Zoo Wars -Hoffmann et al v. Marion County et al case # 2:12cv-14

Available as public information produced here for the sake of exposing this case and general public review.

Hoffmann et al v. Marion County et al case # 2:12cv-14

Motion to Alter or Amend Judgment Under FRCP 59 – 1 –

UNITED STATES DISTRICT COURT

for the

EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

BARBARA HOFFMANN and FRED LULLING,

 Civil action number 2-12CV-014

Plaintiffs vs MARION COUNTY, TEXAS, et al. Defendants

PLAINTIFFS’ MOTION TO ALTER OR AMEND JUDGMENT AND FOR HEARING ON THE MOTIONS FOR SUMMARY JUDGMENT

UNDER FED. R. CIV. P. §59(e)

TO THE HONORABLE JUDGE OF THIS COURT:

1. NOW COME THE PLAINTIFFS, Barbara Hoffmann and Fred Lulling, pro se, and move this honorable Court to either ALTER or AMEND the Final Judgment signed by magistrate judge Roy S. Payne on a Sunday, September 29, 2013, to open the judgment, amend findings and conclusions or make new ones, and/or to direct the entry of a new judgment under Fed. R. Civ. P. §59(e), for the following reasons:

A. The findings and conclusions contained in the Memorandum Order are flawed and under Rule 59(a)(2) should be amended and/or re-written to reflect facts.

B. No hearing was had or scheduled, and no notice or opportunity to respond has been afforded Plaintiffs in this ruling and Final Order. No findings of fact or conclusions of law are contained in the Memorandum Order to support the dismissal of “all remaining claims.”

C. Magistrate Judge cannot under Rule 56(f) dismiss claims that were not argued as a basis for Summary Judgment.

D. Magistrate Judge cannot under Rule 56(f) arbitrarily dismiss “all remaining claims” without notice and a hearing, and without any findings and conclusions on those claims.

E. Several motions remain untouched and unacted-upon in this action, and cannot simply be ignored and dropped without notice and hearing. Motion to Set Trial Date, Compel Disclosures, and Amend Docket Control Order (doc. 261) details the unfair advantage given to defendants by the magistrate’s arbitrary and sua sponte amendment to the Docket Control Order. Motion for Judicial Notice and to Void Prior Judgment (doc. 257), like motions to compel discovery and other Plaintiff motions, has gone ignored by this Court, thereby allowing defendants to proceed while avoiding full compliance with rules of discovery. Amending the Docket Control Order put this case in limbo for nine months.

F. In Replies to all the defendant Motions for Summary Judgment, Plaintiffs have sufficiently refuted any alleged issues of undisputed material facts contained in the Motions.

G. There were not six motions for Summary Judgment filed, but five. Docket number 231is a motion to dismiss by Defendants Caroline Wedding and her Humane Society of Marion County, incorrectly claiming the Rooker-Feldman Doctrine as their defense against “collateral attack” on a void judgment, and this has been shown by Plaintiffs to be a genuine issue of material fact. If this Court wishes to treat the Motion to Dismiss as Summary Judgment, no notice to the parties and an opportunity to supplement the record has been afforded. The whole of this Motion is devoted to Rooker-Feldman and its supposed impact on this instant case and out-of-context assertions to “demonstrate” that the case is “only a collateral attack of the state court proceedings.” This could not be further from the truth and is stated quite clearly in the first paragraph of Plaintiffs’ Brief (doc. 188). Rooker-Feldman applies to attempts to re-open or appeal an adverse judgment from a state court to the federal district court, as Defendants allege is the case here. Plaintiffs re-state as they have again and again in pleadings to this court, that it would be fruitless and counterproductive to seek reversal of an already void judgment. The judgment of Marion County Court in a civil case was contrary to Government Code 26.258 and lacked subject matter jurisdiction, making it a void judgment. Rooker-Feldman does not –CANNOT- address a void judgment from a court with no jurisdiction.

H. Of all Motions for Summary Judgment, only one, filed by Defendants Carol Hedges and Jefferson Animal Clinic (doc.225), purports to list “Undisputed Material Facts,” as required by Local Rule CV-56(a)(2).

I. Although the defendants argue their various defenses in the motions for Summary Judgment, Defendants have not established that there is no genuine issue as to each material fact on which their motions are based that would entitle them to Judgment as a Matter of Law, as required by Fed. R.C.P. 56(c)(2). Plaintiffs have controverted facts material to the determination of each defense, that precludes Summary Judgment.

THE MEMORANDUM ORDER

I. Plaintiffs’ Allegations

2. Plaintiffs’ Original and First Amended Complaints do not allege that plaintiffs “have long operated a non-profit venture,” as stated in the Memorandum Order. Plaintiffs have alleged, and shown as evidence, that their non-profit corporation status was granted by the Texas Comptroller in January of 2009, one year prior to the incidents at the heart of this lawsuit. Plaintiffs simply highlighted their many years of competent background experience and credibility in the animals field and specifically, working with big cats.

3. Plaintiffs alleged the loss of far more than “animals and cages,” as stated in the Memorandum. Plaintiffs have alleged the seizures and thefts under color of law, of personal property including but not limited to feed, food bowls, extra and unused caging not required for the seizure, a hand truck, personal property from their home and workshop, vehicle registrations, liquor, and numerous other items above and beyond anything listed or implied in the warrant.

4. Plaintiffs allege in their Original and Amended Complaints, as the Memorandum notes, that a State Game Warden and Marion County Deputy entered their private, posted property “for the purpose of checking out an anonymous tip about dangerous wild animals being kept,” which was the original excuse given by the Warden and the Deputy. It was not until much later that these officials revealed, first that “a neighbor” had complained, and then that “an animal rescue agency” in Wisconsin had tipped them off to the presence of big cats being kept in Marion County. Later still, it was revealed by the defendants that a then-teenager, Lisa Hullet, who happens to be a first cousin of the owner of the Wisconsin “animal rescue” and lived a full mile away, had personally told Game Warden Lane that she “could hear the big cats roar.” Considering her age, her relationship to the man who would ultimately be awarded possession of the most valuable big cats, and the extreme distance from her home to Plaintiffs’ property, no corroboration of these reports was ever performed before the immediate night-time “inspection.” Whether probable cause existed for this initial entry and property search presents a genuine issue of material fact. The simple claimed presence of animals on the property, in and of itself, cannot create exigent circumstances. No reasonable person would believe the truth of this teenager’s supposed fears and “hearing the sounds of big cats” one mile away. If this tale were true, then Deputy McKnight and/or his family, living just three-quarters of a mile from Plaintiffs, and many other neighbors, would have reported hearing the sounds as well.

5. The warrantless trespasses alleged by Plaintiffs “over the next several days” constitute a genuine issue of material fact, to be determined by a jury. The “representative of USDA” (singular, as there was only one) was not on official duty, did not file any report with USDA, and no evidence has been submitted showing any official visit. Emails presented as exhibits which are from this agent’s superior’s office, in and of themselves and without any supporting documentation, do not prove that his visit was official. Thus he was named herein in his personal capacity –yet dismissed from this case in an official capacity and as an official agent of the U.S. Government.

6. Contrary to wording of the Memorandum Order, Plaintiffs have not “alleged many more yet unnamed defendants.” Plaintiffs simply stated that there were more unidentified participants in the trespass, but did not claim or imply “many more” defendants to be added to the cause. Two defendants, at the time of filing, remained unnamed and were successively identified. Both were eventually and voluntarily dismissed. Most of the 26 original defendants have also been dismissed, leaving a total of nine individual defendants, two entities, and the County of Marion in this cause of action, along with a challenge to the constitutionality of Texas Health & Safety Code 821 and its civil forfeiture scheme.

7. The records attached to the Complaint as exhibits by Plaintiffs do not contradict the causes of action, only purport to show what the defendants alleged, and are not verified or sworn statements of fact. Statements made in those records are refuted by Plaintiffs and they too present genuine issues of material facts.

8. The Memorandum Order states that the “facts set forth” are drawn from the sworn affidavits of the listed defendants. Defendants’ affidavits all fail to carry the burden of Summary Judgment evidence. Defendants are interested witnesses. To prove facts through an interested witness, the testimony must be uncontroverted, clear, positive, direct, credible, free from contradiction, and susceptible to being readily controverted. Tex. R. Civ. P. 166a(c). The Defendant affidavits contain many contradictions and untruths, and Plaintiffs in their Replies to the Motions have refuted and controverted the affidavit testimony of these Defendants.

9. The “shallow grave” did NOT contain visible remains of anything, despite the false allegations of several Defendant affidavits. Nothing was visible until after Plaintiff Hoffmann was forced to dig with a shovel.

10. The search and seize warrant was signed the same day it was executed, January 27, 2010.

11. The U.S. Marshal’s Office did not participate, as claimed by Defendants, other than to briefly stop by and promptly leave.

12. Plaintiffs were NOT represented by counsel at both trials. Immediately following the Justice Court trial, both public defenders withdrew their services, as it had become apparent this was a civil case and not criminal.

Hoog-Watson v. Guadalupe Cnty., Tex., 591 F.3d 431, 434 (5th Cir. 2009): Summary judgment is proper if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

II. Eddie Hayes

13. The brief description in the Memorandum Order of the Hayes affidavit leaves many questions unanswered, as does the affidavit itself. There is no mention, for example, of Defendant Hayes’ attempted strangulation of Plaintiffs’ poultry on their property, the Hold Order placed on them the following day, or his authorization to Defendant Hedges to immediately go ahead and euthanize all of them without testing, despite the Hold Order he himself had signed. These are some of the claims against Defendant Hayes, presenting a genuine issue of material fact, not addressed by Defendant’s Motion or this court, and not a subject of Summary Judgment.

Whether or not Defendant Hayes agreed to accompany others on Plaintiffs’ property is irrelevant to the issues herein. Hayes did not have landowner consent to take part in the pre-warrant searches. Plaintiffs have satisfactorily refuted all allegations made in the Hayes Motion and Affidavit (doc. 235). Nothing in the Hayes affidavit demonstrates a lack of genuine issue of material fact as required by Fed. R.C.P. 56(c)(2).

III. Game Warden Rick Lane

14. The Memorandum of Order quotes the Lane affidavit as saying, “On the night of January 24, 2010, he received a call from a local resident informing him that she was afraid because she was hearing ‘growls and other big-cat sounds’ coming from a nearby property. This citizen lived near Plaintiffs’ property.” Circumstantial evidence submitted by Plaintiffs shows that on that night, Warden Lane and Deputy McKnight approached Plaintiffs’ property from the direction of the informant’s home –which is not a route they would have taken had they come from the Marion County Sheriff’s Office as alleged in the McKnight affidavit. Warden Lane had every opportunity to corroborate the tale of this teenaged complainer, and knew or should have known that she was also a cousin of Jeff Kozlowski, the “sanctuary” owner in Wisconsin who had also called in a report of big cats in the county. It should also have been obvious to both Lane and McKnight that the residence of this citizen, a full mile from Plaintiffs’ property, with dense woods and many homes between, would simply not allow her to “hear growls and other big-cat sounds” originating from Plaintiffs’ property. This has all been pointed out in Plaintiffs’ Reply to the Motion (doc.236). Plaintiffs have refuted the claim that on the first night (January 24, 2010), the big cats were in visibly poor health and being held in poor conditions. These conflicting accounts present a genuine issue of material facts and would preclude Summary Judgment.

IV. Carol Hedges DVM and Jefferson Animal Clinic

15. The Memorandum Order concludes that according to the Hedges affidavit, she “provided emergency veterinary care to those animals which required it…” Yet, according to discovery, her own sworn testimony, and the affidavit itself, no such emergency care was provided or considered to be needed. No tests were performed until much later, on other animals, and whether the euthanasia administered was to relieve pain and suffering or not is a genuine issue of material fact to be considered by a jury. The Texas BVME hastily dismissed a complaint by Plaintiffs without any investigation, based solely on a letter (not an affidavit) from one of their own, Dr. Hedges, and this too is a genuine issue of material fact. Nothing in the Hedges affidavit demonstrates a lack of genuine issue of material fact as required by Fed. R.C.P. 56(c)(2).

V. Gleason, Nance, Cox, McCay, and McKnight

16. The Memorandum Order quotes the McKnight affidavit, that a neighboring landowner complained of “odor and growling coming from the property.” Uncorroborated nonspecific “odor” and growling sounds, if true, would hardly constitute probable cause for exigent circumstances and an immediate night-time search of a rural agricultural property, but do constitute a genuine issue of material fact. Inconsistencies, errors, and incorrect statements in the McKnight affidavit and his Motion for Default Judgment have been exposed and refuted in Plaintiffs’ Reply (doc. 248). Nothing in the McKnight affidavit demonstrates a lack of genuine issue of material fact as required by Fed. R.C.P. 56(c)(2).

17. As noted in the Memorandum Order, the Gleason affidavit confirms that Defendant Gleason, in his capacity as District and County Attorney, extrajudicially accompanied officers to Plaintiffs’ property on January 25, 2010, two days prior to the issuance of any warrant, and prior to any arrest or charges being filed. Such investigative activity by a prosecutor has been held to be not protected by prosecutorial immunity. See

Hoog-Watson v. Guadalupe County, Tex., 591 F. 3d 431 – Court of Appeals, 5th Circuit 2009. Inconsistencies, errors, hearsay, and incorrect statements in the Gleason affidavit and the Motion for Default Judgment have been exposed and refuted in Plaintiffs’ Reply (doc. 248). Gleason’s descriptions of statements made by Lynn Bourgeois of USDA are hearsay and no record, document, or affidavit from either Bourgeois or his supervisor Dan Jones confirms this. Nothing in the Gleason affidavit demonstrates a lack of genuine issue of material fact as required by Fed. R.C.P. 56(c)(2).

18. Description of the “agreement” entered into by Plaintiffs and District Attorney Gleason, on behalf of Marion County and without the required approval of the County Commissioners, is incomplete and erroneous. Terms of this agreement were breached by the county within hours of its signing, and continued to be breached for six months after the signing. Despite wording of the agreement that all charges would be dropped, the PR bond states “misdemeanor A Cruelty to non-livestock animals; fail to prov,” and commanded Plaintiffs to appear for a criminal hearing the following day. Thus, the justice court hearing the following day was expected by all parties (and the court-appointed defense counsel) to be a criminal hearing and not the ambush civil seizure hearing it turned out to be. Had the agreement not been signed, the Justice Court was scheduled to hear a Class A misdemeanor case, which the Justice Court has no jurisdiction to hear.

http://www.courts.state.tx.us/courts/jp.asp

: “Justice of the peace courts have original jurisdiction in Class C misdemeanor criminal cases, which are less serious minor offenses. These courts also have jurisdiction of minor civil matters.”

Code of Criminal Procedure, Art. 4.11. Jurisdiction of Justice Courts

. (a) Justices of the peace shall have original jurisdiction in criminal cases:

(1) punishable by fine only or punishable by:

(A) a fine; and

(B) as authorized by statute, a sanction not consisting of confinement or imprisonment; Penal Code § 42.092. Cruelty to Nonlivestock Animals

(b) A person commits an offense if the person intentionally, knowingly, or recklessly:

(3) fails unreasonably to provide necessary food, water, care, or shelter for an animal in the person’s custody;

(c) An offense under Subsection (b)(3)… is a Class A misdemeanor Penal Code § 12.21. Class A Misdemeanor.

An individual adjudged guilty of a Class A misdemeanor shall be punished by:

(1) a fine not to exceed $4,000;

(2) confinement in jail for a term not to exceed one year; or

(3) both such fine and confinement.

This presents a genuine issue of material fact. As a matter of law, the justice court had no jurisdiction whether it was criminal or civil. Neither the Gleason affidavit, the Motion, nor any proffered exhibits demonstrate a lack of genuine issues of material facts as required by Fed. R.C.P. 56(c)(2). The agreement, among other things, promises the return of nine valuable exotic animal transport cages taken from Plaintiffs above and beyond the warrant, within six months. Plaintiffs, after considerable travel expense, were only able to retrieve one cage; others had been destroyed or “lost” and Defendant Gleason denied any responsibility for their return or recovery, despite the spirit and letter of the signed agreement. This breach in itself should make the agreement voidable, and at the very least presents a genuine issue of material fact. Neither the Gleason affidavit, the Motion, nor any proffered exhibits demonstrate a lack of genuine issues of material facts as required by Fed. R.C.P. 56(c)(2).

VI. Caroline Wedding and the Humane Society of Marion County

19. Defendant Wedding argues that as purported “Animal Control” for the county, she should be entitled to the same immunities as government officers. However, she has failed, in testimony, discovery, and her Summary Judgment affidavit, to assert or evidence any employment status or government contract, supporting her claims of being an animal control officer. Plaintiffs have demonstrated in their Reply (doc. 248) that the Humane Society of Marion County is a non-profit 501(c)(3) entity and not a government agency or contractor. It is “of Marion County” in name only. This is a genuine issue of material fact, and she is charged by Plaintiffs with impersonation of an officer under 18 U.S.C. §913.

20. The affidavit of Defendant Wedding contains several false allegations, which have been exposed, refuted and shown to be false by Plaintiffs’ Reply and affidavits. As an example, Defendant Wedding affirms under oath that she could see abused animals from the road prior to entering the property. This has been shown to be an impossibility, as the road is bordered by a high embankment and trees, making it impossible to see the property from foot or from an automobile. Other allegations of the Wedding affidavit are shown to be false or erroneous in Plaintiffs’ Reply and exhibits.

21. Defendant Wedding is also not an audiologist nor does she claim to have any experience working with deaf or hearing impaired people, is not an expert witness, and is not qualified to judge or opine on the extent of Plaintiff Lulling’s abilities to communicate, lip read in the dark, or understand people speaking around him. Defendants Wedding and Hedges were not denied access to animals on January 26, 2010, as the Memorandum concludes, but were denied entry into Plaintiffs’ private residence after attempting to trick their way in. This too is a genuine issue of material fact, and the Wedding Affidavit fails to carry the burden of Summary Judgment evidence.

22. Neither the Defendant’s Motion nor the court’s Memorandum Order address or refute the causes of action attributed to Caroline Wedding and her Humane Society.

VII. Magistrate’s Analysis

23. Black’s Law Dictionary defines “curtilage” as:

“The enclosed space of ground and buildings immediately surrounding a dwelling-house. In its most comprehensive and proper legal signification, it includes all that space of ground and buildings thereon which is usually enclosed within the general fence immediately surrounding a principal messuage and outbuildings, and yard closely adjoining to a dwelling-house, but it may be large enough for cattle to be levant and couchant therein.

1 Chit. Gen. Pr. 175. The curtilage of a dwelling-house is a space, necessary and convenient and habitually used for the family purposes, and the carrying on of domestic employments. It includes the garden, if there be one. and it need not be separated from other lands by fence. State v. Shaw, 31 Me. 523; Com. v. Rarney, 10 Cush. (Mass.) 480; Derrickson v. Edwards, 29 N. J. Law, 474. SO Am. Dec. 220. The curtilage is the court-yard in the front or rear of a house, or at its side, or any piece of ground lying near, enclosed and used with, the house, and necessary for the convenient occupation of the house. People v. Geduey, 10 Ilun (X. Y.) 154. In Michigan the meaning of curtilage has been extended to include more than an enclosure near the house. People v. Taylor, 2 Mich. 250.”

24. The Online Legal Dictionary states:

“A garage, barn, smokehouse, chicken house, and garden are curtilage if their locations are reasonably near to the home. The determination of what constitutes curtilage is important for purposes of the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures of a person and of his or her home or property. Courts have construed the word home to include curtilage so that a person is protected against unlawful searches and seizures of his or her curtilage.”

25. The Memorandum Order, while quoting case law on the subject, is unclear as to the curtilage of Plaintiffs’ home and property for purposes of this action. The curtilage of Plaintiffs’ home, for all intents and purposes, extends within a fenced area from the front locked gate to the animal caging behind the home, covering and including the sheds used as storage and workshop space, and all parked vehicles, that “harbors the `intimate activity associated with the sanctity of a man’s home and the privacies of life.” As the Memorandum itself states, this property is a rural area of Marion County and not a city housing tract. This is farm country, and a 10-acre wooded plot devoid of “open fields” in this area is considered relatively small. Curtilage claimed by Plaintiffs is less than one acre of this land. Determining the boundaries of curtilage is imprecise and subject to controversy, and this too may present a genuine issue of material fact. In

United States v. Dunn, quoted in the Memorandum Order, the Dunn property was 198 acres and the barn, found to be outside the home’s curtilage, was over 50 yards from the house and outside a fenced area. Photographs entered as Plaintiffs’ exhibits in this case show District Attorney Gleason holding a “press conference” no more than eight feet from the residence. Other photos show officials and agents milling around the property at arm’s length from the home.

26. The Memorandum Order states, “Law enforcement authorities are entitled to approach a residence, entering through the gate in a perimeter fence around a large rural property such as this, in order to speak to the residents without first obtaining a warrant.” However, Plaintiffs both met the authorities at the locked gate, and there was no need to “approach the residence” in this case. This was not an instance of “speaking to the residents,” but of several forced full-blown searches of the property, right up to the doors of the residence. Plaintiffs were “seized,” as that term is legally applied, by the investigating officers and not free to leave. District Attorney Gleason even boasted to the press that “We kept someone there to make sure she didn’t run off.” (Marshall News Messenger, 1/26/2010) Plaintiffs were thus under siege for three days prior to the warrant’s application, issuance, and service.

27. In the State of Texas, a fence, locked gate, and “No Trespassing” signs scattered about the property clearly spell “no trespassing” without a valid warrant. Property rights in Texas are so cherished that the law allows a landowner to shoot trespassers after dark. And this initial entry onto Plaintiffs’ property was indeed well after dark, at 8 p.m. on a late January evening, when sunset is around 5 p.m. Any reasonable officer would be aware of this law, as well as the constitutional right to freedom from unreasonable search and seizure.

28. The Memorandum Order concludes that “Plaintiffs have not cited, and the Court has not found, any precedent existing from the courts in this jurisdiction clearly establishing that the actions of the Defendants in approaching the Plaintiffs’ residence and inquiring as they did violated Plaintiffs’ constitutional rights.” Here the Court has concluded something that is not claimed as a cause of action. There has never been a claim that Defendants “approached the residence and inquired” anything. A search of property cannot be defined as “inquiring.” All Defendants presented questions –inquiries- to the Plaintiffs, with the expectations of not receiving satisfactory answers. Thus any answers or statements given by Plaintiffs during the unwarranted searches went totally ignored by Defendants, including the announcements that they were trespassing and were requested to leave the property a minimum of four times the evening of January 24, 2010. Gleason’s statements to both the news media and the courts regarding liability insurance were fraudulent, as Plaintiff Hoffmann had provided him with a copy of her insurance policy, the sum of which was greater than that required by law. –More genuine issues of material facts.

29. The State of Texas places a high priority on rights to privacy and private property. Trespass to real property occurs when a person enters another’s land without consent.

Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 509 n.4 (Tex. App.–Eastland 2008, pet. denied); Wilen v. Falkenstein, 191 S.W.3d 791, 797-98 (Tex. App.–Fort Worth 2006, pet. Plaintiffs here have cited Hoog-Watson v. Guadalupe County, Tex., 591 F. 3d 431 – Court of Appeals, 5th Circuit 2009 throughout this case. Events, circumstances, and material facts of this instant case are closely aligned with those of Hoog-Watson.

30. Neither the defendants’ Motions or the Memorandum Order discuss Plaintiffs’ allegations that news media and curious neighbors trespassed on Plaintiffs’ property during the search warrant service at the invitation of the District Attorney’s office, and were admitted onto the property by both District Attorney Gleason and Sheriff’s Deputy McKnight, with McKnight threatening “cuffs and arrest” if Plaintiffs attempted to prevent the media’s entry. Multiple instances of case law have been cited by Plaintiffs supporting this allegation –most notably

. This too presents a genuine issue of material fact, as yet unchallenged and unrefuted by Defendants.

31. None of the defendants make a single reference to the fact that there were numerous “No Trespassing” signs present, or address the fact that they were asked to leave the property numerous times the evening of January 24, 2010. This presents another genuine issue of material fact, as yet unanswered, unchallenged and unrefuted by Defendants.

32. The Memorandum Order finally erroneously states that “Neither party has discussed the fact that defendants Hedges and Wedding… are not state actors. This point has been presented by Plaintiffs numerous times in the course of pleadings, and in Plaintiffs’ Replies to the motions of both Defendants. Whether either Defendant could be considered a state actor, subject to Section 1983, or a private party, not a state actor, and not subject to qualified immunity, is a genuine issue of material fact. The Summary Judgment Motion of Defendant Hedges, p. 11, contains the assertion, “a. As Private Parties, Defendants Hedges and JAC Cannot Be Liable Under the Fourth Amendment.” On page 12 of the same Motion we find, “c. As Private Parties, Defendants Hedges and JAC Cannot Be Liable Under 42 U.S.C. § 1983.” Thus, Defendant Hedges herself admits to not being a state actor.

33. To arbitrarily sweep aside “all the other claims asserted by Plaintiffs” in a single paragraph, concluding that the issuance of a search warrant somehow defeats every cause of action, is indeed “throwing out the baby with the wash water.” This is, simply put, a presumptuous and unacceptable conclusion.

34. The Memorandum Order concludes that “Plaintiffs are not entitled to relitigate those matters in this Court.” Plaintiffs in this action do not attempt to relitigate or re-open the alleged animal cruelty case that was tried in the void Justice and County courts. This case is not about whether Plaintiffs may or may not have been guilty of anything charged in those courts. Matters presented in this case are above and beyond anything purportedly litigated in the Justice and County courts of Marion County. At issue here and outlined in Plaintiffs’ First Amended Complaint are: Breach of contract (the agreement signed by DA Gleason and promptly breached); The challenge to the constitutionality of Section 821 of the Texas Health & Safety Code; The unauthorized admittance by Gleason and McKnight of news media and curious neighbors during the execution of a search warrant (thereby jeopardizing the integrity of the search); The multiple denials of equal access (to Plaintiff Lulling) under the ADA (28 CFR 35.130-35.135) in the warrant service, arrest, jail booking, and the first hearing in the justice court; Invalid warrant affidavit; Vague, overly broad, and invalid search warrant; Warrant service assistance brought in from outside Marion County, in violation of Texas Penal Code 18; Illegal, Unethical, and Extrajudicial Actions of the District Attorney; Impersonation of an officer by Defendant Wedding; Due process violations; Thefts of property under color of law during the warrant service; Denial of 7

th Amendment rights to a jury trial in both courts; and, of course, the trespass and property searches by Defendants themselves on three consecutive days prior to the obtaining of a warrant without extenuating circumstances or corroboration of informants’ claims; Use of “evidence” gathered in those illegal searches to obtain the warrant; The use of “fruit of the poisoned tree” in the ensuing court trials; The void “hearings” in both Justice and County Courts and the void County Court Judgment… All these present genuine issues of material fact, barring Summary Judgment.

Void Judgments of both state courts must be vacated

35. Specific wording of Texas Government Code 26.258 bars the county court of Marion County from hearing civil cases and thus causes the county court’s judgment to be void ab initio.

Generalized wording of Health and Safety Code cannot override the more specific wording of Government Code. A statement by a judge that he has subject-matter jurisdiction does not confer subject-matter jurisdiction upon his court. If the statement is not supported by statute, then no subject-matter jurisdiction was conferred,

Lombard v. Elmore, 134 Ill.App.3d 898, 480 N.E.2d 1329 (1st Dist. 1985) (“a trial court’s express finding that it has jurisdiction does not confer jurisdiction.”) (“a trial court’s intent to retain jurisdiction does not confer jurisdiction.”); Hill v. Daily, 28 Ill.App.3d 202, 204, 328 N.E.2d 142 (1st Dist. 1975) (“Neither does the court acquire jurisdiction by a mere recital in an order, which is contrary to what is shown in the record”). The judge’s statement is nothing more than an unproven allegation.

36. The County Court had no authority to make a finding that it had subject-matter jurisdiction.

The People v. Brewer, 328 Ill. 472, 483 (1928) (“If it could not legally hear the matter upon the jurisdictional paper presented, its finding that it had the power can add nothing to its authority, – it had no authority to make that finding.”).

37. The County Court’s and the Justice Court’s declarations that they have subject-matter jurisdiction were not supported by the record of either case. Both courts acted without jurisdiction.

38. Without a valid Petition in the record of the CR-10-0112 Justice Court civil case, the justice court was without subject-matter jurisdiction. Where the Justice Court had no subject matter jurisdiction, the County Court, even if it did have civil jurisdiction, still would not have jurisdiction to hear this case on appeal, de novo. Even had there been a valid Petition and Citation on the record for the Justice Court, under Texas Government Code, Section 27.031(a)(1), a Justice Court cannot hear cases of more than $10,000. Further, under the same Texas Government Code, a justice court does not have jurisdiction of a suit in behalf of the state to recover a forfeiture.

An Overview of Texas Rules of Civil Procedure states,

“The power of a court to adjudicate a particular controversy is its subject-matter jurisdiction. Subject-matter jurisdiction is granted in the Constitution and/or in a statute. Courts have limited subject-matter jurisdiction. A court has no power to adjudicate a controversy outside of its subject-matter jurisdiction and any attempt to do so is void.”

39. The Defendants would argue that Texas Health and Safety Code Section 821.025 gave the county court jurisdiction in this matter, and they’d be only partly correct. Health & Safety Code does NOT expressly state that all county courts shall have jurisdiction to hear appeals of Section 821 cases. Government Code 26.258 limits the jurisdiction of the county court of Marion County to probate, juvenile, and general criminal. All civil jurisdiction of the county courts in Eastland, Morris, and Marion counties, except probate and juvenile, was transferred to the district courts of said counties, and the district courts have concurrent with the county courts the criminal jurisdiction of a county court. Section 26.258 is specific that the Marion County court have NO OTHER CIVIL JURISDICTION. No court has the power to adjudicate a controversy outside its jurisdiction and any attempt to do so is void and a waste of taxpayer time and money.

40. As if this were not enough, the JP court hearing that this cause was appealed from, as trial de novo, was commenced without benefit of any petition, citation, complaint, or information, and no such paper is anywhere to be found in either JP court or county court files, nor mentioned in either docket.

RULES OF CIVIL PROCEDURE, RULE 22. COMMENCED BY PETITION

A civil suit in the district or county court shall be commenced by a petition filed in the office of the clerk.

RULE 45. DEFINITION AND SYSTEM

Pleadings in the district and county courts shall

(a) be by petition and answer;

(b) consist of a statement in plain and concise language of the plaintiff’s cause of action

or the defendant’s grounds of defense. That an allegation be evidentiary or be of legal

conclusion shall not be grounds for objection when fair notice to the opponent is

given by the allegations as a whole;

(c) contain any other matter which may be required by any law or rule authorizing or

regulating any particular action or defense;

(d) be in writing, on paper measuring approximately 8 ½ inches by 11 inches, and signed

by the party or his attorney, and either the signed original together with any

verification or a copy of said original and copy of any such verification shall be filed

with the court.

RULE 74. FILING WITH THE COURT DEFINED

The filing of pleadings, other papers and exhibits as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and time and forthwith transmit them to the office of the clerk.

RULE 78. PETITION: ORIGINAL AND SUPPLEMENTAL; INDORSEMENT

The pleading of plaintiff shall consist of an original petition, and such supplemental petitions as may be necessary in the course of pleading by the parties to the suit.

RULE 79. THE PETITION

The petition shall state the names of the parties and their residences, if known, together with the contents prescribed in Rule 47.

RULE 99. ISSUANCE AND FORM OF CITATION

a.

Issuance. Upon the filing of the petition, the clerk, when requested, shall forthwith issue a

citation and deliver the citation as directed by the requesting party.

RULE 124. NO JUDGMENT WITHOUT SERVICE

In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules.

RULE 562. NO JUDGMENT WITHOUT CITATION

No judgment, other than judgment by confession, shall be rendered by the justice of the peace against any party who has not entered an appearance or accepted service, unless such party has been duly cited.

GOVERNMENT CODE Sec. 26.258. MARION COUNTY.

The County Court of Marion County has the general jurisdiction of a probate court, general criminal jurisdiction, and juvenile jurisdiction as provided by Section 26.042(b) but has no other civil jurisdiction.

Sec. 311.026. SPECIAL OR LOCAL PROVISION PREVAILS OVER GENERAL.

(a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.

(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.

Acts 1985, 69th Leg., ch. 479, § 1, eff. Sept. 1, 1985.

GOVERNMENT CODE Sec. 27.031. JURISDICTION.

(a) In addition to the jurisdiction and powers provided by the constitution and other law, the justice court has original jurisdiction of:(1) civil matters in which exclusive jurisdiction is not in the district or county court and in which the amount in controversy is not more than $10,000, exclusive of interest;(b) A justice court does not have jurisdiction of (1) a suit in behalf of the state to recover a penalty, forfeiture, or escheat

41. In a court governed by the rules of limited jurisdiction, no subject-matter jurisdiction is conferred upon the court without a valid petition being filed and found in the record of the case. Health and Safety Code cannot make it so. In Marion County, both county and justice courts are courts of limited jurisdiction. Therefore, the attempts of the justice court to adjudicate this matter beyond the reach of its jurisdiction, and of the county court to hear an appeal as trial de novo, outside its jurisdiction, are both null, void, and unenforceable.

42. It is said that subject-matter jurisdiction can never be waived. There is no statute of limitations to challenge the orders of any court which has acted without subject-matter jurisdiction, as the orders are a legal nullity and are void ab initio. And the void orders can be challenged in any court, in any state, as they are, as one court stated, “nothing more than a blank piece of paper.”

A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court,

Long v. Shorebank Development Corp., 182 F.3d 548 ( C.A. 7 Ill. 1999).

Relief from void judgment is available when trial court lacked either personal or subject matter jurisdiction,

Dusenberry v. Dusenberry, 625 N.E. 2d 458 (Ind.App. 1 Dist. 1993).

Void judgment, such as may be vacated at any time is one whose invalidity appears on face of judgment roll,

Graff v. Kelly, 814 P.2d 489 (Okl. 1991).

Although Rule 60(b)(4) is ostensibly subject to the “reasonable” time limit of Rule 60(b), at least one court has held that no time limit applies to a motion under the Rule 60(b)(4) because a void judgment can never acquire validity through laches.

See Crosby v. Bradstreet Co., 312 F.2d 483 (2nd Cir.) cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963) where the court vacated a judgment as void 30 years after entry. See also Marquette Corp. v. Priester, 234 F.Supp. 799 (E.D.S.C.1964) where the court expressly held that clause Rule 60(b)(4) carries no real time limit.

A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court. See Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. 1999)

43. This court has a duty to vacate the void justice court order that was improperly issued and a duty to vacate and nullify the void county court judgment. A court does not need subject-matter jurisdiction to vacate a void order; it only needs the inherent power of the court, which every court has, to vacate the void order issued by the justice court on February 17, 2010 and the void county court judgment issued March 16, 2010.

44. Of Special Note is case number 14-13-00240-CV, now pending in the 5th Circuit Court of Appeals in Houston. Without clear title of ownership to the animals, a humane society cannot convey ownership to others. Neither Justice nor County Court had proper jurisdiction; The warrant was defective; therefore, this was a theft of property under color of law and transfers of all animals constitute conversion of property.

CONCLUSION

44. For the above reasons, the Court should either ALTER or AMEND the Final Judgment, open the judgment, amend findings and conclusions or make new ones, direct the entry of a new judgment, and declare the judgment of the county court of Marion County, Texas VOID AB INITIO.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs this move this honorable Court to Alter or Amend the Final Judgment and amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment, under Fed. R. Civ. P. §59(a)(2), and to vacate and nullify the void county court judgment of March 16, 2010.

Dated: October 24, 2013 Respectfully submitted,

______________________

______________________

Barbara Hoffmann,

Fred Lulling,

Plaintiffs pro se