Brad Croft, Individually and as Trustee of the Willa Wall Investments Trust v. Jason S. Gadsby, Regina Prewitt-Cambell, Charlotte Marie Bellem, Peter C. Bouxsein, Robert F. Sigafoos, William E. Merten, Charles Rodney Godwin, Judy Johnson-Kinlaw, Margaret Francis, Shavano Rogers Ranch Swim Club, Inc., and AMS SA Management, LLC

• Court: Court of Appeals of Texas
• Decided: August 5, 2015
• Docket: 04-11-00573-CV
• Status: Published

Opinion

ACCEPTED 04-11-00573-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 8/5/2015 1:21:56 PM KEITH HOTTLE CLERK

No.04-1l-00S73-CV

IN THE FILED IN FOURTH COURT OF APPEALS 4th COURT OF APPEALS SAN ANTONIO, TEXAS AT SAN ANTONIO 08/05/15 1:21:56 PM KEITH E. HOTTLE Clerk

RICHARD SNELLAND BRAD CROFT, Appellants,

V.

JASON S. GADSBY, SI-L4VA1\TO ROGERS RA1\TCH SWIM CLUB, INC. ET AL, Appellee.

MOTION TO DISMISS APPEAL

One of the Appellees is AMS SA Management, LLC d/b/a Association

Management Services ("AMS"). Appellant is Bradley L. Croft ("Croft").

Tills Court has authority under Tex. R. App. P. 42.2(a)(1) to grant a motion by an

appellant to voluntarily disnllsS Ills appeal. On July 28, 2015, A1'IS purchased from the

bankruptcy llustee all of Croft's appellate rights. The sale of Croft's appellate rights were

approved by the Ulllted States Banluuptcy Court for the Western District of Texas. A

llue and correct copy of that court's order is attached as Exillbit 1. Having purchased

Croft's appellate rights, ALvIS has succeeded to Croft's rights as appellant.

For these reasons, AMS moves the Court to disnllsS this appeal and to tax all

appellate costs against the person who incurred the same.

Page 1 of 3 Respectfully submitted,

Charles B. Gorham TBN: 08215000

Charles B. Gorham, LLP 1027 Austin Highway, Suite 150 San Antonio, Texas 78209 Tel. 210/822-5775 Fax 210/822-3883 E-mail charles@cgorham.com

Attorney for Appellee

Certificate of Service

I certify that I caused a copy of the foregoing instrument to be served on the

persons listed below by electronic service on August 5, 2015 and the electronic

transmission was reported as complete. 1'1'11' e-mail addressischarles@cgorham.com:

David 1'. Cain 8610 N. New Braunfels Avenue Suite 309 San )\ntonio, TX 78217 caind t@swbell.net

Charles B. Gorham

Page 2 of 3 Mfidavit in Support of Motion to Dismiss

Before me, the undersigned authority, personally appeared Charles B. Gorham, who, being by me dul), sworn, deposed as follows:

"1'1'1)' name is Charles B. Gorham, I am of sound mind and capable of making this affidavit, and personally acquainted with the facts herein stated.

Attached to this motion as Exhibit 1 is a true and correct copy of the Order Authorizing Trustee's Sale of Personal Property Interests Free and Clear of Liens and Interest signed by Judge Craig A. Gargotta, United States Bankruptcy Judge, on August 3, 2015."

~~ Charles B. Gorham

Sworn to and subscribed before me on August 5, 2015 .

Notar), Public, State of Texas BARBARA ELI ZABETH MC KINN EY NOTARY PUBLIC STATE OF TEXAS MY COMM. EXP. 9/22/16

Page 3 of 3 11-52905-cag Doc#134 Filed 08/03/15 Entered 08/03/15 10:13:54 Main Document Pg 1 of 4

IT IS HEREBY ADJUDGED and DECREED that the below described is SO ORDERED.

Dated: August 03,2015.

CRAIG A. GARGOTTA UNITED STATES BANKRUPTCY JUDGE

IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

INRE: § § CASE NO. 11-52905-cag BRADLEY 1. CROFT, § § § DEBTOR. § CHAPTER 7 §

ORDER AUTHORIZING TRUSTEE'S SALE OF PERSONAL PROPERTY INTERESTS FREE AND CLEAR OF ALL LIENS AND INTERESTS

On the 28th day of July, 2015, came on for consideration the TlUstee's Motion to Sell

personal property interests belonging to the bankruptcy estate as incorporated and conditioned in

the Motion For An Order Authorizing And Approving: (I) Bid Procedures, Including A Stalking

Horse, And Scheduling An Auction And Sale Hearing; And(Ji) Certain Related Relief and the

Order approving Motion For An Order Authorizing And Approving:(I) Bid Procedures,

EXHIBIT ~: ;:!o:; :no=-n ;;:o,:"i:derC';O""ran=t:Cmg::OTC:rus=tee::>':'s ::::to"'s,,'iCnpn::erso=na"'p,>=o:::pe:::rty:---III ] Page I of4 Free and Clear of All Liens and Interests f3 i 11-S2905-cag Doc#134 Filed 08/03/15 Entered 08/03/15 10:13:54 Main Document Pg 2 of 4

Including A Stalking Horse, And Scheduling An Auction And Sale Hearing; And(Ji) Certain

Related Relief(the "Order") entered on July 21, 2015 (Dkt #132).

The Court fmds that the Notice of this hearing and the establishment of the bid

procedures required by the Order is proper and, specifically, that the Trustee confirmed the

delivery of said notice in the Certificate of Service filed on July 21,2015 (Dkt.# 133).

The Court finds that the Bankruptcy Estate owns certain personal property interests in the

fonn of defensive appellate rights as determined, on appeal, by an order entered in the United

States District Court and upheld by the Cowt of Appeals for the Fifth Circuit.

Property to be Sold

The Court fmds that the specific appellate rights that are being sold by the estate are as

follows:

Defensive Appellate Right No.1

Trial Court Cause No. 2010-CI-09853, Richard Snell, Bradley L. Croft, Individually, and

as Trustee of the Willawall Investments Trust v. Jason S. Gadsby, Shavano Rogers Ranch Swill!

Club, Inc. at al. In this case, the trial court awarded a court penalty of $1.00; an $11,760.90

sanction award in favor of individual defendants and Shavano Rogers Ranch Swim Club, Inc.; a

$15,000 sanction award in favor of AMS SA Management, LLC; a $71,157.22 attorney fee

award in favor of individual defendants and Shavano Rogers Ranch Swim Club, Inc.; and a

$7,554.53 attorney fee award in favor of AMS SA Management, LLC.

The Debtor appealed the trial court judgment and award to the Fourth Court of Appeals;

Appellate Cause No. 04-11-00573-CV, Bradley L. Croft, Trustee of Willawall Investment Trust

v. Jason Gadsby.

Defensive Appellate Right No.2

Order Granting Trustee's Motion to Sell Personal Property Page 2 of 4 Free and Clear of All Liens and Interests 11-52905-cag Doc#134 Filed 08/03/15 Entered 08/03/15 10:13:54 Main Document Pg 3 of 4

Trial Court Cause No. 2009-CI-15857, Bradley L. Croft v. AMS SA Management, LLC.

In this case, the trial COUlt awarded a court penalty of $1.00; a $4,000 sanction award in favor of

AMS SA Management, LLC; and a $5,000 attorney fee award in favor of AMS SA

Management, LLC.

The Debtor appealed the trial court judgment and award to the Fourth Court of Appeals;

Appellate Cause No. 04-11-00304-CV, Bradley L. Croft v. AMS SA Management, LLC.

Conduct of the auction sale

The Court effectuated the terms of the Order by opening an auction in open court. No

other party appeared to participate in the auction other than the Stalking Horse named in the

Order.

The Tmstee informed the Court that he had received a certified check in the amount of

$5,000.00 from Clifton L. Lowry that was paid on behalf of the Stalking Horse (the "Lowry

Creditors") named in the Order and that he had received no other bids or payments from any

other patty. Accordingly, the Trustee recommended that the Court accept the offer submitted by

Clifton L. Lowry, on behalf of the Lowry Creditors, as the successful bid.

The Court fmds that the bid submitted by Clifton L. Lowry, on behalf of the Lowry

Creditors, in the amoUllt of Five Thousand and Noll 00 Dollars ($5,000.00) should be approved

as the successful bid.

It is, therefore, ORDERED, ADJUDGED, AND DECREED that the Trustee is

authorized to sell the Property to Clifton L. Lowry, on behalf of the Lowry Creditors, in the

amount of Five Thousand and No/IOO Dollars ($5,000.00). It is, further,

It is further ORDERED, ADJUDGED, AND DECREED that as to the property of the

bankruptcy estate and pursuant to Sections 363(c) and (f) of the Bankruptcy Code, this sale is

Order Granting Trustee's Motion to Sell Personal Property Page 3 of4 Free and Clear of All Liens and Interests 11-52905-cag Doc#134 Filed 08/03/15 Entered 08/03/15 10:13:54 Main Document Pg 4 of 4

made free and clear of any and all liens, claims, interests or encumbrances of any kind, valid and

invalid. Upon the sale of the Property and the payment of the purchase price, all liens and

interests are deemed released as to the Property, as herein set forth, and only (1) those liens or

interests set out in the Motion, and (2) those liens or interests of claimants who have filed

responses to the Trustee's Motion prior to this Order and whose lien claims are allowed shall

attach to the net proceeds of the sale and shall, under no circumstances, ever revert to the

Property itself.

IT IS FURTHER ORDERED that as to the property of the bankruptcy estate, such sale of

the Property is "as is," and "where is," with all faults, without recourse on the Trustee or the

bankruptcy estate and without any wal1'anty of any kind whatsoever.

IT IS FURTHER ORDERED that the stay provided by Federal Rule of Bankruptcy

Procedure Local Rule 6004(g) shall be vacated immediately so the sale can be completed after

entry of this Order on the docket.

###

Order submitted by:

Jose C. Rodriguez Law Office of Jose C. Rodriguez 342 W. Woodlawn, Ste. 103 San Antonio, TX 78212 (210) 738-8881 Tel. (210) 738-8882 Fax jrodlaw@sbcglobal.net

Order Granting Trostee's Motion to Sell Personal Property Page 4 of4 Free and Clear of All Liens and Interests