Opinion

in the Guardianship of Ruby Peterson

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Nov 16, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

The opinion

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,

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

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

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

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

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

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

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

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

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,

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,

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

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.

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

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).

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

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

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

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

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

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

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

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

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).

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

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.

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.

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

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

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

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

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

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

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.--

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

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: