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

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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