The opinion
ACCEPTED
01-15-00567-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/14/2015 12:29:57 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00567-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE FIRST DISTRICT
HOUSTON, TEXAS
HOUSTON, TEXAS 12/14/2015 12:29:57 PM
CHRISTOPHER A. PRINE
Clerk
MACKEY GLEN PETERSON, TONYA PETERSON, DON LESLIE
PETERSON AND LONNY PETERSON, APPELLANTS
v.
SILVERADO SENIOR LIVING, INC., D/B/A SILVERADO SENIOR
LIVING SUGAR LAND, APPELLEE
Appendix Tab 49 Part 1
P. Alan Sanders
Tx. State Bar No: 17602100
Joshua Davis
Tx. State Bar No. 24031993
Lewis Brisbois Bisgaard & Smith, LLP
Weslayan Tower, Suite 1400
24 Greenway Plaza
Houston, Texas, 77046
(713) 659-6767
(713) 759-6830 – Fax
Alan.Sanders@LewisBrisbois.com
Josh.Davis@LewisBrisbois.com
TAB 49
Page # 0268 - 0353
FILED
DATA-ENTRY 12/1/2014
1211/2014 5:04:55 PM
UP
PICK UP THIS
THIS DATE
Stan Stanart
County Clerk
CD`) County
HarrisCounty
Harris
COURT
PROBATE 1
PROBATE COURT 1
NO.427,208
CAUSE
CAUSE NO. 427,208
RUBY
RUBY S.S.PETERSON,
PETERSON, Individually, §§ INPROBATE
IN COURT
PROBATE COURT NO.l
NO. 1
MACKEY
MACKEY (“MACK")
("MACK") GLENPETERSON
GLEN PETERS ON§§
PETERSON,
PETERSON, NextFriend
Individually, Next Friend §§
Attomey-in
Attorney-in
PETERSON,
PETERSON,
Fact
Fact for
DON
Attomey-in-
Next
forRUBY
RUBY
DONLESLIE
LESLIEPPETERSON
of RUBY S.PETERSON,
FactofRUBY
Fact S. PETERSON,
ETERSON
Individually, Next Friend, Attorney-in-
LONNY
LONNY §§
§§
§
PETERSON,
PETERSON, Individually
Individually Next Friend §§
andNextFriend
and
OfRUBY
Of RUBY S.SPeterson
.Peterson §
vs.
VS. § OF
CAROL
CAROL ANNE
ANNE MANLEY,
MANLEY, §
DAVID
DAVID PETERSON,
PETERSON, SILVERADO
SILVERADO §
SENIOR
SENIOR LIVING,
LIVING, INC. d/b/aSILVERADO§
INC.d/b/a SILVERADO§
SENIOR
SENIOR LIVING
LIVING —— SUGAR
SUGAR LAND
LAND §§ HARRIS
HARRIS COUNTY,
COUNTY, TEXAS
TEXAS
ATTORNEY
APPLICATION
FOR FEES TO
PURSUANT
ORDER
RULE ON 2014
NOVEMBER
ENTERED
APPLICATION FOR ATTORNEY FEES PURSUANT TO
RULE 91a ORDER ENTERED ON NOVEMBER 10, 2014
Defendant,
Defendant, Silverado SeniorLiving,Inc.
SilveradoSenior d/b/aSilverado
Living, Inc. d/b/a SeniorLivingSugarLand
Silverado Senior Living Sugar Land
thisApplication forAttorney
Attorney Pursuant
FeesPursuant to Rule91aOrder
toRule Entered On
(Silverado) files this Application for Fees 91a Order Entered On
November
November 10,2014
10, consistent
2014 consistent withthe
with Local
the Court's Local Rules andpursuant
Rulesand pursuant Texas
Ruleof
toTexas Rule
to of Civil
Civil
Procedure
9la.7.91a
Procedure 91a.7.
MOTION
91a MOTION
BACKGROUND1
BRIEF
DISMISS:
TODISMISS: BRIEF BACKGROUND
TO
Silverado filedaaRule
Rule9la Motion Dismiss September
25, Plaintiffs’
Silverado filed 91a Motion totoDismiss on
onSeptember 25, 2014.1 Plaintiffs' filed aa
FourthAmended in
6,2014and Response
October
onOctober 6, 2014 and aaResponse in Opposition3 to the pending Rule
Fourth Amended Petition2 on
Rule
tothepending
9la
motion October
27,2014. Silveradotimely its PartialWithdrawal
andReplyto
91a motion onOctober 27,
on 2014. Silverado timely filed its Partial Withdrawal and Reply to
On withthe and byreferenceifsetoutfullyherein.
asif set out fully herein.
On file with the Court and incorporated by reference as
1
2 Id. .
3 Id.
4849-6015-516111
Silverado Appx. 0268
No. 1-15-586-CV 3617
Plaintiffs’
Plaintiffs' Response nNovember
Response oon November6, TheMotion
6, 2014.4 The to Dismiss
Motion to Dismiss w asheard
was on November7,7,
heardon
2014 at which
2014 at which ttime
imetheCourt
the Court granted
granted Silverado’s 91a
Silverado's 91 a Motion
Motion to Dismissand
toDismiss issuedits
andissued onthe
its Orderson the
0
0
forty-fifth day of filing--November
the dateof
day followingthedate 10, 2014.A
Novemberl0,2014. llchallenged
All causesofaction
challengedcauses of action
were dismissed
were with prejudicewhich
dismissed withprejudice whichincluded:
included: ffalse
alseimprisonment, and battery,and
imprisonment, assaultand and
conspiracy.
conspiracy.
Silverado
Silverado nnow movesfor
owmoves award ofall
anaward
for an costsandreasonable
allcosts and reasonableand necessary attorneyfees
andnecessary fees
0 incurred
incurred with
with respect to thechallenged
respect to causesofaction.
the challengedcausesof action.
0 RULE 91a.7
Except in
Except actionbby
an action
in an oragainst
yor governmental
againstaa governmentalentity raapublic
entityoor
actingin
public official actingin
his her official capacity
orher
his or orunder
capacityor coloroofflaw,
undercolor law,the
thecourt
award theprevailing
court must award the prevailing
party on themotion
party on
all costsaand
the motion all costs reasonableand
ndreasonable necessaryattomey
andnecessary
feesincurred
attorney fees incurred
with
with respect to thechallenged
respectto the challengedcause
ofactioninthetrial court.TThe
cause of action in the trialcourt.
he courtmust
must
considerevidence
consider evidenceregarding
regardingcosts
indetermining award.
costs and fees in determining award.
issued
added). he firstandonlyopinion interpreting 91a.7 was issued
TEX. P. 91a.7 (emphasis added).TThe
R. Crv.P.91a.7(emphasis
TEX.R. and only opinion interpreting 91a.7was
November20,2014. Chase 2014No.02-13-00340-CV, 2014Tex.App.Lexis
November 20, 2014. Drake v.
v. Chase Bank, 2014 No. 02-13-00340-CV, 2014 Tex. App. Lexis
12572(Tex.App.— Worth Nov.20,2014,nopet. Drake involveda pro seplaintiff
Drake involvedaprose
who
plaintiff who
12572 (Tex. App. — Fort Worth Nov. 20, 2014, no pet. h.).
broughtclaimsagainst ChaseBankforirreparable harmto hiscreditandintentional infliction of
brought claims against Chase Bank for irreparable harm to his credit and intentional infliction of
emotionaldistress. Thetrial granted defendant’s 91aMotion toDismiss andawarded it
emotional distress. Id. The trial court granted defendant's 91a Motion to Dismiss and awarded it
$2,480 incostsandfees. at*1.Plaintiff amotion toreconsider which wasdenied andthe
$2,480 in costs and fees. Id. at *1. Plaintiff filed a motion to reconsider which was denied and the
awarded defendant itsfeesrelated tothatmotion
court awarded defendant its fees related to that motionas
wellintheamount of
as well in the amount of $1,545. Id.
4 Id.
5 Id
168.1
4849-6015-5168.1
Silverado Appx. 0269
No. 1-15-586-CV 3618
Applyingaa de the Drake Court
of review, the
novo standard ofreview,
de novo Court foundthat"...an awardof
that "...anaward of
0 attorneys' fees
attorneys’ to theprevailing
fees to the prevailingparty on aa rule91amotion
partyon rule 91a motion to dismissiiss mandatory,not
to dismiss not
0
discretionary." Id. at *5.Notably,
Id. at thetrial
*5. Notably, the trial c ourthhad
court granted plaintiff
adgranted plaintiffindigent statusdduring
indigentstatus uringthe
the
proceedings.
proceedings. Id at *4.
Id. at the Drake Court
*4. Nevertheless, theDrake oundthat"therule
Courtffound that "the rulesays nothingaabout
saysnothing bout
exempting indigent
exempting indigentparties
parties frompayingaattorneys'
frompaying ttorneys’ fees
feestto partywho
oaaparty prevails underrule
whoprevails rule91a."IdId.
91a."
at citing ((In re
at *5 citing re Christus
Hosp.
Spohn Hosp. Kleberg, 222S.W.3d
Christus Spohn 434, 437 (Tex.2007)
222 S.W.3d434,437(Tex. 2007 )(orig.
(orig.
0 proceeding) (stating
proceeding) (stating tthat
hatcourts pplythe
courts aapply samerules
the same of constructionthat
rulesofconstruction thatgovern the interpretationof
governtheinterpretation of
0 statutes when construing
statutes when construing rules (CityofRockwell
rules ooff procedure));(City of Rockwellv. 246 S.W.3d6621,
v. Hughes,246S.W.3d 21,6625
25
(Tex. 2008) (stating
(Tex. 2008) (stating that
that ccourts
ourtscconstrue
onstrue statutesaccording
statutes accordingto theirpplain
totheir lainand commonmeaning))).
andcommon meaning))).
motion well the motion
The then affirmed the
The court then the trial
trial courts awardof
courts awardofffees
ees astto
as the9la
othe as the motionto
as wellas
91a motionas to
reconsider and
reconsider and pointed hatddefendant
out tthat
pointed out efendant incurred the
additionalfeesinconnection withitsRule91a
the additional fees in connection with its Rule 91a
challenge
challenge and
and the causes ofaction
the causes ubjectto
of action ssubject
the same. Idatat*6.
to thesame.
theDrakeCourtcited
*6. Specifically, the Drake Court cited
Rule91a.7whichmandates n "awardof
Rule 91a.7 which mandatesaan
all costsandreasonable
"award of all costs and reasonable andnecessary ttorneyfees
and necessaryaattorney fees
incurred withrespectto thechallenged
to the cause ooffaction."
Id (emphasis inoriginal). Although itisthe
incurred withrespect challenged cause action." Id. (emphasis in original). Although it is the
first
first case
interpreting awardofattorneys’ pursuantto
an award of attorneys' feespursuant
case interpretingan
Rule itisconsistent withthe
to Rule 91a, it is consistent with the
precedentofstrictconstruction regarding thisstatute.See((Wooley
precedent of strict construction regarding this statute. See ((Wooleyv.
No.l4-l3-00385-
v. Schaffer, No. 14-13-00385-
CV,2014 pp.L
Tex.App.
CV, 2014 Tex. A
EXIS8983(Tex.App.Houston [14th Aug.14,2014))(Daileyv.
LEXIS 8983 (Tex. App. Houston [14th Dist.] Aug. 14, 2014)) (Dailey v.
Thorpe,No.01-13-00492-CV, 2014Tex.App.LEXIS 9630at*10(Tex.App.Houston [lstDist.]
Thorpe, No. 01-13-00492-CV, 2014 Tex. App. LEXIS 9630 at *10 (Tex. App. Houston [1st Dist.]
Aug.28,2014))(GoDaddy.com, LLC HollieToups,429
Aug. 28, 2014)) (GoDaddy.com, LLC v. Hollie Toups,
S.W.3d 752(Tex.App.—Beaumont,
429 S.W.3d 752 (Tex. App. — Beaumont,
2014,pet.denied)) (Lopez-Welchv. Farm 3:14-CV-2416-L, 2014U.S.Dist.LEXIS
2014, pet. denied)) (Lopez-Welch v. State Farm Lloyds, 3: l 4-CV-2416-L, 2014 U.S. Dist. LEXIS
154741(N.D.Tex.Oct.31,2014))(Plascencia Farm No.4:14-CV-524-A, 2014
154741 (N.D. Tex. Oct. 31, 2014)) (Plascenciavv.. State Farm Lloyds, No. 4:14-CV-524-A, 2014
U.S.Dist.LEXIS135081(N.D.Tex.Sept.25,2014))((Oldham
Oldham v.v.Nationwide Co.ofAm.,3:14-
U.S. Dist. LEXIS 135081 (N.D. Tex. Sept. 25, 2014)) Nationwide Ins. Co. of Am., 3:14-
CV-575-B,2014U.S. LEXIS107044; 2014WL3855238(N.D.Tex.Aug.5,2014))).l
4849-6015-51
CV-575-B, 2014 U.S. Dist. LEXIS 107044; 2014 WL 3855238 (N.D. Tex. Aug. 5, 2014))).
4849.6015-5168.1
Silverado Appx. 0270
No. 1-15-586-CV 3619
WhileRule
While Rule91a.7
9la.7issilent theevidence
tothe
asto
is silent as evidence and
and procedure required prior imposition of
prior ttooimposition of
C fees,tthe
fees, hetrial court in Drake chose
courtin choseto conduct
to conduct hearing
aa hearing thanaccepting
rather than evidence
accepting evidence by
by
C
submission.
submission. 2014
2014 Tex.
Tex. App.
App. Lexis
Lexis 12572
12572 *7.Itdid
atat*7. require
notrequire
It did not Chase
Chase Bank
Bank submit
tosubmit
to itsitemized
its itemized
invoices
invoices and/or
and/or cconduct
onduct aa Lodestar lieu thereof, ititaccepted
Inlieu
Lodestar analysis. In accepted andlive
anaffidavit and
an live
testimony establishing
testimony establishing "thehours
"the devoted
hours devoted thematter,
tothe
to whoperformed
matter,who performed thework,
the work, tthe rate charged,
herate charged,
whatwork
what wasperformed,
work was andthatthefees
performed, and were reasonable and
that the fees were and necessary.
necessary. Id. The Court a
TheCourt pplied
applied
factors
theArthur
the Arthur Anderson reasonableness applied
reasonableness factors applied when contingent
whencontingent feeagreements
fee agreements atissue.
areat
are issue. Id
N
0
N
The foundthat
the trial
the did
court abuse
not related
toitsfee
itsdiscretion award.
The Drake Court found the that the trial court did not abuse its discretion related to its fee award. Id.
- SILVERADO’S APPLICATION FORATTORNEY
ATTORNEYFEES
SILVERADO'S APPLICATION FOR FEES
Consistent
Consistent withthe
with theCourt’s Local
Court's Local Rules,
Rules, Silverado
Silverado thisApplication
files this forAttorney
Application for Fees
Attorney Fees
andpresents
and presentsevidence
evidence supporting
supporting the
the reasonable and
and necessary fees incurred with
necessary feesincurred with respect
respect to the
to the
challenged ofaction
causesof
challenged causes action pursuant tothe lodestar
pursuantto TEX.R.CIV.
lodestarmethod.6 TEX. P.9la.7;Drake,
R. Qv. P. 2014
91a.7; Drake, 2014
Tex.
Tex. A
App. Lexis12572
pp.Lexis (Tex.App.
12572 (Tex. App.-FortWorth Nov.20,
- Fort Worth Nov. 20,2014, pet. h.);
nopet.
2014, no h.); Long
Long v. No.11-
v. Griffin, No. 11-
1021,2014 Tex.
1021, Tex.LEXIS 304(Tex.
LEXIS 304 April25,2014)
(Tex. April (percuriam).
25, 2014) (per curiam).
A. LODESTAR
A.LODESTAR METHOD
METHOD
A
A request forattorney fees
request for
employs
feesemploys thelodestar
the method
lodestar method whenititrelates
when relates hours worked
hoursworked for
for
eachattorney
each attomey multiplied
multiplied bytheir
by ratesffor
hourlyrates
their hourly oraa total fee.Griffin, 2014
total fee. 2014Tex. LEXIS
Tex.LEXIS 3304
04(Tex.
(Tex.
April
April 25, 2014)atat*6.
25, 2014) *6.Tosatisfy lodestar, evidence
To satisfy lodestar, "sufficient evidence includes,
includes, at evidence ‘of
ata minimum, evidence 'of
theservices performed,
the services performed, whoperformed
who performedthemand
them atwhat
andat hourly
what hourly ate,w
rrate, henthey
when werepperformed,
they were erformed,
andhow
and how much
much ttime
imethework
the workrrequired.'"
equired."’citing (ElA
Id. citing (El pple
Apple I, Ltd. v. Olivias,
v.Olivias, 370S.W.3d
370 S.W.3d757, 7
757, 63
763
(Tex.2012)).
(Tex. 2012)).Total
Totalnumber of
ofhours workedand
hours worked andgeneralities willnot
generalities will at*6-7.However,
notsuffice. Id. at *6-7. However,
6 OnNovember
On November 19,19,2014,Ms.CresMachicek Guardianship
2014, Ms. Cres Machicek - Guardianship Coordinator
Coordinator —- advisedcounsel
- advised counsel
regarding
regarding theCourt’s procedural
the Court's procedural requirements
requirements related o the
related tto manner
the manner inwhich
in theCourt
which the would
Court would
conduct the91a.7
conduct the evidentiary
91a,7 evidentiary proceeding.
proceeding.
4849-6015-5168.1
4849-6015-5168.1
Silverado Appx. 0271
No. 1-15-586-CV 3620
affidavit
anaffidavit
an thatgenerally
that generally describes the services performed,
describes theservices whocompleted
performed, who same and
completed same and at what
at what
hourly
hourly ratethat
rate accompanied
areaccompanied
that are by evidence
byevidence inform
toinform
to thetrial
the trial court ofthetime
of the time spent on Specific
spent on specific
0
tasks andcorresponding
tasks and correspondingdates
dates should
should constitute
constitute sufficient
sufficient evidence
evidence satisfy
tosatisfy
to thelodestar
the lodestar method.
method. Id.
at
at *7-8.
B. SEGREGATION OF FEES rs
B. IS NoT
NOT REQUIRED PURSUANTTO
TO 91a.7
While thelodestar
While the methodis
lodestar method is analogous, the
the context is distinct
context is distinctinsofar
insofaras feesegregation
as fee segregation
C)
UJ amongst prevailing
amongst prevailing claims inapplicable forthefollowing
claims iissinapplicable reasons. Rule
for the followingreasons. Rule 91a.7 requires
91a.7 requires anaward
an award
N
0 ofall
of all costs andreasonable
costsand reasonable andnecessary attorney
and attorney feesincurred
fees incurredwithrespect
with respecttothechallenged
to the challenged causes
causes
ofaction. Thematter
of action. The matterpending
pending before
before thisCourt
this Court isisnot
notone which aaverdict
oneininwhich hasbeen
verdict has been returned asto
returned as to
somecauses
some causesofaction
of which
action which would
would support
support award
anaward
an offees
of fees and otherstthat
andothers hatwould not.Compare
would not.
2014Tex.
(Griffin, 2014 Tex.LEXIS
LEXIS304
304(Tex. 25,2014))
(Tex. April 25, with(Tex.
2014)) with (Tex.R
R..Civ.
Civ. PP..91a.7).9la.7mandates
91a.7). 91a.7 mandates
recovery
recovery offees
of allchallenged
onall
fees on causes
challenged causes ofaction
of the prevailing
action ttoothe prevailing party. see also
party. Id.; see also Drake,
Drake, 2014
2014
Tex.App.
Tex. Lexis12572
App. Lexis 12572 (Tex. App.— FortWorth
(Tex.App. Nov. 2
Fort Worth Nov. 0,2014,
20, noopet.
2014, n pet. h.).
C. RESPECT DISMISSED
TOTHE
C. SILVERADO'S ATTORNEYS' FEES INCURRED WITH RESPECT TO THE DISMISSED CAUSES OF
ASSAULT
ACTION: FALSE IMPRISONMENT, ASSAULT AND
AND AND
BATTERY, AND CONSPIRACY
Silverado
Silverado learned
first learned ofthis
of litigation
this litigation July18,
onJuly
on 2014tthrough
18,2014 hrough negative publicity
negative publicity published
published
by Plaintiffs
by Plaintiffson internet. TEX. R.
theinternet.
onthe R. Civ. E. 80l(e)(2)(C)-(D).
E. 801(e)(2)(C)-(D). Whileinvestigating,
While Silverado
investigating, Silverado
discovered
discovered Plaintiffs’
Plaintiffs' Original
Original Petition
Petition onJuly
filed on 17,22014
July17, 014ininthe129th Judicial
the 129th Judicial District
District Court
Court of
of
County,
Harris County, Texas whichincluded
Texaswhich included claimsaagainst
claims gainst "Silverado
"Silverado Senior
Senior Living
Living C areFacility"
Care for
Facility" for
falseimprisonment,
false imprisonment,assault battery,
andbattery,
assault and
and Plaintiffs
and conspiracy.' Plaintiffs filedan
filed Amended
anAmended Petition
Petition and
and
Demand
JuryDemand
Jury July23,2014
onJuly
on againnamed
whichagain
23, 2014 which named "Silverado
"Silverado SeniorLiving
Senior LivingC areFacility"
Care and
Facility" and
On file with theHarris
7 Onfilewith County
the Harris County District
District Clerk incorporated byreference
andincorporated
Clerkand asififset
by reference as setout fully
out fully
herein.
herein.
4849-6015-5168.1Q
4849-6015-5168A
Silverado Appx. 0272
No. 1-15-586-CV 3621
included for false imprisomnent,
included claims forfalse imprisonment, assaultandbattery, and conspiracy.8OnJuly
and battery,and On July25,2014,
25, 2014,
Plaintiffs’ Second
Plaintiffs' Second Original
Amended Original Petition was filed
Petition was filedwith
withthe sameaallegations
thesame llegations againstSilverado
against Silverado
0 although
although itremained
it remained improperly
improperly named
named aand
ndhad eenserved.9 Silverado
notbbeen
hadnot Silveradochose owaive
chosetto waivesservice
ervice
and
and enter
enter aannappearance onJuly
appearance on July28,
28,22014 in lightoof
014inlight fPlaintiffs’ requestforextraordinary
Plaintiffs'request for extraordinaryrelief
reliefinthe
in the
formof an application
form of an application ffor
ortemporary
temporary rrestraining
estraining oorder,
rder,ttemporary
emporary iinjunction
njunction aand
ndthe
theemergency
emergency
hearing
hearing related to the
related to same which
the same which Plaintiffs etforJuly28,2014.
Plaintiffs sset for July 28, 2014.
C Amidst the hundredsof
Amidstthehundreds pages of
of pages of pleadings,
pleadings,Plaintiffs
Plaintiffsclaims
claimshhave
aveatatalltimesbeen
all times been
C inflammatory andcentered on allegations
and centered on allegations thatSilverado,
that Silverado, its
its staff,physicians othersindependently
orothers
physiciansor independently
named
named — someoof
—some fwhich
whichwwere laternnonsuited
erelater onsuited wereddrugging
--were rugging Ruby
RubyPPeterson,
eterson,holding heragainst
holdingher againsther
her
will, and Plaintiffs’ visitationwithout legal Plaintiffs thechallenged
will, and refusing Plaintiffs' visitation without legal authority.t° Plaintiffs pursued the challenged
causesofactionin a mannerwhich the costoofflitigation
which drove thecost
causes of action in amanner
Silverado
up. Silveradowas
litigationup.
forcedtoincur
was forcedto incur
againstboth federaland
defending
expense defending against both aa federal and state
significant expense
lawsuit well
as wellaas
state lawsuit as
mediacampaign
in
saa media campaign in
directviolation oftheCourt’s Protective Order.Thedismissed ofaction comprised Plaintiffs
direct violation of the Court's Protective Order. The dismissed causes
causes of action comprised Plaintiffs
entire
entire case
against Silverado until October 6,2014 with theFourth Amended Petitionwhich includes
case against Silverado until October 6, 2014 with the Fourth Amended Petition which includes
subject
aa new allegationofbreachoffiduciary dutyat Paragraph 88andwillbe toanother 9la
new allegation of breach of fiduciary duty at Paragraph 88 and will be subject to another 91a
Motion toDismiss. SeeExhibit "A,"(Affidavit ofJoshK.Davis).Thechallenged causes ofaction
Motion to Dismiss. See Exhibit "A," (Affidavit of Josh K. Davis). The challenged causes of action
required multi·faceteddefense relatedtothefederal andstatelawsuits aswell stherepeated
required aa multi-faceted defense related to the federal and state lawsuits as wellaas the repeated
violations
ofCourtorders.
violations of Court orders. _
8 Id
9 Id.
See Original Petition, Amended PetitionandJuryDemand, Second Amended Petition
See Plaintiffs'
and
1° Demand, Original Petition, Amended
ThirdAmended Petition andto
andContest
Petition Jury Demand, Second
Guardianship Amended
andPetition
Application,
and Jury Demand,
Amended all
PetitionThird
ofwhich areon with
Amended Petition and and/or
Contest
thisCourt the129th Judicial
to Guardianship and
Application, and Fourth
Amended Petitionbyreference
incorporated all of which areifon file with this
fully Court and/or the 129th Judicial District Court and
herein.
are as setout
are incorporated by reference as if set out fully herein.
4849-6015.5168.1
Silverado Appx. 0273
No. 1-15-586-CV 3622
This iswell-versed
in antics
related
tothis and litigation,
vexatious
This Court is well-versed in Plaintiffs antics related to this vexatious and harassing litigation,
C
but party-opponent
oneparty-opponent
but one admission
admission isworth highlighting
is highlighting to reinforce
to reinforce thattheintent andpurpose
that the intent and purpose
C
behind thefederal
behind the litigation.
federal litigation. OnAugust
On August 3,3,2014,Ms.Schwager
2014, Ms. Schwagerposts
posts aamessage
message Facebook
onFacebook
on to Mr.
to Mr.
Davisopen
Davis open to thepublic:
to the "AsI’ve
public: "As saidfrom
I've said fromday
dayone, thisis
one,this is not aboutyou,
notabout butif
you,but persistin
youpersist
if you in
violating
violating my client’s
my client's rights
rights and Ruby’s,
andRuby's, ititwillbe.
will be. IIkeep wondering
keep wondering whenthe
when thereality ofthefederal
reality of the federal
willset
casewill
case in.Nominal
setin. damages
Nominal damages pledfor
arepled
are Butthe
now.But
for now. pressisiscoming.
the press coming. IIassure
assure that.”TEX.
youthat."
you TEX.
0 R. (e)(2)(C)-(D).
CA R. Civ. E.801
E. 801(e)(2)(C)-(D). Inaddition,
In following
addition, following settlement
settlement withCarol
with Carol Anne Manleyaand
AnneManley ndDavid
David
Cd
C) Peterson,
Plaintiffs
now seek fees
torecover from
andexpenses ofRuby
theestate for
Peterson
Peterson, Plaintiffs now seek to recover fees and expenses from the estate of Ruby Peterson for
Cd
- bringing thislawsuit
bringing this wellas
lawsuit "as well asininanother case filedin
casefiled c0urt”in
in federal court" theamount
in the of
amountof
Thestrategy
$187,056.73.1 I The strategyininbringing thefederal
bringing the lawsuit
federal lawsuit appears
appears tohave
to beenintimidation
havebeen intimidation and/or
and/or
berate Silverado
berate Silverado intosettlement.
into settlement. theresult
Nevertheless, the to force
wasto
result was force S ilverado
Silverado to incur
to incur significant
fees
defending
ameritless
lawsuit
inboth
Federal Court.
andState Those andfees
costs arenow
fees defending a meritless lawsuit in both Federal and State Court. Those costs and fees are now
due.The
due.
feesincurred
totalfees
The total defending
incurred defending
against
against thechallenged causes o
the challenged causes offaction ofSunday,
asof
action as
November
November 30, 2014are
30,2014 17,183.40.
are$117,183.40. SeeExhibit
See "A,"(Affidavit of
Exhibit "A," ofJosh K.Davis)
Josh K. attached
Davis) attached hereto
hereto
andincorporated
and incorporated byreference
by reference as if set
as if setout
out fully herein.The
fullyherein. Thefeescontinue
fees continue to accrueaand
to accrue ndwillbe
will be
supplemented
supplemented at thetime
at of the hearing w
the time ofthehearing ithadditional
with additional fee and oralttestimony.
statementsandoral
fee statements estimony. Itis
It is
withinthe
within theCourt’s sound
Court's sound discretion
discretion determine
todetermine
to thelegal
the sufficiency
legal sufficiency oftheevidence
of presented
the evidence presented
regarding
regarding theamount
the amountoffees
of which
fees which arereasonable
are reasonable and necessary. Ridge
and necessary. Ridge Oil C0.v.v.Guinn Invs.,
OilCo. Invs., Inc.
Inc.,,
148S.W.3d. 143
148 (Tex.2004)
143(Tex. (court-ordered
2004)(court-ordered ofattorneys’
award of feesisisreviewed
attorneys' fees under
reviewed under theabuse
the abuse o
off
discretion
discretion standard).
standard). The
The Drake Courtreinforces
Drake Court reinforces that
that R ule91a.7
Rule 91a.7 rrequires
equires an "award ofall
an of all costs and
costs and
SeeSecond
11 See Supplement
Second Supplement to Application
to Application for Payment ofAttorney’s
forPayment Feesand
of Attorney's Fees andExpenses,
Expenses, Expert
Witness Feesand
Witness Fees andExpenses,
Expenses, andCosts
and CostsofCourt
of onfile with
Court on the Court and
with theCourt and incorporated byreference
incorporated by reference
asififset
as setout fullyhherein.
outfully erein.
4849-6015-5168A
Silverado Appx. 0274
No. 1-15-586-CV 3623
reasonable
reasonable and attorneyfees
necessary attorney
and necessary tothechallenged
fees incurred with respectto causeoof
the challengedcause faction.”
action."2014
2014
Tex.
Tex. A pp.L
App. exis112572
Lexis 2572 aatt*6.
*6.T
The costsooffdefending
hecosts defendingthefederal
the federallawsuit were incurredwith
lawsuitwere withrespect
respect
demonstratedHowever,
to the challenged
to the causesofaction
challengedcauses as demonstratedabove.
of actionas solelyin
above. However,solely inan abundanceof
anabundance of
caution
caution andforthe
and for the benefit of theCourt,
of the Silverado
Court, Silverado identifies
identifiesthefollowing
the followingtotal amountof
totalamount of
$18,830.00 as the
$18,830.00 as amount solely
the amount solely rrelated
elated othefederal
tto mattershould
the federalmatter shouldtheCourt
the Courtfind
findthatdefense
that defenseof
of
thefederal
the federal lawsuit evenininthese
lawsuit -- even extreme
these extreme circumstances
circumstances —was
— notincurred
wasnot incurredwith
withrespect tothe
respectto the
0 challenged causes of
challenged causes of a ction.
action.
a D.
D. SUBSEQUENT MOTIONS&
& COSTS
tN
Silverado
Silverado isentitled
is entitledtto recoveritsreasonable
orecover its reasonableand attorneyfees
necessaryattorney
andnecessary feesand costsinthe
andcosts in the
event Plaintiffs
event Plaintiffs appeal
appeal and/or
and/or engage subsequent
engage in-subsequent motion
motionpractice
practicerelated othechallenged
relatedtto the challengedcauses
causes
ofaction 2014
of action aand
ndCourt’s
Court's findings.Drake,
Drake, 2014Tex.
Tex.A pp.LLexis
App. exis112572
2572 ((Tex.
Tex.App.
App. ——Fort
FortW orthNNov.
Worth ov.
20,
20, 2 014,no
2014, no pet.
h.). Plaintiffs
pet. h.). If Plaintiffs find it to fileaaMotion
necessary to
it necessary MotionttooReconsider
Reconsiderand/or
and/orRescind,
Rescind,
Silverado equests$2,500.00
Silverado rrequests asthereasonable
$2,500.00as the reasonableaand necessaryffees
nd necessary eesfor
for handling theresponsive
responsive
briefingandhearing relatedothe
briefing and hearing related tto same.See
thesame.
Exhibit"A," Affidavitof
See Exhibit"A," of JoshK.Davis.
Ifthe matterisis
K. Davis. If thematter
appealed, Silverado
appealed, Silverado requests
$10,000.00 for and necessaryfeesforhandling
requests $10,000.00 for its, reasonable andnecessary
the
fees for handling the
appellee’s inthecourtofappeals, $7,500.00 ifplaintiff files WritofError rPetition for
appellee's case
case in the court of appeals, $7,500.00 if plaintiff filesaa Writ of Erroroor Petition for
Review withtheSupreme Court ofTexas, and$7,500.00 iftheWritofErrororPetition
Review with the Supreme Court of Texas, and $7,500.00 if the Writ of Erroror
forReview
Petition for Review
requests
isGranted bytheSupreme ofTexas.See Inadditiontoitsfees,
is Granted by the Supreme Court of Texas. See id. In additionto
Silverado its
its fees, Silverado requests its
12572
costs.Drake,2014Tex.App.Lexis (Tex.App.-Fort Nov.20,2014,nopet.
costs. Drake, 2014 Tex. App. Lexis 12572 (Tex. App. — Fort Worth Nov. 20, 2014,no
h.).
pet. h.).
PRAYER
PRAYER
SilveradoSenior Living, Inc.d/b/aSilverado Senior Living SugarLandrequests theCourt
Silverado Senior Living, Inc. d/b/a Silverado Senior Living Sugar Land requests the Court
awardititscostsandreasonable andnecessary attorney feesincurred in anamountnotlessthan
award it its costs and reasonable and necessary attorney fees incurred inan amount not less than
$117,183.40.TEX.
R.CIV.P.91a.7;see 2014Tex.App.Lexis12572(Tex.App.-Fort
$117,183.40. TEX. R. Civ. P. 91a.7; see also, Drake, 2014 Tex. App. Lexis 12572 (Tex. App. —Fort
4849-6015-5168.1
Silverado Appx. 0275
No. 1-15-586-CV 3624
Worth
WorthN ov.220,
Nov. 0,2014).
2014). Silverado further
further requests its feesinthe
requests itsfees eventoof
in theevent faaMotion toReconsider
Motionto Reconsider
and/or
and/or R escindiin
Rescind the amountof$2,500.00,
nthe of $2,500.00,for
for handlingtheappel1ee’s caseinthe
the appellee's case courtoof
in thecourt fappeals
appeals
inthe amount of$
in the amount 10,000,and$7,500
of $10,000, and $7,500 ifplaintiff
if plaintiff filesaaWrit
Writoof
fError rPetition
Erroroor PetitionforReview
for Reviewwiththe
with the
Supreme
Supreme Court
Court ofTexas, and $7,500
of Texas, and $7,500 ifthe
if theWrit
WritofError Petitionfor
orPetition
of Erroror forR is Grantedby
isGranted
eview
Review bytheg
the
N
I- Supreme
Supreme Court
Court of
of Texas.
Respectfullysubmitted,
submitted,
LEWIS BRISBOIS BISGAARD & SMITH,LLP
LEWIS LLP
/S/
/S/ JoshK.Davis
24031993
No.
0 K. Davis
JOSH
JOSHK.DAVIS
K. DAVIS
State Bar No. 24031993
CHRISTIAN
CHRISTIANR.JOHNSON
R. JOHNSON
StateBarNo.
StateBarNo.2 4062345
24062345
Weslayan
WeslayanTTower,
ower,SSuite
uite1400
1400
24Greenway Plaza
24 Greenway Plaza
Houston,Texas77046
Houston, Texas 77046
(713) 659-6767 Telephone
(713) 659-6767 Telephone
(713) 7 59-6830F acsimile
(713) 759-6830 Facsimile
ATTORNEYS FORDEFENDANTS,
ATTORNEYS FOR DEFENDANTS,
SILVERADOS ENIORLIVING,INC.D/B/A
SILVERADO SENIOR LIVING, INC. D/B/A
SILVERADOSENIOR LIVING SUGAR LAND
SILVERADO SENIOR LIVING SUGAR LAND
CERTIFICATEOFSERVICE
CERTIFICATE OF SERVICE
Ihereby thata trueand
certify copyoftheforegoing wasserved
instrument uponall
counselIofrecord
hereby certify that a true and correct copy of the foregoing instrumentreceipt
via facsimile, handdelivery and!or mail,returnwas served upon all
requested
on
this lstDecember, 2014.,
counsel of record via e-file, facsimile, hand delivery and/or certified mail, return receipt requested on
this 1st December, 2014.
Philip Ross
PhilipHolbrook
1006 M. Ross Road
1006 Holbrook Road
SanAntonio,
Texas78218
San Antonio, Texas 78218
Attorney for Plaintiffs
Candice
LSchwager
Candice L Schwager
TheSchwager LawFirm
The Schwager
1417 Ramada Law Firm
Dr.
1417 Ramada
Houston,TexasDr.
77062
Houston, Texas 77062
4849-6015-5168.1
Silverado Appx. 0276
No. 1-15-586-CV 3625
Attorney
Attorney for
for Plaintiffs
SarahPatelPacheco
Sarah Patel Pacheco
Crain,Caton
Crain, Caton& &James,
James, PC
PC
1401 McKinney
1401McKinney Street
Street
1700 Center
1700 Five Houston Center
Houston, 77010
Houston, Texas 77010
Attorneys for CarolManley and
for Carol andDavid Peterson
David Peterson
JillW. Young
Jill W. Young
Maclntyre, McCulloch,
Maclntyre, McCulloch, &Young,
Stanfield & LLP
Young, LLP
2900Weslayan,
2900 Weslayan,Suite150
Suite 150
CJ
Houston,Texas
Houston, Texas77027
77027
0 W.RussJonesE
W. Russ Jones
JonesScherrer
Underwood, Jones Scherrer &Malouf,
& PLLC
Malouf, PLLC
5177Richmond
5177 Richmond Ave, Suite505
Ave, Suite 505
Houston,
Houston, Texas77056
Texas 77056/S/
JoshK.
/S/ Josh K.Davis
Davis
JosH
JOSH K. DAVIS
4849-6015-5168.1
Silverado Appx. 0277
No. 1-15-586-CV 3626
CAUSENO.427,208
CAUSE NO. 427,208
RUBYS.
RUBY S.PETERSON,
PETERSON, Individually, §§ IN PROBATE C
INPROBATE OURTNO.1
COURT NO. 1
MACKEY
MACKEY ("MACK")
("MACK") GLEN
GLENPETERSON
PETERSON §
PETERSON, NextFriend
PETERSON, Individually, Next Friend §§
Attorney—in
Attorney-in Fact forRUBY
Factfor RUBY §
PETERSON,
PETERSON,DONLESLIE
DON LESLIEPETERSON
PETERSON §§
Individually, Next Friend,
Next Friend, Attorney-in- §§
Attorney-in-
FactofRUBY
Fact of RUBYS.PETERSON,
S. PETERSON, LONNY
LONNY §§
PETERSON,
PETERSON, Individually
IndividuallyandNextFriend
and Next Friend §§
OfRUBY
Of RUBY S. S.Peterson
Peterson §
0 VS.
VS. § OF
OF
0 CAROLANNE
CAROL MANLEY,
ANNEMANLEY, §
DAVIDPETERSON,
DAVID PETERSON, SILVERADO
SILVERADO §
SENIORLIVING,
SENIOR LIVING,INC.
INC.d/b/aSILVERADO§
d/b/a SILVERADO§
SENIOR
SENIOR LIVING
LIVING — SUGAR
SUGAR LAND
LAND §§ HARRIS
HARRIS C OUNTY,
COUNTY, TEXAS
TEXAS
AFFIDAVIT
AFFIDAVIT OFJOSH
OF K.DAVIS
JOSH K. DAVIS
STATEOF
STATE OFTEXAS
TEXAS §§
COUNTY
COUNTY OFHARRIS
OF HARRIS
Beforem
Before theundersigned
me,e,the undersigned authority, this day, p
on thisday,
authority, on ersonally
personally appeared Josh
appeared Josh K.Davis
K. Davis aa
person whoispersonally
person who knownto
is personally known tome.
me.After administered
AfterIIadministered oathtotohim,
anoath
an him,upon hisoath,
uponhis hestated:
oath, he stated:
1. "My
1. nameisisJosh
"Myname Davis. IIam
K.Davis.
Josh K. amover theage
over the oftwenty-one
ageof (21)yyears
twenty-one (21) earsaand
ndhave never b
have never een
been
convicted of a felony. I am ofsound m ind,
c apableo fmaking t hisaffidavit,
andfully
convicted of a felony. I am of sound mind, capable of making this affidavit, and fully
competent
competent to testify
to thematters
testify ttoothe mattershereinstated,
herein stated,andIhave knowledge of
personal knowledge
and I have personal of every
every
herein.
made
statement
statement made herein.
2. II ama
2. am a licensed intheStateofTexas,
attorneyin
licensed attorney partner w
a partner
the State of Texas, a with the law firm of Lewis Brisbois
iththelawfirmofLewis Brisbois
Bisgaard
Bisgaard &Smith,
& L.L.P.,
Smith, L.L.P., andhave
and beenemployed
have been employed bySilverado Senior Living,
by Silverado Senior Living, Inc.
Inc. d /b/a
d/b/a
SilveradoSenior
Silverado SeniorLivingSugarLand(Silverado)
Living Sugar Land (Silverado) to to defend inthe
defenditit in theabove-entitled and
above-entitled and
numbered
numbered cause.
cause. This affidavit
Thisaffidavit isprepared
is insupport
prepared in support ofApplication
of Application forAttorneys’ Fees
for Attorneys' Fees
Pursuantto
Pursuant Rule9la
to Rule OrderEntered
91a Order EnteredOnOnNovember
November 10,I0,2014.
2014.
3. As
3. Asaapartner
partner for
for LEWIS BRISBOISBISGAARDBISGAARD && SMITH LLPLLP("LBBS") I amfamiliar
("LBBS")I am with its
familiarwith its
business
business practices.
practices. Asaapart
As ofitsusual
partof regular
andregular
its usual and business, LBBS
business, LBBS k eepsrregular
keeps egular records
records
oflegal
of work performed.
legal work am familiar
performed. II am familiar with
with therecords kept a
the records kept ndmaintained
and intheusual
maintained in the usual and
and
regular
regular c ourseof
course ofbusiness. have personal supervision,
business. II havepersonal supervision, custody,
custody, control
control a ndaccess
and to the
access to the
records ofthis
records of firmas
this firm they pertain
asthey the legal services
pertain ttoothelegal services rendered
rendered herein. I have examined
herein. Ihave examined the
the
records
records keptandmaintained
kept and maintained bythisfirmintheregular course o
by this firm in the regular course offitsbusiness
its business andsuch
and such
records
records reflect
reflect certain
certain ttransactions
ransactions intherendering
in the renderingoflegal
of legalsservices
ervicesinthe matter. IInnthe
in thematter. the
= EXHIBIT
EXHIBIT
4846-9716-7648.1
4846-9716-7648.1
Silverado Appx. 0278
No. 1-15-586-CV 3627
course of
normal course myduties
ofmy dutiesandresponsibilities
and responsibilitiesIreceive,
I receive,review
reviewand
and maintaininvoices
invoicessent
sent
to myclients
tomy clientswhich
whichiinclude
ncludesupportingdocumentation
documentationand/or
and/orrecords
recordsand am acustodian
andama custodianof
of
the
the s ame.
same. Furthermore,
Furthermore, itisin
it is inthe
then ormalcourseof
course
normal mydduties
ofmy uties
and
andrresponsibilities
esponsibilitiestotoreview
review
and
and maintain
maintain pre—bills
pre-bills which contemporaneoustime
recontemporaneous
which aare timerecords
recordsmaintained
maintainedintheregular
in the regular
course ofbusiness
course of business prior obeing
prior tto entttootheclient
being ssent the clientfor paymentand
forpayment amcustodian
andam custodian of thesame.
same.
tothisAffidavit
Attached to asExhibit
this Affidavitas Exhibit 11,,andincorporated
and incorporatedintoit
into itbyreference,
by reference,are trueand
aretrue and
correct copies
correct copies of invoices
of redacted' invoices with ndbilling
cost aand
with supporting cost billingrrecords
ecords(BatesNos.
Nos.SSSL
SL
000001-000076)
000001-000076)which wereincurred
whichwere incurredaand
nd submittedfor paymentrelated
forpayment totheabove
relatedto the above
referenced
referenced m n thedatenoted
atteroon
matter the date notedthereon
thereonas aswell asredacted
wellas redactedpre-bills
pre-bills((Bates
BatesNNos.
os.SSL
SSL
000077-000126)
000077-000126) which reflect attorney feesthathavebeenincurred
which reflect ndwillbe
fees that have been incurredaand will beinvoiced
invoicedinin
mid-December
mid-December perper guidelines.
guidelines.The
Theinvoices
invoiceswith
withsupporting
supportingrecords
recordsasaswell spre-bills
wellaas pre-billsare
are
made a courseooffregularly
made aassacourse conductedbusiness
regularlyconducted businessby personswith
bypersons withknowledge
knowledgeat or nearthe
atornear the
time
time ofmaking
of makingby orfrom
byor from informationtransmitted
transmittedby a personw
byaperson ithknowledge
with knowledgeofthe
of theevent
event
or information
or informationrecorded.
recorded. L BBSmaintains
LBBS maintainsand/or
and/orkkeeps
eepsaacopy
copyoftheinvoices
of the invoiceswith
with
supporting
supporting records
records aand
ndpre-bills
pre-billsiin
ntheregular courseofitsbusiness.,
the regularcourse of its business.
4. am very familiar
4. II amvery familiar w iththe
with natureofthis
the nature caseandtheworkwhich
of thiscase and the work whichhasbeenperformed
has been performedtoto
date.I knowledgeable
amknowledgeable
date. I am with
with thenumber
the number ofhours pentandthe
of hourssspent amountscharged
and theamounts chargedto
tomy
my
clientby
client by LewisBrisbois
Lewis BrisboisBBisgaard
isgaard&&Smith,
Smith,LL.L.P. amfamiliar
.L.P.II am familiarw ithwhatlawyers
with what lawyersof
of
similar
similar expert ability
ability iin the State ofTexas
ntheState of Texasaare recharging
chargingforsimilar servicesrendered
for similarservices renderedinin
connection with thedefense ofsimilar Ihave been
connection with the defense of similar matters. I have been continuouslylicensed
continuously licensedinthe
in the
StateofTexasince22001,
State of Texas ssince 001,andIhave otbeen
I havennot the subjectof
beenthesubject any disciplinaryproceedings
ofany proceedingsor
grievances. Myresumeiisand
grievances. My resume
attached
s attached ttoo thisAffidavit as Exhibit
this Affidavit as 2, is
Exhibit2, is incorporated
incorporatedby
or
by
reference if set out fully
as if setout
reference as fully hereinand
includes additional
and includes additionaldetail
detailregarding
regardingmymyknowledge,
knowledge,
education, background
education, background and
experience.
and experience.
5. Inconnection
5. In connection with
with my
defense ofthiscase,DDefendant
my defense of thiscase,
efendant has
has incurred,to todate,
date,aattorney
ttorney fees
fees
and costs inthe amount of$117,183.40 withregard t o defending against thechallenged
and costs in the amount of $117,183.40 with regard to defending against the challenged
causes ofaction whichwere
causes of action whichw ereddismissed
ismissed onNovember 10,2014and arerecoverable
on November 10, 2014 andare recoverablepursuant
pursuant
to Texas R uleof CivilP rocedure 9la.7. Thechallenged causes o factioncomprised
to Texas Rule of Civil Procedure 91a.7. The challenged causes of action comprised
Plaintiffscomplete lawsuitagainst Defendantforthelifeofthelitigation untilPlaintiffs’
Plaintiffs complete lawsuit against Defendant for the life of the litigation until Plaintiffs'
FourthAmended Petitionwhichappearstto
ohaveadded claimforbreachof duty
Fourth Amended Petition whichappears have addedaa claim for breach of fiduciary duty
against Defendant. AsPlaintiffs failedononsuit thisnewallegation following the
against Defendant. As Plaintiffs failed tto nonsuit thisnew allegation following the hearing
on the9laMotion t o Dismiss, counsel recently inquired
whether or not an additional
on the 91a Motion to Dismiss, counsel recently inquired whether or not an additional 91a
9la
Motion to Dismiss relatedto th_iscauseofaction
Motion to Dismiss related to thiscause
wouldbe necessary.Exhibit
of action would benecessary.
3 tothis
Exhibit 3to this
Affidavit
is
is aatrue
true
and
and
correct
correctcopy
copy
ofemail
of email
correspondence
correspondence
totoopposing
opposing
counsel
counsel reflecting
the whichw asmade aand
ndkept intheregularcourseooffbusiness atthetimenotedon
the inquiry
bywhich was kept in the regularcourse business at the time notedon
the same aperson wmade
ithknowledge andisincorporated byreference if setoutfully
the same by a person with knowledge and is incorporated by referenceas
herein.InlightofPlaintiffs
failureto timelyrespond,anadditional as if set out fully
9la Motionto Dismiss
herein. In light ofFees
willberequired. Plaintiffs
relatedfailure to timelywillbesegregated
respond, an additional 91a Motion to Dismiss
will be required. Fees
to the same will
related to the same be segregated
shouldiitt prove necessary.
However, to thedate ofthisfee hasnotshould
incurred prove
any
necessary.
feesororcosts
However,
solely to thePlaintiffs’
related date of this feeallegation
application, Defendant
against has
Silverado not incurred
forbreach of any fees costs
duty
to
solely related to Plaintiffs' new
at
new allegation against Silverado for breach of fiduciary duty at
Unredacted
records
arebeingsimultaneously
submitted
totheCourtfor review
Unredacted records are being simultaneously submitted to the Court for in camera review
andinspection.
and inspection.
4846-9716-7648.1
4846-9716-7648A
Silverado Appx. 0279
No. 1-15-586-CV 3628
Paragraph 88oftheFourth
88 of the FourthA mended
Amended therefore, segregationoffees
Petition;therefore, of feesrelated tothis
relatedto this
cause o
cause offaction
action iis
snot
not necessary atthistime.
necessary at this time.
6.
6. Such
Such ffees
eesinclude,
include,but notlimited
renot
butaare to,the
limitedto, the investigationinto madebby
allegationsmade
intoallegations y plaintiff,
preparing pleadings
pleadings andmotions
and motionsiin
ndefense
defenseoof Defendant,discovery
fDefendant, discoveryincluding
includingddepositions,
epositions,
communication
communicationwithwithclient and all
clientand other counsel, hhearing
all othercounsel, earingattendance
attendanceaand
nd necessary
necessary
investigation
investigation work,
work,preparationof thismotion
preparationofthis motionaand
ndthe legalresearch
necessarylegal
thenecessary researchrequired
requiredfor
for
itscompletion. Theseactions
its completion. These actionsw reasonableand
erereasonable
were necessaryfortherepresentation
and necessary for the representationofof
Silverado. Pleasesee
Silverado. Please seetherecords
the records aattached
ttachedhhereto
eretoas
asExhibit andincorporated
Exhibit11and incorporatedbyreference
by reference
as if
as set outfully
if setout fullyherein foraadetailed
hereinfor detailedaaccounting
ccounting of the servicesperformed,
ofthe whoperformed
performed,who performed
them, atwhat
them, at whathhourly
ourly ate,w
rrate, hentthey
when werepperformed,
heywere erformed,and howmuch
andhow timethework
muchtime the workrequired
required
to complete.
to complete.
0
7. The
7. requestedfor
amountrequested
The amount forall andreasonable
costsand
allcosts reasonableand necessaryfees
andnecessary feesincurred
incurredwith
withrespect
respect
to thechallenged
to causesofaction
the challenged causes of action reflectsthenumber
the numberofhours pent(330.6
of hourssspent (330.6hhours
oursooffpartner
partner
0 time;
time; 3343.1
43.1 hours
hours ofassociate
of associate ttime
imeand23.6hours
and 23.6 hours oflawclerk
of law clerktime) tthe
time)aat amountcharged
theamount charged
by
by anan hour ateof$190
hour rrate hourffor
perhour
of $190per orpartners,
partners, $175per hourforassociates
perhour and$65
for associatesand perhour
$65per hour
forLaw
for Law Clerks.2 In my opinion,
In my all of thetime
opinion, allofthe spentand
timespent
incurred
expenses incurredwere
andexpenses
reasonable
were reasonable
and
and necessary.
necessary.
8. Plaintiffs
8. Plaintiffs chose
chosetto pursueaafederal
opursue lawsuit infurtherance ofthependingstatecourt
federal lawsuit in furtherance of the pendingstate courtm atter
forcing Defendant
forcing Defendantto
incur reasonable andnecessaryfees
to incur reasonable andnecessary
defending againstthe challenged
matter
fees defending against the challenged
causes of Plaintiffs attempt
causes of action.3 Plaintiffs attempt to
to recover
theirfederal fees aspart
recover their federal feesas
ofthe statecourt
part of thestate court
proceeding, butin an abundance ofcaution andfortheconvenience oftheCourt, Defendant
proceeding, but in an abundance of caution and for the convenience of the Court, Defendant
segregatesandidentifiesthatof the amounts identifiedaboveit
segregates and identifies that of the amounts
has incurred, date,
above it has incurred,toto date,
attorneyfeesinthe amount of withregardtodefending
of $18,830.00 with regardto
attorney fees in the amount
againstthefederal
defending against the federal
lawsuitfiledcontemporaneously withthis state courtpproceeding.
lawsuit filed contemporaneously with thisstatecourt
roceeding.it
9. lfPlaintiffs
9. If Plaintiffs
it necessaryto
find itnecessary
file MotiontoReconsider
to fileaa Motionto
and/orRescind, itis myopinion
Reconsider and/or Rescind, it ismy opinion
that $2,500.00 would bethereasonable and necessary
that $2,500.00 would be the reasonable and necessary
feesforhandling theresponsive
fees for handling the responsive
andhearing r elated
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