Opinion

in the Guardianship of Ruby Peterson

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Dec 14, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

The opinion

FILED IN

1st COURT OF APPEALS

HOUSTON, TEXAS

12/14/2015 12:29:57 PM

CHRISTOPHER A. PRINE

Clerk

TAB 33

FILE

10 /2 1 6:05:55 PM

StanStanart

Stan Stanart

` CountyCler

Clef

HarrisCo

Co y

Cause

CauseN o.4427208

No. 27208

IN THE

THE GUARDIANSHIP

GUARDIANSHIPOF

OF § IN THEPROBATE

INTHE PROBATECOURT

COURT

RUBY

RUBY S.PETERSON,

S. PETERSON, § NUMBERONE

NUMBER ONE((1)

1)OFOF

ANINCAPACITATED

AN INCAPACITATED PERSON

PERSON § HARRIS

HARRISCOUNTY,

COUNTY, TE

FIRSTAMENDEDANSWER

-o

TO THE

THE HONORABLE

HONORABLE JUDGEOFSAID

JUDGEOFSAIDC OURT:

COURT:

COMES

COMES NOW,

NOW, W.

W. R ussJJones,

Russ ones,acting inhis asAttomey

in his capacity as Ad LitemforMrs.

AttorneyAdLitem for Mrs.

Ruby

Ruby S.Peterson,

S. Peterson, having been duly appointed

been duly assuch

appointedas by JudgeL

suchbyJudge oydH

Loyd H..Wright on February25,

Wrighton 25,

2014, toTexas

2014, pursuantto TexasEstates

EstatesCCode Section1054.001,

odeSection 1054.001, and

and entersan appearanceon

entersan

behalfof

on behalf of

theproposed wardand

the proposedward and respectfullyshows untothe

showsunto the Courtthe

following:

the following:

I.I. General Denial

The

The proposed

wardgenerally denieseachofthe

proposed ward generally denieseach

allegations

of the material allegationsset

forthinthei

set forth in the

applicationfor

application for guardianship,and

demandsstrictproofthereof byclearandconvincing evidence.S

and demands strict proof thereof by clear and convincing evidence.

II.Lesser RestrictiveAlternatives

II. Lesser Restrictive Alternatives

Proposedwardhasvalidgeneral durableandmedicalpowersofofattomey

Proposed ward has valid general durable and medicalpowers

whichhavebeen

attorney which have been

inplace andfunctioning formanyyyears.

in place and functioning formany ears.A ssuch,thereis no need

As such, there is no

forguardianship protection,

need for guardianship protection,

given the and oftheselesser alternatives to

given the existence and functionality of these lesser restrictive alternatives to guardianship.

III.DEFENSESQ

III. DEFENSES

l.1. NOFALSE IMPRISONMENT: RubyPeterson isnotbeing,andhasnotbeen,falsely

NO FALSE IMPRISONMENT: Ruby Peterson is not being, and has not been, falsely

imprisonedattheSilverado Senior Living Center-Sugar Landbecause Mrs.Peterson consented

imprisoned at the Silverado Senior Living Center-Sugar Land because Mrs. Peterson consented

(byvalidDurable Medical Power ofAttorney executed in1993)forhealthcaredecisions tobe

(by valid Durable Medical Power of Attorney executed in 1993) for health care decisions to be

madeonherbehalfbyCarolAnnManley andDavid TroyPeterson intheeventthatsheshouldtt

made on her behalf by Carol Ann Manley and David Troy Peterson in the event that she should

Silverado Appx. 0177

No. 1-15-586-CV 3122

become

become physically or mentally incapable

or mentally incapable ofmaking such decisions

of making such decisions for Oneofthe

for herself. One of the

reasons fortheDurable

reasons for the Durable Medical Power ofAttomey

Medical Power to avoid

was to

of Attorney was avoid tthe need for

heneed for a guardianship of

her person tthrough

her person hrough the creation of

thecreation lesser restrictive alternative

of a lesser to guardianship.

alternativeto Further,

guardianship. Further, the

the

decision

decision thatMrs.

that Mrs.Peterson

Peterson beadmitted

be admitted to secured

toaasecured memory

memory facility

carefacility

care forhersafety

for and

her safety and

protection

protection was not madesolely

was not at thewhim

made solely at discretion ooffMrs.

the whim ordiscretion Mrs. P eterson’s

Peterson's healthcare

health care agents;

agents;

rather,

rather, it was based

it was the p

on the

based on rofessional

professional medical recommendations

medical recommendations and

and a dvice

advice of

of M

Mrs.rs.

Peterson’s

Peterson's

treating

treating physicians. Thus,

physicians. Thus, residential

residential placement at Silverado

atSilverado was pursuant

waspursuant legalauthority

tolegal

to authority and

and

which

justification which RubyPeterson

Ruby Petersonhadexpressly

had expresslyconferred upon CarolAnn

upon Carol Manley

Ann Manley and

and David

David

TroyPeterson

Troy Petersonin1993.

in 1993.

2. NOVALID REVOCATION

NO VALID REVOCATION OF DURABLE POWER

OFDURABLE POWER OFATTORNEY: RubyPeterson

OF ATTORNEY: Ruby Peterson

didnot

did notexecute validrevocation

execute aa valid revocationofthe1993

of Durable

the 1993 Durable Medical

Medical Power

Power ofAttorney

of onNovember

Attorney on November

2013because

15,2013

15, because thepurported

the purported but denied

butdenied revocation

revocation was not

was not made orallyor

madeorally inwriting

orin writing byMrs.

by Mrs.

Peterson,

Peterson, inher

in hercapacity Principal,

asPrincipal,

capacity as to

to Carol AnnManley

CarolAnn orto

Manley or DavidT

to David Troy Peterson, intheir

royPeterson, in their

capacity

capacity as Agents.

as Rather,

Agents. Rather, ititwas theproduct

wasthe ofsecretive

product of ofundue

actsof

secretive acts influence

undue influence which

which Mackey

Mackey

GlenPeterson

Glen PetersonandDon

and Leslie

DonLeslie Peterson

Peterson perpetrated

perpetrated upon Ruby

upon Peterson,

Ruby Peterson, whothey

who they knew

knew was

was

susceptible

susceptible manipulation

tomanipulation

to and lacking

andlacking inmental

in capacity

mental capacity secondary

secondary to moderate

to dementia

moderate dementia with

with

severe

severe cognitive

cognitive impairment as a result.

impairment asa Additionally,

result. Additionally, thepurported but

the denied rrevocation

butdenied evocation of

durable

durable medical

medical power ofattorney

power of attorneyis invalid because

isinvalid because Mrs.

Mrs. P eterson

Peterson never m

never anifested

manifested any

any specific

intent

intent to revoke

to revoke thehealthcare decision-making

the healthcare decision-making authority

authority ofCarol

of Carol Ann Manley

Ann Manley or David

or Troy

David Troy

Peterson whomshe

Peterson whom she trusts, admires

trusts, admires and

and adores. Peterson

Mrs.Peterson

adores. Mrs. onlymanifested

only manifested intentto

anintent

an sign

tosign

somepapers

some papers(anypapers)

(any thatshe

sothat

papers) so leaveSilverado

couldleave

shecould Silveradoandreturn to

and herhome

to her inBaytown,

home in Baytown,

(aprior

Texas(a

Texas prior h omewhich

home whichnnoolonger

longer exists). limited

Thislimited

exists). This andlegally

and legallyinsufficient

insufficient intentwas

intent the

wasthe

directresult

direct ofUndue

resultof Influence

Undue Influence exerted

exerted Mrs.Peterson

uponMrs.

upon Peterson byMackey

by GlenPeterson,

Mackey Glen Peterson, Don

Don

Silverado Appx. 0178

No. 1-15-586-CV 3123

Leslie

Leslie P eterson

Peterson and

and their wiveswho

their wives whoknew

knew that

that R ubyP

Ruby eterson

Peterson was susceptible

was susceptible to

to manipulation

andwho

and who they

they knew would

knew would signANYTHING

sign ANYTHINGifshe

if she could goohome

could g home ttooBaytown (ahome

(a home w hichno

which no

longer

longer exists). ThePlaintiffs'

exists). The P1aintiffs’ undue

undue influence

influence subverted

subverted thewill

the ofMrs.

will of Peterson

Mrs. Peterson making the

the

execution

their

act,nothers,

and hertodothatwhich

shewould

not

document execution their act, not hers, and influenced her to do that which she would not

otherwise

otherwise havedone.TheNovember 15,2013

have done. The November 15, executions

2013 document executions tookplace

took insecrecy,

place in secrecy,

notice

without toCarol orDavid

AnnManley Troy because

Peterson Plaintiffs

knew thatifCarol

without notice to Carol Ann Manley or David Troy Peterson because Plaintiffs knew that if Carol

Ann andDavid

Ann and Davidwere

wereppresent

resent and permitted

andpermitted to explain

to theconsequences

explain the consequencesofheractions,

of Mrs.

her actions, Mrs.

Peterson

Peterson would

would havesigned

nothave

not signed thenew

the newpower ofattomey

power of and purported

attorney and purported revocation

revocation ofdurable

of durable

ofattomey.

powerof

power actedin

attorney. Furthermore, Plaintiffs acted badfaithbecause

inbad theyhadbeen

faith because they had been advised

advised more

than40

than 40days

days p riorttooNovember

prior 15,2013

November 15, thatM

2013that rs.P

Mrs. eterson

Peterson suffered

suffered fromdementia,

from dementia, was

was

extremely susceptible

extremely susceptible to manipulation,

to manipulation, and,most

and, that she lacked sufficient mental

mostimportantly, thatshelacked mental

capacity

capacity to manage

to manage herfinancial otheraffairs.

orother

her financial or affairs.

3. NOASSAULT ANDBATTERY:

NO ASSAULT AND BA I I ERY: Ruby

Ruby P eterson

Peterson did not suffer

did not "assault and

an "assault

suffer an and battery"

battery"

by being administered

bybeing administered doctor-prescribed

doctor-prescribed medications

medications against

against herwill.Byvirtue ofthe1993

her will. By virtue of the 1993

Durable

Durable Power

Medical Power ofAttomey,

of Attorney, Ruby

Ruby P eterson,

Peterson, as Principal,

as Principal, consented tohealthcare

consented to healthcare

decision-making

decision-making herbehalf

onher

on byCarol

behalf by AnnManley

Carol Ann Manleyand

and David TroyPeterson,

David Troy as herauthorized

Peterson, as her authorized

agents.

agents. Knowing,

Knowing, fulldisclosure,

after full disclosure, thatRuby

that RubyPeterson's

Peterson’s prescriptive

prescriptive medications

medications were

were

medically

medically necessary for

for the

the proper careand

proper care treatment ofheranxiety

and treatment of her anxiety disorder,

disorder, depression,

depression,

degenerative

degenerative joint disease,

joint disease, arthritis,

degenerative arthritis, dementia

dementia and other m

andother edical

medical conditions,

conditions, and

and

having

having R ubyPeterson’s

Ruby express

Peterson's express consent

consent makemedical

tomake

to medical decisions

decisions herbehalf

onher

on (including

behalf (including the

the

rightto

right toconsent

consent to medical

tomedical psychiatric

orpsychiatric

or andtreatment),

careand

care treatment), Defendants

Defendants Manley

Manley and Peterson

andPeterson

consented

consented ontheir

on their m other’s

mother's behalf

behalf theadministration

tothe

to ofprescriptive

administration of medications

prescriptive medications andvitamin

and vitamin

supplements

supplements which Ruby’s

whichRuby's treating

treating physicians

physicians prescribed

prescribed forthe

for proper

the proper andtreatment

and ofher

treatment of her

Silverado Appx. 0179

No. 1-15-586-CV 3124

conditions.

Consent

isan defense

to and

battery.

Effectiveincludes

consent

conditions. Consent is an affirmative defense to assault and battery. Effective consent includes

consent byaa personal legally

consent by legally aauthorized

uthorized toact on behalf

to act on behalfofthealleged

of the allegedvictim

victimof anassault.

ofan assault. See

See

Tex. Pen.

Tex. Pen. Code

Code Section

Section l.07(a)(l9). Consent

1.07(a)(19). Consent isis

also

also defense

aadefense assault

toananassault

to ifthe

if the D efendants’

Defendants'

conduct

conduct didnot

did or inflict

not threaten or inflict serious

serious bodily

bodily iinjury.

njury.See

SeeTex.

Tex.Pen.

Pen.Code

CodeSection

Section22.06.

22.06.

Basedoonntheabove,

Based the above, there

there was no "assault

wasno "assault and

and battery" with

with respect to medication

respect to medication administration,

administration,

with respect

with respect toassistance

to assistance with

with showering Ruby

Ruby Peterson,

Peterson, etc. Defendants

etc. Defendants were

were authorized

authorized to

consent

consent to suchcare

tosuch careon behalf

onbehalf ofRuby

of Peterson,

Ruby Peterson, andRuby

and Rubysuffered

suffered no bodily

nobodily injuryasa

injury as a result

result

thereof.

4. LACK

LACK OFSTANDING

OF STANDING & &SUBJECT

SUBJECT MATTER JURISDICTION:

MATTER JURISDICTION: Plaintiffs Mackey

Mackey

GlenPeterson,

Glen Peterson,DonLeslie

Don LesliePeterson

Peterson andLonny Peterson

and lacklegal

Peterson lack standing

legal standing to

to sue forFalse

suefor False

Imprisomnent,

Imprisonment, Assault

Assault andBattery,

and Breach

Battery, Breach ofFiduciary

of Fiduciary Duty,

Duty, Conversion, Conspiracy,

Conversion, Conspiracy, Invasion

Invasion

ofPrivacy,

of Privacy, Intentional

Intentional Infliction

Infliction ofEmotional

of Emotional Distress or any other

Distress orany other sstate or federal

tateor cause o

federal cause off

action

action on behalf of

onbehalf of Ruby

Ruby P eterson.

Peterson. Ruby

Ruby Peterson

Peterson hadbeen

had been diagnosed

diagnosed with Dementia by(1)

Dementia by (1)

Federico (2)Saeed

Federico Dancel,M.D.'; (2) Kahkeshani,

Saeed Kahkeshani, (3)Samiran

M.D.2; (3) K.Das,

Samiran K. (4)Salah

Das, M.D.3; (4) U.

Salah U.

June

2013.

Board Internist

Board Certified Internist and

and Ruby

Ruby P eterson’s

Peterson's longtime

long timeprimary care physician.

carephysician,

2 BoardCertified Neurologist

Board Neurologist whodiagnosed

who diagnosed Ruby

Ruby with

with dementia

dementia inapproximately

in approximately

June of 2013.

Board Ruby

with

dementia

atthePasadena

Board Certified Internist who diagnosed Ruby with dementia at the Pasadena

Bayshore

Bayshore Hospital Adult

Adult Psychiatric Unit in approximately August

Unit m August 2013.

2013.

Silverado Appx. 0180

No. 1-15-586-CV 3125

Qureshi, (5) Suleman Lalani,

Qureshi, M.D.4.; (5)Suleman and(6)Christopher

Lalani, M.D.5;and 0. Merkl, M.D.6prior

(6) ChristopherO.Merkl, priorto

November

November 15, 013when

15, 22013 manipulatedRuby

when PlaintiffsmanipulatedRubyPPeterson

eterson(through

(throughthesecretive

the secretive exercise

of Undue Influence)

ofUndue Influence)into signingaapurported

intosigning butddenied

purportedbut eniedrrevocation

evocation ofdurable powerof

of durablepower ofattomey

attorney

and butddenied

purported but

andpurported enied ewstatutorydurable

nnew powerof

durablepower attorneywhich,

ofattorney predictably,replaced

which,predictably, replaced

Defendants

Defendants Carol

Carol A Manleyaand

nnManley

Ann ndDavid

DavidTroy ithPlaintiffs

Petersonwwith

TroyPeterson PlaintiffsMackey lenPeterson

MackeyGGlen Peterson

andDonLeslie

and Don Leslie Peterson

Petersonaassthepurported gentsooffRuby

the purportedaagents RubyPeterson.

Peterson.

Ruby

Ruby P eterson

Peterson lacked herequisite

lackedtthe mentalcapacity

requisitemental capacitytoexecute newdisability

to executenew disabilityplanning

planning

documents onNovember

documents on November 15, (sincesshe

013(since

15, 22013 hewas

wasalready mentallyincapacitated

alreadymentally andhad

incapacitatedand hadbeen

been

forapproximately

for approximately ayear p riorb ythat t ime). acted inbad faithbecause they

a year prior by that time). Plaintiff's acted in bad faith because theywere

were

informed,

informed, inwriting, onOctober

in writing,on by Board CertifiedGeriatric

4, 2013byBoard

October4,2013 PsychiatristChristopher

GeriatricPsychiatrist ChristopherO.

Merkl, M.D.

Merkl, M.D. tthat

hatRuby

RubyPeterson

Petersonhhad

addementia,

dementia,was and lackedthe

susceptibletoto manipulation,andlacked

wassusceptible the

requisite m

requisite entalcapacityto

mental manageherfinancial

tomanage orother

her financialor

RubyPeterson’s authorized

other affairs. Ruby Peterson's authorized

for both financial

agents forboth

agents financialandpersonal/healthcare

decision-making remain DefendantCarolAnn

and personal/healthcare decision-making remain Defendant Carol Ann

Manley

Manleyaand

ndDavid

DavidTroyPeterson.

Troy Peterson.

Assuch, Mackey GlenPeterson, DonLesliePeterson andLormy Peterson have

As such, Plaintiffs Mackey Glen Peterson, Don Leslie Peterson and Lonny Peterson have

legalstanding

no legal standingto

no bringany causesofaction

to bringanycauses nbehalf

of actionoon

ofRubyPeterson. Under Texaslaw,

behalf of Ruby Peterson. Under Texas law,

standing is a necessarycomponent

standing is anecessary

ofsubject matter jurisdiction. SincePlaintiffs lackstanding to

component of subject matter jurisdiction. Since Plaintiffs lack standing to

behalfofRubyPeterson, theirclaimsmustbbeedismissed for wantofsubject matter

sue on behalf of Ruby Peterson, their claimsmust

sueon dismissed foraa want of subject matter

4 Board Certified Psychiatrist

Board Certified Geriatric Psychiatrist

who diagnosed

Rubywithdementia atthe

Ruby with dementia at the

PasadenaBayshore Hospital Adult UnitinAugust of2013.

Pasadena Bayshore Hospital Adult Psychiatric Unit in August of 2013.

5 BoardCertified Intemist, Board Geriatric physicianandRubyPeterson’s

attending Board Certified

physician Internist,

theSilverado SeniorBoard Certified

Living FacilityGeriatric physician

whodiagnosed RubyandwRuby Peterson's

ithdementia in

attending physician

at the of2013.

Silverado Senior Living Facility who diagnosed Ruby with dementia in

approximately September

approximately September of 2013.

BoardCertified Psychiatrist

andtreating whodiagnosed

physician Ruby

with

Peterson

inOGeriatric

dementia ctober

of2013.r

Board Certified Geriatric Psychiatrist and treating physician who diagnosed Ruby

Peterson with dementia in October of 2013.

Silverado Appx. 0181

No. 1-15-586-CV 3126

jurisdiction.

WHEREFORE,

WHEREFORE, PREMISES CONSIDERED,

PREMISES CONSIDERED, Proposed

Proposed Ward RUBY

RUBY S.PETERSON,

S. PETERSON,

respectfully prays tthat

respectfully prays hattthe

hePlaintiffs Mackey

Mackey Glen Peterson, Don

Glen Peterson, Don Leslie Peterson

Leslie Peterson andLonny

and

takenothing

Peterson byreason

ofthissuit;

thatcosts

including, limitation,

without all

Peterson take nothing by reason of this suit; that costs including, without limitation, all court

appointees’

appointees' feesand

fees expenses,

and expenses, beadjudged

be againstthe

adjudged against thePlaintiffs; andthatshe

Plaintiffs; and hencewithout

gohence

that she go without

day.

Respectfully submitted,

submitted,

UNDERW

UNDERW OD, JJONES,

•I OD, ONES, SCHERRER

SCHERRER &

MALOUF,

MALOUF, .L.L.C.

By:

W.RU ·s

W. RUS JO

StateB No.

adig

|8050

State B No. 1 P8050

5177

5177 R ichmond

Richmond Avenue,

Avenue, Suite

Suite 505

505

_ Houston,

Houston, Texas 77056

Texas 77056

; (713)

552-1144

(713) 552-1144

(713)781-4448

(713) 781-4448 ffacsimile

acsimile

rjones@ujsmlaw.com

ATTORNEY

ATTORNEY ADLITEM

AD FORRUBY

LITEM FOR RUBYS.

PETERSON,

PETERSON, PROPOSED

PROPOSED WARD

WARD

Silverado Appx. 0182

No. 1-15-586-CV 3127

CERTIFICATE OF SERVICE

hereby c

IIhereby ertify

certify tthat

hataa true

true and copyoftheforegoing

and correctcopyof the foregoing instrument hasbeen

has been

forwarded

forwarded to:

to:

Sarah Patel

Patel Pacheco

Pacheco Candice

Candice Schwager

Schwager

Kathleen Tanner Beduze

Beduze 1417

1417 Ramada

Ramada Drive

Drive

Crain,

Crain, Caton & James, P.C.

Caton &James, P.C. Houston,

Houston, Texas 77062

Texas 77062

McKim1ey,

1401McKinney,

1401 Suite1700

Suite 1700

Houston,

Houston, Texas 7

Texas 7010

77010

PhilipM

Philip M. .Ross

Ross JoshK.Davis

Josh K. Davis

1006

1006 Holbrook

Holbrook Road

Road Lewis, Brisbois,

Lewis, Brisbois, Bisgaard

Bisgaard &Smith,

& L.L.P.

Smith, L.L.P.

SanAntonio,

San Antonio, Texas

Texas 78218

78218 Weslayan Tower, Suite

Weslayan Tower, 1400

Suite 1400

24Greenway Plaza

24 Plaza

Houston,

Houston, Texas77046

Texas 77046

byfacsimile

by and/ore-file on

facsimile and/or the2' day

onthe dayofOctober,

of October, 22|t 14.

14.

w. J

Agall4/11§

W. RUSS JONES

Silverado Appx. 0183

No. 1-15-586-CV 3128

TAB 34

10/6/2014 FILED

10/6/2014 8:51:06 PM

Stan Stanart

County Clerk

D| UPTH\$

DATA-ENTRY DATE U Harris County

PICK UP THIS DATE

NO. 427,208

PROBATE

COURT

PROBATE COURT 'I

NO. 427,208

IN RE: GUARDIANSHIP OF

INRE:GUARDIANSHIP OF § INTHEPROBATE COURT

IN THE PROBATE COURT

RUBY

RUBY PETERSON,

PETERSON, § NUMBER

NUMBER ONE

ONE

PROPOSED

PROPOSED WARD

WARD § HARRIS

HARRIS COUNTY

COUNTY, TEXAS

TEXAS

cv 2014-40980

N0.

CAUSE NO. 2014-40980

("MACK")

PETERSON,

MACKEY

Friend

Next § INTHEDISTRICTCOURT

GLENPETERSON,

MACKEY ("MACK") GLEN PETERSON, § IN THE DISTRICT COURT

PETERSON, Individually, Next Friend

0fRUBYPETERSON, DONLESLIE §

of RUBY PETERSON, DON LESLIE

PETERSON, and as Next

PETERSON, Individually and as Next §

Friend,0f RUBYPETERSON,

Friend, of RUBY and

PETERSON, and §

0fRUBY

Friend

LONNY

§§

S.PETERSON,

PETERSON,

PETERSON, Individually

Next Friend of RUBY S. PETERSON,

and §

Individually

and

Plaintiffs,

V. HARRIS COUNTYTEXAS

HARRISCOUNTY, TEXAS

CAROL §

ANNE MANLEY

DAVID

CAROL

PETERSON,

SILVERADO

ANNE

SENIORLIVING

MANLEY,

DAVID PETERSON, SILVERADO

CAREFACILITY,

LIVINGCARE §

SENIOR FACILITY,

TAN

TANAAMCMILLON,

MCMILLON, §

LINDALAVINS

LINDA ON,DR.REBECCA

LAVINSON, DR. REBECCA §

CLEARMAN, DR.CHRISMERKL

CLEARMAN, DR. CHRIS MERKL

Defendants.

Defendants. § 129TH

129TH JUDICIAL

JUDICIAL DISTRICT

DISTRICT

OFNONSUIT

NOTICEOF

NOTICE OFTAN

NONSUIT OF AMCMILLON,

TANA MCMILLON, LINDA LAVINSON,

LINDALAVINSON,

DR. REBECCA C LEARMAN AND DR.CHRIS MERKL

DR. REBECCA CLEARMAN AND DR. CHRIS MERKL

Silverado Appx. 0184

No. 1-15-586-CV 3211

COME,

NOW PETERSON,

GLEN

MACKEY LONNY and

PETERSON,

NOW COME, MACKEY GLEN PETERSON, LONNY PETERSON, and

DON LESLIE

DON PETERSON, Individuallyand

LESLIEPETERSON, as Next

andas Friendsof

Next Friends RUBY

of RUBY

PETERSON ("Plaintiffs"),

PETERSON and file this

("Plaintiffs"),and Notice

this Notice ofNonsuit

of ofTana

Nonsuit of McMill0n,

Tana McMillon,

Lavinson,

Linda Clearman

Dr.Rebecca and Merkl,

Dr.Chris would

andinsupport

Linda Lavinson, Dr. Rebecca Clearman and Dr. Chris Merkl, and in support would

show asfollows:

theCourt

show the Court as follows:

Plaintiffs give

hereby thatthey

notice have tononsuit

decided claims

their

Plaintiffs hereby give notice that they have decided to nonsuit their claims

against

against theindividual

the Defendants

individual Defendants Tana McMill0n,

TanaMcMillon, Linda

Linda Lavinson,

Lavinson, Dr.Rebecca

Dr. Rebecca

Clearman

Clearman andDr.

and Chris

Dr.Chris Merkl.PRAYER

Merkl.

PRAYER

WHEREFORE, Plaintiffs

WHEREFORE, request tthe

Plaintiffs request heCourt o takenotice

Court tto take notice ofthenonsuit of

of the nonsuit of

the individual

the Defendants

individual Defendants Tana

Tana M cMill0n,

McMillon, Linda Lavinson,

Linda Lavinson, Dr.R

Dr. ebecca

Rebecca Clearman

Clearman

and Dr.

and ChrisMerkl.Plaintiffs

Dr.Chris respectfully

Merkl. Plaintiffs respectfully equestthat

rrequest that this Courtgrant

this Court all

grantall

requested reliefand

requested relief andallother andfurther

all other and reliefto

further relief whichthey

towhich theymay bejustlyentitled

maybe justly entitled

at lawor

atlaw inequity.Respectfully

orin equity.

submitted

Respectfully submitted

Philip

Philip M.Ross

M. Ross

1006

1006 H olbrook

Holbrook Road

Road

SanAntonio,

San TX 78218

Antonio, TX 78218

Phone: 210/326-2100

Email: ross_law@h0tmail.com

Email: ross_law@hotmail.com

By: /s//s/Philip M.

By: M.Ross

Ross

Silverado Appx. 0185

No. 1-15-586-CV 3212

PhilipM.Ross

Philip M. Ross

StateBar

State N0.17304200

BarNo. 17304200

ATTORNEY FOR

ATTORNEY MACKGLEN

FOR MACK GLEN

PETERSON, LONNY PETERSON,

AND

AND DON

DON LESLIE PETERSON

LESLIE PETERSON

THESCHWAGER

THE SCHWAGER LAW LAWFIRM

FIRM

/s/Candice

/s/Candice L.Schwager

L. Schwager

CandiceL.

Candice L.Schwager

Schwager

1417Ramada

1417 Ramada Dr.

Dr.

Houston,

Houston, Texas

Texas 77062

77062

Tel:(832)315-8489

Tel: (832) 315-8489

Fax:(713)

Fax: 583-0355

(713) 583-0355

schwagerlawfirm@live.com

ATTORNEY

ATTORNEY FOR MACKGLEN

FOR MACK GLEN

PETERSON, L ONNYPETERSON,

PETERSON, LONNY PETERSON,

AND

AND DON LESLIE PETERSON

DONLESLIE PETERSON

CERTIFICATE

CERTIFICATE OFSERVICE

OF SERVICE

II hereby thatthisdocument

herebycertify that wase—filed

this document was andserved

e-filed and served on allcounsel

on all of

counsel of

recordon

record the6thdayofSeptember,

onthe 2014./s/

6th day of September, 2014.

M.Ross

Is/ Philip M. Ross

PhilipM.Ross

Philip M. Ross

Silverado Appx. 0186

No. 1-15-586-CV 3213

TAB 35

FILED

10/6/2014 8:51:06 PM

Stan Stanart

County Clerk

DATA-ENTRY

UPTHIS DATE Harris County

PICK UP THIS DATE

PROBATE

COURT

PROBATE COURT 1

NO.427,208

NO. 427,208

IN RE: GUARDIANSHIP

RE:GUARDIANSHIP OF

OF §§ THE

INTHE

IN PROBATE

PROBATE COURT

COURT

RUBY

RUBY PETERSON,

PETERSON, §§ NUMBER

NUMBER ONE

ONE

PROPOSED WARD

PROPOSED WARD § HARRIS

HARRIS COUNTY,

COUNTY, TEXAS

TEXAS

CAUSE

CAUSE NO.2014-40980

NO. 2014-40980

MACKEY

MACKEY("MACK")

("MACK")GGLEN

LENPETERSON, § § ININTHEDISTRICT

PETERSON, COURT

THE DISTRICT COURT

PETERSON, NextFriend

PETERSON, Individually, Next Friend §§

ofRUBYPETERSON,

of DONLESLIE

RUBY PETERSON, DON LESLIE §

PETERSON, andas

PETERSON, Individually and Next

asNext §§

Friend, ofRUBY

Friend, of PETERSON,

RUBY PETERSON, and

and §§

LONNY

LONNY PETERSON, Individuallyand

PETERSON, Individually and §§

Next Friendof

NextFriend ofRUBY S.PETERSON,

RUBY S. PETERSON, §§§

Plaintiffs,

Plaintiffs, §

V. § HARRIS

§ HARRIS COUNTY,

COUNTY, TEXAS

TEXAS

§§

CAROL

CAROL ANNEMANLEY,

ANNE §§

DAVID PETERSON,

DAVID SILVERADO

PETERSON, SILVERADO §§

SENIOR

SENIOR LIVING,

LIVING, INC.,d/b/a

INC., Silverado

d/b/aSilverado §§

Senior L iving Sugar

L and,

—Sugar Land,

Senior Living — §

Defendants.

Defendants. §§ 129THJUDICIAL

129TH DISTRICT

JUDICIALDISTRICT

FOURTH

FOURTH AMENDED ORIGINAL

AMENDED ORIGINAL PETITION

PETITION AND

AND

CONTEST TO GUARDIANSHIP A PPLICATION

CONTEST TO GUARDIANSHIP APPLICATION

Silverado Appx. 0187

No. 1-15-586-CV 3214

MACKEY ("MACK")

MACKEY GLEN

("MACK") GLEN PETERSON,

PETERSON, LONNY

LONNY PETERSON

PETERSON

("Lonny"),

("Lonny"), andDONLESLIE "Don"),Individuallyand

PETERSON(("Don"),

and DON LESLIE PETERSON asNext

andas Next

Friends of

Friends PETERSON (("Plaintiffs"),

RUBY PETERSON

of RUBY "Plaintiffs"), Amended O

this Fourth Amended

file thisFourth riginal

Original

Petition

Petition andContest

and Contest to of Defendants,CAROL

complaining ofDefendants,

to Guardianship complaining

ANNE

CAROL ANNE

MANLEY ("Carol"),

MANLEY DAVID PETERSON

("Carol"), DAVID ("David"),and

PETERSON("David"), SILVERADOSENIOR

and SILVERADOSENIOR

LIVING,

LIVING, INC.,d/b/aSilverado SeniorLiving

INC., d/b/a Silverado Senior —SugarLand

Living— ("SILVERADO"),

Sugar Land ("SILVERADO"),

andin support would

and in support show theCourt

would show

follows:

the Court aass follows:

DISCOVERYCONTROL PLAN

DISCOVERY CONTROL PLAN

Discovery inthislawsuit

Discovery to beconducted

in this lawsuit to be conductedunder

Level3 ofRule190.1ofthe

under Level 3 of Rule 190.1 of the

TexasRules ofCivil Procedure. Tex.R.Civ. P.190.1.

JUDGMENT

DECLARATORY

Texas Rules of Civil Procedure. Tex. R. Civ. P. 190.1.

DECLARATORY JUDGMENT

Plaintiffsallegeandwouldprovethatthey

Plaintiffs allege and wouldprove that theymay

be entitledto declaratory

may be entitled to declaratory

judgment as a matter

judgment asa

oflawthatthe 1993DurablePowerofAttomeyappointing

matter of law that the 1993 Durable Power of Attorney appointing

Carol andDavidwas

Carol and David w asrevoked

revokedas

ofNovember 15,2013.Tex.Civ.Prac.&Rem.

as of November 15, 2013. Tex. Civ. Prac. & Rem.

Code37.001-37.005 Additionally

et seq. Additionally andaltematively, Rubyexecuted a new

Code 37.001-37.005 etseq. and alternatively, Ruby executed a new

durable of attorney n November 15,2013appointing her sonsMackand

power of attorney oon

durable power November 15, 2013 appointing her sons Mack and

Don heragents.Plaintiffs seek declaration thatMackandDonareauthorized

as her agents. Plaintiffs seek a

Don as a declaration that Mack and Don are authorized

to Ruby'sagentspursuanttotheNovember 2013powerof attomey.

serve as

to serve as Ruby's agents pursuant to the November 2013 power of attorney.

Silverado Appx. 0188

No. 1-15-586-CV 3215

33 Therefore,Plaintiffssubmitthat

Therefore, submit that they may be

they may entitledto

be entitled to the following

thefollowing

remedies

remedies a vailable

available court when

ttoo a court of trust

when aa breach of hasoccurred:

trusthas (a)compel

occurred: (a) the

compel the

trusteeto

trustee to perform the trustee’s

performthe trustee's dduty or duties;

uty or (b)enjoin

duties; (b) enjointhe

the trustee from

trusteefrom

a breach

committing oftrust;

(c)compel toredress

thetrustee oftrust,

a breach

committing a breach of trust; (c) compel the trustee to redress a breach of trust,

including

including ccompelling

ompelling tthe

he trustee

trustee to pay money or

to paymoney property;(d)

restoreproperty;

or restore orderaa

(d) order

trustee to (e)appoint

account;(e)

to account; receiverto

appoint aa receiver takepossession

totake ofthe

possession of thetrust

trustproperty

property

andadminister

and thetrust;

administer the (f)suspend

trust;(0 thetrustee;

suspend the (g)remove

trustee;(g) thetrustee

removethe trusteeas provided

as provided

underSection113.082; (h)reduce

under Section 113.082; (h) denycompensation

ordeny

reduce or thetrustee;

to the

compensation to (i) void

trustee;(i) voidan

ofthe

actof

act thetrustee;

trustee;and/or (j)impose

and/or(j) lienor

impose aa lien constructive

orconstructive truston

trust trustproperty

ontrust property

according

according to Texas T

theTexas

tothe rustC

Trust ode.Section

Code. 114.008.

Section114.008.

ACTION

CAUSES

CAUSES OF ACTION

FALSE

A FALSE

A IMPRISONMENT

IMPRISONMENT

34.Plaintiffs

34. Plaintiffs allege allfactsstated

allegeall hereinabove

facts stated hereinabove as fullyset

as ifif fully below.Texas

setforth below. Texas

law imprisonment

falseimprisonment

law defines false as

as the unlawfulrestraint

theunlawful of an

restraintof individual’s

anindividual's

personal or freedom

personal liberty or freedom of

of movement against hhis

movement against or herwill.

isor Plaintiffs

her will. Plaintiffs allege

allege

andwould

and provethat

would prove Silverado h

thatSilverado has restrictedR

asrestricted uby’smovement

Ruby's movementto andfromthe

to and from the

premises withoutaa court

premises without order.

courtorder.

68. To

68. date,thereis

Todate, Courtdeclaring

noCourt

there is no Rubyto

declaring Ruby to be incompetent

beincompetent or

or to lack

to lack

capacity.

capacity. Thereisisno

There presumption

nopresumption ofincompetence

of incapacity.

orincapacity.

incompetence or

Silverado Appx. 0189

No. 1-15-586-CV 3225

69 next friends

as next

Plaintiffs, as Ruby,cclaim

friendsooffRuby, all of her rights undertheElderly

laimallofherrights the Elderly

Billof

Bill of Rights Section 102

in Section

Rights found in Resource C

the Human Resource

102 of theHuman Code including:(a)

odeincluding: (a)

An elderly individual

Anelderly individual hasalltherights, benefits,

has all the rights, benefits, responsibilities, and

responsibilities, and privileges

granted by theconstitution

granted by and laws of this

the constitutionandlawsof this state and the United

state andthe United States,

States,eexcept

xcept

wherelawfully Theelderlyindividual

restricted.The

where lawfullyrestricted. has

elderly individual has righttotobe

theright

the befree

free of

interference, andreprisal

coercion, discrimination,and

interference, coercion, in exercisingthese

reprisalinexercising

civilrights.

these civil rights.

C (b) elderly individualhhas

An elderlyindividual

(b) An astheright

the rightto betreatedwithdignityand

tobe treated with dignity andrespect

forthe

respect for the

personal iintegrity

personal ntegrityof

of the individual,without

the individual,

regard to race,

without regardto

religion,national

race, religion, national

origin,

origin, ssex, age, disability,

ex,age, marital tatus,oorr source

disability, maritalsstatus,

of payment.This

source of payment.

Thismeans

that

means that

the elderlyindividual:(1) has the rightto makethe individual's ownchoices

the elderly individual: (1) has the right to make the individual's own choices

regarding individual'spersonalaffairs, care,benefits, and services;(2)hasthe

regarding the

the individual's personal affairs,care, benefits, and services; (2) has the

um.Resource Codes

right

right to

befreefromabuse,neglect,andexploitation. ..Tex.H

to be free from abuse, neglect, and exploitation...Tex. Hum. Resource Code s

102.003. Clearly,thisStatutehasbeenrepeatedly violatedwithrespecttoRuby.

102.003. Clearly, this Statute has been repeatedly violated with respect to Ruby.

70 Plaintiffs, as next

Plaintiffs, as

friendsof Ruby,claimallof her rightsundertheTexas

next friends of Ruby, claim all of her rights under the Texas

Code 19.401,et seq., which

Administrative

Administrative Code 19.401, etseq.,

guaranteesthe elderlywiththei

which guarantees the elderly with the

uninhibitedrightto free andegressoftheirfacilitiesinwhichtheyreside,

uninhibited right to free access

access and egress of their facilities in which they reside,

thatanelderlypatient’s

mandating bynotinterfering

privacyrightsberespected

mandating that an elderly patient's privacy rights be respected by not interfering in

anymanner withtheirreceiptof unopened mail,telephone calls,privatemeeting

any manner with their receipt of unopened mail, telephone calls, private meeting

Silverado Appx. 0190

No. 1-15-586-CV 3226

areas withtheirfamily.

areas with their family. Section 19.401 states thefollowing

19.401 specificallystates the following

guarantees:

a. The resident hastheright

a. Theresident to exercise

has the right to exercisehhis

isrights as aresident

rightsasa residentaatt thefacility

the facilityand

and

as a citizen

asa citizen or resident ofthe

or resident of the United

United States.

States.

b. The

b. The resident

resident hastheright obefree

has the right tto be free ofinterference, coercion,discrimination,

of interference,coercion,discrimination,or

reprisal from

from thefacility

the facility inexercising

in exercisinghisrights.

his rights.

c. In

c. In the case of

the case of a residentaadjudged

a resident djudgediincompetent

ncompetent under the lawsof

underthelaws oftheStateof

the State of

Texasby competentjurisdiction,

of competent

courtof

Texas by aa court jurisdiction,the

therightsof

rights of the

resident re

the resident aare

exercised

exercisedby

by the

appointedunderTexaslaw toact

person appointed under Texas lawto

the person act on

the resident`s

on the resident's

behalf.

d. The facilitymust comply

d. The facility must

complywith all applicableprovisionsof the Human

with all applicable provisions of the Human

ResourcesCode,Title 6, and Chapter102.An individual may ay not be denied

Resources Code, Title 6, and Chapter 102. An individualm not be denied

appropriate

appropriatecareon

thebasisof his race, religion,

care on the basis of his race,

color,nationalorigin, ex,

religion, color, national origin,ssex,

handicap, status, sourceooffpayment.

age, handicap, marital status, oorr source

age, payment.

e. Thefacilitymustallowtheresidentthe to observehisreligiousbeliefs.

e. The facility must allow the resident the right to observe his religious beliefs.

Thefacilitymustrespectthereligious beliefsoftheresidentinaccordance with

The facility must respect the religious beliefs of the resident in accordance with

42UnitedStatesCode§l396f.

42 United States Code §1396f.

71 Section19.401et seq mandates thatallnursinghomefacilitiesunder

71 Section 19.401 et seq further mandates that all nursing home facilities under

of theDepartment

thejurisdiction to ensureprivacywith

ofAgingandDisability

the jurisdiction of the Department of Aging and Disability to ensure privacy with

Silverado Appx. 0191

No. 1-15-586-CV 3227

respect to accommodations, medical

respect to access, visitation,

care, access,

medical treatment, personalcare, visitation,

andotherpotentially

and other potentially iinvasive,

nvasive,uunwanted

nwantedororintrusive

intrusiveacts orpractices

actsor practicesbby

y the

the

facility. 19.401.

72 Plaintiffs

Plaintiffsaallege

llegeandwould provethatSilverado

and wouldprove that Silveradohhas

asfailed orrefused

failedor refusedto

provide pprivacy

provide rivacyto

to Ruby

Ruby andthePlaintiffs

and the Plaintiffs regarding

regardingpphone calls,m

honecalls, ail,oorr personal

mail, personal

: visitation with

visitation with Plaintiffs

Plaintiffs and

andttheir

heir wives.

wives.

73 Plaintiffs

Plaintiffsallegeand

allege and would provethat

wouldprove that Rubyand

Ruby and they havesustained

they have sustained

substantial

substantial damages as a proximate

damages asa resultooffSilverado's

proximate result Silverado'swrongful

wrongful imprisonmentof

Ruby.

74 Plaintiffsfurtherallege

Plaintiffs further allege and wouldprove

and would thatSilverado's

provethat wrongful

Silverado'swrongful

ofRuby

imprisonment of Ruby was

intentional

andmalicious,

suchthatSilverado

should

was intentional and malicious, such that Silverado should

beassessed exemplaryorpunitive

be assessed exemplary or punitiveddamages.

amages.

ASSAULTAND BATTERY

ASSAULT AND BA11ERY

Plaintiffsallegeandwouldprove thatSilverado

Plaintiffs allege and wouldprove

hascommitted assaultand

that Silverado has committed assault and

batteryof Rubywithrespect tto

battery of Ruby with respecto psychotropicdrugsforced uponheragainst

psychotropic drugs forcedupon

her

her against her

willinfoodandotherwise. Plaintiffs allegeandwouldprove thatSilverado

will in food and otherwise. Plaintiffs allege and would prove

k11ew

that Silverado knew

or shouldhaveknownthatRubyrefusedto takemedications thatshecomplained

or should have known that Ruby refused to take medications that she complained

made hersick.

made her sick.

Silverado Appx. 0192

No. 1-15-586-CV 3228

76 Plaintiffs allege

allege andwould thatSilverado

provethat

and would prove Silverado placed Rubyinreasonable

placedRuby in reasonable

fearof

fear harmfulor

of aa harmful offensive

oroffensive contactand/or

contact forcingor

and/orforcing or tricking herinto

trickingher into taking

drugs, which sherefused

whichshe takevoluntarily,

totake

refused to voluntarily, which wrongful

whichwrongful conduct causedRuby

conductcaused Ruby

to feel

to sick.

feel sick.

tT 77

77 Plaintiffsaallege

Plaintiffs llegeandwould

and would prove thatSilverado

prove that placedthem

Silverado placed themin reasonable

in reasonable

fearofa oroffensive

contact

orarrest authorities,

bylawenforcement

fear of a harmful or offensive contact or arrest by law enforcement authorities,

Silverado

whenSilverado

when wrongfully

wrongfully orderedthem

ordered themto leavethe

toleave premises

thepremises andissued

and criminal

issued criminal

trespass w

trespass arnings.

warnings.

78 Plaintiffs

Plaintiffs allegeand wouldprove

allege and would that Ruby

prove that Rubyand theyhave

and they sustained

havesustained

substantial

substantial damages

damages a proximate

ass aa proximate resultof

result Silverado's

of Silverado's wrongful

wrongful assaultand/or

assault and/or

battery.79

battery.

79 Plaintiffs ffurther

Plaintiffs urtherallege

allegeand wouldprove

andwould thatSilverado's

provethat wrongful

Silverado's wrongful assault

assault

andbattery

and intentional

wasintentional

battery was andmalicious,

and suchthatSilverado

malicious, such that Silverado should beassessed

shouldbe assessed

exemplary

exemplary punitivedamages.

orpunitive

or damages.

C BREACH

BREACH OFTRUST

OF andBREACH

TRUST and OFFIDUCIARY

BREACH OF DUTY

FIDUCIARY DUTY

80 Plaintiffs c

Plaintiffs laimdamages

claim jointly and severally a

damages jointlyandseverally against DavidandCarol

gainstDavid for

and Carol for

fraud,breachof

fraud, fiduciaryduty,and/orbreachof

breach of fiduciary withrespect

trustwith

duty, and/or breach of trust respectto their

to their

obligations

fiduciary obligations toRuby

to andthemselves.

Rubyand themselves.

Silverado Appx. 0193

No. 1-15-586-CV 3229

81 TheEstates

The Estates Code breacheshis

thataa fiduciarybreaches

Code providesthat her dutyby

orherduty

hisor by

neglecting o provide accounting,

neglecting tto records,funds,

accounting,records, funds,aand

ndinformation

informationwhenasked

when askedor

under

under aa duty to provide

duty to provide the same. IItt further includes

the same. includes ffailure

ailureto meetthehighest

to meet the highest

degree

degree of care owed

of care owed to

to any humanbeing.Tex.

anyhuman being. Tex. E Code.7751.001

st.Code.

Est. 51.001eett seq.

seq.

82 Carol

Carol aand

ndDavid have duties

David have dutiestto: account,keep

o:account, accuraterrecords,

keepaccurate ecords,andproduce

and produce

the

the same demand bby

upon demand

same upon ythe

the beneficiariesincluding

includingR ubyandthePlaintiffs.

Ruby and the Plaintiffs.

Sec.751.102.

Sec. 751.102. Duty to Timely Inform

Duty to Inform Principal. [TPC§489B(b)] states:""(a)

[TPC §489B(b)]states: (a)The

The

attorney in

attorney in fact

fact or shalltimely

agentshall

or agent timely inform the principal of

inform theprincipal of eachactiontaken

each action taken

underthe of attorney.(b)Failure

power of attorney.

under the power

of anattomey

(b) Failure ofan attorneyin

fact oragentto

in factor

timely

agent to timely

inform, as to

inform, as

third doesnot invalidate

to third parties, does not

actionofthe attorneyinfact

any action of theattomey

invalidateany in factor

agent."Sec. 751.103. of Records.[TPC§489B(c),(f)] states:"(a)

agent." Sec. 751.103. Maintenance of Records. [TPC §489B(c), (f)]states: "(a)

The

The attorney

in fact or agent

attorney in fact or

shallmaintain

agentshall recordsof eachactiontaken or

maintain records of each action takenor

decisionmadeby the attorneyin

decision made by the attomey

fact or agent.

in fact or

(b)Theattorneyin fact oragent

agent. (b) The attorney in factor agent

shallmaintainallrecordsuntildelivered to theprincipal, releasedbytheprincipal,

shall maintain all records until delivered to the principal, released by the principal,

or dischargedby court."Sec.751.104. Accounting. [TPC§489B(d), (e)]states

or discharged by aa court." Sec. 751.104. Accounting. [TPC §489B(d), (e)1 states

"(a)Theprincipalmaydemandan accounting bytheattorneyinfact agent.(b)

"(a) The principal may demand an accounting by the attorney in factor

or agent. (b)

Unlessotherwisedirectedby the accounting

underSubsection

(a)

Unless otherwise directed by the principal, an

an accounting under Subsection (a)

must include:(1)the propertybelongingto theprincipalthathas cometo the

must include: (1) the property belonging to the principal that has come to the

attorneyin fact’sor agent’sknowledge or intothe attorneyin fact’sor agent’s

attorney in fact's or agent's knowledge or into the attorney in fact's or agent's

Silverado Appx. 0194

No. 1-15-586-CV 3230

possession;

possession; (2) each action taken

(2)eachaction ordecision

taken or decision m adebythe

made infact

by the attorney in agent;

or agent;

fact or

(3)aa complete

(3) complete ofreceipts,

accountof

account disbursements,

receipts, disbursements, andother

and other actions ofthe

actionsof attorney

the attorney

infact

in agentthat

oragent

fact or includes

thatincludes thesource

the sourceandnature

and natureofeach

of receipt,

each receipt, disbursement,

disbursement,

action,with

or action,

or withreceipts

receipts of andincome

ofprincipal and income shown separately;

shownseparately; (4) listingof

(4) aa listing of

all property

all propertyover whichthe

overwhich in fact

attorneyin

the attorney factor

oragent hasexercised

agenthas exercised control that

controlthat

N includes:

includes: (A)

(A) an adequate

an adequate description ofeach

description asset; and(B)theasset’s

of each asset; current

and (B) the asset's current

value, ifthevalue

value, if isknown

the value is theattorney

tothe

known to attorney infact

in oragent.

fact or (5)thecashbalance

agent.(5) on

the cash balance on

handandthe andlocation

nameand

hand and the name location of thedepository

of the whichthe

at which

depository at thecash

cash balance is

balanceis

kept;(6)eachknown

kept; (6) each known liability; and(7)

liability;and otherinformation

anyother

(7) any andfactsknown

information and to

facts known to

the attorneyin

the attorney factor

in fact agentas

oragent asnecessary

necessary for fulland

foraa full and definite understanding

definiteunderstanding of

the condition

exactcondition

the exact ofthe

of property

the property belonging

belonging tothe

to principal.

theprincipal. (c)Unless

Unless directed

otherwise

otherwise bbyythe principal,the

the principal, attorneyiinn fact

the attorney fact or

or agent shallalsoprovide

agentshall also provide tto the

o the

alldocumentation

principal all regarding

documentation regarding theprincipal’s

the principal's property.

83 TheTexas DurablePower of AttorneyAct,TexasEstatesCode751.001

Powerof

83 The Texas Durable Attorney Act, Texas Estates Code 751.001

governsDurable

governs Powers of

Durable Powers Attorney.In

of Attorney. 1993,Ruby

In 1993, executedthis

Ruby executed Powerof

this Power

Aattomey,

Aattorney, declaring iit

declaring t to

to be "unlimited

be "unlimited in nature.

in Basedupon

nature.Based completetrust."

uponcomplete trust."

1993Durable

1993 DurablePower

Power ofAttorney.

of Attorney.

84 Plaintiffs

Plaintiffs allegeand

allege andwould thatCarol

provethat

would prove andDavid

Carol and

theirduties

breached

David breached their duties

of disclosure,

of disclosure, accounting

accounting anddisbursement.

and Sec.751.105.

disbursement. Sec.

Failure

751.105. Effect of Failure to

18 18

Silverado Appx. 0195

No. 1-15-586-CV 3231

Suit.[TPC§489B(g)]

Comply; Suit. states: ""If

[TPC §489B(g)] states: If the

the attorney in fact

attorney in fact or failsor

agentfails

or agent or

refuses to

to inform theprincipal,

informthe principal, provide documentation,

providedocumentation, deliveran

or deliver

or accounting

anaccounting

under 751.104 w

Section751.104

underSection ithin60daysof

within demandunder

60 days of aa demand thatsection,

underthat longer

oraa longer

section, or

or periodas

or shorter period demanded

asdemanded bytheprincipal

by or ordered

the principal or byaa court,

orderedby theprincipal

court,the principal

may suitto:

may file suit to:

Compel tthe

(1)Compel

(1) attorneyin

he attorney factor

in fact agentto

or agent to deliver theaccounting

deliverthe the

or the

accounting or

assets; or

assets;

(2)Terminate

(2) Terminate the ofattorney.

powerof

the power attorney.

85 Plaintiffs

Plaintiffs allegeand wouldprove

allege and would prove that Rubyand

that Ruby theyhave

and they sustained

havesustained

substantial

substantial damages

damages aas proximate

s aa proximate rresult

esultof CarolandDavid's

of Carol and David's breach of trust

breachof trust

and/orbreach

and/or offiduciary

breachof duty.

fiduciary duty.

86 Plaintiffs

Plaintiffs allege andwould

allege and thatCarol

provethat

would prove Carol and David's ffailure

andDavid's ailureor refusalto

orrefusal to

providewrittenannual accountingooff the

provide written annual accounting the Peterson Trustis

PetersonTrust intentional

is intentional and

and

malicious, suchthatthey

malicious, such shouldbeassessed

that they should exemplary

be assessed exemplary punitivedamages.

orpunitive

or damages.

87 Ruby

87 Rubyrevokedthe 1993Powerof

revoked the 1993 Attorney

Power of Attorney November

onNovember

on 15,2013.

15, 2013.

Silverado

Silverado hhad

adnotice ofthe

notice of newpowers

the new ofattorney

powers of appointing

attorneyappointing MackandDon as

Mack and Don as

Ruby's

Ruby's a gentson

agents November 15,2013.Silverado

on November hadaaduty

15, 2013. Silverado had

acknowledge

dutytotoacknowledge and

and

honor Ruby'snew

honor Ruby's newpowers ofattorney.

powers of attorney.19

Silverado Appx. 0196

No. 1-15-586-CV 3232

88 Plaintiffs allegeand wouldprove

allege and would that Ruby

provethat Rubyand theyhave

and they sustained

havesustained

substantial

damages

asa oftrustand/or

breach

ofSilverado`s

substantial damages as a proximate result of Silverado's breach of trust and/or

breach offiduciary duty

breach of dutyregarding Ruby'snew

regarding Ruby's newpowers ofattorney.

powers of attorney.Additionally,

Additionally,

intentionally

Silverado intentionally and maliciously failed

andmaliciously failed or refusedto

or refused honorandrecognize

to honor and recognize

Ruby's

Ruby's rrevocation

evocation ooffherprevious

her previous p of attorney

owerof

power andherappointment

attomeyand ofDon

her appointment of Don

andMack

and heragents,

asher

Mack as suchthat

agents,such Silverado

that Silverado shouldbe

should assessed

beassessed exemplary

exemplary or

punitive damages.

E CONSPIRACY

89 Plaintiffs

Plaintiffs claimdamages againstthe

claim damages against Defendants jointly

theDefendants andseverally

jointly and based

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