informed, inwriting, onOctober
in writing,on by Board CertifiedGeriatric
4, 2013byBoard
October4,2013 PsychiatristChristopher
GeriatricPsychiatrist ChristopherO.
0.

Merkl, M.D.
Merkl, M.D. tthat
hatRuby
RubyPeterson
Petersonhhad
addementia,
dementia,was and lackedthe
susceptibletoto manipulation,andlacked
wassusceptible the

requisite m
requisite entalcapacityto
mental manageherfinancial
tomanage orother
her financialor
RubyPeterson’s authorized
other affairs. Ruby Peterson's authorized

for both financial
agents forboth
agents financialandpersonal/healthcare
decision-making remain DefendantCarolAnn
and personal/healthcare decision-making remain Defendant Carol Ann
Manley
Manleyaand
ndDavid
DavidTroyPeterson.
Troy Peterson.
Assuch, Mackey GlenPeterson, DonLesliePeterson andLormy Peterson have
As such, Plaintiffs Mackey Glen Peterson, Don Leslie Peterson and Lonny Peterson have
legalstanding
no legal standingto
no bringany causesofaction
to bringanycauses nbehalf
of actionoon
ofRubyPeterson. Under Texaslaw,
behalf of Ruby Peterson. Under Texas law,
standing is a necessarycomponent
standing is anecessary
ofsubject matter jurisdiction. SincePlaintiffs lackstanding to
component of subject matter jurisdiction. Since Plaintiffs lack standing to
behalfofRubyPeterson, theirclaimsmustbbeedismissed for wantofsubject matter
sue on behalf of Ruby Peterson, their claimsmust
sueon dismissed foraa want of subject matter

4 Board Certified Psychiatrist
Board Certified Geriatric Psychiatrist
who diagnosed
who diagnosed
Rubywithdementia atthe
Ruby with dementia at the
PasadenaBayshore Hospital Adult UnitinAugust of2013.
Pasadena Bayshore Hospital Adult Psychiatric Unit in August of 2013.
5 BoardCertified Intemist, Board Geriatric physicianandRubyPeterson’s
attending Board Certified
physician Internist,
theSilverado SeniorBoard Certified
Living FacilityGeriatric physician
whodiagnosed RubyandwRuby Peterson's
ithdementia in
attending physician
at
at the of2013.
Silverado Senior Living Facility who diagnosed Ruby with dementia in
approximately September
approximately September of 2013.
BoardCertified Psychiatrist
andtreating whodiagnosed
physician Ruby
with
Peterson
6
inOGeriatric
dementia ctober
of2013.r
Board Certified Geriatric Psychiatrist and treating physician who diagnosed Ruby
Peterson with dementia in October of 2013.

Silverado Appx. 0181
No. 1-15-586-CV 3126
 jurisdiction.
jurisdiction.
n
WHEREFORE,
WHEREFORE, PREMISES CONSIDERED,
PREMISES CONSIDERED, Proposed
Proposed Ward RUBY
RUBY S.PETERSON,
S. PETERSON,

respectfully prays tthat
respectfully prays hattthe
hePlaintiffs Mackey
Mackey Glen Peterson, Don
Glen Peterson, Don Leslie Peterson
Leslie Peterson andLonny
and

takenothing
Peterson byreason
ofthissuit;
thatcosts
including, limitation,
without all
Peterson take nothing by reason of this suit; that costs including, without limitation, all court

appointees’
appointees' feesand
fees expenses,
and expenses, beadjudged
be againstthe
adjudged against thePlaintiffs; andthatshe
Plaintiffs; and hencewithout
gohence
that she go without

day.
day.

Respectfully submitted,
submitted,

UNDERW
UNDERW OD, JJONES,
•I OD, ONES, SCHERRER
SCHERRER &
&
MALOUF,
MALOUF, .L.L.C.

By:
By:
W.RU ·s
W. RUS JO
StateB No.
adig
|8050
State B No. 1 P8050
5177
5177 R ichmond
Richmond Avenue,
Avenue, Suite
Suite 505
505
_ Houston,
Houston, Texas 77056
Texas 77056
; (713)
552-1144
(713) 552-1144
(713)781-4448
(713) 781-4448 ffacsimile
acsimile
rjones@ujsmlaw.com

ATTORNEY
ATTORNEY ADLITEM
AD FORRUBY
LITEM FOR RUBYS.
S.
PETERSON,
PETERSON, PROPOSED
PROPOSED WARD
WARD

Silverado Appx. 0182
No. 1-15-586-CV 3127
 CERTIFICATE OF SERVICE

hereby c
IIhereby ertify
certify tthat
hataa true
true and copyoftheforegoing
and correctcopyof the foregoing instrument hasbeen
has been
forwarded
forwarded to:
to:

Sarah Patel
Patel Pacheco
Pacheco Candice
Candice Schwager
Schwager
Kathleen Tanner Beduze
Beduze 1417
1417 Ramada
Ramada Drive
Drive
Crain,
Crain, Caton & James, P.C.
Caton &James, P.C. Houston,
Houston, Texas 77062
Texas 77062
McKim1ey,
1401McKinney,
1401 Suite1700
Suite 1700
Houston,
Houston, Texas 7
Texas 7010
77010

PhilipM
Philip M. .Ross
Ross JoshK.Davis
Josh K. Davis
1006
1006 Holbrook
Holbrook Road
Road Lewis, Brisbois,
Lewis, Brisbois, Bisgaard
Bisgaard &Smith,
& L.L.P.
Smith, L.L.P.
SanAntonio,
San Antonio, Texas
Texas 78218
78218 Weslayan Tower, Suite
Weslayan Tower, 1400
Suite 1400
24Greenway Plaza
24 Plaza
Houston,
Houston, Texas77046
Texas 77046
_
byfacsimile
by and/ore-file on
facsimile and/or the2' day
onthe dayofOctober,
of October, 22|t 14.
14.

w. J
Agall4/11§
W. RUSS JONES

Silverado Appx. 0183
No. 1-15-586-CV 3128
TAB 34
 10/6/2014 FILED
10/6/2014 8:51:06 PM
Stan Stanart
County Clerk
D| UPTH\$
DATA-ENTRY DATE U Harris County

PICK UP THIS DATE

NO. 427,208
PROBATE
COURT
1
PROBATE COURT 'I
NO. 427,208
IN RE: GUARDIANSHIP OF
INRE:GUARDIANSHIP OF § INTHEPROBATE COURT
IN THE PROBATE COURT

RUBY
RUBY PETERSON,
PETERSON, § NUMBER
NUMBER ONE
ONE

PROPOSED
PROPOSED WARD
WARD § HARRIS
HARRIS COUNTY
COUNTY, TEXAS
TEXAS
C

cv 2014-40980
N0.
CAUSE NO. 2014-40980

("MACK")
PETERSON,
MACKEY
Friend
Next § INTHEDISTRICTCOURT
GLENPETERSON,
§
MACKEY ("MACK") GLEN PETERSON, § IN THE DISTRICT COURT
PETERSON, Individually, Next Friend
0fRUBYPETERSON, DONLESLIE §
of RUBY PETERSON, DON LESLIE
PETERSON, and as Next
PETERSON, Individually and as Next §
Friend,0f RUBYPETERSON,
Friend, of RUBY and
PETERSON, and §
0fRUBY
Friend
LONNY
Next
LONNY
§§
S.PETERSON,
PETERSON,
PETERSON, Individually
Next Friend of RUBY S. PETERSON,
and §
Individually
and

Plaintiffs,
Plaintiffs,
V.
V. HARRIS COUNTYTEXAS
HARRISCOUNTY, TEXAS
§
CAROL §
ANNE MANLEY
DAVID
CAROL
§
PETERSON,
SILVERADO
ANNE
SENIORLIVING
MANLEY,
DAVID PETERSON, SILVERADO
CAREFACILITY,
LIVINGCARE §
SENIOR FACILITY,
TAN
TANAAMCMILLON,
MCMILLON, §
LINDALAVINS
LINDA ON,DR.REBECCA
LAVINSON, DR. REBECCA §
CLEARMAN, DR.CHRISMERKL
CLEARMAN, DR. CHRIS MERKL
Defendants.
Defendants. § 129TH
129TH JUDICIAL
JUDICIAL DISTRICT
DISTRICT

OFNONSUIT
NOTICEOF
NOTICE OFTAN
NONSUIT OF AMCMILLON,
TANA MCMILLON, LINDA LAVINSON,
LINDALAVINSON,
DR. REBECCA C LEARMAN AND DR.CHRIS MERKL
DR. REBECCA CLEARMAN AND DR. CHRIS MERKL

1

Silverado Appx. 0184
No. 1-15-586-CV 3211
 COME,
NOW PETERSON,
GLEN
MACKEY LONNY and
PETERSON,
NOW COME, MACKEY GLEN PETERSON, LONNY PETERSON, and

DON LESLIE
DON PETERSON, Individuallyand
LESLIEPETERSON, as Next
andas Friendsof
Next Friends RUBY
of RUBY

PETERSON ("Plaintiffs"),
PETERSON and file this
("Plaintiffs"),and Notice
this Notice ofNonsuit
of ofTana
Nonsuit of McMill0n,
Tana McMillon,

Lavinson,
Linda Clearman
Dr.Rebecca and Merkl,
Dr.Chris would
andinsupport
Linda Lavinson, Dr. Rebecca Clearman and Dr. Chris Merkl, and in support would

show asfollows:
theCourt
show the Court as follows:

Plaintiffs give
hereby thatthey
notice have tononsuit
decided claims
their
Plaintiffs hereby give notice that they have decided to nonsuit their claims

against
against theindividual
the Defendants
individual Defendants Tana McMill0n,
TanaMcMillon, Linda
Linda Lavinson,
Lavinson, Dr.Rebecca
Dr. Rebecca
Clearman
Clearman andDr.
and Chris
Dr.Chris Merkl.PRAYER
Merkl.

PRAYER

WHEREFORE, Plaintiffs
WHEREFORE, request tthe
Plaintiffs request heCourt o takenotice
Court tto take notice ofthenonsuit of
of the nonsuit of

the individual
the Defendants
individual Defendants Tana
Tana M cMill0n,
McMillon, Linda Lavinson,
Linda Lavinson, Dr.R
Dr. ebecca
Rebecca Clearman
Clearman

and Dr.
and ChrisMerkl.Plaintiffs
Dr.Chris respectfully
Merkl. Plaintiffs respectfully equestthat
rrequest that this Courtgrant
this Court all
grantall
requested reliefand
requested relief andallother andfurther
all other and reliefto
further relief whichthey
towhich theymay bejustlyentitled
maybe justly entitled

at lawor
atlaw inequity.Respectfully
orin equity.

submitted
Respectfully submitted

Philip
Philip M.Ross
M. Ross
1006
1006 H olbrook
Holbrook Road
Road
SanAntonio,
San TX 78218
Antonio, TX 78218
Phone: 210/326-2100
Phone: 210/326-2100
Email: ross_law@h0tmail.com
Email: ross_law@hotmail.com

By: /s//s/Philip M.
By: M.Ross
Ross
2
2

Silverado Appx. 0185
No. 1-15-586-CV 3212
 PhilipM.Ross
Philip M. Ross
StateBar
State N0.17304200
BarNo. 17304200
ATTORNEY FOR
ATTORNEY MACKGLEN
FOR MACK GLEN
PETERSON, LONNY PETERSON,
PETERSON, LONNY PETERSON,
AND
AND DON
DON LESLIE PETERSON
LESLIE PETERSON

THESCHWAGER
THE SCHWAGER LAW LAWFIRM
FIRM
/s/Candice
/s/Candice L.Schwager
L. Schwager
CandiceL.
Candice L.Schwager
Schwager
1417Ramada
1417 Ramada Dr.
Dr.
Houston,
Houston, Texas
Texas 77062
77062
Tel:(832)315-8489
Tel: (832) 315-8489
Fax:(713)
Fax: 583-0355
(713) 583-0355
schwagerlawfirm@live.com
ATTORNEY
ATTORNEY FOR MACKGLEN
FOR MACK GLEN
PETERSON, L ONNYPETERSON,
PETERSON, LONNY PETERSON,
AND
AND DON LESLIE PETERSON
DONLESLIE PETERSON

CERTIFICATE
CERTIFICATE OFSERVICE
OF SERVICE

II hereby thatthisdocument
herebycertify that wase—filed
this document was andserved
e-filed and served on allcounsel
on all of
counsel of

recordon
record the6thdayofSeptember,
onthe 2014./s/
6th day of September, 2014.

M.Ross
Is/ Philip M. Ross
PhilipM.Ross
Philip M. Ross

33

Silverado Appx. 0186
No. 1-15-586-CV 3213
TAB 35
 FILED
10/6/2014 8:51:06 PM
SI
Stan Stanart
County Clerk
DATA-ENTRY
UPTHIS DATE Harris County
PICK UP THIS DATE
PROBATE
COURT
1
PROBATE COURT 1
NO.427,208
NO. 427,208
IN
IN RE: GUARDIANSHIP
RE:GUARDIANSHIP OF
OF §§ THE
INTHE
IN PROBATE
PROBATE COURT
COURT
§
RUBY
RUBY PETERSON,
PETERSON, §§ NUMBER
NUMBER ONE
ONE
§
§
PROPOSED WARD
PROPOSED WARD § HARRIS
HARRIS COUNTY,
COUNTY, TEXAS
TEXAS

CAUSE
CAUSE NO.2014-40980
NO. 2014-40980
MACKEY
MACKEY("MACK")
("MACK")GGLEN
LENPETERSON, § § ININTHEDISTRICT
PETERSON, COURT
THE DISTRICT COURT
PETERSON, NextFriend
PETERSON, Individually, Next Friend §§
ofRUBYPETERSON,
of DONLESLIE
RUBY PETERSON, DON LESLIE §
PETERSON, andas
PETERSON, Individually and Next
asNext §§
Friend, ofRUBY
Friend, of PETERSON,
RUBY PETERSON, and
and §§
LONNY
LONNY PETERSON, Individuallyand
PETERSON, Individually and §§
Next Friendof
NextFriend ofRUBY S.PETERSON,
RUBY S. PETERSON, §§§
§
Plaintiffs,
Plaintiffs, §
§
V.
V. § HARRIS
§ HARRIS COUNTY,
COUNTY, TEXAS
TEXAS
§§
CAROL
CAROL ANNEMANLEY,
ANNE §§
DAVID PETERSON,
DAVID SILVERADO
PETERSON, SILVERADO §§
SENIOR
SENIOR LIVING,
LIVING, INC.,d/b/a
INC., Silverado
d/b/aSilverado §§
Senior L iving Sugar
L and,
—Sugar Land,
Senior Living — §
§
Defendants.
Defendants. §§ 129THJUDICIAL
129TH DISTRICT
JUDICIALDISTRICT

FOURTH
FOURTH AMENDED ORIGINAL
AMENDED ORIGINAL PETITION
PETITION AND
AND
CONTEST TO GUARDIANSHIP A PPLICATION
CONTEST TO GUARDIANSHIP APPLICATION

1
1

Silverado Appx. 0187
No. 1-15-586-CV 3214
 MACKEY ("MACK")
MACKEY GLEN
("MACK") GLEN PETERSON,
PETERSON, LONNY
LONNY PETERSON
PETERSON

("Lonny"),
("Lonny"), andDONLESLIE "Don"),Individuallyand
PETERSON(("Don"),
and DON LESLIE PETERSON asNext
andas Next

Friends of
Friends PETERSON (("Plaintiffs"),
RUBY PETERSON
of RUBY "Plaintiffs"), Amended O
this Fourth Amended
file thisFourth riginal
Original
Petition
Petition andContest
and Contest to of Defendants,CAROL
complaining ofDefendants,
to Guardianship complaining
ANNE
CAROL ANNE

MANLEY ("Carol"),
MANLEY DAVID PETERSON
("Carol"), DAVID ("David"),and
PETERSON("David"), SILVERADOSENIOR
and SILVERADOSENIOR
LIVING,
LIVING, INC.,d/b/aSilverado SeniorLiving
INC., d/b/a Silverado Senior —SugarLand
Living— ("SILVERADO"),
Sugar Land ("SILVERADO"),
andin support would
and in support show theCourt
would show
follows:
the Court aass follows:
DISCOVERYCONTROL PLAN
DISCOVERY CONTROL PLAN

Discovery inthislawsuit
Discovery to beconducted
in this lawsuit to be conductedunder
Level3 ofRule190.1ofthe
under Level 3 of Rule 190.1 of the
TexasRules ofCivil Procedure. Tex.R.Civ. P.190.1.
JUDGMENT
DECLARATORY
Texas Rules of Civil Procedure. Tex. R. Civ. P. 190.1.

DECLARATORY JUDGMENT
Plaintiffsallegeandwouldprovethatthey
Plaintiffs allege and wouldprove that theymay
be entitledto declaratory
may be entitled to declaratory
judgment as a matter
judgment asa
oflawthatthe 1993DurablePowerofAttomeyappointing
matter of law that the 1993 Durable Power of Attorney appointing
Carol andDavidwas
Carol and David w asrevoked
revokedas
ofNovember 15,2013.Tex.Civ.Prac.&Rem.
as of November 15, 2013. Tex. Civ. Prac. & Rem.
Code37.001-37.005 Additionally
et seq. Additionally andaltematively, Rubyexecuted a new
Code 37.001-37.005 etseq. and alternatively, Ruby executed a new
durable of attorney n November 15,2013appointing her sonsMackand
power of attorney oon
durable power November 15, 2013 appointing her sons Mack and
Don heragents.Plaintiffs seek declaration thatMackandDonareauthorized
as her agents. Plaintiffs seek a
Don as a declaration that Mack and Don are authorized
to Ruby'sagentspursuanttotheNovember 2013powerof attomey.
serve as
to serve as Ruby's agents pursuant to the November 2013 power of attorney.

2

Silverado Appx. 0188
No. 1-15-586-CV 3215
 33
33 Therefore,Plaintiffssubmitthat
Therefore, submit that they may be
they may entitledto
be entitled to the following
thefollowing
remedies
remedies a vailable
available court when
ttoo a court of trust
when aa breach of hasoccurred:
trusthas (a)compel
occurred: (a) the
compel the

trusteeto
trustee to perform the trustee’s
performthe trustee's dduty or duties;
uty or (b)enjoin
duties; (b) enjointhe
the trustee from
trusteefrom

a breach
committing oftrust;
(c)compel toredress
thetrustee oftrust,
a breach
committing a breach of trust; (c) compel the trustee to redress a breach of trust,

including
including ccompelling
ompelling tthe
he trustee
trustee to pay money or
to paymoney property;(d)
restoreproperty;
or restore orderaa
(d) order

trustee to (e)appoint
account;(e)
to account; receiverto
appoint aa receiver takepossession
totake ofthe
possession of thetrust
trustproperty
property

andadminister
and thetrust;
administer the (f)suspend
trust;(0 thetrustee;
suspend the (g)remove
trustee;(g) thetrustee
removethe trusteeas provided
as provided
C)

underSection113.082; (h)reduce
under Section 113.082; (h) denycompensation
ordeny
reduce or thetrustee;
to the
compensation to (i) void
trustee;(i) voidan
an
ofthe
actof
act thetrustee;
trustee;and/or (j)impose
and/or(j) lienor
impose aa lien constructive
orconstructive truston
trust trustproperty
ontrust property

according
according to Texas T
theTexas
tothe rustC
Trust ode.Section
Code. 114.008.
Section114.008.
ACTION
OF
CAUSES
CAUSES OF ACTION

FALSE
A FALSE
A IMPRISONMENT
IMPRISONMENT

34.Plaintiffs
34. Plaintiffs allege allfactsstated
allegeall hereinabove
facts stated hereinabove as fullyset
as ifif fully below.Texas
setforth below. Texas

law imprisonment
falseimprisonment
law defines false as
as the unlawfulrestraint
theunlawful of an
restraintof individual’s
anindividual's
personal or freedom
personal liberty or freedom of
of movement against hhis
movement against or herwill.
isor Plaintiffs
her will. Plaintiffs allege
allege

andwould
and provethat
would prove Silverado h
thatSilverado has restrictedR
asrestricted uby’smovement
Ruby's movementto andfromthe
to and from the

premises withoutaa court
premises without order.
courtorder.
68. To
68. date,thereis
Todate, Courtdeclaring
noCourt
there is no Rubyto
declaring Ruby to be incompetent
beincompetent or
or to lack
to lack
capacity.
capacity. Thereisisno
There presumption
nopresumption ofincompetence
of incapacity.
orincapacity.
incompetence or
12
12

Silverado Appx. 0189
No. 1-15-586-CV 3225
 69
69 next friends
as next
Plaintiffs, as Ruby,cclaim
friendsooffRuby, all of her rights undertheElderly
laimallofherrights the Elderly
of
Billof
Bill of Rights Section 102
in Section
Rights found in Resource C
the Human Resource
102 of theHuman Code including:(a)
odeincluding: (a)

An elderly individual
Anelderly individual hasalltherights, benefits,
has all the rights, benefits, responsibilities, and
responsibilities, and privileges
granted by theconstitution
granted by and laws of this
the constitutionandlawsof this state and the United
state andthe United States,
States,eexcept
xcept
wherelawfully Theelderlyindividual
restricted.The
where lawfullyrestricted. has
elderly individual has righttotobe
theright
the befree
of
free of
interference, andreprisal
coercion, discrimination,and
interference, coercion, in exercisingthese
reprisalinexercising
civilrights.
these civil rights.
C (b) elderly individualhhas
An elderlyindividual
(b) An astheright
the rightto betreatedwithdignityand
tobe treated with dignity andrespect
forthe
respect for the

personal iintegrity
personal ntegrityof
of the individual,without
the individual,
regard to race,
without regardto
religion,national
race, religion, national
origin,
origin, ssex, age, disability,
ex,age, marital tatus,oorr source
disability, maritalsstatus,
of payment.This
source of payment.
Thismeans
that
means that
the elderlyindividual:(1) has the rightto makethe individual's ownchoices
the elderly individual: (1) has the right to make the individual's own choices
regarding individual'spersonalaffairs, care,benefits, and services;(2)hasthe
regarding the
the individual's personal affairs,care, benefits, and services; (2) has the
um.Resource Codes
right
right to
befreefromabuse,neglect,andexploitation. ..Tex.H
to be free from abuse, neglect, and exploitation...Tex. Hum. Resource Code s
102.003. Clearly,thisStatutehasbeenrepeatedly violatedwithrespecttoRuby.
102.003. Clearly, this Statute has been repeatedly violated with respect to Ruby.
70 Plaintiffs, as next
Plaintiffs, as
friendsof Ruby,claimallof her rightsundertheTexas
next friends of Ruby, claim all of her rights under the Texas
70
Code 19.401,et seq., which
Administrative
Administrative Code 19.401, etseq.,
guaranteesthe elderlywiththei
which guarantees the elderly with the
uninhibitedrightto free andegressoftheirfacilitiesinwhichtheyreside,
uninhibited right to free access
access and egress of their facilities in which they reside,
thatanelderlypatient’s
mandating bynotinterfering
privacyrightsberespected
mandating that an elderly patient's privacy rights be respected by not interfering in
anymanner withtheirreceiptof unopened mail,telephone calls,privatemeeting
any manner with their receipt of unopened mail, telephone calls, private meeting

13
13

Silverado Appx. 0190
No. 1-15-586-CV 3226
 areas withtheirfamily.
areas with their family. Section 19.401 states thefollowing
19.401 specificallystates the following

guarantees:
guarantees:

a. The resident hastheright
a. Theresident to exercise
has the right to exercisehhis
isrights as aresident
rightsasa residentaatt thefacility
the facilityand
and

as a citizen
asa citizen or resident ofthe
or resident of the United
United States.
States.

b. The
b. The resident
resident hastheright obefree
has the right tto be free ofinterference, coercion,discrimination,
of interference,coercion,discrimination,or
or

reprisal from
from thefacility
the facility inexercising
in exercisinghisrights.
his rights.

c. In
c. In the case of
the case of a residentaadjudged
a resident djudgediincompetent
ncompetent under the lawsof
underthelaws oftheStateof
the State of
Texasby competentjurisdiction,
of competent
courtof
Texas by aa court jurisdiction,the
therightsof
rights of the
resident re
the resident aare
exercised
exercisedby
by the
appointedunderTexaslaw toact
person appointed under Texas lawto
the person act on
the resident`s
on the resident's

behalf.
d. The facilitymust comply
d. The facility must
complywith all applicableprovisionsof the Human
with all applicable provisions of the Human
ResourcesCode,Title 6, and Chapter102.An individual may ay not be denied
Resources Code, Title 6, and Chapter 102. An individualm not be denied
appropriate
appropriatecareon
thebasisof his race, religion,
care on the basis of his race,
color,nationalorigin, ex,
religion, color, national origin,ssex,
handicap, status, sourceooffpayment.
age, handicap, marital status, oorr source
age, payment.
e. Thefacilitymustallowtheresidentthe to observehisreligiousbeliefs.
e. The facility must allow the resident the right to observe his religious beliefs.
Thefacilitymustrespectthereligious beliefsoftheresidentinaccordance with
The facility must respect the religious beliefs of the resident in accordance with
42UnitedStatesCode§l396f.
42 United States Code §1396f.
71 Section19.401et seq mandates thatallnursinghomefacilitiesunder
71 Section 19.401 et seq further mandates that all nursing home facilities under
of theDepartment
thejurisdiction to ensureprivacywith
ofAgingandDisability
the jurisdiction of the Department of Aging and Disability to ensure privacy with
14
14

Silverado Appx. 0191
No. 1-15-586-CV 3227
 respect to accommodations, medical
respect to access, visitation,
care, access,
medical treatment, personalcare, visitation,
andotherpotentially
and other potentially iinvasive,
nvasive,uunwanted
nwantedororintrusive
intrusiveacts orpractices
actsor practicesbby
y the
the

facility. 19.401.
72
72 Plaintiffs
Plaintiffsaallege
llegeandwould provethatSilverado
and wouldprove that Silveradohhas
asfailed orrefused
failedor refusedto
to

provide pprivacy
provide rivacyto
to Ruby
Ruby andthePlaintiffs
and the Plaintiffs regarding
regardingpphone calls,m
honecalls, ail,oorr personal
mail, personal
0
: visitation with
visitation with Plaintiffs
Plaintiffs and
andttheir
heir wives.
wives.

73
73 Plaintiffs
Plaintiffsallegeand
allege and would provethat
wouldprove that Rubyand
Ruby and they havesustained
they have sustained
substantial
substantial damages as a proximate
damages asa resultooffSilverado's
proximate result Silverado'swrongful
wrongful imprisonmentof
of
Ruby.
Ruby.
74
74 Plaintiffsfurtherallege
Plaintiffs further allege and wouldprove
and would thatSilverado's
provethat wrongful
Silverado'swrongful
ofRuby
imprisonment of Ruby was
intentional
andmalicious,
suchthatSilverado
should
was intentional and malicious, such that Silverado should
beassessed exemplaryorpunitive
be assessed exemplary or punitiveddamages.
amages.
B
B
ASSAULTAND BATTERY
ASSAULT AND BA11ERY
75
75
Plaintiffsallegeandwouldprove thatSilverado
Plaintiffs allege and wouldprove
hascommitted assaultand
that Silverado has committed assault and
batteryof Rubywithrespect tto
battery of Ruby with respecto psychotropicdrugsforced uponheragainst
psychotropic drugs forcedupon
her
her against her
willinfoodandotherwise. Plaintiffs allegeandwouldprove thatSilverado
will in food and otherwise. Plaintiffs allege and would prove
k11ew
that Silverado knew
or shouldhaveknownthatRubyrefusedto takemedications thatshecomplained
or should have known that Ruby refused to take medications that she complained
made hersick.
made her sick.

15

Silverado Appx. 0192
No. 1-15-586-CV 3228
 76
76 Plaintiffs allege
allege andwould thatSilverado
provethat
and would prove Silverado placed Rubyinreasonable
placedRuby in reasonable

fearof
fear harmfulor
of aa harmful offensive
oroffensive contactand/or
contact forcingor
and/orforcing or tricking herinto
trickingher into taking

drugs, which sherefused
whichshe takevoluntarily,
totake
refused to voluntarily, which wrongful
whichwrongful conduct causedRuby
conductcaused Ruby
(0

to feel
to sick.
feel sick.

tT 77
77 Plaintiffsaallege
Plaintiffs llegeandwould
and would prove thatSilverado
prove that placedthem
Silverado placed themin reasonable
in reasonable
b
fearofa oroffensive
contact
orarrest authorities,
bylawenforcement
fear of a harmful or offensive contact or arrest by law enforcement authorities,
CO
Silverado
whenSilverado
when wrongfully
wrongfully orderedthem
ordered themto leavethe
toleave premises
thepremises andissued
and criminal
issued criminal

trespass w
trespass arnings.
warnings.

78
78 Plaintiffs
Plaintiffs allegeand wouldprove
allege and would that Ruby
prove that Rubyand theyhave
and they sustained
havesustained
substantial
substantial damages
damages a proximate
ass aa proximate resultof
result Silverado's
of Silverado's wrongful
wrongful assaultand/or
assault and/or
battery.79
battery.

79 Plaintiffs ffurther
Plaintiffs urtherallege
allegeand wouldprove
andwould thatSilverado's
provethat wrongful
Silverado's wrongful assault
assault

andbattery
and intentional
wasintentional
battery was andmalicious,
and suchthatSilverado
malicious, such that Silverado should beassessed
shouldbe assessed

exemplary
exemplary punitivedamages.
orpunitive
or damages.
C
C BREACH
BREACH OFTRUST
OF andBREACH
TRUST and OFFIDUCIARY
BREACH OF DUTY
FIDUCIARY DUTY

80
80 Plaintiffs c
Plaintiffs laimdamages
claim jointly and severally a
damages jointlyandseverally against DavidandCarol
gainstDavid for
and Carol for

fraud,breachof
fraud, fiduciaryduty,and/orbreachof
breach of fiduciary withrespect
trustwith
duty, and/or breach of trust respectto their
to their

obligations
fiduciary obligations toRuby
to andthemselves.
Rubyand themselves.

16
16

Silverado Appx. 0193
No. 1-15-586-CV 3229
 81
81 TheEstates
The Estates Code breacheshis
thataa fiduciarybreaches
Code providesthat her dutyby
orherduty
hisor by
neglecting o provide accounting,
neglecting tto records,funds,
accounting,records, funds,aand
ndinformation
informationwhenasked
when askedor
or
under
under aa duty to provide
duty to provide the same. IItt further includes
the same. includes ffailure
ailureto meetthehighest
to meet the highest
degree
degree of care owed
of care owed to
to any humanbeing.Tex.
anyhuman being. Tex. E Code.7751.001
st.Code.
Est. 51.001eett seq.
seq.

82 Carol
Carol aand
ndDavid have duties
David have dutiestto: account,keep
o:account, accuraterrecords,
keepaccurate ecords,andproduce
and produce
the
the same demand bby
upon demand
same upon ythe
the beneficiariesincluding
includingR ubyandthePlaintiffs.
Ruby and the Plaintiffs.
Sec.751.102.
Sec. 751.102. Duty to Timely Inform
Duty to Inform Principal. [TPC§489B(b)] states:""(a)
[TPC §489B(b)]states: (a)The
The

attorney in
attorney in fact
fact or shalltimely
agentshall
or agent timely inform the principal of
inform theprincipal of eachactiontaken
each action taken
underthe of attorney.(b)Failure
power of attorney.
under the power
of anattomey
(b) Failure ofan attorneyin
fact oragentto
in factor
timely
agent to timely
inform, as to
inform, as
third doesnot invalidate
to third parties, does not
actionofthe attorneyinfact
any action of theattomey
invalidateany in factor
or
agent."Sec. 751.103. of Records.[TPC§489B(c),(f)] states:"(a)
agent." Sec. 751.103. Maintenance of Records. [TPC §489B(c), (f)]states: "(a)
The
The attorney
in fact or agent
attorney in fact or
shallmaintain
agentshall recordsof eachactiontaken or
maintain records of each action takenor
decisionmadeby the attorneyin
decision made by the attomey
fact or agent.
in fact or
(b)Theattorneyin fact oragent
agent. (b) The attorney in factor agent
shallmaintainallrecordsuntildelivered to theprincipal, releasedbytheprincipal,
shall maintain all records until delivered to the principal, released by the principal,
or dischargedby court."Sec.751.104. Accounting. [TPC§489B(d), (e)]states
or discharged by aa court." Sec. 751.104. Accounting. [TPC §489B(d), (e)1 states
"(a)Theprincipalmaydemandan accounting bytheattorneyinfact agent.(b)
"(a) The principal may demand an accounting by the attorney in factor
or agent. (b)
Unlessotherwisedirectedby the accounting
underSubsection
(a)
Unless otherwise directed by the principal, an
an accounting under Subsection (a)
must include:(1)the propertybelongingto theprincipalthathas cometo the
must include: (1) the property belonging to the principal that has come to the
attorneyin fact’sor agent’sknowledge or intothe attorneyin fact’sor agent’s
17
attorney in fact's or agent's knowledge or into the attorney in fact's or agent's
17

Silverado Appx. 0194
No. 1-15-586-CV 3230
 possession;
possession; (2) each action taken
(2)eachaction ordecision
taken or decision m adebythe
made infact
by the attorney in agent;
or agent;
fact or

(3)aa complete
(3) complete ofreceipts,
accountof
account disbursements,
receipts, disbursements, andother
and other actions ofthe
actionsof attorney
the attorney

infact
in agentthat
oragent
fact or includes
thatincludes thesource
the sourceandnature
and natureofeach
of receipt,
each receipt, disbursement,
disbursement,

action,with
or action,
or withreceipts
receipts of andincome
ofprincipal and income shown separately;
shownseparately; (4) listingof
(4) aa listing of

all property
all propertyover whichthe
overwhich in fact
attorneyin
the attorney factor
oragent hasexercised
agenthas exercised control that
controlthat

N includes:
includes: (A)
(A) an adequate
an adequate description ofeach
description asset; and(B)theasset’s
of each asset; current
and (B) the asset's current

value, ifthevalue
value, if isknown
the value is theattorney
tothe
known to attorney infact
in oragent.
fact or (5)thecashbalance
agent.(5) on
the cash balance on

handandthe andlocation
nameand
hand and the name location of thedepository
of the whichthe
at which
depository at thecash
cash balance is
balanceis

kept;(6)eachknown
kept; (6) each known liability; and(7)
liability;and otherinformation
anyother
(7) any andfactsknown
information and to
facts known to

the attorneyin
the attorney factor
in fact agentas
oragent asnecessary
necessary for fulland
foraa full and definite understanding
definiteunderstanding of
of

the condition
exactcondition
the exact ofthe
of property
the property belonging
belonging tothe
to principal.
theprincipal. (c)Unless
(c) directed
Unless directed

otherwise
otherwise bbyythe principal,the
the principal, attorneyiinn fact
the attorney fact or
or agent shallalsoprovide
agentshall also provide tto the
o the
alldocumentation
principal all regarding
documentation regarding theprincipal’s
the principal's property.

83 TheTexas DurablePower of AttorneyAct,TexasEstatesCode751.001
Powerof
83 The Texas Durable Attorney Act, Texas Estates Code 751.001

governsDurable
governs Powers of
Durable Powers Attorney.In
of Attorney. 1993,Ruby
In 1993, executedthis
Ruby executed Powerof
this Power
of

Aattomey,
Aattorney, declaring iit
declaring t to
to be "unlimited
be "unlimited in nature.
in Basedupon
nature.Based completetrust."
uponcomplete trust."
1993Durable
1993 DurablePower
Power ofAttorney.
of Attorney.

84
84 Plaintiffs
Plaintiffs allegeand
allege andwould thatCarol
provethat
would prove andDavid
Carol and
theirduties
breached
David breached their duties

of disclosure,
of disclosure, accounting
accounting anddisbursement.
and Sec.751.105.
disbursement. Sec.
Failure
751.105. Effect of Failure to
18 18

Silverado Appx. 0195
No. 1-15-586-CV 3231
 Suit.[TPC§489B(g)]
Comply; Suit. states: ""If
[TPC §489B(g)] states: If the
the attorney in fact
attorney in fact or failsor
agentfails
or agent or
refuses to
to inform theprincipal,
informthe principal, provide documentation,
providedocumentation, deliveran
or deliver
or accounting
anaccounting
under 751.104 w
Section751.104
underSection ithin60daysof
within demandunder
60 days of aa demand thatsection,
underthat longer
oraa longer
section, or

or periodas
or shorter period demanded
asdemanded bytheprincipal
by or ordered
the principal or byaa court,
orderedby theprincipal
court,the principal

may suitto:
may file suit to:
Compel tthe
(1)Compel
(1) attorneyin
he attorney factor
in fact agentto
or agent to deliver theaccounting
deliverthe the
or the
accounting or

assets; or
assets;

(2)Terminate
(2) Terminate the ofattorney.
powerof
the power attorney.
85
85 Plaintiffs
Plaintiffs allegeand wouldprove
allege and would prove that Rubyand
that Ruby theyhave
and they sustained
havesustained
substantial
substantial damages
damages aas proximate
s aa proximate rresult
esultof CarolandDavid's
of Carol and David's breach of trust
breachof trust
and/orbreach
and/or offiduciary
breachof duty.
fiduciary duty.

86
86 Plaintiffs
Plaintiffs allege andwould
allege and thatCarol
provethat
would prove Carol and David's ffailure
andDavid's ailureor refusalto
orrefusal to
providewrittenannual accountingooff the
provide written annual accounting the Peterson Trustis
PetersonTrust intentional
is intentional and
and

malicious, suchthatthey
malicious, such shouldbeassessed
that they should exemplary
be assessed exemplary punitivedamages.
orpunitive
or damages.
87 Ruby
87 Rubyrevokedthe 1993Powerof
revoked the 1993 Attorney
Power of Attorney November
onNovember
on 15,2013.
15, 2013.
Silverado
Silverado hhad
adnotice ofthe
notice of newpowers
the new ofattorney
powers of appointing
attorneyappointing MackandDon as
Mack and Don as

Ruby's
Ruby's a gentson
agents November 15,2013.Silverado
on November hadaaduty
15, 2013. Silverado had
acknowledge
dutytotoacknowledge and
and

honor Ruby'snew
honor Ruby's newpowers ofattorney.
powers of attorney.19

19

Silverado Appx. 0196
No. 1-15-586-CV 3232
 88
88 Plaintiffs allegeand wouldprove
allege and would that Ruby
provethat Rubyand theyhave
and they sustained
havesustained
substantial
damages
asa oftrustand/or
breach
ofSilverado`s
substantial damages as a proximate result of Silverado's breach of trust and/or

breach offiduciary duty
breach of dutyregarding Ruby'snew
regarding Ruby's newpowers ofattorney.
powers of attorney.Additionally,
Additionally,

intentionally
Silverado intentionally and maliciously failed
andmaliciously failed or refusedto
or refused honorandrecognize
to honor and recognize

Ruby's
Ruby's rrevocation
evocation ooffherprevious
her previous p of attorney
owerof
power andherappointment
attomeyand ofDon
her appointment of Don

andMack
and heragents,
asher
Mack as suchthat
agents,such Silverado
that Silverado shouldbe
should assessed
beassessed exemplary
exemplary or
or

punitive damages.
punitive damages.

E CONSPIRACY
E CONSPIRACY

89
89 Plaintiffs
Plaintiffs claimdamages againstthe
claim damages against Defendants jointly
theDefendants andseverally
jointly and based
severally based

thealleged
on the
on conspiracy
alleged conspiracy Carol,David
amongCarol,
among DavidandSilverado
and Silverado to accomplish
toaccomplish an
an

unlawful
unlawful p Conspiracy
urpose.Conspiracy
purpose. eexists here because there
xistsherebecause are (l)
there are twoor
(1) two more
or more
persons, (2)an
persons, (2) objectto
anobject beaccomplished,
to be (3)aa meeting
accomplished, (3) oftheminds
meetingof theobject
onthe
the minds on object

ofthe
of ofaction,
courseof
the course (4)one
action,(4) oneor unlawful,
moreunlawful,
or more overtacts,
overt and(5)damages
acts, and as
(5) damages as

theproximate
the result.
proximate result.

90
90 Plaintiffs
Plaintiffs a llegeandwould
allege thattheDefendants
provethat
and would prove agreedto
the Defendants agreed violateor
to violate or
infringeRuby's
infringe againstfalse
rightsagainst
Ruby'srights falseimprisonment and/orassault
imprisonment and/or andbattery,
assaultand under
battery, under

thefactsalleged inthis
the facts alleged in case.JURY
this case.

JURY DEMAND
DEMAND

Plaintiffs demandaajury
Plaintiffs demand jury trial and have paid aa juryfee.
andhavepaid jury fee.
20
20

Silverado Appx. 0197
No. 1-15-586-CV 3233
TAB 36
 1

1 APPELLATE COURT CASE NO. 01-15-00567-CV & 01-15-00586-CV

2 TRIAL COURT CASE NO. 427,208 & 427,208-401
FILED IN
1st COURT OF APPEALS
3 HOUSTON, TEXAS
9/15/2015 10:04:54 AM
4 IN THE GUARDIANSHIP * IN THE PROBATE COURT OF
CHRISTOPHER A. PRINE
Clerk
5 *

6 RUBY PETERSON, * HARRIS COUNTY, T E X A S

7 *

8 INCAPACITATED ADULT * COURT NUMBER (1) ONE

9

10 MOTION TO RULE FOR SECURITY FOR COSTS

11 AND MOTIONS FOR SANCTIONS HEARING

12

13 Came to be heard on this the 9th day of October,

14 2014, Motion to Rule for Security for Costs and Motions for

15 Sanctions Hearing, in the above-entitled and numbered cause,

16 and all parties appeared in person and/or being represented by

17 Counsel of Record, before the Honorable Loyd Wright, Judge

18 Presiding.

19

20 VOLUME _10_ OF 13

21

22 O R I G I N A L

23

24

25

Silverado Appx. 0198
RR Vol. 10
 2

1 APPEARANCES

2 ATTORNEY FOR RESPONDENTS/PLAINTIFFS, MACKEY GLEN PETERSON,
DON LESLIE PETERSON AND LONNY PETERSON:
3
Philip Ross
4 State Bar No. 17304200
1006 Holbrook Rd
5 San Antonio, TX 78218-3325
Telephone: 210-326-2100
6
ATTORNEYS FOR MOVANTS/DEFENDANTS, CAROL ANN MANLEY
7 AND DAVID PETERSON:

8 Sarah Patel Pacheco
State Bar No. 00788164
9 1401 McKinney Street
1700 Five Houston Center
10 Houston, Texas 77010
Telephone: 713-658-2323
11
ATTORNEYS FOR MOVANTS/DEFENDANTS: SILVERADO SENIOR LIVING
12 CENTER SUGAR LAND:

13 Josh Davis
State Bar No. 24031993
14 Greenway Plaza, Suite 1400
Houston, TX 77046-2410
15 Telephone: (713)659-6767

16 GUARDIAN AD LITEM FOR RUBY PETERSON:

17 Jill Young
State Bar No. 00797670
18 2900 Weslayan, Suite 150
Houston, Tx 77027
19 Telephone: 713-572-2900

20
ATTORNEY AD LITEM FOR RUBY PETERSON:
21
W. Russ Jones
22 State Bar No. 10968050
5177 Richmond Ave, Suite 505
23 Houston, Tx 77056-6775
Telephone: 713-552-1144
24

25

Silverado Appx. 0199
RR Vol. 10
 3

1 CHRONOLOGICAL INDEX

2 Page

3 Preliminary discussions between Court and Counsels-------- 8

4 Mr. Ross explains Ms. Schwager's absence------------------ 14

5 Ms. Young updates Court on Mrs. Peterson's condition------ 15

6 Mr. Jones presents his motions---------------------------- 19

7 Ms. Young presents her motions---------------------------- 33

8 Ms. Pacheco interjects just on their motions-------------- 35

9 Mr. Ross responds----------------------------------------- 37

10 Ms. Pacheco responds-------------------------------------- 53

11 Mr. Ross responds----------------------------------------- 55

12 Mr. Jones responds---------------------------------------- 61

13 Ms. Young responds---------------------------------------- 62

14 Mr. Jones responds---------------------------------------- 63

15 Mr. Ross responds----------------------------------------- 63

16 Ms. Pacheco presents her motions-------------------------- 69

17 Defendant's Exhibit No. 1 admitted------------------------ 73

18 Defendant's Exhibit No. 2 admitted------------------------ 75

19 Defendant's Exhibit No. 3 admitted------------------------ 76

20 Defendant's Exhibit No. 4 admitted------------------------ 77

21 Defendant's Exhibit No. 5 admitted------------------------ 78

22 Defendant's Exhibit No. 6 admitted------------------------ 79

23 Defendant's Exhibit No. 7 admitted------------------------ 80

24 Defendant's Exhibit No. 8 admitted------------------------ 83

25 Mr. Davis presents his motions---------------------------- 87

Silverado Appx. 0200
RR Vol. 10
 4

1 CHRONOLOGICAL INDEX

2 (continued) Page

3 Defendant's Exibit No. A admitted------------------------- 94

4 Defendant's Exibit No. B admitted------------------------- 97

5 Defendant's Exibit No. C admitted------------------------- 101

6 Defendant's Exibit No. D admitted------------------------- 104

7 Ms. Pacheco requests sanctions---------------------------- 105

8 Mr. Davis requests sanctions----------------------------- 106

9 Ms. Young is excused-------------------------------------- 107

10 Mr. Ross responds----------------------------------------- 107

11 Ms. Pacheco responds-------------------------------------- 110

12 Mr. Davis responds---------------------------------------- 111

13 Mr. Ross responds----------------------------------------- 113

14 Court Reporter's Certificate------------------------------ 119

15

16

17

18

19

20

21

22

23

24

25

Silverado Appx. 0201
RR Vol. 10
TAB 37
 · - · FILED

DATA—ENT Stan
Stanart
Stan Stanart
County Clerk
DATA DATE
UP Harris County
PICK UP THIS DATE

Cause No. 427208
PROBATE
PROBATECOURT
COURT11

INTHE
IN THE GUARDIANSHIP
GUARDIANSHIPOOFF § INTHE
IN PROBATECOURT
THEPROBATE COURT
. §
RUBY
RUBY S.PETERSON,
S. PETERSON, § NUMBER
NUMBERONE
ONE(1)OF
(1) OF
§
ANINCAPACITATED
AN INCAPACITATEDPERSON
PERSON § HARRISCOUNTY,TEXAS
HARRISCOUNTY, TEXAS

Cause
CauseN o.22014-40980
No. 014-40980
MACKEY ("MACK") GLEN
MACKEY ("MACK") GLENPETERSON,
PETERSON, § IN THE DISTRICTCCOURT
INTHEDISTRICT OURTOF
OF
Individually
Individually and NextFriend
asNext
and as FriendofRUBY
of RUBY §
PETERSON,
PETERSON, DON
DON LESLIE PETERSON, §
Individually and asNextFriend
andas Next FriendofRUBY
of RUBY §
PETERSON,
PETERSON, andLONNY
and LONNYPETERSON,
PETERSON, §

Plaintiffs
§
Individually
Individually and NextFFriend
asNext
andas riendooffRUBY
RUBY §
PETERSON,
PETERSON, §
Plaintiffs
§
vs.
vs.
§ COUNTY,TEXAS
HARRISCOUNTY,
HARRIS TEXAS
§
CAROL ANNE MANLEY,DAVID
CAROL ANNE MANLEY, DAVID §
PETERSON,
PETERSON, SILVERADO
SILVERADO SENIOR
SENIORLIVING
LIVING §
FACILITY,
FACILITY, TANA
TANAMCMILLON,
MCMILLON,DR.
DR. §
REBECCA
REBECCA CLEARMAN,
CLEARMAN,and
andDR.
DR. CHRIS §
MERKL,
MERKL, §
§
Defendants
§ DISTRICT
129th JUDICIAL DISTRICT

GUARDIAN
ADLITEM AD
&ATTORNEY
GUARDIAN AD LITEM & ATTORNEY AD LITEMS' MOTION TO DISMISS
TODISMISS
MOTION
PLAINTIFFS’CLAIMS BROUGHT INTHEIR PURPORTED CAPACITY ASNEXT
PLAINTIFFS' CLAIMS BROUGHT IN THEIR PURPORTED CAPACITY AS NEXT
FRIENDOFRUBY S.PETERSON FORLACK OFSTANDING AND LACK OF
FRIEND OF RUBY S. PETERSON FOR LACK OF STANDING AND LACK OF
SUBJECT MATTER JURISDICTION
SUBJECT MATTER JURISDICTION
TO THE HONORABLEJUDGE LOYD H.WRIGHT:
TO THE HONORABLE JUDGE LOYD H. WRIGHT:
COMENOW, W.YOUNG&W.RUSSJONES,actionintheirrespective
COME NOW, JILL W. YOUNG & W. RUSS JONES, action in their respective
AdLitemandAttorney
Guardian and thistheir
AdLitemforRubyS.Peterson,
capacities as
as Guardian Ad Litem and Attorney Ad Litem for Ruby S. Peterson, and file this their
MOTION TODISMISS PLAINTIFFS’ CLAIMS BROUGHT INTHEIR PURPORTED
MOTION TO DISMISS PLAINTIFFS' CLAIMS BROUGHT IN THEIR PURPORTED

Silverado Appx. 0202
No. 1-15-586-CV 3320
 CAPACITY
CAPACITY AS
AS N EXT
NEXT FRIEND
FRIEND OF
OFR UBY
RUBY S.P
S. ETERSON
PETERSONFOR
FORLACKOFSTAN
LACKOF GAND
STANDING AND
LACK
LACK O
OFFSUBJECTMAT'I`ER JURISDICTION,
MAI Iblt JURISDICTION, and
and in supportfor
in support forthe
the dismissalofsaid
of said
would
show theCourt
unto the
claims, would show unto the Court the following:
I.Plaintiffs
L PlaintiffsHave
HaveNo toAct
No Authorityto onBehalf
ActonBehalf of RubyS.
S.P eterson
Peterson
1.
1. In 1993, when
In1993, she wasof
when she ofssound
ound mind andffully
mindand ullycompetent
competentto executeaaDurable
toexecute Powerof
DurablePower of
Attomey
Attorneyfor
forb oth
bothher andffor
her financial affairsand orhherermedicalandhhealthcare
medicaland ealthcare
decision-
decision-
making,
making, Ruby S. Peterson,after
Ruby S.Peterson, afterddue
ueconsideration,
consideration,appointed
appointedCarol
CarolA Manleyand
nnManley
Ann and
David
David T royPeterson
Troy Peterson (Defendants
(Defendantsherein) tobeherlawfully
herein)to be her lawfullydesignated
designatedAgents
Agents and
Attomeys-in-Fact.
Attorneys-in-Fact.
2.
2. Fortheensuing
For the ensuing20 years,Ruby
20years, RubyPPeterson
eterson wasmentally
was mentallycompetent
competentto manageher
tomanage herown
own
and
make medical
herown healthcare
and decisions.
financial affairs and make her own medical and healthcare decisions.
3.
3. However,in late2012
However, in late
andearly2013,Ruby
2012 and early2013,
RubyS.Peterson
developed increasing confusion,
S. Peterson developed increasing confusion,
disorientation,
disorientation, andshort
and shorttterm
ermmemory impairment.
4.
4.
Beginninginapproximately Marchof2013, seriesofRubyS.Peterson’s treating
Beginning in approximately March of 2013,aa series of Ruby S. Peterson's treating
physiciansexamined, evaluated andassessed herphysical andmentalhealth, andeach
physicians examined, evaluated and assessed her physical and mental health, and each
concludedthatshehaddeveloped Dementia.
concluded that she had developed Dementia.
5.
5.
TheBoard Specialists andtreating physicians whoEACHDIAGNOSED RUBY
The Board Certified Specialists and treating physicians who EACH DIAGNOSED RUBY
PETERSONWITH DEMENTIA IN2013include:
PETERSON WITH DEMENTIA IN 2013 include:
a. FedericoDancel,M.D.(Board Intemal Medicine specialistand
a. Federico Dancel, M.D. (Board Certified Internal Medicine specialist and
RubyPeterson’s longtime`primary physician whodiagnosed Mrs.
Ruby Peterson's long time primarycare
care physician who diagnosed Mrs.
withdementia
Peterson inapproximately
March2013);
Peterson with dementia in approximately March 2013);
b. SaeedKahkeshani, M.D.(Board whodiagnosed
Neurologist
b. Saeed Kahkeshani, M.D. (Board Certified Neurologist who diagnosed
withdementia
Mrs.Peterson inapproximately
June2013);
Mrs. Peterson with dementia in approximately June 2013);

Silverado Appx. 0203
No. 1-15-586-CV 3321
 c. SamiranK.Das,M.D.(Board
Samiran Certified
K. Das, M.D. (Board Certified Intemistwho
Internist whodiagnosed Ruby
diagnosed Ruby

withdementia
with dementiaat Bayshore
thePasadena Bayshore
atthe Hospital
Hospital Geriatric
Geriatric Psychiatric
Psychiatric

Unit inAugust
Unit in August 2013);
2013);

d.
d. SalahU.
Salah M.D.
U.Qureshi, M.D. (Board
(Board Certified
Certified Geriatric
Geriatric Psychiatrist
Psychiatrist who
who

diagnosed
diagnosed Rubywith
Ruby withdementia
dementia thePasadena
atthe
at Bayshore
Pasadena Bayshore Hospital
Hospital

Geriatric Psychiatric Unit inAugust of 2013);
Unit in

Suleman
e. Suleman
e. Lalani, M.D.
Lalani, M.D. (Board
(Board Internist,
Certified Internist, Board Certified
Board Certified

Geriatric
Geriatric physician
physician andRuby
and Ruby P eterson’s
Peterson's attending
attending physician atthe
physician at the

Silverado
Silverado Senior
Senior Living
Living Facility
Facility inSugar
in Land,Texas
Sugar Land, Texas who diagnosed
whodiagnosed
Rubywithdementia
Ruby inlateAugust
with dementia in late August o early September of2013.);
orr earlySeptember of 2013.);

f. Christopher
Christopher O.Merkl, (Board
M.D.(Board
0. Merkl, M.D. Certified
Certified Geriatric
Geriatric Psychiatrist
Psychiatrist who
who

performed
performed a mental
a mental capacity
capacity examination on Ruby
examination on Ruby Peterson October
onOctober
Peterson on 4,
4,

anddiagnosed
2013and
2013 diagnosed herwith dementia,
her with dementia, severe
severe ccognitive
ognitive impairment,
impairment,

susceptibility
susceptibility manipulation,
tomanipulation,
to and lackof
andaa lack ofmental capacity
mental capacity tomanage
to manageher
her

financial other a
or other
financial or ff`airs
affairs inOctober
in of2013).
October of 2013).

6.
6. Despite
Despite knowledge
knowledge oftheabove-findings
of the above-findings regarding their m
regarding their other’s
mother's diminished
diminished mental
mental

capacity
capacity andsusceptibility to manipulation,
and susceptibility to manipulation, Plaintiffs orchestrated
Plaintiffs orchestrated meeting
aa meeting with Ruby
with Ruby

Peterson
Peterson onNovember
on 15,22013,
November 15, without
013,without noticeto
notice herlawfully designated
toher agents
designated agents and
and

attorneys-in-fact,
attorneys-in-fact, CarolAnn
Carol Ann Manley
Manley a ndDavid
and David T Peterson, andmanipulated
royPeterson,
Troy and manipulated Ruby
Ruby

Peterson
Peterson into signing
intosigning Revocation
aa purported Revocation ofPrior
of Durable
Prior Durable Power ofAttomey
Powerof andaa
Attorney and

purported Statutory
purported Statutory Durable
Durable Power ofAttorney
Powerof Attorney in favor o
infavor offPlaintiff`
Plaintiff Donny Leslie
Donny Leslie

Peterson
Peterson with
with p romises
promises that with
that thenew
with the newdocuments,
documents, Plaintiffs
Plaintiffs could
could move Mrs.
move Mrs. Peterson
Peterson
the
ofthe Silverado
outof
out Silverado Senior
Senior Living
Living Facility
Facility secured Memory
(asecured
(a Memory Care
Care Unit).

Silverado Appx. 0204
No. 1-15-586-CV 3322
 II.
II. JUDICIAL
JUDICIAL ADMISSION
ADMISSIONOF
OFM ENTAL
MENTALINCAPACITY
INCAPACITYTO
TOC ONTRACT
CONTRACT
7.
7. Less
Less tthan
hanthirty
thirty(30)
(30)ddays
aysaftersecuring
securingthe newdocuments,
thenew Plaintiffsinitiated
documents,Plaintiffs initiatedthis
this

guardianshipproceeding
proceedingby
by filingtheir
their OriginalPetition
PetitionforAppointment
for Appointmentof
of Temporary
and
and P ermanent
Permanent Guardianof
ofR S.
uby
Ruby Inconnection
S. Peterson. Inconnection therewith, PlaintiffsDonny
Donny
Leslie
LeslieP eterson
Peterson and
and MackeyGlen
GlenPeterson sworeuunder
Petersonswore nderooath
aththatthey
that theyhadreadthe
had read the

Plainttffs' Original
OriginalPetition oAppoint
Petitiontto Appoint TemporaryandPermanent
and PermanentGuardian
Guardianoof
fthe
the
Person
Person aand
ndEstate
EstateooffRuby
RubySS..Peterson
PetersonAND
ANDTHAT
THATEEACH
ACHOF THEFACTUAL
OFTHE FACTUAL
STATEMENTS
STATEMENTSCONTAINED
CONTAINEDTTHEREIN
HEREINWERE(A)WITHIN
WERE (A) WITHIN THEIR
PERSONAL
PERSONAL K NOWLEDGE;
KNOWLEDGE; AND(2)WERETRUEANDCORRECT.
AND (2) WERE TRUE AND CORRECT.
8.
8. InParagraph
In Paragraph 113
3oftheir
of their OriginalPetition,
Petition, PlaintiffDonny
DonnyLeslie Petersonaand
LesliePeterson ndMackey
Mackey
their
Glen
Glen Peterson sworetthat
Peterson swore hattthe
hefollowing
followingfacts
factsw erewithin
were within theirpersonal
personalknowledge
knowledgeand
and
were true and
were true andcorrect:
correct:
also topetitioners
appearsto
"It also appears petitionersthat
that becauseofthe
proposed
of the proposedwward's
ard's mental
condition,
condition,she
sheiissunabletoprotect
to protectherselformake
herselfor makedecisions
decisionsthat arein
thatare inthe
the
bestinterest ofhererpersonaland
best interest ofh andffmancial
inancial
affairs.
affairs.Still,
Still,believing
believingin
inthe
the
petitioners
foregoing, petitionersaccepted
theproposedward's signed of
owerofattorney
accepted the proposed ward's signedppower attorneyon
on
ll-15-13,
11-15-13,not
not contradictorytotheir
belief
to their beliefintheir
in theirmother's
mother'smental
mental
limitations, butperhapsin lucidmomentthat
limitations, but perhaps inaa lucidmoment
sheunderstood whatshe was
that she understood what shewas
signing.”
signing."

9.
9.
Theabove statements
The above statementsare
considered TRUE JUDICIAL ADMISSIONS under Texas
are considered TRUE JUDICIAL ADMISSIONS under Texas
law.A truejudicialadmission is formalwaiver ofproofusually FOUND IN
law. A true judicial admission is aa formal waiver of proof usually FOUND IN
PLEADINGS thestipulations oftheparties.Ajudicial is
PLEADINGS or
or the stipulations of the parties. A judicial admission is CONCLUSIVE

Silverado Appx. 0205
No. 1-15-586-CV 3323
 UPON
UPON THE
THEPARTY
PARTYMAKING
MAKINGIT,
IT.AND
ANDIT
ITRELIEVESTHEOPPOSING
RELIEVESTHEOPPOSING
PARTY'S
PARTY'S BURDENOFPROVING
BURDENOFPROVINGTHE
THEA DMITTED
ADMITTEDFACT, ANDBARS
FACT.ANDBARSTHE
THE
ADMITTING
ADMITTING PARTY
PARTYFROM
FROMDISPUTING IT. SeeMendoza
DISPUTINGIT.See v.Fidelity
Mendozav. Fidelity Guaranty
Ins.
Ins. U nderwriters,
Underwriters, 606
606 S .W.2d
S.W.2d 692,
692,694
694(Tex. 1980),citing
(Tex. 1980),citingGevinson v.M
Gevinsonv. anhattan
Manhattan

Construction C0.ofOklahoma,
Co. of Oklahoma,449S.W.2d
449 S.W.2d458,467(Tex.1969);
458, 467 (Tex. 1969);M cCormick
McCormickandRay,
and Ray,
Texas
Texas L awofEvidence
Law § 1127(2ded.1956).
of Evidence§1127 (2d ed. 1956).

10.
10. Thus,
Thus, PLAINTIFFS
PLAINTIFFSDONNY
DONNYLESLIE
LESLIEPETERSON
PETERSONAND
ANDMACKEY
MACKEYGLEN
GLEN
PETERSON
PETERSON HAVE
HAVECONCLUSIVELY
CONCLUSIVELYADMITTEDTHAT,byNovember
ADMITTEDTHAT, 15,22013:
by November15, 013:
(a)BECAUSE
(a) BECAUSE OF
OF THEPROPOSED 'SMENTAL
PROPOSED WARD'S MENTALCONDITION,
CONDITION. SHEIS
IS
UNABLE
UNABLE TO
TOP ROTECT
PROTECTHERSELF
HERSELFOR
ORM AKE
MAKEDECISIONS
DECISIONS THAT AREIN
TARE INTHE
THE
BESTINTEREST OF HER PERSONALANDFINANCIAL
BEST INTEREST OFHERPERSONAL AND FINANCIALAFFAIRS;
AFFAIRS;aand
nd(b)
(b)
TIL4
TSTILL
THAT STILLBELIEVINGINTHE
BELIEVING THEFOREGOING,
FOREGOING,PETITIONERS
PETITIONERSACCEPTED
ACCEPTED
THEPROPOSED SIGNED
THE PROPOSED WARD'S SIGNEDPOWER
POWEROFATTORNEY
OF ATTORNEYON
ON1 NOT
1-15-13,
11-15-13, NOT
CONTRADICTORYTOTHEIR BELIEFIN THEIRMOTHERMENTAL
CONTRADICTORY TO THEIR BELIEFINTHEIRMOTHER'S MENTAL

LIMITATIONS.

11.
11.
Theabove admissions arenot
The above judicial admissionsare
onlyconclusive againstPlaintiffs herein,
not only conclusive against Plaintiffs herein,
butTHEY ALSO RELIEVE THE OPPOSING PARTIES'BURDEN
but THEY ALSO RELIEVE THE OPPOSING PARTIES' BURDENOF
OF
PROVINGTHE ADMITTED FACT, AND BARS THE PLAINTIFFS
PROVING THE ADMITTED FACT, AND BARS THE PLAINTIFFS
FROMDISPUTING IT.Id
FROM DISPUTING IT. Id.

12. Basedontheabove judicialadmissions, itisconclusively thatRuby
12. Based on the above judicial admissions, it is conclusively established that Ruby
S.Peterson lacked therequisite mentalcapacity toprotect herself make
S. Peterson lacked the requisite mental capacity to protect herselfor
or make

Silverado Appx. 0206
No. 1-15-586-CV 3324
 decisions
decisions that are inthebest
that are in the bestiinterest
nterestofherpersonal or financialaffairs
of her personalor affairsoon
n
November
November 15,
15, 22013,
013,which
whichw ouldiinclude,
would nclude, without
withoutlimitation,
limitation,thecapacity
the capacityto
to

contract, andPlaintiffs
contract, arelegally
and Plaintiffs are legally barredfrom disputingit.
fromdisputing it.

13.
13. Therefore,
Therefore,thepurported
the purportedbutdenied
but deniedR evocation
RevocationofPrior DurablePowerofof
of Prior DurablePower
Attorney
Attorney dated
datedNovember
November 15,
15, 2013isnull,
is null,void
voidand
ando
offn
noolegaleffect.
effect.
Likewise,
Likewise,the butdenied
the purportedbut StatutoryDurable
deniedStatutory Powerof
DurablePower ofAttorney
Attorneydated
dated

15, 2013
November 15, 2013 isnull,
is null,void
void andof Asaaresult,
no legal effect.' As
ofno result,the
theoonly
nly
persons with
persons withlawful
lawfulauthority
authoritytoact onbehalf
to acton behalfofRuby
of RubyS.Peterson’s
S. Peterson'sestate rtoto
estateoor

make m
make edical
medical orhealthcare
or healthcaredecisionsonherbehalf
decisionson areCarol
her behalfare AnnManley
CarolAnn Manleyand
and
David
David T royPeterson,
Troy Peterson,acting
actingiin
ntheir
theirccapacity
apacity asRuby
as RubyS.Peterson’s
S. Peterson'sduly
duly
appointed
appointed aand
nddesignated gentsunder
designatedaagents Mrs. Peterson's1993
underMrs.Peterson’s 1993Durable
DurablePPower
oweroof
f
Attorney.
Attorney.

III.
III. P LAINTIFFS’
PLAINTIFFS' LACK OFSTANDING
LACK OF & LACKOF
STANDING&LACK OFSUBJECT
SUBJECTMATTER
MATTER
JURISDICTION
JURISDICTION
14.
14. Lacking legalauthority
any legal authoritytorepresent
Lacking any
RubyS. Peterson,an
to represent RubyS.Peterson,
Incapacitated
an Incapacitated
Person,Plaintiffs Donny LesliePeterson, Mackey GlenPeterson andLonny
Person, Plaintiffs Donny Leslie Peterson, Mackey Glen Peterson and Lonny
Petersonlackstandingobring
Peterson lack standingtto bringor
maintain thislawsuit inthepurported but
or maintain this lawsuit in the purported but
deniedcapacity
denied capacityas
Next ofRubyS.Peterson.
as Next Friend of Ruby S. Peterson.

Indeed, RubyPetersonwasmanipulated intosigningitbased promises thatby
Indeed, Ruby Petersonwas manipulatedwould basedon
sodoing,Plaintiffs Donny Peterson andMack Petersoninto signing
m ove hiterout on promises that by
oftheSilverado
so doing, medical
Plaintiffsand
facility——a Donny Peterson
healthcare and Mack
decision Peterson
expressly would move her durable
denied out of the Silverado
toa statutory powerof
facility—a medical and healthcare decision expressly denied to a statutory durable power of
attomey.
attorney.

Silverado Appx. 0207
No. 1-15-586-CV 3325
 15.
15. isan
Standing is integral
anintegral component of, andisimplicit
component in,the
and is implicit in, concept ofsubject
the concept of subject
.
matter jurisdiction. Ass'n o
Tex.Ass'n
jurisdiction. Tex. offBus. v. Tex.
Bus. v. Air Control
Tex.Air Control Bd, 852 S.W.2d
852S.W.2d 440,
440,

443(Tex.
443 (Tex.1993).
1993). Subject
Subject matter
matter jurisdiction isisessential to theauthority
tothe authority of
of a
C.
decide
todecide
court to a case. Id.Whether
acase. a trial
Id. Whether a trial c ourthhas
court assubject matter jurisdiction
subject matter jurisdiction is
is

questionof
aa question oflawsubject denovo
law subject ttoo de novo review.
review. See
See Mayhew v. TownofSunnyvale,
v. Town of Sunnyvale,
964S.W.2d
964 922,928(Tex.1998).
S.W.2d 922, 928 (Tex. 1998).

16.
16. Ifaa party
If failsttooestablish
party fails standing,
establish standing, thetrial must d
the trial court must ismiss
dismiss thesuit.
the suit. IInnre
re

344S.W.3d
N.L.D., 344 S.W.3d 3 3,3377(Tex.
33, (Tex. App.--Texarkana
App.--Texarkana 2011, no pet.).See,
2011, no alsoIn
pet.). See, also In

ReMcDaniel, 01-11-00711-CV
Re McDaniel, 01-11-00711-CV (Tex.App.--Houston
(Tex. [lstDist.]
App.--Houston [1st Dist.] original

10-11-2011).
proceeding, 10-11-2011). The trialcourt
Thetrial courtcan consider
canconsider evidence
evidence standing
onthe standing
on

issuewhen
issue evidence
whenevidence isnecessary to
is determine jurisdictional
to determine jurisdictional facts.
facts. Bland
Bland IISD
SDv.v.
Blue, 34S.W.3d
Blue, 34 547,5555
S.W.3d 547, 55(Tex.
(Tex. 2000). evidence
2000). Here, no further evidence isnecessary
is necessary
because Plaintiffs
because Plaintiffs havejjudicially
have udicially admitted
admitted thatRuby
that RubyS. Peterson lacked
S.Peterson lacked m ental
mental
capacity
capacity tocontract on November
to contract on November 15,15,22013 intheir
013in Original
their Original Petition,
Petition,

Defendants andtheProposed
Defendants and are relieved
Wardare
the Proposed Ward the burden o
oftheburden
relieved of offproving
proving llack
ackof
of

capacity
capacity toexecute
to theNovember
execute the 15,22013
November 15, documents,
013documents, andPlaintiffs are
and barred
are barred

disputing
from disputing herlack
her ofcapacity.
lack of capacity.

17.
17. The
The petitioner
petitioner must the facts e
showthefacts
must show stablishing
establishing standing
standing existed att thetime
existed a the time suit
suit

inthetrial
wasfiled in
was the trial c
court. M.D. A
ourt.MD. nderson
Anderson Cancer Ctr. v. 52S.W.3d
v. Novak, 52 S.W.3d

704,708
704, 708(Tex. Inre
2001);In
(Tex.2001); re Vogel, 261 S.W.3d 9
Vogel, 261S.W.3d 917, 921(Tex.
17,921 (Tex. App.--Houston
App.--Houston
[14thDist.]
[14th Dist.]2008, orig.pproceeding).
2008,orig. roceeding). Here, Petitioners/Plaintiffs
Here,Petitioners/Plaintiffs havejjudicially
have udicially
admitted
admitted that capacity didNOT
thatcapacity did NOT exist. lfthepetitioner
exist. If failstomeet
the petitioner fails to meet tthis
hisburden,
burden,

Silverado Appx. 0208
No. 1-15-586-CV 3326
 thetrial must dismiss
courtmust
the trial court dismiss tthe suit. In re NL.D.,344S.W.3d
hesuit.In at 37.
N.L.D., 344 S.W.3d at 37.

18.
18. SincePetitioners/Plaintiffs
Since Petitioners/Plaintiffsarebarred
are establishing
barredfrom establishing that heyhad
that tthey had standing to
to

represent RubyS.
represent Ruby S.Peterson thetime
atthe
Peterson at suitwas
time suit thenthey
wasfiled, then lackstanding
they lack standing to
to

bringsuit
bring suiton
ontheProposed
the Proposed Ward’s andthe
Ward's behalf, and dismiss
mustdismiss
the Court must thesuit
the suit
forlack
for ofsubject
lack of matter jurisdiction.
subject matter In re NL.D.,
jurisdiction. In 344S.W.3d
N.L.D., 344 S.W.3d 37.
at37.
at

WHEREFORE,
WHEREFORE, PREMISES
PREMISES CONSIDERED,
CONSIDERED, Movants Jill W. Young a
Movants JillW.Young ndW.
and W.

RussJones,
Russ Guardian
Jones,Guardian AdLitem
Ad Litem and
and Attorney Ad Litem, respectively,
Attorney AdLitem, forRuby
respectively, for S.
Ruby S.

Peterson, respectfully
Peterson, pray that,
respectfully pray that, a fternnotice
after oticeaand oral h
ndoral earing,
hearing, theCourt GRANT tthis
the Court GRANT his
Motion andDISMISS
Motion and DISMISS thePlaintiff`s’ claims
the Plaintiffs' claims brought
brought their purported butdenied
intheir
in but denied
capacity
capacity asNext
as Friend
Next Friend ofRuby
of S.Peterson
Ruby S. forlack
Peterson for ofstanding
lack of andlack
standing and lack ofsubject
of subject

matter
matter jurisdiction; andthat
jurisdiction; and thatthe Court
theCourt allcosts
taxall
tax costs against
against forwhich+
Plaintiffs for which
execution
execution issueififnot
should issue timely
nottimely paid;and
paid; andforsuch otherand
for such other further
andfurther atlaw
relief, at law or
or
inequity,
in towhich
equity, to Movants
which Movants may themselves
showthemselves
mayshow justly entitled
justly entitled and for which they
andforwl1ich they

shall induty
shallin boundforever
duty bound foreverpray.

submitted,
Respectfully submitted,
UNDERWOOD,
UNDERWOOD, JONES,
JONES, S CHERRER
SCHERRER
MALOUF,P.L.L.C.
& MALOUF,

W. RUSS
W. RUSS JONES
By:
JONES
TBA ##10968050
TBA 10968050
Richmond A
5177Richmond
5177 Avenue, Suite505
venue,Suite 505
Houston,Texas77056
Houston, Texas 77056
Telephone: (713)552-1144
Telephone: (713) 552-1144
Facsimile:
Facsimile: (713)781-4448
(713) 781-44482

Silverado Appx. 0209
No. 1-15-586-CV 3327
 rjones@ujsmlaw.com

0 ADLITEM RUBY
ATTORNEY AD LITEM FOR RUBY
S.PETERSON,
S. ANINCAPACITATED
PETERSON, AN INCAPACITATED
PERSON
PERSON

· MACINTYRE,
MACINTYRE, MCCULLOCH,
MCCULLOCH,
STANFIELD
STANFIELD &YOUNG,
& L.L.P.
YOUNG, L.L.P.

0 By:
W.YOUNG
JILL W. YOUNG
0 T.B.A.
T.B.A. #00797670
#00797670
2900
2900 150
Weslayan, Suite 150
Houston,TX
Houston, 77027
TX 77027
Telephone:
Telephone: (713)5572-2900
(713) 72-2900
Facsimile:(713)
Facsimile: (713)572-2902
572-2902
GUARDIAN
GUARDIAN ADLITEM
AD LITEM FOR
FOR RUBY S.
RUBY S.
PETERSON, ANINCAPACITATED
PETERSON, AN INCAPACITATED
PERSON
PERSON
CERTIFICATE
CERTIFICATE OFSERVICE
OF SERVICE

I hereby c
Ihereby ertify
certify tthat true and
hata true and correct copy oftheforegoing
correct copy of the foregoing instrument
instrument hasbeen
has been
forwarded
forwarded to:
to:
SarahP
Sarah atelP
Patel acheco
Pacheco Candice
Candice Schwager
Schwager
Kathleen
Kathleen Tanner
Tanner Beduze
Beduze 1417Ramada
1417 Ramada Drive
Drive
Crain,Caton
Crain, Caton& &James, P.C.
James, P.C. Houston, Texas 77062
Texas 77062
1401McKinney,
1401 McKirmey, Suite1700
Suite 1700
Houston,Texas77010
Houston, Texas 77010
Philip
Philip M.Ross
M. Ross Josh K.Davis
Josh K. Davis
1006Holbrook
1006 Holbrook Road
Road Lewis,
Lewis, Brisbois,
Brisbois, Bisgaard &Smith, L.L.P.
Bisgaard & L.L.P.
SanAntonio,
San Antonio, Texas 78218
Texas 78218 Weslayan
Weslayan Tower, Suite1400
Tower, Suite 1400
24Greenway
24 Greenway Plaza
Plaza
Byfacsimile
By facsimile and/or on the
and/or e-file on the 17thdayofOctober,
day of October, 2014.
2014.

W.RUSS
W. RUSS JONES
JONES

Silverado Appx. 0210
No. 1-15-586-CV 3328
TAB 38
 FILED
10/27/2014 9:02:08 PM
Stan Stanart
County Clerk
DATA-ENTRY Harris County
PICK
PICKUP
UP THISDATE
DATE
PROBATE
NO.427,208
NO. 427,208 coulir1
IN RE: GUARDIANSHIPOF
OF §§ IN THE PROBATECOURT
INTHEPROBATE COURT

RUBYPETERSON,
RUBYPETERSON,
§§ NUMBERONE
NUMBER ONE

PROPOSED §§ HARRIS TEXAS
PROPOSEDWARD
WARD HARRIS COUNTY, TEXAS

CAUSENO.2014-40980
CAUSE NO. 2014-40980

MACKEY ("MACK")GLENPETERSON,§ INTHEDISTRICTCOURT
MACKEY ("MACK") GLEN PETERSON, § IN THE DISTRICT COURT
PETERSON,Individually,Next §
PETERSON, Individually,
DON Next Friend
LESLIE §
ofRUBY PETERSON,
of RUBY PETERSON, DON LESLIE §
PETERSON, andasNext
PETERSON, Individually and and
as Next §
ofRUBYPETERSON,
Friend, of RUBY PETERSON, andand
PETERSON, §
LONNY
LONNY PETERSON, Individually and
of RUBYS.PETERSON, §
Next
Next Friend of RUBY S. PETERSON,
§
Plaintiffs,
V. § COUNT TEXAS
HARRIS
V. HARRIS COUNTY, TEXAS
CAROLANNE §
CAROLPETERSON,
DAVID ANNE MANLEY,
SILVERADO §
DAVID PETERSON,
SENIOR SILVERADO
LIVING,INC.,d/b/a §
SENIOR LIVING, INC., d/b/a Silverado
Living §
Senior Living —
— Sugar Land,
Defendants. § DISTRICT
129THJUDICIAL
Defendants. 129TH JUDICIAL DISTRICT
RESPONSEINOPPOSITION TODEFENDANTS' MOTIONTODISMISS
PURSUANT
RESPONSE IN OPPOSITION TOTRCP
TO RULE91MOTION TO DISMISS
DEFENDANTS'
PURSUANT TO TRCP RULE 91a
WRIGHT:
JUDGELLOYD
TOTHEHONORABLE
TO THE HONORABLE JUDGE LLOYD WRIGHT:
DonPeterson,LonnyPetersonandMackPeterson thisResponseto in
Don Peterson, Lonny Peterson and Mack Peterson file this Response to in

1
1

Silverado Appx. 0211
No. 1-15-586-CV 3347
 Rule
toDismiss toTRCP
Motion andwould
91a,
toDefendants‘
Opposition to Defendants' Motion to Dismiss Pursuant to TRCP Rule 91a, and would
0 follows:
A
showthe
show the Courtas
as follows:
INTRODUCTION
INTRODUCTION
i 0
U1 11 filed 25,2014.
onJuly
thissuit
Plaintiffs filed this suit on July 25, 2014.
andentered anappearance onJuly28,2014.
22 Defendants waived service and enteredan
Defendants appearance on July 28, 2014.
theirmotionto onSeptember 25,2014.
33 Defendants
Defendants filed their motion to dismiss on September 25, 2014.
CO
UNDISPUTED MATERIAL FACTS
UNDISPUTED MATERIAL FACTS
is aninvoluntary residentof Silverado SeniorLiving,
4 Ruby ("Ruby")
Peterson ("Ruby") isan
RubyPeterson involuntary resident of Silverado Senior Living,
4
Silverado SeniorLiving SugarLand("Silverado").
Inc.d/b/a
Inc. d/b/a Silverado Senior Living— - Sugar Land ("Silverado").
durablepowerofattorneyappointing CarolManley
5 1993,R
In 1993,
In ubyexecuted
Ruby executedaa durable power of attorney appointing Carol Manley
5
2013,Ruby
("Carol")aand
("Carol") ndDavid Peterson("David").However,on November15,
David Peterson (''David"). However, on November 15, 2013, Ruby
appointing
Revocation ofPowerofAttorneyandnewpowersofattorney
executedaa Revocation of Power of Attorney and new powers of attorney appointing

her DonandMackPetersonasheragents.
hersons
sons Don and Mack Peterson as her agents.
Dr. Christopher
6 There are conflictingdiagnosesregardingRuby`scapacity.
There are conflicting diagnoses regarding Ruby's capacity. Dr. Christopher
6
dementia, althoughhe later
Merkl, M.D.hasreportedthatRubyhas severe
Merkl, M.D. has reported that Ruby has severe dementia, although he later testified
M.D.reportedthatRuby
that she has mildto moderatedementia.Dr.MarkKunik,
that she has mild to moderate dementia. Dr. Mark Kunik, M.D. reported that Ruby
Dr.JohnTennison, M.D.
has mild to moderatedementiaandthatshelackscapacity.
has mild to moderate dementia and that she lacks capacity. Dr. John Tennison, M.D.
butto a reasonabledegreeof
reportedthatRubyhas mildto moderatedementia,
reported that Ruby has mild to moderate dementia, but to a reasonable degree of
of attorneyon
medical sheprobablyhadcapacityto executenewpowers
medical certainty, she probably had capacity to execute new powers of attorney on
15,2013.
November
November 15, 2013.
2

Silverado Appx. 0212
No. 1-15-586-CV 3348
 RULE 1aSTANDARD
RULE991a STANDARD

77 TRCPRule91a
TRCPRule 91a allowsaapartyto movethe
party tomove
groundless cause
the courttoto dismissa a groundless cause

The rule
of action. The
of in part:
rule provides inpart:
dismiss causeofaction thegroundsthatithas
[A]
[A]party may moveto
partymaymove to dismissaacause of actionon
on the grounds that it has

basisinlaw
nobasis
no orfact.
in lawor fact. A
ofaction has obasis
cause of action hasnno
A cause
inlawifthe
basis in law if the

allegations,taken
allegations, astrue,
takenas
togetherwith inferencesreasonablydrawn
true, together with inferences reasonably drawn
entitle theclaimant tothereliefsought. Acause of
from them,do
fromthem, donot
not entitle the claimant to the relief sought. A cause of
actionhas nobasisin
action hasno
factif reasonable
basis in fact ifno
personcouldbelievethefacts
no reasonable person could believe the facts
pleaded.
pleaded.
TRCPRule 9la.
TRCP Rule 91a.
ARGUMENT
ARGUMENT
A. Plaintiffs inthiscase.
havestanding
A. Plaintiffs have standing in this case.
8 havestandingtopursueclaimsonRuby'sbehalf,andthiscaseshould
Plaintiffs
8 Plaintiffs have standing to pursue claims on Ruby's behalf, and this case should
not be dismissedfor wantof subjectmatterjurisdiction.Plaintiffsbringsuit on
not be dismissed for want of subject matter jurisdiction. Plaintiffs bring suit on
Ruby'sbehalfas nextfriendandattomeys-in-fact. Claimsbroughton Ruby'sbehalf
Ruby's behalf as next friend and attorneys-in-fact. Claims brought on Ruby's behalf
forlackofstanding.
shouldnotbe dismissed
should not be dismissed for lack of standing.
9 AlthoughRuby executeda durablepowerof attorney,whichincludeda
9 Although Ruby executed a durable power of attorney, which included a
medicalpowerof attorney, in 1993,thatpowerof attorneywasexpressly revokedon
medical power of attorney, in 1993, that power of attorney was expressly revoked on
November 15,2013,andtherevocation wasrecordedinthe publicrecordsof
November 15, 2013, and the revocation was recorded in the official public records of
Texas.3
HarrisCounty,
Harris County, Texas.

3

Silverado Appx. 0213
No. 1-15-586-CV 3349
 Thereis
10 There
10 ubyhad
hetherRRuby
evidencewwhether
is conflictingevidence to executea acontract
had capacitytoexecute contract

0 in November2013.
inNovember the T
However, the
2013. However, exas
Texas Healthand
Health Safety Code,Section 166.155
and Safety Code, Section 166.155

provides ofaamedical
or revocationof
providesffor
of attorneyasasfollows:
power ofattorney
medicalpower follows:
(a) Amedicalpowerooff attorneyis
Sec. 166.155. REVOCATION.
Sec.166.155. REVOCATION. (a) A medicalpower attorney is
revoked by:
revoked by:
(1) oralor written notification
(1) oral or notificationat
atany
timeby the to the
any time by the principal to the
CO
agent raalicensed
agentoor r certified
licensedoor
health residential
certified healthor
careprovideror
or residential care provider or
by otheract evidencing intentto revokethe power,
any other act evidencingaa specific intent to revoke the power,
by any
withoutregard to whetherthe principalis competentor the
without regard to whether the principal is competent or the
mentalstate.
principal's
principal's mental state.
of medicalpowerof attorneysignedby Rubywas
therevocation
11 Therefore,
11 Therefore, the revocation of medical power of attorney signed by Ruby was
effective"withoutregardto whetherthe principalis competentor the principal's
effective "without regard to whether the principal is competent or the principal's
Rubydoesnothaveagentspursuantto anymedicalpowerof
mentalstate.Presently,
mental state. Presently, Ruby does not have agents pursuant to any medical power of
attorney.
attorney.
factquestionsremainwhetherRuby'sexecutionof newdurable
12 Additionally,
12 Additionally, fact questions remain whether Ruby's execution of new durable
powersof attorneyonNovember 15,2013waseffective.Construing contested facts
powers of attorney on November 15, 2013 was effective. Construing contested facts
in favorofthe Plaintiffsindicatesthattherevocationof the 1993powerof attorney
in favor of the Plaintiffs indicates that the revocation of the 1993 power of attorney
on November15,2013was andtheexecutionof newpowersof attorney
on November 15, 2013 was effective, and the execution of new powers of attorney
werealsoeffective.
were also effective.
prerequisite
13 Standingis a constitutional to suit. v
13 Standing is a constitutional prerequisite to filing suit. Heckman v Williamson

4

Silverado Appx. 0214
No. 1-15-586-CV 3350
 S.W.3d137,150(Tex.2012). haveallegedthattheypersonally
Ciy., 369
369 S.W.3d 137, 150 (Tex. 2012). Plaintiffs have alleged that they personally
wrongfulactsand/or
resultof Defendants'
harm andinjury
sufferedharmand asaaproximate
injuryas proximate result of Defendants' wrongful acts and/or

omissions. T
omissions. To wit, Defendants
o wit, retaliatedagainstDonandhis wife,Mackandhis
Defendants retaliated against Don and his wife, Mack and his

wife,and Lonnyas well as Rubyfor revokingthe 1993powerof attorneyon
wife, and Lonny as well as Ruby for revoking the 1993 power of attorney on
allegeand would provethat Rubyhad a rightto
November115,
November 2013. Plaintiffs allege and wouldprove
5,2013. that Ruby had a right to

her priormedical
revokeherprior
revoke owerofofattomey
medicalppower
pursuantto theTexasHealthandSafety
attorney pursuant to the Texas Health and Safety
Code, Section 166.155,andDefendants' retaliation waswrongful.In fact,
Code, Section 166.155, and Defendants' retaliation was wrongful. In fact,
Defendants‘ retaliation asknowing, intentionalandmalicious becausetheyknewor
Defendants' retaliationwwas knowing, intentional and malicious because they knew or
knownthattheyhad noauthority topreventthePlaintiffsfromvisiting
should have known that they hadno
shouldhave authority to prevent the Plaintiffs from visiting
each otherandthatdenyingvisitation wouldcauseirreparable harmandinjuryto the
each other and that denying visitation would cause irreparable harm and injury to the
Plaintiffs.
Plaintiffs.
Therefore,Caroland Davidwerewithoutauthorityto preventRubyfrom
14 Therefore, Carol and David were without authority to prevent Ruby from
Silverado becausetheirpowerof attorney wasrevoked on November 15,
leaving
leaving Silverado because their power of attorney was revoked on November 15,
2013,andSilverado wrongfully deniedDon,MackandRubyaccessto eachotherfor
2013, and Silverado wrongfully denied Don, Mack and Ruby access to each other for
haveproperly
thepurposeof movingheroutofSilverado.Plaintiffssubmitthatthey
the purpose of moving her out of Silverado. Plaintiffs submit that they have properly
pleadedfacts,whichdemonstrate thattheyhavestandingto bringclaimsonbehalfof
pleaded facts, which demonstrate that they have standing to bring claims on behalf of
Ruby.
Ruby.
standingto
15 Becauseit is clearfromthe Plaintiffs'pleadingsthat theyhave
15 Because it is clear from the Plaintiffs' pleadings that they have standing to
o fRuby,t heCourt h asjurisdictionto heartheir claims, andthe
bringclaimsonbehalf
bring claims on behalf of Ruby, the Court has jurisdiction to hear their claims, and the
Courtlacksdiscretion to dismissPlaintiffs'suitagainsttheDefendants initsentirety.
Court lacks discretion to dismiss Plaintiffs' suit against the Defendants in its entirety.
5
5

Silverado Appx. 0215
No. 1-15-586-CV 3351
 at150.
369S.W.3d
Heckman, 369 S.W.3d at 150.
Defendants
Defendants
Ruby,Don,MackandLonny.
toRuby, Don, Mack and Lonny.
areliable to
are
B.
B.
t heyknew or haveknownthatthe 1993
liable because
16 Defendants
Defendants are liable because they knew or should have known that the 1993
are
continued reliance
16 andtheir
15,2013,
of was onNovember
power of attorney was revoked on November 15, 2013, and their continued reliance
noticeoftherevocation, which
unreasonable after they had express
was arbitrary
wasarbitrary andunreasonable after they had express notice of the revocation, which
and
Public Records. Texas HealthandSafetyCode,
Harris County
the Harris
wasrecordediinn the
was recorded County Public Records. Texas Health and Safety Code,

166.155
Section166.155
Section
statesC odeprovides in relevant
17 Specifically,
Specifically, the Texas E
the Texas Estates Code provides in relevant part:
faithon
thirdpartywhoreliesin good
17
If a durable power ofattorney
of attorney i
iss used,aa third
used, party who relies in good faith on
lf a durablepower of
performed in the scope of the power
the acts attorneyin fact
in fact or agent
oragent performed in the scope of the power of
the actsofof an
anattorney
not liable
isnot theprincipal.
to the principal.
attorneyis
attorney liable to
751.056.
Section
Texas
Texas Estates Code
Estates Code Section 751.056.
thatDefendants didnotrelyon theactsof
Plaintiffsaallege
Plaintiffs and would
llegeand would prove
prove that Defendants did not rely on the acts of
18 knewor
15,2013becauseDefendants
18
in good faith after November
Carol and
Caroland David
David in good faith after November 15, 2013 because Defendants knew or
authority t o actafter the 1993power
andCarol
Davidand lacked
Carollacked
should have known
shouldhave known thatthatDavid authority to act after the 1993 power

Therefore, Defendant areliabletoRuby.
of attorney w
ofattorney asrevoked.
was revoked. Therefore, Defendant are liable to Ruby.
provides:
H ealth and Safety Code,Section166.155
Texas
theTexas Health and Safety Code, Section 166.155 provides:
19 Additionally,
19
Additionally, the

(a) A medical power ofattorneyis revokedby:
REVOCATION.
REVOCATION. (a) A medical power of attorney is revoked by:
notification atany timeby the principalto the
anytime
(1) oralororwritten notification
(1)oral at by the principal to the
certified healthor residential careprovideror
orresidential care
agent or
agentora a licensed
licensed or
or certified health provider or

6
6

Silverado Appx. 0216
No. 1-15-586-CV 3352
 by any other
by any otheract specificintent
evidencingaaspecific
actevidencing
revokethe power,
intenttoto revoke thepower,

without regardtotowhetherthe
without is competentororthe
whether the principal iscompetent the

principal'smental
mentalstate.
state.
20 Plaintiffsallege
would
allegeand
reliance Carol
thatDefendants'
prove that Defendants' relianceon
and wouldprove on Carol
20
nderthe1993
uthorityuunder
aauthority of attomey not
David'sppurported
and David's
and urported power of attorneywas
the 1993power was not
faithafterthat powerof revokedon November15,
in
in good
good faith after that power of attomey
attorneywas
was revoked on November 15,
2013because therevocation asrecorded in thepublicrecordsof Harris
2013 because the revocationwwas recorded in the public records of Harris
County,Texas,andDefendants hadexpressnoticeofthatfact. Therefore,
County, Texas, and Defendants had express notice of that fact. Therefore,
Silverado
Silveradocan
be held liableto Rubyfor all its wrongfulacts and/or
can be held liable to Ruby for all its wrongful acts and/or
whichwereperformed
omissions, inbadfaithrelianceon the1993power
omissions, which were performed in bad faith reliance on the 1993 power
15,2013.
onNovember
of attorneybeginning
of attorney beginning on November 15, 2013.
21 Plaintiffs'claimshave a basisin law, and they shouldnot be
21 Plaintiffs' claims have a basis in law, and they should not be
dismissedbecause eachofPlaintiffs' claims, taken astrue,together with
dismissed because each of Plaintiffs' claims, taken as true, together with
inferencesreasonablydrawntherefrom,entitlePlaintiffsto the relief
inferences reasonably drawn therefrom, entitle Plaintiffs to the relief
can be held
sought,i.e., 1) Plaintiffshavestanding,and2) Defendants
sought, i.e., 1) Plaintiffs have standing, and 2) Defendants can be held
liablefor theirbadfaithrelianceona medicalpowerof attorneythathad
liable for their bad faith reliance on a medical power of attorney that had
beenrevokedas a matterof law. Therefore, dismissalis not appropriate
been revoked as a matter of law. Therefore, dismissal is not appropriate
becausePlaintiffscanprovefacts,whichwouldentitlethemto relieffrom
because Plaintiffs can prove facts, which would entitle them to relief from
Defendants. at150.7
369S.W.3d
Defendants. Heckman, 369 S.W.3d at 150.

7

Silverado Appx. 0217
No. 1-15-586-CV 3353
 PRAYER
PRAYER

PREMISESCONSIDERED,
WHEREFORE,PREMISES
WHEREFORE, respectfully the
CONSIDERED, Plaintiffs respectfully request the
kx
Living,Inc.,TanaMcMillan andLinda
Court
Courttto of SilveradoSenior
deny the motionof
o denythemotion Senior Living, Inc., Tana McMillan and Linda

Lavinson in itsentirety.
Lavinsoninits
alsorequestthat
entirety. Plaintiffs alsorequest
theCourt taxcostsagainst the
that the Court tax costs against the
shouldissueif not timelypaid. Plaintiffspray for
for whichexecution
Defendants,forwhich
Defendants, execution should issue if not timely paid. Plaintiffs pray for
andfurtherrelief, towhich they maybebejustly entitled.
such other and further relief,to
suchother which theymay justly entitled.
submitted,
Respectfully
Respectfully submitted,

210/326-2
Phone:
PhilipM.Ross,SBN17304200
1006 Holbrook
Philip M. Ross,
San
1006Antonio,
Email:
By: Philip
Holbrook
Road
SBN 17304200
Texas78218
Road
San Antonio, Texas 78218
Phone:ross_law@hotmail.com
Email: 210/326-2100
ross_law@hotmail.com
By: /s/ Phili M.Ross
M.Ross
/s/ Philip M. Ross
Philip M. Ross
CandiceSchwager
1417Ramada
Candice
1417
Drive
Schwager
Ramada Drive
Houston,TX77062
Phone: 832-315-8489
Houston, TX 77062
FAX: 713-583-0355
Phone: 832-315-8489
FAX: 713-583-0355
AttorneysforDonPeterson,
Peterson
Attorneys
Lonny Peterson andMack
for Don Peterson,
Lonny Peterson and Mack
Peterson

8

Silverado Appx. 0218
No. 1-15-586-CV 3354
 Certificateof
of Service

hereby certifythat
IIhereby trueand
thataatrue copyoftheabove
and correctcopy of the above documentwas
was e-filed
and
and sent byemail
sent by emailoorelectronic deliveryb y
r electronic delivery by agreementto:
agreement to:
Sarah
Sarah Pacheco
Jill
JillY oung
Young
Maclntyre,McCulloch, Stanfield,Young, LLP
KathleenBeduze
Kathleen Beduze Maclntyre, McCulloch, Stanfield, Young, LLP
Suite150
aton&& James,PC 2900Weslayan,
Crain,CCaton
Crain, PC 2900 Weslayan, Suite 150
1401 McKinneySSt.,
1401McKinney t.,Suite 1700
Suite 1700 Houston,TX77027
Houston, TX 77027
Houston,TX77010
Houston, TX 77010 JoshDavis
Josh Davis
RussJones LewisBrisbois Bisgaard &Smith,
Lewis Brisbois Bisgaard
LLP
& Smith, LLP
Russ Jones Scherrer& WeslayanTower, Suite 1 400
Underwood, Jones,
Underwood, Jones, Scherrer & Weslayan Tower, Suite 1400
Malouf,PLLC 24Greenway Plaza
24 Greenway Plaza
Malouf, PLLC Houston,TX 77046
5177RichmondAve.,Suite 505 Houston, TX 77046
5177 Richmond Ave., Suite 505
Houston,TX77056
Houston, TX 77056
onOctober 27,2014.
on October 27, 2014.
/s/ M.Ross
Is/ Philip
PhilipM.RossM. Ross
Philip M. Ross

9

Silverado Appx. 0219
No. 1-15-586-CV 3355