                                                                                                       ACCEPTED
                                                                                                   11-18-00034-CV
                                                                                      ELEVENTH COURT OF APPEALS
                                                                                                EASTLAND, TEXAS
                                                                                                  3/8/2018 3:41 PM
                                                                                             SHERRY WILLIAMSON
                                                                                                            CLERK

                                 NO. 11-18-00034-CV

                      IN THE COURT OF APPEALS          FILED IN
                                                 11th COURT OF APPEALS
          FOR THE ELEVENTH DISTRICT OF TEXAS AT EASTLAND
                                                    EASTLAND, TEXAS
                                                                          03/08/18 3:41:16 PM
                                                                           SHERRY WILLIAMSON
                                                                                  Clerk
           DESTINATION DEVELOPMENT PARTNERS, INC., ET AL.,
                             Appellants,

                                             v.

                                    SUZANN RUFF,
                                       Appellee.


                 From the 29th District Court, Palo Pinto County, Texas
                          Honorable Mike Moore, Presiding
                                  Cause No. C-46164


                      APPELLEE SUZANN RUFF’S
            REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS

                                 KIZZIA & JOHNSON                    STEIDLEY        &       NEAL,
MATHIS &                         PLLC                                PLLC
DONHEISER, P.C.
                                 D. BRADLEY KIZZIA                   Gary C. Crapster
RANDAL MATHIS                    State Bar No. 11547550              State Bar No. 05009600
State Bar No. 13194300           bkizzia@kjpllc.com                  CityPlex Towers 53rd Floor
MARK DONHEISER                   1910 Pacific Avenue,                2448 E. 81st Street
State Bar No. 05974800           Suite 13000                         Tulsa, OK 74137
ANH V. TRAN                      Dallas, Texas 75201                 gcc@steidley-neal.com
State Bar No. 24077806           Telephone: (469) 893-9940           Telephone: (918) 664-4612
1412 Main St., Suite 2600        Facsimile: (214) 451-0165           Facsimile: (918) 664-4133
Dallas, TX 75202
rmathis@mathisdonheiser.com                                          ATTORNEYS FOR
Telephone: (214) 303-1919                                            APPELLEE SUZANN
Facsimile: (214) 303-0399                                            RUFF




APPELLEE SUZANN RUFF’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS                           – PAGE 1
TO THE HONORABLE COURT OF APPEALS:

       COMES NOW, Suzann (“Suzy”) Ruff, Appellant in the above styled and numbered

appellate proceeding, and files this Reply Brief in Support of her Motion to Dismiss respectively

showing unto the Court as follows:

                                              I.
                                        INTRODUCTION

       The sole issue before this Court on the Motion to Dismiss is whether the order appealed

from is a temporary injunction (subject to appeal) or an order in aid of arbitration (which is not

subject to appeal).    Whether Judge Moore erred in entering the order or whether it was

appropriate and within his discretion to do so, is for the merits. The nature of his order is what is

at issue. In order to find that this order is a temporary injunction, this Court must assume that

Judge Moore simply does not know what he is doing. This Court must assume that Judge Moore

knows nothing about temporary injunctions. This Court must assume that Judge Moore has not

read the Rules of Civil Procedure. All of these assumptions are contrary to well established rules

of appellate review.

                                   II.
          SUZANN RUFF ASKED FOR AN ORDER IN AID OF ARBITRATION

       In the Motion to Dismiss, Appellee quoted the portion of her motion specifically

requesting the relief which forms the basis of the order appealed from. She cited neither the

rules concerning temporary injunctions nor the statute authorizing orders in aid of arbitration.

TEX.R.CIV.P. 683; TEX.CIV.PRAC.&REM.CODE §171.086. But she clearly asked for an order in

aid of the arbitration which had recently concluded.

       At the hearing, counsel for Mrs. Ruff specifically asked for an order in aid of arbitration:




APPELLEE SUZANN RUFF’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS                           – PAGE 2
                The Dallas Court has entered an order prohibiting movement of
                assets as to Mike but not these entities. So we are asking for it
                with respect to the entities.

Reporters Record (“RR”), Vol. 1 at 22.

        The Dallas Probate Court’s order referenced in that statement was also before Judge Moore.

2nd Supp. Clerk’s Record (“CR”) at 7. On its face, although not referencing §171.086, it is in aid of

arbitration.

        Appellant made his argument to Judge Moore that this was, in reality, a temporary injunction

and therefore, improper. RR Vol. 1 at 24-25. Obviously, by rejecting that argument and entering the

order, Judge Moore disagreed.

        Appellant argues that because Mrs. Ruff did not cite the statute, she cannot rely on it here.

But Judge Moore entered the order she requested. She has waived nothing. She is the Appellee.

Appellants’ argument turns well established Texas law regarding appellate review on is head. All

presumptions are indulged in favor of the trial court’s orders; no presumptions against it. See, e.g.,

Henry v. Halliburton Services, Inc., 100 S.W.3d 505, 508 (Tex.App.—Dallas 2003, pet. denied).

        This is clearly an order in aid of arbitration and not a temporary injunction.

                                      III.
               THE TRIAL COURT CONSIDERED THE EVIDENCE SUBMITTED

        Although going to the merits, and not the question presented by the Motion to Dismiss, the

Appellants continue to argue that no evidence was submitted. There was evidence attached to the

motion upon which the order is based. CR 215-531. At the beginning of the hearing, Judge Moore

stated that he had read some of this material. RR Vol. 1 at 5. Specifically he had read some of the

deposition transcript of Michael Ruff. Id. Later he indicated that he had read the Sanctions Order

issued by the American Arbitration Association against Michael Ruff. RR Vol. 1 at 33. At the end

of the hearing, he deferred ruling until he read through the rest of this “stuff.” RR Vol. 1 at 35.


APPELLEE SUZANN RUFF’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS – PAGE 3
           Clearly, evidence was considered.

                                       IV.
                    APPELLANTS WAIVED THEIR ARGUMENT THAT
            JUDGE MOORE DID NOT HAVE JURISDICTION TO ISSUE THIS ORDER

           Again, although this issue goes to the merits, Appellants argue that under the venue

provisions of Chapter 171 of the Civil Practice & Remedies Code, Judge Moore could not have

issued an order in aid of arbitration, only the Probate Court in Dallas could. They did not raise this

argument in the trial court and so have waived it.

           Moreover, in explaining what the Probate Court did in Dallas, Appellants argued that order

only applied to Michael Ruff, and not to them, because they were not parties. In other words, they

admit that the Probate Court did not have authority to issue such an order against them.1

                     There is an order in the Probate Court enjoining—stopping Mike
                     from acting, but it—it shouldn’t apply to the entity because the
                     entities are not parties to the Probate Court, and they’re not
                     judgment debtors here.

RR Vol. 1 at 24-25.

           In other words, Appellants are arguing that no one has authority over them in aid of

arbitration.       That Michael Ruff, who has been found to have breached fiduciary duties and

misappropriated his mother’s property, can use entities set up for that specific purpose, to hide the

misappropriated assets and that because he set up new legal entities, no one can stop him. Judge

Moore did not buy that argument. This Court shouldn’t either.

                                                           V.
                                                       CONCLUSION

           The order appealed from is in aid of arbitration, not a temporary injunction. It is therefore

not subject to appeal.



1   This will be a contested issue both in the Probate Court and before Judge Moore but is not relevant to this appeal.

APPELLEE SUZANN RUFF’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS – PAGE 4
       WHEREFORE, PREMISES CONSIDERED, Appellee Suzann Ruff, respectfully prays that

this appeal be dismissed, that she recover her costs in this Court and for such other and further relief

to which she may be justly entitled at law or in equity.

                                                      Respectfully submitted,

                                                      MATHIS & DONHEISER


                                                  By:__ ____________________________
                                                     Mark Donheiser
                                                     State Bar No. 05974800
                                                     Randal Mathis
                                                     State Bar No. 13194300
                                                     Anh V. Tran
                                                     State Bar No. 24077806
                                                     1412 Main Street, Suite 2600
                                                     Dallas, TX 75202
                                                     Telephone: (214) 303-1919
                                                     Fax: (214) 303-0399
                                                     Email: rmathis@mathisdonheiser.com
                                                     Email: mdonheiser@mathisdonheiser.com
                                                     Email: atran@mathisdonheiser.com


                                                      KIZZIA & JOHNSON PLLC

                                                      D. Bradley Kizzia
                                                      State Bar No. 11547550
                                                      bkizzia@kjpllc.com
                                                      1910 Pacific Avenue, Suite 13000
                                                      Dallas, Texas 75201
                                                      Telephone: (469) 893-9940
                                                      Facsimile: (214) 451-0165


                                                      STEIDLEY & NEAL, PLLC

                                                      Gary C. Crapster
                                                      State Bar No. 05009600
                                                      CityPlex Towers 53rd Floor
                                                      2448 E. 81st Street
                                                      Tulsa, OK 74137
                                                      gcc@steidley-neal.com


APPELLEE SUZANN RUFF’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS – PAGE 5
                                                  Telephone: (918) 664-4612
                                                  Facsimile: (918) 664-4133

                                                  ATTORNEYS FOR SUZANN RUFF


                                  CERTIFICATE OF SERVICE

       I HEREBY CERTIFY that a true and correct copy of the foregoing document has been

forwarded to all other counsel of record in accordance with the Texas Rules of Appellate Procedure

on this 8th day of March, 2017.



                                                  _____________________________
                                                  MARK DONHEISER




APPELLEE SUZANN RUFF’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS – PAGE 6
