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A lawyer representing AAA Warmcare, a Potomac assisted living facility shut down by the state after allegations of resident abuse, has moved to dismiss a lawsuit against the facility.

Among other points of contention, at issue is whether former AAA Warmcare resident and plaintiff Elizabeth Tully — who has been described by her lawyer as someone in the advanced stages of dementia — is competent to sue.

The lawyer, Alexander Vincent of the Potomac firm Shulman Rogers, appeared in Montgomery County Circuit Court on Wednesday for a scheduling hearing. William Askinazi of Germantown, who is representing Tully and her husband Raymond, who both alleged to have been abused while living at the facility, also appeared at Wednesday's hearing. In court, Judge David Boynton set a hearing date of Jan. 19 to address the motion to dismiss the Tullys' claims.

Askinazi filed the $10 million suit for the Potomac residents, both in their 80s, Sept. 25. The move followed the August closure of the Gainsborough Road facility by the state Department of Health and Mental Hygiene after an unannounced investigation. Residents were removed from the eight-bed facility and Montgomery County police launched an elder abuse investigation.

The lawsuit was filed for Raymond and Elizabeth Tully along with Tully's daughter, Mary Ann Shanesy. The lawsuit alleged that Elizabeth Tully had tape and a rag tied over her mouth and was tied to her wheelchair numerous times; she was belted and gagged "with food on her plate at the dinner table but was not allowed to eat," was "often allowed to wallow in her fecal waste" and was "slapped and pummeled" by a caregiver. The lawsuit also alleged that Raymond Tully was "scorned and ridiculed" by staff and forced to urinate in his pants on several occasions.

The suit alleges that the abuse came from a caregiver who was hired after being improperly screened by the facility's owner, Sreedevi Datla. The lawsuit claims the caregiver was illiterate, gave medication to the couple without knowing the prescription and had "a violent background." The suit also alleges that the caregiver called for decreasing food rations to residents.

Datla, according to the suit, knew about cases of physical and emotional abuse but didn't move to correct or better the circumstances. Some of the alleged violations were captured in photographs by concerned staff members who reported the situation, Askinazi said.

The lawsuit names seven violations of Maryland law including negligence, breach of contract and infliction of emotional distress. It also includes one count of violation of a federal civil rights statute. However, according to court documents filed by Vincent, the claims should be dismissed because of Elizabeth Tully's "lack of capacity" to sue. Askinazi has moved to have Shanesy appointed as her guardian.

"By virtue of Mrs. Tully's alleged ‘advance stage of dementia' and the fact that her natural daughter, Mrs. Shanesy, proposes to sue on her behalf, it must be assumed that she lacks the capacity to sue," the documents read.

In opposition, Askinazi wrote, "The defendant has not established that Elizabeth Tully is incompetent nor have they tendered any medical evidence of that nature." He also wrote that he expected Shanesy to be appointed as a legal guardian "should [Elizabeth Tully] be held incompetent."

Vincent also moved to dismiss all of the eight claims against AAA Warmcare, according to court documents, citing a variety of legal statues. The claims are "long on generalized accusations and short on detailed factual specifics," he wrote. Among other points of contention, he disputed that Shanesy could legally be appointed Tully's guardian. He also argued that the claims of abuse are against a caregiver employed by Datla, and that Askinazi had not demonstrated whether Datla "improperly screened" the caregiver or that she knew of the alleged abuse. Askinazi wrote that an amended complaint had been filed to address the points.