in the Guardianship of Ruby Peterson

ACCEPTED 01-15-00567-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 12/14/2015 12:39:08 PM CHRISTOPHER PRINE CLERK No. 01-15-00567-CV FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS FOR THE FIRST DISTRICT HOUSTON, TEXAS HOUSTON, TEXAS 12/14/2015 12:39:08 PM CHRISTOPHER A. PRINE Clerk MACKEY GLEN PETERSON, TONYA PETERSON, DON LESLIE PETERSON AND LONNY PETERSON, APPELLANTS v. SILVERADO SENIOR LIVING, INC., D/B/A SILVERADO SENIOR LIVING SUGAR LAND, APPELLEE Appendix Tab 69 - 73 P. Alan Sanders Tx. State Bar No: 17602100 Joshua Davis Tx. State Bar No. 24031993 Lewis Brisbois Bisgaard & Smith, LLP Weslayan Tower, Suite 1400 24 Greenway Plaza Houston, Texas, 77046 (713) 659-6767 (713) 759-6830 – Fax Alan.Sanders@LewisBrisbois.com Josh.Davis@LewisBrisbois.com TAB 69 ¤vCounty DV FILED 2/6/2015 5:00:15 PM Stan Stanart CountyClerk Clerk Harris County Harris County PickData Entry 1 Pick Up PROBATE COURT 1 UpThis This Date N NO. 427.208-401 NO.427.208 -401 IN RE: GUARDIANSHIP OF INRE:GUARDIANSHIP OF § IN THEPROBATE INTHE PROBATECOURT COURT RUBY RUBY PETERSON PETERSON § NO.O NO. NE ONE AN ALLEGEDIINCAPACITATED ANALLEGED NCAPACITATED § PERSON PERSON HARRISCOUNTY, HARRISCOUNTY,TEXAS TEXAS fromthe District Transferred from the 129th Judicial District N 17) CAUSE NO. 2014-40980 CAUSE N0. 2014-40980 0 0 RUBY PETERSON,MACKEY RUBY PETERSON, ("MACK") §§ MACKEY("MACK") IN THE DISTRICTCCOURT INTHEDISTRICT OURT GLEN PETERSON, DONNIE ("DON") §§ GLEN PETERSON, DONNIE ("DON") LESLIE PETERSON, Individually LESLIEPETERSON, Individually and §§ As Attorney iin AsAttomcy for RUBYPETERSON, n fact forRUBY PETERSON,§§ LONNIE LONNIE PETERSON PETERSON §§ PLAINTIFFS PLAINTIFFS § § VS. VS. § HARRISCOUNTY,TEXAS HARRIS COUNTY, TEXAS §§ SILVERADOSENIOR LIVING,CAROL§ SILVERADO SENIOR LIVING, CAROL ANNMANLEY, DAVID PETERSON, § ANN MANLEY, DAVID PETERSON, TANA MCMILLAN, DR.REBECCA § TANA MCMILLAN, DR. REBECCA CLEARMAN, DR.CHRISTOPHER § CLEARMAN, DR. CHRISTOPHER MERKL,ANDLINDALAVINSON, § MERKL, AND LINDA LAVINSON, § DEFENDANTS § DISTRICT DEFENDANTS 129TH JUDICIAL DISTRICT &SCHWAGER‘S PLA1NTIFFS' ORDERS MOTIONTOMODIFY PLAINTIFFS' & SCHWAGER'S MOTION TO MODIFY ORDERS DISMISSALS, T0THE CONCERNINGRULE 91A PLEA CONCERNING RULE 91A DISMISSALS, PLEA TO THE ANDSANCTIONS JURISDICTION JURISDICTION AND SANCTIONS RUBY PETERSON, INDIVIDUALLY,MACKEY ("MACK") GLEN RUBY PETERSON, INDIVIDUALLY, MACKEY ("MACK") GLEN AND AS NEXT PETERSONAND DON LESLIEPETERSON,INDIVIDUALLY PETERSON AND DON LESLIE PETERSON, INDIVIDUALLY AND AS NEXT ATTORNEY-IN FRIENDS/ ANDLONNYPETERSON, FACTOF RUBYPETERSON, FRIENDS/ ATTORNEY-IN FACT OF RUBY PETERSON, AND LONNY PETERSON, ANDAS NEXTFRIENDOF RUBYPETERSON("PLAINTIFFS"), INDIVIDUALLY INDIVIDUALLY AND AS NEXT FRIEND OF RUBY PETERSON ("PLAINTIFFS"), ANDCANDICE SCHWAGER thisMOTION TOMODIFY ORDERS RELATING AND CANDICE SCHWAGER file this MOTION TO MODIFY ORDERS RELATING Silverado Appx. 0528 No. 1-15-567-CV 1617 TO TO THE THE D ISMISAL DISMISAL OF OF PLAINTIFFS’ PLAINTIFFS' CLAIMS CLAIMS AGAINST AGAINST DEFENDANTS DEFENDANTSunder under Rule Rule 91a, Pleatotothe 91a, Plea theJurisdiction, well aswell Jurisdiction, as ORDERS asORDERS as issued issued granting SANCTIONS SANCTIONS against CANDICE CANDICE SCHWAGER. SCHWAGER.THIS THISM OTION MOTIONTOMODIFY TO MODIFYis is filed by filed PLAINTIFFSand by PLAINTIFFS andSCHWAGER SCHWAGER (collectively (collectively "MOVANTS") "MOVANTS") based baseduponnew upon new evidence evidencein in addition to othergrounds. In to other Insupport support PLAINTIFFS thereof, PLAINTIFFS AND AND SCHWAGER SCHWAGER ("MOVANTS")allege asfollows: allegeas follows: I.I. STATEMENT STATEMENT OF ISSUES OF ISSUES 1.PLAINTIFFS, 1. PLAINTIFFS,byand by and through through CANDICE CANDICESCHWAGER, tortllawsuit SCHWAGER, filedaatort awsuit inHarris in Harris CountyDistrictCourt nor County District Court oon about uly18,2014, or about JJuly 18, 2014, sseeking eekingaa Temporary TemporaryRestraining RestrainingOrder Order and againstSilverado and Temporary Injunction against S ilverado SSenior eniorLLiving, iving,CCarol arolAnnManley, Ann Manley,David David Peterson, Peterson, et, al.See et, al. See OriginalPetition, by5 sworn affidavits. PLAINTIFF Petition, verified by 5sworn S non- PLAINTIFFS non- suitedthe GUARDIANSHIP APPLICATION byMICHAELHIRSCHimmediately. suited the GUARDIANSHIP APPLICATION filed by MICHAEL HIRSCH immediately. 2. DEFENDANTSamended theirpleadings 2. DEFENDANTS amended their pleadingstocreate jurisdiction to create jurisdictiontosupport their equest forthis to support theirrrequest for this Courtto transferPLAINTIFF’S tort caseto probatecourt,whichoccurred aftertheJuly25, Court to transfer PLAINTIFF'S tortcase to probatecourt, which occurred after the July 25, 2014hearingon DEFENDANTS’ MOTION TOTRANSFER. At thishearing,SARAH 2014 hearing on DEFENDANTS' MOTION TO TRANSFER. At this hearing, SARAH PACHECO ANDJILL YOUNG on the recordthat theywouldnot hold PACHECO AND JILL YOUNG represented on the record that they would not hold PLAINTIFFS to representationsof MICHAEL HIRSCH—but violatedthispromise PLAINTIFFS to representations of MICHAEL HIRSCH—but violated this promise inbadfaithandformalicious purposes. repeatedly thereafter in bad faith and for malicious purposes. 3. The grantedthetransfer July25,2014andPLAINTIFFS’ APPLICATION FOR 3. The Court granted the transfer on on July 25, 2014 and PLAINTIFFS' APPLICATION FOR TEMPORARY hearingbeganon JULY28,2014.OnJuly28,2014,the INJUNCTION TEMPORARY INJUNCTION hearing began on JULY 28, 2014. On July 28, 2014, the hadextensive Parties discussions regarding socialmediapostsandvideos pertaining toRUBY Parties had extensive discussions regarding social media posts and videos pertaining to RUBY PETERSON, whichhadpreviously beendisseminated andrevealedthatRUBYPETERSON PETERSON, which had previously been disseminated and revealed that RUBY PETERSON wantedtoleaveSILVERADO SENIOR butwasheldagainst LIVING herwill.Seevideosof wanted to leave SILVERADO SENIOR LIVING but was held against her will. See videos of RubyPeterson, entered intoevidence and ofJULY 28,2014hearing. Ruby Peterson, entered into evidence and transcript of JULY 28, 2014 hearing. Silverado Appx. 0529 No. 1-15-567-CV 1618 4. DEFENDANTS 4. DEFENDANTS askedtheJudge to enter asked the Judge to enteran ORDER,prohibiting anORDER, prohibitingPLAINTIFFS PLAINTIFFS AND/OR AND/OR THEIR THEIR ATTORNEYS ATTORNEYS from from posting posting tthe hethree three videos att issue, videos a anyother issue, any videos,or othervideos, publicly orpublicly disseminating information information in socialmedia in social concerning mediaconcerning RUBYPETERSON RUBY PETERSONwithfeigned with feigned concerns concerns ofRUBY’S of RUBY'S privacy rights(and privacyrights (andthose thoseof ofothers theyroutinely others they violateby routinely violate byreleases releases designed designed to SILVERADO to permit SILVERADO to exploit to exploit residents residents intheir in their advertising). advertising). 5. TheCourt 5. refusedttoodo The Court refused doso, acknowledging so,acknowledging thatthis couldbe casecould that this case FirstAmendment beaa First Amendmentcase case whichgenerated which generatedpublic concern public concern aand ndfurther questioning further questioning hisauthority doso. his authority ttoo do TheCourt so.The Court 0 clearly thatitwould stated notORDER SCHWAGER totakethevideos down orcease clearly stated that it would not ORDER SCHWAGER to take the videos down or cease tai bloggingaboutthe blogging case andthatthe about the case partieshad and that the parties to agree had to the"Rule to the agreeto "Rulell Agreement"or 11 Agreement" or presentan present appropriate anappropriate MOTION MOTION FORPROTECTIVE FOR PROTECTIVEAND/OR AND/OR G AGORDER GAG ORDER forhim to for him to haveauthority have authority tto o rule. In deference Indeference andout and outofofrespect respect forthe for theJudge, Judge,SCHWAGER SCHWAGER voluntarily voluntarily agreed agreed to takethe to take objectionable the objectionable videos downduring videos down during the pendencyooff the the pendency the TEMPORARY TEMPORARY INJUNCTION INJUNCTIONhearing. hearing.TheAgreement isreflected The Agreementis n theJuly30,2014 reflected oon the July 30, 2014 transcript. transcript. 6. DEFENDANTS 6. DEFENDANTS presented no MOTION presented no MOTION F ORGAG FOR ORDER d GAG ORDER espitetthe despite heCourt’s invitation Court's invitation to to dothe do untilOCTOBER sameuntil the same OCTOBER 9,2014—the same 9, datethe samedate thehearing theirsanctions ontheir hearing on motions sanctions motions occurred. occurred. Significantly, JILL YOUNG, JILL YOUNG, RUSSJONES RUSS JONESANDDEFENDANTS AND DEFENDANTSparticipated inaa participated in fourday four temporary day temporary injunction injunction hhearing earingin whichthe in which PLAlNTIFFS’ the PLAINTIFFS' claimsfor claims false for false imprisonment, imprisonment, assault andbattery, assault and battery, conspiracy, conspiracy, breach breach of trust, a of trust, ndbreach and offiduciary duty breach of duty wereproven were provenw ithcredible with credible evidence, evidence, if if not not asa matter oflaw.Ifthey as a matter believed of law. If they believed PLAINTIFFS’ PLAINTIFFS' ORIGINAL, ORIGINAL, FIRSTORSECOND AMENDED FIRST OR SECOND AMENDED PETITIONS PETITIONS were frivolousor were frivolous groundless or groundless in in violation violation ofRule of I0,13, Rule 10, or91a—or 13, or thatPLAIN 9la—orthat TIFFShad PLAINTIFFS standing nostanding had no toassert to them,any assert them, anyone one offive of fiveattorneys attomeys couldhave could haveasserted appropriate asserted appropriate MOTIONS MOTIONS TODISMISS TO PLAINTIFFS’ DISMISS PLAINTIFFS' lawsuit. lawsuit. Notably, none ofthem Notably, none filedany of them filed suchMOTION. any such MOTION. Silverado Appx. 0530 No. 1-15-567-CV 1619 7. DEFENDANTS' counsel, 7. DEFENDANTS’ JILL YOUNG counsel, JILL RUSS J AND RUSS YOUNG AND ONES JONES aalllljoined together joined together inmost in most pleadings filedby regardless oneanother regardless filed by one ofwhether of whether SARAH SARAH PACHECO PACHECO ANDHER AND HER CLIENTS CLIENTS were taking were taking a 180 degree d 180degree iversion diversion from prior p from prior ositions positions or not. or Themost not. The egregious mostegregious example example thefact isthe is thatJILL fact that YOUNG, JILL YOUNG, RUSS JONES, RUSSJONES, ANDTHE AND COURT THECOURT INVESTIGATOR INVESTIGATOR concludedpprior all concluded all riorto 2014thatthe MARCH2014 to MARCH Guardianship that the Guardianship Application Application hhad ad no meritand no merit and shouldbedismissed should dueto be dismissed due to less alternatives, lessrestrictive alternatives, suchas such DurablePower asaa Durable ofAttorney- Powerof Attorney— butchanged but theiropinions changed their basedsolely opinions based solelyon unambiguous onunambiguous loyalty loyalty SARAH toSARAH to PACHECO. PACHECO. Nothing Nothing inthis in changed matterchanged this matter to justifythe tojustify theabout facedecision about face ofJILL decision of YOUNG JILL YOUNG RUSS orRUSS or JONES’ JONES' support ofDEFENDANTS, supportof DEFENDANTS, except for"who" exceptfor theapplicant. wasthe "who" was applicant. 8. Bias 8. Bias was repeatedly was repeatedly demonstrated demonstrated byJONES by JONES A AND YOUNG p NDYOUNG riorttooSCHWAGER'S prior SCHWAGER’S lawsuit lawsuit beingfiled and everbeing ever andseemingly immediately seemingly immediately upon theGuardianship uponthe Application’s Guardianship Application's filing December December l0,2013.Shortly 10, 2013. Shortly after appointment, afterappointment, both JONES bothJONES andYOUNG and YOUNG spent lessthan spentless one than one hourwith hour PLAINTIFFS withPLAINTIFFS and that the existence of anddetermined thattheexistence of aapower ofattorney power of attorneyalonemeant alone meant thatno that guardianship noguardianship should should b beegranted-——with granted--with both knowing bothknowing thetime atthe at oftheir time of objection their objection that that - NOMEDICAL NO MEDICAL POWERPOWER O OFFATTORNEY EXISTED d ATTORNEY EXISTED ueto due Section to Section 166.155 166.155 oftheTexas of the Texas Health a Health ndSafety and theNovember Code,the Safety Code, November 15, revocation 2013revocation 15,2013 executed executed byRUBY by PETERSON RUBY PETERSON (withsaidrevocation (with disputed),andthefactthatRUBY neverdisputed), said revocation never PETERSON and the fact that RUBY PETERSON didnot did notexecute execute aa MEDICAL MEDICAL POWER POWER OFATTORNEY OF ATTORNEY after revoking afterrevoking the1993 the 1993 POA granted POAgranted CAROL toCAROL to ANN ANN MANLEY ANDDAVID MANLEY PETERSON. AND DAVID PETERSON. 9. Afterunanimously 9. After agreeing tthat unanimously agreeing hatA POWER A POWER OFATTORNEY OF wasthe ATTORNEY was leastrestrictive theleast restrictive alternative alternative to RUBYPETERSON to RUBY PETERSONand with knowledge that andwithknowledge that no validMEDICAL no valid of powerof MEDICAL power attomey attorney existed, existed, JONES, JONES, YOUNG YOUNG AND PACHECO ANDPACHECO fraudulently concealed fraudulently concealed thisfact this fact to the to the Courtand/or Court openlydeceived and/oropenly the Court w deceived theCourt when PACHECO stated henPACHECO stated at the closing d at theclosing ayofthe day of the Injunction Injunction Hearing Hearing thather that herclients hadaa "DURABLE clients had "DURABLE MEDICAL MEDICAL POWER POWER OF OF Silverado Appx. 0531 No. 1-15-567-CV 1620 10.ATTORNEY," 10. ATTORNEY,"knowing knowing thisclaim this claim to befalse. to be SCHWAGER false. SCHWAGER provided provided articlewritten anarticle an written by by PACHECO PACHECO citing citing Tex. andSafety Tex. Health and 166.155 Code166.155 Safety Code demonstrate todemonstrate to thatDEFENDANTS' that DEFENDANTS’ had MEDICAL noMEDICAL had no ofattorney powerof power attorney DURABLE orDURABLE or POWER POWER OF ATTORNEY byvirtue OFATTORNEY of by virtue of therevocation PACHECO andPACHECO was intentionallydefrauding the revocation and was intentionally defrauding thetribunal the tribunal inviolation in violation ofthe of the ethicalstandards ethical standards governing governing attorneys. RUSSJONESlater attorneys. RUSS admittedthat JONES later admitted thatno MEDICAL noMEDICAL Il POWER OFATTORNEY existed afterNovember 15,2013,threatening to recommend POWER OF ATTORNEY existed after November 15, 2013, threatening to recommend guardianship, whichwas in reality, theonly optionavailable availableatthat pointto eitherparty. toeither guardianship, which wasin reality, the only option at that point party. 11.B 11. iaswas Bias evident was evident thehearing asthe as hearing began began inRUSS in RUSS JONES’ questioning JONES' questioning ofDR. of MERKL, DR. MERKL, wherein wherein 0 JONES emphasizes emphasizes hhow ow important importantiit t is for family is for familymembers members to bepresent to be duringexpert presentduring expert medical medical evaluations evaluations forRUBY’S competency for RUBY'S competency (asCAROL (as ANNwas CAROL ANN present waspresent withRUBY) with RUBY)to to help help them acceptthediagnosis them accept the diagnosis and not beindenial and not ofher"dementia." be in denial of Seetranscript her "dementia." See ofChris transcript of Chris Merkl’s Merkl's testimony, testimony, attached attached heretoand hereto andincorporated hereinby incorporated herein byreference. reference. 12.Yet, 12. Yet,when whenititcame timefor cametime forMOVANTS’ experts MOVANTS' experts examine toexamine to RUBY RUBY PETERSON, PETERSON, despite despite the the fact thatone fact that suchexpert onesuch expert probate wasaaprobate was regular, regular, DR. MARC DR.MARC KUNIK, KLTNIK, RUSS RUSS JJONES ONES aadvocated dvocated againstMOVANTS against MOVANTSbeing evenon being even thepremises on the premises ofofSILVERADO SILVERADO SENIOR SENIOR LIVING- LIVING— suddenly suddenly nnot ot moved byPLAINTIFFS' movedby PLAINTIFFS’ "denial"of "denial" of her condition, hercondition, whichJONES which AND JONES AND DEFENDANTS DEFENDANTS repeatedly repeatedly accused. accused. Why wouldan Why would impartial animpartial appointee appointee whoisislooking who looking out for outfor RUBY’S bestinterests RUBY'S best beopposed interests be PLA1NT1FFS’ toPLAINTIFFS' opposed to having having theopportunity the observe toobserve opportunity to and and accepttheir accept their m other’s mother's testing testing and condition, andcondition, but not DEFENDANTS’. but not DEFENDANTS'. 13.IInnfact, 13. fact,this wasone this was ofthe one of thefew statements few truthful statements DRMERKL DR made MERKL made oonceming concerning RUBY RUBY PETERSON PETERSON while testifying. while testifying. After After 99 months ofattempting months of attempting to simply to simply hhave aveRUBY RUBYseenby seen one by one ofPLAINTIFFS’ of EXPERTS PLAINTIFFS' EXPERTS // DOCTORS DOCTORS forthesole for purpose the sole purpose ofdetermining of whether determining whether RUBY RUBY haddementia had dementiabyaacredible by crediblemedical medical professional professional couldbelieve, theycould they PLAINTIFFS believe, PLAINTIFFS immediately amended immediately amended theirppleadings their leadingsto reflect the to SinceD same.Since the same. ecember December of2013, of 2013, Silverado Appx. 0532 No. 1-15-567-CV 1621 14.PLAINTIFFS 14. PLAINTIFFSsoughtto sought theirown havetheir tohave physician ownphysician examine examine RUBY RUBY andease and theirworries easetheir worriesthat that shewas she beinginappropriately notbeing wasnot inappropriately drugged drugged inways in thatmight waysthat mightmake makeher herappear appear demented demented or or exacerbate exacerbate any existing any existing dementia. dementia. Thisbelief This belief was unreasonable notunreasonable wasnot giventhe given thewidespread widespread pandemic pandemic of of inappropriate psychotropic psychotropic drugging drugging oftheelderly of the elderly iinnlong termcare long term facilities carefacilities andPLAINTIFFS’ and observations PLAINTIFFS' observations ofRUBY of RUBY excessively excessively drugged, drugged, giventhat particularly given that CAROLANN CAROL ANNMANLEY andDAVID MANLEY and PETERSON DAVID PETERSON admittedRUBY admitted RUBYwas over-drugged wasover-drugged at at REMINGTON REMINGTON andstated preference and stated a preference forSILVERADO for SILVERADO because because theyhadcreative ways ttooE they had creative ways forcibly forcibly drug RUBY drug RUBY ifsheresisted. if SeeTranscript of Temporary Injunction she resisted. See Injunction Hearing. 15.Despitethe 15. Despite the fact fact that that MOVANTS MOVANTSamended thetherelief amended sought repeatedly relief sought repeatedly to streamline the streamline expedited trial the expedited trial set forNovember setfor 17,2014, November17, 2014,MOVANTS MOVANTS appropriatelypled appropriately pledthat thatDEFENDANTS DEFENDANTS violated violated STATE STATE ANDFEDERAL AND LAWs FEDERAL LAW AND CONSTITUTIONAL AND CONSTITUTIONAL mandatesexpressedin mandates expressed inthe and 14th the 1", 5th ,, 7th , ,and ·EAmendments, Amendments, ArticleI andV, Article I and theAnti-Retaliatory V, the Anti-Retaliatory ofTitles provisionsof provisions andIII3 of Titles112 and See,e.g., See, CityofMesquite e.g.,City Aladdin's v. Aladdin's of Mesquite v. Castle,Inc., Castle, Inc.,455U.S.283,293,71L.Ed.2d152,102 455 U.S. 283, 293, 71 L. Ed. 2d 152, 102 S.Ct.1070 S. (1982) Ct. 1070 (1982) (acknowledging (acknowledging thatthe that theTexas Constitution Texas Constitution couldpprovide could rovide broader broader protections protections thanfederal than Constitution);Freedman federal Constitution);Freedman v.NewJerseyStatePolice,135N.J.Super. v.New Jersey State Police, 135 N.J. Super. 297,343 A.2d 297,343A.2d _ 148,150(N.J.Super. 148, 150 (N.J. Super. Ct. Law Div.1975); William Ct.LawDiv.1975); William J. J. Brennan, Jr., TheBillof Brennan, Jr., Rightsandthe The Bill of Rights and the TheRevival States:The States: Revival of ofState StateConstitutions, Constitutions, as Guardians asGuardians ofIndividual of Individual Rights,61 Rights, 61N.Y.U.L.Rev. N.Y.U.L.Rev. 535(1986) (hereinafter Brennan, Revival o f StateConstitutions); A 535 (1986) (hereinafter Brennan, Revival of State Constitutions); A century-long line century—long lineof Texas of Texas cases applying supportapplying casessupport our state'scconstitution, our state's onstitution, 24 particularly inthe 24particularly areaof in the area offree freespeech. Our speech. Our decision decision iinn 1920 1920to relyon to rely theplain onthe language plain language of section ofarticle I,I, section 88 in downaa prior instriking down prior restraint inExParte restraint in Tucker, Ex Parte Tucker, 220S.W. 220 S.W. at at76 predated 76,, predated theapplication the application of oftheFirst Amendment the First Amendment to to thestates. the states.SeeSeeExPartePrice, 741S.W.2d Ex Parte Price, 741 366,369(Tex.1987) S.W.2d 366, (Gonzalez, 369 (Tex. 1987) (Gonzalez, J.,concurring). J., See concurring). See alsoDavenport also Davenport v. Garcia,834 v. Garcia, 834S.W.2d S.W.2d 4 4 (Tex. 1992)( Court records (Tex.l992)( "arepresumed records ''are presumed to to be be open to opento the general public." thegeneral public." T ex.R Tex. R.. Civ.P. Civ. P. 7676..The Thesealing sealing ofofaarecord record mustmeet must meet thetheprocedural procedural prerequisites prerequisites set forthin set forth in Rule76aof Rule 76a of the theTexas Rulesof Texas Rules ofCivil Procedure Civil Procedure SeeChandler .. See v. Chandler v. HyundaiM Hyundai otorCo.,829 Motor S.W.2d774 Co., 829 S.W.2d 774(1992) (1992) ((per percuriam).A curiam).A court court may not escape may not thestrict escapethe strict obligations obligations ofthose of rulesby those rules bytacitly closing tacitly closing therecord the through record through unwritten anunwritten an orderand order andoverruling the gag order the gag order upon Guardian AdLitem forseveral hundred children involved uponGuardian Ad Litem for several hundred children involved in the Brio Toxic intheBrio Toxic Waste litigation Waste litigation thegrounds onthe on thatititviolated grounds that Article violated Article I,Section I, Section 88ofoftheTexas Constitution.. the Texas Constitution.. 2 Silverado Appx. 0533 No. 1-15-567-CV 1622 theAmericans the withDisabilities Americans with Actof Disabilities Act 1990("ADA"), of 1990 implementing ("ADA"), implementing under28 regulations under 28 C.F.R.35.001 C.F.R. et seq, 35.001 et Section504of seq,Section theRehabilitation 504 of the RehabilitationAct of 1973 Act of 1973("Section504"),the ("Section 504"), the NursingHomeReformActof Nursing theElder Home Reform Act of 19874, the ElderJusticeActof Title20 Justice Act of 20095, Title theSocial of the 20 of Social TitleIII,which Title thisruleaddresses, III, which this rule addresses, prohibits discrimination prohibits discrimination (orretaliation) (or retaliation) onon thebasisof the basis of disability intheQ disability in the activities activities ofplaces of places of ofpublic accommodation public accommodation (businesses (businesses that that are generally are generally open to open thepublic to the public andthatfallinto and that fall into one oneof of1212categories listedinintheADA, categories listed the ADA, such suchasasrestaurants, restaurants, movietheaters, movie theaters, schools,day schools, facilities,recreation carefacilities, day care recreationfacilities, facilities,aand nd doctors' doctors’offices) and andrequires requiresnewly newly constructed constructed or alteredplaces or altered placesof publicaccommodation———as of public accommodation—as well wellasascommercial corrnnercial facilities facilities (privately (privately owned,nonresidential owned, nonresidential facilitiessuch facilities suchas factories, asfactories, warehouses, warehouses, buildings)—to oroffice buildings)—to or comply comply with with theADA Standards. the ADA Standards. 42 U.S.C. 12181-89. 42U.S.C. 12181-89. OnJuly26,1991, On July 26, 1991, the theDepartment issuedrules Department issued rulesimplementing implementing titleII title II andtitleIII,which and title III, which are are codifiedat codified at 28 CFRpart 28 CFR (titlell) 35 (title part 35 andpart II) and part36 (titleIII).Appendix 36(title III). Appendix A of the A of the1991 1991titleIII title III regulation, regulation, which which is isrepublished republished as asAppendix Appendix D 28CFR to28 D to 36,contains part36, CFR part theADA contains the Standards ADA Standards forAccessible D esign (1991Standards), which were based upon theversion for Accessible Design (1991 Standards), which were based upon the version of the Americans of theAmericans withDisabilities ActAccessibility Guidelines (1991ADAAG) ADAAG) published bbyytheAccess the Access B oardon the with date. same Disabilities Act the same date. TheNursing HomeReform Accessibility Guidelines Reform Actgguarantees uarantees (1991 residents: published Board on The Nursing Home Act residents: Theright The right to to freedom freedom from abuse, m fromabuse, istreatment, mistreatment, andneglect; and neglect; Theright The right to to freedom fromphysical freedom from physical restraints; restraints; The The right right ttooprivacy; privacy; The right The right ttooaccommodation of medical, physical, accommodation ofmedical, physical, psychological, psychological, andsocial and social needs; needs; The The right right ttooparticipate inresident in resident andfamily and family g roups; groups; The The right right ttoobetreated be treated w withithdignity; dignity; The right t oexercise self-determination; The right to exercise self-determination; The The right right ttoocommunicate communicate freely; freely; The The right right ttooparticipate inthereview participate in the review of ofone's careplan, one's care andto plan, and be fully informed to befully informed inin any in care, treatment, or change of status i nthefacility; advance about any changes in care, treatment, or change of status in the facility; and advance about changes and The The right right ttoovoice voice g rievances grievances without without discrimination or orreprisal. reprisal. Ifthenursing If the nursing h omeor home longterm orlong termcare facility carefacility isdetermined is determined toto be outofcompliance be out of compliance as as Silverado isinthis matter, thefollowing penalties Silverado is in this matter, the following penalties are imposed: are imposed: Civilmonetary penalties; Civil penalties; Denialooffpayment Denial payment for forall Medicare newMedicare all new Medicaid orMedicaid or admissions; admissions; Denialof Denial ofpayment paymentfor3 for3 allMedicaid all Medicaid or Medicare p atients; orMedicare patients; TheElderJusticeActwas 5 The Elder Justice Act signedinto wassigned intolawbyPresident Obamaon law by President Obama on March March 23,23,2010, 2010, as part of as part of thePatient Protection the Patient Protection andAffordable and CareAct. ItItprovides Affordable Care federal provides federal resources resources to "prevent, to"prevent, detect, detect, understand, treat, understand, intervene intervene in and,where in and, appropriate, where appropriate, prosecute prosecute elderabuse, elder neglectand abuse, neglect and Silverado Appx. 0534 No. 1-15-567-CV 1623 Security Security Act,6the theElderBillof Elder Bill ofRightsof Rights ofTexas Texas HumanResources ResourcesCCode odeSection Section 102.0037, rej exploitation." exploitation."Sec.2012. Sec. 2012.[42U.S.C.1397j-1] (a)(a) ProtectionofofPrivacy.·—In [42 U.S.C. 1397j-1] pursuing Privacy.—In activities pursuing activities underthissubtitle, under this subtitle,the the Secretary Secretarysshall hallensure ensurethe theprotection protectionofofindividual individual healthprivacy privacy consistent withtheregulations promulgated undersection 264(c) consistent with the regulations promulgated under section 264(c) ofoftheHealth the HealthInsurance Insurance Portabilityand Accountability Actoof and AccountabilityAct f1996[l2] andapplicable 1996[12]and applicableStateandlocal State privacy and local regulations privacy regulations (b) Ruleof Construction.—Nothing (b) Rule of Construction.—Nothing ininthissubtitle shallbe this subtitle shall beconstrued construedtotointerferewith interfere oror with abridge an elder’s r ightto practice h is herreligion throughreliance or her religionthrough abridge an elder's right to practice hisor relianceonprayer on prayeraloneforhealing alone for healing whenthischoice— when this choice— (1)iscontemporaneously eitherorally inwriting, with (1) is contemporaneously expressed, either orallyoror in writing, respect with totoa a specific respect illness o r injurywhichtheelderhas at thetimeof thedecision b y an elderwhois illness or injury which the elder has at the time of the decision by an elder who is competent at thetimeofthedecision; competent at the time of the decision; (2)ispreviouslysetforthin a livingwill,healthcareproxy,or otheradvancedirective (2) is previously set forth in a living will, health care proxy, or other advance directive document thatisvalidlyexecutedandappliedunderStatelaw;or document that is validly executed and applied under State law; or (3)maybeunambiguously deducedfromtheelder’slifehistory. (3) may be unambiguously deduced from the elder's life history. [12] SeeVol.II,P.L. [12] See Vol. II, P.L. 104-191, §264(c). TheseStatues impose revocation ofMedicare andMedicaid statusforviolating the 6 These Statues impose revocation of Medicare and Medicaid participant status for violating the rights oftheelderly withchemical restraints as Silverado SeniorLiving hasdoneandplacethem rights of the elderly riskoflosing with chemicalfrestraints allfederal as Silverado dollarhSenior Living hasforwhich done andMedicare place them at moneyortheirbillion ospice business, at risk of losing all federal money for theirmedia billion dollar hospice business, for which Medicare pays 100%of the cost.Seewhen means attachedheretoand pays 100% incorporated of the cost. byreference. See when social media means noncompliance, attached hereto and incorporatedSec.by1reference. 02.003. RIGHTS OFTHEELDERLY. (a) Anelderlyindividual hasallthe 7 Sec. 102.003. RIGHTS OF THE ELDERLY. (a) An elderly individual has all the rights,benefits, responsibilities, andprivileges granted bytheconstitution andlawsofthisstate rights, benefits, andtheUnitedStates, responsibilities, except whereand privileges lawfully grantedTheelderly restricted. by the constitution individual and laws of this hastheright tobestate and ofinterference, free the United States, exceptdiscrimination, coercion, where lawfullyand restricted. reprisal The elderly individual inexercising thesecivilhas the right to be rights. free of interference, (b) Anelderly coercion, discrimination, individual hastherightand treprisal in exercising o betreated theseacivil withdignity rights.forthe ndrespect personal integrity (b) An elderly individual without oftheindividual, has the regard right totoberace, treated with dignity religion, national and respect origin, for the sex,age, disability, personal marital integrity of the individual, o f status,orsource payment. without regard Thismeansto race, t hat religion, t heelderlynational i origin, ndividual: sex, age, disability, marital(1) has status, the right or source to makethe of payment. This individual's means that the own choices elderly r egarding individual: t he individual's personal (1) hascare, affairs, the right to andservices; make the individual's own choices regarding the individual's personal(2)hastheright obefreeand affairs, care, tbenefits, from abuse, services; neglect, andexploitation; and (3)ifprotective (2) has the rightmeasures are abuse,hastheright to be free required, from designate neglect, andtoexploitation; a guardian and or representative (3) iftheright toensure toquality protective stewardship measures has the right toaffairs. oftheindividual's are required, designate a guardian or (c) Anelderly representative to ensure the individual hastheright right to quality to befreefrom stewardship physical of the individual's andmentalabuse, affairs. including corporal punishment (c) An elderly or physical individual has the orright to berestraints chemical free from that areadministered physical and mental forabuse, including purpose ofdiscipline corporal convenience punishment or or and not physical required or totreat chemical t heindividual's restraints that are medical symptoms. administered for 04e A person purpose providing of disciplineservices mayusephysical or convenience orchemical and not required restraints to treat onlyifthemedical the individual's useisauthorized symptoms. inwriting ya physician A person bproviding orthe services isnecessary useuse may inanemergency physical or chemical restraints onlytheelderly toprotect if the use isindividual authorized in others or writingfrom by ainjury. physicianA physician's or the use iswritten authorization necessary fortheuse in an emergency ofrestraints to protect the elderly specify mustindividual or others from injury. A physician's written authorization for the use of restraints must specify Silverado Appx. 0535 No. 1-15-567-CV 1624 thecircumstances under which therestraints the circumstancesunderwhich may be the restraintsmay be usedandthe used and the duration forforwhich which the the restraints may be restraints may used.Except be used. inan Except in anemergency, emergency, restraints restraints may onlybe mayonly administered be administered by by medical personnel. qualified medical personnel. (d) A (d) mentally A mentally retarded retarded elderlyindividual elderly individualwith court-appointed with aa court-appointed guardian guardian ooff the the tN person person m inaa behavior ayparticipate in may behavior modification modification program program involving involving use ofrestraints use of restraints or adverse oradverse 7 stimulionly stimuli onlywiththeinformed with the informed consent consentof oftheguardian. the guardian. (e) An elderlyindividual (e) An elderly individual m may beprohibited not be ay not prohibitedfrom communicating from communicating in the in the 1 individual's individual's native language native language with otheriindividuals with other ndividuals or employees or employees forthe purpose for the purpose ofacquiring of acquiring or or providing providing anyanytypetypeofoftreatment, care,or treatment, care, services. orservices. Ct (f) Anelderly (f) individualmay An elderly individual complainabout maycomplain abouttheindividual's the individual's care careor treatment.The or treatment. The Ol complaintmay complaint may be be made madeanonymously anonymously or communicated or communicated by designated persondesignated by a person bbyy the theelderly elderly individual. The individual. providing personproviding The person serviceshall service promptly shallpromptly respond respond resolve ttooresolve thecomplaint. the complaint. The The providing personproviding person services services may may not discriminate notdiscriminate or takeother or take punitive other punitive actionagainst action against an elderly anelderly individual individual whomakes who complaint. makes aa complaint. (g) Anelderly (g) individual An elderly individual isentitled is entitled toto privacy attending ttoo personal whileattending privacywhile personal needs needsandandaa private p lace forreceiving visitors private place for receiving visitors or associating with other i ndividuals unless orassociating with other individuals unless providing privacy p roviding privacy wouldinfringe would infringe on therights on the rights o other iindividuals. offother ndividuals. Thisright This rightapplies applies medical tomedical to treatment, treatment, written written communications, telephone conversations, communications, telephone meeting with conversations, meeting with family, family, and accessto and access resident toresident councils. councils. Anelderly An elderly p ersonmay person maysendsendand andreceive unopened receive unopened mail,and mail, andthe person the person providing providing services services shall shall ensurethattheindividual's ensure that the individual's mailis sentand mail is sent anddelivered promptly. delivered promptly. If If an elderly anelderly individual individual is is married andthe married and spouse the spouse isreceiving is similar receiving similar services, services, thecouple the couple may mayshareshareaa room. room. (h) An (h) individual elderlyindividual Anelderly may participate may participate in activitiesof in activities of social, religious, social,religious, or or community community groups groups unlessthe unless theparticipation interferes participation interferes withthe with rights o therights offother other p ersons. persons. (i) An (i) Anelderly individual elderly individual maymanage may manage the theindividual's individual's personal financialaffairs. personalfinancial affairs.The The elderly i ndividual elderly individual may authorize inwriting a nother person t o manage may authorize in writing another person to manage the individual's money. t heindividual's money. Theelderly The individual elderly individual may choosethe may choose themanner marmer inwhich in whichthe theindividual's individual's money moneyisismanaged,managed, including including aa money money management management program, program, a representative a representative payee p payee rogram, program, financial aa financial power o power off attorney, trust, attorney, aa trust, or similar method, andtheindividual may choose t heleast oraa similar method, and the individual may choose the least restrictive of these r estrictive ofthese methods. methods. A designated persondesignated A person to managean to manage elderlyindividual's an elderly individual's moneyshalldo money shall do so in so in accordance accordance witheachapplicable with each applicableprogram programpolicy, policy,law,law,or or rule.On requestof rule. On request of the theelderly elderly individual individual or or the individual's theindividual's representative, representative, the designated persondesignated the person to managethe to manage theelderly elderly individual's money s hall m ake available therelated f inancial records individual's money shall make available the related financial records and provide an accounting andprovide a n accounting ofthe of money. the money. Anelderly An individual's elderly individual's designation designation ofanother of personto another person tomanage manage theindividual's the individual's money money d oes does not affect t heindividual's ability t o exercise another right d escribed notaffect the individual's ability to exercise another right described by this chapter. bythischapter. If an If elderly anelderly individual individual isunable is unable to designate todesignate another another person person tomanage to manage theindividual's the affairs individual's affairs and guardianisisdesignated andaa guardian designated byaacourt, by court,the guardian theguardian shallmanage shall managethe individual's theindividual's moneyfn money accordance accordance withthe with theProbate Codeand Probate Code andother other a pplicable applicable laws. laws. (l) Anelderly i ndividual (1) An elderly individual may choose a ndretain maychoose and retain aa personal personal physician physician andisentitled and to is entitled to befully informed inadvance about treatment orcare that m ay affect the be fully informed in advance about treatment or care that may affect the individual's well-being. individual's well-being. (m)Anelderly (m) individual An elderly individual mayparticipate ininan may individual anindividual planof plan ofcare carethatthatdescribesi5 describes Silverado Appx. 0536 No. 1-15-567-CV 1625 Texas Texas 42U.s.c. CodeSection 19.4028, 19.408,9 19.413'°, 19.414," 42 Administrative Code 483.10 U.S.C. 483.10 theindividual's the medical, individual's medical, nursing, nursing, andpsychological needs and needsandandhowhowthetheneeds willbbeemet. needs will met. (n)Anelderly (n) individual An elderly individual may may refuse refuse m edical medical treatment after after t heelderly the elderly individual: individual: (1) (1) isadvised is advised by bythe person the person providing providing services of ofthepossible consequences the possible consequences ofrefusing of treatment; refusing treatment; and and (2) acknowledges (2)acknowledges thattheindividual that the individual clearly clearlyunderstands understands theconsequences the consequences ofrefusing of treatment. refusing treatment. (s)Except (s) Except ininan anemergency, emergency, aaperson providing personproviding servicesmay services maynot transferor nottransfer discharge ordischarge anelderly an individual elderlyindividual from residential from a residential facility uuntil facility ntilthe30thdayafterthedatethe the 30th day after the date the person person providing providing sservices ervicespprovides rovidesw rittennotice written notice to theelderly to the elderly individual, individual, the individual's theindividual's legal legal representative, representative, member oraa member or ofthe of individual's the individual's family family stating: stating: (1) that (1) thatthe providingservices personproviding the person servicesintends intends to transferor to transfer dischargethe to discharge or to elderly theelderly individual; individual; (2) the (2) reason forthetransfer the reason for the transfer or or discharge listedinSubsection discharge listed in Subsection (r); (r); (3) the (3) theeffective effective date dateofthetransfer of the transfer o orr discharge; discharge; (4) theindividual (4) ifif the individual is istotobe betransferred, transferred, the thelocation location to whichthe towhich theindividual willbe individual will be transferred; and and (5) the (5) theindividual's individual's right rightttooappeal appealthetheaction andthe action and personto the person whomthe towhom theappeal should appeal should bedirected.(t) be directed. Anelderly (t) An individual elderly individual may: may: (1) make (1) livingwill make aa living willbyexecuting by executing aadirectivedirective underthe under theNatural DeathAct Natural Death Act(Chapter (Chapter 672, H ealth andSafety 672, Health and Safety Code); Code); (2) execute (2) execute a durable a durable power power of ofattorney attorney forhealth for careunder health care Chapter under Chapter 135, CivilPractice 135,Civil Practice andRemedies and Remedies Code; Code; or or (3) designate (3) designate guardian aa guardian inadvance in advance of ofneed need to makedecisions tomake decisions regarding regarding theindividual's the individual's health health c should areshould care tthe heindividual become incapacitated. individual become incapacitated. AddedbbyyActs1983, Added Acts 1983, 68th 68th Leg.,Leg., p 5159, ch.936, p.. 5159, ch. 936, S ec.11,,eff Sec. eff. Sept. Sept. 11,,1983. Amended 1983. Amended byActs by Acts 1997, 75th Leg., c h.475, S ec. 1 ,eff 1997, 75th Leg., ch. 475, Sec. 1, eff. Sept. 1, 1997. Sept. 1 ,1997. (a)The 8 (a) resident The resident hastheright has the right to exercise toexercise hisrights his rights as resident asaa resident at thefacility atthe andas facility and citizen asaa citizen or or resident resident oftheUnited of States. the United States. (b)The (b) The resident resident hashastheright the right to tobebefreeofinterference, coercion, free of interference, coercion, discrimination, discrimination, reprisal orreprisal or from from thefacility i nexercising hisrights. the facility in exercising his rights. (c)Inthe (c) case of In the case resident of aa resident adjudged adjudged incompetent incompetent under thelaws under the laws ofoftheState the State of ofTexas Texas by byaa court court ofcompetent of competent jurisdiction, jurisdiction, therights the rights of oftheresident the resident are exercised areexercised bythe by person the person appointed appointed under under Texas lawto Texas law toact act on theresident's on the resident's behalf. (d) Thefacility m ust (d) The facility must comply comply withall with allapplicable applicable provisions provisions oftheHuman of the Human R esources Resources Code,Tit'e Code, 6, Chapter102.An 6, Chapter individualmay 102. An individual may not not be deniedappropriate be denied appropriate ccare areon the basisof on the basis of hishisrace, race, religion, color,national religion, color, origin, national origin, sex,age, sex, age,hhandicap, andicap, marital marital status, status, orsource or source ofofpayment. payment. (e)The (e) facility The facility allowthe mustallow must theresident resident the theright observe toobserve right to hisreligious his religious beliefs. Thefacility beliefs. The must facility must respect thereligious respect the beliefs religious beliefs oftheresident of the resident in inaccordance accordance withwith42 42United United States Code§1396f. StatesCode §l396f Silverado Appx. 0537 No. 1-15-567-CV 1626 . .__ .. 9 (a)Aresident (a) A resident hasthe has the right to:to: (1) voice (1) voicegrievances withoutdiscrimination or grievances without reprisal.These or reprisal. Thesegrievances grievances include thosewith includethose with Cl whichhas hasbeenfurnished wellas not beenfurnished; respect respect ttootreatment treatment which been furnished as aswell asthatwhich that which hashas not been furnished; (2)prompt (2) promptefforts bythefacility by the facility to resolve toresolve grievances grievances theresident the resident maymayhave, including have,including those those withrespect with respectto thebehavior tothe behavior of other residents; ofother residents; and and (3)notify (3) agenciesof stateagencies notify state ofcomplaints complaints againstaa facility. against Complaints facility.Complaints willbe acknowledged will be acknowledged by by thestaffofthe the agencythat staff of the agency thatreceives thecomplaint. receives the complaint. All Allcomplaints complaints willwillbeinvestigated, whether be investigated, whether oralor oral orwritten. written. N (b)A nursingfacility facilitymay retaliateor discriminate againstaa resident, familymember resident,a family memberor Ji (b) A nursing maynot notretaliate ordiscriminate against or C) guardian o ftheresident, guardian of the resident, or ora volunteer because t heresident, theresident's a volunteer because the resident, the resident's family memberfamily m ember or or N guardian, avolunteer, oranyother person: guardian, a volunteer, or any other person: makes (l) makes (1) complaint aa complaint orfiles or grievance concerning filesaa grievance concerning thefacility; the facility; (2)reports a violation (2) violation oflaw,including of violation law, including aa violation oflaws of laws or regulations orregulations regarding regarding nursing nursing facilities; facilities; or (3)initiates (3) initiates or cooperates or cooperates inan in investigation aninvestigation proceeding orproceeding or of governmental of aa governmental entity relating entityrelating to to s ervices, care,services, or care, conditions at thenursing f orconditions at the nursing facility.acility. (c)Afacility (c) A facility may maynot discharge notdischarge otherwise orotherwise or retaliate retaliate against: against: (1)an (1) employee, anemployee, resident,or resident, otherperson or other becausethe personbecause theemployee, resident,or employee, resident, otherperson or other personfiles complaint, presents grievance, aa complaint, presents aa grievance, or otherwise p rovides i n goodfaith or otherwise provides in good faith information relating relatingto the to the misuse misuse of restraint ofaa restraint involuntary orinvoluntary or seclusion seclusion at thefacility; atthe facility; oror (2) resident (2)aa resident because because someone someone behalfof onbehalf on oftheresident complaint, the resident files aa complaint, presents presents grievance, aa grievance, or otherwise provides i n goodfaithinformation relating to the or otherwise provides in good faith information relating to the misuse of aa restraint or misuse of restraint or involuntary involuntary seclusion seclusion atthe at facility. thefacility. (a)Aresident 10 (a) A resident hasthe has the right to to have to, andthefacility access to, have access and the facility m ustpprovide must rovide immediate immediate access access totoaa resident resident to, thefollowing: to, the following: (7)subject (7) subject to theresident's tothe rightto resident's right denyor todeny withdraw orwithdraw consent consent atany at time, iimmediate any time, mmediate family family or or other relatives o ftheresident; other relatives of the resident; and and (8)subject (8) subject to reasonable toreasonable restrictions restrictions andtheresident's and the resident's right denyor right ttoodeny orwithdraw consent withdraw consent at at any any time, othersw time, others who hoare visiting arevisiting with theconsent with the consent oftheresident. of the resident. (b)Afacility (b) mustpprovide A facility must rovide reasonable reasonable access access resident toaaresident to byany by entityor anyentity individual orindividual thatpprovides that rovides health, social, health, social, legal,or legal, services otherservices orother theresident, tothe to subject resident, subject to theresident's to rightttoodeny the resident's right denyor or withdraw withdraw consent consent atany at time.3 anytime. 11 (a)Theresident (a) hastheright The resident has to havereasonable the right to have reasonable access to the access to use of the use telephone ((other of aa telephone othertthan hana'pay phone), callscan wherecalls phone), where canbebemade without made without beingoverheard, being overheard, andwhich and whichcan alsobeused canalso formaking be used for making callsto calls tosummon summon helpin help incase ofemergency. caseof emergency. (b)The (b) facility The facility must permit mustpermit residents residents tocontract to forprivate contract for telephones private telephones at theirown attheir ownexpense. expense. Thefacility m ustn otr equireprivate telephones to beconnected toa central switchboard.lE§il The facility must not require private telephones to be connected to a central switchboard. Silverado Appx. 0538 No. 1-15-567-CV 1627 38 C.F.R. etet seq.,'2 38 C.F.R.52.70,13 MandatoryDuty ReportElderAbuse,Neglect, DutytotoReport oror Elder Abuse, Neglect, §483.10 Residentrights. § 483.10Resident 12 rights. The has right toaa dignifiedexistence, The resident hasaa rightto existence,self—determination, and self-determination, with and communication and with and accessto topersons and inside persons and services insideandoutside thefacility. and outside the facility.Afacility mustprotect A facility and must protect promote and promote therights ofeachresident, includingeachofthefollowing the rights of each resident, includingeach of the followingrights: rights: (a)Exercise ofrights. (a) Exercise of rights. (1)The resident hastheright toexercise (1) The resident has the rightto his orherrights exercise hisor her rightsasa resident ofthefacility andasa as a resident of the facility and as a citizen or resident oftheUnited S tates. citizen or resident of the United States. (2)Theresident hastherightto befreeofinterference, coercion, discrimination, and (2) The resident has the right to be free of interference, coercion, discrimination, and reprisal from thefacility i nexercising his from the facility in exercising hisor her or her rights. (d)Freechoice.Theresidenthastherightto-- (d) Free choice. The resident has the right to— (1)Choose personal attendingphysician; (1) Chooseaa personal attending physician; (2)Befullyinformedin advanceaboutcareandtreatmentandof any changesin thatcareor (2) Be fully informed in advance about care and treatment and of any changes in that care or treatment thatmayaffecttheresident's well-being; and treatment that may affect the resident's well-being; and (3)Unless adjudged incompetent or otherwise foundtobeincapacitated underthelawsofthe (3) Unless adjudged incompetent or otherwise found to be incapacitated under the laws of the State,participate inplanningcareandtreatment orchangesin careandtreatment. State, participate in planning care and treatment or changes in care and treatment. (e)Privacy and Theresidenthastherightto personal andconfidentiality (e) Privacy ofhis and confidentiality. The resident has the right to personal privacy and confidentiality orherpersonal andclinical records. of his or her personal and clinical records. (1) Personalprivacyincludesaccommodations, medicaltreatment,writtenand telephone (1) Personal privacy communications, includesvaccommodations, medical atreatment, written and telephone personal care, isits,andmeetings offamily ndresidentgroups, butthisdoes communications, not r equire t personal hefacility to care, provide visits, privateand meetings of foreach family and resident; resident groups, but this does a room not require (i)Mail. The the facility resident to provide taoprivate hastheright privacy room for each inwritten resident; communications, includingtheright (i) Mail.and (1)Send Thepromptly resident has the right receive mailttohat privacy is in writtenandcommunications, including the right to— (1) Send and (2)Haveaccess promptly receive tostationery, mail postage,that is unopened; andwriting and implements attheresident'sownexpense. (2)Access andvisitation Have access rights. to stationery, postage, and writing implements at the resident's own expense. (j) Access and visitation (1)Theresident rights. hastheright andthefacility mustprovide immediate accesstoanyresident by thefollowing: (1) The resident has the right and the facility must provide immediate access to any resident by (i)Any representative the following: oftheSecretary; (ii)Any (i) Any representative representative oftheState: of the Secretary; (iii) (ii) The Anyresident's individual representative of thephysician; State: (iv)TheState longindividual (iii) The resident's ombudsman termcarephysician; (establishedundersection307(a)(12)oftheOlder Americans Actof (iv) The State 1965); long term care ombudsman (established under section 307(a)(12) of the Older (v) Theagency Americans Actrof 1965); fortheprotection esponsible andadvocacy systemfordevelopmentally individuals (established (v) The agency under responsible artCoftheDevelopmental forpthe protection and advocacy DisabilitiesAssistance andBillof system for developmentally disabl Rights Act);(established under part C of the Developmental Disabilities Assistance and Bill of individuals (vi)The agency Rights Act); responsible fortheprotection andadvocacy system formentally illindividuals (establishedunder (vi) The agency theProtection responsible forand the Advocacy protectionforMentally IllIndividuals and advocacy Act); ill individuals system for mentally (established under the Protection and Advocacy for Mentally Ill Individuals Act); Silverado Appx. 0539 No. 1-15-567-CV 1628 ExploitationunderFederal under FederalLaw Law(felony),18 (felony), 18U.S.C.371and U.S.C. 371 and TexasPenalCodeSection Texas Penal Code Section 22.0414 (non-delegable (non-delegable dutyforlicensed duty for licensed attorneystoreport nysuspicion to reportaany suspicionofabuse, of abuse,neglect neglect pl (vii) (vii) Subject to theresident's Subject to the resident'sright odeny righttto orwithdraw denyor withdrawcconsent onsent anytime, atatany time,iimmediate mmediate family familyoor r other other relatives relatives ofthe of theresident; resident;and and (viii)Subject o reasonable (viii) Subjecttto reasonablerrestrictions estrictionsandtheresident's and the resident'sright todeny rightto orwithdraw denyor consentaat withdrawconsent t any time, o therswho arevisitingwiththe consent oftheresident. any time, others who are visiting with the consent of the resident. (2)Thefacility (2) The facility m ustpprovide must rovide rreasonable easonable accessto access anyresident toany residentby anyentity byany orindividual entityor individualthat that provides provideshealth, health,social, social,legal, legal,oorr other othersservices ervices totheresident, to the resident,subject totheresident's subjectto the resident'sright rightto to (NI deny orrwithdraw deny o withdraw consent consent at anytime. at any time. (3) (3) Thefacility must allowrepresentatives The facility must of the allow representativesof the StateOmbudsman, State Ombudsman, described describedin in paragraph paragraph (j)(l)(iv)of this section, to (j)(1)(iv) of thissection, to examine examine aa resident's resident's clinical recordsw clinicalrecords iththepermission with the permissionofthe of the resident ortheresident's legal r epresentative,andconsistent with State l aw. resident or the resident's legal representative, and consistent with State law. (k)Telephone. Theresident hastheright o have (k) Telephone. The resident has the righttto havereasonable accessto reasonableaccess tothe useof theuse ofaa telephone telephone where calls anbemade where calls ccan be madew ithout without being beingoverheard. overheard. (1)Personalproperty.Theresident (1) Personalproperty. hasthe The resident has the rightto retainanduse to retainand usepersonal personalpossessions, possessions,including including some fumishings, andappropriate clothing, as space permits, unless some furnishings, and appropriate clothing, as space permits, unless to doso t o do so would wouldinfringe infringe upon therights healthandsafetyofotherresidents. upon the rights oorr health and safety of other residents. (m)Married (m) couples.Theresidenthastherightto sharea roomwithhis or her spousewhen Married couples. The resident has the right to share a room with his or her spouse when married residents liveinthe sameffacility married residents live in the same acility ndboth aand spousesconsent bothspouses consentto the to the arrangement. (n) Self-Administration of Anindividual residentmayself-administer (n) Self-Administration of Drugs. An individual residentmay if the self-administer drugs if the team, as definedby§ ii hasdetermined that t his practice issafe. interdisciplinary team, as defined by § 483.20( d)(2)(ii), has determined that this practice is safe. 13 be may revoked 38C.F.R.52.70Participant may be revoked The hasa righttoa rightsforwhichMedicareeligibilityto LongTermCarefacility 38 C.F.R. 52.70 Participant rights for which Medicare eligibility to Long Term Care facility existence, self-deterrnination,andcormnunication with The participant has a right to a dignified existence, self-determination, and communication with and access t o persons andservices insideandoutsidethefacility. The program management and access to persons and services inside and outside the facility. The program management must protect andpromote therightsofeachparticipant, including eachofthefollowing rights: must protect and promote the rights of each participant, including each of the following rights: — (a) of (1)The has theright to exercise h is herrights (a) Exercise of rights. (1) The participant has the right to exercise hisor as a participant oftheprogram andasa citizen resident participant of the program and as a citizenor oftheUnitedStates. or her rights as a or resident of the United States. (2)The hastherighttobefreeofinterference, coercion,discrimination, andreprisal (2) The participant has the right to be free of interference, coercion, discrimination, and reprisal from theprogram m anagement inexercising hisorherrights. from the program management in exercising his or her rights. (3)The hastherighttofreedom fromchemical orphysicalrestraint. (3) The participant has the right to freedom from chemical or physical restraint. 22.04.(a) 14 § 22.04. A personcommitsan offenseif he intentionally, knowingly, (a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminalnegligence, by act or intentionally, 9 recklessly, or recklessly with criminal negligence, by act or intentionally, knowingly, or by omission, causesto a child,elderly 9 individual, ordisabled individual: knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual: (1 serious bodily binjury; (1 serious bodily (2) Seriousmental binjury; impairment,or injury; or (2) Serious mental deficiency, impairment, or injury; or Silverado Appx. 0540 No. 1-15-567-CV 1629 exploitation, or exploitation, or ClassB Class 18U.S.C. B misdemeanor),15 18 241(intentional U.S.C. 241 deprivation (intentional deprivation of of Constitutional Constitutional federal felony), 18 rights,federal rights, U.S.C.242 18 U.S.C. (conspiracyto 242 (conspiracy violate to violate Constitutional Constitutional rights, felony),18 rights, felony), 18U.S.C U.S.0 247 (Deprivation oftherightof 247(Deprivation freeexercise of the right of free exercise of religion of intentionally, religionintentionally, felony),42 felony), U.S.C.1983, 42U.S.C. theTexas 1983, the TexasCitizens Participation Citizens Participation Act (Anti-SLAPP Act (Anti-SLAPP Statute)", TexasRulesof Procedure10 CivilProcedure Texas Rules of Civil and 13, 10 and andTexas 13,and Texas Disciplinary Rules Disciplinary Rules of of Professional Conduct1.15,3.01, ProfessionalConduct 3.02,3.04, 1.15, 3.01, 3.02, 3.05,4.01,4.04, 3.04, 3.05, 4.01, 4.04, 5.08and8.04. 5.08 and 8.04. 16.DEFENDANTS’ attacked ultimately forASSAULT claims PLAINTIFFS’ AND 16. DEFENDANTS' ultimately attacked PLAINTIFFS' claims for ASSAULT AND . BATTERY, BATTERY, FALSE CONSPIRACY, stating AND CONSPIRACY, IMPRISONMENT, AND FALSE IMPRISONMENT, stating thatthere that there wasno was no legalbasisforthem torecover legal basis for them to dueto recoverdue lackof tolack standing of standing and/orno and/or factual nofactual evidence evidence to to support support theclaims. the claims. Both oftheforegoing Bothof claimsare the foregoing claims WRONG areWRONG andshould and havebeen neverhave should never been DISMISSED DISMISSED under R under ule91a Rule or pursuant 91a or pursuant to pleain to plea abatement in abatement byJILLYOUNG filed by JILL YOUNG AND RUSS AND JONES. RUSS JONES. TheRule 11 17.The 17. Agreementexecuted 11Agreement October18,2014 executedOctober 18, 2014 did not did notdeprive PLAINTIFFS of of deprivePLAINTIFFS standing standing because it was because it voidwhen wasvoid executed when executed byillegality, by illegality, duress, lackofconsideration, duress,lack of consideration, andfraudulent and inducement. fraudulent inducement. As previously briefed Aspreviously briefed a ndargued and thisCourt, argued ttoo this Chapter Court, Chapter 166 166 oftheTexas of Healthand the Texas Health SafetyCode andSafety clearlystates Codeclearly thatonly statesthat principal only aa principal revoke canrevoke aa can MEDICAL MEDICAL POWER OF ATTORNEY and POWER OFATTORNEY whethercompetent and whether competent incompetent, orincompetent, or the the revocation revocation iseffective is immediately, effective immediately, requiring requiring that SILVERADO, thatSILVERADO, JILL YOUNG, JILLYOUNG, RUSS RUSS JONES, JOSH JONES, JOSH DAVIS, DAVIS, SARAH SARAH PACHECO, PACHECO, CAROL CAROL ANN ANN MANLEY, MANLEY, AND AND DAVID DAVID that SILVERADO withSILVERADO thisCourt, with havingthe PETERSON aacknowledge PETERSON cknowledge thatfact fact to to this having the additional additional dutyto duty observe toobserve it andcomply. itand comply. Despite 18.Despite 18. theseattorneys these attomeys andtheirclients’knowledge POWER thatthe1993MEDICAL and their clients' knowledge that the 1993 MEDICAL POWER OFATTORNEY 15,2013andthattherevocation November wasrevoked was OF ATTORNEY was revoked November 15, 2013 and that the revocation was EFFECTIVEwhether EFFECTIVEwhethersshe was incapacitated he was or not incapacitatedor not (with presumption (withaa presumption underthe under the Silverado Appx. 0541 No. 1-15-567-CV 1630 Probate Estates C Probate// Estates of capacity), CourtInvestigator odeofcapacity), Code AndiPPavlicek's InvestigatorAndi avlicek’s Report(a Report (amere mere four days four days after after the the 19.g 19. application uardianship guardianship as served wwas application ononDefendant’s served with Defendant's withno doctor'sinput nodoctor’s inputor or informationaboutthe informationabout the estate) states that estate) states SILVERADO that SILVERADO SENIOR SENIORLIVING doesnot LIVING doesnot acknowledge acknowledgethe the November owerof Novemberppower of attorneybecause (they believed)R attorneybecause(theybelieved) UBYlacked RUBY lacked capacity. for SILVERADO,theydo UnfortunatelyforSILVERADO, capacity. Unfortunately they donot have the luxuryofdeciding nothavetheluxury that of deciding that question because question TexasH because Texas ealthaand Health SafetyC ndSafety ode166.155 Code hasdecided theissueforthem. 166.155 has decided the issue for them. 20.Firstandforemost, theDEFENDANTS allknewthat powerooffattorney 20. First and foremost, the DEFENDANTS all knew thataapower could not attorney couldnot RUBYPETERSON legally confine RUBY legally againstherwillandadmitthatshe wasbeing PETERSON against her will and admit that shewas held being held againstherwill.Themedical recordsprovided byRUSSJONESfromSilverado Senior against her will. The medical records provided by RUSS JONES from Silverado Senior Living repletewithinstances of RUBYPETERSON cryingandscreaming to go are replete with instances of RUBY PETERSON crying and screaming togo Living are home.DR.MERKL thatshecriedandaskedfora minister tostating inaddition home. DR. MERKL testified that she cried and asked for a minister in addition to stating she wanted she wanted to home. DEFENDANTS go home. DEFENDANTS never to go took issue with thefact that RUBY never took issue with the fact that RUBY wanted wanted out ofSILVERADO SENIOR LIVING. Instead,RUSS JONES tried totwist out of SILVERADO SENIOR LIVING. Instead, RUSS JONES tried to twist whatRUBY meantwhenshesaidhome.Buthomewasn’ttheonlyplaceRUBY wanted what RUBY meant when she said home. But home wasn't the only place RUBY wanted to Sherepeatedly toldSILVERADO ANDDEFENDANTS thatshewantedto goto to go. go. She repeatedly told SILVERADO AND DEFENDANTS that she wanted to go to churchand wanted tospend time with hersons outside ofSILVERADO’S walls. Each church and wanted to spend time with her sons outside of SILVERADO'S walls. Each timesheasked,testimony thatCAROL actedtogether ANNandSILVERADO time she asked, testimony confirms that CAROL ANN and SILVERADO acted together to denyherthisright. to deny her this right. 21.SILVERADOcarriedoutCAROL ANN’SINSTRUCTIONS to deny the 21.SILVERADO carried out CAROL ANN'S INSTRUCTIONS to deny PLAINTIFFS the rightto evenseetheirmotherforsixweeksbetween November 15,2013andChristmas right to even see their mother for six weeks between November 15, 2013 and Christmas ofthatyear—only allowingvisitation to resumeiftheyagreedto signanonerous Rule of that year—only allowing visitation to resume if they agreed to sign an onerous Rule llAgreement onthe eve ofChristmas under emotional duress. 11 Agreement on the eve of Christmas under emotional duress. 22.ThisCourt,at DEFENDANTS’ falsepromptings,statesthatactionsof SCHWAGER 22. This Court, at DEFENDANTS' false promptings, states that actions of SCHWAGER prevented thefamilyfromsettlingthismatterwhichcouldeasilyhavebeendonewhen prevented the family from settling this matter which could easily have been done when Silverado Appx. 0542 No. 1-15-567-CV 1631 JUDGE SYLVIA SYLVIAM ATTHEWS MATTHEWS onJuly19, on July 19,22014 014totowhich whichshereplied she replied""absolutely absolutelynot." not." 23.PACHECO 23. PACHECOrefused o mediate refusedtto mediate becauseDEFENDANTS DEFENDANTShadalloftheleverage had all of the leverageagainst against PLAINTIFFS no incentive todo PLAINTIFFS andHO so.Were dos0. Werethis thisnot so,the notso, matter wouldhave thematter have been resolved amicably in Decemberof2013, amicablyinDecember of 2013,nnot a yearlater otayear laterafter afteraaMotion toCompel Motionto Compelhad hadto to be be filed to even have to even have aa doctor doctor of of PLAINTIFFS’ choosingexamine PLAINTIFFS' choosingexamineR UBYanddetermine RUBY and determine 0 whether whether she was safeandbeing she was caredfor safe and being cared forappropriately. PACHECO appropriately. PACHECO complainsthat complains that 0 PLAINTIFFS’ accusationsofnefarious PLAINTIFFS' accusationsof nefarious conduct conducttowards towardsR UBYbyDEFENDANTS RUBY by DEFENDANTSisis KNOWING thatherclientsstonewalled PLAINTIFFS, outrageous KNOWING that her clients stonewalled PLAINTIFFS,refused outrageous refusedto provide to provide themwith informationaboutRUBY’S wellbeing,secretlyincarcerated RUBYat any information about RUBY'S wellbeing, secretly incarcerated RUBYat them with any SILVERADOwithoutpriornotice toanyoneor SILVERADO without prior noticeto anyone or agreement, mentionedthe trust never mentioned thetrust agreement,never and/orpowerof attorneyPLAINTIFFS discoveredin2013,andof thecountlessliesand and/or power of attorney PLAINTIFFS discovered in 2013, and of the countless lies and aggressiveattemptsto deliberately hideinformation and/orassetsofRUBY’S. aggressive attempts to deliberately hide information and/or assets of RUBY'S. 24.If 24. DEFENDANTS’ actionswere appropriate, there was neverany cause for If DEFENDANTS' actions were appropriate, there was never any cause for DEFENDANTS’ actionsandthismatterwouldneverhaveescalated aggressive to the DEFENDANTS' aggressive actions and this matter would never have escalated to the lawsuit(guardianship) muchless second(District Courtaction) third(federal first lawsuit (guardianship) much lessaa second (District Court action)ora or a third (federal Courtaction). Atalltimes,PLAINTIFFS haveactedoutof concern andtheirattorneys Court action). At all times, PLAINTIFFS and their attorneys have acted out of concern for RUBYPETERSON. hadgoodcauseto believethat DEFENDANTS PLAINTIFFS for RUBY PETERSON. PLAINTIFFS had good cause to believe that DEFENDANTS were inappropriatelydruggingtheirmother,of whichsomemedicalevidencewas were inappropriately drugging their mother, of which some medical evidence was obtainedthroughDr. and Ruby’smedicalrecords—prior to settlement. obtained through Dr. Tennison and Ruby's medical records—prior to settlement. DEFENDANTS admitted drugging RUBYagainst herwill,whichis anassaultunderthe DEFENDANTS admitted drugging RUBY against her will, which is an assault under the law.DEFENDANTS admitted holdingRUBYagainstherwillandthemedical records law. DEFENDANTS admitted holding RUBY against her will and the medical records enteredintoevidence speakforthemselves, statingthatRUBYwouldbefoundcrying entered into evidence speak for themselves, stating that RUBY would be found crying andscreaming togohome. and screaming to go home. Silverado Appx. 0543 No. 1-15-567-CV 1632 25. 25.F IVEAFFIDAVITS FIVE weresubmitted AFFIDAVITSwere submittedwitheachamended with each amendedppetition, etition,pareddown downin inan an effort o simply effort tto simplytthe hetrialinthis casewith trial in this casewiththeexpertise the expertiseof seasonedcivil ofaaseasoned civilrrights ightsaattorney ttomey editing editing the the e xhaustive exhaustive work work ofSCHWAGER, of SCHWAGER,who whopled pledcclaims laimsfor forw hich whichevidence evidencewas was presented presentedD uringthe During the fourdayinjunction four day injunction hearing. hearing. See testimony0f See testimony of David Peterson, Peterson, Carol CarolAnn Ann Peterson,Dr. Dr. M erkl, Merkl, Carol Jane Jane P eterson, Peterson,Don Don P eterson, Peterson,Lonnie LonniePeterson, Peterson, TonyaPeterson,Mack TonyaPeterson,MackP eterson, Peterson, TanaM Tana cMillan McMillanand Dr.JJohn andDr. ohnTTennison. ennison. Theadditional The additional DEFENDANTSsued, DEFENDANTS sued,D R.M DR. ERKL, MERKL, DR. DR. C LEARMAN, CLEARMAN, TANA TANA MCMILLAN MCMILLANAND AND LINDA LAVINSON demonstratedculpability LINDA LAVINSON culpabilityfor someof forsome tortsalleged oftorts allegedinthislawsuit in this lawsuit and were only and were onlydismissed tostreamline dismissedto the litigationbetween streamlinethelitigation theparties.At between notime the parties. Atno timedid did Plaintiffs epresentoorr concede Plaintiffs rrepresent (and DEFENDANTScertainly concede (andDEFENDANTS neverproved) certainlynever proved)thatclaims that claims against against these these DEFENDANTS DEFENDANTSlacked lackedevidentiary evidentiarysupport assertedorany or were assertedffor supportorwere other any other purposethan purpose believed absolutely legitimate than believed absolutely legitimateandsupported byevidenceatthetime and supported by evidenceat the the time the pleading pleading was ofthesepartieswere none of these partiesw was filed. Furthermore,none ereever evereven served,sothey even served,so did they did have incur any expense retaining an attorneyto represent them. There was no not have to not to incur any expense retaining an attorney to represent them. There was no harm harm to themandPLAINTIFF S (andcounsel) annotbe to them and PLAINTIFFS (and counsel)ccannot sanctionedfor libelclaims be sanctioned foraa libel claims they they are barredfrompursuing bythelitigation privilege.Rule10and13donotimpose are barred from pursuing by the litigation privilege. Rule 10 and 13 do not impose sanctionsforanything lessthanbadfaithand/orintentto harass,whichhas neverbbeen sanctions for anything less than bad faith and/or intent to harass, which hasnever een provenbyDEFENDANTS. proven by DEFENDANTS. 26. The Sanctions ORDERS November issued 10, 2014addressed and Decemberin 9,2014 26. The Sanctions ORDERS issued November 10, 2014 and addressed December 9, 2014 in hearing,whichwere by this Courton January9, 20l5—aresimplynot hearing, which were affirmed by this Court on January 9, 2015—are simply not supportedbycredibleevidence andmustberescinded, modifyingtheORDERS. First supported by credible evidence and must be rescinded, modifying the ORDERS. First andforemost, theCourtcannotusean illegal whichonly(albeit 11 agreement and foremost, the Court cannot use an illegal rule 11 agreement which only (albeit illegally)saysthePartiesagreethatCAROL ANNANDDAVID cancontinue tousethe illegally) says the Parties agree that CAROL ANN AND DAVID can continue to use the 1993POWEROFATTORNEY —rather thansayingtheyadmitthattheirNOVEMBER 1993 POWER OF ATTORNEY —rather than saying they admit that their NOVEMBER 2013DURABLE OFATTORNEY POWER wereinvalid. ANDREVOCATION 2013 DURABLE POWER OF ATTORNEY AND REVOCATION were invalid. As Silverado Appx. 0544 No. 1-15-567-CV 1633 have meritbecause nomerit have no because NOW THEY NOW THEY MIGHT MIGHT lackstanding, lack whichPLAINTIFFS standing, which PLAINTIFFSdeny deny because because the Rule the Rule ll isvoid 11 is void and and a lways always was void. was DEFENDANTS obtained void. DEFENDANTS obtained dismissal dismissal of of PLAINTIFFS’ PLAINTIFFS'claimsagainstthem bybyfraud claims against them fraudand shotgun and aa shot approachof gunapproach of misrepresentations misrepresentations andliesdesigned and lies designed to confusethe to confuse theissuesandmislead theCourt, while issues and mislead the while inflaming inflaming theJudge’s passions the Judge's passions againstPLAINTIFFS against PLAINTIFFSandtheir attorneyiinn ways and their attorney that waysthat egregiously egregiously v iolatea litany violate litanyof disciplinary of disciplinary rules. rules. 27.The Court found never violated SCHWAGER theProtective Order the andinfact, 27. The Court never found SCHWAGER violated the Protective Order and in fact, the blogging blogging ofwhich of DEFENDANTS which DEFENDANTS complain complain occurred occurred over over a a 10 month p 10month eriodpprior period riorttoo thelawsuit the andduring lawsuit and periodsof during periods oftimeinwhich noprotective time in which no orderor protective order rulell orrule 11 agreementwas agreement inplace wasin giveSCHWAGER to give place to noticethatherFIRST SCHWAGER notice AMENDMENT that her FIRST AMENDMENT PROTECTED PROTECTED S PEECHcould SPEECH ever serve as a basisforsanctions could everserveasa basis for sanctions b byythisCourt. First this Court. First andforemost, and Judge represented tthat theJudgerepresented foremost, the hathewould not interfere he would not withtheright interfere with blog to blog the right to andspeak and publicly speak publicly thecase aboutthe about caseunder theFirst underthe Amendment First Amendment duringhearings during hearingsthat that July28and30,2014. occurred July SeeTranscript. 28 and 30, 2014. See Transcript. 28.Second, 28. SARAH Second, SARAH PACHECO ccomplains PACHECO omplainsof of media media attention et shewillingly attention yyet she willingly rran to anto interview interview withKPRC with KPRC Channel Two News when Channel TwoNews they appeared iin when theyappeared n Court Courton onor about or about July30,20l4—and July 30, 2014—and g statement aveaa statement gave oncamera o betelevised. on camera tto Thiswas be televised. This wasprior tomost prior to most alloftheblogs all sheobjected of the blogs she objected to andfliesinthefaceofheralleged toand distaste flies in the face of her alleged distaste forpublicity for publicity concerning concerning tthis his case. SCHWAGER Notably,SCHWAGER case.Notably, declined declined comment comment to thereporter, to the reporter, deferring deferring to herclient to her client and PHIL ROSS andPHIL to choose ROSS to choose tto ocomment or refrain. comment or Thisproves refrain. This proves whosought who thespotlight sought the spotlight promote totopromote herself—PACHECO. herself—PACHECO. JONES, JONES, YOUNG YOUNG AND AND PACHECO PACHECO w ereangry were with SCHWAGERforpointing angry withSCHWAGER out liesandthe for pointingout failureto lies and the failure to perform theirduties required their duties required byState by andFederal State and muchlike Law,much Federal Law, likeJOSH DAVIS JOSH DAVIS and and SILVERADO SILVERADO SENIOR SENIORLIVING, LIVING,whose stemmed frombeingexposed anger stemmed whose anger for from being exposed for Silverado Appx. 0545 No. 1-15-567-CV 1634 wrongdoing wrongdoing and and little little eelse. lse. 29. 29. TheMOTIONS The MOTIONS FOR SANCTIONS FOR SANCTIONS and and to DISMISS to DISMISS PLAINTIFFS’ PLAINTIFFS' CLAIMS CLAIMS whether whether under under RULE RULE 9lA 91A OR PLEA I OR PLEA INNABATEMENT ABATEMENT // JURISDICTION,wereffrivolous JURISDICTION,were rivolous andsanctionable and sanctionable uunder nderRule Rule 10and13.PLAINTIFFS prayforsanctions.PLAINTIFFS 10 and 13. PLAINTIFFS againpray for sanctions. PLAINTIFFS C) SV FILED FILED FORTEMPORARY FOR TEMPORARYINJUNCTION INJUNCTIONandpledwiththeCourt and pled with the Courtto fearingtheir grant relief,fearing togrant their CI mother would mother would die attSilverado. die a Silverado. The The C ourtdismissedPLAINTIFFS'claims dismissedPLAINTIFFS’claimsagainst againstSILVERADO r-- Court SILVERADO on Thursday, on Thursday, December December6,2014. 6, 2014. RUBY RUBYDIEDonnthe DIEDo the 11thofDecember, of December,2013 toPLAINTIFFS’ 2013to PLAINTIFFS' horror. horror. DEFENDANTS DEFENDANTSbreached breachedtheir theirppurported urportedRule 11 Agreementbyfailing Rule11Agreement by failingto toever everremove remove herfrom SILVERADOanddemonstrated her from SILVERADO and demonstratedbadfaithintheobvious bad faith in the obviousintent intenttto neverccomply o never omplywwith ith their their obligation to doso.RUBY to do so. RUBY PETERSON diedattSILVERADO PETERSON died a SILVERADO SENIOR LIVING,after SENIOR LIVING,after exclaiminghowshewas"anold exclaiming how shewas womanw "an oldwoman ithno with rights." no rights." 30. 30. DAVIS,PACHECO, JONES AND YOUNG demanded sanctions DAVIS, PACHECO, JONES AND YOUNG demanded sanctionsto this Court based to this Court based inadmissiblehearsay,slanderous of SCHWAGER theyknew be false or upon inadmissible hearsay, slanderous accusations of SCHWAGER they knewtoto be falseor upon lackedanyevidence tostatewhenstated,andpleadings inthefederalcasewhichwerenot lacked any evidence to state when stated, and pleadings filed in the federal case which were not authoredbySCHWAGER andwhichtheyknewto bethe case. SCHWAGER hadtherightto authored by SCHWAGER and which they knew to be thecase. SCHWAGER had the right to blogandisprotected bytheFirstAmendment oftheUnitedStatesConstitutionwellasArticle blog and is protected by the First Amendment of the United States Constitutionas as well as Article I, Section8 of theTexasConstitution, resulting in an outrageous awardof attomeys’ feesto I, Section 8 of the Texas Constitution, resulting in an outrageous award of attorneys' fees to SILVERADO SENIOR LIVING forabusing andcontributing to thewrongful deathofRUBY SILVERADO SENIOR LIVING for abusing and contributing to the wrongful death of RUBY PETERSON. PLAINTIF FSpledforaninjunction tosavetheirmother’s life.Shediedjustasthey PETERSON. PLAINTIFFS pled for an injunction to save their mother's life. She died just as they feared. Theyproved theirclaims. There’s nothing aboutthislawsuit. feared. They proved their claims. There's nothing frivolous about this lawsuit. 31. TheSanctions is attached transcript heretoandincorporated herein,highlighting the 31. The Sanctions transcript is attached hereto and incorporated herein, highlighting the intentionalefforts ofDEFENDANTS’ COUNSEL,SARAH PACHECO, JILLYOUNG, JOSH intentional efforts of DEFENDANTS' COUNSEL, SARAH PACHECO, JILL YOUNG, JOSH DAVISANDRUSSJONESto inflameandprejudicethejudgeagainstSCHWAGER bybringing DAVIS AND RUSS JONES to inflame and prejudice the judge against SCHWAGER by bringing Silverado Appx. 0546 No. 1-15-567-CV 1635 during a sanctions hearing. during a hearing. 32. 32. Theentire The entire h earing hearing w asreplete was replete w ithunauthenticated with unauthenticatedhearsay hearsayaand ndhearsay hearsayw ithinhhearsay within earsay properly properly objected to but objectedto but permitted over objection. permitted over objection.Thisviolates This violatesSCHWAGER’S SCHWAGER'Sright todue rightto due processby not providing process by not providing herwiththe her with the opportunity tobe opportunityto be heard, aftersheproved after she proved w ithmedical with medical documentation documentation and and affidavit affidavitthat thather herabsenceats absenceat aid saidhearing wasmedically hearingwasmedicallymandated mandateddue tohigh dueto high 0 blood pressure aand blood pressure ndtachycardia. tachycardia. 0 33. 33. Clearly,theJudgewas angrybythe Clearly, the Judgewasangry statementsissued by the statements issuedandthat and thatanger ppearstotohave angeraappears have motivatedhighsanctionswhichfail to describe motivated high sanctions which failto describetthe he conduct conductspecificallyengaged engagedin inby by SCHWAGERforwhichtheJudgeclaimsRule3.7 was SCHWAGER for which the Judge claims Rule 3.7 violatedacknowledging was violated ((acknowledginginthe7.28.14 in the 7.28.14 hearingthis is usuallyin high andcriminal hearing this rule is usually in high profile and criminalttrials) rials)for foractions notcovered actionsnot coveredby byany any protectiveorder,Rule ll Agreementor gag orderand undercircumstances protective order, Rule 11 Agreement or gag order and under circumstances whichindicate which indicate SCHWAGERunderstoodtheJudge gaveher light o blog SCHWAGER understood the Judgegave green lighttto heraagreen blog whatever whatevershepleased. she pleased.See See transcriptattached. transcript attached. 34. JOSHDAVIS,SARAHPACHECOANDRUSSJONESwilldenythe same,butthe 34. JOSH DAVIS, SARAH PACHECO AND RUSS JONES will deny the same, but the timing of their late filed BRIEFSto deny PLAINTIFFS’ APPLICATIONFOR timing of their late filed BRIEFS to deny PLAINTIFFS' APPLICATION FOR TEMPORARYINJUNCTION andnearlyidenticalMOTIONS FORSANCTIONS filedin TEMPORARY INJUNCTION and nearly identical MOTIONS FOR SANCTIONS filed in unisonblatantlysuggesta concertedeffortto illegallyretaliate.MOVANTS havebeen unison blatantly suggest a concerted effort to illegally retaliate. MOVANTS have been alignedagainstRESPONDENTS fromthe outsetof this litigationwithoutany attemptsto aligned against RESPONDENTS from the outset of this litigation without any attempts to communicate withPLAINTIFFS’ counsel,suchthatonePARTYeffectively speaksforall. communicate with PLAINTIFFS' counsel, such that one PARTY effectively speaks for all. REPONDENTS urge the Courtto considerthejoint vexatiouseffortsof DEFENDANTS’ REPONDENTS urge the Court to consider the joint vexatious efforts of DEFENDANTS' andtheircounselto harass,intimidate, andretaliateforexposing wrongdoing ontheirpart. and their counsel to harass, intimidate, and retaliate for exposing wrongdoing on their part. Nevertheless, RESPONDENTS will addresseachfrivolousargumentassertedin their Nevertheless, RESPONDENTS will address each frivolous argument asserted in their conspiracy ofretaliatory MOTIONS. conspiracy of retaliatory MOTIONS. Silverado Appx. 0547 No. 1-15-567-CV 1636 Rule1.15: Rule 1.15:D eclining Declining oorr Terminating Representation a. A a. A lawyer shall decline lawyer shall declineto client or, represent aa client to represent representationhas where representation or, where has shallwithdraw, commenced,shall withdraw,except asasstated except statedininparagraph paragraph( (c)c) from from 0 representationif: representationif: 0 i.i. The Therepresentation representation willresult will resultiin violationofRule n aa violationof Rule3.08, 3.08, otherapplicableprofessional other applicable professionalcconduct onductororother other law 35. 35. DEFENDANTS, CAROL ANN MANLEY AND DAVID DEFENDANTS, CAROL ANN MANLEY AND DAVID TROY TROY PETERSON,AS WELLAS SILVERADO SENIORLIVINGand its employees re PETERSON, AS WELL AS SILVERADO SENIOR LIVING and its employeesaare violating long list of federaland state statutes, violatingaa long list of federal and state statutes, which guaranteeRUBY which guarantee RUBY PETERSON,enumeratedrightslistedherein.Theirmisconductin knowingly PETERSON, enumerated rights listed herein. Their misconduct in filing knowingly frivolouspleadingsdesignedto harassand increasethe costsof litigation,while frivolous pleadings designed to harass and increase the costs of litigation, while wastingjudicial resourceson petty complaintsthat have no _placein this wasting judicial resources on petty complaints that have no place in this proceeding, as well as attemptsto demeanand degradewitnesswith patently proceeding, as well as attempts to demean and degrade witness with patently knowingly irrelevant, evidence——should admissible notbe tolerated. irrelevant, knowingly admissible evidence—should not be tolerated. 36. Norshouldthe CourttolerateDAVISANDPACHECO’S attemptto elicit 36. Nor should the Court tolerate DAVIS AND PACHECO'S attempt to elicit bias fromthis HonorableJudgeby PACHECO’S highlyunethicalandimproper bias from this Honorable Judge by PACHECO'S highly unethical and improper questioningof PLAINTIFFS’expert witness,DR. JOHN TENNISON,M.D., a questioning of PLAINTIFFS' expert witness, DR. JOHN TENNISON, M.D., a highly forensicpsychiatrist whois a memberof theAmerican Medical highly qualified forensic psychiatrist who is a member of the American Medical Association, unlikeDR.CHRISTOPHER whoviolatespatient’srightsin MERKL, Association, unlike DR. CHRISTOPHER MERKL, who violates patient's rights in forciblydruggingRUBYPETERSON or deceiving her to takedrugsthatshehas forcibly drugging RUBY PETERSON or deceiving her to take drugs that she has unambiguously objectedto. TotheContrary, SCHWAGER complimented the unambiguously objected to. To the Contrary, SCHWAGER complimented the Judge in a disabilityrightsvenueof 71,000members, statingthathe wasbyfarthemost in a disability rights venue of 71,000 members, stating that he was by far the most Silverado Appx. 0548 No. 1-15-567-CV 1637 impressive impressiveJudge she had practicedbbefore Judgeshehadpracticed eforeinin 16 16 years. LT) 0 0 Silverado Appx. 0549 No. 1-15-567-CV 1638 37. 37. Inresponse In response SCHWAGER toSCHWAGER to merely defending merely defending herrecord her record in in stating that no that no JUDGE sanctioned eversanctioned JUDGE ever herforsocial mediaor her for social media anything oranything otherthan other nominal thanaa nominal mistake mistake inaapleading in pleading ofthe of amount the amount thedefendant the stolefrom defendant stole hisincapacitated from his mother, incapacitated mother, the the V Courtinsisted Court insistedthatit that wasnot it was looking notlooking toextraneous to things extraneous things indetermining in sanctions, determining sanctions, in yet theentiresanctions yetthe hearingwas entire sanctions hearing wasone extraneous one extraneous exhibitafter exhibit afteranother another and federal andaa federal Ill petition petition w hichwas which wasnever evenfiled, but never even not filed bySCHWAGER. but certainly not by SCHWAGER. ul 44 38. 38. PACHECOANDDAVIS PACHECO have violated 4.01 and4.04by AND DAVIS haveviolated4.0l theircomplicity and 4.04 by their complicity in inappropriate in inappropriatecriminal criminalthreatsagainstPLAINTIFFS threats against PLAINTIFFS and their attorney and their for attorneyfor criminalttrespass criminal respass and and contempt olely toto gain contemptssolely gain an advantagein an advantage civil a civil in a proceeding. proceeding. PACHECO PACHECOddemonstrates emonstratesno respectffor norespect ortherightsof thirdpersons the rights of third persons integrityof or integrity or these of these proceedings proceedings with with highly highly inflammatory, inflammatory, slanderous slanderous questionstargeted questions to place targetedto place witnessesin false light witnesses inaa false to the light to the Court. Thiswas Court. This was degradingaand violation nd aa violation of ofthe theRules Rulesgoverning attorneys’ behavior.Rule degrading governing attorneys' behavior. Rule 3.04,4.04.H 3.04,4.04. Her actionsjustify er actions sanctionsfor justify sanctions abusingprocess for abusing harass, to harass, processto intimidate intimidate andretaliate and illegally retaliate illegally against against PLAINTIFFS PLAINTIFFS andtheir and ATTORNEY. their ATTORNEY. 39. 39. InFlynt In Flynt v. Falwell, v. Falwell, TheCourt notedthattheFirstAmendment The Court noted vigorously that the First Amendment vigorously protects tthe protects heright criticizein right ttoo criticize inmatters ofcore mattersof publicand corepublic andpolitical concern. political concern. With With elderabuseandexploitation elder nationwideepidemic abuse and exploitation aa nationwide the issues asserted in epidemictheissuesasserted this in this could not matter could matter be greater not be politicalspeech" "corepolitical greater"core speech" on of public mattersof on matters public publishedby Seearticles published concern.See concern. bythe theAmerican Bar BarAssociation, Association,Senior HousingNews,LongTerm LivingMagazine, Housing News, Long Term Living Magazine,Southeast TexasRegister, SoutheastTexas TexasBar Register,Texas Bar Feature Silverado Appx. 0550 No. 1-15-567-CV 1639 40. 40. DAVIShas DAVIS intentionally has intentionally aand nd relentlessly relentlesslydeceived deceivedthis Courtwith this Court with statements adamant statements ofSILVERADO of SILVERADOSENIOR SENIOR LIVING’S LIVING'S deep deep concern forthe concern for the privacyrightsof privacy itsresidents, rights of its residents, RUBY RUBY PETERSON, PETERSON, andemployees and whenthe employees when the truth ofthe truth of matter the matter isthat is SILVERADO’s that SILVERADO's objections objections thevideo tothe to video and and evidence evidence inthis in beingpublic casebeing this case publicare strictlyfinancial. arestrictly 41. 41. JOSHDAVIShas JOSH DAVIS hasfurtherattempted totodeceivethe further attempted deceive theCourt Court by placing by placing SCHWAGERinina a false SCHWAGER false light, light, as as if hejust if he justhappened happenedtotostumble stumbleupon upon SCHWAGER’S SCHWAGER'S socialmedia social media posts andthe posts and videosat the videos issue.Theattached at issue. exhibits The attached exhibits _ regardingSILVERADO’S marketingrevealthat regarding SILVERADO'S marketing 80-90%of reveal that 80-90% theirtarget of their market, targetmarket, babyboomers, baby are on Facebook. boomers, areon Facebook. Theforegoing The foregoing v iolationsooff the violations theDisciplinary Disciplinary Rules certainly arecertainly Rules are not comprehensive notcomprehensive but demonstrate butdemonstrate thatboth that attorneys both attorneys have have aduty towithdraw under Rule 1.15 andhave not. a duty to withdraw under Rule 1.15 and have not. b.Rule b. Rule 3.01 3.01 Meritorious Meritorious Claims Claims andContentions and Contentions a. lawyershall a. AAlawyer shall not bringor notbring defendaaproceeding, ordefend proceeding,or assert or assert controvert any or controvert or issuetherein, any issue unlessthe therein, unless thelawyer lawyer reasonablybelievesthat reasonably believes that there there is basis for is a basis for doing doingso that is so that 15 not frivolous. not frivolous. 42. DAVISviolated 42. DAVIS violatedRule3.01in sendingthe Rule 3.01 in sending anddesist ceaseand the first cease desistletterand letter and accompanying accompanying emails to emails to SCHWAGER,threatening SCHWAGER, TEMPORARY threatening aaTEMPORARY RESTRAINING ORDER that has been not inthe grantedState ofTexas in200 RESTRAINING ORDER that has not been granted in the State of Texas in 200 yearsor upheldin years or upheld theUnited in the StatesSupreme United States Supreme Court. Thisnecessarily Court.This that meansthat necessarily means DAVISthreatens DAVIS threatens c riminalaand criminal nddisciplinary disciplinaryactionin action thisproceeding in this SOLELY proceeding SOLELY to to gainan gain advantage,violating an advantage, violatingRule Rule4.04. 4.04. 42 Thr dicintyprimme accprtinn that CTT \/F12 Ann,q rnnrern ie thp rstivartf riohte Silverado Appx. 0551 No. 1-15-567-CV 1640 of RUBYPETERSON of RUBY PETERSON while while violatingher her privacyrightswith rights withrespect o meeting respecttto meeting with withher useof her family,use of telephones, telephones,theassaultive the assaultive showerincident, incident,andmailreveals and mail reveals that SILVERADO that SILVERADOhhas as no respect for no respect RUBY’Sprivacy for RUBY'S privacyrights.The attached rights. The attached exhibits exhibits rrevealing evealingSSILVERADO'S ILVERADO’Sroutine routineexploitation exploitationofoftheirresidents their residentsbby y using using them them in advertising—when in advertising—when they they have personalability no personal have no abilityto to consent. SILVERADO consent.SILVERADO also routinelyuses also routinely employeesin uses employees Youtubevideos, in Youtube videos,with TANNA with TANNA MCMILLAN MCMILLAN testifying testifying tthat hatupon upon entering entering thefacility, the facility, e mployees employees and residentsssign and residents igndocuments documents CI waiving waivingprivacy privacyrights sothatSILVERADO rightsso can usethemintheir that SILVERADOcanuse them in theiradvertising. advertising. CJ 0 44. 44. Likewise,PACHECO complicitinherclient’s Likewise, PACHECOisiscomplicit in her client's d ishonesty dishonesty as demonstrated as demonstratedin in DAVIDPETERSON’S DAVID PETERSON'Sown testimonyduringthe injunctionhearing. own testimony during the injunction hearing.PETERSON PETERSON essentiallytestifiedthat evenperjury essentially testified thateven perjurywas acceptableif ifthe was acceptable endsjustified the ends justifiedthe the means, means, stating, "lf you gotta lie, you gotta lie, Bill Clinton did it." Bill stating, "If you gotta lie, you gotta lie, Bill Clinton did it." Significantly, Bill Clinton perjured himselfforwhomimpeachment proceedings Clinton perjured himself for whom impeachment proceedingswere instituted, leavingthe were instituted, leaving the implication that for DAVIDPETERSON, perjuryis withinthe realmof acceptable implication that for DAVID PETERSON, perjury is within the realm of acceptable actions.Moreover, DAVIDPETERSON ANDCAROL ANNMANLEY unambiguously actions. Moreover, DAVID PETERSON AND CAROL ANN MANLEY unambiguously testifiedto factsthatdemonstrate breachof fiduciary dutyto RUBYPETERSON and testified to facts that demonstrate breach of fiduciary duty to RUBY PETERSON and PLAINTIFFS regarding the PETERSONFAMILYTRUST and RUBY’S estate, PLAINTIFFS regarding the PETERSON FAMILY TRUST and RUBY'S estate, yet PACHECO’S responseis to try to driveupthe yet PACHECO'S response is to try to drive up thelegalcostsastronomically legal costs astronomically upon upon PLAINTIFFS, whoarethevictimsof her client’sbreachesof fiduciarydutyto reach PLAINTIFFS, who are the victims of her client's breaches of fiduciary duty to reach an inequitable result.Thisviolates Rule3.0],as wellas Rule3.02(minimizing burdens an inequitable result. This violates Rule 3.01, as well as Rule 3.02 (minimizing burdens oflitigation) of litigation) 45. RUSSJONESfilesa knowingly frivolous requestforsanctions on thebasison 45. RUSS JONES files a knowingly frivolous request for sanctions on the basis on representationsof PLAINTIFFS’ perceptions as to whetherRUBYPETERSON suffered representations of PLAINTIFFS' perceptions as to whether RUBY PETERSON suffered fromdementiaor wasbeingexcessively druggedby SILVERADO SENIORLIVING. from dementia or was being excessively drugged by SILVERADO SENIOR LIVING. Given thatPLAINTIFFS arenotmedical andwererefused the Given that PLAINTIFFS are not medical professionals and were refused the opportunity Silverado Appx. 0552 No. 1-15-567-CV 1641 to conduct to a medical conduct a medical a ssessment assessment withtheir experts,itit is own experts, with their own perfectly reasonablefor is perfectly for PLAINTIFFS PLAINTIFFStotohavepledtheirperceptions the time and amendpleadingswhen have pled their perceptionsatatthetimeandamend pleadings when credible xpertttestimony credible eexpert estimony convinced them otherwise. convinced them otherwise. N Comment: i.i. Comment: The advocatehas The hasaadutyto duty to use use legal 0 procedure procedurefor fortthe heffullest ullest benefitof benefit ofthe thec lient’s cause, N Cri client's cause, but but a lso also aa duty abuselegal to notabuse dutytonot legalprocedure. procedure. 46. This entire hearing and the 46. This entire hearing and the three retaliatoryfrivolous MOTIONS threeretaliatory MOTIONSFOR FOR SANCTIONSconstitute anabuse SANCTIONS constitutean of processinin violationof abuse ofprocess Rule 3.01. JONES, violation of Rule 3.01. JONES, PACHECOANDDAVIS’motionsrenecessarily PACHECO AND DAVIS' motionsaare frivolousandintendedtoharass necessarily frivolous and intendedto harass thePLAINTIFFS andSCHWAGER. TheCourt should takenotice thatPLAINTIFFS the PLAINTIFFS and SCHWAGER. The Court should take notice that PLAINTIFFS and their not the parties frivolouspleadings harassing are not the parties filing frivolous pleadings or and their ATTORNEYSare or harassing witnessesinviolation oftheDisciplinary Rules—MOVANTS witnesses in violation of the Disciplinary Rules—MOVANTSare. are. ii. All judicial systemsprohibit, at a minimum,the ii. All judicial systems prohibit, at a minimum, the filing of frivolous or knowinglyfalse pleadings, filing of frivolous or knowingly false pleadings, motions, or otherpapers withtheCourtor the motions, or other papers with the Court or the assertion in an adjudicatory proceedingof a assertion in an adjudicatory proceeding of a falseclaimor defense.A filingor assertion knowingly knowingly false claim or defense. A filing or assertion is frivolousif it is made primarily for the purpose of is frivolous if it is made primarily for the purpose of harassingor maliciouslyinjuringa person.It is also harassing or maliciously injuring a person. It is also frivolous if the lawyer cannot make a good faith frivolous if the lawyer cannot make a good faith that the actiontakenis consistent argument with argument that the action taken is consistent with existinglaw... existing law... Silverado Appx. 0553 No. 1-15-567-CV 1642 SANCTIONS SANCTIONSMOTIONS, MOTIONS,intended toharass intendedto harassand andmaliciously maliciouslyinjure injure PLAINTIFFS, PLAINTIFFS, Ji JOHN JOHN TENNISON, TENNISON, M.D., M.D., and and CANDICE CANDICESCHWAGER SCHWAGERfor for actingwithin withintheir their lawful lawfulrights, rights, MOVANTS MOVANTSshouldnotbbe shouldnot erewarded for""unclean rewardedfor uncleanhands" andtthe hands"and he litany of litany of 0 disciplinary disciplinary andethics and ethics rulestheyhave rules they have violated, violated, notwithstanding notwithstandingtheegregious the egregiousabuse abuseof of PACHECO abusesprocess process. PACHECOabuses process. processmaliciously maliciouslybby y intentionally intentionallydefaming defaming and and degradingPLAINTIFFS, degrading PLAINTIFFS,their expertaand theirexpert ndcounsel counselw ithdefamatory with defamatoryand/orirrelevant, and/or irrelevant, inadmissible inadmissible statements designed to elicitthe statements designedto elicit the passionsof passions of the Judge—simply the Judge—simply because because sheknows she can GETAWAY she knows she can WITHIT incivillitigation GET AWAY WITHITin civil litigationddoes oesnot notmean thisright mean this right shouldbe abusedin this manner.Yet, PACHECOhas no problem attackingand should be abused in this manner. Yet, PACHECO has no problem attacking and degrading their and counselsimplybecauseshe could. She degrading PLAINTIFFS, theirexpert expert and counsel simply because she could. She intentionallydeceivedthe tribunalstatingthatSCHWAGER hadbeensanctioned in intentionally deceived the tribunal stating that SCHWAGER had been sanctioned in other"COURTS" whenthisis notat all trueandobjectively verifiable.PACHECO other "COURTS" when this is not at all true and objectively verifiable. PACHECO hadnoevidence whichtobasethislie,butsaidit anyway. had no evidence upon upon which to base this lie, but said itanyway. iii. A Lawyer should conform not only to this Rules iii. A Lawyer should conform not only to this Rules prohibitionof frivolousfilingsor assertionsbut also to any more prohibition of frivolous filings or assertions but also to any more stringent applicablerule ofpracticeor procedure. stringent applicable rule of practice or procedure. 49.This Rule implicates Texas Rules ofCivil Procedure 10and13,which all 49. This Rule implicates Texas Rules of Civil Procedure 10 and 13, which all three movantshave violated their assertionof patentlyfrivolous three movants have violated in' their assertion of patently frivolous MOTIONS FOR SANCTIONS AND/OR CONTEMPT. Tex.Civ. P.l0, MOTIONS FOR SANCTIONS AND/OR CONTEMPT. Tex. R. Civ. P. 10, 13.TheLawyer’sCreedis alsobalancedby thedutyto reportdishonesty, 13. The Lawyer's Creed is also balanced by the duty to report dishonesty, fraud,elderabuse,neglectandexploitation. A lawyerdoesnotviolatethe fraud, elder abuse, neglect and exploitation. A lawyer does not violate the creed T aimver'c erred nrlo 4 01 or evidence 07 hv nohlielv revealina evidence Silverado Appx. 0554 No. 1-15-567-CV 1643 introduced introducedin intherecord or the the record or the substanceof of allegations confidentlypledin pled in n livepleadings. live pleadings.Nordoes Nor doesaa lawyer lawyervviolate iolateany anyethical ethicaldduty utyby by expressing expressingan an opinion opinion asas to dishonestacts to dishonest actsofoflicensed licensedattorneys, violatingsworn attorneys,violating sworn obligation to uphold obligation to uphold theConstitution the Constitutionandlawsofthis and laws of this State. State. Furthermore,the the preamble preamble oof f the the Disciplinary Rulesis Rules is aspirational aspirational andcounter—balanced and counter-balancedby by serious concerns ooff wrongdoing serious concerns in this wrongdoingin case. MOVANTS’ this case. MOVANTS'tortsandcrimes torts and crimes against against RUBYpotentially RUBY potentially subjectDEFENDANTS subject DEFENDANTSand andtheir theircounsel counselto to criminal criminal aand/or nd/ordisciplinary disciplinary aactions ctionsas as accessoriesor conspirators accessoriesor conspiratorsin intheir their complicity complicitywithfederal with federaland state felonies. andstate felonies. c. Rule3.02Minimizing c. the Burdensof Rule 3.02 Minimizingthe ofLitigation Litigation a. In a. the courseof In the course of litigation,aa lawyershall nottake shallnot takeaaposition position that unreasonablyincreasesthe costsor that unreasonably increases thecosts orotherburdensof other burdens ofthe the case... case... b. ...0ne exampleof such impermissible b. ...One example of such conductis lawyer who impermissible conduct isaalawyerwho counsels r assists counselsoor clientin seeking multiplicationf assistsaa client in seeking aa multiplicationoof costs thsi costs or otherburdensof litigation the primary or other burdens of litigation as as the primary purpose, becausethe clientperceiveshimself more readily purpose, because the client perceives himselfas as more readily abletobear able to bear thoseburdensthan its opponent,and so hopes to gain those burdens than its opponent, and so hopes to gain 50.DAVIS,PACHECO merits... an advantagein resolvingthe matter unrelatedto the an advantage in resolving the matter unrelated to the merits... ANDJONESviolateRule3.02by multiplying the costs 50. DAVIS, PACHECO AND JONES violate Rule 3.02 by multiplying the costs of litigationandseekingforthevictimsto putup securitywhilethey"milk"their of litigation and seeking for the victims to put up security while they "milk" their mother’sestateand/orthe familytrustto pay theirlawyer’sfees.PLAINTIFFS mother's estate and/or the family trust to pay their lawyer's fees. PLAINTIFFS requested an accounting fromPACHECO in Januaryandgraciously providedan requested an accounting from PACHECO in January and graciously provided an Silverado Appx. 0555 No. 1-15-567-CV 1644 yet to produce yetto remotely rresembling produce anything remotely esembling an accounting—havinglittledoubt an accounting—having little doubtoof f her her client’sduty client's duty to do so to do sounder theTexas underthe TexasProperty Codeand Property Code TrustCode. and Trust Code. Outrageously,sheattempted Outrageously, charge -$30,000 to charge she attemptedto o $50,000 -$30,000 tto $50,000 tto PLAINTIFFSsimply o PLAINTIFFS simply be given theaccounting to begiven to to which the accounting to whichthey theyare entitledbby are entitled y lawandDEFENDANTS law and DEFENDANTSare are statutorily required statutorily to keep. required to keep. 51. 51.P tried ACHECO PACHECO toburden triedto burdenP LAINTIFFS PLAINTIFFS withastronomical with astronomicalcosts toachieve coststo achieveresults results would fail she would she to obtain fail to if shepursued obtain ifshe pursuedthe thea libel ctuallibelclaimassertedherein. claimasserted 0 N actual herein. 0 nl 52. OSHDAVIS 52.JJOSH iolatesRRule DAVISvviolates ule3.02byhisoverly broad,undulyburdensome harassing 3.02 by his overly broad, unduly burdensome harassing subpoenaduces tecum, designed subpoena duces tecum, designedto burdenPLAINTIFFS with exorbitantcoststo to burden PLAINTIFFS with exorbitant costs to depose examinedduring thoroughlyexamined with Dr. Tennisonso thoroughly the depose experts, experts, with Dr. Tennison so during the Injunctionhearing,it is to imaginehe couldhave anythingmore Injunction hearing, it is difficult to imagine he could have anything more substantialto say thanhasalready substantial to say been in opencourt. than has already been testified in opencourt. Rule3.03 Candor toward thetribunal Rule 3.03 Candor toward the tribunal a. Alawyershallnot knowingly: a. A lawyer shall not knowingly: i. Make afalse i. ofmaterial statement fact toatribunal orlaw Make a false statement of material fact or law to a tribunal ii. Fail to disclosea fact to a tribunal whendisclosureis necessary ii. Fail to disclose a fact to a tribunal when disclosure is necessary to avoidassistinga criminalor fraudulentact; to avoid assisting a criminal or fraudulent act; iii. Fail to discloseto the tribunal authority in the controlling iii. Fail to disclose to the tribunal authority in the controlling jurisdictionknownto the lawyerto be directlyadverseto the jurisdiction known to the lawyer to be directly adverse to the byopposingcounsel; positionoftheclientandnotdisclosed position of the client and not disclosed by opposing counsel; iv. Useor offerevidencethat the lawyerknowsto be false;` iv. Use or offer evidence that the lawyer knows to be false; 53.Rule 3.03 mandates that PACHECO AND DAVIS disclose authoritv in 53. Rule 3.03 mandates that PACHECO AND DAVIS disclose controlling authority in Silverado Appx. 0556 No. 1-15-567-CV 1645 this this jjurisdiction urisdictionand andn not their client otassisttheir client with with a or fraudulent nycriminalor any fraudulentact, act,yet yet DEFENDANTS DEFENDANTShaveactedin have acted in concert, takingknowingly rivolousppositions taking knowingly ffrivolous ositionsbby y distortingthe law. One distorting the law. One example exampleis falseaccusation the false is the accusationthat SCHWAGER that SCHWAGER has has violatedTexasRuleof DisciplinaryPProcedure violated Texas Rule of Disciplinary rocedure3.07,4.01 or the 3.07, 4.01or the preamble. preamble.SSee eethe the Texas SupremeCourt’s in Davenport Court's decisionin Davenportv. Garcia, 5th Circuitdecisionof v. Garcia, Circuit decision of 1 United UnitedStates StatesofAmerica v. Donald of Americav. DonaldHill, Hill, a ndGentile and v.State Gentilev. StateB arooffNev., Bar Nev.,501 501 U.S. U.S. 1030(1991),incorporated 1030 (1991), incorporated by reference. See also by reference.See also TexasDisciplinaryRule Texas Disciplinary Rule of ProfessionalConduct3.07, of Professional 4.01 and Conduct 3.07, 4.01 and referenced referencedpreamble. preamble. Aside Asidefrom fromthe the 0 limited ability limited ability ofCourts o impose of Courtstto impose""gag gagorders," orders," 54. 54.R 3.07 isby ule3.07is Rule no meansaa blanket bynomeans blanket pprohibition rohibition on pre—trial on pre-trial publicity r disclosure publicityoor disclosure of testimony/evidencein Courtproceedings. of testimony/evidence in Court proceedings. To do sowould To do so wouldunambiguously unambiguously violate violate Art.I Art. I Section Section 13of theTexasConstitution, guaranteeingthat Courtsof 13 of the Texas Constitution, guaranteeing thatCourts of the Stateof Texasbe opento thepublic. to the public.Rule3.7permitsprotective orders("gag the State of Texas be open Rule 3.7 permits protective orders ("gag orders")in only the most high cases—which almostexclusively orders") in only the most high profile cases—which are are almost exclusively criminalproceedings, wheredisclosure of knowingly false,inadmissible evidence criminal proceedings, where disclosure of knowingly false, inadmissible evidence substantially endangersthe DEFENDANT’Sright to fair trial. The substantially endangers the DEFENDANT'S right ato a fair trial. The 6th Amendment guarantee of fairtrialappliesonlyto criminalmatters.Thisleaves Amendment guarantee ofaa fair trial applies only to criminal matters. This leaves no basisexistsforsanctions contempt. orcontempt. Rule3.07states: no basis exists for sanctions or Rule 3.07 states: (a)In the courseof representing client,a lawyershall not make an (a) In the course of representingaa client, a lawyer shall not make an extrajudicialstatementthata reasonable personwouldexpectto be disseminated by extrajudicial statement that a reasonable person would expect to be disseminated by meansof publiccommunication if the lawyerknowsor reasonably shouldknow means of public communication if the lawyer knows or reasonably should know thatit willhaveasubstantial likelihood of materially prejudicing an that it will have asubstantial likelihood of materially prejudicing an adjudicatory proceeding.A lawyershallnotcounselor assistanotherpersonto makesucha statement proceeding. A lawyer shall not counsel or assist another person to make such a statement (emphasis added). A lawyerordinarily willviolateparagraph (a),andthelikelihood (emphasis added). A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases iftheadiudication is orimminent. bv an of a violation increases if the adjudication is ongoing or imminent, by making an Silverado Appx. 0557 No. 1-15-567-CV 1646 extrajudicial statement ofthe extrajudicial statement referred typereferred of the type inthat toin to paragraph that paragraph whenthe when thestatement statement refers refers to: to: (l) the (1) thecharacter, character, credibility, credibility, reputation or criminal reputation or criminal record record o offa party, suspect party, suspect ina in criminal criminal investigation investigation witness; orwitness; or theexpected orthe or testimony expected testimony ofaa party of orwitness;l partyor witness; (2) in (2) in aa criminal criminalcase proceeding caseororproceeding that couldresultin thatcould incarceration, result in incarceration, the the possibility possibility of pleaof of a plea guiltyto of guilty theoffense; to the offense;the theexistence existenceor or contents of any contentsof any confession, confession, admission, statementggiven or statement admission,or ivenby defendantor suspect; by aa defendant suspect;or thatg or that person's refusal person's refusal failure orfailure or tomake to a statement; make a statement; C) (3)theperformance, (3) the performance, refusal refusal ttoo perform, or results perform, or results of examination anyexamination of any theb test;the or test; or refusal or failureof or failure personto of a person allowor to allow submitto or submit to an examination anexamination test;or or test; or thei or the identity identity ornature or ofphysical nature of physical evidence evidence expected to bepresented; expected to be presented; (4)any (4) opinion anyopinion asto as theguilt tothe innocence orinnocence guilt or ofaa defendant of defendant or suspect orsuspect inaa criminal in criminalli case or proceeding caseor proceeding thatcould resultin that could result inincarceration; incarceration; or or (5)information (5) information thelawyer the lawyer k nowsoorr reasonably knows reasonably should should knowis know is likely likely to be to be inadmissible inadmissible as evidence as evidence in in a trialand a trial would andwould ifdisclosed if create disclosed create substantial aasubstantial risk risk ofprejudicing of prejudicing an impartial animpartial trial. (b)A (b) lawyer A lawyer ordinarily ordinarily willnot will violate notviolate paragraph paragraph (a)by (a) making bymaking an extrajudicial anextrajudicial statement statement ofthe of the type referred typereferred to in that to in that p aragraph paragraph when when thelawyer the lawyer merely merely s tates:25 states: (l) the thegeneral 25 (1) general nature oftheclaim natureof ordefense;l the claim or defense; (2)theinformation (2) contained the information contained inaa public in public record; Silverado Appx. 0558 No. 1-15-567-CV 1647 0 (3)that an investigation (3) that an investigationof ofthe matteris the matter is in in progress, including includingtthe hegeneral generalsscope cope ofthe of theinvestigation, investigation,the theoffense, offense,claim claimoorrdefense defenseinvolved; involved; (4) exceptwhen (4) exceptwhenprohibited prohibitedbylaw, by law,tthe heidentity identityoof fthe personsiinvolved thepersons nvolved ininthe the matter; matter; LR (5)thescheduling (5) the schedulingor resultoof orresult f any stepinlitigation; anystep in litigation; LP (6) (6) aa request for assistance request for assistancein in obtaining obtainingevidence, evidence,aand infonnationnecessary nd information necessary Al thereto; thereto; LJ 0 (7) (7) aa waming warningooffdanger dangerconceming concerningthebehavior the behaviorof a personiinvolved, ofaperson nvolved,when whenthere there C is a reason to is areason believe to believe that there that there exists exists the likelihood the likelihoodofsubstantial of substantialharm harmtto oanan individual tothepublic orto individual or the publicinterest; interest;and and (8)if criminalcase: (8) if aa criminalcase: (I)theidentity, residence, occupation andfamilytatusoofftheaccused; (I) the identity, residence, occupation and familysstatus the accused; (ii)if theaccusedhasnotbeenapprehended, informationnecessarytotoaid (ii) if the accused has not been apprehended, informationnecessary aid inapprehension ofthatperson; in apprehension of that person; (iii)thefact,timeandplaceofarrest;and (iii) the fact, time and place of arrest; and (iv)theidentity ofinvestigating andarresting agencies andthe (iv) the identity of investigating and arresting officersor or agencies and the length oftheinvestigation. length of the investigation. 55.TheStatements ofwhichDEFENDANTS’ complains COUNSEL arefrivolous giventhat 55. The Statements of which DEFENDANTS' COUNSEL complains are frivolous given that thisis a guardianship case,nota criminalmatter.TheFirstAmendment andArticleI this is a guardianship case, not a criminal matter. The First Amendment and Article I Section8 Righttofreespeechandfreedom ofthepresscannotbesubjecttopriorrestraints Section 8 Right to free speech and freedom of the press cannot be subject to prior restraints underthecircumstances. TheSeminole Courtcasegoverning TexasSupreme gagorders under the circumstances. The Seminole Texas Supreme Court case governing gag orders involvedchildrenandheldthata "gagorder"violated theTexasConstitution. v. involved children and held that a "gag order" violated the Texas Constitution. Davenport v. byreference. Thisopinionemphasizes thegreaterprotections bythe Garcia, incorporated by reference. This opinion emphasizes the greater protections by the Texas Constitutionover the Amendment tothe U.S. Constitution.ld. Texas Constitution over the 1st Amendment to the U.S. Constitution. Id. Silverado Appx. 0559 No. 1-15-567-CV 1648 55. 55.IIn n v. Garcia, the Davenportv. held that: "A priorrestraint Courtheldthat:"A theCourt n expression restraintoon isis expression presumptively presumptivelyunconstitutional. Withthis unconstitutional.With conceptinmind, thisconcept the in mind, court the adopts court thefollowing adopts test: the following test: a gagorder agag orderiin ncivil judicialproceedings civiljudicial proceedingswill constitutional willwwithstand ithstand scrutiny constitutional onlywhere scrutiny only there where there rki arespecific are specificfindings findings supportedbyevidence that(1) animminent by evidence that (1)an and harmtoto imminent and irreparable harm thethe judicial judicialprocesswill process willdeprivelitigantsof a just deprive litigants of resolutionof their dispute,and (2) the a just resolution of their dispute, and (2) the judicialaction judicial actionrepresentsthe represents least restrictivemeans the least restrictive totoprevent means that harm."The prevent that harm." The Court b reasoned that"Every ersonsshall reasoned that "Everypperson eatat libertytotospeak, hallbbe write publish hisopinions onany speak, writeoror publish his opinions on any subject,beingresponsible fortheabuseofthatprivilege," statingthatArticle1 Section8’s 0 subject, being responsible for the abuse of that privilege," stating that Article I Section 8's history"is anditsitslanguage rich one,and languagedemonstratesTexas'strongandlongstanding 0 history "is aa rich one, demonstrates Texas' strong and longstanding to freespeech.Bytheplainlanguageof our constitution, commitment thisfundamental commitment to free speech. By the plain language of our constitution, this fundamental ‘sha1lforeverremaininviolate.’ Tex.Const. art. 29. liberty 'shall forever remain inviolate.' Tex. Const. art. I,13 29. 56.Due tothe protectionsoftheADA, Texas Anti-SLAPP Statute,Texas Constitution, 56. Due to the protections of the ADA, Texas Anti-SLAPP Statute, Texas Constitution, Art.I Section andFirstAmendment totheUnited States theonlycases Constitution, and First Amendment to the United States Constitution, the only cases Art. I Section 819, wherea barassociation nationwide wasableto censurean Attorney for speechinvolved nationwide where a bar association was able to censure an Attorney for speech involved pre-Trial extensive publicity andattacksonthejudiciary. v. Nev.,501 extensive pre-Trial publicity and attacks on the judiciary. Gentile v. State Bar of Nev., 501 TheFirstAmendment U.S.1030(1991). hasstatedsinceits to theUnitedStatesConstitution U.S. 1030 (1991). The First Amendment to the United States Constitution has stated since its ratification thefreedom shallmakenolaw.. . abridging in1791:"Congress orofthe ofspeech, ratification in 1791: "Congress shall make no law. . . abridging the freedom of speech, or of the press.TheFirstAmendment’s freespeechclause,includes writtenexpression aswellasspoken. press. The First Amendment's free speech clause, includes written expression as well as spoken. Barnesv.GlenTheatre, (1991)501U.S.560,576[111S.Ct.2456,2465-2466, 115L. Barnes v. Glen Theatre, Inc. (1991) 501 U.S. 560, 576 [111 S. Ct. 2456, 2465-2466, 115 L. Ed. 2d504](conc.opn.ofScalia,J.);see,e.g.,Dallasv.Stanglin(1989)490U.S.19,25[109S.Ct. 2d 504] (conc. opn. of Scalia, J.); see, e.g., Dallas v. Stanglin (1989) 490 U.S. 19, 25 [109 S. Ct. the enjoined 1591,1595,104L.Ed.2d18].)InPolkv.StateBarofTexas,Polksuccessfully 1591, 1595, 104 L. Ed. 2d 18].) In Polk v. State Bar of Texas, Polk successfully enjoined the TexasStateBarfromchilling hisspeech, ofa District hewascritical eventhough and Attomey Texas State Bar from chilling his speech, even though he was critical of a District Attorney and Judge——suggesting 374F.Supp.784(N.D.Tex.1974). corruption. Judge—suggesting corruption. 374 F. Supp. 784 (N.D. Tex. 1974). Silverado Appx. 0560 No. 1-15-567-CV 1649 57.T 57. heCourt agreed, The agreed,"anAttomey’s couldnot "an Attorney's speech could bytheTexas bereprimanded by notbe Bar the Texas State Bar becauseof because objection of objection content."IId. ttoo content." d. In fact,the In fact, Courtstated"It the Court beseriously stated "It cannot be seriously assertedthat asserted that a privatecitizen a private surrendershhis citizen surrenders is right rightto freedomof to freedom expression ofexpression whenhe when he becomes becomes licensed aa licensed attorneyin attorney thisstate." in this state." The Supreme Court hasbuilt TheSupreme substantial has built aa substantial lineof line of theConstitution where cases hasbeen readtolimit andrestrain thestate's toprescribe power cases where the Constitution has been read to limit and restrain the state's power to prescribe standardsof standards conductfor of conduct attomeys.NAACP for attorneys. Button, 371 U.S. 415, NAACP v. Button,371 415, 83 83 S. S. Ct. Ct. 328,9 Ed. 2d L. Ed. 328, 9 L. 2d 405(1963); Konigsberg 405 (1963); Konigsberg v. StateBarofCalifornia, v. State 353U.S.252,77S.Ct.722,1L.Ed.2d810 Bar of California, 353 U.S. 252, 77 S. Ct. 722, 1 L. Ed. 2d 810 In Davenport v. In Supreme Court theSupreme v.Garcia, the Court o off Texas stated,""We Texasstated, Weare thataa prior awarethat arefully aware prior restraint restraint willwithstand will thistest withstand scrutiny under this onlyunder testonly themost under the most extraordinary extraordinary circumstances. circumstances. Thatresultis consistent That result is consistent withthemandate with ofour the mandate of constitution ourconstitution recognizing recognizing broadright ourbroad our rightto to freedom freedom ofexpression of expression iin n Texas. Texas. A individual's rights Annindividual's rights under under the state constitution the state constitution do not end do not end at the at the courthouse courthouse door;rather, he courthouseisis properly door; rather, tthe properly the fortressooff those the fortress thoserights. Thefirst rights. The first requirement requirement of of our standardaadvances our standard dvances from the prior holdings o fromthepriorholdings off Texas courtsthatonly Texas courts an that only an imminent, severe harm imminent, severe can justifypriorrestraint, harm can justify prior restraint, andin thecontext and in the of gag contextof orders,that gagorders, thatharm must harm must be thejudicial to the be to process.E judicial process. ExxParte McCormick, Parte McCormick, 129Tex.Crim.457,88 129 S.W2d104;ExParte Tex. Crim. 457, 88 S.VV.2d 104; Ex Parte F 71S. oster,71 Foster, Wat S.W. Themandate 595.The at 595. that findings ofirreparable mandate thatfindings harm bemade of irreparable harm be made isbased is based onour state on our state constitutional constitutional preference preference for post-speech for post-speech remedies. Onlywhen remedies. suchmeaningful nosuch Only when no remedies meaningful remedies exist w exist illpriorrestraints will be tolerated iin prior restraints betolerated nthis this context. Thesecond context. The second p ofthe artof part testisisintended thetest to intended to ensure tthat ensure hatno alternative noalternative existsto exists totreat thespecific treatthe specific threat thejudicial threattotothe process, judicial process, whichwould which would belessrestrictive be ofstate less restrictive of speechrights. statespeech Whiletthis rights.While element isshared hiselement is shared iinncommon common withtheruling with the ruling in Nebraska in Nebraska P ress,427 Press, US.at 427 U.S. 563-64,we at563-64, viewthe we view federal the federal announced testannounced test thereinas therein too as too permissive permissive toward priorrestraints toward prior restraints anddecline and decline to adoptit. to adopt Thefederal it. The approach federal approach offersonly offers only limitedguidance limited guidance c oncerning concerning gag orders such gag orders such as thatinvolved as that here,which involved here, restrict which restrict to accessto access information by prohibiting individuals information byprohibiting from discussing individuals from discussing a a case. ordersshould Suchorders case. Such shouldbe betreated like treated like Silverado Appx. 0561 No. 1-15-567-CV 1650 any other any other priorrestraint. restraint.Theonlyother The only otherfactors factorstotoheconsidered he consideredunder under Nebraska Pressarethe are the extentofpretrial extentof pretrialnews andtheeffectiveness newsccoverage overage and the effectivenessoftherestraining of the restrainingorder. We order. note We that note toto that the extenttthat theextent hatthisopinion this opinionccites itesany anyfederal federallaw, law,ssuch uchprecedent precedentisisusedonlyforguidance and used only for guidance and in in no way necessitates no way the result reachedby necessitates theresultreached bythis today. That standardhasbeenlargely this courttoday.Thatstandard has been largely developedin the contextof developed in thecontext criminalratherthan civilproceedings, weighingthepress'First of criminal rather than civil proceedings, weighing the press' First Amendment rightsagainst accused'sSixthAmendment rightto to Amendment rights againstanan accused's Sixth Amendment right a fair trial.SeeSherylA. a fair trial. See Sheryl A. 0 PJ Bjork,Comment, IndirectGagOrdersandtheDoctrineof Restraint,44 U L. Bjork, Comment, Indirect Gag Orders and the Doctrine of Prior Restraint, 44 U. Miami L. Rev.165,166 (1989).For instance,the elementin this test, the extentof pretrial news Rev. 165, 166 (1989). For instance, the first element in this test, the extent of pretrial news coverage haslittlebearingona civilproceeding. Nebraska Press, splintered decision with coverage has little bearing on a civil proceeding. Nebraska Press,a a splintered decision with five separateopinions, hasbeenappropriately criticized for failingto providea comprehensive separate opinions, has been appropriately criticized for failing to provide a comprehensive SeeStephen offreeexpression. guarantee R.Bamett,ThePuzzleofPriorRestraint, 29Stan.L. guarantee of free expression. See Stephen R. Barnett, The Puzzle of Prior Restraint, 29 Stan. L. Rev.539,541 (1977);BennoC. Schmidt, An Expansionof NebraskaPressAssociation: Rev. 539, 541 (1977); Benno C. Schmidt, Jr., Nebraska Press Association: An Expansion of FreedomandContraction of 29Stan.L.Rev.431,461(1977).” Freedom and Contraction of Theory, 29 Stan. L. Rev. 431, 461 (1977)." In deference to Texas’categorical prohibition of speech,the Court uponrestrictions In deference to Texas' categorical prohibition upon restrictions of speech, the Court statesthat"[n]either Nebraska Pressnoranyother oftheUnitedStatesSupreme further states that "[n]either Nebraska Press nor any other ruling of the United States Supreme has considered suchan order.Indeed,thereis a confusing splitof federal Court has specifically considered such an order. Indeed, there is a confusing split of federal authorityon thismatter.SeeIn re DowJones,842F.2d603,608-10(2d.Cir.),cert. sub authority on this matter. See In re Dow Jones, 842 F.2d 603, 608-10 (2d. Cir.), cert. denied, sub nom.DowJones&Co.,Inc.v.Simon, 488US.946,102 Ed.2d365,109S.Ct.377(1988) nom. Dow Jones & Co., Inc. v. Simon, 488 U.S. 946, 102 L. Ed. 2d 365, 109 S. Ct. 377 (1988) (gagordersontrialparticipants are subjectto a lesserdegreeof scrutinythanarepriorrestraints); (gag orders on trial participants are subject to a lesser degree of scrutiny than are prior restraints); In re onNebraska 726F.2d1007,1010(4thCir.1984)(relying Pressto upholda gag In re Russell, 726 F.2d 1007, 1010 (4th Cir. 1984) (relying on Nebraska Press to uphold a gag orderon trialparticipants); butseeJournalPublishing Co.v. Mechem, 801F.2d1233,1236 order on trial participants); but see Journal Publishing Co. v. Mechem, 801 F.2d 1233, 1236 (10thCir.986)(gagorderson trialparticipants priorrestraint)." Theendresulthas (10th Cir. 986) (gag orders on trial participants constitute prior restraint)." The end result has beena lackofuniformity inlowerCourtswiththeU.S.Supreme striking downeverygag been a lack of uniformity in lower Courts with the U.S. Supreme Court striking down every gag orderthatwasremotely deemed apriorrestraint uponspeech. order that was remotely deemed a prior restraint upon speech. Silverado Appx. 0562 No. 1-15-567-CV 1651 58. 58.T SupremeCourt exasSupreme Texas Courtrruled uledthatthe"gagorder" that the "gag order" w undoubtedlyin asundoubtedly was in violation violation ooff Article One,Section Eight of the Texas Constitution.ItItfailed One, Section EightoftheTexasConstitution. toidentify failedto anymiscommunication identifyany miscommunicationthat that thejury the jury may have perceived, lacked may haveperceived, lacked specificproofof proof ofimminent imminent harmto the litigation,and tothelitigation, and offered o explanation offered nno explanationof of whythealleged why the alleged harm could not be could not sufficiently be sufficiently addressed addressedby by remedial remedialaaction. Gagorders ction.Gag are almost ordersare almost withoutexceptionunconstitutional in civil without exception unconstitutionalin civil cases unlessthe cases matter is unless the matter sealedin is sealed accordancewithstrictconstitutional in accordance with strict constitutionalmandates mandatesof of Article Article II Section Section 13 andTexas 13 and Ruleof Texas Rule CivilProcedure of Civil 76a. Sealing hhas Procedure 76a.Sealing ashistorically historically beenlimited been limited to sensitive to sensitive involving casesinvolving cases juveniles juvenilesandadoptions. and adoptions. 59.Evenin the criminal 59. Even inthe context, notall criminalcontext,not allhighprofile casesjustifythe high profilecases justify theimposition impositionofofaa"gag "gag order."Whilethe Court of Appealsgranted order." While the 14th Courtof Appeals grantedaa"gagorder"in "gag order" inthe theAndreaYatestrial, Andrea Yates trial, itit was deniedin was denied in O.J. ’s criminaltrial O.J. Simpson Simpson's and countlessothercriminal ases criminal trial and countless other criminal ccases deemedsensitive high profile.In county of deemed sensitiveoror high profile. Inaa county of more than 4,000,000people,it is more than 4,000,000 people, it is impossible o conceive impossible tto of scenarioin whichthe Courtwouldbe incapableof finding6-12 conceive of aa scenario in which the Court would be incapable of finding 6-12 jurorswhohad readSCHWAGER’S blog,FACEBOOKage,or thefewonlinearticles jurors who had not not read SCHWAGER'S blog, FACEBOOKppage, or the few online articles writtenbytheAmerican BarJournal,SeniorHousing News,LongTermLivingMagazine, written by the American Bar Journal, Senior Housing News, Long Term Living Magazine, the Examiner,the SoutheastTexasRecord,or other insignificantinternetvenues.See the Examiner, the Southeast Texas Record, or other insignificant internet venues. See concerning anddebatesin thelongterm policyconsiderations articles concerning policy considerations and debates in the long termcare care community oversocialmedia resultofSilverado 's actions. over social media asa as a result of Silverado's actions. 60.Theconstitutional of freespeechandpresswerefashioned protections to assurethe 60. The constitutional protections of free speech and press were fashioned to assure the unfettered ofideasforbringing interchange andsocialchanges aboutpolitical desiredbythe unfettered interchange of ideas for bringing about political and social changes desired by the people.NewYorkTimesCo.v. Sullivan,376U.S.254,84S.Ct.710,11L.Ed.2d686(1964). people. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). redeeming "Allideashavingeventheslightest social ideas, "All ideas having even the slightest redeeming social importance-- -- unorthodox ideas, Silverado Appx. 0563 No. 1-15-567-CV 1652 controversial controversial ideas, ideas, even ideashateful to even ideas theprevailing tothe climate prevailing climate ofopinion" of —- opinion" -- fallwithin fall thefull within the full protection protection o offtheFirstAmendment. UnitedStates, Rothv.v.United the First Amendment. Roth States,354 U.S. 476, 484, 77 S. Ct. 1304, 11 354U.S.476,484,77S.Ct.1304, L.Ed.2d1498 L. (1957). Ed. 2d 1498 (1957). Legislation Legislation orRules or thataim Rulesthat aim at penalizing atpenalizing thepublication the oftruthful publication of truthful information information can can seldom satisfyconstitutional seldomsatisfy standards,Smith constitutional standards, 866F.2d1318, Smith v. Butterworth, 866 F.2d 1318, 1320(11th 1320 Cir.1989), (1lth Cir. granted,493 1989), cert. granted, 493U.S.807,110S.Ct.46,107L.Ed.2d 16(1989), U.S. 807, 110 S. Ct. 46, 107 L. Ed. 2d 16 andis (1989), and is generally generally presumed unconstitutional. presumed unconstitutional. 61. 61. Asidefrom Aside fromthe thegreater greaterprotections protections afforded afforded bytheTexas by Constitution, the Texas Constitution, theU.S. the Supreme U.S. Supreme Ci Courthhas Court aslongheldthatpolitical long held that political speech aboutggovernment speechabout ovemment issues issues oorr officials is is "atthe of coreof "at the core C‘I whatthe what FirstAmendment the First Amendment is designedto is designed protect."M to protect." Frederick,127 orsev. Frederick, Morse 127S. Ct.2618, S. Ct. 2618,2626, 2626, 168L. 168 Ed.2d L. Ed. 2d290 290(U.S. (U.S.2007)(citation omitted).There 2007)(citation omitted). Thereis universalagreement is universal agreementtthat hat a major major purpose of that purpose of thatAmendment Amendment was to protect was to thefree protectthe freediscussion ofgovernmental discussion of governmentalaffairs.M affairs. illsv. Mills v. Alabama,384U.S.214,218,86 Alabama, S. Ct. 384 U.S. 214, 218, 86 S. Ct.1434, 1434,16L. Ed.2d 16 L. Ed. 484(1966). 2d 484 TheSupreme (1966). The Courthas Supreme Court has long held long held thatregulations enacted that regulations enacted forthe for purpose the purpose ofrestraining of speech restraining speech thebasis onthe on ofcontent basis of contentare are presumptively presumptively violative violative ooff theFirstAmendment, the First Amendment, Renton PlaytimeT Renton v. Playtime heatres,Inc.,475U.S.41, Theatres, Inc., 475 U.S. 41, 46-47,106S.Ct.925,89L.Ed.2d29(1986). 46-47, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986).TThe entirety of heentirety MOVANTS’ of MOVANTS' frivolousMOTIONS frivolous MOTIONS FORSANCTIONS FOR SANCTIONS aims aims to punishccore to punish political speech orepolitical speech o matters onnmatters ofpublic of concem public concern protected protected by Constitutional by Constitutional and Statutoryincluding and Statutory includingbbut notlimited ut not to Article limitedto Article I, Section8, I, Section theFirst 8, the First Amendment, Amendment,the Texas Citizens’ the Texas Citizens' Participation Act, Title II andIII ParticipationAct,TitleII ofthe and III of Americans theAmericans with with Disabilities Disabilities Actof 1990, tthe Act of 1990, heElder Act, 18U.S.C.241,18U.S.C.242,42 Elder Justice Act, U.S.C.1983, 18 U.S.C. 241, 18 U.S.C. 242, 42 U.S.C. 1983, andfederal and andstate federal and abuse,neglect, stateabuse, neglect, and/or and/or exploitation exploitation statutes statutes which which prohibit prohibit retaliation. retaliation. This This isaside is aside from from thefact the fact tthat hatMOVANTS MOVANTS havefailed have failed to demonstrate to demonstrate falsity ofany falsity of statement anystatement made made bySCHWAGER, by SCHWAGER,prejudice prejudice tto thejudicial o the process, judicial process, compliance compliance withConstitutional with mandates Constitutional mandates thescope uponthe upon scopeofofsuch restrictions, such restrictions, or actual oractual malice malice forpublic for public figures. Silverado Appx. 0564 No. 1-15-567-CV 1653 Rule3.04 Rule 3.04Fairness in inAdjudicatory Proceedings Proceedings ...in representing a. ...in a. representingaa client clientbefore [thelawyer shall not] before aa tribunal, [the not] i. i. habituallyvviolate habitually iolatean established an established rrule uleofprocedure of procedure ii. ii. state or state alludeto or allude toany matterthat anymatter thelawyer that the lawyerdoesnot reasonably does not reasonably believeis relevantto believe is relevant suchproceeding to such that will proceeding or that willnot supported besupported not be byadmissible by admissible evidence... evidence... iii. iii. ask question intended any question ask any intended to witnessor degrade a witness to degrade other person or other person C C exceptwhere except thelawyer where the reasonably lawyer reasonably believes believes thatthequestion will that the question will lead to lead to relevantand relevant and admissible admissible evidence...i evidence... Rule3.05Maintainingthe Rule 3.05 Maintaining the impartialityofthe impartiality of the tribunal tribunal b. Alawyershall b. not: A lawyer shall not: i. i Seek to Seek influenceaa tribunal to influence tribunalconcerning pendingmatter concerningaa pending matter by applicable rules applicable of practice rules of practice or or procedure, communicateor procedure,communicate or cause causeE another another to parte withthe ex parte to communicate ex tribunalfor with the tribunal thepurpose for the purpose33 33 of of influencing influencing that that entity person concerning entity or person concerning a pending pending matter... matter... 62. Likewise,PACHECO 62. Likewise, PACHECOANDDAVIS’improper attemptsto AND DAVIS' improper attempts inflamethis to inflame Honorable this Honorable Judge Judge w ithfalseaccusations with false accusations andimproper, degrading, and improper, degrading, defamatory defamatory statements, statements, knownto known beinadmissible be inadmissible violates Rule3.05. violates Rule 3.05. Rule4.01Truthfulnessin Rule Statementsto 4.01 Truthfulness in Statements others to others Inthe a. In a. ofrepresenting courseof the course clientaa lawyer representing aa client lawyershall shallnot knowingly; notknowingly; i. Makeaa false i. Make false statement ofmaterial statementof factor material fact lawto or law thirdperson; to aa third person;or ori ii. ii. Fail to Fail discloseaa material to disclose material fact fact to third person to aa third whendisclosure personwhen disclosureis is t o avoidmaking the lawyer party to criminal necessaryto avoid making the lawyer aa party to aa criminal act necessary act or or knowingly knowingly assisting in aa fraudulent assisting in fraudulentact perpetratedbbyy aa client; actperpetrated Silverado Appx. 0565 No. 1-15-567-CV 1654 61.JOSH DAVIS hasmisrepresented many before thistribunal, themost 61. JOSH DAVIS has misrepresented many facts before this tribunal, the most egregiousooff which egregious whichis theknowingly is the frivolousassertion knowingly frivolous assertionof of SILVERADO'S SlLVERADO’S feignedconcern feigned concern fortheprivacy for rightsofitsresidents, the privacy rights RUBY of its residents, RUBY PETERSON, PETERSON, employees, oremployees, or whileexploiting while exploiting theminadvertising throughout social theinternet, andYoutube. PLAINTIFFS them in advertising throughout social media, the internet, and Youtube. PLAINTIFFS r. downloadedmore downloaded more than than 20 Youtubevideos 20 Youtube exploitingdementiapatientswho videos exploiting dementia patients who had no had no s. sr capacityto capacity toconsent consent beingusedfor tobeing to SILVERADO’S used for SILVERADO'S advertising. advertising. TANNA TANNA MCMILLAN MCMILLAN C) thatupon testified that entering uponentering commencing orcommencing or workatatSILVERADO, work SILVERADO, residents residents andemployees and employees 0 waiveprivacyrights thatSILVERADO so that waive privacy rights so SILVERADOcan themin use them can use commercialadvertising in commercial advertisingand and marketing. marketing. 62.SILVERADO’S 62. SILVERADO'Slackof lack of regardfor regard for RUBY PETERSON'Sprivacy RUBYPETERSON’S privacy rightsin refusingto rights in refusing to permit RUBYto permit RUBY to visitwithher inprivate, sonsin visit with her sons denyingaaccess private, denying phonecalls, ccessttoo phone calls,screening screening or or failingto failing delivermail, to deliver wellasasthe aswell mail, as theassaultive assaultive showerincident shower incidentRUBY speaksof RUBYspeaks in of in thevideo SILVERADO thevideo SILVERADO finds objectionable. soobjectionable. finds so SILVERADO’S SILVERADO'S concern concern isMONEY is MONEY Silverado’s Silverado's SeniorVice Senior VicePresident prepared President prepared theattached the presentation attached presentation howcritical onhow on social critical social mediais itsmarketing toits media is to marketingand margins. andprofit margins. Notably, Notably, thepresentation the thatbaby statesthat presentation states baby boomers boomers use Facebook use Facebook more than more any o than any ther other media media at rate at aarate of80-90%. of 80-90%.While While Davis Davis would would havethisCourt believethat to believe have this Court to thatSCHWAGER’S SCHWAGER'Sprotected protectedaadvocacy dvocacyand and core political core political speechon speech Facebook on Facebook iiss an isolatedevent anisolated forwhich eventfor punishment which punishment shouldensue, should federal ensue,aa federal lawsuit onfileintheSouthern District ofTexas includes Court a form"Facebook lawsuit on file in the Southern District of Texas Court includes a form "Facebook Subpoena." Subpoena." SeeSilverado Senior Living's See Living’s Thisdemonstrates exploitive marketing .. This that demonstrates that Silverado’s Silverado's monitoring monitoring ofobjectionable of objectionable"content" "content" Facebook onFacebook on isaaregular is regularpractice practice used used to intimidate to intimidate others withlegitimate others complaints with legitimate complaints againstthem. against them.E Silverado Appx. 0566 No. 1-15-567-CV 1655 Rule4.04Respect Rule 4.04 Respect ffor ortheRights the Rightsofthird of thirdpersons persons a.A not present, a. A lawyer shall not present, participatein in presenting, or threaten presenting,or threatento to present: present: i.i. Criminal or disciplinarychargessolely Criminalor disciplinary charges solelytotogain anadvantagein gainan advantage inaa civil civil m atteror matter or ii. ii. Civil, Civil, criminal, or disciplinarycharges criminal, or disciplinary chargesagainst againstaa complainant, complainant,aa witness, r aa potential witness,oor potentialw itnessin witness in aa bar bar disciplinary proceeding disciplinary proceeding fil solely solely to prevent participation to prevent by the participationby the complainant,witness, complainant, witness,or or 0 potential potentialwitness witnesstherein. therein. 63.As 63. As statedherein, PACHECOAND DAVIS have violated Rule4.04by stated herein, PACHECO ANDDAVIShaveviolatedRule 4.04 bythreatening threateningsanctions, sanctions, contempt, contempt, arrest, and trespass, violating arrest, and trespass, violating tthe heConstitutional Constitutional rightsof PLAINTIFFS rights of PLAINTIFFS andtheir and their ATTORNEYS solelytotogain ATTORNEYS solely ananadvantage gain in this proceeding.Wherean advantage in this proceeding.Where attorneyhas anattorney hasnono legalbasisto threatenactionor doesso in badfaith,the onlyrationalconclusion i s the legal basis to threaten action or does so in bad faith, the only rational conclusion is the threatsweremadesolelyto gainan advantage, in violationof Rule4.04.VIOLATIONS threats were made solely to gain an advantage, in violation of Rule 4.04. VIOLATIONSOF OF RULE10,13and/or215 RULE 10, 13 and/or 215 64.To 64. imposesanctionsunderRule 13, the proponent must establishthat the SUITWAS To impose sanctions under Rule 13, the proponent must establish that the SUIT WAS GROUNDLESSandbrought (1)inbadfaith (2)forthepurposes ofharassment. Tex.R.Civ. GROUNDLESS and brought (1) in bad faithor or (2) for the purposes of harassment. Tex. R. Civ. P.13.Apleading isgroundless whenithasnobasisinfactorlaw.Rule13.Theburden ison P. 13. A pleading is groundless when it has no basis in factor law. Rule 13. The burden is on the partymovingforsanctions to overcome thepresumption thatthepleading asfiledingood party moving for sanctions to overcome the presumption that the pleadingw was filed in good faith.GTEComm’nySys. Corp v. Tanner,856 S.W.2d725, 731 (Tex. 1993).Badfaith faith. GTE Comm'ny Sys. Corp v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). Bad faith meansthe"conscious doingof a wrongfordishonest, discriminatory,or malicious purposes." means the "conscious doing of a wrong for dishonest, discriminatory, or malicious purposes." Campos,879S.W.2dat 71;Mattlyv. Spiegel,Inc.;19S.W.3d890,896(Tex.App.——Houston Campos, 879 S.W.2d at 71; Mattly v. Spiegel, Inc.; 19 S.W.3d 890, 896 (Tex. App.—Houston [14thDist]2000,nopet).Indeciding whether a pleading was inbadfaithorforpurposes of [14th Dist] 2000, no pet). In deciding whether a pleading was filed in bad faith or for purposes of harassment, thetrial a litigant’s mustmeasure atthetimetherelevant conduct pleading was harassment, the trial court must measure a litigant's conduct at the time the relevant pleading was Silverado Appx. 0567 No. 1-15-567-CV 1656 filed. Texas-Ohio Texas-Ohio Gas,Inc. Gas,Inc. v. 28 S.W.3d 1 Mecom,28S.W.3d v.Mecom, 29,1139 129, (Tex.App—Texarkana 39(Tex. App—Texarkana2000, nopet). 2000,no pet). Texas Texas llaw requires theCourt awrequires the Court examine notjjust examine not ustobjectively, objectively,but subjectivelythemotives but examinesubjectively the motives and credibility ofthe andcredibility of the attorney who signed attorney who signedtthe hepetition. petition.No was everm No findingwasever adethatSchwager made that Schwager lacked credibility lacked credibilitysubjectively hadaa malicious orhad subjectivelyor improperintent. maliciousimproper intent.RRule 13 requiresthatthe ule13requires that the Judgelookbeyond the merits ofthepleading Judge look beyondthemeritsof theintent(asbest tothe the pleadingto intent (as bestssthey theycan discern)oof candiscem) f the the signing signing aattorney. ttorney. Improper Impropermotive motiveiis an ESSENTIAL s an ELEMENTofBAD ESSENTIALELEMENT FAITH.Parker of BADFAITH. Parkervv. . r• 0 Walton, 2233 Walton, 33S.W.3d S.W.3d 535,539(Tex. Houston[14thDist.]2007, 535, 539 (Tex. App.—Houston nopet.).Alejandro [14th Dist.] 2007,no pet.). Alejandrovv. . Bell, 84 S.W.3d 383,393(Tex. Bell,84S.W.3d 383, 393 (Tex.A CorpusCChristi pp.—Corpus App.— hristi22002). 002).RRule ule10Sanctions 10 Sanctionsrequire thatit be require that it be proven tthat proven hat(1)thepleading or motion (1) the pleading or motion w asbrought was broughtfor an improper for an (2)there wereno purpose, (2) therewere improperpurpose, no grounds f or grounds for the legal the legal arguments advanced, the factualallegations arguments advanced,oror the factual allegationsor denialslacked or denials lacked evidentiary evidentiarysupport; See Tex.Civ.Prac.& Rem.CodeAnn.§ 10.001(Vernon2002);Low, support; Sec Tex. Civ. Prac. & Rem. Code Ann. § 10.001 (Vernon 2002); Low, 221S.W.3d 221 S.W.3d at 614;Armstrong CollinCountyBailBondBd.,233S.W.3d57,62(Tex.App.— at 614; Armstrong vv.. Collin County Bail Bond Bd., 233 S.W.3d 57, 62 (Tex. App.— Dallas2007, o pet.). Chapter10 that oneoftheaimsforimposition ofsanctionsforthe Dallas 2007, nno pet.). Chapter 10 specifies thatone of the aims for imposition of sanctions for the filingoffrivolousorgroundless filing of frivolousor pleadingsis to "deterrepetition oftheconductor comparable groundless pleadings is to "deter repetition of the conductor comparable conductbyotherssimilarly situated." Tex.Civ.Prac.&Rem.CodeAnn.§ 10.004(b) (Vernon conduct by others similarly situated." Tex. Civ. Prac. & Rem. Code Ann. § 10.004(b) (Vernon 2002).Weconstrue thephrase"improper purpose" astheequivalent of"badfaith"underRule 2002). We construe the phrase "improper purpose" as the equivalent of "bad faith" under Rule 13.SeeTex.R. Civ.P. 13;cf.SaveOurSpringsAlliance,LazyNine Util.Dist.ex rel. 13. See Tex. R. Civ. P. 13;cf. Save Our Springs Alliance, Lazy Nine Mun. Util. Dist. ex rel. 2006,pet.denied)("non- Bd. of Directors,198S.W.3d300,321 (Tex.App.Texarkana Bd. of Directors, 198 S.W.3d 300, 321 (Tex. App. Texarkana 2006, pet. denied) ("non- frivolous"requirement is sameas "goodfaith"requirement); Elwellv. No.10-04- frivolous" requirement is same as "good faith" requirement); Elwell v. Mayfield, No. 10-04- 2005WL1907126, 00322-CV, Aug.10,2005,pet. denied)(mem.op.) at *5(Tex.App.——Waco 00322-CV, 2005 WL 1907126, at *5 (Tex. App.—Waco Aug. 10, 2005, pet. denied) (mem. op.) (same).Anorderimposing a sanction underChapter10"shalldescribe theconduct the (same). An order imposing a sanction under Chapter 10 "shall describe. ..... the conduct the courthasdetermined violatedSection10.001 andexplain thebasisforthesanction imposed." court has determined violated Section 10.001 and explain the basis for the sanction imposed." Tex.Civ.RemCode.10.001. whether Indetermining sanctions thetrial areappropriate, Tex. Civ. Rem Code. 10.001. In determining whether sanctions are appropriate, the trial court mustexamine to thelitigantandthecircumstances factsavailable whenthelitigant existing must examine facts available to the litigant and the circumstances existing when the litigant Silverado Appx. 0568 No. 1-15-567-CV 1657 Robsonvv.. Gilbreath, filed the pleading.Robson filedthepleading. 267 S.W.3d4401, Gilbreath,267S.W.3d 405 (Tex.A 01,405(Tex. pp.——Austin App.—Austin 2008,pet. 2008, pet. denied); denied);Alejandro Alejandrov.v.Robstown Indep.SSch. RobstownIndep. ist.,1131 ch.DDist., S.W.3d6663, 31S.W.3d 669 (Tex.AApp.—Corpus 63,669(Tex. pp.—Corpus Christi Christi2004, 2004,nno pet.). Courtsshould o pet.). presumepartiesandtheircounsel shouldpresume fileall parties and their counsel inin file all papers good faith,aand goodfaith, ndthe party seeking the party seekingssanctions anctionsmust mustovercome thatpresumption. SeeTex.R. overcome that presumption. See Tex. R. Civ.P. 13;GTECommc’nsSys.Corp. Tanner,856 S.W.2d725,731 (Tex. 1993).The Civ. P. 13; GTE Commc'ns Sys. Corp.v.v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). The seekingsanctionshas the burdenof showingits right to relief.Tarmer, party seeking sanctions has the burden of showing its rightto party 856S.W.2dat Tanner, 856 S.W.2d at 731;Elkins 731; Elkinsv. Stotts-Brown,103S.W.3d664,668(Tex.App.—Dallas2003, nonopet.), v. Stotts-Brown, 103 S.W.3d 664, 668 (Tex. App.—Dallas2003, pet.). 65. Chapter10provides that:Thesigning of pleading motionconstitutes a certificateby lv 65. Chapter 10 provides that: The signing ofaa pleadingoror motion constitutes a certificate by the that to the signatory’s bestknowledge, andbelief,formedafter information, the signatory that to the signatory's best knowledge, information, and belief, formed after reasonable inquiry:(1)thepleading or motionis notbeingpresented foranyimproper reasonable inquiry: (1) the pleading or motion is not being presented for any improper purpose, includingtoharassortocause delayorneedless increaseinthecostoflitigation;(2)the including to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the orotherlegalcontentions defenses, ormotion inthepleading byexisting iswarranted lawor claims, defenses, or other legal contentions in the pleading or motion is warranted by existing law or or reversalof existinglaw or the argumentfor the extension,modification, by a non—f`rivolous by a non-frivolous argument for the extension, modification, or reversal of existing law or the of new law; (3) the allegationsor otherfactualcontentionsin the pleadingor establishment establishment of new law; (3) the allegations or other factual contentions in the pleading or motionhaveevidentiary or,fora specifically support is or factualcontention, allegation motion have evidentiary support or, for a specifically identified allegation or factual contention, is likelyto haveevidentiary aftera reasonable for investigation likely to have evidentiary support after a reasonable opportunity for further investigation discovery...Id. BothRules10andRule13requireproofofimproper added). (emphasis purpose, discovery...Id. (emphasis added). Both Rules 10 and Rule 13 require proof of improper purpose, maliciousintent,intentto harassor increase thecostsoflitigation,. Tex.R.Civ.P. 13,10.No malicious intent, intent to harass or increase the costs of litigation,. Tex. R. Civ. P. 13, for10. No proofofharassment or maliceexistsorcanbeshown.Sanctions maybeonlyimposed good proof of harassment or malice exists or can be shown. Sanctions may be only imposed for good causeunderRule13the particularsof whichmustbe statedin the order.Tex.R.Civ.P. 13; cause under Rule 13 the particulars of which must be stated in the order. Tex .R. Civ. P. 13; PROVED 89S.W.3dat327.Atnotimehascounsel Rudisell, thatany required to thestandard Rudisell, 89 S.W.3d at327. At no time has counsel PROVED to the standard required that any pleadingswerefiledbyPLAINTIFFS or theirATTORNEYS withtheintentto harass,mislead, pleadings were filed by PLAINTIFFS or their ATTORNEYS with the intent to harass, mislead, increasethe costsoflitigation, hasfiledeverypleading or in badfaith.Counsel ingoodfaith increase the costs of litigation, or in bad faith. Counsel has filed every pleading in good faith and inrelianceontheConstitutions oftheUnited States,Texas, Federal andState Statute, and in reliance on the Constitutions of the United States, Texas, Federal and State Statute, Silverado Appx. 0569 No. 1-15-567-CV 1658 Rules,and/or Ethical Rules, procedural and/or procedural rulesof rules thisCourt. of this MOVANTS Court. MOVANTS have havetheburden the burdenoof fproving proving some formof some form of malicious maliciousintent,whichthey intent, which theypatentlycannot. patently Tex.R. cannot. Civ. Tex. R. Civ.PP10, 10, 13. 13. SCHWAGER SCHWAGERhas sentthelawsuits hassent the lawsuitsfiledin filed inthis totheTexas caseto thiscase ofAging Departmentof the Texas Department Agingand and Disability Disability ((DADS), GeneralEElder Texas AttorneyGeneral DADS),Texas lderAbuseand Abuse and Exploitation ExploitationUnit Unit Captain Captain (investigation (investigation pending), pending), D Department of Justice (investigationpending), epartmentofJustice(investigation pending),aand ndPoliceDepartment. Police Department. SCHWAGER SCHWAGERwouldhardlycommit would hardly commitaa crime crime or engagein or engage sanctionable in sanctionable conductgiventhe conductgiven the penalties penalties imposed imposedffor ordoing doing so. SANCTIONS so. SANCTIONSare only justified in areonlyjustified in thefollowing the following s cenarios: scenarios: Attorneys notreadingthe Attorneysnot reading the pleading, ot conducting pleading,NNot conductingadequateinvestigation into adequate investigation the facts, intothe facts, Groundless Groundlessandbrought and brought iin n bad badfaith,Groundless andbrought faith, Groundless and brought to needlesslyincrease the cost to needlessly increase thecost of litigation; of litigation; or Statements or Statements known known to befalse. to be false.MOVANTS MOVANTS are unable are unable to provideaanything to provide nything beyondspeculative beyond speculativeconjecture of anyof conjecture ofany the becausetheevidence simplydoes not of the foregoing because the evidence simply doesnot exist exist to supporttheirmalicious, to support illegalMOTIONS. Notably, noneofofthe their malicious, illegal MOTIONS. Notably,none foregoingfactors the foregoing factors were established tocounter were established to counterSchwager’s presumptionofgoodfaith,suchthatsanctionsarenot Schwager's presumption of good faith, such that sanctionsare not authorizedunder R ule10 authorized under Rule 10or 13.Rule13authorizes the imposition of sanctions against or 13. Rule 13 authorizes the imposition of sanctions againstaan n attorney,who pleadingis either:(1)groundless andbroughtin badfaith; r (2) attorney, who filedaa pleading is either: (1) groundless and brought in bad faith;oor 33, (2)gg 33, 236(Tex.App.——CorpusChristi 2002, opet,). 236 (Tex. App.—CorpusChristi 2002, nno pet.). Theruledefines groundlessandbrought to harass.Tex.R.Civ.P. 13; see as groundless and brought to harass. Tex. R. Civ. P. 13;see The rule defines "groundless"as alsoRudisell 89S.W.3d 233,236(Tex.App.—Corpus Christi2002, pet).having also Rudisell v. v. Paquette, 89 S.W.3d 233, 236 (Tex. App.—Corpus Christi 2002,no no pet). having "no basisin law or fact and not by goodfaithargumentfor theextension, "no basis in law or fact and not warranted by good faith argument for the extension, modification, whosepleadings law."Tex.R.Civ.P. 13.It isMOVANTS ofexisting or reversal modification, or reversal of existing law." Tex. R. Civ. P. 13. It is MOVANTS whose pleadings meetthisstandard, notPLAINTIFFS ortheirATTORNEYS. Withrespect toRule215,theRule meet this standard, not PLAINTIFFS or their ATTORNEYS. With respect to Rule 215, the Rule pertainsexclusively to discovery abuse.GiventhatthePARTIES havejust discovery, pertains exclusively to discovery abuse. Given that the PARTIES have just begun discovery, thereare clearlyno groundsuponwhichto allegethatPLAINTIFFS or theirATTORNEYS there are clearly no grounds upon which to allege that PLAINTIFFS or their ATTORNEYS Rule215.Tex.R.Civ.P.215.Tothe violated overlybroad,harassing JOSHDAVIS’ violated Rule 215. Tex. R. Civ. P. 215. To the Contrary, JOSH DAVIS' overly broad, harassing violates subpoena Rule215,muchlikehisother dishonest, retaliatory conduct. subpoena violates Rule 215, much like his other frivolous, dishonest, retaliatory conduct. Silverado Appx. 0570 No. 1-15-567-CV 1659 withcleanhands. with clean hands.Breaux v.AlliedBank,699S.W.2d Breauxv. Allied Bank, 699 S.W.2d599,604(Tex.App.-—Houston [14th 599, 604 (Tex. App.--Houston [14th Dist.] Dist.] 1985, 1985,writref’d writ refd n.r.e.). n.r.e.). Theclean—hands doctrineisisA[t]he The clean-handsdoctrine A[t]hepprinciple rinciplethat a party that cannot a party cannot seekequitable seek equitablerelief reliefor anequitable or assertan equitabledefense defenseififthat partyhadviolated thatparty anequitable had violatedan equitable principle, suchasgood principle, suchas faith. Suchparty good faith.. .. .Such partyisis describedasashavingunclean having hands. unclean Sanctions hands. and Sanctions and fees havebeendeniedwherethe partyseeking fees have been denied where theparty seekingthem themlacked lacked "cleanhands" "clean hands"suchasasevidence such evidenceofof impropriety badfaith ontheir 174F.R.D. 319, 326 (S.D.N.Y.1997). improprietyor or bad faithon their part., 174 F.R.D.319,326 AA 1997). partywhoseeks party who seeks equitymustdo equity.Furrv. Hall,553S.W.2d666,672(Tex.Civ.App.Amarillo1977,writ equity must do equity. Furr v. Hall, 553 S.W.2d 666, 672 (Tex. Civ. App. Amarillo 1977, writ CTf refdn.r.e.);Ligonv. E.F.Hutton&Co.,428S.W.2d434,437(Tex.Civ.App.Dallas 1968,writ N refd n.r.e.); Ligon v. E.F. Hutton & Co., 428 S.W.2d 434, 437 (Tex. Civ. App.Dallas 1968, writ ref’dn.r.e.).Sanctions maynotbearbitraryorcapricious, inthiscase——when considers refd n.r.e.). Sanctions may not be arbitraryor capricious,as one as in this case—when one considers thelandscape ofthehearing andmultiple instances ofmisconduct andmisrepresentations of the landscape of the hearing and multiple instances of misconduct and misrepresentations of otherattomeys, ashasbeenmadeclearbymultiple motions byAPPLICANTS. Blanket other attorneys, as has been made clear by multiple motions filed by APPLICANTS. Blanket conclusorystatementsare tosupport a sanctions awardunderRule10or 13without conclusory statements are insufficient to support a sanctions award under Rule 10 or 13 without EVIDENCE (subjectiveandobjective) proving thatthe"pleading" wasgroundless and with EVIDENCE (subjective and objective) proving that the "pleading" was groundless and filed with malicious or improper intent.Theycannotdothisbecause no suchevidence exists.Forthe malicious or improper intent. They cannot do this because no such evidence exists. For the foregoing nosanctions reasons, canbeawarded underRules10,13,or 215.Instead the foregoing reasons, no sanctions can be awarded under Rules 10, 13, or 215. Instead the Court shouldassesssanctionsagainstSARAHPACHECO, JOSHDAVISANDRUSSJONESas well should assess sanctions against SARAH PACHECO, JOSH DAVIS AND RUSS JONES as well astheirclients(absent RUBY theserulesaswellastheTexasRules forviolating PETERSON) as their clients (absent RUBY PETERSON) for violating these rules as well as the Texas Rules of Conduct asstatedherein. of Disciplinary Conduct as stated herein. ANDPRAYER V.CONCLUSION V. CONCLUSION AND PRAYER PLAINTIFFS ANDTHEIRATTORNEYS respectfully requestthis HonorableJudge PLAINTIFFS AND THEIR ATTORNEYS respectfully request this Honorable Judge MODIFY THEORDERS ISSUED NOVEMBER 10,2014,dismissing PLAlNTIFFS’ claims MODIFY THE ORDERS ISSUED NOVEMBER 10, 2014, dismissing PLAINTIFFS' claims againstSILVERADO SENIORLIVINGor otherwiseunderRule91aor Motionsto Dismiss,and against SILVERADO SENIOR LIVING or otherwise under Rule 91a or Motions to Dismiss, and rescindallsanctions orderswhetherissuedpursuant to Rule10,13or Rule3.7.MOVANTS rescind all sanctions orders whether issued pursuant to Rule 10, 13 or Rule 3.7. MOVANTS requestallotherreliefto whichtheymaybejustlyentitled. request all other relief to which they may be justly entitled. Silverado Appx. 0571 No. 1-15-567-CV 1660 Respectfully Respectfully submitted, /5/ Z'aiedreQ' 4.tnayer Candice CandiceL.Schwager L. Schwager1417 1417 RamadaDr. Dr. Houston, Houston,Texas Texas77062 77062 Tel:(832) Tel: (832)315-8489 315-8489 Fax:(713)583-0355 Fax: (713) 583-0355 schwerlawfinn@live.com ATTORNEYS ATTORNEYSFOR FORMACK 0 GLEN PETERSON, LONNY MACK GLEN PETERSON, LONNY PETERSON, PETERSON,AND AND DON LESLIE LESLIEPETERSON PETERSON of Certificate of Service II hereby that true and hereby certify that aa true and correct opyoftheabovedocument correct ccopy of the above documentwas was e-filedand andsent sent byemail electronicdelivery by agreement or electronic delivery byagreement by email or to thefollowing onthe to the followingon dayof the 6th day of February2015: 2015: SarahPacheco Sarah Pacheco JillYoung Jill Young Kathleen Beduze Kathleen Beduze Maclntyre, McCulloch, Young,LLP Crain,C aton&James,PC Maclntyre, McCulloch, Stanfield, Young, LLP Crain, Caton & James, PC 2900Weslayan, Suite150 2900 Weslayan, Suite 150 Houston, 1401 TX McKinney 77010 St.,Suite1700 1401 McKinney St., Suite 1700 Houston, TX 77010 Houston, TX77027 Houston, TX 77027 JoshDavis RussJones Josh Davis LewisBrisbois Bisgaard Russ Jones &Smith, LLP Lewis Brisbois Bisgaard & Smith, LLP Underwood, Jones,Scherrer& Weslayan Tower,Suite1400 Underwood, Malouf,PLLCJones, Scherrer & Weslayan Tower, Suite 1400 24Greenway Plaza Malouf, PLLC Ave.,Suite505 5177Richmond 24 Greenway Plaza Houston, TX77046 5177 Richmond Houston, Ave., Suite 505 TX77056/S/ Houston, TX 77046 Houston, TX 77056 Is/ 'i7")a,te&e 04ivayer Candice Candice Schwager Silverado Appx. 0572 No. 1-15-567-CV 1661

in the Guardianship of Ruby Peterson

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