                                                                                ACCEPTED
                                                                            01-15-00567-CV
                                                                 FIRST COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                     10/28/2015 11:05:50 AM
                                                                      CHRISTOPHER PRINE
                                                                                     CLERK




                               No. 01-15-00567-CV
                                                            FILED IN
                                                     1st COURT OF APPEALS
           IN THE COURT OF APPEALS FOR THE FIRST    DISTRICT
                                                         HOUSTON, TEXAS
                          HOUSTON, TEXAS            10/28/2015 11:05:50 AM
                                                     CHRISTOPHER A. PRINE
                                                             Clerk
                     ********************
      MACKEY GLEN PETERSON, TONYA PETERSON, DON LESLIE
          PETERSON AND LONNY PETERSON, APPELLANT

                                       v.

  CAROL ANNE MANLEY, DAVID PATTERSON, SILVERADO SENIOR
   LIVING, INC., D/B/A SILVERADO SENIOR LIVING SUGAR LAND


                                     AND


                               No. 01-15-00586-CV

           IN THE COURT OF APPEALS FOR THE FIRST DISTRICT
                          HOUSTON, TEXAS

                     ********************
      MACKEY GLEN PETERSON, TONYA PETERSON, DON LESLIE
          PETERSON AND LONNY PETERSON, APPELLANT

                                       v.

  CAROL ANNE MANLEY, DAVID PATTERSON, SILVERADO SENIOR
   LIVING, INC., D/B/A SILVERADO SENIOR LIVING SUGAR LAND


   UNAGREED MOTION BY APPELLEE SILVERADO FOR JUDICIAL
           NOTICE AND ADMINISTRATIVE RELIEF




Page 1 of 8;4829-8294-8905.1
TO THE HONORABLE JUSTICES OF SAID COURT:

1.      This Motion is filed in both of the captioned cases by Defendant-Appellee,

Silverado Senior Living, Inc. d/b/a Silverado Senior Living – Sugarland, Texas

(“Silverado”).

2.      The Chart filed as an Exhibit to this Motion is provided for the Court’s

convenient reference. This Chart lists various items contained in the Clerk’s Record

filed in each case shown in the caption above. It also includes references to the

Orders from which Appellants appeal.1

3.      The parties’ dispute originates in a guardianship case filed in a statutory probate

court. Donny Leslie Peterson (“Don”) and Mackey Glen Peterson (“Mack”) filed an

action seeking guardianship of their mother, Ruby S. Peterson (“Ruby”) on December

11, 2013. The action was filed with the County Clerk of Harris County, Texas, given

Cause Number 427208, and assigned to Statutory Probate Court Number 1. R 586:14-

45. The original guardianship petition named Carol Peterson Manley (“Manley”) and

David Troy Peterson (“David”) as Respondents. Original Guardianship Petition, CR

586:14, at 15, ¶¶ 4, 5.

4.      Ruby (allegedly appearing In Proper Person), Mack, Don and Lonny Peterson

(“Lonny”) later filed a separate lawsuit in Harris County District Court (the “State

        1
         In order to distinguish the two Records on Appeal, the unique 3-digit case number precedes
the reference to the Record. Thus, CR 586:14-45 refers to Clerk’s Record, pages 14-45, in Case
Number 01-15-00586-CV.


Page 2 of 8;4829-8294-8905.1
District Court Lawsuit”).2 The State District Court Lawsuit, filed on July 17, 2014,

was given Cause Number 2014-409807 by the Harris County District Clerk, and

assigned to the 129th Judicial District Court in and for Harris County, Texas. CR

567:23. Plaintiffs sued Manley, David, Silverado Senior Living of Sugarland, Texas

(“Silverado”), Tanna McMillan (“McMillan”), Linda Lavinson (“Lavinson”) and Dr.

Rebecca Clearman (“Clearman”). CR 567: 23, at 23, 25-26.

5.      Upon Motion to Transfer, the Statutory Probate Court signed its Order of

Transfer on July 25, 2014, requiring the State District Court Lawsuit to be transferred

to the Probate Court, and ordered the proceeding to be assigned Cause Number

427,208-401. The Judge in the State District Court Lawsuit also ordered the State

District Court Lawsuit to be transferred to the Statutory Probate Court, in furtherance

of the Order of Transfer by the Statutory Probate Court. See, Order of Transfer to

Probate Court Pursuant to Probate Court Order, signed August 19, 2014, (with a copy

of the Statutory Probate Court’s Order of Transfer attached as Exhibit “A”). CR

567:15-20.

6.      After the conclusion of all proceedings in both cases below in the Statutory

Probate Court, Appellants filed their original Notice of Appeal. CR 586:3955-3960.

That Notice carried a caption that included both the initial guardianship case and also


        2
        The designation, “State District Court,” is inserted to distinguish it from the state Statutory
Probate Court.


Page 3 of 8;4829-8294-8905.1
the transferred State District Court Lawsuit. Id. The Notice of Appeal is included in

the Clerk’s Record in #586, but is not included in the Clerk’s Record in #567 (which

appears to relate primarily to the transferred State District Court Lawsuit).

7.      Appellants then filed an Amended Notice of Appeal. CR 567:2155-2159; CR

586:3961-3964. In doing so, Appellants allocated various Orders listed in their

original Notice of Appeal, from which Orders two separate appeals were taken. Id.

8.      Each of the two appeals should be considered within the context of the other

appeal, due to the inter-related proceedings below.

9.      Therefore, this Court is requested, in each case on appeal, to take judicial notice

of the Record on Appeal and the adjudicative facts in the Record on Appeal of the

other case. See generally, Tex. R. Evid. 201, Judicial Notice of Adjudicative Facts.

Appellate civil proceedings are not outside the application of those Rules insofar as

they relate to judicial notice. See, e.g., D&M Marine v. Turner, 409 S.W.3d 853, 856

(Tex. App. – Ft. Worth, 2013, no sub. hist.) (even if related federal court proceedings

were outside of the appellate record, inclusion of the items in a party’s appendix was

not improper because the appellate court was allowed to take judicial notice of such

adjudicative facts, citing, Tex. R. Evid. 201 & Thomas v. Cook, 350 S.W.3d 382, 387

n.2 (Tex. App. – Houston [14th Dist.] 2011, pet. denied) (appellate court took judicial

notice of the docket sheet in a related federal district court proceeding).




Page 4 of 8;4829-8294-8905.1
10.     This Court also is respectfully requested to assign both cases to the same

judicial panel, in order to avoid the risk of inconsistent or contradictory

determinations of the issues on appeal in both cases.

        WHEREFORE, PREMISES CONSIDERED, Silverado prays that the Court

take judicial notice as requested in this Motion; assign both appeals to the same

judicial panel; and for general and equitable relief.

                                        Respectfully submitted,

                                        LEWIS, BRISBOIS,          BISGAARD       &
                                        SMITH, LLP


                                        /s/ P. Alan Sanders
                                        PANNAL ALAN SANDERS
                                        TBN: 17602100
                                        JOSH K. DAVIS
                                        TBN: 24031993
                                        Weslayan Tower, Suite 1400
                                        24 Greenway Plaza
                                        Houston, Texas 77046
                                        (713) 659-6767 Telephone
                                        (713) 759-6830 Facsimile
                                        Alan.Sanders@lewisbrisbois.com
                                        Josh.Davis@lewisbrisbois.com

                                        ATTORNEYS FOR     APPELLEE,
                                        SILVERADO SENIOR LIVING, INC.
                                        D/B/A SILVERADO SENIOR LIVING -
                                        SUGAR LAND (“SILVERADO”)




Page 5 of 8;4829-8294-8905.1
                               CERTIFICATE OF CONFERENCE

       I certify that I have communicated with all other counsel of record in the
foregoing appeals, initially last week and in follow up yesterday, October 26, 2015,
and none of them opposed the relief requested in this Motion by the time this Motion
was filed. More particularly, Russ Jones and Jill Young expressly agreed to the relief
requested in this Motion. However, no response whether by way of objection,
agreement or otherwise was received from the remaining record counsel. Therefore,
this Motion has been characterized as “unagreed” in contrast to being “agreed,”
“unopposed” or “opposed.” Thus certified on October 27, 2015.


                                              /S/ P. Alan Sanders
                                              P. ALAN SANDERS




Page 6 of 8;4829-8294-8905.1
                               CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing instrument was served
upon all counsel of record via electronic filing on October 28, 2015.

        Candice L Schwager
        The Schwager Law Firm
        1417 Ramada Dr.
        Houston, Texas 77062
        Attorney for Plaintiffs/Appellants

        Philip M. Ross
        1006 Holbrook Road
        San Antonio, Texas 78218
        Attorney for Plaintiffs/Appellants

        Sarah Patel Pacheco
        Crain, Caton & James, PC
        1401 McKinney Street
        1700 Five Houston Center
        Houston, Texas 77010
        Attorneys for /Appellees / Respondents / Defendants,
        Carol Manley and David Peterson

        Jill W. Young
        MacIntyre, McCulloch, Stanfield & Young, LLP
        2900 Weslayan, Suite 150
        Houston, Texas 77027
        Guardian Ad Litem for Ruby S. Peterson (now deceased)

        W. Russ Jones
        Underwood, Jones Scherrer & Malouf, PLLC
        5177 Richmond Ave, Suite 505
        Houston, Texas 77056
        Attorney Ad Litem for Ruby S. Peterson (now deceased)


                                              /S/ P. Alan Sanders
                                              P. ALAN SANDERS

Page 7 of 8;4829-8294-8905.1
                                                                   Appellate      Clerk’s
                                                        Date /Date
Description/Title                                                  Case           Record #
                                                        Signed
                                                                   Number3
Order Granting Authority for Guardian Ad Litem &
Attorney Ad Litem to Execute Peterson Rule 11 11/07/2014               567        1386 - 1390
Agreement
Order Granting Authority for Guardian Ad Litem &
Attorney Ad Litem to Execute Peterson Rule 11 11/07/2014               586        3541-3545
Agreement
Order on David Peterson and Carol Anne Manley’s
                                                          11/10/2014              1385
Motion for Sanctions                                                   567
Order for Sanctions                                       11/10/2014   586        3538-3540
Order Granting Defendant Silverado Senior Living, Inc.
d/b/a Silverado Senior Living – Sugar Land’s Rule 91a 11/10/2014       586        3546
Motion to Dismiss
Order Granting Silverado’s First Amended Plea to the
                                                          01/09/2015              1513
Jurisdiction                                                           567
    Order Authorizing Payment of Appointee’s Fees
    and Expenses Pursuant to Texas Estates Code           01/09/2015   586        3819-3820
    Section 1054.055 for the Time Period March 27,
    2014 through October 31, 2014
    Order Granting Application for Attorney Fees
    Pursuant to Rule 91a Order Entered on November 01/09/2015          567        1514-1515
    10, 2014
Order Denying Motion to Reconsider 91a Motion to
                                                          01/09/2015              1524
Dismiss and Motion for Sanctions                                       567
    Order Granting Silverado’s 91a Motion to Dismiss
    Plaintiffs’ Breach of Trust and/or Breach of          01/09/2015   567        1531-1532
    Fiduciary Duty
Order Approving Appointee’s Fees & Expenses               01/09/2015   567        1614-1615
Order Granting Silverado’s Motion to Modify Order
                                                          05/12/2015              2133-2134
Granting First Amended Plea to the Jurisdiction                        567
Modified Order Granting Silverado’s First                 05/12/2015   567        2135
Amended Plea to the Jurisdiction
Final Judgment                                            05/12/2015   586        3948-3951
Order Denying Motion to Dismiss                           05/12/2015   586        3952-3953
Order Granting Silverado’s Motion for Summary
                                                          05/12/2015              2145
Judgment                                                               567
Original Notice of Appeal (dual case caption, for Probate
                                                          06/08/2015              3955-3960
Court Nos. 427,208 and 427,208-401)                                    586
Amended Notice of Appeal (in 567)                         06/17/2015   567        2155-2159
Amended Notice of Appeal (in 586)                         06/16/2015   586        3961-3964



        3
         The additional identifying numerical strings, e.g., 01-15-xxxx-cv, are omitted for brevity of
reference in this Chart.


Page 8 of 8;4829-8294-8905.1
