Mark J. Mueller v. James H. Davis, Individually, James H. Davis D/B/A J.D. Minerals, and JDMI, LLC

ACCEPTED

06-14-00100-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

GASLIGHT SQ:.JAPE 11/11/2015 3:55:23 PM

ANDERSON

ALBM EHR

ARRE

AN

1001 THIRD STREET, SU/TC: i

CORPUS C--!RfSTI, TEXAS 78404

TELEPHONE [361) 884-4E81

TELECOPJEO (361) 684-9618

DEBBIE AUTREY

CLERK

LAW FIRM ARAI L.P. VifWV1/,AL2ML,AW. COM

RECEIVED

*Nt;W. IN

MEX~CO OFF\Qf;:

ANDREW J, LEHRMAN* 6th COURT OF APPEALS

8 CALLE v-sTA

EcMlD CEF111H::U [>1:L 1RJAL L«w TEXARKANA, TEXAS

SANTA FE, .\l~W h.10x,c:: 87507

:'EL;;;FHONE [505) 424-4881

Te::XAS 80AGc GF LEGAk 8PEC!>l1ZAT100

*/\DM'TTED 1:-J rtcXAS & 'NEW MEX/CC 11/12/2015 8:52:00 AM

DOUGLAS 0. MCL<LLEN

DEBBIE AUTREY

CtJOflt::::i lv!ED1An;i1

JEFFREY J. LEHRMAN**

,vww. Lehrrnan-Media:::ion. co~T1 ·0 A.n,,;;f!'fED lH TFXAS, NEW Yl:':PK & NEW JtmsEY

ROBERT ANDERSON

Clerk

DENNY BARRE OF COUNSE\,:

DOUGLAS E. BIRCHER

KEVIN M. MARAIST

BOARD CE,;,nnco 8USNESS BAt!K!l:,FfC'( LAW

MARVIN J, WANNER

TEX;>E BOARD CF ll:GAL SPE:)AUZATiON

es-.1.c

80ARcl C::N4T1Flfl'.l PLAM~l'JJ & :,?DGATS

TEXAS 8GAR'.J OF l.EGAc_ 5PfJ>;\U7A71CI\

T!MOThY P. DOWLING

f:lOAR'.J '.:'.ERTlf'll'.D 8~$t,F5S BANi<RJ;:;7 LAW

TEXAS BC.AHO CF LEGAL S=EC:lt.L:ZAi10/',

November 11, 2015

Sixth Court of Appeals

I 00 N. State Line Ave., Ste. 20

Texarkana, Texas 75501

Re: No. 06-14-00100-CV; Atueller v. Davis, et al.; Letter Brief of

Appellees

Dear Honorable Justices:

Appe!lees, James H. Davis, Individually and James H. Davis d/b/a J.D.

Minerals and JDMI, LLC ("Appellees"), subject to leave of Court, file this Letter

Brief and Response to "Appellant's Reply to Sur-Reply Brief of Appellee and

Response to Motion for Sanctions" filed on November 2, 2015 ("Appellant's Sur-

Reply Brief').

1.) Agreement Regarding Appellant's Reply Brief

In accordance with the Rules of Appellate Procedure, Appellant's counsel

conferred with counsel for Appellees regarding the filing of additional briefs to assist

the Court. Counsel for Appel!ees agreed to not to oppose Appellant's reply brief with

the caveat that Appellees would not waive any objections in accordance with Texas

Rules of Appellant Procedure. See Exhibit "A", Letter and email regarding

Appellant's reply Brief, and expressly reserving the right to object to filings 111

derogation of the Texas Rules of Appellate Procedure.

Page I of 7

2.) Appellant Improperly Raises a New Issue in His Second Reply Brief Not

Raised in His Opening Brief

Texas Rule of Appellate Procedure 3 8.3 does not permit Appellant to include

in a reply brief a new issue in response to a matter pointed out in Appellees' brief but

not raised by Appellant's original brief. Tex. R. App. P. 38.3; U.S. Lawns, Inc. v.

Castillo, 347 S.W.3d 844, 849 (Tex. App. - Corpus Christi 2011, pet. denied).

Appellant's Sur-Reply Brief raises, for the first time, a new argument by asserting that

Appellees did not preserve objections to summary judgment evidence offered by

Appellant. (Appellant's Sur-Reply Brief, p. 3).

3.) The Issue of the Trial Court's Evidentiary Ruling (or Lack Thereof) Is Not

Properly Before the Court

Appellant argues now for the first time that the trial court did not rule on

objections made by Appellees to the parol evidence offered by Appellant in the trial

court. As stated above, Appeiiant is not permitted to raise a new issue for the first

time in a reply brief. Tex. R. App. P. 38.3. Appellees object to Appellant's Sur-

Reply Brief to the extent it raises new issues in violation of Tex. R. App. P. 38.3.

A.) No Objection or Trial Court Ruling is Required to Challenge Parol

Evidence

Without waiving its objection to Appellant's new issue, but relying expressly

thereon, Appellant confuses the so-called "parol evidence rule" with an ordinary rule

of evidence. The parol evidence rule is not a rule of evidence as it's name might

indicates, but rather is a rule of substantive law. Tuttle v. Simpson, 735 S.W.2d 539,

541-42 (Tex. App.-Texarkana 1987, no writ); Arkansas Oak Flooring Company v.

Mixon, 369 S.W.2d 804 (Tex.Civ.App.-Texarkana 1963, no writ); Pac. Fin. Corp. v.

Crouch, 243 S.W.2d 432, 436 (Tex. Civ. App.-Texarkana 1951, no writ).

The parol evidence rule is a substantive rule of law because evidence of oral

or written expressions, prior to or contemporary with a written instrument, are

excluded from evidence not because of any rule of evidence, but because such

evidence merely constitutes proof of facts that are immaterial and inoperative. Piper,

Stiles & Ladd v. Fid. & Deposit Co. of Md., 435 S.W.2d 934, 940 (Tex. Civ.

Page 2 of 7

App.-Houston [1st Dist.] 1968, writ ref'd n.r.e.).

A litigant does not waive his rights under the parol evidence rule merely by

failing to object to or obtain a ruling on the introduction of parol evidence at trial

(though Appellees did object. CR 408, CR 1035-1050). State Nat'! Bank v.

Academia, Inc., 802 S.W.2d 282,291 (Tex. App.-Corpus Christi 1990, writ denied).

See Tuttle, 735 S.W.2d at 541-42; Arkansas Oak Flooring Company, 369 S.W.2d

804; Pac. Fin. Corp. 243 S.W.2d at 436 (Tex. Civ. App.-Texarkana 1951, no writ).

Paro! evidence, objected to or not, is without probative force and will not support any

finding made by the finder of fact. Hartford Ins. Co. v. Commerce & Indus. Ins. Co.,

864 S.W.2d 648, 650 (Tex. App. - Houston [l st Dist.] 1993, writ denied).

B.) Appellant, not Appellees, waived Error Associated with Trial

Court's Treatment of Appellant's Paro! Evidence

Contrary to Appellant's untimely assertion, it is Appellant who has waived any

issue regarding the trial court's consideration ( or disregard of) parol evidence

attached to Appeilant's summary judgment responses. In RK Greenery, Inc, RI(

Greenery appealed summary judgments on the ground that the trial court

"improperly disregarded parol evidence", just as Appellant argues. RK Greenery

Inc. v. Texoma Plant & Tree Farms, LLC, 06-08-00126-CV, 2009 WL 1514927, at

* l (Tex. App.-Texarkana June 2, 2009, no pet.) (emphasis supplied). See

Appellant's Sur-Reply Brief, p. 3. The trial court granted summary judgment against

RK Greenery summary judgment without ruling on the admissibility of the parol

evidence proffered by RK Greenery. RK Greenery, 2009 WL 1514927 at *2 1• This

Court held that RK Greenery failed to preserve error, stating," ... as a prerequisite

to presenting a complaint for appellate review, the record must show that ... the trial

court: (A) ruled on the request, objection, or motion, either expressly or implicitly;

or (B) refused to rule ... and the complaining party, Appellant, objected to the

refusal." Tex.R.App. P. 33. l(a)(2)(B)". In this case, the record does not demonstrate

that the trial court ruled on the parol evidence issue expressly or implicitly, that it

refused to rule, or that Appellant objected to the trial court's failure or refusal to rule.

See RK Greenery Inc., 2009 WL 1514927, at *2. Accordingly, it is Appellant who

'The Summary Judgment order appealed by Appellant states "After considering the

Motion, Plaintiffs Responses and timely filed summa,y judgment proof .. " (CR 2064)

(emphasis supplied).

Page 3 of 7

has failed to preserve this issue for appellate review.

C.) Paro! Evidence is Immaterial and Inoperative, Even if Not Objected

to or Ruled Upon

Even if Appellant had not failed to preserve error, the evidence still is not

probative, is without weight, and constitutes "no evidence." Evidence that violates

the parol evidence rule "has no legal effect and merely constitutes proofoffacts that

are immaterial and inoperative." Edascio, L.L. C. v. NextiraOne L.L. C., 264 S.W.3d

786, 796 (Tex. App. - Houston [1st Dist.] 2008, pet. denied) (emphasis supplied);

Piper, Stiles & Ladd, 435 S.W.2d at 940.

Accordingly, Appellant's belated attempt bolster his parol evidence by

observing that the trial court made no ruling is ofno moment, because parol is "no

evidence" absent an exception to the parol evidence rule2, even in the absence of an

objection or ruling in the trial court. Edascio, L.L. C., 264 S.W.3d at 796, Piper, Stiles

& Ladd, 435 S.W.2d at 940. Given its ruling, the trial court either properly

disregarded the extrinsic parol evidence upon its finding that the deeds are

unambiguous, or it found an ambiguity, it upheld the deeds in spite of the parol

evidence and ruled in favor of the deeds' enforceability 3. In any event, Appellant has

waived the argument. Additionally, because the trial court did not explicitly state the

basis of its granting of Appellees' summary judgment, this Court can affirm the trial

comi's summary judgment if any of the theories advanced by Appellees are

meritorious. RK Greenery Inc. , 2009 WL 1514927, at *2 citing Hill v. Bartlette, 181

S.W.3d 541, 544 (Tex.App.-Texarkana 2005, no pet.) (citing StarTelegram, Inc. v.

Doe, 915 S.W.2d 471,473 (Tex.1995)).

4.) Additional Authority -The 1991 County-Wide Grants in the Deeds are

Not Void Under the Statute of Frauds

In a new case out of the United State District Comi, Western District of Texas,

the court rejected the same argument made by Appellant regarding blanket property

descriptions. Huggins v. Royalty Clearinghouse, Ltd.,_ F. Supp. 3d _, Case No.

2

Appellant can show no exception because the conveyances are unambiguous and

Appellant has no standing to assert fraud claims. See Appellees' Brief at pages 43-49.

3

See fn 1 at p. 3.

Page 4 of 7

A-14-CA-1058-SS, 2015 WL 4637630, *5 (W.D. Tex. July 31, 2015) citing Tex.

Consol. Oils v. Bartels, 270 S.W.2d 708, 711 (Tex.Civ.App.-Eastland 1954, writ

refd) (citing Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222 (1949); Sanderson v.

Sanderson, 130 Tex. 264, 109 S. W2d 744 (Tex.Com.App.1937); Smith v. Westall, 76

Tex. 509, 13 S.W. 540 (1890)). The Court rejected Appellant Huggins' contention

that the blanket description is void under the statute of frauds, stating, "According to

more than a century of Texas law, Huggins is incorrect." Huggins, Case No. A-14-

CA-1058-SS, 2015 WL 4637630, *5.

The Huggins Comi, quoting from Texas Consolidated Oils v. Bartels, held:

"[i}t has long been the rule that a deed purporting to convey all

lands owned by the grantor in a State or in a named county is

sufficient description to effect a conveyance. "

The l{uggins court ruled that a deed conveying all of grantor's interest in a

named survey within a named county "is sufficient to reasonably identify the land"

arid satisfies tl1e state of frauds. }Juggirzs, 2015 'v1/I"' 463 7630 at * 5; citirzg Bartels,

270 S.W.2d at 711 (emphasis supplied).

5.) Sanctions -Appellees' Belated Recognition of the Validity of Blanket

Grants in His Most Recent "Reply to Sur-Reply" Brief is Too Little,

Too Late

Appellant's Sur-Reply Brief,/or the first time, acknowledges that county-wide

or blanket grants are "legitimate. See Appellant's Sur-Reply Brief, p. 14. This is in

direct conflict with Appellant's prior briefs, which persisted in the incorrect

argument, in the face of overwhelming precedent to the contrary, that a conveyance

must contain a metes and bounds description or reference to a prior document

containing same which is filed in the public record. (See Appellant's opening brief

at pp 8-13 and Appellant's Reply Brief at p. 3). Appellees respectfully submit that

after the filing of two appellate briefs and in response to a motion for sanctions for

frivolous appeal on this issue, Appellant's late reversal on this inarguable point oflaw

is too little, too late. Much time and resources have already been committed to

responding to Appellant's baseless arguments and turning a blind eye to the

overwhelming authority on this point. Accordingly, sanctions are appropriate

pursuant to Tex. R. App. P. 45.

Page 5 of 7

In light of the foregoing, Appellee prays that the trial comi's judgment be

affirmed and that the Court grant sanctions for frivolous appeal pursuant to Tex. R.

App. P. 45.

Respectfully submitted,

ANDERSON, LEHRMAN, BARRE &

MARAIST, L.L.P.

Gaslight Square

1001 Third Street, Suite 1

Corpus Christi, Texas 78404

Telephone: (361) 884-4981

Telecopier: (361) 883-4079

Email: dmclallen@albmlaw.com

By: Isl Douglas D. McLallen

Douglas D. iv1cLallen

State Bar No. 00788025

Marshall C. Wood

State Bar No. 00797690

NORTON & Woon, LLP

315 Main Street

Post Office Box 1808

Texarkana, Texas 75504

Telephone: (903) 823-1321

Facsimile: (903) 823-1325

Email: marshall@n01ionandwood.com

Attorneys for Appellees

Page 6 of 7

CERTIFICATE OF SERVICE

I certify that on November 11, 2015, a true and correct copy of Appellees'

Letter Brief was served on counsel of record as indicated below.

Mr. Bob Whitehurst Via Electronic Delivery: whitelturstlawfirn1(iiJyahoo.com

Whitehurst & Whitehurst

Attorneys at Law

5380 Old Bullard Road, Suite 600, #363

Tyler, Texas 75703

Isl Douglas D. McLallen

Douglas D. McLallen

Page 7 of 7

!"Page 1 of 1 2015-10-29 21 :1917 (GMT) Frorr:

!::-::•

II 8

WHITEHURST & WHITEHURST

ATTORNEYS AT LAW

5380 OLD Ill!l,LARD ROAD, SUITE 61/U, #363 (903) 5.93-5588

TYLER, TKXAS 7:i7113 (214) 853-9382 (FAX)

.Mr. Douglas McLallen October 29, 2015

Attorney at Law

1001 Third St., Suite I

Corpus Christi, Texas 78404

{l-]61-884-9618 fax)

Re: Mueller v, Jd Minerals et al

Dear Doug:

To insure that I umlerstand your position, you are not opposed to me a filing reply lo your

snr-reply motion, in that you will probably file a letter reply to that reply by appc!lant.

l will also probably iile a reply to that letter.

As stated previously, I would think that the appeals court will allow both parties to present

"H issnes to the court.

ff you will let me know if you are oppo,ed or unopposed to snid motion,

If there are any problems or questions, do not hesitate to contact my oflfoe.

Sincerdy,

{)-Jr/; 1:J:fft11c/wrdt

nob Whitehurst

t' ~ ;

l:-,: )<;,cl' ""' t le a:t\t;c(p...f. 'c.. '(: G,'(o.'-!-- A- ·

EXHIBIT "A"

Douglas Mclallen

From: Douglas McLallen

Sent: Thursday, October 29, 2015 4:53 PM

To: 'Bob Whitehurst'; 13618849618@efaxsend.com

Cc: Marshall Wood; Robert Anderson; Douglas McLallen; Laura Morris; Chelo Flores

Subject: RE: Mueller v. Jd Minerals

Attachments: dougreplybriefletter2.pdf

Importance: High

Bob,

I agree to the contents of your attached letter the extent all subseqUN'lt filings are compltmt with the Tex. R. App P.

I do not believe any new matters I arguments may be raised by either of us, but we can flesh out existing t heories I

arguments to assist the Court.

i do not plan on addir12 anything outside of what was in our opening brief's Points.

0Sc•n,uentiy raised matter was waived if it was not raised in

! am not agreeing to 'Naive the argument that any s11l___

the trial court -which is a standard I shall adhere to .

Best regards,

.Douglas I). M.cLallen., Sr

ANDE:R,,0/,. LEHRMAN, BARRE & MARAIS"!, LLP

Gaslight Square

100 I Third Street, Suite l

Corpus Christi, Texas 78404

361 -884-4981

361-884-9618 (Fax)

�;;/1�';;{::�'![;;�fre� The information contained in or attached to thh, transrnission is attorney prMleged and cont'idential inforrnation

; only for the use of the person narned above. Any copying. distribution, or other dissemination of this rnateriaf is "';'.;t;:i��:�9'.;':

o /OU

have received this transaction in error, please not!(v the sender by phone ancl return the original transmission to us via U.S. A1aff. Your cooperation is

appreciated

��������;!/;� Al rnenos que se indfque de otra rnanera o que se derive de fa nafurafeza de esta transmfsi6n. la informacf6n contenida en

Oste correo es confidenciaf para uso exciusivo def destinatario sefla!ado. Si et iector de este mensaje no es ef destinatario indicacio, ni

ernpleado o agente responsable de entregar este correo a SU destfnatarfo, se ie hace saber quo la distribucic>n o copia de esta comunicaci6n esta

estrictamente prahibida. Si Usted recfbf6 esta cornunicaci6n par error, por favor notiffque fnmedfatamente a quien lo env/6 y destruya dicho correo.

Gracias,

Disclosure Pursuant to Treasury Regulations in Circular 230: To ensure compliance with requirernents fmposedby the fnlernaf Revenue Service,

vve inform you that any tax advice contained in this cornmunlcation (lnciuding any attachments) was not intended or written to be used. and cannot be

used, for the purpose of (ij avoiding tax-related penalties under the Infernal R,wenu, Code or (ii) promoting, marketing or recomrnending to another

par�v any tax-related matter(~1 addressed herein

No email from this sender sho!f constitute a binding "signature" under the Uniform Electronic Transfer Act unless expressly stated otherv.tise in the body

hereof.

From: Bob Whitehurst [mailto:whitehurstlawfirm@yahoo.com]

Sent: Thursday, October 29, 2015 4:19 PM

To: 136188496l8@efaxsend.com; Douglas McLallen

Subject: Mueller v. Jd Minerals

1