TEXAS CAROLANNE § CAROLPETERSON, DAVID ANNE MANLEY, SILVERADO § DAVID PETERSON, SENIOR SILVERADO LIVING,INC.,d/b/a § SENIOR LIVING, INC., d/b/a Silverado Living § Senior Living - - Sugar Land, Defendants. § DISTRICT 129THJUDICIAL Defendants. 129TH JUDICIAL DISTRICT RESPONSEINOPPOSITION TODEFENDANTS' MOTIONTODISMISS PURSUANT RESPONSE IN OPPOSITION TOTRCP TO RULE91MOTION TO DISMISS DEFENDANTS' PURSUANT TO TRCP RULE 91a WRIGHT: JUDGELLOYD TOTHEHONORABLE TO THE HONORABLE JUDGE LLOYD WRIGHT: DonPeterson,LonnyPetersonandMackPeterson thisResponseto in Don Peterson, Lonny Peterson and Mack Peterson file this Response to in
Silverado Appx. 0211 No. 1-15-586-CV 3347 Rule toDismiss toTRCP Motion andwould 91a, toDefendants' Opposition to Defendants' Motion to Dismiss Pursuant to TRCP Rule 91a, and would 0 follows: A showthe show the Courtas as follows: INTRODUCTION INTRODUCTION i 0 U1 11 filed 25,2014. onJuly thissuit Plaintiffs filed this suit on July 25, 2014. andentered anappearance onJuly28,2014. 22 Defendants waived service and enteredan Defendants appearance on July 28, 2014. theirmotionto onSeptember 25,2014. 33 Defendants Defendants filed their motion to dismiss on September 25, 2014. CO UNDISPUTED MATERIAL FACTS UNDISPUTED MATERIAL FACTS is aninvoluntary residentof Silverado SeniorLiving, 4 Ruby ("Ruby") Peterson ("Ruby") isan RubyPeterson involuntary resident of Silverado Senior Living, Silverado SeniorLiving SugarLand("Silverado"). Inc.d/b/a Inc. d/b/a Silverado Senior Living - - Sugar Land ("Silverado"). durablepowerofattorneyappointing CarolManley 5 1993,R In 1993, In ubyexecuted Ruby executedaa durable power of attorney appointing Carol Manley 2013,Ruby ("Carol")aand ("Carol") ndDavid Peterson("David").However,on November15, David Peterson (''David"). However, on November 15, 2013, Ruby appointing Revocation ofPowerofAttorneyandnewpowersofattorney executedaa Revocation of Power of Attorney and new powers of attorney appointing
her DonandMackPetersonasheragents. hersons sons Don and Mack Peterson as her agents. Dr. Christopher 6 There are conflictingdiagnosesregardingRuby`scapacity. There are conflicting diagnoses regarding Ruby's capacity. Dr. Christopher dementia, althoughhe later Merkl, M.D.hasreportedthatRubyhas severe Merkl, M.D. has reported that Ruby has severe dementia, although he later testified M.D.reportedthatRuby that she has mildto moderatedementia.Dr.MarkKunik, that she has mild to moderate dementia. Dr. Mark Kunik, M.D. reported that Ruby Dr.JohnTennison, M.D. has mild to moderatedementiaandthatshelackscapacity. has mild to moderate dementia and that she lacks capacity. Dr. John Tennison, M.D. butto a reasonabledegreeof reportedthatRubyhas mildto moderatedementia, reported that Ruby has mild to moderate dementia, but to a reasonable degree of of attorneyon medical sheprobablyhadcapacityto executenewpowers medical certainty, she probably had capacity to execute new powers of attorney on 15,2013. November November 15, 2013.
Silverado Appx. 0212 No. 1-15-586-CV 3348 RULE 1aSTANDARD RULE991a STANDARD
77 TRCPRule91a TRCPRule 91a allowsaapartyto movethe party tomove groundless cause the courttoto dismissa a groundless cause
The rule of action. The of in part: rule provides inpart: dismiss causeofaction thegroundsthatithas [A] [A]party may moveto partymaymove to dismissaacause of actionon on the grounds that it has
basisinlaw nobasis no orfact. in lawor fact. A ofaction has obasis cause of action hasnno A cause inlawifthe basis in law if the
allegations,taken allegations, astrue, takenas togetherwith inferencesreasonablydrawn true, together with inferences reasonably drawn entitle theclaimant tothereliefsought. Acause of from them,do fromthem, donot not entitle the claimant to the relief sought. A cause of actionhas nobasisin action hasno factif reasonable basis in fact ifno personcouldbelievethefacts no reasonable person could believe