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
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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.
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).
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.
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.
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
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 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
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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