Destination Development Partners, Inc. v. Suzann Ruff ( 2018 )

ACCEPTED
11-18-00034-CV
ELEVENTH COURT OF APPEALS
EASTLAND, TEXAS
3/8/2018 3:41 PM
SHERRY WILLIAMSON
CLERK
NO. 11-18-00034-CV
IN THE COURT OF APPEALS FILED IN
11th COURT OF APPEALS
FOR THE ELEVENTH DISTRICT OF TEXAS AT EASTLAND
EASTLAND, TEXAS
03/08/18 3:41:16 PM
SHERRY WILLIAMSON
Clerk
DESTINATION DEVELOPMENT PARTNERS, INC., ET AL.,
Appellants,
v.
SUZANN RUFF,
Appellee.
From the 29th District Court, Palo Pinto County, Texas
Honorable Mike Moore, Presiding
Cause No. C-46164
APPELLEE SUZANN RUFF’S
REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS
KIZZIA & JOHNSON STEIDLEY & NEAL,
MATHIS & PLLC PLLC
DONHEISER, P.C.
D. BRADLEY KIZZIA Gary C. Crapster
RANDAL MATHIS State Bar No. 11547550 State Bar No. 05009600
State Bar No. 13194300 bkizzia@kjpllc.com CityPlex Towers 53rd Floor
MARK DONHEISER 1910 Pacific Avenue, 2448 E. 81st Street
State Bar No. 05974800 Suite 13000 Tulsa, OK 74137
ANH V. TRAN Dallas, Texas 75201 gcc@steidley-neal.com
State Bar No. 24077806 Telephone: (469) 893-9940 Telephone: (918) 664-4612
1412 Main St., Suite 2600 Facsimile: (214) 451-0165 Facsimile: (918) 664-4133
Dallas, TX 75202
rmathis@mathisdonheiser.com ATTORNEYS FOR
Telephone: (214) 303-1919 APPELLEE SUZANN
Facsimile: (214) 303-0399 RUFF
APPELLEE SUZANN RUFF’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS – PAGE 1
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Suzann (“Suzy”) Ruff, Appellant in the above styled and numbered
appellate proceeding, and files this Reply Brief in Support of her Motion to Dismiss respectively
showing unto the Court as follows:
I.
INTRODUCTION
The sole issue before this Court on the Motion to Dismiss is whether the order appealed
from is a temporary injunction (subject to appeal) or an order in aid of arbitration (which is not
subject to appeal). Whether Judge Moore erred in entering the order or whether it was
appropriate and within his discretion to do so, is for the merits. The nature of his order is what is
at issue. In order to find that this order is a temporary injunction, this Court must assume that
Judge Moore simply does not know what he is doing. This Court must assume that Judge Moore
knows nothing about temporary injunctions. This Court must assume that Judge Moore has not
read the Rules of Civil Procedure. All of these assumptions are contrary to well established rules
of appellate review.
II.
SUZANN RUFF ASKED FOR AN ORDER IN AID OF ARBITRATION
In the Motion to Dismiss, Appellee quoted the portion of her motion specifically
requesting the relief which forms the basis of the order appealed from. She cited neither the
rules concerning temporary injunctions nor the statute authorizing orders in aid of arbitration.
TEX.R.CIV.P. 683; TEX.CIV.PRAC.&REM.CODE §171.086. But she clearly asked for an order in
aid of the arbitration which had recently concluded.
At the hearing, counsel for Mrs. Ruff specifically asked for an order in aid of arbitration:
APPELLEE SUZANN RUFF’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS – PAGE 2
The Dallas Court has entered an order prohibiting movement of
assets as to Mike but not these entities. So we are asking for it
with respect to the entities.
Reporters Record (“RR”), Vol. 1 at 22.
The Dallas Probate Court’s order referenced in that statement was also before Judge Moore.
2nd Supp. Clerk’s Record (“CR”) at 7. On its face, although not referencing §171.086, it is in aid of
arbitration.
Appellant made his argument to Judge Moore that this was, in reality, a temporary injunction
and therefore, improper. RR Vol. 1 at 24-25. Obviously, by rejecting that argument and entering the
order, Judge Moore disagreed.
Appellant argues that because Mrs. Ruff did not cite the statute, she cannot rely on it here.
But Judge Moore entered the order she requested. She has waived nothing. She is the Appellee.
Appellants’ argument turns well established Texas law regarding appellate review on is head. All
presumptions are indulged in favor of the trial court’s orders; no presumptions against it. See, e.g.,
Henry v. Halliburton Services, Inc., 100 S.W.3d 505, 508 (Tex.App.—Dallas 2003, pet. denied).
This is clearly an order in aid of arbitration and not a temporary injunction.
III.
THE TRIAL COURT CONSIDERED THE EVIDENCE SUBMITTED
Although going to the merits, and not the question presented by the Motion to Dismiss, the
Appellants continue to argue that no evidence was submitted. There was evidence attached to the
motion upon which the order is based. CR 215-531. At the beginning of the hearing, Judge Moore
stated that he had read some of this material. RR Vol. 1 at 5. Specifically he had read some of the
deposition transcript of Michael Ruff. Id. Later he indicated that he had read the Sanctions Order
issued by the American Arbitration Association against Michael Ruff. RR Vol. 1 at 33. At the end
of the hearing, he deferred ruling until he read through the rest of this “stuff.” RR Vol. 1 at 35.
APPELLEE SUZANN RUFF’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS – PAGE 3
Clearly, evidence was considered.
IV.
APPELLANTS WAIVED THEIR ARGUMENT THAT
JUDGE MOORE DID NOT HAVE JURISDICTION TO ISSUE THIS ORDER
Again, although this issue goes to the merits, Appellants argue that under the venue
provisions of Chapter 171 of the Civil Practice & Remedies Code, Judge Moore could not have
issued an order in aid of arbitration, only the Probate Court in Dallas could. They did not raise this
argument in the trial court and so have waived it.
Moreover, in explaining what the Probate Court did in Dallas, Appellants argued that order
only applied to Michael Ruff, and not to them, because they were not parties. In other words, they
admit that the Probate Court did not have authority to issue such an order against them.1
There is an order in the Probate Court enjoining—stopping Mike
from acting, but it—it shouldn’t apply to the entity because the
entities are not parties to the Probate Court, and they’re not
judgment debtors here.
RR Vol. 1 at 24-25.
In other words, Appellants are arguing that no one has authority over them in aid of
arbitration. That Michael Ruff, who has been found to have breached fiduciary duties and
misappropriated his mother’s property, can use entities set up for that specific purpose, to hide the
misappropriated assets and that because he set up new legal entities, no one can stop him. Judge
Moore did not buy that argument. This Court shouldn’t either.
V.
CONCLUSION
The order appealed from is in aid of arbitration, not a temporary injunction. It is therefore
not subject to appeal.
1 This will be a contested issue both in the Probate Court and before Judge Moore but is not relevant to this appeal.
APPELLEE SUZANN RUFF’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS – PAGE 4
WHEREFORE, PREMISES CONSIDERED, Appellee Suzann Ruff, respectfully prays that
this appeal be dismissed, that she recover her costs in this Court and for such other and further relief
to which she may be justly entitled at law or in equity.
Respectfully submitted,
MATHIS & DONHEISER
By:__ ____________________________
Mark Donheiser
State Bar No. 05974800
Randal Mathis
State Bar No. 13194300
Anh V. Tran
State Bar No. 24077806
1412 Main Street, Suite 2600
Dallas, TX 75202
Telephone: (214) 303-1919
Fax: (214) 303-0399
Email: rmathis@mathisdonheiser.com
Email: mdonheiser@mathisdonheiser.com
Email: atran@mathisdonheiser.com
KIZZIA & JOHNSON PLLC
D. Bradley Kizzia
State Bar No. 11547550
bkizzia@kjpllc.com
1910 Pacific Avenue, Suite 13000
Dallas, Texas 75201
Telephone: (469) 893-9940
Facsimile: (214) 451-0165
STEIDLEY & NEAL, PLLC
Gary C. Crapster
State Bar No. 05009600
CityPlex Towers 53rd Floor
2448 E. 81st Street
Tulsa, OK 74137
gcc@steidley-neal.com
APPELLEE SUZANN RUFF’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS – PAGE 5
Telephone: (918) 664-4612
Facsimile: (918) 664-4133
ATTORNEYS FOR SUZANN RUFF
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document has been
forwarded to all other counsel of record in accordance with the Texas Rules of Appellate Procedure
on this 8th day of March, 2017.
_____________________________
MARK DONHEISER
APPELLEE SUZANN RUFF’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS – PAGE 6