                                                                                         ACCEPTED
                                                                                     01-15-00567-CV
                                                                          FIRST COURT OF APPEALS
                                                                                  HOUSTON, TEXAS
                                                                               11/16/2015 7:38:25 PM
                                                                               CHRISTOPHER PRINE
                                                                                              CLERK

                         No. 01-15-00567-CV

                  IN THE COURT OF APPEALS FOR                       FILED IN
                                                             1st COURT OF APPEALS
                   THE FIRST DISTRICT OF TEXAS                   HOUSTON, TEXAS
                       SITTING AT HOUSTON                    11/16/2015 7:38:25 PM
                                                             CHRISTOPHER A. PRINE
                                                                      Clerk
DON PETERSON, MACKEY PETERSON, TONYA PETERSON, AND
LONNY PETERSON,

    Appellants,
v

SILVERADO SENIOR LIVING, INC., d/b/a SILVERADO SENIOR
LIVING – SUGAR LAND,

    Appellee.


                           On Appeal from
            Probate Court No. One, Harris County, Texas
                  Honorable Lloyd Wright, presiding
                  Trial Court Cause No. 427,208-401
           on transfer from the 129th Judicial District Court,
            Harris County, Texas, Cause No. 2014-40980


                        APPELLANTS' BRIEF


                                           Respectfully submitted,

                                           Philip M. Ross
ORAL ARGUMENT REQUESTED                    State Bar No. 017304200
                                           1006 Holbrook Road
                                           San Antonio, Texas 78218
                                           Phone: 210/326-2100
                                           Email: ross_law@hotmail.com
                                    By:    /s/ Philip M. Ross
                                           Philip M. Ross
                                           Attorney for Appellants
               IDENTITY OF PARTIES AND COUNSEL

Party:                          Counsel:

Don Peterson                    Philip M. Ross
Mackey Peterson                 State Bar No. 17304200
Tonya Peterson                  1006 Holbrook Road
Lonny Peterson                  San Antonio, Texas 78218
                                Phone: 210/326-2100
Appellants                      Email: ross_law@hotmail.com

Silverado Senior Living, Inc.   Josh Davis
dba Silverado Senior Living -   State Bar No. 24031993
Sugar Land                      Lewis Brisbois Bisgaard & Smith,
                                LLP
                                Weslayan Tower, Suite 1400
Appellee                        24 Greenway Plaza
                                Houston, Texas 77046
                                Phone: 713-659-6767
                                Email: josh.davis@lewisbrisbois.com




                                ii
                      TABLE OF CONTENTS

                                                                        Page

IDENTITY OF PARTIES AND COUNSEL ..…………………………                              ii

TABLE OF CONTENTS ……………………………………………… iii

INDEX OF AUTHORITIES …………………………………………..                                   vii

STATEMENT OF THE CASE ………………………………..……….                                  2

STATEMENT OF JURISDICTION …………………………………..                                 3

STATEMENT REGARDING THE RECORD….………………………                                  3

ISSUES PRESENTED ………………………………………………….. 4

   ISSUE NO. 1: Whether the trial court granted Silverado's Rule
   91a motion to dismiss Appellants' claims for false
   imprisonment, assault and battery, and conspiracy in error on
   November 10, 2014, notwithstanding Appellants' subsequently
   filed Fifth Amended Petition, which adequately stated facts
   supporting their claims.

   ISSUE NO. 2:           Whether the trial court granted Silverado's
   plea to the jurisdiction in error on January 9, 2015, although
   Appellants' Fifth Amended Petition stated facts supporting the
   trial court's jurisdiction over their claims for relief.

   ISSUE NO. 3:       Whether the trial court granted Silverado's
   Rule 91a motion to dismiss Appellants' claims for breach of
   trust and/or breach of fiduciary duty in error on January 9,
   2015, although Appellants' Fifth Amended Petition adequately
   stated facts supporting the trial court's jurisdiction over their
   claims for relief.


                                  iii
    ISSUE NO. 4:        Whether the trial court denied Appellants'
    motion to reconsider the Orders granting Silverado's Rule 91a
    motion to dismiss and motion for sanctions in error on January
    9, 2015, although Appellants' Fifth Amended Petition
    adequately stated facts supporting the trial court's jurisdiction
    over their claims for relief.

    ISSUE NO. 5:        Whether the trial court granted Silverado's
    application for attorney's fees pursuant to Rule 91a Order
    entered on November 10, 2014 in error on January 9, 2015,
    although Appellants' Fifth Amended Petition adequately stated
    facts supporting the trial court's jurisdiction over their claims
    for relief, such that the motions for dismissal of Appellants'
    claims should have been denied.

    ISSUE NO. 6:        Whether Appellants may be entitled to
    declaratory judgment as a matter of law that the 1993 Durable
    Power of Attorney appointing Carol Manley and David was
    revoked as of November 15, 2013 pursuant to Tex. Civ. Prac. &
    Rem. Code 37.001-37.005 et seq.

STATEMENT OF FACTS AND PROCEDURAL BACKGROUND … 5

STANDARD OF REVIEW …......…………………………………….                                                                  15

SUMMARY OF ARGUMENT ……………………………………….                                                                       19

ARGUMENT AND AUTHORITIES ………………………………….. 20

    ISSUE NO. 1: Whether the trial court granted Silverado's Rule
    91a motion to dismiss Appellants' claims for false
    imprisonment, assault and battery, and conspiracy in error on
    November 10, 2014, notwithstanding Appellants' subsequently
    filed Fifth Amended Petition, which adequately stated facts
    supporting their claims.
    …...................................................................................................   20


                                                    iv
ISSUE NO. 2:                 Whether the trial court granted Silverado's
plea to the jurisdiction in error on January 9, 2015, although
Appellants' Fifth Amended Petition stated facts supporting the
trial court's jurisdiction over their claims for relief.
…................................................................................................... 24

ISSUE NO. 3:                Whether the trial court granted Silverado's
Rule 91a motion to dismiss Appellants' claims for breach of
trust and/or breach of fiduciary duty in error on January 9,
2015, although Appellants' Fifth Amended Petition adequately
stated facts supporting the trial court's jurisdiction over their
claims for relief.
…................................................................................................... 25

ISSUE NO. 4:                 Whether the trial court denied Appellants'
motion to reconsider the Orders granting Silverado's Rule 91a
motion to dismiss and motion for sanctions in error on January
9, 2015, although Appellants' Fifth Amended Petition
adequately stated facts supporting the trial court's jurisdiction
over their claims for relief.
….................................................................................................... 25

ISSUE NO. 5:                Whether the trial court granted Silverado's
application for attorney's fees pursuant to Rule 91a Order
entered on November 10, 2014 in error on January 9, 2015,
although Appellants' Fifth Amended Petition adequately stated
facts supporting the trial court's jurisdiction over their claims
for relief, such that the motions for dismissal of Appellants'
claims should have been denied.
….................................................................................................... 28

ISSUE NO. 6:                    Whether Appellants may be entitled to
declaratory judgment as a matter of law that the 1993 Durable
Power of Attorney appointing Carol Manley and David was
revoked as of November 15, 2013 pursuant to Tex. Civ. Prac. &
Rem. Code 37.001-37.005 et seq.
….................................................................................................... 34


                                               v
CONCLUSION and PRAYER……………………….………………....                                        36

CERTIFICATION ……………………………………….....…………... 36

CERTIFICATE OF COMPLIANCE …...................................................   37

CERTIFICATE OF SERVICE …………………………….……...…...                                     37




                                        vi
                                        INDEX OF AUTHORITIES

        CASES                                                                        PAGE(S)

Ashcroft v. Iqbal
556 U.S. 662 (2009) ….................................................................    18

Bart Turner & Assocs. v. Krenke
No. 3:13–CV–2921–L, 2014 WL 1315896, at *5
(N.D.Tex. Mar. 31, 2014) …......................................................... 19

Bell Atl. Corp. v. Twombly
550 U.S. 544 (2007) ….................................................................    18

City of Keller v. Wilson
168 S.W.3d 802 (Tex.2005) ….....................................................          17

Erickson v. Pardus
551 U.S. 89 (2007) ….................................................................... 18

Godaddy.com, LLC v. Toups
429 S.W.3d 752 (Tex. App., 2014) …........................................               16, 18

Harris Cnty. Hosp. Dist. v. Textac Partners I
257 S.W.3d 303 (Tex.App.-Houston
[14th Dist.] 2008, no pet.) ….........................................................     16

In re Katrina Canal Breaches Litig.
495 F.3d 191 (5th Cir.2007) …......................................................        17

In the Matter of Estate of Perry
No. 04-06-00205-CV (Tex. App. 8/15/2007) …............................                     24

James v. Brown
637 S.W.2d 914 (Tex., 1982) ….....................................................          24

Lehmann v. Har-Con Corp.
39 S.W.3d 191 (Tex. 2001) ….......................................................          3

                                                 vii
CASES                                                                                      PAGE

Massey v. Armco Steel Co.
652 S.W.2d 932 (Tex. 1983) …....................................................                 24

Moore's Inc. v. Garcia
604 S.W.2d 261 (Tex.Civ.App.--Corpus Christi 1980
writ ref'd n.r.e.) ….........................................................................    24

Nexion Health at Beechnut, Inc. v. Paul
335 S.W.3d 716 (Tex.App.-Houston
[14th Dist.] 2011, no pet.) …........................................................            16

Operation Rescue-National v. Planned Parenthood
of Houston & Southeast Tex., Inc.
975 S.W.2d 546 (Tex. 1998) …....................................................                 24

Roark v. Allen
633 S.W.2d 804 (Tex.1982) ….....................................................                 19

Scanlan v. Tex. A & M Univ.
343 F.3d 533 (5th Cir.2003) …..................................................... 18

Singleton v. Casteel
267 S.W.3d 547 (Tex.App.-Houston
[14th Dist.] 2008, pet. Denied) …..............................................                 16, 18

Tex. Dep't of Parks & Wildlife v. Miranda
133 S.W.3d 217 (Tex.2004) …................................................... 16, 17

Wooley v. Schaffer
447 S.W.3d 71 (Tex. App., 2014) …................................... 15, 16, 17, 19




                                                    viii
STATE STATUTES AND RULES                                                                 PAGE(S)

Federal Rule of Civil Procedure 12(b)(6).10 …........................... 17, 18

Tex. Civ. Prac. & Rem. Code Ann. § 51.014 ................................... 3

Tex. Civ. Prac. & Rem. Code 37.001-37.005 et seq. ….................. 34

TEX. R. APP. P. 25.1(a) .................................................................. 3

TRCP Rule 91a ….......................................................................    passim




                                                  ix
                                No. 01-15-00567-CV



                       IN THE COURT OF APPEALS FOR
                        THE FIRST DISTRICT OF TEXAS
                            SITTING AT HOUSTON

DON PETERSON, MACKEY PETERSON, TONYA PETERSON, AND
LONNY PETERSON,

      Appellants,

v

SILVERADO SENIOR LIVING, INC., d/b/a SILVERADO SENIOR LIVING –
SUGAR LAND,

      Appellee.


                                  On Appeal from
                    Probate Court No. One, Harris County, Texas
                         Honorable Lloyd Wright, presiding
                         Trial Court Cause No. 427,208-401
                  on transfer from the 129th Judicial District Court,
                   Harris County, Texas, Cause No. 2014-40980


                               APPELLANTS' BRIEF



TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

     NOW COME, Don Peterson, Mackey Peterson, Tonya Peterson, and

Lonny Peterson (“Appellants”), by and through the undersigned attorney at law,

                                          1
and file this appeal from the Final Orders of the trial court dismissing their

claims against Silverado Senior Living, Inc., dba Silverado Senior Living –

Sugar Land (“Silverado”) pursuant to TRCP Rule 91a and awarding sanctions

and attorney's fees, and would show the Court as follows:

                           STATEMENT OF CASE

      Appellants filed their Fifth Amended Petition on December 4, 2014

seeking a declaratory judgment regarding the validity of powers of attorney

executed in 1993 and revoked by Ruby S. Peterson (“Mrs. Peterson”) on

November 15, 2013, as well as, claims for false imprisonment, assault and

battery, breach of fiduciary duty and conspiracy related to Silverado's conduct

related to Appellants and their mother Mrs. Peterson. (CR2 page 1537-1555).

The Appellants' claims accrued, when Mrs. Peterson's adult children Carol Ann

Manley and David Peterson, acting pursuant to 1993 powers of attorney, denied

Mrs. Peterson's repeated requests to leave Silverado, which disregarded Mrs.

Peterson's execution of a new power of attorney and revocation of her prior

powers of attorney. Appellants claim that they suffered damages as a proximate

result of Silverado's actions falsely imprisoning Mrs. Peterson, preventing

Appellants from visiting her, involuntarily drugging her, breaching its fiduciary

duty, and conspiring with Carol Ann Manley and David Peterson to violate

                                       2
Appellants' and Mrs. Peterson's rights.

      The Appellants respectfully submit that the trial court granted Silverado's

motions for dismissal and attorney's fees pursuant to TRCP Rule 91a in error

because Appellants' Fifth Amended Original Petition alleges facts that support

all their claims for which relief may be granted. (CR2 page 1537-1555).

                       STATEMENT OF JURISDICTION

      Appellants invoked the jurisdiction of this Court by filing their notice of

this appeal pursuant to TEX. R. APP. P. 25.1(a). Appellants submit that they

have complied with all conditions precedent to invoking the jurisdiction of the

First Court of Appeals. As a general rule, a party may appeal only from a final

judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). This

Court has jurisdiction over appeals from final decisions of trial courts and from

interlocutory orders as provided by statute. Id.; see Tex. Civ. Prac. & Rem. Code

Ann. § 51.014 (Vernon Supp. 2006).

                 STATEMENT REGARDING THE RECORD

      The Clerk’s Record consisting of three volumes has been filed. The

Reporter's Record consisting of thirteen volumes has been filed.




                                          3
                              ISSUES PRESENTED

ISSUE NO. 1: Whether the trial court granted Silverado's Rule 91a motion to

dismiss Appellants' claims for false imprisonment, assault and battery, and

conspiracy in error on November 10, 2014, notwithstanding Appellants'

subsequently filed Fifth Amended Petition, which adequately stated facts

supporting their claims.

ISSUE NO. 2:           Whether the trial court granted Silverado's plea to the

jurisdiction in error on January 9, 2015, although Appellants' Fifth Amended

Petition stated facts supporting the trial court's jurisdiction over their claims for

relief.

ISSUE NO. 3:      Whether the trial court granted Silverado's Rule 91a motion to

dismiss Appellants' claims for breach of trust and/or breach of fiduciary duty in

error on January 9, 2015, although Appellants' Fifth Amended Petition

adequately stated facts supporting the trial court's jurisdiction over their claims

for relief.

ISSUE NO. 4:      Whether the trial court denied Appellants' motion to reconsider

the Orders granting Silverado's Rule 91a motion to dismiss and motion for

sanctions in error on January 9, 2015, although Appellants' Fifth Amended

Petition adequately stated facts supporting the trial court's jurisdiction over their

                                         4
claims for relief.

ISSUE NO. 5:           Whether the trial court granted Silverado's application for

attorney's fees pursuant to Rule 91a Order entered on November 10, 2014 in

error on January 9, 2015, although Appellants' Fifth Amended Petition

adequately stated facts supporting the trial court's jurisdiction over their claims

for relief, such that the motions for dismissal of Appellants' claims should have

been denied.

ISSUE NO. 6:         Whether Appellants may be entitled to declaratory judgment as

a matter of law that the 1993 Durable Power of Attorney appointing Carol

Manley and David was revoked as of November 15, 2013 pursuant to Tex. Civ.

Prac. & Rem. Code 37.001-37.005 et seq.

       STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

      At the time of filing of the guardianship proceeding, Mrs. Peterson was the

92-year old mother of Mack, Don, Lonny, David and Carol. Mrs. Peterson was a

resident at Silverado Senior Living – Sugar Land (“Silverado”) at all times

relevant to this case. (CR2 page 1539).

      In 1993, Mrs. Peterson and her husband, both now deceased, executed a

durable power of attorney appointing Carol and David as their agents.        (CR2

page 1539).

                                          5
      On or about August 27, 2013, purportedly acting pursuant to the 1993

power of attorney, David and Carol moved Mrs. Peterson to Silverado, which is

a locked memory care facility. (CR2 page 1539).

      Shortly after Carol and David moved Mrs. Peterson to Silverado they

obtained a letter from Dr. Chris Merkl, M.D. stating that Mrs. Peterson had

severe dementia. (CR2 page 1540) (RR Vol. 5 page 221, lines 2-25; page 222,

lines 1-24; RR Vol. 9, page 111, lines 1-25; page 112, lines 1-14) Carol and

David used Dr. Merkl's diagnosis as authority for their actions as Mrs. Peterson's

agents for making her medical decisions.        (CR2 page 1540).          Dr. Merkl's

diagnosis of severe dementia was contradicted by his own subsequent testimony

and the testimony of Dr. John Tennison, M.D. (RR Vol. 6 page 221, lines 19-25,

page 222, lines 1-22; Vol. 8, page 59, lines 6-25, page 60, lines 1-2).

      Appellants alleged that Carol Manley and David did not have lawful

authority to act as Mrs. Peterson's medical agents because Dr. Merkl's diagnosis

was invalid and Mrs. Peterson did not lack capacity to decide where she did or

did not want to live. (CR2 page 1540). Nevertheless, Silverado refused to allow

Mrs. Peterson to go to church, to restaurants or to the Appellants' homes from

September 2013 until November 2014, when Appellants settled their claims

against Carol Manley and David in the guardianship matter and this case. (CR2

                                         6
page 1540).

      Appellants alleged and offered evidence that Mrs. Peterson complained

about the conditions of her residency at Silverado. When Mrs. Peterson refused

to take her medication voluntarily, Silverado staff mixed her drugs in a drink and

told her it was a vitamin drink. (CR2 page 1541) (RR Vol. 5, page 109, lines 16-

25; page 110, lines 1-18). Carol Manley testified that she agreed with Dr. Merkl's

opinion that it was okay to give Mrs. Peterson drugs against her will by

deceiving her. (RR Vol. 8, page 365, lines 17-20). David Peterson testified that

one of the reasons he agreed to keep Mrs. Peterson at Silverado was because they

were able to do whatever it took to medicate Mrs. Peterson, when she refused.

(RR Vol. 9, page 113, lines 2-23). David Peterson also agreed with Dr. Merkl

that it was often appropriate for Silverado to trick Mrs. Peterson into taking

medications involuntarily. (RR Vol. 8, page 365, lines 1-20). Silverado had a

custom or practice of lying or tricking a patient into taking medication if

recommended by a doctor. (RR Vol. 9, page 2127, lines 1-20).          (CR2 page

1541).

      Mrs. Peterson asked to leave Silverado to go out to eat with Don and his

wife. She asked to go to the church of her choice in Baytown. She asked to go

visit Mack and his wife at their home in Wimberly, Texas. After Silverado

                                        7
repeatedly denied her requests to go to the church of her choice, go out to eat and

go to visit Mack at his home, Mrs. Peterson revoked the 1993 power of attorney

on November 15, 2013, and she executed a new durable power of attorney

appointing her sons Mack and Don as her agents. (CR1 pages 67 and 68-72;

CR2 page 1542). Don Peterson testified regarding the facts and circumstances

of Ruby signing the revocation of her 1993 durable and medical power of

attorney. (RR Vol. 8, pages 227, lines 23-25; pages 228-231). The revocation

was offered and admitted. (RR Vol. 8, page 232, lines 4-11).

      Appellants alleged that Silverado had a duty to acknowledge the 2013

revocation of the 1993 Durable and Medical Power of Attorney. However,

Silverado wrongfully refused to acknowledge the 2013 revocation of the 1993

medical power of attorney, which it continued to honor after it had notice of

revocation on November 15, 2013. (RR Vol. 9, page 209, lines 1-25; page 210,

lines 1-11). Silverado acted in bad faith because it knew or should have known

that the 1993 power of attorney had been revoked by Mrs. Peterson on

November 15, 2013.

      Appellants requested emergency injunctive relief, which was denied after

a four-day hearing. Appellants respectfully submit that denial of temporary

injunctive relief was an abuse of discretion, for which they lacked an immediate

                                        8
legal remedy under the facts and circumstances of this case. However, the

Appellants compromised and settled their claims against Carol Manley and

David in November 2014. (CR2 pages 1387-1390). The settlement included

agreements that Appellants would not be prevented from visiting Mrs. Peterson

together as a family, and she would be allowed to go to church, to restaurants

and to the homes of her sons and their wives. Carol Manley and David also

agreed to move Mrs. Peterson from Silverado to another memory care facility in

the Houston area. (CR2 pages 1387-1390).

      Appellant Tonya Peterson alleged that she had standing to assert her

claims against Silverado. Tonya Peterson also submitted that she had standing as

next friend of Mrs. Peterson to assert her claims against Silverado because Mrs.

Peterson's agents Carol Manley and David Peterson failed or refused to assert

valid claims on her behalf, and she had a right to assert the claims.

      Appellants alleged and offered evidence that Silverado unreasonably and

unlawfully restrained Mrs. Peterson from leaving its facility; neglected her

medical care and treatment; unreasonably and unlawfully restricted her

communication and association with her family; denied her right to refuse to take

medications that made her feel sick; over-sedated her at times to control her

behavior in reaction to denial of her requests to leave or move away; failed or

                                         9
refused to provide adequate medical treatment to maintain and improve her

health; and/or retaliated against her and her family for asserting Mrs. Peterson's

rights to leave Silverado and move to a nursing home near her church and friends

in Baytown, live in the community with her son Mack, go to church, go to lunch,

visit her family in their homes, and/or receive adequate medical care and

treatment in order to maintain or improve her health. (CR2 pages 1006-1015;

1017-1020; 1021-1025; and 1031-1039).

      Silverado relied on the 1993 power of attorney appointing Carol and

David as Mrs. Peterson's agents to manage her finances and make medical

decisions for her if she became incapacitated. However, Appellants alleged and

offered evidence that on or about November 15, 2013 Mrs. Peterson did not lack

capacity and was presumed to have capacity to (1) decide where she did or did

not want to live, (2) refuse to take medications that made her sick, (3) go to the

church of her choice, (4) visit with her sons and their wives, (4) revoke her

power of attorney and (5) execute new powers of attorney.

      When Appellants Don and Mack visited Mrs. Peterson at Silverado in

mid-November 2013, she asked them what they were doing to get her out of

Silverado. They told her that they hired an attorney. She said, “Hire two. I'll

pay for it.” (CR2 page 1542) (RR Vol. 5, page 105, lines 12-25; page 106, lines

                                       10
1-7; page 121, line 25; page 122, lines 1-9). Mrs. Peterson also instructed Don

and Mack to bring her a new power of attorney to sign because she wanted to

revoke her prior power of attorney and appoint Don and Mack as her agents.

(CR2 page 1542)

      On November 10, 2013, Don and his wife Carol visited Mrs. Peterson,

who stated verbally and in writing that she wanted to leave Silverado and wanted

her son to get her an attorney to get her out. (CR2 pages 1006-1015; 1017-1020)

(RR Vol. 5, page 47, lines 1-12).

      On November 15, 2013, Don and Mack brought Mrs. Peterson document

to sign revoking her prior power of attorney and a new power of attorney

appointing them as her agents, which she executed before a Notary Public for the

State of Texas and a witness. (CR1 pages 67 and 68-72; CR2 page 1542) (RR

Vol. 5, page 124, lines 3-13).

      Appellants alleged and offered evidence that Mrs. Peterson had legal

capacity to revoke her prior power of attorney and execute a new power of

attorney, which she voluntarily executed on or about November 15, 2013. (CR2

page 1542) (RR Vol. 5, page 125, lines 18-24; page 223, lines 17-23).

Appellants further alleged and offered evidence that Mrs. Peterson had not been

judicially determined to lack capacity, and she was presumed to have had

                                      11
capacity in November 2013.

      As soon as Silverado's staff noticed that Mrs. Peterson was signing a legal

document before a Notary Public, they abruptly terminated her visit with Don

and Mack, told them they had to leave and escorted them out of the facility on

November 15, 2013.      (CR2 page 1543). Later that day, Don recorded the

executed powers of attorney and returned to Silverado to move Mrs. Peterson out

of Silverado. (CR2 page 1543).

      Appellants alleged and offered evidence that Silverado wrongfully refused

to accept Mrs. Peterson's new power of attorney and allow her to leave with Don.

Instead, Silverado personnel called the City of Sugar Land police and threatened

to have Don and Mack arrested for trespass if they did not leave or ever returned.

(CR2 page 1543) (RR Vol. 5, page 124, lines 3-23; page 217, lines 23-25; page

218, lines 1-4). In response to their request of when they could see their mother

again, a Sugar Land police officer told them "when she's dead." (CR2 page

1543) (RR Vol. 5, page 127, lines 15-18; page 221, lines 2-5). Then, without a

court order, Silverado banned Don and his wife, Mack and his wife, and Lonny

from visiting Mrs. Peterson under any circumstances. (RR Vol. 5, page 221,

lines 10-25; page 222, lines 1-24; Vol. 9, page 72, lines 3-20). On December 9,

2013, Don's wife Carol was visiting Mrs. Peterson in her room for about 30

                                       12
minutes before Silverado asked her who she was, and then, told her she had to

leave. (RR Vol. 5, page 16, lines 16-25; page 17, lines 1-17).

      Appellants alleged and offered evidence that Silverado falsely imprisoned

Mrs. Peterson against her will in a conspiracy with Carol and David. (CR2 page

1544) (RR Vol. 5, page 105, lines 12-25; page 106, lines 1-7). To wit, Silverado

has repeatedly refused Mrs. Peterson's requests to leave Silverado to go to lunch,

go shopping, attend social events, celebrate holidays with her family, or any

other purpose unless approved by Carol or David. (CR2 page 1544) (RR Vol. 5,

page 21, lines 15-25; page 22, line 1; page 25, lines 3-25; page 26, lines 1-16).

      Evidence showed that it would have been in Mrs. Peterson's best interests

for her to be allowed to choose where she lived and to have unrestricted access

to all of her children and their spouses. (RR Vol. 5, page 36, lines 2-25; page

37, lines 1-25). Evidence also showed that it was in Mrs. Peterson's interest to be

allowed to communicate and associate with her friends and her church. (RR Vol.

5, page 108, lines 1-25; page 109, lines 1-15). There was no reason why Mrs.

Peterson could not live in her own apartment and spend her time with friends and

family. (RR Vol. 5, page 94, lines 11-25; page 95, lines 1-17; page 98, lines 9-

25; page 99, lines 1-13; page 102, lines 6-25; page 103, lines 1-10; page 119,

lines 7-25; page 120, lines 1-22).     Alternatively, Mrs. Peterson could have

                                        13
moved to another facility close to her church if she were allowed to leave

Silverado. (RR Vol. 5, page 215, lines 10-25; page 216, lines 1-15).

      From November 15, 2013 through December 18, 2013, Appellants were

denied all contact with their mother until Mack and Don hired a lawyer to sue for

guardianship in Probate Court No. 1, Harris County, Texas. (CR2 page 1544).

      Appellants alleged and offered evidence that Silverado wrongfully refused

to acknowledge the 2013 revocation of the 1993 durable power of attorney.

Silverado also wrongfully refused to acknowledge the new Durable Power of

Attorney that was executed by Mrs. Peterson on November 15, 2013.          (CR2

page 1544).

      On or about July 25, 2015, Silverado banned Mrs. Peterson's sons Don and

Mack and their wives, and Lonny from visiting her because of its objection to

publicity regarding Mrs. Peterson. (RR Vol. 5, page 77, lines 11-25; page 78,

lines 1-16; page 192, lines 23-25; page 193, lines 1-4; page 219, lines 13-25;

page 220, lines 1-13; Vol. 9, page 73, lines 9-15; page 221; lines 10-21).

Silverado's ban on visitation arbitrarily and unreasonably denied Mrs. Peterson

and her family their rights to communicate and associate with each other. (RR

Vol. 5, page 120, lines 23-25; page 121, lines 1-6).



                                        14
      On October 29, 2015, the parties entered into a binding, non-revocable

mediated settlement agreement. (CR2 page 1545). Although, the settlement

agreement was not approved by the trial court before Mrs. Peterson died, the

settlement included agreements that the Plaintiffs would not be prevented from

visiting Ruby together as a family, and Ruby would be allowed to go to church,

to restaurants and to the homes of her sons and their wives. (CR2 page 1545).

Carol Manley and David also agreed to move Ruby from Silverado to another

memory care facility in the Houston area. (CR2 page 1545). Appellants submit

that the settlement agreement is evidence that it was arbitrary and unreasonable

for Silverado to deny Mrs. Peterson and her adult children and their wives the

right to visit as a family, go to church, to restaurants and to their homes prior to

the agreement, but not after the agreement. (CR2 page 1387-1390).

      Mrs. Peterson died at Silverado on or about January 11, 2015.

                            STANDARD OF REVIEW

      A court of appeals reviews the trial court's ruling on a Rule 91a motion to

dismiss de novo, construing the pleadings liberally in favor of the plaintiff,

looking to the pleader's intent, and accepting as true the factual allegations in the

pleadings. Wooley v. Schaffer, 447 S.W.3d 71, 74 (Tex. App., 2014).

       A trial court's ruling on a motion to dismiss in other contexts for abuse of

                                         15
discretion; however, we review the trial court's ruling on a question of law de

novo. Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716, 718 (Tex.App.-

Houston [14th Dist.] 2011, no pet.) (applying de novo standard to review motion

to dismiss in healthcare liability case when issue was whether service had been

effected properly); Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex.App.-

Houston [14th Dist.] 2008, pet. denied) (applying de novo standard to review

motion to dismiss to determine whether official immunity applied under Texas

Tort Claims Act); Harris Cnty. Hosp. Dist. v. Textac Partners I, 257 S.W.3d 303,

315 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (applying summary judgment

standard to review motion to dismiss that addressed claims on merits). The

determination of whether a cause of action has a basis in law is, on its face, a

question of law, see Godaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex.

App., 2014), the language of Rule 91a is less clear as to the determination of

whether a cause of action has a basis in fact—in which case “no reasonable

person could have believed the facts pleaded”—is a question of law. Wooley v.

Schaffer, 447 S.W.3d at 75, citing Tex.R. Civ. P. 91a.1.

      A Rule 91a motion to dismiss is analogous to pleas to the jurisdiction,

which requires a court to determine whether the pleader has alleged facts

demonstrating jurisdiction. Wooley v. Schaffer, 447 S.W.3d at 75, citing Tex.

                                       16
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.2004). In

that context, the reviewing court construes the pleadings liberally in favor of the

plaintiff, look to the pleader's intent, and accepts as true the factual allegations in

the pleadings to determine if the pleader has alleged facts that affirmatively

demonstrate the trial court's jurisdiction over a claim. Id. at 226.

      Rule 91a also requires the court to determine whether a “reasonable person

could believe the facts pleaded” to determine whether a pleading has a basis in

fact. Wooley v. Schaffer, 447 S.W.3d at 75 citing Tex.R. Civ. P. 91a.1. This

language is similar to a legal sufficiency challenge, in which the reviewing court

asks whether the evidence at trial would enable reasonable people to reach the

verdict under review. See City of Keller v. Wilson, 168 S.W.3d 802, 827

(Tex.2005).

       Federal courts also apply a de novo standard of review to a trial court's

ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).10

In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007). Rule 91a

has unique language allowing dismissal of causes of action with no basis in law

or fact. Tex.R. Civ. P. 91a. However, Federal Rule of Civil Procedure 12(b)(6)

similarly allows dismissal if a plaintiff fails “to state a claim upon which relief

can be granted”; therefore, case law interpreting Rule 12(b)(6) is instructive.

                                          17
Fed.R.Civ.P. 12(b)(6); see also GoDaddy, 429 S.W.3d at 754.

         For a complaint to survive a Federal Rule 12(b)(6) motion to dismiss, it

must contain “enough facts to state a claim to relief that is plausible on its face.”

GoDaddy, 429 S.W.3d at 754 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). Facial plausibility requires facts that allow the court “to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Essentially, under the

federal rules, the complaint is liberally construed in favor of the plaintiff, and all

well-pleaded facts are taken as true. Id. (citing Ashcroft, 556 U.S. at 678–79 and

Erickson v. Pardus, 551 U.S. 89, 94 (2007)). But “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id. (quoting Ashcroft, 556 U.S. at 678). Likewise, in determining

whether the trial court erred in denying a defendant's motion to dismiss, federal

courts take all of the plaintiff's allegations as true. Id. (citing Twombly, 550 U.S.

at 570). Federal Rule 12(b)(6) dismissal is appropriate if the court determines

beyond doubt that the plaintiff can prove no set of facts to support a claim that

would entitle him to relief. Id. (citing Scanlan v. Tex. A & M Univ., 343 F.3d

533, 536 (5th Cir.2003)).

       Both determinations of whether a cause of action has any basis in law and

                                         18
in fact are legal questions that we review de novo, based on the allegations of the

live petition and any attachments thereto. Wooley v. Schaffer, 447 S.W.3d at 76.

A reviewing court must construe the pleadings liberally in favor of the plaintiff,

look to the pleader's intent, and accept as true the factual allegations in the

pleadings to determine if the cause of action has a basis in law or fact. In doing

so, a reviewing court applies the fair notice pleading standard applicable in

Texas to determine whether the allegations of the petition are sufficient to allege

a cause of action. See Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982) (“A

petition is sufficient if it gives fair and adequate notice of the facts upon which

the pleader bases his claim.”); see also Bart Turner & Assocs. v. Krenke, No.

3:13–CV–2921–L, 2014 WL 1315896, at *5 (N.D.Tex. Mar. 31, 2014) (applying

Texas's fair notice pleading standard to determine whether to grant motion to

dismiss under Rule 91a).

                           SUMMARY OF ARGUMENT

      The trial court granted Silverado's Rule 91a motion to dismiss Appellants'

claims for false imprisonment, assault and battery, and conspiracy on November

10, 2014 in error because Appellants' subsequently filed their Fifth Amended

Petition, which adequately stated facts supporting their claims.

      The trial court granted Silverado's plea to the jurisdiction in error on

                                        19
January 9, 2015 because Appellants' Fifth Amended Petition adequately stated

facts supporting the trial court's jurisdiction over their claims for relief.

       The trial court granted Silverado's Rule 91a motion to dismiss Appellants'

breach of trust and/or breach of fiduciary duty in error on January 9, 2015

because Appellants' Fifth Amended Petition adequately stated facts supporting

the trial court's jurisdiction over their claims for relief.

       The trial court denied Appellants' motion to reconsider the Orders granting

Silverado's Rule 91a motion to dismiss and motion for sanctions in error on

January 9, 2015 because Appellants' Fifth Amended Petition adequately stated

facts supporting the trial court's jurisdiction over their claims for relief.

       The trial court granted Silverado's application for attorney's fees pursuant

to Rule 91a Order entered on November 10, 2014 in error on January 9, 2015

because Appellants' Fifth Amended Petition adequately stated facts supporting

the trial court's jurisdiction over their claims for relief.

                         ARGUMENT AND AUTHORITY

ISSUE NO. 1: Whether the trial court granted Silverado's Rule 91a motion to

dismiss Appellants' claims for false imprisonment, assault and battery, and

conspiracy on November 10, 2014 in error, notwithstanding Appellants'

subsequently filed Fifth Amended Petition, which adequately stated facts

                                           20
supporting their claims.

      Appellants submit that the trial court granted Silverado's Rule 91a motion

to dismiss Appellants' claims for false imprisonment, assault and battery, and

conspiracy in error because their Fifth Amended Petition adequately stated facts

supporting the court's jurisdiction to grant remedies on their claims.

      To wit, Appellants' Fifth Amended Petition at ¶¶ 11-14, 22-23 alleges

facts, which support their claims for damages related to alleged false

imprisonment, assault and battery, and conspiracy as follows:

      11 Shortly after Carol Manley and David moved Ruby to Silverado
      they obtained a letter from Dr. Chris Merkl, M.D. stating that Ruby
      had severe dementia. Dr. Merkl's diagnosis of severe dementia is
      contradicted by his own subsequent testimony and the testimony of
      Dr. John Tennison, M.D. Nevertheless, Carol Manley and David
      wrongfully used Dr. Merkl's diagnosis as authority for their actions as
      Ruby's agents for making her medical decisions including deciding
      that Ruby had to stay at Silverado. Plaintiffs allege and would prove
      that Carol Manley and David did not have lawful authority to act as
      Ruby's medical agents because Dr. Merkl's diagnosis was invalid and
      Ruby did not lack capacity to decide where she did or did not want to
      live. Nevertheless, Silverado refused to allow Ruby to leave Silverado
      to go to church, to restaurants or to the Plaintiffs' homes from
      September 2013 until November 2014, when Plaintiffs settled their
      claims against Carol Manley and David in the guardianship matter
      and this case.

      12    Plaintiffs allege and would prove that Ruby complained about
      the conditions of her residency at Silverado. When Ruby refused to
      take her medication voluntarily, Silverado staff mixed her drugs in a
      drink and told her it was a vitamin drink. She also complained that

                                        21
her roommate had a pet dog, and she objected to having a dog in her
bedroom.

13 Ruby asked to leave Silverado to go out to eat with Don and
Carol Peterson. She asked to go to the church of her choice in
Baytown. She asked to go visit Mack and his wife at their home in
Wimberly, Texas. After Silverado repeatedly denied her requests to
go to the church of her choice, go out to eat and go to visit Plaintiffs
at their homes, Ruby revoked the 1993 power of attorney on
November 15, 2013.

14     Plaintiffs allege and would prove that Silverado unreasonably
and unlawfully restrained Ruby from leaving its facility; neglected
her medical care and treatment; unreasonably and unlawfully
restricted her communication and association with her family; denied
her right to refuse to take medications that made her feel sick; over-
sedated her at times to control her behavior in reaction to denial of
her requests to leave or move away; failed or refused to provide
adequate medical treatment to maintain and improve her health;
and/or retaliated against her and her family for asserting Ruby's rights
to leave Silverado and move to a nursing home near her church and
friends in Baytown, live in the community with her son Mack, go to
church, go to lunch, visit her family in their homes, and/or receive
adequate medical care and treatment in order to maintain or improve
her health.

…

22    Plaintiffs allege and would prove that Silverado falsely
imprisoned Ruby against her will in a conspiracy with Carol Manley
and David from September 2013 until November 2014, when Carol
Manley and David settled their claims and defenses in the
guardianship matter and this case. To wit, Silverado repeatedly
refused Ruby's requests to leave for any purpose, although no judge
had ordered that Ruby be committed or denied her right to leave
Silverado to go to lunch, go shopping, attend social events, celebrate
holidays with her family, or any purpose unless approved by Carol

                                 22
      Manley or David. She has been repeatedly denied requests to leave
      with her sons and their wives.

      23    From November 15, 2013 through December 18, 2013,
      Silverado denied Plaintiffs any opportunity to visit with Ruby.

(CR2 pages 1541-1543).

      The Texas Health and Safety Code, Section 166.155 recognizes a person's

right to revoke a medical power of attorney regardless of the person's capacity.

This section also requires a health care provider, such as Silverado, to verify a

medical power of attorney. Appellants submit that Silverado's failure to verify

the revocation of Mrs. Peterson's medical power of attorney and the fact that her

1993 power of attorney was revoked in November 2013 show that Silverado was

without authority to restrain Mrs. Peterson pursuant to the 1993 power of

attorney after it was revoked.   Silverado was also without authority to forcibly

or deceptively administer medication to Mrs. Peterson, which she refused to take

voluntarily because it made her sick. Appellants submit that their pleadings state

a claim for assault and battery, for which Mrs. Peterson suffered damages, which

also caused harm and injury to Appellants, who were deprived of companionship

and society because Mrs. Peterson was drugged during their visits.

      Appellants submit that their Fifth Amended Petition at ¶25 alleges facts,

which show that Silverado's wrongful actions falsely imprisoning Mrs. Peterson

                                        23
were arbitrary and unreasonable as follows:

      25     Plaintiffs Mack, Don and Lonny requested emergency
      injunctive relief, which was denied after a four-day hearing.
      Plaintiffs respectfully submit that denial of temporary injunctive relief
      was an abuse of discretion, for which Plaintiffs lacked an immediate
      legal remedy under the facts and circumstances of this case.
      However, Plaintiffs compromised and settled their claims against
      Carol Manley and David in November 2014, and the settlement was
      approved by the Probate Court. The settlement included agreements
      that Plaintiffs will not be prevented from visiting Ruby together as a
      family, and Ruby will be allowed to go to church, to restaurants and
      to the homes of her sons and their wives. Carol Manley and David
      also agreed to move Ruby from Silverado to another memory care
      facility in the Houston area. …

(CR2 pages 1545).

      Appellants further submit that before the mediated settlement agreement in

the guardianship proceeding, Silverado arbitrarily and unreasonably restricted

Mrs. Peterson's and Appellants' access to each other, but after the settlement

agreement, such restrictions were abated. Additionally, Appellants submit that

proof of their allegations regarding the effectiveness of the November 2013

power of attorney is further evidence to support their claims for false

imprisonment, assault and battery and conspiracy.

      The essential elements of false imprisonment are: 1) willful detention; 2)

without consent; and 3) without authority of law. James v. Brown, 637 S.W.2d

914 (Tex., 1982), citing Moore's Inc. v. Garcia, 604 S.W.2d 261 (Tex.Civ.App.--

                                        24
Corpus Christi 1980, writ ref'd n.r.e.)

          The elements of a civil conspiracy are: (1) two or more persons; (2) an

object to be accomplished; (3) a meeting of minds on the object or course of

action; (4) one or more unlawful, overt acts; and (5) damages as the proximate

result. In the Matter of Estate of Perry, No. 04-06-00205-CV (Tex. App.

8/15/2007) (Tex. App., 2007) citing Operation Rescue-National v. Planned

Parenthood of Houston & Southeast Tex., Inc., 975 S.W.2d 546, 553 (Tex.

1998); Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983).

ISSUE NO. 2:             Whether the trial court granted Silverado's plea to the

jurisdiction in error on January 9, 2015, although Appellants' Fifth Amended

Petition stated facts supporting the trial court's jurisdiction over their claims for

relief.

ISSUE NO. 3:        Whether the trial court granted Silverado's Rule 91a motion to

dismiss Appellants' breach of trust and/or breach of fiduciary duty in error on

January 9, 2015, although Appellants' Fifth Amended Petition adequately stated

facts supporting the trial court's jurisdiction over their claims for relief.

ISSUE NO. 4:        Whether the trial court denied Appellants' motion to reconsider

the Orders granting Silverado's Rule 91a motion to dismiss and motion for

sanctions in error on January 9, 2015, although Appellants' Fifth Amended

                                          25
Petition adequately stated facts supporting the trial court's jurisdiction over their

claims for relief.

      Appellants submit that the trial court granted Silverado's Rule 91a motion

to dismiss Appellants' claims for breach of trust and breach of fiduciary duty in

error because their Fifth Amended Petition adequately stated facts supporting the

court's jurisdiction to grant remedies on their claims.

      To wit, Appellants' Fifth Amended Petition at ¶¶ 14-15 & 18-24 alleges

facts, which support their claims for damages related to alleged breach of trust

and breach of fiduciary duty as follows:

      14     Plaintiffs allege and would prove that Silverado unreasonably
      and unlawfully restrained Ruby from leaving its facility; neglected
      her medical care and treatment; unreasonably and unlawfully
      restricted her communication and association with her family; denied
      her right to refuse to take medications that made her feel sick; over-
      sedated her at times to control her behavior in reaction to denial of
      her requests to leave or move away; failed or refused to provide
      adequate medical treatment to maintain and improve her health;
      and/or retaliated against her and her family for asserting Ruby's rights
      to leave Silverado and move to a nursing home near her church and
      friends in Baytown, live in the community with her son Mack, go to
      church, go to lunch, visit her family in their homes, and/or receive
      adequate medical care and treatment in order to maintain or improve
      her health.

      15   Upon information and belief, Silverado relied on the 1993
      power of attorney appointing Carol Manley and David as her agents
      to manage her finances and make medical decisions for her if she
      became incapacitated. However, Plaintiffs allege and would prove

                                         26
that on or about November 15, 2013 Ruby did not lack capacity
and/or was presumed to have capacity to decide where she did or did
not want to live, to refuse to take medications that made her sick, to
go to the church of her choice, to visit with her sons and their wives,
to revoke her power of attorney and execute a new one.

…

18     On November 15, 2013, Don and Mack brought Ruby a revocation
of power of attorney expressly revoking her prior 1993 durable power of
attorney. Ruby executed revocation of power of attorney expressly
revoking her prior 1993 durable power of attorney before a Notary Public
for the State of Texas and a witness.

19    Plaintiffs allege and would prove that Ruby had legal capacity
to revoke her prior power of attorney, and she voluntarily executed a
revocation of the 1993 power of attorney on or about November 15,
2013. Plaintiffs further allege and would prove that Ruby has not
been judicially determined to lack capacity, and she may be presumed
to have had capacity in November 2013.

20 As soon as Silverado's staff noticed that Ruby appeared to be
signing a legal document before a Notary Public, they abruptly
terminated her visit with Don and Mack, told them they had to leave
and escorted them out of the facility on November 15, 2013. Later
that day, Don recorded the executed revocation of medical powers of
attorney and returned to Silverado to move Ruby out of Silverado.

21 Plaintiffs Carol and Tonya Peterson allege and would prove that
Silverado wrongfully refused to accept Ruby's revocation of medical
powers of attorney and allow her to leave with Don. Instead,
Silverado personnel called the City of Sugar Land police and
threatened to have them arrested for trespass if they did not leave or
ever returned. In response to their request of when they could see
their mother again, a Sugar Land police officer told them "when she's
dead." Then, without a court order, Silverado banned Don and his
wife Carol Peterson, Mack and his wife Tonya, and Lonny from

                                 27
      visiting Ruby under any circumstances, and it prevented Ruby from
      leaving Silverado.

      22    Plaintiffs allege and would prove that Silverado falsely
      imprisoned Ruby against her will in a conspiracy with Carol Manley
      and David from September 2013 until November 2014, when Carol
      Manley and David settled their claims and defenses in the
      guardianship matter and this case. To wit, Silverado repeatedly
      refused Ruby's requests to leave for any purpose, although no judge
      had ordered that Ruby be committed or denied her right to leave
      Silverado to go to lunch, go shopping, attend social events, celebrate
      holidays with her family, or any purpose unless approved by Carol
      Manley or David. She has been repeatedly denied requests to leave
      with her sons and their wives.

      23    From November 15, 2013 through December 18, 2013,
      Silverado denied Plaintiffs any opportunity to visit with Ruby.

      24 Plaintiffs Carol and Tonya Peterson allege and would prove that
      Silverado had a duty to acknowledge the 2013 revocation of the 1993
      Durable Power of Attorney, but that Silverado wrongfully refused to
      acknowledge the 2013 revocation of the 1993 medical power of
      attorney, and it continued to honor the 1993 power of attorney in bad
      faith because it knew or should have known that it had been revoked
      by Ruby in November 2013.

(CR2 pages 1541-1544).

      Appellants submit that the trial court granted Silverado's Rule 91a motion

to dismiss Appellants' claims for breach of trust and breach of fiduciary duty in

error because their Fifth Amended Petition adequately stated facts supporting the

court's jurisdiction to grant remedies on their claims. The Texas Health and



                                       28
Safety Code, Section 166.155 recognizes a person's right to revoke a medical

power of attorney regardless of the person's capacity. This section also requires

a health care provider, such as Silverado, to verify a medical power of attorney.

Therefore, the trial court's Orders granting Silverado's plea to the jurisdiction,

motion to dismiss Appellants' claims for breach of trust and breach of fiduciary

duty should be reversed.        Additionally, the trial court's Order denying

Appellants' motion to reconsider the Rule 91a dismissal and sanctions should be

reversed.

ISSUE NO. 5:        Whether the trial court granted Silverado's application for

attorney's fees pursuant to Rule 91a Order entered on November 10, 2014 in

error on January 9, 2015, although Appellants' Fifth Amended Petition

adequately stated facts supporting the trial court's jurisdiction over their claims

for relief such that the motions for dismissal of Appellants' claims should have

been denied.

      Silverado filed a Rule 91a motion to dismiss on September 25, 2014.

Appellants filed a Fourth Amended Petition on October 6, 2014 and a Response

in Opposition to the pending Rule 91 motion on October 27, 2014. Silverado

filed a partial withdrawal and reply on November 6, 2014. The motion to

dismiss was heard on November 7, 2014, and the Court granted the motion in

                                        29
error, but the Order was not final and appealable because it did not dispose of all

parties and causes of action.

      On December 3, 2014, Silverado filed a 91a Motion to Dismiss Plaintiffs'

Sole Remaining Claim Breach of Trust and/or Breach of Fiduciary Duty. On

December 4, 2014, Appellants filed their Fifth Amended Petition, which added

two new plaintiffs individually and as next friends of Ruby Peterson. Silverado

did not object to the filing of the Fifth Amended Petition.

      On December 9, 2014, the Court held a hearing but did not consider the

supplement to Silverado's application for an award of attorney's fees alleging a

request to dismiss an additional claim that was not included in its previous

motion for dismissal, which was filed on the same day. The Court ruled that the

Appellants would have until December 16, 2014 to file their objections to

Silverado's motion for Rule 91a award of attorney's fees.

      Therefore, Appellants respectfully submit that Silverado waived objection

to the filing of their Fifth Amended Petition; that Silverado did not file an answer

to their Fifth Amended Petition or a motion to dismiss the Fifth Amended

Petition; and that Silverado's motion for Rule 91a dismissal of the Fourth

Amended Petition was moot.

      Additionally and alternatively, Appellants respectfully submit that

                                        30
Silverado's motion for dismissal and application for an award of attorney's fees

should have been denied because there was no evidence in the record regarding

Silverado's claim that the Appellants' claims were groundless and frivolous or

groundless and brought for an improper purpose or for harassment.

      Appellants respectfully submit that their claims were grounded in fact and

law and that they were brought in good faith and not for any dilatory or improper

purpose according to their knowledge and information at the times the claims

were alleged. Additionally and alternatively, Appellants submit that they alleged

the claims contained in their Fifth Amended Petition in good faith, that they were

supported by good cause, that they were supported by existing law or good faith

argument for meritorious change in the law, and that they should not have been

dismissed.

      Therefore, Appellants objected to Silverado's application and supplement

application for award of attorney's fees pursuant to TRCP Rule 91a on the

grounds that their Fifth Amended Petition was not dismissed and that there was

no evidence that their claims were groundless and frivolous or groundless and

brought for an improper purpose or for harassment.

      Additionally and alternatively, Appellants respectfully submit that

Silverado's proffered "evidence" consisted of no evidence or insufficient to

                                       31
support it's claim for an award of attorney's fees pursuant to TRCP Rule 91a.

Additionally and alternatively, Appellants respectfully submit that Silverado's

claim for an award of attorney's fees pursuant to TRCP Rule 91a was excessive.

      To wit, the affidavit of Josh Davis, Esq. dated December 1, 2014 contains

claims for an award of $44,489.50 for "Case Assessment, Development,

Administration, but the redacted billing statements for the time period beginning

on July 18, 2014 through August 30, 2014 did not provide any evidence of the

reasonableness     or    necessity    of    the    time    spent     for    "fact

investigation/development" and "analysis/strategy", which comprised the

majority of the 161.5 hours and $28,262 billed by Josh Davis and 91.4 hours and

$14,624 billed by Jacob M. Stephens according to the statement of CNA

Specialty Claims file 50013-1476 dated 9/30/14 attached to the affidavit of Josh

Davis dated December 1, 2014.

      Similarly, the statement of CNA Specialty Claims file 50013-1476 dated

10/15/14 attached to the affidavit of Josh Davis dated December 1, 2014 shows a

total amount claimed for "fact investigation/development" = $32,052.39 to date

and "analysis/strategy" = $17,315.47 to date, but there was no reliable evidence

offered to support such claims because the redacted billing statements did not

reveal whether the activities were reasonable or necessary. Likewise, there was

                                       32
no way for the Defendants or the trial court to determine whether the information

that was redacted from Silverado's billing statements was privileged or

discoverable. Therefore, it was not possible to determine whether the 79.4 hours

and $15,086.00 billed by Josh Davis, 43 hours and $7,665.00 billed by Christian

Johnson, and 19.9 hours and $3,482.50 billed by Julianne C. Lomax were

reasonable and necessary current charges for the period ending on 10/15/14.

      Similarly, the statement of CNA Specialty Claims file 50013-1476 dated

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

December 1, 2014 showed a total current charges in the amount of $18,214.03

including multiple entries for "settlement/non-binding ADR", in which Silverado

did not participate.   Appellants submit that there was no reliable evidence

offered to support such claims because the redacted billing statements did not

reveal whether the activities were reasonable or necessary.

      Additionally and alternatively, Appellants submit that Silverado claimed

$117,183.40 with regard to defending against the causes of action which were

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

Josh Davis did not show that Silverado incurred any obligation to pay

$117,183.40 in reasonable and necessary fees related to the causes of action

which were dismissed on November 10, 2014. To wit, the billing statements

                                       33
indicated that they were submitted to CNA Specialty Claims file 50013-1476,

not to Silverado, and there was no evidence as to what amount, if any, Silverado

incurred with regard to defending against the causes of action which were

dismissed on November 10, 2014.

      Additionally and alternatively, Appellants submit that Silverado claimed

$117,183.40 to defend against the causes of action, which were dismissed on

November 10, 2014, but it appeared that $18,830.00 of that amount was for fees

related to its defense against a federal lawsuit filed contemporaneously with this

state court proceeding. However, there was no evidence to show which fees

were related to the state court proceeding and which fees related to the federal

court case because the activity descriptions were too heavily redacted and the

fees were not segregated between the two cases. Appellants submit that it was

improper for Silverado to claim reimbursement for fees that were chargeable to

another case and did not relate to claims that were dismissed on November 10,

2014 pursuant to TRCP Rule 91a.

      Additionally and alternatively, Silverado claimed prospective fees in the

event of an appeal. However, Appellants submit that the statements of Josh

Davis regarding his opinion as to the amounts of reasonable and necessary fees

for handling appeals of this matter were not supported by evidence and were

                                       34
conclusory.    To wit, Mr. Davis' affidavit did not provide any method for

calculating the amounts of reasonable and necessary fees that would be incurred;

it did not state how many hours would be required to be spent; it did not state a

reasonable rate per hour; it did not state what activities would be required; and it

did not state that the amounts of fees requested were usual and customary in the

locality.

       Therefore, Appellants respectfully submit that the Order granting

Silverado's application for attorney's fees pursuant to Rule 91a should be

reversed and rendered. Alternatively, the Order granting Silverado's application

for attorney's fees pursuant to Rule 91a should be reversed and remanded to the

trial court.

ISSUE NO. 6:     Whether Appellants may be entitled to declaratory judgment as

a matter of law that the 1993 Durable Power of Attorney appointing Carol

Manley and David was revoked as of November 15, 2013 pursuant to Tex. Civ.

Prac. & Rem. Code 37.001-37.005 et seq.

       Appellants' Fifth Amended Petition at ¶¶ 18-19 alleges facts, which

support their claims for declaratory judgment as follows:

       18    On November 15, 2013, Don and Mack brought Ruby a
       revocation of power of attorney expressly revoking her prior 1993
       durable power of attorney. Ruby executed revocation of power of

                                        35
      attorney expressly revoking her prior 1993 durable power of attorney
      before a Notary Public for the State of Texas and a witness.

      19 Plaintiffs allege and would prove that Ruby had legal capacity to
      revoke her prior power of attorney, and she voluntarily executed a
      revocation of the 1993 power of attorney on or about November 15,
      2013. Plaintiffs further allege and would prove that Ruby has not
      been judicially determined to lack capacity, and she may be presumed
      to have had capacity in November 2013.

(CR2 pages 1542 & 1543).

      Appellants respectfully submit that they alleged adequate facts to support

their claim for declaratory judgment. However, the trial court did not grant any

motion specifically requesting dismissal of Appellants' declaratory judgment

request. The Texas Health and Safety Code, Section 166.155 recognizes a

person's right to revoke a medical power of attorney regardless of the person's

capacity. Therefore, Appellants submit that the Court should remand the claim

for declaratory judgment to the trial court.

                         CONCLUSION AND PRAYER

      WHEREFORE, Appellants request the Court to reverse the trial court's

Orders granting Silverado's plea to the jurisdiction, motions for dismissal of

Appellants' claims pursuant to Rule 91a and application for attorney's fees and

remand the case to the trial court for further proceedings. Appellants also

request the Court to grant them all additional relief to which they may be justly

                                         36
entitled.

                                       Respectfully submitted,

                                       /s/ Philip M. Ross
                                       Philip M. Ross
                                       State Bar No. 17304200
                                       1006 Holbrook Road
                                       San Antonio, Texas 78218
                                       Phone: 210/326-2100
                                       Email: ross_law@hotmail.com

                                       Candice Schwager
                                       State Bar No.
                                       1417 Ramada Drive
                                       Houston, TX 77062
                                       Phone: 832-315-8489
                                       FAX: 713-583-0355

                                       Attorneys for MACKEY GLEN
                                       PETERSON, TONYA PETERSON,
                                       DON LESLIE PETERSON, and LONNY
                                       PETERSON


                               CERTIFICATION

     I hereby certify that every factual statement in the petition is supported by
competent evidence included in the appendix or record.

                                       /s/ Philip M. Ross
                                       Philip M. Ross




                                        37
                        CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief is in compliance with Texas Rule of
Appellate Procedure Rule 9. It contains 8,184 words, 36 pages, 14 point
typeface.

                                          /s/ Philip M. Ross
                                         Philip M. Ross


                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above document was e-
filed and sent by email or electronic delivery by agreement to:
Josh Davis
Lewis Brisbois Bisgaard & Smith, LLP
Weslayan Tower, Suite 1400
24 Greenway Plaza
Houston, TX 77046

on November 16, 2015.
                                       /s/ Philip M. Ross
                                         Philip M. Ross




                                           38
