ACCEPTED
03-14-00460-CV
5212254
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/8/2015 1:41:15 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00460-CV
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
5/8/2015 1:41:15 PM
IN THE COURT OF APPEALS JEFFREY D. KYLE
Clerk
THIRD DISTRICT OF TEXAS
AUSTIN
SANDRA FORD AND THE RUBY AND ANNIE SMITH FAMILY
PARTNERSHIP
Appellants,
v.
WILLIAM RUTH, JUDGMENT CREDITOR
Appellee
On appeal from the 424th district court,
San Saba County, Texas, Cause No. 9145
APPELLEE'S BRIEF
Frederick F. Boelke
State Bar Number 09775600
26545 IH-10 West
Boerne Texas 78006
210-444-0999
facscimile (210) 444-0996
fredhoelke@aol.com
ATTORNEY FOR APPELLEE WILLIAM RUTH JUDGMENT CREDITOR
CERTIFICATE OF INTERESTED PARTIES
APPELLANT/DEFENDANTS COUNSEL
Sandra Ford Burt L. Burnett
State Bar No. 00787171
Majd Ghanayem
State Bar No. 24078556
THE BURNETT LAW FIRM
P.L.L.C.
P.O. Box 1521
Abeline Texas 79604
325-673-4357
325-428-0428 (Fax)
BmtLBurnett@~ahoo.com
Majd@burtburnet.com
The Ruby and Annie Smith Coby D. Smith
FamilY_ Partnershi_Q State Bar No. 00788433
Brackett & Ellis
A Professional Corporation
100 Main Street
Fort Worth Texas 76102-3090
817-338-1700
817-870-2265 (fax)
csmith@belaw.com
Aooellee/Plaintiff
William Ruth Judgment Frederick F. Hoelke
Creditor State Bar No. 09775600
26545 IH-10 West
Boerne Texas 78006
210-444-0999
210-444-0996 (Fax)
fredhoelke@aol.com
2
Other Related Parties
Peggy Joyce Ruth, mother of
Plaintiff Appellee and a
partner in The Ruby and
Annie Smith Family
Partnership
James Crow, brother of Peggy
Joyce and a partner in The
Ruby and Annie Smith Family
Partnership, in nomine only all
interest having been forfeited
with order of forfeiture with
his conviction on 17 of 20
counts of Fraud in the U.S.
District Court for the Northern
District of Texas San Angelo
Division
Arma Lee Crow, mother of
Peggy Joyce Ruth, James
Crow and Sandra Ford
grandmother of William Ruth
and a partner in The Ruby and
Annie Smith Family
PartnershiQ
3
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PARTIES ........................... 2-3
TABLE OF CONTENTS .................................................... 4
TABLE OF AUTHORITIES ................................................ 5
STATEMENT OF THE CASE ............................................ 7
REQUEST FOR ORAL ARGUMENT .................................... 15
ISSUES PRESENTED ...................................................... 16
STATEMENT OF THE FACTS ........................................... 17
SUMMARY OF THE ARGUMENT ...................................... 21
APPELLEE'S COUNTER POINT ......................................... 24
ARGUMENT AND AUTHORITIES .................................... .27
PRAYER ..................................................................... 40
CERTIFICATE OF SERVICE ............................................ .41
CERTIFICATE OF COMPLIANCE .................................... .41
AFFIDAVIT OF FREDERICK F. HOELKE .......................... .42
4
TABLE OF AUTHORITIES
CASES
Alan Reuber Chevrolet, Inc. vs. Grady Chevrolet, Ltd.,
287 S.W.3d 877, 887 {Tex. App.-Dallas 2009, no pet.) ............. 25, 28
Arndt v. Farr is,
633 S.W.2d 497, 499 (Tex. 1982) ....................................... 31
Campbell v. Campbell, 362 S.W.2d 904.
Chang v. Nguyen,
81 S.W.3d314,316{Tex.App.Houston[l41hDist.]2001,nopet.) ...... 37
Continental Airlines, Inc. v. Kiefer,
920 S.W.2d 274, 276 (Tex. 1996) ..................................... .35
Demler v. Demler,
836 S.W.2d 696, 700 {Tex. App.-Dallas 1992, no writ) ............ 37
First Heights Bank, FSB v. Maron,
934 S.W.2d 843 {Tex. App-Houston
[14th Dist.] 1996 no. writ) ............................................... 37
Gregory v. White,
604 S.W.2d 402 {Tex. Civ. App.-San Antonio, 1980,
writ ref n.re.) .............................................................. 39
Greenberg v. Brookshire,
640 S.W.2d 870, 872 (Tex. 1982) ...................................... 25,30
Hyundai Motors Co. v. Alvarado,
892 S.W.2d 853 ........................................................... 35
Inglish v. Union State Bank,
945 S.W.2d 810, 811 (Tex. 1997) .................................... .35
5
In re A.MS.
277 S. W.3d 92, 99 ................................................... 3 7
In re B.L.D.,
113 S.W.3d 340, 350 (Tex. 2003) ................................. 33
In re Shaw,
966 S.W.2d 174, 177 (Tex. App.-El Paso, 1988, no pet) ...... 28
Irwin v. Huey,
23 S.W. 324 (Tex. Civ. App. 1893) .............................. 39
Jones v. Nightingale,
900 S.W.2d 87, 90 (Tex. App.-San Antonio 1995, writ ref.) ... 28
Lehman v. Har-Con Corp., 39 S.W.3d 191(Tex.2001) ......... 29
McElwee v. McElwee,
911S.W.2d182, 186 (Tex. App.-Houston [1st Dist.] 1995,
writ denied) ......................................................... 26,30
Mullins v. Thomas,
136 Tex. 215, 217, 150 S.W.2d 83, 84 (1941) .................. 29
Routon v. Phillips,
246 S.W.2d 223 ...................................................... 37
See Rapid Settlement, LTD v. Symetra Life Insurance Co.,
234 S.W.3d 788, 795 (Tex. App.-Tyler2007, no pet.) .......... .31
Spradley v. Hutchinson,
787 S.W.2d 214, 219 (Tex. Civ. App.-Fort Worth 1990, writ denied) ...
Tex. R. Civ. P. 165 .......................................... 13,24 &28
Tex. R. Civ. P. 165 (a) ............................................. 13
Tex. R. Civ. P. 18b(a) .............................................. 26
6
STATEMENT OF THE CASE
Nature of the Case:
This appeal arises from Appellant's continued efforts to not sell
certain property situated in San Saba County, Texas [hereinafter "San Saba
Property"] to Appellee William Ruth (and his former partner, SRK Ranch,
LLC) [hereinafter also collectively referred to as "Buyers"] despite that the
individual members of The Ruby and Annie Smith Family Partnership
[hereinafter referred to as "Partnership"] were specifically ordered to do so
on or about December 20, 2011 by the 35th Judicial District Court in Brown
County, Texas, and the Partnership was ordered to do so by the 424 1h
Judicial District Court in San Saba County, Texas on or about March 22,
2012.
The Partnership is comprised of its general partners: Arma Lee Crow
who is 94 years of age, and her three children, James Crow, Sandra Ford
and Peggy Joyce Ruth, each owning a twenty-five (25%) interest in the
Partnership.
On or about February 12, 2010 a Suit for Partition of the Brown
County Property was filed in Cause No. CV1002044; styled Arma Lee
Crow, James Albert Crow and Sandra Ford vs. Peggy Joyce Ruth; In the
7
35th Judicial District Court, Brown County, Texas. [hereinafter referred to
as the "Brown County Litigation"]. Appellee, Ruth was not a party to this
litigation neither was the appellant Partnership.
On or about September 15, 2010, Arma Lee Crow, James Albert
Crow and Sandra Ford entered into a Mediated Settlement Agreement with
Peggy Joyce Ruth which also included these parties agreeing to sell the San
Saba Property.
On or about January 181h, 2011, Arma Lee Crow, James Albert Crow,
and Sandra Ford made application to sell the San Saba Property post
indictment and arraignment of James Albert Crow but before conviction
and Preliminary Order of Forfeiture just months before James Albert
Crow's conviction. See Exhibit 1 attached.
On or about February 8, 2011, Arma Lee Crow, James Albert Crow,
Peggy Joyce Ruth and Sandra Ford pursuant to the Mediated Settlement
Agreement, entered into a Rule 11 Agreement which stated in part that
"with regard to the San Saba Property, all title and curative matters will be
cleared prior to closing ...."
On or about March 31, 2011, the Partnership entered into an
Unimproved Property Contract to sell the San Saba Property to the Buyers.
8
On or about May 5, 2011, James Albert Crow was found guilty on 17
of the 20 counts involving a healthcare fraud scheme and was also
convicted of aggravated perjury. James Albert Crow was later sentenced to
approximately 6 years in the La Tuna federal prison in El Paso, Texas.
After the verdict, the Honorable Sam Cummings, United States District
Judge for the Northern District of Texas, entered a Preliminary Order of
Forfeiture in the amount of $1,653,474 against Crow's assets which would
have included James Crow's interest in the San Saba Property had Crow
disclosed his ownership interest in the Partnership. See Exhibit 2 attached.
On or about August 9, 2011, certain members of the Partnership, in
particular, James Crow and Appellant Sandra Ford, sought to commit a
fraud upon the U.S. Government (and the Buyers) by selling the San Saba
Property to the Buyers by not disclosing Crow's interest in the San Saba
(and Brown County) Properties for purposes of circumventing the May 5,
2011 Preliminary Order of Forfeiture. See Exhibit 2 attached This resulted
in the U.S. Department of Justice putting the 35th District Court on notice of
the Preliminary Order of Forfeiture, Exhibit 2 by Steven Jumes, Assistant
U.S. Attorney, issuing a letter to the 35th Judicial Court in Brown County.
See Exhibit 3, attached. Which states, in part, that "neither member of my
office nor the Court in San Angelo were informed by James Crow as to his
9
interest or intent to sell it." Therefore, the sales transaction could not be
completed, and further delayed by Crow appealing his conviction.
On or about August 9, 2011, as a result of this unlawful act by the
Appellant Sandra Ford, and in particular, James Albert Crow, the United
States Department of Justice sought to amend its Preliminary Order of
Forfeiture by motion to include the San Saba property. See Exhibit 4
attached. Additionally James Albert Crow was immediately arrested by the
U.S. Marshals and incarcerated prior to his sentencing.
On or about August 30, 2011 as a result of the U.S. Attorney's office
learning of James Crow's ownership interest in these properties, a Second
Amended Preliminary Order of Forfeiture as to Certain Substitute Assets
was entered by the Honorable Sam Cummings which specifically listed the
San Saba (and Brown County) Properties. See Exhibit 5 attached. As a
result, the lien and forfeiture claims encumbered title to the San Saba
Property which prevented the Partnership from providing "clear title" to the
Buyers.
On or about December 4, 2011, Appellee Ruth sought, but was
denied, intervention in the Brown County Litigation.
10
Course of Proceedings and Trial Court Disposition in the San Saba
Litigation:
On or about January 11, 2012, William Ruth, after being denied
intervention in the Brown County litigation, filed suit against the
Partnership in the 4241h Judicial District Court for specific performance and
statutory fraud [hereinafter referred to as the "San Saba Litigation"]
On January 18, 2012, Steven Jumes, Assistant U.S. Attorney notified
the court of the following: "August 16, 2011, Judge Cummings signed the
forfeiture order terminating James Crow's legal interest in the property
[Brown County and San Saba County Properties} involved in the civil
action before you." See Exhibit 6, attached.
On or about January 25, 2012, William Ruth filed his Motion for
Final Summary Judgment and attached to his motion the December 20,
2011 Order entered in the Brown County Litigation which the court
specifically ordered that "the real property located in San Saba County,
Texas that is subject to the mediated settlement agreement is to be sold .... "
to the Buyers.
Prior to the hearing on Ruth's Motion for Final Summary Judgment,
Peggy Joyce Ruth met with Arma Lee Crow about the Partnership's refusal
11
to sell the San Saba Property to the Buyers. Ruth met only with Arma Lee
Crow since it would have been futile to meet with Sandra Ford since Ford
and James Crow blamed William Ruth for spoiling their attempt to sell
James Crow's interest in the San Saba Property without the U.S.
Government learning of Crow's ownership interest. Further Peggy Joyce
Ruth did not attempt to meet with Jam es Albert Crow because Crow's legal
interest in the San Saba Property had been terminated. See Exhibit 6. Arma
Lee Crow consented and approved Peggy Joyce Ruth facilitating a
resolution of the matter with William Ruth.
On or about March 22, 2012, the Partnership entered into an "agreed
judgment" (consent judgment) with William Ruth.
It is disingenuous, if not, sanctionable, for Appellants to characterize
Ruths' actions as a "fraud scheme" when the trial court in its April 15, 2014
Modified Temporary Restraining Order stated specifically that Appellants
are "restrained, directly through their counsel" from claiming that "the
1
Agreed Order in 9145 in San Saba County was obtained by fraud''.
Pursuant to the parties "agreed judgment" Ruth abandoned his
statutory fraud claim, and intended for the Agreed Order to be a "final"
1
Appellants were notified both by the Court and by counsel for Ruth by fax, phone, and
electronic mail and all attempts to secure their presence was repudiated nor was there an
objection lodged.
12
resolution of the case. Moreover, the court entered the Agreed Order
pursuant to the hearing on Ruth's motion for "final" summary judgment
which was referenced specifically throughout the March 22, 2012 Agreed
Order.
On or about April 2"d 2012, Arma Lee Crow, Sandra Ford and now
incarcerated James Albert Crow2 intervened in cause number 9145 in San
Saba County Texas. Among the things asserted in the intervention were a
motion to transfer and motion for reconsideration. None of which were
ever set for a hearing by Appellants.
On or about May 28, 2013, over a year later, Ruth was contacted by
the San Saba court pursuant to Rule 165a and all other parties. Appellee
Ruth responded by letter as to his statutory fraud claim which Ruth had
abandoned both pursuant to the agreed judgment entered into with the
Partnership, and Rule 165 TRCP, pursuant to the March 22, 2012 Agreed
Order. Consequently this case had nothing left to dismiss because the
judgment became final on April 22, 2012.
Ruth, nevertheless, informed the court in writing on or about May 28,
2013 that the March 22, 2012 Agreed Order had "disposed of all claims and
2
James Albert Crow had lost all right title and interest to the property. See Exhibit 6, the
January 181h letter of Assistant United States Attorney, Steve Jumes.
13
matters of controversies" and the case "has been resolved'. See letter which
is attached as Exhibit 7.
On or about June 26, 2013, the record reflects that the case was
dismissed by the Honorable J. Alan Garrett who had been previously
retained by Ruth as to the matter subsequent to the court entering an agreed
order on March 22, 2012.
Since the court had lost plenary power and the Partnership did not
appeal the March 22, 2012 Agreed Order, no action was taken by Judge
Garrett and the dismissal was nothing more than a ministerial act where no
jurisdictional power was exercised. See Exhibits 8 and 9 attached which
are the courts docket sheet and order on dismissal.
On or about December 20, 2013, the Partnership, Arma Lee Crow,
Sandra Ford and James Albert Crow, the latter reaching out from the federal
penitentiary intervened in the Brown County Litigation for purposes of
having the March 12, 2012 judgment in the San Saba Litigation set aside.
This action was both outside the scheduling order in the Brown County
Litigation and non proper collateral attack upon the judgment previously
rendered in cause number 9145 in San Saba County.
14
On or about April 14, 2014, the Honorable Dan Mills, district judge
for the 424th Judicial District Court in San Saba County, Texas rightfully
protected its March 22, 2012 Agreed Order by granting Ruth's Anti-Suit
Injunction and Temporary Restraining Order against the Partnership. See
footnote number 1 infra.
On or about April 15, 2014, the court granted Ruth's Modified
Temporary Restraining Order, again with notice to appellants.
On or about June 25, 2014, the court granted Ruth's Motion for
Default Judgment Setting Hearing on Date for Damages and entered a
Permanent Injunction against Appellants.
Despite the court having required service upon counsel and the
respective parties, Appellants made no objections and preserved no errors
for appeal as to the court granting Ruth's Anti-suit Injunction, Permanent
Injunction and Motion for Default Judgment, and seek to raise a complaint
the first time on appeal.
REQUEST FOR ORAL ARGUMENT
Oral Argument is requested in this appeal.
15
ISSUES PRESENTED
REPLY TO ISSUE NO. 1: The evidence was legally and
factually sufficient to support the trial court protecting its March 22, 2012
Agreed Order rendered pursuant to Ruth's Final Summary Judgment
Motion, and finding that the judgment was a final and enforceable
judgment.
REPLY TO ISSUE NO. 2: The evidence was legally and
factually sufficient to support the trial court protecting its March 22, 2012
Agreed Order, and finding that the judgment was a final and enforceable
judgment.
REPLY TO ISSUE NO. 3: The evidence was legally and
factually sufficient to support the trial court granting Appellee' s Permanent
Injunction against Appellants.
REPLY TO ISSUE NO. 4: The evidence was legally and
factually sufficient to support the trial court granting Appellee's Anti-Suit
Injunction, Permanent Injunction and Default Judgments.
16
STATEMENT OF FACTS
The record will reflect that Appellants, although served and noticed,
made no objections and preserved no errors as to the San Saba trial court
granting the Ruth's Anti-suit Injunction; Permanent Injunction; and Default
Judgments against Appellants, and now seek to raise a complaint for the
first time on appeal.
It is disingenuous, if not, sanctionable, for Appellants to intentionally
mischaracterize the Ruths' actions as a "fraud scheme" when the trial court
in its April 15, 2014 Modified Temporary Restraining Order stated
specifically that the Appellants are "restrained, directly and through their
counseI" from claiming that "the Agreed Order in 9145 in San Saba County
was obtained by fraucf'.
Appellant seriously misstates the facts in its brief, in particular, page
5 of its brief, where appellant attempts to bring into this controversy actions
that happened in Brown County where Appellee was not even a party nor
was the Partnership a party at the time and which are irrelevant to the issues
of this appeal. William Ruth did not represent and/or seek to represent the
Partnership, and filed suit against Jam es Crow and Sandra Ford, listing the
17
Partnership as an "interested party" as a result of James Crow's attempt to
exploit the financial resources of his mother Arma Lee Crow. As stated
herein and above, the court held specifically that the Ruths' committed no
fraud nor did Appellants raise a timely objection or preserve any errors on
appeal, and are attempting to do so now for the first time.
On or about January 11, 2012, William Ruth filed suit against the
Partnership in Cause No. 9145; styled William Ruth vs. The Ruby and Annie
Smith Family Partnership; in the 424 Judicial District Court, San Saba
County, Texas. (C.R. 2-5)
Appellants misstate the facts as to Ruth's Motion for Final Summary
Judgment and the March 22, 2012 Agreed Order. The evidence in support
of the Motion for Final Summary Judgment was legally and factually
sufficient to support Ruth's causes of action. The statutory fraud claim
against the Partnership was abandoned pursuant to the parties March 22,
2012 "agreed judgment", and at the time, Ruth had not employed counsel,
therefore, Ruth, as a 'pro se' litigant, was not entitled to or pursued a claim
for attorney fees.
Contrary to the Appellants position the court never refused to set a
hearing. Appellants own lack of action caused no hearing to be set on their
18
motions to transfer venue and request for rehearing on the granted motion
for summary judgment. No court ever refused a motion to set because it
was never filed. The record contains no motions to set any of these motions
nor does it contain a mandamus filing if the court was refusing to comply
with a request for hearing grounded within a due process or any other
argument. Oddly enough no appeal was ever taken on this case prior to
now.
On or about December 30, 2013, the Partnership filed an untimely
Plea in Intervention in the Brown County Litigation. (C.R.185). Due to the
Partnership intervention in the Brown County Litigation, Peggy Joyce Ruth
sought to exercise her right, pursuant to The Ruby and Annie Smith Family
Partnership Agreement, to arbitrate.
On or about March 17, 2014, Peggy Joyce Ruth filed a Motion to
Abate and Arbitrate. The trial court denied the motion, and the matter was
appealed. This resulted in a stay of the Brown County Litigation. C.R. 6-
7)
At no time, did the 35th Judicial District Court consolidate the San
Saba Litigation with the Brown County Litigation. Appellants have
19
included these irrelevant matters which provide confusion as to matters and
issues arising from the San Saba Litigation which are now before this court.
On or about April 14, 2014, William Ruth filed his Anti-suit
Injunction, including a Temporary Restraining Order against the
Partnership for, among other things, the Partnership's attempt to set aside
March 22, 2012 Agreed Order. (C.R. 170-203). The San Saba trial court
granted William Ruth's temporary restraining order on or about April 14,
2014. (C.R. 224). The Order further ordered the Partnership to appear for a
hearing. (C.R. 226)
Despite effective service on each member of the Partnership,
including attorneys, Coby Smith and Burt Burnett, only Peggy Joyce Ruth
appeared for the hearing.
On or about April 15, 2014, the San Saba trial court entered a
Modified Temporary Restraining Order which, in part, enjoined Appellants
from claiming that the March 22, 2012 Agreed Order was obtained by
fraud. (C.R.227-230)
On or about June 25, 2014, the San Saba trial court granted William
Ruth's Permanent Injunction and Default Judgments against the Partnership
and Sandra Ford. (C.R.248-249)
20
Appellants made no objections and preserved no errors for appeal as
to the court granting Ruth's Anti-suit Injunction, Permanent Injunction and
Motion for Default Judgment, and seek to raise a complaint only on appeal.
SUMMARY OF THE ARGUMENT
The central issue involves the March 22, 2012 Agreed Order which
the 424th Judicial District Court held specifically to be a "final judgment".
The Appellants have erroneously alleged that the March 22, 2012 Agreed
Order was not a final judgment despite that the parties sought to resolve the
litigation by way of a settlement which the parties announced their
settlement agreement at the hearing on Ruth's motion for final summary
judgment. Ruth again confirmed this in his May 28, 2013 letter to the court
which responded to the Courts notice of dismissal which was delivered by
the United States Postal Service wherein Ruth specifically indicated that all
matters of controversy had been resolved pursuant to the March 22, 2012
Agreed Order. Since there were no multiple defendants, nor counterclaims
or cross claims, the case was dismissed. The agreed order became a final
judgment and has been held to be a final judgment by the trial court.
Appellants' argument fails for a number of reasons, namely, an
agreed (or consent) judgment is generally not appealable. Once a trial
21
court renders an agreed judgment, a party may not withdraw its consent if at
the time of the rendition the trial court was not aware of any objections.
Not only did the Appellants not file any counterclaims or obtain a trial
setting, the matter was not timely appealed.
It cannot be disputed that Appellants entered into a binding and
enforceable contract with the Buyers to sell the San Saba Property to the
Buyers. The 35th Judicial District Court recognized the sales contract to be
valid and enforceable, and the 424th Judicial District Court ordered that the
Partnership provide Ruth with specific performance.
The question, therefore, must be asked why Appellants are making
such extensive efforts to not honor an agreement which the members of the
Partnership were already bound to honor, and whether it is reasonable to
believe that Arma Lee Crow, at 94 years of age, did not desire to conclude
this lengthy and vexatious litigation when she approved Peggy Joyce Ruth
entering into an "agreed judgment" with William Ruth prior to Ruth's
hearing on his motion for "final" summary judgment; especially, when
Jam es Crow had already lost his legal interest in the San Saba Property.
The Partnership has simply avoided honoring its agreements with the
Buyers and the respective court orders as to the sale of the San Saba
22
Property, and has raised, for the first time on appeal, its objections to the
March 22, 2012 Agreed Order by claiming that the March 22, 2012 Agreed
Order was an interlocutory order simply because the Order is silent as to
Ruth's statutory fraud claim and request for attorney fees which were
abandoned on March 22, 2012.
The problem, however, with Appellants' argument, is that Ruth was
not precluded from abandoning his statutory fraud claim and request for
attorney fees pursuant to TRCP 165 in order to resolve the litigation
pursuant to the "agreed judgment", and had not even employed legal
counsel at the time of the March 22, 2012 hearing. Therefore, Ruth was not
entitled to attorney fees as a pro se litigant. Not only did Ruth make this
announcement to the court at the March 22, 2012 hearing, this was again
announced to the court over a year later in writing on or about May 28,
2013 prior to the court dismissing what ever remained in the case on or
3
about June 26, 2013. The March 22, 2012 Agreed Order had resolved the
litigation, and the court was without plenary power when dismissing the
case on or about June 26, 2013. The trial court was, therefore, not in error
in its ruling that the March 22, 2012 Agreed Order was a "final judgment"
when granting Ruth's Permanent Injunction on June 25, 2014.
3
It is appellees position that the agreed order of March 22"d 2012 became a final judgment 31
days after it's entry on April 23, 2012. The trial court again confirmed this on June 25th, 2014
23
At no time was the San Saba Litigation consolidated with the Brown
County Litigation, and Appellant includes these irrelevant matters which
only add confusion to the issues before the court.
For the reasons stated herein, the trial court had already lost its
plenary power when the case was dismissed on or about June 26, 2013 by
the Honorable J. Alan Garrett who was actually disqualified pursuant to
TRCP 18b (a). 4
Appellants made no objections and preserved no errors on appeal as
to the court granting Ruth's Anti-suit Injunction, Permanent Injunction and
Motion for Default Judgment, and now seek to raise an objection the first
time on appeal.
APPELLEE'S COUNTER POINT
Texas Rules of Civil Procedure 165 states that a party who abandons
any part of his claim or defense, as contained in the pleadings, may have
that fact entered of record, so as to show that the matters therein were not
tried. Rule 165 permits an abandonment of a part of a claim or defense
before, but not after, trial on the cause and entry of judgment. This is the
4
The courts dismissal was an ministerial action versus a judicial decision in that Ruth
announced over a year earlier that all matters in controversy had been settled pursuant to the
agreed order and notified the court in writing of the same before the dismissal.
24
same requirement as a nonsuit. Alan Reuber Chevrolet, Inc. vs. Grady
Chevrolet, Ltd., 287 S.W.3d 877, 887 (Tex. App.-Dallas 2009, no pet.) A
non-suit can be made by written motion or made by an oral announcement
to the court. Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982)
It cannot be disputed that Ruth satisfied the requirements of TRCP
165 by making both an oral announcement at the March 22, 2012 hearing
and affirming this again in writing, over a year later, on or about May 28,
2013 prior to the court dismissing the case on or about June 26, 2013.
It cannot be denied that a litigant has power over his own claims, and
Ruth abandoned his statutory fraud claim when he entered into an agreed
judgment with the Partnership for all of his claims to be disposed of
pursuant to the March 22, 2012 Agreed Order which an "oral
announcement was made in open court" at Ruth's hearing on his motion for
"final" summary judgment that the parties had entered into an agreed
judgment, resolving all matters of controversy.
The San Saba trial court, therefore, entered the March 22, 2012
Agreed Order which the trial court has declared that the March 22, 2012
Agreed Order was a "final judgment".
25
Even assuming arguendo, that Ruth did not make an oral
announcement that the parties had reached an agreement to resolve the
litigation (which would include the statutory fraud claim) at the March 22,
2012 hearing on Ruth's motion for "final" summary judgment, it cannot be
disputed that Ruth made a written announcement to the court on or about
May 28, 2013 that the statutory fraud claim and any claim for attorney fees
had been abandoned, and "all matters of controversies" had been resolved
at the March 22, 2012 hearing.
Secondly, by this time, the trial court, therefore, had already lost its
plenary power prior to June 26, 2013 when the case was dismissed by the
Honorable J. Alan Garrett who had been retained by Ruth prior to his being
elected, and was, therefore, disqualified to preside over any matter of
controversy pursuant to TRCP 18b(a). Unlike recusal, disqualification
cannot be waived. Disqualification may be raised at any time. McElwee v.
McElwee, 911 S.W.2d 182, 186 (Tex. App.-Houston [1 51 Dist.] 1995, writ
denied). The courts action was administrative I ministerial versus a judicial
decision because there were no viable causes of action remaining and
plenary power had ceased to exist.
Moreover, Appellants made no objections and preserved no errors for
appeal as to the court granting Ruth's Anti-suit Injunction, Permanent
26
Injunction and Motion for Default Judgment, and seek to raise a complaint
for the first time on appeal.
ARGUMENT & AUTHORITIES
All Matters of Controversy Were Resolved Pursuant to the March 22,
2012 Agreed Order
Appellants' primary argument is that the trial court erred in finding
that the March 22, 2012 Agreed Order resolved all of Ruth's claims and
was a "final judgment" due to the Agreed Order not specifically referencing
Ruth's statutory fraud claim and request for attorney fees.
Appellants make this argument despite that Ruth, pursuant to TRCP
165, made an oral announcement in open court on March 22, 2012 at
Ruth's hearing on his "final" summary judgment motion that "all matters of
controversy had been resolved by agreement' and the court issuing its
Agreed Order, and despite that Ruth affirmed this again in writing to the
court (over a year later) on May 28, 2013 prior to the trial court dismissing
the case on June 26, 2013.
Texas Rule of Civil Procedure 165
It cannot, however, be denied that a litigant has power over his own
claims, and can abandon any claim by merely announcing his intention to
27
abandon a claim to the court, "orally or in writing". A formal amendment
of the pleading is not required to show abandonment. In re Shaw, 966
S.W.2d 174, 177 {Tex. App.-El Paso, 1988, no pet) TRCP 165 permits a
party to abandon a claim or defense at any time before, but not after, trial of
the cause. Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287
S.W.3d 877, 887 (Tex. App.-Dallas 2009, no pet.) Jones v. Nightingale,
900 S.W.2d 87, 90 (Tex. App.-San Antonio 1995, writ ref.)
In this case, Ruth not only made an oral announcement at the March
22, 2012 hearing, but also confirmed the abandonment of any remaining
claims in writing on May 28, 2013, in accordance to TRCP 165, and before
the court dismissed the case on June 26, 2013.
Finality of the March 22, 2014 Agreed Order
For this reason alone, the trial court did not err in ruling that the
March 22, 2012 Agreed Order was a "final judgment". It was clearly the
intent of Ruth to abandon the statutory fraud claim and any request for
attorney fees for purposes of resolving the litigation pursuant to the March
22, 2012 Agreed Order. Likewise, the trial court specifically ruled that the
March 22, 2012 Agreed Order was a "final judgment" disposing of any
28
need to determine the intent of the court. Lehman v. Har-Con Corp., 39
S.W.3d 191.
Even had the court not specifically ruled the March 22, 2012 Agreed
Order was a "final judgment", a judgment that actually disposes of every
remaining issue in a case is not interlocutory merely because it recites that it
is partial or refers to only some of the parties or claims. Lehman 8
Appellants attempt to also classify the March 22, 2012 Agreed Order
as an interlocutory agreed order that was not definite and certain, and the
June 26, 2013 dismissal nullified the March 22, 2012 Agreed Order.
To the contrary, Appellants make this argument for the first time on
appeal, and wholly failed to raise this objection or preserve any errors for
appeal. Therefore, Appellants objection is now waived. Regardless, an
"agreed or consent" judgment is regarded as contract and non-appealable.
Assuming, therefore, for argument sake, the entry of the second judgment
in the same case does not vacate the first and, if there is nothing to show
that the first was vacated, it remains effective and prevails, and the second
is a nullity. Mullins v. Thomas, 136 Tex. 215, 217, 150 S.W.2d 83, 84
(1941).
29
Definite and Certain
In making its argument, Appellants claim that the March 22, 2012
Agreed Order was not "definite and certain". To the contrary, granting
Ruth "specific performance" pursuant to the parties' Earnest Money
Contract to purchase the San Saba Property was clearly definite and certain,
and also consistent with the 35th Judicial District Court's December 20,
2011 Order.
In addition, since Ruth had abandoned his statutory fraud claim and
request for attorney at the March 22, 2012 hearing and affirmed this in
writing to the court on or about May 28, 2013, the court had already lost it
plenary powers long before the dismissal order was signed on or about June
26, 2013. The court, therefore, no longer had plenary power on or about
June 26, 2013 when the case was dismissed by the Honorable J. Alan
Garrett on or about June 26, 2013. Greenberg v. Brookshire, 640 S.W.2d
870, 872 (Tex. 1982).
Moreover, Judge Garrett was disqualified to preside over the case
which could not be waived. McElwee v. McElwee, 911 S.W.2d 182, 186
(Tex. App.-Houston [1st Dist.] 1995, writ denied).
30
Even had Appellants timely objected and preserved any errors on
appeal, Appellants argument is not applicable. This case involved a single
plaintiff and a single defendant, and was resolved pursuant to the parties
agreement and the March 22, 2012 Agreed Order. There were no third-
parties or any counterclaims or cross-claims which would have precluded or
prevented Ruth from abandoning his statutory fraud claim and request for
attorney fees when he entered into a settlement with the Partnership which
was announced to the Court at the March 22, 2012 hearing on Ruth's
motion for "final" summary judgment. Despite Appellants attempt to
reclassify the March 22, 2012 Agreed Order, the trial court has upheld that
it was a "final judgment".
Anti-Suit Injunction and Permanent Injunction
The Appellants are correct that a trial court has the power and
jurisdiction to enforce and protect its final judgments even after its plenary
power has expired. Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982).
This would include the power to grant an anti-suit injunction to prevent an
attack on a final judgment. See Rapid Settlement, LTD v. Symetra Life
Insurance Co., 234 S.W.3d 788, 795 (Tex. App.-Tyler2007, no pet.)
31
The problem, however, with Appellants' argument is that they simply
do not want to accept the trial court's ruling. The trial court also did not err
when it granted Ruth's motion for permanent injunction, and adequately
described the acts to be restrained which was Appellants seeking to set
aside the March 22, 2012 Agreed Judgment in the 35th Judicial District
Court in Brown County, Texas where Appellants sought to collaterally
attack the San Saba judgment. For this reason, it was not an abuse of the
trial court's discretion to grant Ruth's anti-suit injunction. Nor did the
ruling of the trial court change or modify the March 22, 2012 Agreed Order.
It is evident that no change or modification was made since Appellants have
wholly failed to identify what changes and modifications are being alleged.
Nor did Appellants raise any objections or preserve any errors for appeal as
to the trial court granting Ruth's Anti-suit Injunction, Permanent Injunction
and Motion for Default Judgment, and seek to raise a complaint for the first
time on appeal.
William Ruth v. The Ruby And Annie Smith Family Partnership
The William Ruth v. The Ruby and Annie Smith Family Partnership
was filed in the 424th Judicial Court, San Saba County, Texas. The 33rd
and 424th District Courts service four counties: Burnet, Llano, Blanco, and
32
San Saba. The Honorable Dan Mills was the judge for the 4241h Judicial
District Court.
J. Allan Garrett is the judge for the 33rd Judicial District Court and
was disqualified to make a ruling in this matter due to having previously
represented Ruth in this same matter.
In Appellants' Fourth Issue, raise an argument as to the Anti-suit
Injunction being void since the Honorable Dan Mills entered the order
while in Burnett County. Regardless of there being no error for the
Honorable Dan Mills presiding over the matter while in Burnett County, the
record will reflect that Appellants made no objection or preserved any error
for appeal.
Generally, only fundamental error can be raised for the first time on
appeal. Fundamental errors are rare. They include errors that adversely
affect the interest of the public in general, and another form of fundamental
error is the lack of subject matter jurisdiction in the lower court. Both are
not applicable to the facts and issues of this case. In re B.L.D., 113 S.W.3d
340,350(Tex.2003)
While Appellants have not raised a subject matter jurisdictional claim
which can be raised for the first time on appeal, the Appellants have,
33
nevertheless, raised an objection as to the trial court granting Permanent
Injunction while sitting in Burnett County, Texas which is clearly a county
within the jurisdiction of the 4241h Judicial Court and the Honorable Dan
Mills was the judge for the 4241h Judicial District Court., and raises this
objection the first time on appeal.
The law is very clear that if a party is dissatisfied with a judgment
rendered and fails to raise that complaint with the trial court, the right to
complain on appeal is waived. Demler v. Demler, 836 S.W.2d 696, 700
(Tex. App.-Dallas 1992, no writ.
Ruth's Motion/or Final Summary Judgment
What also cannot be disputed is that Appellants wholly fail to address
is that the March 22, 2012 Agreed Order was not only an "agreed judgment
or consent judgment" but was also based specifically upon Ruth's "final"
summary judgment motion which was supported by legally and factually
sufficient summary judgment proof.
The courts have held that a decision on the merits, such as summary
judgment, is not vitiated by a non-suit. Therefore, it stands to reason that an
"agreed judgment or consent judgment" entered pursuant to a "final
summary judgment motion can also not be vitiated by a subsequent order;
34
especially, when the plenary power of the court has terminated. Hyundai
Motors Co. v. Alvarado, 892 S.W.2d 853. It cannot be disputed that Ruth
requested a hearing on his "final" summary judgment motion and since the
Agreed Order was based upon Ruth's "final" summary judgement motion,
the Order was a "final judgment". Continental Airlines, Inc. v. Kiefer, 920
S.W.2d 274, 276 (Tex. 1996). Moreover, when a trial court renders a
summary judgment order that appears to be final on its face, it is final and
appealable. Inglish v. Union State Bank, 945 S. W.2d 810, 811 (Tex. 1997).
The Texas Supreme Court went on to hold that Inglish did not timely
perfect an appeal form the summary judgment, therefore, the court of
appeals had no jurisdiction.
Consequently, arguing m the alternative, this court is without
jurisdiction since the March 22, 2012 Agreed Order which was based upon
Ruth's "final" summary judgment motion was not timely appealed after it
was entered on March 22, 2012. Appellants, therefore, waived their right of
appeal.
Agreed or Consent Judgment Is Not Appealable
Most importantly, Appellants have wholly disregarded the fact that
the March 22, 2012 Agreed Order was based upon an agreement between
35
Ruth and the Partnership which the Appellants are now seeking to avoid
almost three years later on an appeal filed on or about January 23, 2015.
As previously stated, it stands to reason that Arma Lee Crow, at 94
years of age, desired to resolve this ongoing litigation, and welcomed the
opportunity for Peggy Joyce Ruth to facilitate a settlement with William
Ruth; especially, since Ruth was seeking only "specific performance" of an
agreement that the parties had previously entered into with the Buyers and
was also ordered to be sold to the Buyers pursuant to the December 20,
2011 Order by the 35th Judicial District Court.
It is, therefore, not plausible to believe that Arma Lee Crow did not
desire to resolve the San Saba Litigation and provided her consent and
approval for Peggy Joyce to facilitate an agreement with William Ruth;
especially, in light of the fact that James Crow's interest in the San Saba
Property had already been terminated.
While Appellants have erroneously characterized the facilitated
settlement as a 'fraud scheme', the San Saba trial court has already
previously enjoined Appellants from characterizing it as such. Nor has
Appellants substantiated any of their allegations in court or on appeal.
36
Therefore, Appellants have no basis in fact or law to deny that a
settlement agreement was facilitated between the Partnership and Ruth
pursuant to the parties' "agreed judgment".
Generally, an agreed (or consent) judgment is not appealable. In re
A.MS. 277 S.W.3d 92, 99; Chang v. Nguyen, 81 S.W.3d 314, 316 (Tex.
App.-Houston [14th Dist.] 2001, no pet.) An agreed or consent judgment is
regarded as contract and non-appealable. Furthermore, a party who by
agreement induces the court to enter judgment is estopped from denying its
validity. Campbell v. Campbell, 362 S.W.2d 904.
In addition, an agreed judgment is not subject to a collateral attack by
a party thereto. Routon v. Phillips, 246 S.W.2d 223. The courts have also
held that once a trial court renders an agreed judgment, a party may not
withdraw its consent if at the time of the rendition the trial court was not
aware of any objection. First Heights Bank, FSB v. Maron, 934 S.W.2d
843 (Tex. App-Houston [14th Dist.] 1996 no. writ).
It should be noted that the evidence in support of Ruth's motion for
"final" summary judgment clearly indicates that the Partnership entered into
a valid and enforceable agreement with the Buyers as to sale of the San
Saba Property. Likewise, only after Ruth was believed to have spoiled the
37
Appellants plans to sell the San Saba Property without the U.S. Government
knowledge and consent; the Honorable Sam Cummings, including the San
Saba Property in the August 30, 2011 Second Amended Preliminary Order
of Forfeiture as to Certain Substitute Assets; ordered Crow to be
immediately arrested by the U.S. Marshals; and terminated "James Crow's
legal interest in the properties involved in the civil litigation" did the
Appellants then seek to avoid selling the San Saba Property to the Buyers.
For these reasons, Ruth filed suit against the Partnership for "specific
performance". Likewise, Peggy Joyce Ruth and Arma Lee Crow, 2 of the
3 remaining members of the partnership having a legal interest in the San
Saba Property sought to resolve the San Saba Litigation with William Ruth;
especially, when Ruth was seeking only "specific performance" of an
agreement that the Partnership was already obligated to honor. Moreover,
it should be noted that the sale price for which Ruth was obligated to pay
was the same sale price that the Partnership had entered into with Buyers.
Therefore, Arma Lee Crow consented to Peggy Joyce Ruth resolving the
matter with Ruth.
The trial court approved the compromise and resolution of the
matter by way of the March 22, 2012 Agreed Order. Voluntary
compromises have long been viewed with favor and upheld by the courts.
38
Irwin v. Huey, 23 S.W. 324 (Tex. Civ. App. 1893). And, as evident in
Ruth's May 28, 2013 letter to the court, Ruth compromised his claims
against the Partnership and entered into the March 22, 2012 Agreed
judgment whereby Ruth abandoned his statutory fraud claim against the
Partnership and presented no claim for attorney fees since Ruth was a pro se
litigant, and consequently, not entitled to attorney fees.
The courts make no distinction when enforcing "agreed judgments"
involving interlocutory judgments as it does with agreed final judgments.
Gregory v. White, 604 S.W.2d 402 (Tex. Civ. App.-San Antonio, 1980, writ
ref n.re.)
An "agreed judgment" between the parties was entered into on or
about March 22, 2012, and an "agreed judgment" has the same binding
force and effect as a judgment resulting from the trial before a court or jury.
Spradley v. Hutchinson, 181 S.W.2d 214, 219 (Tex. Civ. App.-Fort Worth
1990, writ denied). It was never challenged on appeal.
In this matter, not only was an "agreed judgment" entered into, but
the March 22, 2012 Agreed Order was entered pursuant to Ruth's "final"
summary judgment motion. In addition, the San Saba trial court found that
March 22, 2012 Agreed Order was a "final judgment" when granting
39
Ruth's Anti-Suit Injunction; Permanent Injunction; and Default Judgments
on June 25 111, 2014 which Appellants wholly failed to provide any
objections or preserve any errors on appeal.
PRAYER
A review of the evidence and pleadings demonstrates that the trial
court correctly rendered judgment for William Ruth, Appellee. For these
reasons stated in this brief, Ruth asks the Court to overrule Appellants'
issues and to affirm the trial court's judgment.
Respectfully submitted,
State Bar No. 09775600
26545 IH-10 West
Boerne Texas 78006
210-444-0999
210-444-0996 (fax)
fredhoeJke@ao I.com
Attorney for Appellee
40
CERTIFICATE OF SERVICE
I certify on this 8111 day of May, 2015, that a true copy of Appellee' s
Reply Brief was served upon Appellants' counsel pursuant to the Texas
Rules of Appellate Procedure via electronic mail and e I servivce through
efile Texas courts.gov.
Frederick F. Hoelke
CERTIFICATE OF COMPLIANCE
The undersigned counsel ce1iifies that this document complies with Texas
Rules of Appellate Procedure 9.4 with a font size of 14 point, footnotes in
12 point and a word count of 7393 .
Frederick F. Hoelke
41
AFFIDAVIT OF FREDERICK F. HOELKE
Before the undersigned authority personally appeared Frederick F. Hoelke
who upon his oath declared:
The attached exhibits
''"~~"!~,,,,, LINDA J. KILLIAN
lf~~·· ···~f'; Notary Public, State of Texas
: :
"~ ...- : :
-----i~·;,;·
offense in Count(sr:-1Lf- J~ andtliii such property constitutes or was derived from gross
proceeds of the defendant's iheme and artifice to defraud described in Count(s)~'(-(~ (7-.,l()
Prellmlllary Order or Forf'elhlre (+)- Page 1
Exhibit 2
08/09/2011 12:06 FAX 8179783094 U S ATTORNEY OFFICE FTW ~004/007
Case 6:10-cr-00045-C-BG Document 112 Filed 05105/11 Page 2 of 5 PagelD 626
Thus, the following property is subject to forfeiture to the United States pursuant to 18
u.s.c. § 982(aX7);
a. The above described money judgment.
. WHEREAS, the Court has detenn.ined_that,·based on the evidence now in the
record, the Government has established pursuant to 21 U.S.C. § 853(p) that the
·remaining property which constituted the $1,653,474, as a result of any act or omission
of the defendant cannot be located upon the exercise of due diligence, has been placed
beyond the jurisdiction of the Court, or has been commingled with other property which
cannot be divided without difficulty; and,
WHEREAS, the Court has detennined that, b~ed on evidence now in the record,
· the following property is forfeitable tO the Government as substitute assets pursuant to 21
u.s.c. § 853(p):
. .
A. 2008 Ford F250 Pickup, VIN 1FTSW21YS8EB23878, Texas license plate
34BRY6, registered to James A. Crow.
B. 2007 Harley Davidson FLHXI motorcycle, VIN 1HD1KB4147Y638453,
Texas license plate 3HK986, registered to James A. Crow. .
C. 2008 Harley Davidson FLSTN motOTcycle, VIN UID 1JDS IX8Y025686,
Texas license plate 3~R026, registered to James A. Crow.
D. 2008 Harley Davidson motorcycle, VIN 1HD1PR8468Y958602, Texas
license plate 3UY631, registered to James A. Crow.
Prelimiaary Order or Forfeitare (Crow) - Page 2
U~/U~/ZUll 12:06 FAX 8179783094 us ATTORNEY OFFICE vrw ~005/007
Case 6:1 O-cr-00045-C-BG Document 112 Filed 05/05/11 Page 3 of 5 PagelD 627
E. All funds on deposit and credited to Oppenheimer Fund, account number
i/ '. in the name of James A. Crow, PSP.
F. All funds on deposit and credited to Oppenheimer fund, account number
. ·~ name of James A. Crow, PSP.
G. All funds on deposit and credited to Oppenheimer fund, account number
. . in the name of James A. Crow, PSP.
H. All funds on deposit and credited to Oppenheimer fund, account number
'11 the name of James A. Crow, PSP.
I. All ftmds on deposit and credited to Texas Banlc, account number
·XXXXl 843, in the name of James A. Crow, DD:s.
J. ~ of that lot or parcel of land, together with its buildings, appurtenances,
and improvements, fixtures attachments and easements, located at tract 3:
26.63 acres, more or less, in the H.H. Survey 49, abstract 400, Brown
County, Texas, ref~ced as fust tract of 26 acres; save & except 1.S7
·acres, second~ of 1.33 acres and third tract of .87 acre in Deed dated
September 19, 1977 ftom Julia ~o Roland, et al to Willis Creek Land
and Development, Inc., recorded in volume 726, page 127, deed records,
Brown County, Texas. (Acct. #R21458)
K. All of that lc;>t or parcel of land, together with its buildings, appurtenances,
and improvements, fixtures attachments and easements, located at 103
Lakeview CT, Brownwood, TX 76801.
L. 2005 Camper Trailer, SPRI, VIN 4YDF297225A219542, Texas license
plate 5BS734, registered to James A. Crow.
M. 2007 Well VN Trailer, VIN 1WC200D0772059772, Texas license plate
Prelimiaary Order of Forfeltare (Crow) - Page 3
U ::> ATlUKNhl'. Ul.•F 1 CE .f