                                                                                    ACCEPTED
                                                                                01-15-00586-CV
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                          11/16/2015 6:09:48 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                     No. 01-15-00586-CV

                                                               FILED IN
                                                        1st COURT OF APPEALS
             IN THE COURT OF APPEALS FOR                    HOUSTON, TEXAS
              THE FIRST DISTRICT OF TEXAS               11/16/2015 6:09:48 PM
                  SITTING AT HOUSTON                    CHRISTOPHER A. PRINE
                                                                 Clerk

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

v

CAROL ANN MANLEY AND DAVID PETERSON,
    Appellees.


                        On Appeal from
          Probate Court No. One, Harris County, Texas
              Honorable Lloyd Wright, presiding
                 Trial Court Cause No. 427,208

                    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
Lonnie Peterson                    San Antonio, Texas 78218
                                   Phone: 210/326-2100
Appellants                         Email: ross_law@hotmail.com

Carol Ann Manley                   Sarah Pacheco
David Peterson                     State Bar No. 00788164
                                   Kathleen Beduze
                                   State Bar No. 24052205
                                   Crain, Caton & James, PC
                                   1401 McKinney St., Suite 1700
Appellees                          Houston, Texas 77010
                                   Phone: 713-658-2323
                                   Email: spacheco@craincaton.com

Jill Young, Guardian ad litem
State Bar No. 00797670
MacIntyre, McCulloch, Stanfield,
Young, LLP
2900 Weslayan, Suite 150
Houston, TX 77027
Phone: 713-572-2900
Email: jill.young@mmlawtexas.com

Russ Jones, Attorney ad litem
State Bar No. 10968050
Underwood, Jones, Scherrer &
Malouf, PLLC
5177 Richmond Ave., Suite 505
Houston, TX 77056
Phone: 713-552-1144
Email: rjones@ujsmlaw.com

                                   ii
                           TABLE OF CONTENTS

                                                                              Page

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

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

INDEX OF AUTHORITIES …………………………………………..                                         iv

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

STATEMENT OF JURISDICTION …………………………………..                                          2

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

ISSUES PRESENTED ………………………………………………….. 3

      ISSUE NO. 1: Whether the trial court lacked jurisdiction to
      approve the mediated settlement agreement of the parties
      pursuant to the Final Judgment May 12, 2015, when the terms
      of the agreement were moot, because the proposed ward had
      died.

      ISSUE NO. 2: Whether the probate court lost jurisdiction of
      the guardianship matter, when the proposed ward died, except
      for the filing of the final accounting and dismissing the
      guardianship proceeding.

      ISSUE NO. 3: Whether the trial court's Orders granting the
      Defendants, attorney ad litem and guardian ad litem's Motions
      for Sanctions were signed in error on November 10, 2014
      because the Orders were vague, and overbroad, unsubstantiated
      and/or unlawful.

STATEMENT OF FACTS AND
PROCEDURAL BACKGROUND …....................................................    3

                                       iii
STANDARD OF REVIEW …......…………………………………….                                                                  12

SUMMARY OF ARGUMENT ……………………………………….                                                                       13

ARGUMENT AND AUTHORITIES ………………………………….. 13

   ISSUE NO. 1: Whether the trial court lacked jurisdiction to
   approve the mediated settlement agreement of the parties
   pursuant to the Final Judgment May 12, 2015, when the terms
   of the agreement were moot, because the proposed ward had
   died.
   …...................................................................................................    13

   ISSUE NO. 2: Whether the probate court lost jurisdiction of
   the guardianship matter, when the proposed ward died, except
   for the filing of the final accounting and dismissing the
   guardianship proceeding.
   …...................................................................................................    14

   ISSUE NO. 3: Whether the trial court's Orders granting the
   Defendants, attorney ad litem and guardian ad litem's motions
   for sanctions were signed in error on November 10, 2014
   because the Orders were vague and overbroad, unsubstantiated
   and/or unlawful.
   …....................................................................................................   16

            A      Order on Motion for Sanctions filed by W. Russ
            Jones, attorney ad litem, and Jill Young, guardian ad
            litem, signed November 10, 2014.
            …..........................................................................................    16

            B      Order on David Peterson and Carol Anne Manley's
            Motion for Sanctions, signed November 10, 2014.
            …........................................................................................      19

CONCLUSION and PRAYER……………………….………………....                                                                  32

CERTIFICATION ……………………………………….....…………... 34

                                                   iv
CERTIFICATE OF COMPLIANCE …...................................................                34

CERTIFICATE OF SERVICE …………………………….……...…...                                                  34


                                       INDEX OF AUTHORITIES

        CASES                                                                     PAGE(S)

Alejandro v. Bell
84 S.W.3d 383 (Tex. App.–– Corpus Christi 2002) …...…........... 18

Armstrong v. Collin County Bail Bond Bd.
233 S.W.3d 57 (Tex. App.—Dallas 2007, no pet) …..................... 17


Buckholts Indep. Sch. Dist. V. Glaser
632 S.W.2d 146 (Tex. 1982) …...................................................... 24

Carroll v. Carroll
893 S.W.2d 62 (Tex. App.—Corpus Christi 1994, no writ) …...... 15

Easterline v. Bean
49 S.W.2d 427 (1932) ….............................................................. 14, 15

Edwards v. Pena
38 S.W.3d 191 (Tex. App.—Corpus Christi 2001, no pet.) …...... 15

Eichelberger v. Eichelberger
582 S.W.2d 395 (Tex.1979) …....................................................... 29

Fry v. Tucker
202 S.W.2d 218 (1947) ….............................................................   23

Gentile v. State Bar of Nev.
501 U.S. 1030 (1991) …............................................................. 29



                                                v
        CASES                                                                          PAGE(S)

GTE Commc’ns Sys. Corp. v. Tanner
856 S.W.2d 725, 731 (Tex. 1993) …............................................ 17

In the Guardianship of L.A. Moon
216 S.W.3d 506, 510 (Tex.App.—Texarkana 2007) ….................                             15

In re Estate of Glass
961 S.W.2d 461462 (Tex. App.—Houston [1st Dist.]
1997, writ denied) …......................................................................   15

In re Guardianship of Whitt
407 S.W.3d 495 (Tex.App.-Houston [14 Dist.] 2013) …............... 16

In re Sawyer
360 U.S. 622 (1959) …............................................................... 29

In re Union Pacific Resources Co.
969 S.W.2d 427 (Tex. 1998) …......................................................           24

Johnson v. City of Fort Worth
774 S.W.2d 653 (Tex.1989) ….......................................................           12

Kutch vs. Del Mar College
831 S.W.2d 506 (Tex. App.—Corpus Christi, 1992, no pet) ….....                               28

Lehmann v. Har-Con Corp.
39 S.W.3d 191 (Tex. 2001) …........................................................          2

Mattly v. Spiegel, Inc.
19 S.W.3d 890 (Tex. App.—Houston, 14th Dist] 2000, no pet) .. 17, 18

McWhorter v. Sheller
993 S.W.2d 781
(Tex. App.—Houston -14th Dist 1999, pet denied) ….................... 28

Mills v. Alabama
384 U.S. 214 (1966) ….................................................................. 30

                                                   vi
        CASES                                                                           PAGE(S)

Monroe v. Blackmon
946 S.W.2d 533 (Tex. App. -- Corpus Christi 1997,
orig. proceeding) …........................................................................    34

NAACP v. Button
371 U.S. 415, (1963) ….................................................................. 30

Nat'l Liab. & Fire Ins. Co. v. Allen
15 S.W.3d 525 (Tex.2000) ….........................................................            12

New York Times Co. v. Sullivan
376 U.S. 254 (1964) …................................................................... 30

Palais Royal, Inc. v. Partida
916 S.W.2d 650 (Tex. App.--Corpus Christi 1996,
[leave denied]) …............................................................................ 25

Parker v. Walton
233 S.W.3d 535 (Tex. App.— Houston [14th Dist.]
2007, no pet.) …............................................................................. 18

P o l k v . S t a t e B a r o f Texas
3 7 4 F. Supp. 7 8 4 ( N . D . T e x . 1 9 7 4 ) … . . . . . . . . . . . . . . .              29, 30

Postal Mut. Indemnity Co. V. Ellis
S.W.2d 482 (1943) …..................................................................... 24

Save Our Springs Alliance, Inc. v.
Lazy Nine Mun. Util. Dist. ex rel. Bd. of Directors
198 S.W.3d 300 (Tex. App.— Texarkana 2006, pet. Denied) …. 17

St. Luke's Episcopal Hosp. v. Agbor
952 S.W.2d 503 (Tex.1997) ….......................................................             13

Texas-Ohio Gas,Inc.v. Mecom
28 S.W.3d 129 (Tex. App—Texarkana 2000, no pet) …...............                               18


                                                   vii
        CASES                                                                          PAGE(S)

Transamerican National Gas v. Powell
811 S.W.2d 913 (Tex. 1991) …............................................... 28, 31, 32

STATE STATUTES AND RULES                                                               PAGE(S)

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

Tex. Civ. Prac. & Rem. Code Ann. § 10.001 .................................. 17, 19


Texas Constitution, Article 5, Section 11 …................................... 23, 24

TEXAS CONST. ART. 8, 13 …................................................                29, 30, 31

Texas Disciplinary Rules of
Professional Conduct, Rule 3.07 …........................... 19, 20, 25, 26, 27, 32

Texas Judicial Canon 3B(1) ….........................................................           23

Tex. Prob. Code Ann. §745(a)(2) (Vernon Supp. 2006) …................. 14

TEX. R. APP. P. 25.1(a) ....................................................................    2

TRE Rules 802, 803, 804, 901 …........................................................ 27

United States Constitution, Amendment 1 .......................................... 31

TRCP Rule 778 …..............................................................................   21




                                                  viii
                              No. 01-15-00586-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

CAROL ANN MANLEY AND DAVID PETERSON,
    Appellees.


                                 On Appeal from
                   Probate Court No. One, Harris County, Texas
                       Honorable Lloyd Wright, presiding
                         Trial Court Cause No. 427,208

                             APPELLANTS' BRIEF



TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:

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

Peterson, by and through the undersigned attorney at law, and file this appeal from

the Final Judgment and Orders of the trial court, and would show the Court as

follows:

                                        1
                             STATEMENT OF CASE

      This guardianship proceeding regarding Ruby S. Peterson, the proposed

ward (“Mrs. Peterson”) began, when her adult children Carol Ann Manley and

David Peterson, who had opposed the guardianship application filed by Mrs.

Peterson's adult sons Don, Mackey and Lonny Peterson, filed a guardianship

application after the first application was voluntarily nonsuited. The guardianship

proceeding was settled, without any temporary or permanent guardianship ever

being ordered, pursuant to a voluntary, non-revocable mediated settlement

agreement on October 29, 2014.

      The trial court did not approve the settlement agreement before Mrs.

Peterson died on January 11, 2015. The trial court lost its jurisdiction over the

person of Mrs. Peterson due to her death, and the settlement agreement became

moot before it was approved by a Final Judgment on May 12, 2015.

                       STATEMENT OF JURISDICTION

      Appellants invoke 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
                                         2
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 four volumes has been filed. The

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

                              ISSUES PRESENTED

ISSUE NO. 1: Whether the trial court lacked jurisdiction to approve the mediated

settlement agreement of the parties pursuant to the Final Judgment May 12, 2015,

when the terms of the agreement were moot, because the proposed ward had died.

ISSUE NO. 2:       Whether the probate court lost jurisdiction of the guardianship

matter, when the proposed ward died, except for the filing of the final accounting

and dismissing the guardianship proceeding.

ISSUE NO. 3: Whether the trial court's Orders granting the Defendants, attorney

ad litem, and guardian ad litem's motions for sanctions were signed in error on

November 10, 2014 because the Orders were vague, overbroad, unsubstantiated

and/or unlawful.

       STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

      At the time of filing of this guardianship proceeding, Mrs. Peterson was the
                                         3
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.

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

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

      David and Carol moved Mrs. Peterson to Silverado, which is a locked

memory care facility, on or about August 27, 2013.

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

obtained a letter from Dr. Chris Merkl, M.D. stating that she had severe dementia.

(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). 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). Carol and David used Dr. Merkl's

diagnosis as authority for their actions as Mrs. Peterson's agents for making her

medical decisions. Thereafter, Carol and David refused to allow Mrs. Peterson to

leave Silverado.

      Appellants alleged and offered evidence that Mrs. Peterson complained

about the conditions of her residency at Silverado. When Mrs. Peterson refused to
                                        4
take her medication voluntarily, Silverado staff mixed her drugs in a drink and told

her it was a vitamin drink. (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).

      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 Carol and David

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-
                                         5
      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

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.

      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
                                         6
and (5) execute new powers of attorney.

      When 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.” (RR Vol. 5,

page 105, lines 12-25; page 106, lines 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.

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

      On November 15, 2013, Don and Mack brought Mrs. Peterson a new power

of attorney revoking her prior power of attorney and appointing them as her

agents, which she executed before a Notary Public for the State of Texas and a

witness. (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. (RR

Vol. 5, page 125, lines 18-24; page 223, lines 17-23). Appellants further alleged
                                          7
and offered evidence that Mrs. Peterson had not been judicially determined to lack

capacity, and she was presumed to have had 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. Later that day, Don recorded the executed powers of attorney

and returned to Silverado to move Mrs. Peterson out of Silverado.

      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.

(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." (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 minutes before Silverado asked her who she
                                        8
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. (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. (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.


                                         9
Peterson could have 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.

       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.           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, which was marked as Plaintiffs'

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

       On August 10, 2014, Dr. John Tennison, M.D. submitted a medical

examiner's report stating that, to a reasonable degree of medical certainty, Mrs.

Peterson had contract-making capacity in November 2013. (CR4 page 3494).




                                       10
This evidence supports the fact that Mrs. Peterson had the capacity to execute a

new power of attorney in November 2013 and revoke her prior power of attorney.

      On or about July 25, 2014, 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).

      On October 29, 2014, the parties entered into a binding, non-revocable Rule

11 mediated settlement agreement. (CR4 page 3542-3545). On November 3, 2014,

the mediator reported to the trial court that the mediation was successful. (CR4

page 3432). On November 7, 2014, the trial court granted the request of the

guardian ad litem and attorney ad litem for permission to execute the Rule 11

agreement.    (CR4 page 3541). However, the trial court did not approve the

mediated settlement agreement until it entered a final judgment, which was four

months after Mrs. Peterson died. The mediated settlement agreement became moot

                                        11
after Mrs. Peterson died on or about January 11, 2015. (RR Vol. 13, page 10, lines

13-25; page 11, lines 1-25; page 12, lines 1-16).

      On January 16, 2015, Appellants filed a motion to dismiss the guardianship

proceeding. (CR4 page 3814-3816). The motion to dismiss was denied on May

12, 2015. (CR4 page 3952). On April 3, 2015, the guardian ad litem and attorney

ad litem filed a motion to enter judgment on the settlement agreement. (CR4 page

3871-3875).

      On May 12, 2015, the trial court entered a Final Judgment approving the

mediated settlement agreement and denying Appellants' motion to dismiss. (CR4

page 3949-3951). The trial court acknowledged that Mrs. Peterson passed away,

without having either a temporary or permanent guardian appointed, and there was

no guardianship proceeding after she died. (RR Vol. 13, page 17, lines 2-12; page

22, lines 7-25; page 23, lines 1-25; and page 24, lines 1-13).

                            STANDARD OF REVIEW

      A Court of Appeals reviews the trial court's interpretation of applicable

statutes de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56

(Tex.1989). In construing a statute, the objective is to determine and give effect to

the Legislature's intent. See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525,

                                         12
527 (Tex.2000). If possible, 407 S.W.3d 499 the reviewing court must ascertain

that intent from the language the Legislature used in the statute and not look to

extraneous matters for an intent the statute does not state. Id. If the meaning of the

statutory language is unambiguous, we adopt the interpretation supported by the

plain meaning of the provision's words. St. Luke's Episcopal Hosp. v. Agbor, 952

S.W.2d 503, 505 (Tex.1997). A reviewing court must not engage in forced or

strained construction; instead, it must yield to the plain sense of the words the

Legislature chose. See id.

                          SUMMARY OF ARGUMENT

      The trial court lacked jurisdiction to approve the mediated settlement

agreement of the parties pursuant to the Final Judgment May 12, 2015, when the

terms of the agreement were moot, because the proposed ward had died. When the

proposed ward died, the probate court lost jurisdiction of the guardianship matter,

except for the filing of the final accounting and dismissing the guardianship

proceeding. The trial court's Order granting the attorney ad litem and guardian ad

litem's Motion for Sanctions was signed in error on November 10, 2014 because

the Order was vague and overbroad.

                        ARGUMENT AND AUTHORITY

ISSUE NO. 1: Whether the trial court lacked jurisdiction to approve the mediated
                                         13
settlement agreement of the parties pursuant to the Final Judgment May 12, 2015,

when the terms of the agreement were moot, because the proposed ward had died.

ISSUE NO. 2:      Whether the probate court lost jurisdiction of the guardianship

matter, when the proposed ward died, except for the filing of the final accounting

and dismissing the guardianship proceeding.

      Appellants submit that the trial court's jurisdiction over the guardianship

proceeding ended, when Ruby died on or about January 11, 2015, except for the

filing of the final accounting and dismissing the guardianship proceeding.

Therefore, the trial court lacked jurisdiction to approve the parties' settlement

agreement, which became moot, when Ruby died. Furthermore, there was no

guardianship estate because the trial court did not appoint a guardian.

      When a ward dies, the probate court loses jurisdiction of the guardianship

matter, except for the filing of the final accounting and closing of the

guardianship. In the Guardianship of L.A. Moon, 216 S.W.3d 506, 510 (Tex.App.

—Texarkana 2007) (citing Tex. Prob. Code Ann. §745(a)(2) (Vernon Supp. 2006)

guardianship of incapacitated ward is settled and closed when ward dies);

Edwards v. Pena, 38 S.W.3d 191, 195 (Tex. App.—Corpus Christi 2001, no pet.);

Carroll v. Carroll, 893 S.W.2d 62, 68 (Tex. App.—Corpus Christi 1994, no writ).

      In Easterline v. Bean, the Texas Supreme Court declared "it has long been
                                         14
the public policy of this state that, when a ward dies, the probate court loses

jurisdiction of the guardianship matter, save and except that the guardianship shall

be immediately settled and closed, and the guardian discharged." In the

Guardianship of L.A. Moon, 216 S.W.3d at 510 (citing In re Estate of Glass, 961

S.W.2d 461, 462 (Tex. App.—Houston [1st Dist.] 1997, writ denied) (quoting

Easterline v. Bean, 49 S.W.2d 427, 428 (1932)).

      Appellants respectfully submit that the same rule would apply to a

guardianship proceeding, in which no guardianship had yet been created before

the proposed ward died, because the trial court loses jurisdiction over the proposed

ward and no guardianship estate exists.        Therefore, the trial court's Order

approving approving the parties' October 29, 2014 settlement agreement on May

12, 2015 was void because Mrs. Peterson died on January 11, 2015, and the

settlement agreement was moot.

      In particular, page 2 ¶10 of the mediated settlement agreement, which the

trial court approved in error, provided for payment of attorney's fees from the

proposed (then deceased) ward's estate. Appellants respectfully submit that such

agreement was not enforceable under the circumstances of this case. In the case

under review, the trial court did not create a guardianship or a management trust,

and there was no ward's estate from which the trial court could have ordered
                                        15
payment of fees. In re Guardianship of Whitt, 407 S.W.3d 495, 500 (Tex.App.-

Houston [14 Dist.] 2013). Mrs. Peterson was not a " ward" and her property was

not an " estate". Id.

      Therefore, Appellants respectfully submit that the trial court erred in

approving the mediated settlement agreement pursuant to the Final Judgment.

ISSUE NO. 3: Whether the trial court's Orders granting the Defendants, attorney

ad litem, and guardian ad litem's motions for sanctions were signed in error on

November 10, 2014 because the Orders were vague, overbroad, unsubstantiated

and/or unlawful.

A     Order on Motion for Sanctions filed by W. Russ Jones, attorney ad litem,
      and Jill Young, guardian ad litem, signed November 10, 2014

      The Texas Civil Practice and Remedies Code, Chapter 10 provides that the

signing of a pleading or motion constitutes a certificate by the signatory that to

the signatory’s best knowledge, information, and belief, formed after reason-

able inquiry: (1) the pleading or motion is not being presented for any improper

purpose, including to harass or to cause unnecessary delay or needless increase in

the cost of litigation; (2) the claims, defenses, or other legal contentions in the

pleading or motion is warranted by existing law or by a non-frivolous argument

for the extension, modification, or reversal of existing law or the establishment of
                                        16
new law; (3) the allegations or other factual contentions in the pleading or mo-

tion have evidentiary support or, for a specifically identified allegation or factual

contention, is likely to have evidentiary support after a reasonable opportunity

for further investigation and discovery…Id. (emphasis added). Tex. Civ. Prac. &

Rem. Code Ann. § 10.001

      Chapter 10 Sanctions require “proof that (1) the pleading or motion was

brought for an improper purpose, (2) there were no grounds for the legal

arguments advanced, or (3) the factual allegations or denials lacked evidentiary

support; See Tex. Civ. Prac. & Rem. Code Ann. § 10.001 (Vernon 2002);

Armstrong v. Collin County Bail Bond Bd., 233 S.W.3d 57, 62 (Tex. App.—

Dallas 2007, no pet). Save Our Springs Alliance, Inc. Lazy Nine Mun. Util. Dist.

ex rel. Bd. of Directors, 198 S.W.3d 300, 321 (Tex. App.— Texarkana 2006,

pet. denied) (“non-frivolous” requirement is same as “good faith” requirement.

Courts must presume parties and their counsel file all papers in good faith, and

the party seeking sanctions must overcome that presumption.) GTE Commc’ns

Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993).

      A pleading is groundless, when it has no basis in fact or law. Id. Bad

faith means the “conscious doing of a wrong for dishonest, discriminatory, or

malicious purposes.” Mattly v. Spiegel, Inc.; 19 S.W.3d 890, 896 (Tex. App.—
                                         17
Houston, 14th Dist] 2000, no pet). The trial court must measure a litigant’s conduct

at the time the relevant pleading was filed. Texas-Ohio Gas,Inc.v. Mecom, 28

S.W.3d 129, 139 (Tex. App—Texarkana 2000, no pet). Improper purpose is the

equivalent of bad faith. Parker v. Walton, 233 S.W.3d 535, 539 (Tex. App.—

Houston [14th Dist.] 2007, no pet.), Alejandro v. Bell, 84 S.W.3d 383, 393 (Tex.

App.–– Corpus Christi 2002). An improper purpose such as bad faith does not

exist when a party exercises bad judgment or negligence. Instead, bad faith means

the “conscious doing of a wrong for dishonest, discriminatory, or malicious

purposes.” Mattly v. Spiegel, Inc.; 19 S.W.3d 890, 896 (Tex. App.—Houston

[14th Dist] 2000, no pet).

      In deciding whether a pleading was filed in bad faith or for purposes of

harassment, the trial court must measure a litigant’s conduct at the time the

relevant pleading was filed. Texas-Ohio Gas,Inc. v. Mecom, 28 S.W.3d 129, 139

(Tex. App—Texarkana 2000, no pet). Texas law requires the Court examine not

just objectively, but examine subjectively the motives and credibility of the

attorney who signed the petition. Chapter 10 sanctions are generally only justified

in the following scenarios: attorneys not reading the pleading, not conducting

adequate investigation into the facts, g roundless and brought in bad faith,

g roundless and brought to needlessly increase the cost of litigation; or
                                        18
s tatements known to be false. Tex. Civ. Prac. Rem. Code 10.001.

      No evidence was introduced at the hearing on October 9, 2014 overcome

presumption that the pleadings were filed in good faith. (RR Vol. 10, pages 19-

33). Schwager demonstrated during the hearing December 9, 2014 that she did

not file any pleadings in bad faith, for improper purpose, or with any belief that

claims lacked evidentiary or legal support. (RR Vol. 12, p. 4, 23). Likewise, the

trial court’s orders for sanctions contained no explanation of the basis for the

sanction and no nexus between any alleged violation and the sanctions amount.

Chapter 10 states that “[t]he sanctions order “shall describe . . . the conduct the

court has determined violated Section 10.001 and explain the basis for the

sanction imposed.” Tex. Civ. Rem Code. 10.001.

      Appellants submit that the trial court abused its discretion ordering

sanctions under Chapter 10 against Candice Schwager because the claims for

sanctions lacked evidentiary or legal support.

B     Order on David Peterson and Carol Anne Manley's Motion for Sanctions,
      signed November 10, 2014

      Appellants respectfully submit that the trial court abused its discretion in

awarding $10,000 in sanctions for Candice Schwager's alleged violation of Rule

3.07 of the Texas Disciplinary Rules of Professional Conduct. First, there was no
                                         19
evidence presented to prove a violation of Rule 3.07. Second, there was no nexus

between the sanction and the alleged offensive conduct. Third, there was no

consideration of lesser sanctions or alternatives.

      Appellants respectfully submit that the trial judge should have disqualified

himself after receiving notice from the attorney ad litem at the sanctions hearing

on October 9, 2014 that the trial judge was named as a co-conspirator in alleged

civil rights violations related to Ruby Peterson in a proposed amended complaint

attached to a motion for leave to file a first amended original complaint in Civil

Action No. H-14-2179 pending in the United States District Court for the Southern

District of Texas, Houston Division. (RR Vol. 10, page 26, lines 10-25; page 27,

lines 1-3).

      Mr. Jones encouraged the misperception by the trial judge that the

Appellants were suing him in federal court as follows:

      “The Court will recall that the last time we were down here on the
      hearing, and I agree with Ms. Schwager on this, that the Court was
      the greatest thing since sliced bread, best probate judge in Harris
      County, quote me on it. Now you are being sued as a co-conspirator
      with the City of Sugar Land and with Silverado for conspiring and
      engaging in overt acts to deny Ruby Peterson’s civil rights, her
      federally protected rights. Pardon my French, Your Honor, but that’s
      a load of horse shit.”


                                          20
      (RR Vol. 10, page 32, lines 13-21).

      “I would encourage you to levy significant costs. I have asked for
      $120,000 in costs, $40,000 from each of the…Plaintiffs rather, or
      however they want to carve it up, because I think it’s going to cost
      that much for myself and Ms. Young to sit through this case and
      adequately represent Ruby Peterson to the end. And I think you need
      to sanction her or she’s going to keep on doing it. She has been
      sanctions by Judge Butts. It was a rather nominal sanction and she
      obviously didn’t get the message. She needs to be hit a little bit
      bigger here. Thank you, Judge.”

      (RR Vol. 10, page 32, lines 22-15; page 33, lines 1-7).

      Although the trial judge joked that he didn't mind the potential controversy,

(RR Vol. 10, page 27, lines 14-18), it was apparent that, despite Appellants'

counsel's explanation, (RR Vol. 10, page 42, lines 2-23; page 43, lines 2-16), he

was highly offended by being named as a defendant in a pleading filed in federal

court. (RR Vol. 10, page 43, lines 17-25; page 44, lines 1-7; page 48, lines 4-9).

      The trial judge expressed his feelings as follows:

      “But this is sitting up there of record in the Federal Courts. This is a
      recorded, filed pleading, correct?”

      (RR Vol. 10, page 42, lines 24-25; page 43, line 1).

      “Well, I’m not going to make this about me but this is just frustrating,
      you know. I don’t have a dog in this fight. I don’t wake up thinking

                                         21
      about, gee, what can I do to harm Ruby Peterson or do something, it’s
      just ridiculous. I mean, ludicrous. To even have a pleading that would
      accuse me of that. I’m going to sort of put it aside in my consideration
      of all this and what’s transpired, but it’s just reckless and it’s not right
      and it’s not fair. It’s not just. I mean, this idea that people just are out
      to do nefarious things and hurt somebody and make money or
      whatever you think or Ms. Schwager thinks it’s ludicrous and it’s
      wrong and I try not to get involved in any of it except what I’m
      supposed to do here today. But then I see that things bring me into it
      in some fashion and it just—it’s just wrong. And then of course she
      is not here today.”

      (RR Vol 10, page 43, lines 17-25; page 44, lines 1-6).

      Appellants respectfully submit that the trial judge's actions on November

10, 2014 dismissing their claims and sanctioning their attorney was unduly

influenced by his personal feelings about being identified as an alleged co-

conspirator in a pleading filed in federal court. The trial judge referenced his

objection to allegations of some kind of conspiracy again at the hearing on

December 9, 2014, stating as follows:

      “I mean, I think we got to the point. I think the settlement was
      exactly what should have happened probably but it should have
      happened outside the courtroom, really, and so all this bomb throwing
      and so and so is this or that, or there is some kind of conspiracy going
      on, it's just so counterproductive I can't tell you.”

      (RR Vol 12, page 9, lines 15-20).
      …
                                          22
      “I've been here almost four years. I'm sort of the new guy on the
      block and I can tell you, and I really feel this way about all judges,
      most, you know, again, there are exceptions, but my integrity can't be
      questioned.”

      (RR Vol 12, page 10, lines 18-21).

      Appellants submit that the trial judge had a duty to disqualify himself under

Texas Judicial Canon 3B(1), which provides: (1) A judge shall hear and decide

matters assigned to the judge except those in which disqualification is required or

recusal is appropriate. The moment that the trial judge was told that he was being

sued as a co-conspirator, although this statement by the attorney ad litem was

false, he could reasonably be perceived to have a conflict of interest in the

outcome of the guardianship proceeding and related claims, which would preclude

him from continuing to preside over this matter.

      Appellants submit that the Texas Constitution, Article 5, Section 11

provides:

      Sec. 11.   DISQUALIFICATION OF JUDGES; EXCHANGE OF
      DISTRICTS; HOLDING COURT FOR OTHER JUDGES. No judge
      shall sit in any case wherein the judge may be interested, or where ei-
      ther of the parties may be connected with the judge, either by affinity
      or consanguinity, within such a degree as may be prescribed by law,
      or when the judge shall have been counsel in the case. ...
                                        23
      (Amended Aug. 11, 1891, and Nov. 6, 2001.)

      Appellants submit that the failure or refusal of the trial judge to voluntarily

disqualify or recuse himself sua sponte, when he determined that he may have a

personal interest in the outcome of the guardianship proceeding, based on

information, although false, that he was being sued in federal court on claims

related to the proceed, raised a question as to the judge's impartiality and the

validity of the trial court's orders beginning on October 9, 2014.

      There is no waiver for Constitutional disqualification and a party may assert

disqualification for the first time on appeal. Buckholts Indep. Sch. Dist. V. Glaser,

632 S.W.2d 146, 148 (Tex. 1982); Monroe v. Blackmon, 946 S.W.2d 533, 542

(Tex. App. -- Corpus Christi 1997, orig. proceeding); Fry v. Tucker, 202 S.W.2d

218, 221-22 (1947). The disqualification rules in Article V, section 11 are

expressed in unconditional language, and are regarded as mandatory and to be

“rigidly enforced.” See Fry v. Tucker, 202 S.W.2d 218, 221 (1947).

Disqualification affects a judge’s jurisdiction and power to act. See Postal Mut.

Indemnity Co. V. Ellis, S.W.2d 482, 484 (1943). Therefore, disqualifications, like

other jurisdictional barriers, cannot be waived. See In re Union Pacific Resources

Co., 969 S.W.2d 427, 428 (Tex. 1998); Buckholts Indep. Sch. Dist. v. Glaser, 632


                                         24
S.W.2d 146, 148 (Tex. 1982); The standard of review is de novo. Palais Royal,

Inc. v. Partida, 916 S.W.2d 650 (Tex. App.--Corpus Christi 1996, [leave denied]).

      Appellants also submit that the trial court misconstrued Rule 3.07, which

was cited as to sole basis for sanctions. Rule 3.07 provides:

      RULE 3.07 TRIAL PUBLICITY

      (a) In the course of representing a client, a lawyer shall not make an
      extrajudicial statement that a reasonable person would expect to be
      disseminated by means of public communication if the lawyer knows
      or reasonably should know that it will have a substantial likelihood of
      materially prejudicing an adjudicatory proceeding. A lawyer shall not
      counsel or assist another person to make such a statement.
      (b) A lawyer ordinarily will violate paragraph (a), and the likelihood
      of a violation increases if the adjudication is ongoing or imminent, by
      making an extrajudicial statement of the type referred to in that para-
      graph when the statement refers to:
      (1) the character, credibility, reputation or criminal record of a party,
      suspect in a criminal investigation or witness; or the expected testi-
      mony of a party or witness;
      (2) in a criminal case or proceeding that could result in incarceration,
      the possibility of a plea of guilty to the offense; the existence or con-
      tents of any confession, admission, or statement given by a defendant
      or suspect; or that person's refusal or failure to make a statement;
      (3) the performance, refusal to perform, or results of any examination
      or test; the refusal or failure of a person to allow or submit to an ex-
      amination or test; or the identity or nature of physical evidence ex-
      pected to be presented;
      (4) any opinion as to the guilt or innocence of a defendant or suspect
                                         25
     in a criminal case or proceeding that could result in incarceration; or
     (5) information the lawyer knows or reasonably should know is likely
     to be inadmissible as evidence in a trial and would if disclosed create
     a substantial risk of prejudicing an impartial trial.
     (c) A lawyer ordinarily will not violate paragraph (a) by making an
     extrajudicial statement of the type referred to in that paragraph when
     the lawyer merely states:
     (1) the general nature of the claim or defense;
     (2) the information contained in a public record;
     (3) that an investigation of the matter is in progress, including the
     general scope of the investigation, the offense, claim or defense in-
     volved;
     (4) except when prohibited by law, the identity of the persons in-
     volved in the matter;
     (5) the scheduling or result of any step in litigation;
     (6) a request for assistance in obtaining evidence, and information
     necessary thereto;
     (7) a warning of danger concerning the behavior of a person involved,
     when there is a reason to believe that there exists the likelihood of
     substantial harm to an individual or to the public interest; and
     (8) if a criminal case:
     (i) the identity, residence, occupation and family status of the ac-
     cused;
     (ii) if the accused has not been apprehended, information necessary to
     aid in apprehension of that person;
     (iii) the fact, time and place of arrest; and
     (iv) the identity of investigating and arresting officers or agencies and
     the length of the investigation.

     Appellants submit that there is no evidence or insufficient evidence to show

that Appellants' counsel violated Rule 3.07. Tex. Disc. R. Prof. Cond. 3.07.
                                        26
Defendants presented no evidence that Schwager made extrajudicial statements

that had a substantial likelihood of prejudicing an adjudicatory proceeding, nor

any evidence that any act or omission on her part interfered with the

administration of justice. Tex. Disc. R. Prof. Cond. 3.07. (RR Vol. 10, page 66,

lines 14-25; pages 67-85; page 86, lines 1-4).

      Appellants submit that it is virtually impossible to make a finding that their

counsel made extrajudicial statements which substantially prejudiced the

administration of justice, because the only evidence presented to the trial court

was unauthenticated hearsay, not within an exception to Rule 803 or 804. T.R.E.

802, 803, 804, 901. Hearsay is inadmissible, subject to certain limited exceptions

not applicable in this matter. T.R.E. 802.

      None of Defendants’ exhibits met any of these exceptions to the hearsay

rule. Furthermore, Appellants' counsel was neither a party to this case, nor was

she speaking on behalf of a party.           Appellants submit that their counsel's

extrajudicial statements were made on her own behalf—as an advocate for the

disabled. None of the Defendants' exhibits were authenticated, as required by

Texas Rule of Civil Procedure 901. Appellants submit that the introduction of

authenticated hearsay evidence into the record was an abuse of discretion. Tex. R.

Evid. 802, 803, 804, 901.
                                         27
      There was likewise no evidence that Appellants' counsel violated Rule 3.07,

and the trial court abused its discretion in entering the Order for $10,000 sanctions

against Ms. Schwager pursuant to Rule 3.07. Tex. Disc. R. Prof. Cond. 3.07.

Appellants submit that the trial court also abused its discretion by exceeding the

limits of its inherent power and failing to exercise restraint. McWhorter v. Sheller,

993 S.W.2d 781, 788-789 (Tex. App.—Houston -14th Dist 1999, pet denied). The

inherent power to sanction should only be used for serious instances of bad faith

conduct during litigation. Kutch vs. Del Mar College, 831 S.W.2d 506, 510 (Tex.

App.—Corpus Christi, 1992, no pet). In order for the inherent power to sanction,

a court must find some evidence and factual findings that the conduct complained

of significantly interfered with the court’s legitimate exercise of its powers. Id.

The inherent power requires courts to consider less stringent sanctions than what

was ordered in this matter. Transamerican National Gas v. Powell, 811 S.W.2d

913 (Tex. 1991).

      Appellants also submit that their counsel's extrajudicial statements were

protected speech.     The United States Supreme Court has said that "it is

unquestionable that in the courtroom itself, during a judicial proceeding,

whatever right to 'free speech' an attorney has is extremely circumscribed . .

.but not one statement complained of was alleged to have occurred in the
                                         28
courtroom. Lawyers are restricted to ethical restraints that do not apply to

laypersons, but that does not mean a judge can sanction truthful speech or

censor all talk of evidence entered in a case from public scrutiny. In re Sawyer,

360 U.S. 622 (1959); Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991).

      Significantly, the Texas Constitution provides greater protection to

speech than the First Amendment, such that the foregoing cases are not

determinative. The power to regulate the practice of law resides in the Supreme

Court of Texas, and derives from both a statutory grant of power, see Tex.

Govt. Code Ann. § 81.01 l(c) (Vernon 1988), and the Supreme Court of Texas'

inherent judicial power. See generally Eichelberger v. Eichelberger, 582 S.W.2d

395, 397-98 & n. 1. (Tex.1979).

      Appellants submit that the trial court did not consider any evidence that

established a violation of any disciplinary rule. Appellants do not dispute that the

State Bar has the right to promulgate rules restricting the speech of attorneys.

However, the power to restrict an attorney's speech is not unrestricted. The Court

in Polk vs. State Bar of Texas said, “an Attorney’s speech could not be

reprimanded by the Texas State Bar because of objection to content.” P o l k v .

S t a t e B a r o f Texas, 3 7 4 F. Supp. 7 8 4 ( N . D . T e x . 1 9 7 4 ) ; T E X A S

CONST. ART. 8, 13.
                                          29
       In fact, the Court stated “It cannot be seriously asserted that a private

citizen surrenders his right to freedom of expression when he becomes a

licensed attorney in this state.” Polk v. State Bar of Texas, 374 F. Supp. 784

(N.D. Tex. 1974). TEXAS CONST. ART. 8, 13. In Polk v. State Bar of Texas,

Polk successfully enjoined the Texas State Bar from chilling his speech, even

though he was critical of a District Attorney and Judge—suggesting corruption.

374 F. Supp. 784 (N.D. Tex. 1974). The United States Constitution has been

read to limit and restrain the state's power to prescribe standards of conduct for

attorneys. NAACP v. Button, 371 U.S. 415, (1963).

       The Constitutions of Texas and United States protect not only the ability of

the speaker to speak but of the public to receive information. TEX. CONST. ART.

I SEC 8, 13, U.S. CONST. AMEND I. The constitutional protections of free

speech and press were fashioned to assure the unfettered interchange of ideas

for bringing about political and social changes desired by the people. New York

Times Co. v. Sullivan, 376 U.S. 254 (1964). There is universal agreement that a

major purpose of the first amendment is to protect the free discussion of govern-

mental affairs. Mills v. Alabama, 384 U.S. 214, 218 (1966). The A p p e l l a n t s

s u b m i t t h a t t h e m o t i o n f o r s a n c t i o n s w a s i n t e n d e d to punish core

political speech on matters of public concern protected by t h e Constitution.
                                               30
TEXAS CONST. ART. I, SEC 8, 13. U.S. CONST. AMEND I.

      The Court abused its discretion by issuing sanctions withou consideration of

the required nexus under TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d

913, 917 (Tex. 1991). Appellants also submit that there is no evidence that any of

the alleged statements by their counsel substantially prejudiced the administration

of justice, which is a key component of Rule 3.07. Tex. Disc. R. Prof. Cond. 3.07.

There was no evidence presented to justify $10,000 in sanctions even if Rule 3.07

had been legitimately violated, which it was not.

      In TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.

1991), the Supreme Court held that due process of law requires that such a

discovery sanction be "just." The Court expressed the “justness” requirement in

several ways, including the requirement that there must be a direct relationship

between the offensive conduct and the sanction imposed. Id. This is sometimes

called the “nexus” requirement. The TransAmerican requirement of "justness"

provides that the punishment imposed must not be excessive, and that the

punishment must fit the crime. TransAmerican Natural Gas Corp. v. Powell, 811

S.W.2d 913, 917 (Tex. 1991). The court must consider less stringent sanctions

before imposing death penalty sanctions. The trial court abuses its discretion if "the


                                         31
sanction it imposes exceeds the purposes that discovery sanctions are intended to

further." TransAmerican, 811 S.W.2d at 918.

      At the hearing on July 28, 2014, during argument regarding the potential limits

on pretrial publicity, the trial judge made the following statement:

      “I haven’t eve thought about or looked at my authority in terms of,
      you know, it’s usually a criminal trial sometimes or high profile,
      which this may be a high profile civil case where you do have to think
      through the necessity of restricting someone to do certain things to
      protect the objectivity of the jury pool.”

      (CR Vol. 4, page 21, lines 15-21).

      Appellants submit that the foregoing statement implicates limits on

the application of Rule 3.07. Nevertheless, the trial court ordered sanctions

against Appellants' counsel without substantial evidence of a violation of

Rule 3.07, without considering alternatives, and without stating a nexus

between the alleged sanctionable conduct and the sanction imposed.

Therefore, Appellants submit that the sanctions Order was an abuse of

discretion, which should be reversed.

                           CONCLUSION AND PRAYER

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

Final Judgment and Orders and render Judgment dismissing the guardianship
                                            32
proceeding. Alternatively, Appellants request the Court to reverse the trial court's

Final Judgment and Orders and remand the proceeding to the trial court for

dismissal.   Appellants also request the Court to reverse the Orders imposing

sanctions. Appellants request the Court to grant them all additional relief to which

they may be justly 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




                                        33
                                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

                         CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief is in compliance with Texas Rule of Appellate
Procedure Rule 9. It contains 7,495 words, 33 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:
Sarah Pacheco                          Jill Young
Kathleen Beduze                        MacIntyre, McCulloch, Stanfield, Young, LLP
Crain, Caton & James, PC               2900 Weslayan, Suite 150
1401 McKinney St., Suite 1700          Houston, TX 77027
Houston, TX 77010
                                       Josh Davis
Russ Jones                             Lewis Brisbois Bisgaard & Smith, LLP
Underwood, Jones, Scherrer &           Weslayan Tower, Suite 1400
Malouf, PLLC                           24 Greenway Plaza
5177 Richmond Ave., Suite 505          Houston, TX 77046
Houston, TX 77056

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


                                         34
