No. 01-15-00586-CV

IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS SITTING AT HOUSTON DON PETERSON, MACKEY PETERSON, TONYA PETERSON, AND LONNY PETERSON,

Appellants,

v CAROL ANN MANLEY AND DAVID PETERSON, Appellees.
On Appeal from Probate Court No. One, Harris County, Texas Honorable Lloyd Wright, presiding Trial Court Cause No. 427,208
APPELLANTS' BRIEF

Respectfully submitted, Philip M. Ross ORAL ARGUMENT REQUESTED State Bar No. 017304200 1006 Holbrook Road San Antonio, Texas 78218 Phone: 210/326-2100 Email: ross_law@hotmail.com By: /s/ Philip M. Ross Philip M. Ross Attorney for Appellants ACCEPTED 01-15-00586-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 11/16/2015 6:09:48 PM CHRISTOPHER PRINE

CLERKIDENTITY OF PARTIES AND COUNSEL

Party: Counsel: Don Peterson Philip M. Ross Mackey Peterson State Bar No. 17304200 Tonya Peterson 1006 Holbrook Road Lonnie Peterson San Antonio, Texas 78218 Phone: 210/326-2100 Appellants Email: ross_law@hotmail.com Carol Ann Manley Sarah Pacheco David Peterson State Bar No. 00788164 Kathleen Beduze State Bar No. 24052205 Crain, Caton & James, PC 1401 McKinney St., Suite 1700 Appellees Houston, Texas 77010 Phone: 713-658-2323 Email: spacheco@craincaton.com Jill Young, Guardian ad litem State Bar No. 00797670 MacIntyre, McCulloch, Stanfield, Young, LLP 2900 Weslayan, Suite 150 Houston, TX 77027 Phone: 713-572-2900 Email: jill.young@mmlawtexas.com Russ Jones, Attorney ad litem State Bar No. 10968050 Underwood, Jones, Scherrer & Malouf, PLLC 5177 Richmond Ave., Suite 505 Houston, TX 77056 Phone: 713-552-1144 Email: rjones@ujsmlaw.com iiTABLE OF CONTENTS Page

IDENTITY OF PARTIES AND COUNSEL ................................ ii TABLE OF CONTENTS ...................................................... iii INDEX OF AUTHORITIES .................................................. iv STATEMENT OF THE CASE .................................... .......... 2 STATEMENT OF JURISDICTION ......................................... 2 STATEMENT REGARDING THE RECORD............................... 3 ISSUES PRESENTED ........................................................... 3 ISSUE NO. 1: Whether the trial court lacked jurisd iction to approve the mediated settlement agreement of the pa rties pursuant to the Final Judgment May 12, 2015, when the terms of the agreement were moot, because the proposed wa rd had died. ISSUE NO. 2: Whether the probate court lost juri sdiction of the guardianship matter, when the proposed ward die d, except for the filing of the final accounting and dismissi ng the guardianship proceeding. ISSUE NO. 3: Whether the trial court's Orders granting the Defendants, attorney ad litem and guardian ad litem 's Motions for Sanctions were signed in error on November 10, 2014 because the Orders were vague, and overbroad, unsub stantiated and/or unlawful. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND ............................... ........................ 3 iiiSTANDARD OF REVIEW .................................................... 12

SUMMARY OF ARGUMENT .............................................. 13 ARGUMENT AND AUTHORITIES ......................................... 13 ISSUE NO. 1: Whether the trial court lacked jurisd iction to approve the mediated settlement agreement of the pa rties pursuant to the Final Judgment May 12, 2015, when the terms of the agreement were moot, because the proposed wa rd had died.

..................................................... ................................................. 13 ISSUE NO. 2: Whether the probate court lost juri sdiction of the guardianship matter, when the proposed ward die d, except for the filing of the final accounting and dismissi ng the guardianship proceeding.

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

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

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

..................................................... ...................................... 19 CONCLUSION and PRAYER.................................................. 32 CERTIFICATION ................................................................. 34 ivCERTIFICATE OF COMPLIANCE ........................... ........................... 34

CERTIFICATE OF SERVICE ................................................. 3 4

INDEX OF AUTHORITIES CASES PAGE(S) Alejandro v. Bell 84 S.W.3d 383 (Tex. App.–– Corpus Christi 2002) .... ................ 18 Armstrong v. Collin County Bail Bond Bd. 233 S.W.3d 57 (Tex. App.—Dallas 2007, no pet) ...... .................. 17
Buckholts Indep. Sch. Dist. V. Glaser 632 S.W.2d 146 (Tex. 1982) ......................... ................................ 24 Carroll v. Carroll 893 S.W.2d 62 (Tex. App.—Corpus Christi 1994, no writ) ......... 15 Easterline v. Bean 49 S.W.2d 427 (1932) ............................... .................................. 14, 15 Edwards v. Pena 38 S.W.3d 191 (Tex. App.—Corpus Christi 2001, no pe t.) ......... 15 Eichelberger v. Eichelberger 582 S.W.2d 395 (Tex.1979) .......................... ................................ 29 Fry v. Tucker 202 S.W.2d 218 (1947) .............................. .................................. 23 Gentile v. State Bar of Nev

. 501 U.S. 1030 (1991) ............................... ................................. 29

vCASES PAGE(S)

GTE Commc’ns Sys. Corp. v. Tanner 856 S.W.2d 725, 731 (Tex. 1993) .................... ........................... 17 In the Guardianship of L.A. Moon 216 S.W.3d 506, 510 (Tex.App.—Texarkana 2007) ...... .............. 15 In re Estate of Glass 961 S.W.2d 461462 (Tex. App.—Houston [1st Dist.] 1997, writ denied) ................................. ........................................ 15 In re Guardianship of Whitt 407 S.W.3d 495 (Tex.App.-Houston [14 Dist.] 2013) .................. 16 In re Sawyer 360 U.S. 622 (1959) ................................ .................................. 29 In re Union Pacific Resources Co. 969 S.W.2d 427 (Tex. 1998) ......................... ................................ 24 Johnson v. City of Fort Worth 774 S.W.2d 653 (Tex.1989) .......................... ................................ 12 Kutch vs. Del Mar College 831 S.W.2d 506 (Tex. App.—Corpus Christi, 1992, no pet) ........ 28 Lehmann v. Har-Con Corp. 39 S.W.3d 191 (Tex. 2001) .......................... ................................. 2 Mattly v. Spiegel, Inc

. 19 S.W.3d 890 (Tex. App.—Houston, 14 th Dist] 2000, no pet) .. 17, 18 McWhorter v. Sheller 993 S.W.2d 781 (Tex. App.—Houston -14 th Dist 1999, pet denied) ....................... 28 Mills v. Alabama 384 U.S. 214 (1966) ................................ ..................................... 30 viCASES PAGE(S)

Monroe v. Blackmon 946 S.W.2d 533 (Tex. App. -- Corpus Christi 1997, orig. proceeding) .................................. ......................................... 34 NAACP v. Button 371 U.S. 415, (1963) ............................... ...................................... 30 Nat'l Liab. & Fire Ins. Co. v. Allen 15 S.W.3d 525 (Tex.2000) ........................... ................................. 12 New York Times Co. v. Sullivan 376 U.S. 254 (1964) ................................ ...................................... 30 Palais Royal, Inc. v. Partida 916 S.W.2d 650 (Tex. App.--Corpus Christi 1996, [leave denied]) .................................... ........................................... 25 Parker v. Walton 233 S.W.3d 535 (Tex. App.— Houston [14th Dist.] 2007, no pet.) ..................................... ........................................... 18 P o l k v . S t a t e B a r o f Texas 3 7 4 F. Supp. 7 8 4 ( N . D . T e x . 1 9 7 4 ) ... . . . . . . . . . . . . . . . 2 9 , 3 0 Postal Mut. Indemnity Co. V. Ellis S.W.2d 482 (1943) .................................. ...................................... 24 Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist. ex rel. Bd. of Directors 198 S.W.3d 300 (Tex. App.— Texarkana 2006, pet. Den ied) .... 17 St. Luke's Episcopal Hosp. v. Agbor 952 S.W.2d 503 (Tex.1997) .......................... ................................ 13 Texas-Ohio Gas,Inc.v. Mecom 28 S.W.3d 129 (Tex. App—Texarkana 2000, no pet) .... .............. 18

viiCASES PAGE(S)

Transamerican National Gas v. Powell 811 S.W.2d 913 (Tex. 1991) ......................... ......................... 28, 31, 32 STATE STATU TES AND RULES PAGE(S) Tex. Civ. Prac. & Rem. Code Ann. § 51.014 ......... ............................. 3 Tex. Civ. Prac. & Rem. Code Ann. § 10.001 ......... ......................... 17, 19

Texas Constitution, Article 5, Section 11 .......... ............................ 23, 24 TEXAS CONST. ART. 8, 13 ............................ ....................... 29, 30, 31 Texas Disciplinary Rules of Professional Conduct, Rule 3.07 .................... .......... 19, 20, 25, 26, 27, 32 Texas Judicial Canon 3B(1) ......................... ................................... 23 Tex. Prob. Code Ann. §745(a)(2) (Vernon Supp. 2006) .................... 14 TEX. R. APP. P. 25.1(a) .......................... .......................................... 2 TRE Rules 802, 803, 804, 901 ....................... .................................... 27 United States Constitution, Amendment 1 .......... ................................ 31 TRCP Rule 778 ...................................... ........................................... 21

viiiNo. 01-15-00586-CV

IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS SITTING AT HOUSTON DON PETERSON, MACKEY PETERSON, TONYA PETERSON, AND LONNY PETERSON, Appellants,

v CAROL ANN MANLEY AND DAVID PETERSON, Appellees.

On Appeal from

Probate Court No. One, Harris County, Texas Honorable Lloyd Wright, presiding Trial Court Cause No. 427,208
APPELLANTS' BRIEF

TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF AP PEALS: NOW COME, Don Peterson, Mackey Peterson, Tonya Peterson, an d Lonny Peterson, by and through the undersigned attorney at law, an d file this appeal from the Final Judgment and Orders of the trial court, and would sh ow the Court as follows:

1STATEMENT OF CASE

This guardianship proceeding regarding Ruby S. Peterson, the proposed ward (“Mrs. Peterson”) began, when her adult children Carol Ann Manley and David Peterson, who had opposed the guardianship applicati on filed by Mrs. Peterson's adult sons Don, Mackey and Lonny Peterson, filed a guardianship application after the first application was voluntarily no nsuited. The guardianship proceeding was settled, without any temporary or permanent guardianship ever being ordered, pursuant to a voluntary, non-revocable medi ated settlement agreement on October 29, 2014. The trial court did not approve the settlement agreement bef ore Mrs. Peterson died on January 11, 2015. The trial court lost its ju risdiction over the person of Mrs. Peterson due to her death, and the settlement a greement became moot before it was approved by a Final Judgment on May 12, 2015.

STATEMENT OF JURISDICTION Appellants invoke the jurisdiction of this Court by filing their notice of this appeal pursuant to TEX. R. APP. P. 25.1(a). Appellants submi t that they have complied with all conditions precedent to invoking the juri sdiction of the First Court of Appeals. As a general rule, a party may appeal only fr om a final judgment. Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 195 (Tex. 2001). This 2Court has jurisdiction over appeals from final decisions of trial courts and from

interlocutory orders as provided by statute. Id .; see Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2006).

STATEMENT REGARDING THE RECORD The Clerk’s Record consisting of four volumes has been filed . The Reporter's Record consisting of thirteen volumes ha s been filed. ISSUES PRESENTED ISSUE NO. 1: Whether the trial court lacked jurisdiction to approve the mediated settlement agreement of the parties pursuant to the Final Ju dgment May 12, 2015, when the terms of the agreement were moot, because the proposed ward had died. ISSUE NO. 2: Whether the probate court lost jurisdiction of the guardianship matter, when the proposed ward died, except for the filing of the final accounting and dismissing the guardianship proceeding. ISSUE NO. 3: Whether the trial court's Orders granting the De fendants, attorney ad litem, and guardian ad litem's motions for sanctions were signed in error on November 10, 2014 because the Orders were vague, overbroad, unsubstantiated and/or unlawful. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND At the time of filing of this guardianship proceeding, Mrs. P eterson was the 392-year old mother of Mack, Don, Lonny, David and Carol. Mrs. Peterson was a

resident at Silverado Senior Living – Sugar Land (“Silverad o”) at all times relevant to this case. In 1993, Mrs. Peterson and her husband, both now deceased, ex ecuted a durable power of attorney appointing Carol and Davi d as their agents. David and Carol moved Mrs. Peterson to Silverado, which is a l ocked memory care facility, on or about August 27, 2013. Shortly after Carol and David moved Mrs. Peterson to Silvera do they obtained a letter from Dr. Chris Merkl, M.D. stating that she had severe dementia. (RR Vol. 5 page 221, lines 2-25; page 222, lines 1-24; RR Vol. 9 , page 111, lines 1-25; page 112, lines 1-14). Dr. Merkl's diagnosis of severe dementia was contradicted by his own subsequent testimony and the testimony of Dr. John Tennison, M.D. (RR Vol. 6 page 221, lines 19-25, page 222, lin es 1-22; Vol. 8, page 59, lines 6-25, page 60, lines 1-2). Carol and David used Dr. Merkl's diagnosis as authority for their actions as Mrs. Peterson's agents for making her medical decisions. Thereafter, Carol and David refused to a llow Mrs. Peterson to leave Silverado. Appellants alleged and offered evidence that Mrs. Peterson complained about the conditions of her residency at Silverado. When Mrs . Peterson refused to 4take her medication voluntarily, Silverado staff mixed her drugs in a drink and told

her it was a vitamin drink. (RR Vol. 5, page 109, lines 16-25; p age 110, lines 1- 18). Carol Manley testified that she agreed with Dr. Merkl's opinion that it was okay to give Mrs. Peterson drugs against her will by deceivin g her. (RR Vol. 8, page 365, lines 17-20). David Peterson testified that one of the reasons he agreed to keep Mrs. Peterson at Silverado was because they were able to do whatever it took to medicate Mrs. Peterson, when she refused. (RR Vol. 9, page 113, lines 2- 23). David Peterson also agreed with Dr. Merkl that it was oft en appropriate for Silverado to trick Mrs. Peterson into taking medications in voluntarily. (RR Vol. 8, page 365, lines 1-20). Silverado had a custom or practice o f lying or tricking a patient into taking medication if recommended by a doctor. ( RR Vol. 9, page 2127, lines 1-20). Mrs. Peterson asked to leave Silverado to go out to eat with Do n and his wife. She asked to go to the church of her choice in Baytown. Sh e asked to go visit Mack and his wife at their home in Wimberly, Texas. Afte r Carol and David repeatedly denied her requests to go to the church of her choi ce, go out to eat and go to visit Mack at his home, Mrs. Peterson revoked the 1993 po wer of attorney on November 15, 2013, and she executed a new durable power of attorney appointing her sons Mack and Don as her agents. (C R1 pages 67 and 68- 5Appellants alleged and offered evidence that Silverado unr easonably and

unlawfully restrained Mrs. Peterson from leaving its facil ity; neglected her medical care and treatment; unreasonably and unlawfully re stricted her communication and association with her family; denied her right to refuse to take medications that made her feel sick; over-sedated her at times to control her behavior in reaction to denial of her requests to leave or mov e away; failed or refused to provide adequate medical treatment to maintain and improve her health; and/or retaliated against her and her family for asserting M rs. Peterson's rights to leave Silverado and move to a nursing home near her church and friends in Baytown, live in the community with her son Mack, go to church , go to lunch, visit her family in their homes, and/or receive adequate med ical care and treatment in order to maintain or improve her health. Silverado relied on the 1993 power of attorney appointing Carol and David as Mrs. Peterson's agents to manage her finances and make med ical decisions for her if she became incapacitated. However, Appellants alleg ed and offered evidence that on or about November 15, 2013 Mrs. Peterson did not lack capacity and was presumed to have capacity to (1) decide where she did o r did not want to live, (2) refuse to take medications that made her sick, (3) g o to the church of her choice, (4) visit with her sons and their wives, (4) revoke he r power of attorney 6and (5) execute new powers of attorney.

When Don and Mack visited Mrs. Peterson at Silverado in mid-N ovember 2013, she asked them what they were doing to get her out of Silv erado. They told her that they hired an attorney. She said, “Hire two. I'll pay for it.” (RR Vol. 5, page 105, lines 12-25; page 106, lines 1-7; page 121, line 25; page 122, lines 1-9). Mrs. Peterson also instructed Don and Mack to bring her a new p ower of attorney to sign because she wanted to revoke her prior power of attorn ey and appoint Don and Mack as her agents. On November 10, 2013, Don and his wife Carol visited Mrs. Pete rson, who stated verbally and in writing that she wanted to leave Silve rado and wanted her son to get her an attorney to get her out. (RR Vo l. 5, page 47, lines 1-12). On November 15, 2013, Don and Mack brought Mrs. Peterson a new power of attorney revoking her prior power of attorney and appoint ing them as her agents, which she executed before a Notary Public for the State of Texas and a witness. (RR Vol. 5, page 124, lines 3-13). Appellants alleged and offered evidence that Mrs. Peterson had legal capacity to revoke her prior power of attorney and execute a n ew power of attorney, which she voluntarily executed on or about Novemb er 15, 2013. (RR Vol. 5, page 125, lines 18-24; page 223, lines 17-23). Appell ants further alleged 7and offered evidence that Mrs. Peterson had not been judicia lly determined to lack

capacity, and she was presumed to have had capacityin November 2013. As soon as Silverado's staff noticed that Mrs. Peterson was s igning a legal document before a Notary Public, they abruptly terminated h er visit with Don and Mack, told them they had to leave and escorted them out of the f acility on November 15, 2013. Later that day, Don recorded the executed powers of attorney and returned to Silverado to move Mrs. Peterson outof Silverado. Appellants alleged and offered evidence that Silverado wro ngfully refused to accept Mrs. Peterson's new power of attorney and allow her to leave with Don. Instead, Silverado personnel called the City of Sugar Land p olice and threatened to have Don and Mack arrested for trespass if they did not leav e or ever returned. (RR Vol. 5, page 124, lines 3-23; page 217, lines 23-25; page 2 18, lines 1-4). In response to their request of when they could see their mother again, a Sugar Land police officer told them "when she's dead." (RR Vol. 5, page 1 27, lines 15-18; page 221, lines 2-5). Then, without a court order, Silverado banned Don and his wife, Mack and his wife, and Lonny from visiting Mrs. Peterso n under any circumstances. (RR Vol. 5, page 221, lines 10-25; page 222, l ines 1-24; Vol. 9, page 72, lines 3-20). On December 9, 2013, Don's wife Carol wa s visiting Mrs. Peterson in her room for about 30 minutes before Silverado as ked her who she 8was, and then, told her she had to leave. (RR Vol. 5, page 16, li nes 16-25; page

17, lines 1-17). Appellants alleged and offered evidence that Silverado fal sely imprisoned Mrs. Peterson against her will in a conspiracy with Carol and David. (RR Vol. 5, page 105, lines 12-25; page 106, lines 1-7). To wit, Silverad o has repeatedly refused Mrs. Peterson's requests to leave Silverado to go to lunch, go shopping, attend social events, celebrate holidays with her family, o r any other purpose unless approved by Carol or David. (RR Vol. 5, page 21, lines 1 5-25; page 22, line 1; page 25, lines 3-25; page 26, lines 1-16). Evidence showed that it would have been in Mrs. Peterson's best interests for her to be allowed t o choose where she lived and to have unrestricted access to all of her children and their spouses. (RR Vol. 5, page 36, lines 2-25; page 37, lines 1-25). Evidence al so showed that it was in Mrs. Peterson's interest to be allowed to communicate and associate with her friends and her church. (RR Vol. 5, page 108, lines 1-25; page 109, lines 1-15). There was no reason why Mrs. Peterson could not live in her own apartment and spend her time with friends and family. (RR Vol. 5, page 94, li nes 11-25; page 95, lines 1-17; page 98, lines 9-25; page 99, lines 1-13; page 102, lines 6-25; page 103, lines 1-10; page 119, lines 7-25; page 120, lines 1-22). Alternatively, Mrs.

9Peterson could have moved to another facility close to her ch urch if she were

allowed to leave Silverado. (RR Vol. 5, page 215, lines 10-25 ; page 216, lines 1- 15). From November 15, 2013 through December 18, 2013, Appellant s were denied all contact with their mother until Mack and Don hired a lawyer to sue for guardianship in Probate Court No. 1, Harris County, Texas. Appellants alleged and offered evidence that Silverado wro ngfully refused to acknowledge the 2013 revocation of the 1993 durable power of attorney. Silverado also wrongfully refused to acknowledge the new Du rable Power of Attorney that was executed by Mrs. Peterson on November 15, 2 013. Don Peterson testified regarding the facts and circumstances o f Ruby signing the revocation of her 1993 durable and medical power of attorney . (RR Vol. 8, pages 227, lines 23-25; pages 228-231). The revocation, which was marked as Plaintiffs' Exhibit 4, was offered and admitted. (RR Vol. 8, page 232, lines 4-11). On August 10, 2014, Dr. John Tennison, M.D. submitted a medic al examiner's report stating that, to a reasonable degree of me dical certainty, Mrs. Peterson had contract-making capacity in November 2013. (C R4 page 3494).

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

new power of attorney in November 2013 and revoke h er prior power of attorney. On or about July 25, 2014, Silverado banned Mrs. Peterson's s ons Don and Mack and their wives, and Lonny from visiting her because of i ts objection to publicity regarding Mrs. Peterson. (RR Vol. 5, page 77, line s 11-25; page 78, lines 1-16; page 192, lines 23-25; page 193, lines 1-4; page 2 19, lines 13-25; page 220, lines 1-13; Vol. 9, page 73, lines 9-15; page 221; lines 1 0-21). Silverado's ban on visitation arbitrarily and unreasonably denied Mrs. Peterson and her family their rights to communicate and associate with each other. ( RR Vol. 5, page 120, lines 23-25; page 121, lines 1-6). On October 29, 2014, the parties entered into a binding, non- revocable Rule 11 mediated settlement agreement. (CR4 page 3542-3545). On November 3, 2014, the mediator reported to the trial court that the mediation w as successful. (CR4 page 3432). On November 7, 2014, the trial court granted the r equest of the guardian ad litem and attorney ad litem for permission to exe cute the Rule 11 agreement. (CR4 page 3541). However, the trial court did not approve the mediated settlement agreement until it entered a final judg ment, which was four months after Mrs. Peterson died. The mediated settlement ag reement became moot

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

13-25; page 11, lines 1-25; page 12, lines 1-16). On January 16, 2015, Appellants filed a motion to dismiss the guardianship proceeding. (CR4 page 3814-3816). The motion to dismiss was denied on May 12, 2015. (CR4 page 3952). On April 3, 2015, the guardian ad li tem and attorney ad litem filed a motion to enter judgment on the settlement ag reement. (CR4 page 3871-3875). On May 12, 2015, the trial court entered a Final Judgment appr oving the mediated settlement agreement and denying Appellants' mot ion to dismiss. (CR4 page 3949-3951). The trial court acknowledged that Mrs. Pet erson passed away, without having either a temporary or permanent guardian app ointed, and there was no guardianship proceeding after she died. (RR Vol. 13, page 17, lines 2-12; page 22, lines 7-25; page 23, lines 1-25; and page 24, l ines 1-13).
STANDARD OF REVIEW A Court of Appeals reviews the trial court's interpretation of applicable statutes de novo. See Johnson v. City of Fort Worth , 774 S.W.2d 653, 655-56 (Tex.1989). In construing a statute, the objective is to det ermine and give effect to the Legislature's intent. See Nat'l Liab. & Fire Ins. Co. v. Allen , 15 S.W.3d 525,

12527 (Tex.2000). If possible, 407 S.W.3d 499 the reviewing co urt must ascertain

that intent from the language the Legislature used in the statute and not look to extraneous matters for an intent the statute does not state. Id . If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the provision's words. St. Luke's Episcopal Hosp. v. Agbor , 952 S.W.2d 503, 505 (Tex.1997). A reviewing court must not engag e in forced or strained construction; instead, it must yield to the plain s ense of the words the Legislature chose. See id

. SUMMARY OF ARGUMENT The trial court lacked jurisdiction to approve the mediated settlement agreement of the parties pursuant to the Final Judgment May 1 2, 2015, when the terms of the agreement were moot, because the proposed ward h ad died. When the proposed ward died, the probate court lost jurisdiction of the guardianship matter, except for the filing of the final accounting and dismissing the guardianship proceeding. The trial court's Order granting the attorney a d litem and guardian ad litem's Motion for Sanctions was signed in error on November 10, 2014 because the Order was vague and overbroad.

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

when the terms of the agreement were moot, because the proposed ward had died. ISSUE NO. 2: Whether the probate court lost jurisdiction of the guardianship matter, when the proposed ward died, except for the filing of the final accounting and dismissing the guardianship proceeding. Appellants submit that the trial court's jurisdiction over the guardianship proceeding ended, when Ruby died on or about January 11, 2015 , except for the filing of the final accounting and dismissing the guardians hip proceeding. Therefore, the trial court lacked jurisdiction to approve the parties' settlement agreement, which became moot, when Ruby died. Furthermore, there was no guardianship estate because the trial court did notappoint a guardian. When a ward dies, the probate court loses jurisdiction of the guardianship matter, except for the filing of the final accounting and clo sing of the guardianship. In the Guardianship of L.A. Moon, 216 S.W.3d 506, 510 (Tex.App. —Texarkana 2007) (citing Tex. Prob. Code Ann. §745(a)(2) (V ernon Supp. 2006) guardianship of incapacitated ward is settled and closed wh en ward dies); Edwards v. Pena, 38 S.W.3d 191, 195 (Tex. App.—Corpus Christi 2001, no pet.); Carroll v. Carroll , 893 S.W.2d 62, 68 (Tex. App.—Corpus Christi 1994, no writ).
In Easterline v. Bean , the Texas Supreme Court declared "it has long been 14the public policy of this state that, when a ward dies, the pro bate court loses

jurisdiction of the guardianship matter, save and except th at the guardianship shall be immediately settled and closed, and the guardian dischar ged." In the Guardianship of L.A. Moon, 216 S.W.3d at 510 (citing In re Estate of Glass , 961 S.W.2d 461, 462 (Tex. App.—Houston [1st Dist.] 1997, writ de nied) (quoting Easterline v. Bean , 49 S.W.2d 427, 428 (1932)). Appellants respectfully submit that the same rule would app ly to a guardianship proceeding, in which no guardianship had yet b een created before the proposed ward died, because the trial court loses jurisd iction over the proposed ward and no guardianship estate exists. Therefore, the tria l court's Order approving approving the parties' October 29, 2014 settleme nt agreement on May 12, 2015 was void because Mrs. Peterson died on January 11, 20 15, and the settlement agreement was moot. In particular, page 2 ¶10 of the mediated settlement agreeme nt, which the trial court approved in error, provided for payment of attorney's fees from the proposed (then deceased) ward's estate. Appellants respec tfully submit that such agreement was not enforceable under the circumstances of th is case. In the case under review, the trial court did not create a guardianship o r a management trust, and there was no ward's estate from which the trial court coul d have ordered 15payment of fees. In re Guardianship of Whitt , 407 S.W.3d 495, 500 (Tex.App.-

Houston [14 Dist.] 2013). Mrs. Peterson was not a " ward" and h er property was not an " estate". Id

. Therefore, Appellants respectfully submit that the trial c ourt erred in approving the mediated settlement agreement pursuan t to the Final Judgment. ISSUE NO. 3: Whether the trial court's Orders granting the De fendants, attorney ad litem, and guardian ad litem's motions for sanctions were signed in error on November 10, 2014 because the Orders were vague, overbroad, unsubstantiated and/or unlawful. A Order on Motion for Sanctions filed by W. Russ Jones, attorn ey ad litem, and Jill Young, guardian ad litem, signed November 10, 2014 The Texas Civil Practice and Remedies Code, Chapter 10 pro vides that the signing of a pleading or motion constitutes a certi ficate by the signatory that to the signatory’s best knowledge, information, and be lief, formed after reasonable inquiry: (1) the pleading or motion is not bei ng presented for any improper purpose, including to harass or to cause unnecessarydelay or needless increase in the cost of litigation; (2) the claims, defenses, or other legal contentions in the pleading or motion is warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of exis ting law or the establishment of

16new law; (3) the allegations or other factual conte ntions in the pleading or motion have evidentiary support or, for a specificall y identified allegation or factual contention, is likely to have evidentiary support after a reaso nable opportunity for further investigation and discovery...Id. (emphasis added). Tex. Civ. Prac. &
Rem. Code Ann. § 10.001 Chapter 10 Sanctions require “proof that (1) the plea ding or motion was brought for an improper purpose, (2) there were no grounds for the legal arguments advanced, or (3) the factual allegations or denials lacked evidentiary support; See Tex. Civ. Prac. & Rem. Code Ann. § 10.001 (Vernon 2002); Armstrong v. Collin County Bail Bond Bd ., 233 S.W.3d 57, 62 (Tex. App.— Dallas 2007, no pet). Save Our Springs Alliance, Inc. Lazy Nine Mun. Util. Dist. ex rel. Bd. of Directors, 198 S.W.3d 300, 321 (Tex. App.— Texarkana 2006, pet. denied) (“non-frivolous” requirement is same a s “good faith” requirement. Courts must presume parties and their counsel file all papers in good faith, and the party seeking sanctions must overcome that pres umption.) GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). A pleading is groundless, when it has no basis in fact or law. Id . Bad faith means the “conscious doing of a wrong for dishonest, di scriminatory, or malicious purposes.” Mattly v. Spiegel, Inc .; 19 S.W.3d 890, 896 (Tex. App.— 17Houston, 14 th Dist] 2000, no pet). The trial court must measure a litigant’ s conduct

at the time the relevant pleading was filed. Texas-Ohio Gas,Inc.v. Mecom , 28 S.W.3d 129, 139 (Tex. App—Texarkana 2000, no pet). Improper purpose is the equivalent of bad faith. Parker v. Walton , 233 S.W.3d 535, 539 (Tex. App.— Houston [14th Dist.] 2007, no pet.), Alejandro v. Bell, 84 S.W.3d 383, 393 (Tex. App.–– Corpus Christi 2002). An improper purpose such as bad faith does not exist when a party exercises bad judgment or neglig ence. Instead, bad faith means the “conscious doing of a wrong for dishonest, disc riminatory, or malicious purposes.” Mattly v. Spiegel, Inc .; 19 S.W.3d 890, 896 (Tex. App.—Houston [14th Dist] 2000, no pet). In deciding whether a pleading was filed in bad faith or for purposes of harassment, the trial court must measure a litigant ’s conduct at the time the relevant pleading was filed. Texas-Ohio Gas,Inc. v. Mecom , 28 S.W.3d 129, 139 (Tex. App—Texarkana 2000, no pet). Texas law requires the Court examine not just objectively, but examine subjectively the moti ves and credibility of the attorney who signed the petition. Chapter 10 sanctio ns are generally only justified in the following scenarios: attorneys not reading the pleading, not conducting adequate investigation into the facts, g roundless and brought in bad faith, g roundless and brought to needlessly increase the cost of litigati on; or 18statements known to be false. Tex. Civ. Prac. Rem. Code 10.001.

No evidence was introduced at the hearing on October 9, 2014 o vercome presumption that the pleadings were filed in good faith. (RR Vol. 10, pages 19- 33). Schwager demonstrated during the hearing December 9, 2 014 that she did not file any pleadings in bad faith, for improper purpose, or with any belief that claims lacked evidentiary or legal support. (RR Vol. 12, p. 4 , 23). Likewise, the trial court’s orders for sanctions contained no explanatio n of the basis for the sanction and no nexus between any alleged violation and the s anctions amount. Chapter 10 states that “[t]he sanctions order “shall describe . . . the conduct the court has determined violated Section 10.001 and ex plain the basis for the sanction imposed.” Tex. Civ. Rem Code. 10.001. Appellants submit that the trial court abused its discretio n ordering sanctions under Chapter 10 against Candice Schwager becaus e the claims for sanctions lacked evidentiary or legal support. B Order on David Peterson and Carol Anne Manley's Motion for S anctions, signed November 10, 2014 Appellants respectfully submit that the trial court abused its discretion in awarding $10,000 in sanctions for Candice Schwager's alleg ed violation of Rule 3.07 of the Texas Disciplinary Rules of Professional Conduc t. First, there was no

19evidence presented to prove a violation of Rule 3.07. Second , there was no nexus

between the sanction and the alleged offensive conduct. Thi rd, there was no consideration of lesser sanctions or alternatives. Appellants respectfully submit that the trial judge should have disqualified himself after receiving notice from the attorney ad litem at the sanctions hearing on October 9, 2014 that the trial judge was named as a co-consp irator in alleged civil rights violations related to Ruby Peterson in a propos ed amended complaint attached to a motion for leave to file a first amended origina l complaint in Civil Action No. H-14-2179 pending in the United States District C ourt for the Southern District of Texas, Houston Division. (RR Vol. 10, page 26, li nes 10-25; page 27, lines 1-3). Mr. Jones encouraged the misperception by the trial judge th at the Appellants were suing him in federal court as follo ws: “The Court will recall that the last time we were down here on the hearing, and I agree with Ms. Schwager on this, that the Court was the greatest thing since sliced bread, best probate judge in Harris County, quote me on it. Now you are being sued as a co-conspirator with the City of Sugar Land and with Silverado for conspiring and engaging in overt acts to deny Ruby Peterson’s civil rights, her federally protected rights. Pardon my French, Your Honor, b ut that’s a load of horse shit.”

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

“I would encourage you to levy significant costs. I have aske d for $120,000 in costs, $40,000 from each of the...Plaintiffs rath er, or however they want to carve it up, because I think it’s going to cost that much for myself and Ms. Young to sit through this case and adequately represent Ruby Peterson to the end. And I think yo u need to sanction her or she’s going to keep on doing it. She has been sanctions by Judge Butts. It was a rather nominal sanction an d she obviously didn’t get the message. She needs to be hit a little bit bigger here. Thank you, Judge.” (RR Vol. 10, page 32, lines 22-15; page 33, lines 1 -7). Although the trial judge joked that he didn't mind the potent ial controversy, (RR Vol. 10, page 27, lines 14-18), it was apparent that, desp ite Appellants' counsel's explanation, (RR Vol. 10, page 42, lines 2-23; pag e 43, lines 2-16), he was highly offended by being named as a defendant in a pleadin g filed in federal court. (RR Vol. 10, page 43, lines 17-25; page 44, lines 1-7; page 48, lines 4-9). The trial judge expressed his feelings as follows: “But this is sitting up there of record in the Federal Courts. This is a recorded, filed pleading, correct?” (RR Vol. 10, page 42, lines 24-25; page 43, line 1)

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

21about, gee, what can I do to harm Ruby Peterson or do something , it’s

just ridiculous. I mean, ludicrous. To even have a pleading that would accuse me of that. I’m going to sort of put it aside in my consid eration of all this and what’s transpired, but it’s just reckless and it’s not right and it’s not fair. It’s not just. I mean, this idea that people just are out to do nefarious things and hurt somebody and make money or whatever you think or Ms. Schwager thinks it’s ludicrous and it’s wrong and I try not to get involved in any of it except what I’m supposed to do here today. But then I see that things bring me i nto it in some fashion and it just—it’s just wrong. And then of cours e she is not here today.” (RR Vol 10, page 43, lines 17-25; page 44, lines 1- 6). Appellants respectfully submit that the trial judge's acti ons on November 10, 2014 dismissing their claims and sanctioning their atto rney was unduly influenced by his personal feelings about being identified as an alleged coconspirator in a pleading filed in federal court. The trial j udge referenced his objection to allegations of some kind of conspiracy again at the hearing on December 9, 2014, stating as follows: “I mean, I think we got to the point. I think the settlement was exactly what should have happened probably but it should hav e happened outside the courtroom, really, and so all this bomb throwing and so and so is this or that, or there is some kind of conspirac y going on, it's just so counterproductive I can't tell you .” (RR Vol 12, page 9, lines 15-20).

... 22“I've been here almost four years. I'm sort of the new guy on th e

block and I can tell you, and I really feel this way about all ju dges, most, you know, again, there are exceptions, but my integrity can't be questioned.” (RR Vol 12, page 10, lines 18-21). Appellants submit that the trial judge had a duty to disquali fy himself under Texas Judicial Canon 3B(1), which provides: (1) A judge shal l hear and decide matters assigned to the judge except those in which disquali fication is required or recusal is appropriate. The moment that the trial judge was t old that he was being sued as a co-conspirator, although this statement by the att orney ad litem was false, he could reasonably be perceived to have a conflict of interest in the outcome of the guardianship proceeding and related claims, which would preclude him from continuing to preside over this matter. Appellants submit that the Texas Constitution, Article 5, S ection 11 provides: Sec. 11. DISQUALIFICATION OF JUDGES; EXCHANGE OF DISTRICTS; HOLDING COURT FOR OTHER JUDGES. No judge shall sit in any case wherein the judge may be interested, or w here either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed b y law, or when the judge shall have been counsel in the ca se. ... 23(Amended Aug. 11, 1891, and Nov. 6, 2001.)

Appellants submit that the failure or refusal of the trial ju dge to voluntarily disqualify or recuse himself sua sponte, when he determined that he may have a personal interest in the outcome of the guardianship procee ding, based on information, although false, that he was being sued in feder al court on claims related to the proceed, raised a question as to the judge's im partiality and the validity of the trial court's orders beginning on O ctober 9, 2014. There is no waiver for Constitutional disqualification and a party may assert disqualification for the first time on appeal. Buckholts Indep. Sch. Dist. V. Glaser , 632 S.W.2d 146, 148 (Tex. 1982); Monroe v. Blackmon , 946 S.W.2d 533, 542 (Tex. App. -- Corpus Christi 1997, orig. proceeding); Fry v. Tucker , 202 S.W.2d 218, 221-22 (1947). The disqualification rules in Article V , section 11 are expressed in unconditional language, and are regarded as mandatory and to be “rigidly enforced.” See Fry v. Tucker , 202 S.W.2d 218, 221 (1947). Disqualification affects a judge’s jurisdiction and power to act. See Postal Mut. Indemnity Co. V. Ellis , S.W.2d 482, 484 (1943). Therefore, disqualifications, li ke other jurisdictional barriers, cannot be waived. See In re Union Pacific Resources
Co ., 969 S.W.2d 427, 428 (Tex. 1998); Buckholts Indep. Sch. Dist. v. Glaser, 632

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

. Palais Royal,

Inc. v. Partida , 916 S.W.2d 650 (Tex. App.--Corpus Christi 1996, [ leave denied]). Appellants also submit that the trial court misconstrued Ru le 3.07, which was cited as to sole basis for sanctions. Rule 3.0 7 provides:

RULE 3.07 TRIAL PUBLICITY (a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawy er shall not counsel or assist another person to make such a statement. (b) A lawyer ordinarily will violate paragraph (a), and the l ikelihood of a violation increases if the adjudication is ongoing or imminent, by making an extrajudicial statement of the type referred to in that paragraph when the statement refers to: (1) the character, credibility, reputation or criminal rec ord of a party, suspect in a criminal investigation or witness; or the expec ted testimony of a party or witness; (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense; the existe nce or contents of any confession, admission, or statement given by a d efendant or suspect; or that person's refusal or failure to make a statement; (3) the performance, refusal to perform, or results of any ex amination or test; the refusal or failure of a person to allow or submit to an examination or test; or the identity or nature of physical evid ence expected to be presented; (4) any opinion as to the guilt or innocence of a defendant or s uspect

25in a criminal case or proceeding that could result in incarceration; or

(5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclos ed create a substantial risk of prejudicing an impartial trial. (c) A lawyer ordinarily will not violate paragraph (a) by making an extrajudicial statement of the type referred to in that para graph when the lawyer merely states: (1) the general nature of the claim or defense; (2) the information contained in a public record; (3) that an investigation of the matter is in progress, inclu ding the general scope of the investigation, the offense, claim or de fense involved; (4) except when prohibited by law, the identity of the person s involved in the matter; (5) the scheduling or result of any step in litigat ion; (6) a request for assistance in obtaining evidence, and info rmation necessary thereto; (7) a warning of danger concerning the behavior of a person involved, when there is a reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; a nd (8) if a criminal case: (i) the identity, residence, occupation and family status o f the accused; (ii) if the accused has not been apprehended, information ne cessary to aid in apprehension of that person ; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers o r agencies and the length of the investigation. Appellants submit that there is no evidence or insufficient evidence to show that Appellants' counsel violated Rule 3.07. Tex. Disc. R. Prof. Cond. 3.07.

26Defendants presented no evidence that Schwager made extraj udicial statements

that had a substantial likelihood of prejudicing an adjudic atory proceeding, nor any evidence that any act or omission on her part interfered w ith the administration of justice. Tex. Disc. R. Prof. Cond. 3.07. ( RR Vol. 10, page 66, lines 14-25; pages 67-85; page 86, lines 1-4). Appellants submit that it is virtually impossible to make a finding that their counsel made extrajudicial statements which substantiall y prejudiced the administration of justice, because the only evidence prese nted to the trial court was unauthenticated hearsay, not within an exception to Rul e 803 or 804. T.R.E. 802, 803, 804, 901. Hearsay is inadmissible, subject to cert ain limited exceptions not applicable in this matter. T.R.E. 802. None of Defendants’ exhibits met any of these exceptions to the hearsay rule. Furthermore, Appellants' counsel was neither a party to this case, nor was she speaking on behalf of a party. Appellants submit that their counsel's extrajudicial statements were made on her own behalf—as an a dvocate for the disabled. None of the Defendants' exhibits were authenticated, as required by Texas Rule of Civil Procedure 901. Appellants submit that th e introduction of authenticated hearsay evidence into the record was an abuse of discretion. Tex. R. Evid. 802, 803, 804, 901. 27There was likewise no evidence that Appellants' counsel vio lated Rule 3.07,

and the trial court abused its discretion in entering the Ord er for $10,000 sanctions against Ms. Schwager pursuant to Rule 3.07. Tex. Disc. R. Pro f. Cond. 3.07. Appellants submit that the trial court also abused its discr etion by exceeding the limits of its inherent power and failing to exercise restrai nt. McWhorter v. Sheller , 993 S.W.2d 781, 788-789 (Tex. App.—Houston -14 th Dist 1999, pet denied). The inherent power to sanction should only be used for serious in stances of bad faith conduct during litigation. Kutch vs. Del Mar College , 831 S.W.2d 506, 510 (Tex. App.—Corpus Christi, 1992, no pet). In order for the inheren t power to sanction, a court must find some evidence and factual findings that the conduct complained of significantly interfered with the court’s legitimate ex ercise of its powers. Id

. The inherent power requires courts to consider less stringe nt sanctions than what was ordered in this matter. Transamerican National Gas v. Powell , 811 S.W.2d 913 (Tex. 1991). Appellants also submit that their counsel's extrajudicial s tatements were protected speech. The United States Supreme Court has said that "it is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to 'free speech' an attorney has is extremely circumscribed . . .but not one statement complained of was alleged to have occu rred in the 28courtroom. Lawyers are restricted to ethical restraints th at do not apply to

laypersons, but that does not mean a judge can sanction truth ful speech or censor all talk of evidence entered in a case from public scru tiny. In re Sawyer , 360 U.S. 622 (1959); Gentile v. State Bar of Nev ., 501 U.S. 1030, 1071 (1991). Significantly, the Texas Constitution provides greater pr otection to speech than the First Amendment, such that the foregoing cas es are not determinative. The power to regulate the practice of law res ides in the Supreme Court of Texas, and derives from both a statutory gran t of power, see Tex. Govt. Code Ann. § 81.01 l(c) ( Vernon 1988), and the Supreme Court of Texas' inherent judicial power. See generally Eichelberger v. Eichelberger , 582 S.W.2d 395, 397-98 & n. 1. (Tex.1979). Appellants submit that the trial court did not consider any e vidence that established a violation of any disciplinary rule. Appellan ts do not dispute that the State Bar has the right to promulgate rules restricting the s peech of attorneys. However, the power to restrict an attorney's speech is not un restricted. The Court
in Polk vs. State Bar of Texas said, “an Attorney’s speech could not be reprimanded by the Texas State Bar because of objection to content.” P o l k v . S t a t e B a r o f Texas, 3 7 4 F. Supp. 7 8 4 ( N . D . T e x . 1 9 7 4 ) ; T E X A S C O N S T . A R T . 8 , 1 3 . 29In fact, the Court stated “It cannot be seriously asserted that a private

citizen surrenders his right to freedom of expressi on when he becomes a licensed attorney in this state.” Polk v. State Bar of Texas , 374 F. Supp. 784 (N.D. Tex. 1974). TEXAS CONST. ART. 8, 13. In Polk v. State Bar of Texas , Polk successfully enjoined the Texas State Bar from chilling his speech, even though he was critical of a District Attorney and Judge—suggesting corruption. 374 F. Supp. 784 (N.D. Tex. 1974). The United States Constitution has been read to limit and restrain the state's power to pre scribe standards of conduct for attorneys. NAACP v. Button , 371 U.S. 415, (1963). The Constitutions of Texas and United States protect not onl y the ability of the speaker to speak but of the public to receive information . TEX. CONST. ART. I SEC 8, 13, U.S. CONST. AMEND I. The constitutional protec tions of free speech and press were fashioned to assure the unfett ered interchange of ideas for bringing about political and social changes des ired by the people. New York Times Co. v. Sullivan , 376 U.S. 254 (1964). There is universal agreementthat a major purpose of the first amendment is to protect the free discussion of governmental affairs. Mills v. Alabama, 384 U.S. 214, 218 (1966). The A p p e l l a n t s s u b mi t t h a t t h e mo t i o n f o r s a n c t i o n s w a s i n t e n d e d t o punish core political speech on matters of public concern prote cted by t h e Constitution. 30TEXAS CONST. ART. I, SEC 8, 13. U.S. CONST. AMEND I

.

The Court abused its discretion by issuing sanctions withou consideration of the required nexus under TransAmerican Natural Gas Corp. v. Powell , 811 S.W.2d 913, 917 (Tex. 1991). Appellants also submit that there i s no evidence that any of the alleged statements by their counsel substantially prej udiced the administration of justice, which is a key component of Rule 3.07. Tex. Disc. R . Prof. Cond. 3.07. There was no evidence presented to justify $10,000 in sancti ons even if Rule 3.07 had been legitimately violated, which it was not.
In TransAmerican Natural Gas Corp. v. Powell , 811 S.W.2d 913, 917 (Tex. 1991), the Supreme Court held that due process of law requ ires that such a discovery sanction be "just." The Court expressed th e “justness” requirement in several ways, including the requirement that there must be a direct relationship between the offensive conduct and the sanction impos ed. Id . This is sometimes called the “nexus” requirement. The TransAmerican re quirement of "justness" provides that the punishment imposed must not be exc essive, and that the punishment must fit the crime. TransAmerican Natural Gas Corp. v. Powell , 811 S.W.2d 913, 917 (Tex. 1991). The court must consider l ess stringent sanctions before imposing death penalty sanctions. The trial cou rt abuses its discretion if "the

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

further." TransAmerican , 811 S.W.2d at 918. At the hearing on July 28, 2014, during argument re garding the potential limits on pretrial publicity, the trial judge made the following statement:

“ I haven’t eve thought about or looked at my authority in terms of, you know, it’s usually a criminal trial sometimes or high pro file, which this may be a high profile civil case where you do have to think through the necessity of restricting someone to do certain things to protect the objectivity of the jury pool.” (CR Vol. 4, page 21, lines 15-21). Appellants submit that the foregoing statement implicates limits on the application of Rule 3.07. Nevertheless, the trial court ordered sanctions against Appellants' counsel without substantial evidence of a violation of Rule 3.07, without considering alternatives, and without s tating a nexus between the alleged sanctionable conduct and the sanction i mposed. Therefore, Appellants submit that the sanctions Order was an abuse of discretion, which should be reversed. CONCLUSION AND PRAYER WHEREFORE, Appellants request the Court to reverse the tria l court's Final Judgment and Orders and render Judgment dismissing th e guardianship

32proceeding. Alternatively, Appellants request the Court t o reverse the trial court's

Final Judgment and Orders and remand the proceeding to the trial court for dismissal. Appellants also request the Court to reverse the Orders imposing sanctions. Appellants request the Court to grant them all ad ditional relief to which they may be justly entitled. Respectfully submitted, /s/ Philip M. Ross Philip M. Ross State Bar No. 17304200 1006 Holbrook Road San Antonio, Texas 78218 Phone: 210/326-2100 Email: ross_law@hotmail.com Candice Schwager State Bar No. 1417 Ramada Drive Houston, TX 77062 Phone: 832-315-8489 FAX: 713-583-0355 Attorneys for MACKEY GLEN PETERSON, TONYA PETERSON, DON LESLIE PETERSON, and LONNY PETERSON

33CERTIFICATION

I hereby certify that every factual statement in th e petition is supported by competent evidence included in the appendix or reco rd. /s/ Philip M. Ross Philip M. Ross CERTIFICATE OF COMPLIANCE I hereby certify that this brief is in compliance w ith Texas Rule of Appellate Procedure Rule 9. It contains 7,495 words, 33 pages , 14 point typeface. /s/ Philip M. Ross Philip M. Ross
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of th e above document was efiled and sent by email or electronic delivery by a greement to: Sarah Pacheco Jill Young Kathleen Beduze MacIntyre, McCulloch, Stanfield, You ng, LLP Crain, Caton & James, PC 2900 Weslayan, Suite 150 1401 McKinney St., Suite 1700 Houston, TX 77027 Houston, TX 77010 Josh Davis Russ Jones Lewis Brisbois Bisgaard & Smith, LLP Underwood, Jones, Scherrer & Weslayan Tower, Suite 1 400 Malouf, PLLC 24 Greenway Plaza 5177 Richmond Ave., Suite 505 Houston, TX 77046 Houston, TX 77056 on November 16, 2015. /s/ Philip M. Ross Philip M. Ross

34