brief submitted by the government in response to the court's questions and first regarding the court's first question about whether or not any of the contracts that were the subject of the a p a reverted to mr meir at terminations interestingly the government's first assertion in its supplemental brief was that harbor america was not entitled to terminate the a b a at all but the government's assertion misses the point of the court's question which was not whether of america could terminate the a p a the issue is what happens to the client service agreements what's harbor america terminate the a p a and to that the cases that we have cited in our supplemental brief stand for the proposition that the assets do not revert back to the seller absent an express provision in the agreement itself which does not the payments that were received by harbor america after the terminations the greenman have been deposited into that registry and those are harbor america's entitle to receive those back  of the contracts even after terminations effective terminations the commissions would continue to be paid is that not correct that's not correct your honor there is no provision in the a p a that provides for the ongoing payment to me or of those commissions following terminations there's no provision no survival clause or other provision in the greenman that provides for that it is true that the a p a outlines  the contract is of indefinite duration and pursuant to texas law harbor america has the right to terminate that contract at will and there are many cases that stand for that proposition there is no provision whatsoever in the agreement that  titles mirror to retain a property interest in those payments in the future following terminations which was something he could have bargained for at the time the contract was signed but he didn't there was no provision in the contract that provides for any type of buyout of mirror or other type of compensation to him in the event of a terminations of the well why haven't you filed the declaratory action or something in federal court to and mr mears property interests in the in the contract as it has been determined and i don't garnishment correct so you need i think i'm not giving your advisory opinion but it seems to me you would need to file something within the state court within the federal authority for the proposition that the federal court would decide the issue of the property rights and and the property rights that the judgment there has however i don't think that applies here for a couple of reasons one of which is that i don't think the after the garnishee files an answer which we did the judgment debtor or the united states may file and has twenty days to file a written objection to the answer and request a hearing the government never did that in this case we follow the answer and we disputed mirror's ownership over these contract payments and we don't believe that the government ever put that issue in front of the federal court properly under the statute because they never invoked that provision never f objection to our answer and then the court when i had an issue disposition order without the government having even objected to the to our answer and all the dispute to the property rights so we don't believe that that was even an issue that was properly put before the federal court and the federal court has never made any findings on the property rights of mr meir regarding those contract payments and this court has held as recently as two thousand and six that a garnishment writ is properly dissolved when a federal court does not make proper findings or have the evidence before it in which to determine or to make a finding of the property rights of the judgment debtor so said this court in the f g hemisphere case at four fifty five f thirty five seventy five and in that case the court dissolved regarding it because there wasn't a finding of the property rights of the judgment debtor and there was no evidence presented and we think that's the the d issue here because the federal court did not properly have that in front of it or you're depending on the filing in court in april for terminating the contract we are not so we depending upon that but we think that issue is one reason why we had the rights to terminate but we  in our view we had the right to terminate these agreements with or without the state court order but in the abundance of caution we filed the state court action to rescind this other than because of your petition  court was not solely restricted to perspective for a lease because the petitions are construed liberally in texas and then are summary judgment motion on the declaratory judgment claim specifically asked for a terminations date of april twenty fourth tain thus giving notice to mr mir and all of the parties to which they responded and follow the summary judgment response and then the trial court issued an order that has come in or that did come in and was deposited up to november of two thousand and fourteen is about three hundred twelve thousand dollars and then subsequent to that to the present we've got another  fifty five hundred fifty thousand or so that's in the registry so it's a significant self going back to the question in the supplemental briefing if you terminated what's your best authority to say that you get to keep the assets even and stop paying the commissions he said some of these property real property cases in your brief weavings the most on point case that supports your view well  i don't have one that's on all fours factually but there were several cases that said under texas law that we were excused from performing what's the breach occurred i'm not sure there's a best one out of the five or so that i cited in the supplemental br but i do want to draw the court's attention to an additional case that i found preparing for the day called jack versus state at six ninety four south where second three ninety one that's an opinion from the senate tonio court of appeals hundred five which addressed whether or not applauding was excused for making payments into the future under what was called in that case a services contract and the court held that due to the parties material breach the other party was in fact excuse for making those future payments and if that is true and that principle applies here that mr meir would have never acquired the property interest in those payments at all and given that instance the writ of garnishment would have never attached to any property interest to mr mir and in that regard i also want to bring the court's attention to one more case from the six sixth circuit nine hundred sixty five walker versus paramount at three five three f second four four five and that was the case with the six sixth circuit addressed for the future contract payments that were not which it seems like you knew about long before you actually tried to determine it so what was the delay in the well problem for you well i don't think it presents a problem because we stopped performing in april of two thousand and fourteen by stopping the payments and we put mr meir on notice that we consider his conduct to be a breach of the agreement we want of the extra assurance to the state court proceeding that we would have an order authorizing determination by state court order and so we were acting out of an abundance of caution but that does not deprive us of the right to terminate the agreement with an affected date that preserves our interests and our rights under the agreements and our rights to withhold the payments because we were excused from having to give them wasn't illegal activity and seven zero seven and before oh why did you wait we didn't know about it and for many years mr meir was telling us that he was innocent and he was being frank now we put him on notice about the allegations you just if we knew about the allegations but he was telling us for a long time that they were not true and that he was being set up and it wasn't until we got the actual judgment of the conviction before we realized that was in march of twenty fourteen when the actual judgment was signed and then we realized well maybe he's not to be  i couldn't give you the exact date twenty seven twenty and i can't i can't remember the exact date on it was a it was a long time before the judgment just i will address his points but i want you to understand the bigger picture of this case because this appeal marks yet another brazen attempt by harper america to to keep mears money and in doing so to deprive the american taxpayer payer of a right to recovery i would ask you not to be fooled harbor america is not a victim in this case it is simply a wolf in sheep's clothing not only was harbor america  mir's indictment but it was intimately familiar with his operations two of its executives that one with mayor during the alleged criminal activity are now employed at harper america and they were during this entire time yes your honor and it's actually it begins at nine hundred eighteen it's it's part of mr mears affidavit we also subpoenaed that information from parker america and it was also information uncovered by the federal agents when they were investigating mr miller those executives cooperated in the investigation and provided a lot of the information that was used to indict and convict him what you should also be aware is that meir divulged a sixty five million dollar tax liability to harbor america during the due diligence phase of the a p a in two thousand and eight so indeed the beginnings of indictment had already started to occur as you're aware the victim in this case is the internal revenue service the american taxpayer mr mir is required to pay ten million dollars his order to pay two million dollars as part of his restitution but one hundred thirty two million dollars it was a very large conspiracy despite the knowledge of mir's activities harbor willingly used him to profit to profit it's companies and continue to profit to this day from the client service agreements that they now have and i will get to that in a minute i want to talk about this client service agreements harber america did not end the relationship with me or when he was indicted in january of two thousand and eleven they didn't in the relationship when he would pled guilty in november of two thousand and eleven and indeed they didn't in that when he was convicted and sentenced in february of two thousand and fourteen they did not in that relationship into the government notified them of a government plane and its desire to been to begin collection efforts and we notified them on march twentieth of two thousand and fourteen what's the legal using him to profit because he was a liaison for them and all of this is in the record by the way it's still with his affidavit in one thousand eight hundred following documents but they were using him to profit they needed his face he had the relationships with those clients he had got the client services agreements and he was the person that they went to when there was a problem or when those people had a problem with their client services agreements so at the very least on clean hands at this juncture iraqi government can see that it terminated but the terminations date was not april two thousand and fourteen determination date was when it sent its notice of terminations pursuant to that iraq which was november twenty fourth two thousand and fourteen but those contract payments are minimal we're talking there typically somewhere between one thousand to two thousand dollars a month if not the valuable contract because it wasn't the asset that was purchased and the government would have conceded that back then the problem is there's a disagreement over which date was involved it's not the april twenty second day in and if you look at their original petition in the even in the state court action they didn't ask for it to be terminated as of this date it doesn't read that way in the relief section they just asked that it be terminated and it had to contemplate that this would not happen until somewhere down the road and indeed it didn't happen until november tw we do not contend that the a p a was subject to terminations does not contain determination provision in it the only way to terminate that a p i is a breach of warranty it's not subject to the same provision as the ira and in texas under state law a breach of warranty is relief is damages and in their first amended petition and again in the second amendment petition in the state court action that is exactly what they have pled they are now seeking damages under those breach of warranty claims but you don't get your cake and the ability to eat it too you have one or the other they have made the comment actively due to anything they could they could potentially pursue the breach of warranty claims in the federal court which has jurisdiction over those contracts precisely because the government owns the payments from those contract federal law shows state laws controlling so just to determine the property interests and contrary to what is in their briefs state law does not equate to the state court's ruling those are two separate issues state law is did mr mayor have an interest in the a p a the answer is yes because it's not a performance it's based contract it's not a services agreement similar to the cases they're citing it's not a rental similar to the cases they're citing they bought an asset and the contract itself states that they purchased the client services agreement and as payment for that purchase mr merrill received fifty percent of the commission indefinitely that's the language in the a p a whether or not it was terminated yes your honor couldn't be terminated opposing counsel was correct in the answering yes your honor that is the government's position  and proceeding through this harbor america's attempted to thwart a federal court order the federal court had a keen interest in preserving its in forstmann of and right to recover restitution for the victim in this case the american taxpayer  but they didn't come to the federal court until after they've told the court now that they would the federal court would likely have jurisdiction over some of this the problem with that is when we remove the stake or action  in may of two thousand and fourteen they immediately file a motion to remain and signed up to the federal court had no subject matters jurisdiction the united states filed simultaneously with its removal or  action motion to transfer venue to the western district of texas the statute only allows us to go up in the district in which we are in and they have filed their state court action in harris county which is in the southern district of texas and so we had to remove it in the southern district of texas and then we sought to transfer it over to the criminal court in the western district of texas and instead they filed a motion to remain in motion to remain and is not reviewable and the government could not go into the state court action and harbor america even told the federal court in august two thousand and eleven that the government would have a full opportunity to litigate the issues before the state court it written in their document a representation that they made a month later and they turned around with no notice to us other than the notice of hearing and moved to strike us from the action mr mir was incarcerated at the time all of his money was subject to restraining order of the federal court so he had a little representation he had attorneys there but he had little representation meaning that they were unfunded attorneys so if there are more you're saying that there should be a  for this question of federal courts never decided whether they can terminate the a p a should we send it back to the district court for him to make that determination should we make in the first instance what i think  power to make that decision or do it doesn't need to go back to a district judge i think it should go back to the district judge for the decision that's and it's what we've alleged all along that this issue is properly before the federal court and not the state  subject to terminations yes your honor because it's a property interest and contrary to what he just said that we have we never objected we never objected because in their amended answer they conceded made a judicial commission that it was holding commission payments belonging to mir and that is a quote from that answer how do i know that what they were saying well we don't have anything belonging to me or we would have immediately objected and done discovery and proceeded on but that's not what happened they made a representation and then later they reneged on that representation after the hearing and they didn't come to the dispute they didn't come to the hearing on mir's objections which is the hearing prior to entry of the final word of course they chose not to participate in that and they later objected to the government's motion for entry of the final order of garnishment so we didn't have one we believe they were missed payments based on harbor america's representations  relied on what they said to the federal district court and two they never contested it afterwards in the in the responses that the government gave to meir's objections we expressly stated the money belonged to me or those who were the basis of those objections harbor mayor was america was served with all of those and not once did they ever come forward and say you misunderstood our answer it doesn't belong to me or and so we proceeded through the entire garnishment process until the very end to the motion for entry the final order before they ever came forward to say you misunderstood what we said that that answer the representation in their amended answer was a judicial mission and they are bound by it they cannot come back today and say you misunderstood it was very clear one other thing to bring to the court's attention it came out in the supplemental exhibit that was filed with the court that state court action is questionable at best today because indeed that action was dismissed for want of prosecution and this is also in the record  thirty seventy two what happened in that action is indeed they severed the deck with tory action from their remaining causes of action but the problem was that in their deck which reaction they sought before the court have been decided they were not the tiny space issue remained and so what happened is they then began to not try to non student the the attorney's fees issue without prejudice in order to proceed to final judgment in the federal court because this action was pending before the fifth circuit and join the attorneys from continuing on in that endeavor until this court could decide what the status that was  attempt to maintain the status quo because this case is a procedural nightmare already it didn't need another twist and turn in the middle of it and so what we do is we enjoined and we stopped and in january of two thousand and sixteen this year that else it was not terminated that there was no provision terminating in it was a misrepresentation misrepresentation to the state court and because the government owned the rights to those commissions and was not a participant in that state court action of i have to take issue with the suggestion that harbor america was in some ways a conspiracy with mr mir there is absolutely no evidence at all that we were intimately involved with mr moose conduct or even knew about it there's never harbor america's never been the subject of an investigation has to be here was indicted not us and  attempt to paint harbor america as a wrongdoer here because of mr here is simply unsupported in the record and has nothing to do with our contract rights under texas law second in response to judge cost as question about delay if you will on harbor america's part of the timing of its letter council mentioned doctrines such as unclean hands or unjust enrichment where has that been pleaded or presented to the district court that's never been raised not once not by the government and not by mr meir no one has ever objected to our terminations letter or the dates that we contended were the effective dates of terminations not once has anyone raise that at all third counsel contends that the contract specifically the a p a cannot be terminated that is simply not true under texas law first of all the u c c on which counsel is relying for the proposition that our only relief is for damages and not for terminations simply does not apply the a p a does not involve the sale of goods and we've been we've cited this court too with the wording or supplemental brief speaking to that issue and there is in fact another case i'll give to the court called portland versus bevel at six one nine southwest second two for one in one thousand nine hundred one decision from the corpus christi court of appeals which in an analogous way holds that the sale of things like documents money or investment securities do not constitute the sale of goods so the u c doesn't apply but where do you get it right where you find there's a terminations provision under texas law you have a right to terminate a contract that is indefinite and duration as the a p a was that is not an agreement that exists in he's got ongoing obligations to conduct himself awfully under the contract under several provisions which he failed to do he has ongoing indemnity obligations he has other obligations under that agreement and he may contend and if he does contend that our terminations of the a constitutes a breach of that agreement and he can raise that issue and i think he did raise it in the state court proceeding that still live but he'll lose on that point under texas law because we are excused from future performance once he materially breaches in response to the court's question regarding the proper disposition re man vs deciding this issue in the first instance i don't think the court can decide the property rights of mr mir in the first instance because i don't think it has the evidence and only does the pleadings in front of it to allow it to court lastly we'd never conceded that the future payments were mir's property the government has consistently taken our pleadings out of context  repeatedly asserted in our answer and in subsequent documents including in our motions to dissolve the or all objections to the writ and to our motions to terminate it except for we consistently told the government and near that that our position was that he was in breach of that money to belong to us i did not belong to him anymore that he had no property interest in the government is well aware of that fact and there was well aware of it they were aware of our stake or petition in which we alleged it and when did you tell him that we told him that in every pleading that we filed the answer aber excuse me the date i don't have the date of the answer the front of me but it would have been may have twenty fourteen i believe he got indicted and twenty eleven that's true but like i said the judgment was not entered the conviction was not made until twenty fourteen in march and he had been telling us all that time that he was innocent and that he was being so we asserted that position as soon as the conviction came along and we were guilty and later in two thousand and we're not and we're not disputing his property interest in the money that he received prior to april of two thousand and fourteen that money was paid to give it's already been