Sandra Ford and the Ruby and Annie Smith Family Partnership v. William Ruth, Judgment Creditor ( 2015 )


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  •                                                                                     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 .f404 F.3d 1047
    , 1056 (8th
    
    Cir. 2005); Unite~ States v. Baker, 
    227 F.3d 955
    , 970 (7th Cir. 2000); United States v.
    
    Candelaria-Silva, 
    166 F.3d 19
    , 42 (lit Cir. 1999); United States v. Simmons, 
    154 F.3d 765
    , 769-770 (8th Cir. 1998); United States v. Robilotto, 
    828 F.2d 940
    , 948-949 {2nd Cir.
    
     1987); United Staets v. Navaan-o-Ordas, 
    770 F.2d 959
    , 970 (I I th Cir. 1985); United
    
    States v. Conner,. 
    752 F.2d 566
    , 575-578 (I Ith Cir. 1985); United States v. Ginsburg, 
    773 F.2d 798
    , 800-803 (7th Cir. 1985).
    
    3.     21 U.S.C. § 853(p) provides that if any property subject to forfeiture cannot be
    
    located upon the exercise of due diligence;· has been transferred or sold to, or deposited
    
    with, a third party; has been placed beyond the jurisdiction of the Court; has been
    
    substantially diminished in value; or has been commingled with other property which
    
    cannot be divided without difficulty, as a result of the defendant's own actions, the court
    
    shall order the forfeiture of any other property of the defendant up to the value of the
    
    property so transferred by the defendant.
    
    4.     Rule 32.2(e)(l) of the Federal Rules of Criminal Procedure provide$ that, upon
    
    the Government's motion, the Court may at any time amend an existing order of
    
    forfeiture to include property that is substitute property that qualifies for forfeiture under
    
    
    Motion for Amended Preliminary Order• of Forfeiture - Pa1c 4
    08/09/2011 14:55 FAX     8179783094                  U S ATTORNEY OFFICE FfW                            141008/010
    
    
            Case 6:10-cr-00045-C -uG Document 159                   Filed 08/09/11   ~age   5 of 7 PagelD 1085
    
    
    
             an applicable statute.
    
                                                            Argument
    
             S.      The Government, pursuant to Rule 32.2(e) and 21 U.S.C. § 853(p), seeks to
    
             amend the order of forfeiture [docket # 112] to include the following property owned by
    
             James Crow, which will be forfeited as substitute assets to be applied toward their
    
             respective $1,654,474.00 money judgment:
    
                     (i) Any interest of James Crow in the I 56 Brown County acre property that is a
                     subject property in a matter pending in the 3Stb Judicial District of Texas under
                     cause number CV-10-02-049
    
                     (ii) Any interest of James Crow in the Proceeds from the sale of the I 56 Brown
                     County acre property that is a subject property in a matter pending in the 3Sth
                     Judicial District of Texas under cause number CV-10-02-049
    
                     (iii) Any interest of James Crow in the San Saba County Property that is a subject          -
                     property in a matter pending in the 35tb Judicial District of Texas under cause
                     number CV-10-02-049
    
                     (iv) Any interest of James Crow int the Pro~eds from the sale of the San Saba
                     County property that is a subject property in a matter pending in the 3 5th Judicial
                     District of Texas under cause number CV-10"'."02-049
    
             6.      The Government has learned that the sale of items (i) and (iii) is potentially
    
             looming.
    
    
                                                              Relief
    
             7.      The Government respectfully requests this Court enter an amended preliminary
    
             order of forfeiture forfeiting to the Government all interest of James Crow in the property
    
             described in paragraph Five, in place of certain property that is no longer available for
    
             Motloa for Amended Prellmlaary Order• of Forfett11re - Page 5
    08/09/2011 14:55 FAX     8179783094                   U S ATTORNEY OFFICE FfW                                      141009/010
    
    
            Case 6:10-cr-00045-C -dG Document 159                    Filed 08/09/11       rage 6 of 7 PagelD 1086
    
    
    
    
             forfeiture and to be applied toward the money judgment entered against James Crow,
    
             and, in the event that a sale of said property takes place, ordering James Crow to
    
             immediately turn over proceeds of said sale to an agentofthe Federal Bureau of
    
             Investigation (or its designee) so such person may seize and maintain custody of the
    
             property and dispose of it in accordance with law, subject to provisions of 21 U.S.C. §
    
             853(n). 1
    
                                                                       Respectfully submitted,
    
                                                                       JAMES T. JACKS
                                                                       UNITED STATES ATTORNEY
    
                                                                       Isl Steve Jomes
                                                                       Assistant United States Attorney
                                                                       State Bar No. 00796854
                                                                       Burnett .Plaza, Suite 1700
                                                                       80 I Cherry St., Unit #4
                                                                       Fort Worth, rexas 76102
                                                                       FW Telephone: 817 .252.5200
                                                                       FW Fax: 817 .978.3094
                                                                       Steve.jumes@usdoj.gov
    
    
    
    
                               Following the property's seizure and pursuant to Federal Rules of Criminal Procedure
             32.2(e)(2)(A), the Government will post notice of the propert}''s forfeiture on an official Government
             Internet site (www.forfeiture.gov) for at least 30 consecutive days, describing the property with
             reasonable particularity; stating the time under 21 U.S.C. § 853(n) when a petition contesting the
             forfeiture must be filed [no later than 60 days after the first day of publication on an official Government
             Internet site]; and naminge and giving contact information for the Government attorney to be served with
             the petition. The Government will also send, by means reasonably calculated to reach the person, notice
             to any person who r~asonably appears to be a potential claimant with standing to contest the forfeiture in
             the ancillary proceeding.
    
             Motion for Amended Preliminary Orders of Ji'orfeltare - Paae 6
    08/09/2011 14:56 FAX     8179783094                 U S ATTORNEY OFFICE FTW                           lg) 010/010
    
    
            Case 6: 1O-cr-00045-C -oG Document 159                 Filed 08/09/11   r'age 7 of 7 Page ID 1087
    
    
    
    
                                           CERTIFICATE OF CONFERENCE
    
                     I hereby certify that on August 9, 2011, an electronic mail message was sent to
             Chuck Lanehart (Chucklanehart@hotmail.com),, the defendant's attorney, providing him
             with a copy of the proposed Motion and accompanying Order and requesting a
             conference on them. ·Further, I conferred with Chuck Lanehart regarding the filing of the
             proposed relief requested therein and he is opposed to the requested relief.
    
                                                            Isl Steve Jumes
                                                            Assi_stimt United States Attorney
    
    
                                               CERTIFICATE OF SERVICE
    
                    I hereby certify that on August 9, 2011, I electronically filed the foregoing
             document with the Court of Clerk for the United States District Court, Northern District
             of Texas, using the electronic case filing ("ECF") system. The ECF system will send a
             ''Notice of Electronic Filing" to all parties/counsel for record, who have consented in
             writing to accept the Notice as service of this document by electronic means.
    
    
                                                             Isl Steve Jumes
                                                             Assistant United States Attorney
    
    
    
    
             Motloa for Ameaded PreHmlaary Orders of Forfeltare - Pa·cc 7
    Case 6: 1O-cr-00045-C      -~   J   Document 178      Filed 08/30/11     . age 1 of 5 PagelD 1151
    
    
    
    
                              IN THE UNITED STATES DISTRICT COURT
                              FOR THE NORTHERN DISTRICT OF TEXAS
                                      SAN ANGELO DIVISION
    
    
    
     UNITED STATES OF AMERICA                         §
                                                      §
     vs.                                              §    No. 6:10-CR-0045-C
                                                      §    ECF
     JAMES CROW                                       §
    
                  SECOND AMENDED PRELIMINARY ORDER OF FORFEITURES
                          AS TO CERTAIN SUBSTITUTE ASSETS
    
            Before the Court is the Government's Second Motion to Amend the Preliminary
    
     Orders of Forfeiture as to Certain Substitute Assets listing additional assets subject to
    
     forfeiture. The Government seeks an order, pursuant to Rule 32.2(e) of the Federal
    
     Rules of Criminal Procedure and 21U.S.C.§853(p), amending the Orders of Forfeiture
    
     concerning James Crow to include the following substitute assets ("the property''):
    
            (1)     Any and all interest of the defendant in his dental practice.
    
            (2)     Any and all proceeds from the sale of the defendant's dental practice including
                    purchase payments and rental payments.
    
            WHEREAS, a Preliminary Order of Forfeiture was issued on March 9, 2011
    
     [docket #35], forfeiting the following from James Crow:
    
                    A sum of money equal to $1,653,474 in United States currency, representing the
                    amount of gross proceeds obtained as a result of the defendant's scheme and
                    artifice to defraud;
    
            A.      2008 Ford F250 Pickup, VIN 1FTSW21 Y58EB23878, Texas license plate
                    34BRY6, registered to James A. Crow.
    
            B       2007 Harley Davidson FLHXI motorcycle, VIN IHD1KB4147Y638453, Texas
                    license plate 3HK986, registered to James A. Crow.
    
             C.     2008 Harley Davidson FLSTN motorcycle, VIN 1HD1JD51X8Y025686, Texas
                    license plate 3PR026, registered to James A. Crow.
    
    
    
    
                                                  Exhibit 5
    Case 6:1 O-cr-00045-C -.. .) Document 178                  Filed 08/30/11   dge 2 of 5 PagelD 
    1152 Dall. 2008
     Harley Davidson motorcycle, VIN I HD I PR8468Y958602, Texas license
                     plate 3UY631, registered to James A. Crow.
    
             E.       All fonds on deposit and credited to Oppenheimer Fund, account number
                                          in the name of James A. Crow, PSP.
    
             F.      All funds on deposit and credited to Oppenheimer fund, account number
                                       · the name of James A. Crow, PSP.
    
             G.      A II funds on cieoosit 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
                                         1n the name of James A. Crow, PSP.
    
             I.      All funds on deposit and credited to Texas Bank, account number XXXX1843, in
                     the name of James A. Crow, D.D.S.
    
             J.      All 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,
                     referenced as first tract of26 acres; save & except 1.57 acres, second tract of
                     1.33 acres and third tract of .87 acre in Deed dated September 19, 1977 from Julia
                     Mayo 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 lot or parcel of land, together with its buildings, appurtenances, and
                     improvements, fixtures attachments and easements, located at I 03 Lakeview CT,
                     Brownwood, TX 7680 I.
    
             L.      2005 Camper Trailer, SPRI, VIN 4YDF297225A2 l 9542, Texas license plate
                     5BS734, registered to James A. Crow.
    
             M.      2007 Well VN Trailer, VIN I WC200D0772059772, Texas license plate 33ZDLD,
                     registered to James A. Crow.
    
             N.      2008 Boatmate Tandom Trailer, Series or Model 2220003, VIN
                     SA 7BB22228TOOO 112, Texas license plate 57ZSCM, registered to James A.
                     Crow.
             0.      2008 TIGE Boat, VIN TIX0435CF708, Texas license plate 4754AN, registered to
                     James A. Crow.
    
             And WHEREAS, an Amended Preliminary Order of Forfeiture was issued on
    
    
    
     Second Amended Preliminary Order of Forfeiture (Crow) - Page   2
    Case 6:10-cr-00045-C -....      J   Document 178          Filed 08/30/11   . dge 3 of 5 PagelD 1153
    
    
    
     August 16, 2011 [docket # 166], forfeiting the following from James Crow:
    
             i)      Any interest of James Crow in the 156 Brown County acre property that is a
    
             subject property in a matter pending in the 35th Judicial District of Texas under cause
    
             number CV-I 0-02-049;
    
             (ii)    Any interest of James Crow in the Proceeds from the sale of the 156 Brown
    
             County acre property that is a subject property in a matter pending in the 35th Judicial
    
             District of Texas under cause number CV-10-02-049;
    
             (iii)   Any interest of James Crow in the San Saba County Property that is a subject
    
             property in a matter pending in the 35th Judicial District of Texas under cause number
    
             CV- I 0-02-049;
    
             (iv)    Any interest of James Crow int the Proceeds from the sale of the San Saba County
    
             property that is a subject property in a matter pending in the 35th Judicial District of
    
             Texas under cause number CV-10-02-049.
    
             And WHEREAS, the Government is entitled to relief under 21U.S.C.§853(p) and
    
     Rule 32.2(e);
    
             IT IS HEREBY ORDERED that the interests of the defendant in the property is
    
     condemned and forfeited to the Government subject to the provisions of 18 U.S.C. § 982(a)(l),
    
     21 U.S.C. §§ 853(n) and (p), and Rule 32.2(e).
    
             IT IS FURTHER ORDERED that, pursuant to 21 U.S.C. § 853(g) and Rule 32.2, that in
    
     the event that a sale of the property takes place, the defendant is to immediately turn over
    
     proceeds of said sale to an agent of the Federal Bureau of Investigation (or its designee) so such
    
     agent may seize and maintain custody of the property and dispose of it in accordance with law,
    
    
     Second Amended Preliminary Order of Forfeiture (Crow)- Page   3
    Case 6:10-cr-00045-C          -L   J   Document 178        Filed 08/30/11   _ -'9e 4 of 5 PagelD 1154
    
    
    
     subject to provisions of 21 U.S.C. § 853(n). Promptly after the seizure of the property listed
    
     above, the Government shall initiate proceedings necessary to protect any third-party interests in
    
     the substitute property, pursuant to and in accordance with Rule 32.2(e) and 21 U.S.C. § 853(n),
    
     prior to requesting entry of an amended final order of forfeiture.
    
              Therefore, IT IS FURTHER ORDERED in accordance with 21 U.S.C. § 853(n)(l) and
    
     Rule 32.2, the Attorney General (or his designee) shall post on an official Government Internet
    
     site (                     ) for at least 30 consecutive days notice of this Amended Preliminary
    
     Order of Forfeiture; notice of the Government's intent to dispose of the property; and notice that
    
     any person, other than the defendants, having or claiming a legal interest in the property must
    
     file a petition with the Court no later than 60 days after the first day of publication on the
    
     Internet forfeiture site, and serve a copy on Steven Jumes, Assistant United States Attorney,
    
     Burnett Plaza, Suite 1700, 801 Cherry St., Unit #4, Fort Worth, Texas 76102. This notice shall
    
     state that the petition shall be for a hearing to adjudicate the validity of the petitioner's interest in
    
    the property; shall be signed by the petitioner under penalty of perjury; and shall set forth the
    
     nature and extent of the petitioner's right, title, or interest in the property, the time and
    
     circumstances of the petitioner's acquisition of the right, title, or interest in the property, and any
    
     additional facts supporting the petitioner's claim and relief sought. The Government shall send,
    
     by means reasonably calculated to reach the person, written notice to any person who reasonably
    
     appears to be a potential claimant with standing to contest the forfeiture.
    
              IT IS FURTHER ORDERED the defendant shall direct any purchase payments and
    
     rental payment to be paid directly to an agent of the FBI so such agent may seize and maintain
    
    
    
    
     Second Amended Preliminary Order of Forfeiture (Crow) - Page   4
    Case 6:1 O-cr-00045-C -.         ~   Document 178         Filed 08/30/11   Jge 5 of 5 PagelD 1155
    
    
    
     custody of the installments and dispose of it in accordance with law, subject to provisions of
    
     21 U.S.C. § 853(n).
    
             It is FURTHER ORDERED, pursuant to Rule 32.2, that the Government may apply to
    
     the Court to conduct any discovery that the Court considers proper to help identify, locate, or to
    
     dispose of the property, should the circumstances present themselves, and that, upon
    
     adjudication of all third-party interests, this Court will enter an amended final order of forfeiture
    
     pursuant to 21 U.S.C. §853(n) and Rule 32.2(e) in which all interests will be addressed.
    
             SIGNED this 30th day of August, 2011.
    
    
    
    
     Second Amended Preliminary Order of Forfeiture (Crow)- Page   5
    Jan 1812 04:24p        U S Attorneys Office                                                2146598803                  p.1
    
    
                                                                  U.S. Departm"'.dt of Justice
    
                                                                  United States Attorney
                                                                  Northern District of Texas
    
    
    
    
                                                                EJLED
                                                             At t ()'.oO . O'clock _A__M
                                                                                                               Telephone: 214.6!9.8600
                                                                                                               Fax: ZU.659-88()3
    
    
              January 18, 2012
                                                                     ·''· '\l~
                                                                    Jri.         •j r·)
                                                                                 t...   ti   2fl42l
                                                                                              t;
    
    
              Th~ Honorable Judge Stephen Ellis
              35th Judicial District Court
              200 South Broadway St.
                                                        By
                                                             Cler~tfil
                                                                   C~o.                               TX
                                                                                                      Deputy
              Brownwood, Texas 76801
    
                         Re:   'Withdrawal of Request for Stay in Proceedings, Cause No. CV-10-02-049
                               Arma Lee Grow., James Albert Crow, and Sandra Kay Ford vs. Peggy Joyce
                               Ruth and James Ruth
              Dear Judge Ellis:
                      The federal government no longers requests that the proceedings in this civil
              action be delayed. In the past, the government had requested a stay so that a preliminary
              order of forfeiture could be entered in Criminal Case No. 6: lO-CR-00045, United States
              v. James Crow. As stated previously, once that order was entered, the government would
              not oppose a sale of the property involved in the civil action as long as the government
              was set up to receive the sale proceeds designated for James Crow.
                      August 16, 2011, Judge Cummings signed the forfeiture order terminating James
              Crow's legal interest in the property involved in the civil action before you. The
              government has begun sending and publishing notice of that forfeiture order to provide
              persons. (not including Jrunes Crow) an opportunity to claim an interest to the propert;y.
              Accordingly,. the government no longer opposes the sale of the property, and a stay of the
              proceedings is no longer necessary. On behalf of the federal government, I sincerely
              thank you for your patience.
                      lfthere are any questions about this request I may be contacted at 214.659.8736.
    
              Sincerely,
    
    
             ~~
              ASSISTANT UNITED STATES ATIORNEY
    
              \enclosures
              Preliminary Order of Forfeiture
    
              cc:        AUSA ;Amy Burch, USAO NDTX
                         FBI Special Agent Janet Thomas
                                                                                        EXHIBIT 6
                    -   --··----·-··--------------------
                William Ruth                                            32"   '10527                p.1
    
    
    
    
    WILLIAM W. RUTH
    ATTORNEY AT LAW                                                              1\vo Creekwood
                                                                                 Brownwood, TX 76801
                                                                                 Tel: 325-643-9543
                                                                                 Fu: 325-641-0527
                                                                                 Williamwnrth@verizon.net
    
                                           May28, 2013
    
    
    Ms. Kim Wells                                                VIA FAX: 325-372..6484
    District Cleric.
    San Saba County Courthouse
    500 E. Wallace
    San Saba, Texas 76877
    
    Re:      Cause No. 9145; Ruby and Annie Smith Family Partnership
    
    Dear Ms. Wells:
    
           Plaintiff's Motion for Final Summary Judgment was filed on January 25, 2012 and an Agreed
    Order was entered on March 22, 2012 disposing ofall claims and matters of con1roversies. For this
    reaso~   the case has been resolved, and no motion will be filed concerning the matter.
    
             I was previously represented by J. Allan Garrett ofthe Hutto-Lucksinger law fum in HB!]lm:t-.__
    Texas. Mr. Garrett is now the 33n1 District Collrt Judge.
    
    
    
    
    WWR/
    
    
    
    cc:      Hutto-Lucksinger
             210 E. Polk
             Burnett, Texas 78611
    
    
    
    
                                             Exhibit 7
                                                                  C..l\USE #    9145
                                                                                             IN THE DISTRICT COURT
               WILLIAM RUTH
              vs                                                                               33RD.   JUDICIAL DISTRICT
               THE RUBY AND ANNIE SMITH
               FAMILY PARTNERSHIP                                                            SAN SABA COUNTY, TEXAS
    
                                                            ORDER ON        DISMISS~.L   HEARING
              on this the    · day of June,      the above entitled and numbered cause
              was called for dismissal hearing pursuant to Rule 165a, Texas Rules of
              Civl Procedure.
    
              Appearances~.
               Pltf/Pet (  id not appear                           ( ) appeared          ( )by attorney_____________
               Def /Res
                      { did not appear                             ( )appeared           { )by attorney~--~~~~~~-
                      ( )did not appear                            { )appeared           ( }by attorney_ _ _ _ _ _ __
               -----
               ~-~'--{ )did not appear                             ( · ) appeared        ( )by attorney~~~~----~~--
               {   ~RDER DISMISSING
               Good cause for maintaining case on docket not having been shown, IT IS
              ORDERED said case hereby DISMISSED for want of prosecution, with co~rt costs
              taxed against ( )Plaintiff/Petitioner  ( }Defendant/Respondent
               ( )Party incurring same                            ( )Other
               Signed this       26TH.       day of June,            2013
    
    
    
    
                  )ORDER MAINTAINING ON DOCKET
                   Good cause for maintaining case on docket having been shown, IT IS
               ORDERED that said case is to remain on the docket of this Court, subject to
               the following pre-trial order:
                   1. Parties and cou..~sel are ORDERED to appear before
               for alternate dispute resolution through arbitration and to comply with all
               instructions and direc~ives of said arbitrator.
                   2.  Final trial set for the       day of          ,20~-' at        a.rn
    
                    3.
    
    
    
    
                   A pre-trial conference with the Court may be held if requested, in writing
               by·any party at least 14 days prior to trial date.
                   Failure to comply with this pre-trial order may, at the discretion of -the
               Court, subject the defaulting party to sanctions as provided under the
               Texas Rules of Civil Procedure.
                   Signed this the            26TH.·      day of June,         2013
    
    
       ~
    ".__'JI
    
                          District (·:erk, &n Sab C
                          by                     a ouury, Texas                Exhibit 8
                               ------Deputy
                                                                                                                                                                                                                                                                                        CIVIL DOCKET                                                             BEAR GRAPHICS, INC.
    
                                                                                                                                                                                                                                                                                                                                  371
    
    
    
    
                     No. of Case                                                                                                               NAME OF PARTIES                                                                                                                                                                                       ATIORNEYS                                                                                                                                            Kind c
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     and Party D
    
    
       . ._. :.~.~.:. . . . . . . . . . . . . . . . . . . . L. F..!~!!!:N.1...R!.....~9.!.~.....................................................................J.......R!~~~....W..!.....~~-..............................................................L. . .P.~2~.~-·-............
    
      ~~~:r~~~~1==:..:.===:==~·~;::~.~=:~.=~=:=.~~=~~r-===~=~=::=.~==:~~=:~~2~=~:.~======~
       ................................................_..............._...................THE
                         -                           -                                     __...........RUBY                   AND ANNIE SMITH
                                                                                                         ............. _.......................... _.................................................................................................. .............._................................................................................... _............................................................................................                                                                                                       °'....
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              ·-·--=
                                                                                           FAMILY PARTNERSHIP                                                                                                                                                                                                                                                           Deft.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              .c
               Date of Orders                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         MINUTE
                                                                                                                                                                                                                                                             ORDERS OF COURT
      fontb                        f Day I Year                                                                                                                                                                                                                                                                                                                                                                                                                                                                          Vol.                                  ~
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              rilil
                                   I~                                                                        ~ s ""' ( .,, ~
                                                                                                                                1
       0 G ~..........
      ..................... Gj ~
                               "'I\\....=i.
                                        '2l ...........U ..........
                                                           ) .1.••:••l ........~ .....<"'      l\ ................................................................................
                                                                                      ..l..::s...~       "                                                                         _..________,,,,,_,,_,,_,,_,,__,,,,_...._, ___.____,___,_,___,,
    
     ....................- ........................................................................................................- ........_ ............................................................................................................_ ........................._ ....... - •• - ..........................._ ............................ _ ..._ ..... _ ..........................................- ............................................_ ... , .......................... _ .... _ ....,a_...............____..,
    
    
    
    
      ..........._........................+.......................,..................................................................................................................................................................................................................................................._ ...................................................................
    
     ....................................... ................--!--·-·-····-.................................................................................................................................................................................................................................- ....................................................................
                                                        ~                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     ~
    
    
    
    
     ·-····----...................1---··-······--··+-·..-··········-····----················-................................--·····-·-····-·-····-···-··-···-······-······--·-··--·----··-·--··--·-···-·····-..-·---·····-·-............................&.--·-·--·~
    
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