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

Opinion

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~·;,;·

42 NO. CV1002049

ARMA LEE CROW, JAMES ALBERT CROW, and SANDRA KAY FORD, § INTmEILEDT q At /_t .'tJ O'clock £i::::__M Plaintiffs § JAN 18 2011 v. § 35mJUD(f~~ PEGGY JOYCE RUTH, Cler~ Court ~Co. TX Defendant § Blf0WN coHNFY{-TEXAS- Denut~

APPLICATION FOR SALE OF REAL PROPERTY PURSUANT TO THE MEDIATED SETTLEMENT AGREEMENT

TO THE HONORABLE JUDGE OF SAID COURT:

Arma Lee Crow, James Albert Crow, and Sandra Kay Ford, Plaintiffs and Applicants herein,

furnish the following information to the Court:

1. This is a lawsuit involving the partition ofreal property, located in Brown County and

San Saba County, Texas.

2. On September 15, 2010 mediation was held, and the case was settled. A copy of the

mediated settlement agreement is attached hereto as Exhibit "A" and incorporated by reference for

all purposes.

3. The mediated settlement agreement provided that the San Saba County property be

sold, and the net proceeds divided. From Peggy Joyce Ruth's portion of the net proceeds of the sale

of the San Saba County property, she would purchase the Plaintiff's portions of the Brown County

Property.

4. A reasonable offer has been made to purchase the San Saba property. A true and

correct copy of the offer to purchase is attached hereto as Exhibit "B" and incorporated by reference

Application for Sale of Real Property - Page 1

Exhibit 1 •'

for all purposes.

5. Although the Plaintiff's desire to sell the San Saba property pursuant to the offer

attached hereto, the Defendant has refused to sell.

Applicant requests that, upon a hearing on this Application, the Court enter an Order of Sale

pursuant to the offer attached hereto as Exhibit "B", in compliance with the mediated settlement

agreement, and for such other orders as the Court may deem proper.

Respectfully Submitted,

Todd Steele S.B.N. 00791724 208 E. Anderson Street Brownwood, Texas 76801 Tel. (325) 643-6587 Fax. (325) 643-6279 Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I certify that on January l 8 , 2011, a true and correct copy of the foregoing Application for Sale of Real Property was served to each person listed below by the method indicated.

Charles King Via Facsimile 325-227-6537 Attorney at Law 40 West Twohig Ave., Ste 203 San Angelo, Texas 76903

t""Todd Steele

Application for Sale of Real Property - Page 2 08/09/2011 12:06 FAX 8179783094 U S ATTORNEY OFFICE FTW ~003/007 ' . . Case 6:10-cr-00045-C-BG Document 112 Filed 05/05/11 Page 1 of 5 PagelD 625

CLERK US DISTRICT COURT MO!THEU DIST. OF TX Fii.ED IN THE UNITED STATES DIS1RICT COURT FOR THE NORTHERN DISTRICT OF TEXAS 7.0f I HAY - 5 PH 5: I6 SAN ANGELODIVISION ~ DEPUTY CLEl!K -- UNTIED STATES OF AMERICA §. § FILED·. :r(\\. 6· 1O.t'R-~§!t 1 v. § p.M JAMES CROW : AUG 09 2011 .

PREIJMINARYORDER.OF FORFE~ ~ ~ rkl1oistrict Court Browry.Co. TX · B}: . C/Y Deputy WHEREAS, in the Superseding Indictment in this case, the United States of

America (''the Government") gave notice that it woul~ seek forfeiture of property from

defendant James Crow ("the defendant") based upon his conviction on Count(s)-?,'l-1~ 11-JO

ofthe Superseding"lndictmentandpursuanUo 18 U.S.C. § 982(aX7); . . .. '\ }1---]0 .. WHEREAS, the defendant was found guilty to Count(s)..c/f-1, of t1ie Superseding

Indictment for which the Government sought forfeitUre pursuant to 18 U.S.C.§ 982(aX7),

·the defendant shall forfeit to the United StateS;

A sum of money equal to $1,653,474 in United States currencyi representing the amount of gross proceeds obtained as a result of the defendant's scheme and artifice to defraud;

And WHEREAS. based upon the jury's finding of guilt to Count(s·f/Hi '1,ri~ Superseding Indictment, the Court has determined that, based on evidence now in the

record, the Government has established the requisite nexus between the, property and the .. 1 rl"'."1t:> offense in Count(sr:-1Lf- J~ andtliii such property constitutes or was derived from gross

proceeds of the defendant's iheme and artifice to defraud described in Count(s)~'(-(~ (7-.,l()

Prellmlllary Order or Forf'elhlre (+)- Page 1

Exhibit 2 08/09/2011 12:06 FAX 8179783094 U S ATTORNEY OFFICE FTW ~004/007

Case 6:10-cr-00045-C-BG Document 112 Filed 05105/11 Page 2 of 5 PagelD 626

Thus, the following property is subject to forfeiture to the United States pursuant to 18

u.s.c. § 982(aX7); a. The above described money judgment.

. WHEREAS, the Court has detenn.ined_that,·based on the evidence now in the

record, the Government has established pursuant to 21 U.S.C. § 853(p) that the

·remaining property which constituted the $1,653,474, as a result of any act or omission

of the defendant cannot be located upon the exercise of due diligence, has been placed

beyond the jurisdiction of the Court, or has been commingled with other property which

cannot be divided without difficulty; and,

WHEREAS, the Court has detennined that, b~ed on evidence now in the record,

· the following property is forfeitable tO the Government as substitute assets pursuant to 21

u.s.c. § 853(p): . .

A. 2008 Ford F250 Pickup, VIN 1FTSW21YS8EB23878, Texas license plate

34BRY6, registered to James A. Crow.

B. 2007 Harley Davidson FLHXI motorcycle, VIN 1HD1KB4147Y638453,

Texas license plate 3HK986, registered to James A. Crow. .

C. 2008 Harley Davidson FLSTN motOTcycle, VIN UID 1JDS IX8Y025686,

Texas license plate 3~R026, registered to James A. Crow.

D. 2008 Harley Davidson motorcycle, VIN 1HD1PR8468Y958602, Texas

license plate 3UY631, registered to James A. Crow.

Prelimiaary Order or Forfeitare (Crow) - Page 2 U~/U~/ZUll 12:06 FAX 8179783094 us ATTORNEY OFFICE vrw ~005/007

Case 6:1 O-cr-00045-C-BG Document 112 Filed 05/05/11 Page 3 of 5 PagelD 627

E. All funds on deposit and credited to Oppenheimer Fund, account number

i/ '. in the name of James A. Crow, PSP.

F. All funds on deposit and credited to Oppenheimer fund, account number

. ·~ name of James A. Crow, PSP.

G. All funds on deposit and credited to Oppenheimer fund, account number

. . in the name of James A. Crow, PSP.

H. All funds on deposit and credited to Oppenheimer fund, account number

'11 the name of James A. Crow, PSP.

I. All ftmds on deposit and credited to Texas Banlc, account number ·XXXXl 843, in the name of James A. Crow, DD:s.

J. ~ of that lot or parcel of land, together with its buildings, appurtenances, and improvements, fixtures attachments and easements, located at tract 3: 26.63 acres, more or less, in the H.H. Survey 49, abstract 400, Brown County, Texas, ref~ced as fust tract of 26 acres; save & except 1.S7 ·acres, second~ of 1.33 acres and third tract of .87 acre in Deed dated September 19, 1977 ftom Julia ~o Roland, et al to Willis Creek Land and Development, Inc., recorded in volume 726, page 127, deed records, Brown County, Texas. (Acct. #R21458)

K. All of that lc;>t or parcel of land, together with its buildings, appurtenances, and improvements, fixtures attachments and easements, located at 103 Lakeview CT, Brownwood, TX 76801.

L. 2005 Camper Trailer, SPRI, VIN 4YDF297225A219542, Texas license

plate 5BS734, registered to James A. Crow.

M. 2007 Well VN Trailer, VIN 1WC200D0772059772, Texas license plate

Prelimiaary Order of Forfeltare (Crow) - Page 3 U ::> ATlUKNhl'. Ul.•F 1 CE .f

33ZDLD, registered to James A Crow.

N. 2008 Boatmate Tandom Trailer, Series or Model 2220003, VIN

5A7BB22228T000112, Texas license plate 57ZS~ registered to James

A. Crow.

0. 2008 TIOE Boat, VIN TIXQ43SCF708, Texas license plate 4754AN,

registered to James A. Crow. IT IS HEREBY ORDERED that the defendant's interest in tJie property is

condemned and forfeited to the Government subject to the provisions of 21 U.S.C. §

8S3(n):

IT IS FURTIIBR ORDERED that,-pursuant to 21 U.S.C. § 853(g) and Fed. R .

Crim. P. 32.2(bX3}, the property shall be seized by the United S~ Marshals Service or

the Federal Bureau of Investigation (or a designee) and held in its secure custody and

control pending a final order of forfeiture~

IT IS FURTIIER. ORDERED in accordance with 21 U.S.C. § 853(n)(l) and Fed.

R. Crim. P. 32.2(bX6), the Government s~l post notice on an official Government

Internet site (www.forfeiture.gov) for at-least 30 consecutive days, notice of this

preliminary order of forfeiture; descnoing the property ~th reasonable particularity;

stating the time under 21 U.S.C. § 853(n) when a petjtion contesting the forfeiture must

be filed [no later than 60 days after the first day of publication on an official Government

Internet site], and naming and giving contact information for the Govermilent attorney to.

Prelimlaary Order of Forfeiture (Crow) - Page 4 08/09/2011 12:07 FAX 8179783094 U S ATTORNEY OFFICE FrW ~ 007 /007

Case 6:10-cr-00045-C-BG Document 112 Filed 05/05/11 Page 5 of 5 PagelD 629

be served with the petition [Amanda Burch and/or Steve Jumes, United States Attorney's

Office, Northern District of Texas, 801 Cherry St., Suite 1700, Fort Worth, Texas 76102].

This Government shall send, by means reasonably calculated to reach the person, notice

· to any person who reasonably appears to be a potential cJaimant with standing to contest

the forfeiture.

IT IS FURTIIER ORDERED pursuant to Fed. R. Crim. P. 32.2(b) that the

Govemnient may apply to the Court to conduct any discoveey that the Court considers

proper to help identify, locate, or to dispose ofthe property, should the cirCumstances

present themselves, and that, upon adjudication of all third-party ~terem, this Court will

enter a final order of forfeiture pursuant to 21 U.S.C. § 853(n) and Fed. R. Crim. P

32.2(c) _in Which all interests will be addressed.

--JLll'~•AL&.&. GS UNITED STATES DIS

Preliminary Order or Forfeitare (Crow) - Page 5 OB/r9/2011 12:05 FAX 8179783094 U S ATTORNEY OFFICE FrW 141001/007

U.S. Departm&;dt of Justice

United States Attorney Northern District of Texas

I JOO Commerce St., Suite 300 Telephone: 214.659.8600 Dallas, Texas 75242 Fax: 214.659-8803

At ~ILEDp. ---- August 9, 2011 I· J O'clock M

35th Judicial District Court of Brown County, Texas AUG 09 2011 Judge Stephen Ellis 200 South Broadway St. Brownwood, Texas 76801 By ·CJerse:c~ ourt Brown Co.1x (325) 646-1987 0 L_neput,. (t) (325) 643-6396

Re: Request for Stay in Proceedings set for 1: 15pm Arma Lee Crow, James Albert Crow and Sandra Kay Ford vs. Peggy Joyce Ruth, James Ruth Cause No. CV-10-02-049

Dear Judge Ellis:

My name is· Steve Jumes and I am an Assistant United States Attomy in the Northern District of Texas, Asset Forfeiture section. Through this letter, I am asking you to stay any proceedings and orders pertaining to the sale of property relating: to the above referenced matter. Please forgive the late communication as I just learned of the proceedings recently. In support, the United States Government, Northern District of ·Texas states the following:

Criminal Case

1. James Crow has been convicted on seventeen counts of Medicaid Fraud in the United States District Court for the Northern District of Texas in ~an Angelo.

2. As part of that conviction, Judge Sam R. Cummings signed a Preliminary Order of Forfeiture stating that James Crow is the s~bject of a money judgment in the amount of · $1,653,474 as gross proceeds of his scheme.

3. The Preliminary Order of Forfeiture also includes that substitute assets may be obtained in satisfaction of that money judgment.

Exhibit 3 Q8/C9/2011 12:05 FAX 8179783094 U S ATTORNEY OFFICE FrW ~002/007

Amending the Preliminaiy Order of Forfeiture

4. The Government is in the process of filing an Amend~ltrftr of Forfeiture with the United States District Court in San AngeldiO ~W~st in the property that is the subject of the matter ~fore you. At J : i\ O'clock ~,·. M

5. Neither members of my office or the Court in San Angelo ~e~fJm1ed by James Crow as to this interest or his intention to sell it.

Conclusion Cler~ C~o. By _ _ _ _ _ ___.0 TX . . . .J__._ Deputy

Based on the above information, I request any proceedings and/or orders pertaining to the sale of the subject property in this matter. be stayed.

If there are any questions about this request I may be contacted at 817 .252.5251.

Sincerely,

~o._ stevenJumr ASSISTANT UNITED STATES ATIORNEY

\enclosures Preliminary Ordet of Forfeiture

cc: AUSA Amy Burch, USAO NDTX FBI Special Agent Janet Thomas UG/U~/~UJ.1 J.4:;)3 .l

Case 6:10-cr-00045-C -&:)G Document 159 Filed 08/09/11 ~age 1 of 7 PagelD 1081

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 § JAMES CROW §

UNITED STATES' MOTION FOR AMENDED PRELIMINARY ORDER OF FORFEITURE AS TO CERTAIN SUBSTITUTE PROPERTY AND BRIEF IN SUPPORT

The United States of America ("the Government") respectfully moves to amend

the preliminary order of forfeiture entered in this case against James Crow (Crow). The

Government seeks to partially satisfy the "money judgment" entered by the order using

property belonging to Crow. The Government makes this request pursuant to Rule

32.2(e) of the Federal Rules of Criminal Procedure; 18 U.S.C. § 98Z(a)(l), as governed

by the procedures set forth in 21 U.S.C. § 853, and 21 U.S.C. § 853(p). In support, the

9ovemment states the following:.

Background

I. A Superseding Indictment" filed March 9, 20 I I charged Crow with violating I 8

U.S.C. § 1035(a)(2) (Counts One through Four) and 18 U.S.C. 1347 (Counts Five

through Twenty) [docket #35]. The Superseding Information also gave notice that, upon

Motloa far Amended Prellmlaary Orders of Forfelt11re - Page I

Exhibit 4 U ~ A'lTUKNEY UJ:

Case 6:10-cr-00045-C -~G Document 159 Filed 08/09/11 r'age 2 of 7 PagelD 1082

the defendant's conviction on the alleged offenses, property would be subject to

forfeiture to the Government pursuant to-18 U.S.C. § 982(a)(7) and 21 U.S.C. § 853(p).

On May 5, 2011, Crow was found guilty on Counts 2, 4-15, and 17-20 of the

Superseding Indictment. On May 5, 2011, the Court issued a Preliminary Order of

Forfeiture [docket #112], forfeiting the following to the Government:

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;

The following items were ordered forfeited as substitute assets pursuant to

21 u.s.c. § 853(p).

A. 2008 Ford F250 Pickup, VIN 1FTSW21Y58EB23878, Texas license plate 34BR Y6, registered to James A. Crow.

B. 2007 Harley Davidson FLHXI motorcycle, VIN 1HD1KB4147Y6384S3, Texas license plate 3HK986, registered to James A. Crow.

C. 2008 Harley Davidson FLSTN motorcycle, VIN IHD1JD51X8Y025686, Texas license plate 3PR026, registered to James A. Crow.

D. 2008 Harley Davidson motorcycle, VIN 1HD1 PR8468Y958602, Texas license plate_3UY63 I, registered to James A· Crow.

E. All funds 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 ~ -· .. :J..J. ·~the 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

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Case 6: 1O-cr-00045-C -L)G Document 159 Filed 08/09/11 r-'age 3 of 7 PagelD 1083

, in 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 of 26 acres; save & except 1.57 acres, second tract of 1.33 acres ·and third tract of .87 acre in Deed dated September 19, I ~77 from Julia Mayo Roland, et al to Willis Creek Land and Development, Inc., recorded iii 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 103 Lakeview CT, Brownwood, TX 76801.

L. 2005 Camper Trailer, SPRI, VIN 4YDF29722SA219542, Texas license

plate 5BS734, registered to James A. Crow.

M. 2007 Well VN Trailer, VIN 1WC200D0772059772, Texas license plate

33ZDLD, registered to James A. Crow ..

N. 2008 Boatmate Tandom Trailer, Series or Model 2220003, VIN

SA 7BB22228T000112, Texas license plate 57ZSCM, registered to James

A. Crow.

0. 2008 TIGE Boat, VIN TIX0435CF708, Texas license plate 4754AN,

registered to James A. Crow.

Motion for Amended Preliminary Order1 of Forfeiture - Page 3 U S ATTORNEY OFFICE FTW ~007/010

Case 6:10-cr-00045-C -uG Document 159 Filed 08/09/11 r'age 4 of 7 PagelD 1084

Authorities

2. The forfeiture of particular dollar amounts, as here, are considered in personam

money judgments against defendants that can be satisfied from any property held by or

for the benefit of the defendants. See United States v. Huber, 404 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

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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.

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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

D. 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.

No. of Case NAME OF PARTIES ATIORNEYS Kind c and Party D

. ._. :.~.~.:. . . . . . . . . . . . . . . . . . . . L. F..!~!!!:N.1...R!.....~9.!.~.....................................................................J.......R!~~~....W..!.....~~-..............................................................L. . .P.~2~.~-·-............

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