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No. 01-15-00567-CV

IN THE COURT OF APPEALS FOR THE FIRST DISTRICT

HOUSTON, TEXAS

********************

MACKEY GLEN PETERSON, TONYA PETERSON, DON LESLIE

PETERSON AND LONNY PETERSON, APPELLANT

v.

CAROL ANNE MANLEY, DAVID PATTERSON, SILVERADO SENIOR

LIVING, INC., D/B/A SILVERADO SENIOR LIVING SUGAR LAND

AND

No. 01-15-00586-CV

IN THE COURT OF APPEALS FOR THE FIRST DISTRICT

HOUSTON, TEXAS

********************

MACKEY GLEN PETERSON, TONYA PETERSON, DON LESLIE

PETERSON AND LONNY PETERSON, APPELLANT

v.

CAROL ANNE MANLEY, DAVID PATTERSON, SILVERADO SENIOR

LIVING, INC., D/B/A SILVERADO SENIOR LIVING SUGAR LAND

UNAGREED MOTION BY APPELLEE SILVERADO FOR JUDICIAL

NOTICE AND ADMINISTRATIVE RELIEF

ACCEPTED

01-15-00586-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

10/28/2015 11:20:03 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 10/28/2015 11:20:03 AM CHRISTOPHER A. PRINE Clerk
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TO THE HONORABLE JUSTICES OF SAID COURT:

1. This Motion is filed in both of the captioned cases by Defendant-Appellee,

Silverado Senior Living, Inc. d/b/a Silverado Senior Living – Sugarland, Texas

(“Silverado”).

2. The Chart filed as an Exhibit to this Motion is provided for the Court’s

convenient reference. This Chart lists various items contained in the Clerk’s Record

filed in each case shown in the caption above. It also includes references to the

Orders from which Appellants appeal.1

3. The parties’ dispute originates in a guardianship case filed in a statutory probate

court. Donny Leslie Peterson (“Don”) and Mackey Glen Peterson (“Mack”) filed an

action seeking guardianship of their mother, Ruby S. Peterson (“Ruby”) on December

11, 2013. The action was filed with the County Clerk of Harris County, Texas, given

Cause Number 427208, and assigned to Statutory Probate Court Number 1. R 586:14-

45. The original guardianship petition named Carol Peterson Manley (“Manley”) and

David Troy Peterson (“David”) as Respondents. Original Guardianship Petition, CR

586:14, at 15, ¶¶ 4, 5.

4. Ruby (allegedly appearing In Proper Person), Mack, Don and Lonny Peterson

(“Lonny”) later filed a separate lawsuit in Harris County District Court (the “State

1

In order to distinguish the two Records on Appeal, the unique 3-digit case number precedes

the reference to the Record. Thus, CR 586:14-45 refers to Clerk’s Record, pages 14-45, in Case

Number 01-15-00586-CV.
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District Court Lawsuit”).2The State District Court Lawsuit, filed on July 17, 2014,

was given Cause Number 2014-409807 by the Harris County District Clerk, and

assigned to the 129th Judicial District Court in and for Harris County, Texas. CR

567:23. Plaintiffs sued Manley, David, Silverado Senior Living of Sugarland, Texas

(“Silverado”), Tanna McMillan (“McMillan”), Linda Lavinson (“Lavinson”) and Dr.

Rebecca Clearman (“Clearman”). CR 567: 23, at 23, 25-26.

5. Upon Motion to Transfer, the Statutory Probate Court signed its Order of

Transfer on July 25, 2014, requiring the State District Court Lawsuit to be transferred

to the Probate Court, and ordered the proceeding to be assigned Cause Number

427,208-401. The Judge in the State District Court Lawsuit also ordered the State

District Court Lawsuit to be transferred to the Statutory Probate Court, in furtherance

of the Order of Transfer by the Statutory Probate Court. See, Order of Transfer to

Probate Court Pursuant to Probate Court Order, signed August 19, 2014, (with a copy

of the Statutory Probate Court’s Order of Transfer attached as Exhibit “A”). CR

567:15-20.

6. After the conclusion of all proceedings in both cases below in the Statutory

Probate Court, Appellants filed their original Notice of Appeal. CR 586:3955-3960.

That Notice carried a caption that included both the initial guardianship case and also

2

The designation, “State District Court,” is inserted to distinguish it from the state Statutory

Probate Court.
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the transferred State District Court Lawsuit. Id. The Notice of Appeal is included in

the Clerk’s Record in #586, but is not included in the Clerk’s Record in #567 (which

appears to relate primarily to the transferred State District Court Lawsuit).

7. Appellants then filed an Amended Notice of Appeal. CR 567:2155-2159; CR

586:3961-3964. In doing so, Appellants allocated various Orders listed in their

original Notice of Appeal, from which Orders two separate appeals were taken. Id.

8. Each of the two appeals should be considered within the context of the other

appeal, due to the inter-related proceedings below.

9. Therefore, this Court is requested, in each case on appeal, to take judicial notice

of the Record on Appeal and the adjudicative facts in the Record on Appeal of the

other case. See generally, Tex. R. Evid. 201, Judicial Notice of Adjudicative Facts.

Appellate civil proceedings are not outside the application of those Rules insofar as

they relate to judicial notice. See, e.g., D&M Marine v. Turner, 409 S.W.3d 853, 856

(Tex. App. – Ft. Worth, 2013, no sub. hist.) (even if related federal court proceedings

were outside of the appellate record, inclusion of the items in a party’s appendix was

not improper because the appellate court was allowed to take judicial notice of such

adjudicative facts, citing, Tex. R. Evid. 201 & Thomas v. Cook, 350 S.W.3d 382, 387

n.2 (Tex. App. – Houston [14th Dist.] 2011, pet. denied) (appellate court took judicial

notice of the docket sheet in a related federal district court proceeding).
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10. This Court also is respectfully requested to assign both cases to the same

judicial panel, in order to avoid the risk of inconsistent or contradictory

determinations of the issues on appeal in both cases.

WHEREFORE, PREMISES CONSIDERED, Silverado prays that the Court

take judicial notice as requested in this Motion; assign both appeals to the same

judicial panel; and for general and equitable relief.

Respectfully submitted,

LEWIS, BRISBOIS, BISGAARD &

SMITH, LLP

/s/ P. Alan Sanders

PANNAL ALAN SANDERS

TBN: 17602100

JOSH K. DAVIS

TBN: 24031993

Weslayan Tower, Suite 1400

24 Greenway Plaza

Houston, Texas 77046

(713) 659-6767 Telephone

(713) 759-6830 Facsimile

Alan.Sanders@lewisbrisbois.com

Josh.Davis@lewisbrisbois.com

ATTORNEYS FOR APPELLEE,

SILVERADO SENIOR LIVING, INC.

D/B/A SILVERADO SENIOR LIVING -

SUGAR LAND (“SILVERADO”)
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CERTIFICATE OF CONFERENCE

I certify that I have communicated with all other counsel of record in the

foregoing appeals, initially last week and in follow up yesterday, October 26, 2015,

and none of them opposed the relief requested in this Motion by the time this Motion

was filed. More particularly, Russ Jones and Jill Young expressly agreed to the relief

requested in this Motion. However, no response whether by way of objection,

agreement or otherwise was received from the remaining record counsel. Therefore,

this Motion has been characterized as “unagreed” in contrast to being “agreed,”

“unopposed” or “opposed.” Thus certified on October 27, 2015.

/S/ P. Alan Sanders

P. ALAN SANDERS
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CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing instrument was served

upon all counsel of record via electronic filing on October 28, 2015.

Candice L Schwager

The Schwager Law Firm

1417 Ramada Dr.

Houston, Texas 77062

Attorney for Plaintiffs/Appellants

Philip M. Ross

1006 Holbrook Road

San Antonio, Texas 78218

Attorney for Plaintiffs/Appellants

Sarah Patel Pacheco

Crain, Caton & James, PC

1401 McKinney Street

1700 Five Houston Center

Houston, Texas 77010

Attorneys for /Appellees / Respondents / Defendants,

Carol Manley and David Peterson

Jill W. Young

MacIntyre, McCulloch, Stanfield & Young, LLP

2900 Weslayan, Suite 150

Houston, Texas 77027

Guardian Ad Litem for Ruby S. Peterson (now deceased)

W. Russ Jones

Underwood, Jones Scherrer & Malouf, PLLC

5177 Richmond Ave, Suite 505

Houston, Texas 77056

Attorney Ad Litem for Ruby S. Peterson (now deceased)

/S/ P. Alan Sanders

P. ALAN SANDERS
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Description/Title Date /Date

Signed

Appellate

Case

Number3

Clerk’s

Record #

Order Granting Authority for Guardian Ad Litem &

Attorney Ad Litem to Execute Peterson Rule 11

Agreement

11/07/2014 567 1386 - 1390

Order Granting Authority for Guardian Ad Litem &

Attorney Ad Litem to Execute Peterson Rule 11

Agreement

11/07/2014 586 3541-3545

Order on David Peterson and Carol Anne Manley’s

Motion for Sanctions 11/10/2014 567 1385

Order for Sanctions 11/10/2014 586 3538-3540

Order Granting Defendant Silverado Senior Living, Inc.

d/b/a Silverado Senior Living – Sugar Land’s Rule 91a

Motion to Dismiss

11/10/2014 586 3546

Order Granting Silverado’s First Amended Plea to the

Jurisdiction 01/09/2015 567 1513

Order Authorizing Payment of Appointee’s Fees

and Expenses Pursuant to Texas Estates Code

Section 1054.055 for the Time Period March 27,

2014 through October 31, 2014

01/09/2015 586 3819-3820

Order Granting Application for Attorney Fees

Pursuant to Rule 91a Order Entered on November

10, 2014

01/09/2015 567 1514-1515

Order Denying Motion to Reconsider 91a Motion to

Dismiss and Motion for Sanctions 01/09/2015 567 1524

Order Granting Silverado’s 91a Motion to Dismiss

Plaintiffs’ Breach of Trust and/or Breach of

Fiduciary Duty

01/09/2015 567 1531-1532

Order Approving Appointee’s Fees & Expenses 01/09/2015 567 1614-1615

Order Granting Silverado’s Motion to Modify Order

Granting First Amended Plea to the Jurisdiction 05/12/2015 567 2133-2134

Modified Order Granting Silverado’s First

Amended Plea to the Jurisdiction

05/12/2015 567 2135

Final Judgment 05/12/2015 586 3948-3951

Order Denying Motion to Dismiss 05/12/2015 586 3952-3953

Order Granting Silverado’s Motion for Summary

Judgment 05/12/2015 567 2145

Original Notice of Appeal (dual case caption, for Probate

Court Nos. 427,208 and 427,208-401) 06/08/2015 586 3955-3960

Amended Notice of Appeal (in 567) 06/17/2015 567 2155-2159

Amended Notice of Appeal (in 586) 06/16/2015 586 3961-3964

3

The additional identifying numerical strings, e.g., 01-15-xxxx-cv, are omitted for brevity of

reference in this Chart.