Tommy Parker, Jr. v. Mary Martha Parrack

Opinion

ACCEPTED 15-25-00075-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 10/17/2025 10:43 AM

No. 15-25-00075-CV CHRISTOPHER A. PRINE CLERK In the Court of Appeals FILED IN 15th COURT OF APPEALS For the Fifteenth Judicial District Sitting at AUSTIN, TEXAS Austin, Texas 10/17/2025 10:43:04 AM CHRISTOPHER A. PRINE Clerk

TOMMY PARKER, JR. Appellant

v. MARY MARTHA PARRACK Appellee

Appeal from the 12th District Court of Madison County, Texas Trial Court Cause No. 18-16110

APPELLANT’S BRIEF ON THE MERITS ORAL ARGUMENT REQUESTED

Greg White Jay B. Goss gwhite@grayreed.com Jgoss@bruhez.com GRAY REED & MCGRAW, LLP Joseph Briers 900 Washington Ave., Suite 800 jbriers@bruchez.com Waco, Texas 76701 (254)342-3000 BRUCHEZ & GOSS, PC (254) 342-3102 (fax) 2740 Copperfield Dr. Suite 200 William F. Carter Bryan, Texas 77802 wfcarterlaw@gmail.com (979) 268-4343 201 North Main St. (979) 268-5323 (fax) Bryan, Texas 77803 (979) 779-0712 (979) 779-9243 (fax) Attorneys for Appellant Tommy Parker, Jr. IDENTITY OF PARTIES AND COUNSEL

Plaintiff/Appellees: TOMMY PARKER, JR.

Trial Counsel for Jay B. Goss Plaintiff/Appellees: Jgoss@bruhez.com Joseph Briers jbriers@bruchez.com BRUCHEZ & GOSS, PC 3740 Copperfield Dr., Ste. 200 Bryan, TX 77802 (979) 268-4343 (979) 268-5323 (fax)

William F. Carter wfcarterlaw@gmail.com 201 North Main St. Bryan, Texas 77803 (979) 779-0712 (979) 779-9243 (fax)

Appellate Counsel for Greg White Plaintiff/Appellant gwhite@grayreed.com GRAY REED & MCGRAW, LLP 900 Washington Ave., Suite 800 Waco, Texas 76701 (254)342-3000 (254) 342-3102 (fax)

Defendant/Appellant: MARY MARTHA PARRACK

Counsel for Defendant / Laura Upchurch Appellant: upchurch@upchurchyates.com Upchurch & Yates, LLP 315 S. Park St. Brenham, TX 77833 (979) 316-1300 (979) 316-1030 (fax)

2 Table of Contents Page Identity of Parties and Counsel ..................................................................... 2

Index of Authorities ...................................................................................... 5

Statement of the Case ................................................................................... 7

Statement Regarding Oral Argument ............................................................ 8

Record References ........................................................................................ 9

Issues Presented .......................................................................................... 10

Introduction ................................................................................................. 11

Statement of Facts ....................................................................................... 12

Family History ........................................................................................ 12

The Executive Rights Deed .................................................................... 14

The Remainder of the Trust Property ..................................................... 17

The Use of the Property ......................................................................... 19

Procedural Background .......................................................................... 20

Summary of the Argument .......................................................................... 24

Argument and Authorities .......................................................................... 25

a) Standard of Review .................................................................... 25

b) Issue No. 1: The evidence is conclusive on the issue of breach of fiduciary duty. A fiduciary cannot self-deal in a way that totally benefits the fiduciary and totally deprives the beneficiary of any benefit. A fiduciary bears a heavy burden to prove that a self-dealing transaction is fair..........................................27

c) Issue No. 2: The evidence does not support a conclusion of adverse possession because the possession is not hostile or

3 adverse. There is evidence of use as to a 780-acre tract, but no evidence that there was an ouster of the specific tract against which adverse possession is claimed. ...................................... 33

Conclusion .................................................................................................. 40

Certificate of Compliance ........................................................................... 42

Certificate of Service................................................................................... 43

Appendix .................................................................................................... 44

4 INDEX OF AUTHORITIES

Cases

Archer v. Griffith, 390 S.W.2d 735 (Tex. 1964) ........................................... 29

Byrom v. Pendley, 717 S.W.2d 602, 605 (Tex. 1986) ...................................... 37

Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) .............................................27

City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) ...................... 25, 26

Collins v. Smith, 53 S.W.3d 832, 840 (Tex. App.--Houston [1st Dist.] 2001, no pet.) ............................................................................... 29

Dyer v. Cotton, 333 S.W.3d 703, 712 (Tex. App.—Houston [1st Dist.] 2010, no pet.) .......................................................................... 36, 37

Estate of Townes v. Townes, 867 S.W.2d 414, 417 (Tex. App.-- Houston [14th Dist.] 1993, writ denied) ................................................. 30

Ex parte K.F., No. 10-19-00437-CV, (Tex. App.—Waco May 25, 2022, no pet.)......................................................................................... 26

Fitz-Gerald v. Hull, 237 S.W.2d 256, 261 (Tex. 1951) .................................. 29

Freeman v. Pierce, 250 S.W. 778, 781 (Tex. Civ. App. 1922, no writ)............. 37

Home Owners’ Loan Corp. v. Cilley, 125 S.W.2d 313, 316 (Tex. Civ. App.--Amarillo 1939, writ ref'd) .............................................................. 35

In re King’s Estate, 244 S.W.2d 660, 661 (1951) ............................................27

International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex. 1963)............................................................................................. 29

Johnson v. Peckham, 120 S.W.2d 786, 788 (Tex. 1938) ................................. 30

Keels v. Keels, 427 S.W.2d 913, 916 (Tex. Civ. App.--Tyler 1968, no writ) ........................................................................................................ 35

5 Kinzbach Tool Co., Inc. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509 (1942) ................................................................................. 29

Lee v. Hasson, 286 S.W.3d 1, 21 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) .................................................................................. 30

McGuire v. Assembly by Us, LLC, No. 10-19-00310-CV, at *7-8 (Tex. App.—Waco Dec. 22, 2021, no pet.) ............................................ 26

Mead v. RLMC, Inc., 225 S.W.3d 710, 715 (Tex. App.—Fort Worth 2007, pet. denied) .................................................................................. 38

Sosa v. Balch Springs, 772 S.W.2d 71, 72 (Tex. 1989) ....................................27

Spiller v. Woodard, 809 S.W.2d 624, 627 (Tex. App.--Houston [1st Dist.] 1991, no writ) ................................................................................ 36

Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257 (Tex. 1974) ...................................................................................................... 29

Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989) .................... 26

Tex. Bank & Tr. Co. v. Moore, 595 S.W.2d 502, 508 (Tex. 1980) .................. 30

Thomas v. Sw. Settlement & Dev. Co., 123 S.W.2d 290, 297 (Tex. 1939) ....................................................................................................... 35

Toal v. Smith, 54 S.W.3d 431, 434-35 (Tex. App.—Waco 2001, pet. denied)....................................................................................................27

Todd v. Bruner, 365 S.W.2d 155, 159-61 (Tex. 1963) ..................................... 39

Udell v. Peak, 70 Tex. 547, 7 S.W. 786 (Tex. 1888)....................................... 35

Other Authorities

Hall, Standards of Review in Texas, 29 ST. MARY'S L.J. 351, 481-82 (1998) .................................................................................................... 26

6 STATEMENT OF THE CASE

Nature of the Case: This is a dispute involving family members over real estate. Parker sued Parrack for statutory fraud, common law fraud, negligent misrepresentation, and breach of fiduciary duty.

Trial Court: The case was tried to a jury in the 12th District Court of Madison County. The Hon. David Moorman presided.

Trial Court’s Action: The jury answered all liability questions on Parker’s claims in favor of Parrack. The Trial Court entered judgment on the jury verdict. The final judgment also included a declaratory judgment declaring Parrack Ranch, Ltd. to be the owner of a 780-acre tract in dispute, saying that the 2011 Special Warranty Deed was a valid conveyance of Parker’s executive rights and his interest in bonus paid on oil, gas and other minerals, and declaring that Parrack was entitled to retain any bonus payments received since the 2011 Special Warranty Deed. The Trial Court denied Parrack’s request for attorney’s fees.

7 STATEMENT REGARDING ORAL ARGUMENT

The Court should grant oral argument in this case. It involves distinct legal

issues that can be analyzed with a straightforward set of facts. However, both

issues are significant. The first issue concerns the requirement that an

undisputed fiduciary must justify a transaction in which the fiduciary benefits

and the beneficiary suffers. Here, a single transaction resulted in a $1,000,000

windfall to the fiduciary. It appears that such a transaction between family

members would only be justified in the rarest of circumstances. If the courts

are to continue scrutinizing self-dealing rigorously, the Court should find oral

argument helpful.

The second issue involves adverse possession against a co-tenant. The

question is whether general information from one co-tenant claiming

continuous exclusive use of the property is enough to establish an ouster of a

specific tract of land that is only part of the entire property. Here, there is

evidence that the Defendant was operating a ranch on 780 acres; however, the

adverse possession claim only applied to 339 acres. Evidence of adverse

possession must demonstrate an ouster of the 339 acres, not just general use of

the entire property. An oral argument would enable the court to evaluate the

adverse possession claim more effectively.

8 RECORD REFERENCES Clerk’s Record:

There is one volume of the Clerk’s Record, referenced as C.R. __.

Approximately 450 pages of the Clerk’s Records are Exhibits attached to

the parties’ designated Trial Exhibits (C.R. 698-1020, and C.R. 1054-1179).

Reporter’s Record:

There are six volumes of the Reporter’s Record. The Master Index (Vol.

1), the record of the jury trial (Vol. 2, 3, 4 & 5), and the Exhibit Index (Vol. 6).

They will be referenced as R.R. Vol. ___, ____. Unfortunately, the Exhibit

Volume (Vol. 6) is not paginated, although there is a Table of Contents.

Exhibits will be referred to by the number assigned at Trial: Exhibit __ (R.R.

Vol. 6).

9 ISSUES PRESENTED

Issue No. 1: The evidence is conclusive on the issue of breach of fiduciary duty.

A fiduciary cannot self-deal in a way that totally benefits the fiduciary and

totally deprives the beneficiary of any benefit. A fiduciary bears a heavy burden

to prove that a self-dealing transaction is fair.

Issue No. 2: The evidence does not support a conclusion of adverse possession

because the possession is not hostile or adverse. There is evidence of use as to

a 780-acre tract, but no evidence that there was an ouster of the specific tract

against which adverse possession is claimed.

10 No. 15-25-00075-CV

APPELLANT’S BRIEF ON THE MERITS

To the Honorable Court of Appeals:

This is the Brief on the Merits filed by the Appellant Tommy Parker, Jr.

INTRODUCTION

Parker and Parrack are brother and sister. Their grandparents owned

significant property and distributed it to the children and grandchildren in

essentially the same way. However, they favored Parker, treating him more like

one of their children than a grandchild. He received property directly, while

others, like Parrack, had to wait a generation to inherit.

This suit concerns Parrack’s unilateral actions to equalize her inheritance

with the gifts Parker received from her grandparents. The jury clearly agreed

that both should receive roughly equal amounts. However, that is not what the

law mandates. Parrack was not entitled to manipulate ownership to ensure she

11 received an inheritance equal to her brother’s. The Court should not endorse

such behavior.

STATEMENT OF FACTS

Family History

Tommy Parker grew up in Madisonville, Texas. 1 His grandparents were

Jim and Willie Baker. 2 His mother was Linda Westmoreland. Mary Martha

Parrack was his sister. 3

The Bakers originally owned the 780 acres involved in this dispute. They

had a ranch that was nearly 5,000 acres. 4 Over their lives, parts of the ranch

were sold or transferred, but the main part of the ranch was placed in a trust

for their daughter, Linda Westmoreland, in 1983. 5 The trust was called the

“Linda Westmoreland 1983 Gift Trust.” 6

1 R.R. Vol. 2, 28. 2 R.R. Vol. 2, 29. 3 R.R. Vol. 2, 29. 4 R.R. Vol. 2, 30. 5 While they were alive, Jim and Willie Baker granted Parker 270 acres west of Madisonville, known as the Garrett Place. R.R. Vol. 2, 33. They also gave him other property. See Plaintiff Exhibits 22, 23 and 24. See also Defendant Exhibits 4-19. R.R. Vol. 6. They had helped raise Parker and treated him like the “son they never had.” R.R. Vol. 3, 7. 6 Plaintiff Exhibit 1, R.R. Vol. 6.

12 The Bakers apparently established similar trust arrangements for their

other daughters. 7 When the Bakers started conveying property to their

daughters, they also conveyed property to Parker – treating him like a son.8

Over the years, Parker received percentage interests in land as gifts from the

Bakers (the percentages were for gift or income tax purposes). 9 The primary

beneficiary was Linda Westmoreland, the Bakers’ daughter and mother of

Parker and Parrack. Parker and Parrack (then called Mary Martha Parker) and

their descendants were secondary beneficiaries. Linda Westmoreland served

as the sole trustee of the trust. 10 The trust arrangement contemplates that

Parker and Parrack will each receive half of the trust assets upon

Westmoreland's death. 11

The Trust's assets included two land tracts: one measuring 447 acres and

the other 339 acres. The total land assets were about 780 acres, conveyed into

the trust over several years. 12

7 R.R. Vol. 3, 13. 8 R.R. Vol. 3, 18. 9 R.R. Vol. 3, 20-21. 10 R.R. Vol. 2, 35. 11 R.R. Vol. 3, 80-81, 82. 12 R.R. Vol. 3, 14. Counsel stipulated that the public record has all of the deeds that conveyed the 780 acres into the Trust. R.R. Vol. 3.,76

13 The property was ranch land. None of the family members lived on it. Jim

and Willie Baker managed the land for many years after establishing the trust.13

In the early 90s, Parker moved back to Madisonville and went to work for

Willie Baker on the ranch. While doing that work, he lived with his mother

(Westmoreland). 14 Jim Baker passed away in 1993, and Willie Baker died in

2001. 15

In 2002, Westmoreland, acting as Trustee, conveyed the surface of a 447-

acre tract to Parrack. The minerals were reserved to the Trust. 16 In 2007,

Parrack transferred that 447-acre tract to Parrack Brothers, Family Limited

Partnership. 17 After the conveyance of the surface on the 447 acres, Parker did

“a little work” for his mom, but not much. 18 Westmoreland died in 2011. 19

The Executive Rights Deed

Shortly after Westmoreland died, Parrack asked Parker to sign a “paper.”

Parrack told Parker that the purpose of the paper was “so that the oil company

13 R.R. Vol. 2, 38. 14 R.R. Vol. 2, 39. 15 R.R. Vol. 2, 39. 16 R.R. Vol. 2, 33, Plaintiff Exhibit 2, R.R. Vol. 6. 17 Plaintiff Exhibit 2, Vol. 6. 18 R.R. Vol. 2, 41. 19 Defendant Exhibit 30, R.R. Vol. 6.

14 will give me all the money. All the bonus money.” She said she needed the

money to “pay mama’s bills, expenses, and taxes.” Parrack explained her

reason for her request:

Q: Why—why did you want the executive rights and lease bonuses? A: Why did I want it? Q: Yeah. Why did you want it? A: I don’t know how to answer that question. Q: Well, just tell me why you wanted it. A: I needed the money. But on the property that he got, he got all the lease money and executive rights. 20 Q: Okay. A: So I thought it was fair, and I thought he thought it was fair.21 Parrack admitted she asked for this conveyance. She recalled none of the

conversations about the deed, but admitted that Parker “immediately

agreed.” 22 She also admitted that she was “in debt” and needed the money. 23

Parker agreed to sign the paper. “I’ll give you the money one time,” he

said. 24 Parrack showed him the signature page and told him to sign. There was

20 Parrack’s husband denies that they needed the money or that they had bills they couldn’t pay. R.R. Vol. 4, 105. 21 R.R. Vol. 3, 96. 22 R.R. Vol. 3, 95-96. 23 R.R. Vol. 3, 98. 24 R.R. Vol. 2, 43.

15 nothing to read, just a place to sign. 25 The paper was a Special Warranty

Deed. 26 It conveyed:

All of Grantor's interest in (i) all executive rights and (ii) all lease bonuses paid or to be paid on any oil and gas or other mineral lease on that certain 780.9 acre tract more particularly described in that certain Gift Deed from Willie Lee Baker to Linda Westmoreland, Trustee of the Linda Westmoreland 1983 Gift Trust, et al, said Gift Deed being recorded in Vol. 438, Page 246 of the Deed Records of Madison County, Texas.

Parrack did indeed get the bonus money based on the Special Warranty

Deed in 2011 from a lease granted to Burk Royalty. 27 In 2014, she received

nearly $381,000 to extend the existing lease to EOG Resources. 28 Parker knew

that Parrack was receiving bonus money in 2012 but was not aware of the

extension and the additional payment in 2014. 29

In 2015, she signed a new lease on the property that paid over $761,000 in

bonus money. 30 Despite Parker’s intention to give Parrack the bonus money

“one time,” he never received any money from the second lease to New Gulf

25 R.R. Vol. 2, 50-51. 26 Exhibit 8, R.R. Vol. 6. The Special Warranty Deed is two pages of substance, and the granting language is not on the signature page. 27 Plaintiff Exhibits 5 and 20, R.R. Vol. 6. 28 Plaintiff Exhibit 11, R.R. Vol. 6. 29 R.R. Vol. 2, 51. 30 Plaintiff Exhibits 10 and 12, R.R. Vol. 6.

16 Resources.31 Parrack was asked what she should have done if she had known

that Parker thought the deed was only for one time. She said:

A: I remembered that I thought I wish he would have come and told me this, and I would have changed everything. Q: Okay. By changing everything, meaning put it back like the way it would have been? A: Half and half. Q: Yeah, half and half? A: Yes. Q: And when did you think that? A: When it was brought to my attentions that he thought I deceived him. 32

The Remainder of the Trust Property

Parrack clearly owned the surface estate on 447 acres of the total 780 acres.

She shared ownership of the minerals under the entire 780 acres with Parker

and shared ownership of both the surface and minerals on the 339-acre tract

with Parker. 33 Parrack had never claimed 100% ownership of the 339-acre

tract. 34

31 R.R. Vol. 2, 47-49. 32 R.R. Vol. 3, 100-101. 33 R.R. Vol. 3, 52. 34 R.R. Vol. 4, 83.

17 In 2012, she handled the 339-acre tract. She claimed to transfer the entirety

of the 339-acre tract to the Parrack Brothers Family Limited Partnership. 35 In

a series of transactions in 2015, the 339-acre tract was ultimately conveyed into

Parrack Ranch, Ltd.

The Parrack Brothers Family Limited Partnership executed a single deed

conveying partial interests to a trust for Samuel Parrack, a trust for Kevin

Parrack, Jr., and to James Parrack. 36 Then, on the same day, the trusts for

Samuel Parrack, Kevin Parrack, and James Parrack conveyed the interest they

had just received in separate deeds to Parrack Ranch, Ltd. 37 Ultimately, the

Parracks built a house, a barn, and sheds on the property (on the 447-acre

tract). 38 Parker assumed this was an assertion of ownership of one-half of the

property. 39

None of these deeds claimed to convey the mineral interests – only the

surface estate on the 339-acre tract.

35 Plaintiff Exhibit 3, R.R. Vol. 6. In her deposition, Parrack claimed that Parker “gave” it to her, but she could not locate a deed or any writing confirming this testimony. R.R. Vol. 3, 86-89. 36 Plaintiff Exhibits 13, R.R. Vol. 6. 37 Plaintiff Exhibits 14, 15 and 16, R.R. Vol. 6. See also R.R. Vol. 4, 71-74. 38 R.R. Vol. 3, 59-61. There were never any structures built on the 339-acre tract. R.R. Vol. 4, 89. 39 R.R. Vol. 3, 64-65 and R.R. Vol. 4, 47.

18 The Use of the Property

The evidence is fairly clear that the Parracks used the 780 acres much more

often than Parker. At some point, Parker had placed a sign and a brand on the

gate to indicate that he was an owner. 40 But that did not last much beyond

Westmoreland’s death (or earlier).

From the time Westmoreland transferred the 447 acres to Parrack, the

Parrack family has done virtually whatever they wanted on the property. They

built a house. 41 They put up fences and a gate, and constructed sheds and a

barn on the 447-acre tract. But Parker was never barred from the property.

Before the lawsuit in 2018, Parker was on the property, or at the Parrack house,

“all the time.” 42

Although the gate to the property had a combination lock, Parker claimed

to have the combination and the ability to get on the property. 43 The Parracks

denied that Parker could gain access to the property uninvited, but no witness

testified that Parker was barred or banned from admission.44 There was never

40 R.R. Vol. 3, 65. 41 R.R. Vol. 4, 47. 42 R.R. Vol. 4, 36-37. 43 R.R. Vol. 3, 61-62. 44 R.R. Vol. 2, 57 and R.R. Vol. 3, 144.

19 a letter, a phone call, a conversation, or a published notice that Parker was

barred from the property. 45In fact, all the witnesses agreed that he could come

onto the property at any time. 46And even though Parker never paid taxes or

any expenses, every witness said he was never asked to pay or contribute. 47

Procedural Background

Parker sued in August of 2018. 48 The original defendant, Mary Martha

Parrack, died in August of 2022, while the case was still pending. 49 The parties

recognized that Kevin Parrack, Jr., was named as Independent Executor of the

Estate of Mary Martha Parrack. 50 No question was ever raised about his

appearance on behalf of the Estate.

The case was tried to a jury. At the conclusion of Parker’s case, the Trial

Court granted a directed verdict on Parker’s claim that the 2002 conveyance

45 R.R. Vol. 2, 57. 46 R.R. Vol. 3, 106, 179-180, 197 and R.R. Vol. 4, 94. 47 R.R. Vol. 3, 181-182, 197 48 C.R. 13-76. (The Petition is the first 11 pages (C.R. 13-23), and the remainder of the pages are exhibits referenced in the pleadings.) 49 C.R. 132 50 C.R. 136, See Final Judgment, C.R. 1195.

20 of 447 acres was void because it was in violation of the trust. 51 Ultimately, the

jury was charged on six liability theories. 52 Those theories were: 53

Statutory Fraud under TEX. BUS. & COMM. Questions 1 -4 CODE § 27.0154

Common Law Fraud by non-disclosure55 Questions 5-8

Negligent Misrepresentation 56 Questions 9-12

Promissory Estoppel57 Questions 13-16

Breach of Fiduciary Duty 58 Questions 17-21

Unjust Enrichment 59 Questions 22-25

The jury also found that the 339 acres was possessed by Parrack Ranch, Ltd.,

adverse to Parker for at least five years. 60

51 C.R. 1196. 52 The live trial pleadings were the Plaintiff’s Original Petition and the Defendant’s Original Answer and Counterclaim. C.R. 1195. Parker filed a First Amended Petition and a Second Amended Petition, but those pleadings attempted to add new claims too late in the trial preparation process and were deemed untimely. C.R. 636-637; R.R. Vol. 2, 7-15. 53 C.R. 1021-1053. 54 C.R. 1025-1028. 55 C.R. 1029-1032. 56 C.R. 1033-1036. 57 C.R. 1037-1040. 58 C.R. 1041-1045. 59 C.R. 1046-1049. 60 Question 26, C.R. 1050.

21 The jury answered each question in favor of Parrack. The Trial Court

signed a Final Judgment on January 14, 2025. 61 The Final Judgment adopted

the jury’s findings and made a declaration of rights. It said:

A. Parrack Ranch. Ltd. is the owner of all legal and equitable rights, title and interest in the surface of that certain tract of approximately 780.9 acres of land with improvements located three (3) miles of State Highway 90 on Madison County Road 106 (locally known as Ranch Lane) in the West Richardson Survey, comprised of approximately 447 Acres and 339 Acres, as described in a gift deed from J. A. Baker and Willie Lee Baker to Linda Westmoreland, Trustee, recorded on January 4, 1993 in Volume 399, Page 363 of the Deed Records of Madison County, Texas, being further described in a deed dated December 13, 2002, from Linda Westmoreland, Trustee, to Mary Martha Parrack and Kevine Parrack, recorded at Volume 640, Page 40, Deed Records of Madison County. Texas, and as described in a deed dated December 31, 2012, from Mary Martha Parrack to Parrack Brother Family Limited Partnership, recorded at Volume 1223, Page 132, Official Records of Madison County, Texas.

B. the 2011 Special Warranty Deed was a valid instrument and conveyed to Parrack all of Plaintiff’s executive rights and Plaintiff’s 50% interest in all lease bonuses paid or to be paid on any oil and gas and other mineral in, under, and around the 780.9 Acres; and

C. Parrack is entitled to retain all of the bonus payments she received since Plaintiff’s execution of the 2011 Special Warranty Deed. for leasing of the minerals in, under and around the 780.9 Acres.

The Trial Court denied Parrack’s request for attorney’s fees. 62

61 C.R. 1195-1200. 62 C.R. 1191-1194.

22 Following the final judgment, Parker filed a Motion for New Trial,

challenging the legal and factual sufficiency of the evidence, among other

claims.63 This appeal followed. 64

63 C.R. 1203-1206. 64 C.R. 1209-1211.

23 SUMMARY OF THE ARGUMENT

The law has consistently scrutinized self-dealing by a fiduciary carefully.

The fiduciary bears a heavy burden to justify a transaction that benefits them

at the expense of the person to whom they owe a duty. In this case, Parrack was

unquestionably a fiduciary to Parker. However, she received the executive

rights to property, which earned her over $1,000,000. She did not give up

anything in exchange for that gain. Using the relevant test for self-dealing

transactions, Parrack cannot justify the transfer of executive rights based on

her best version of the facts.

Parrack didn’t stop with the executive rights. She transferred property, of

which she knew Parker owned 50%, to her Family Partnership without any

discussion or notice to Parker. Years later, she claims that Parker didn’t do

enough to preserve his ownership, and his ownership defaults to her under the

principles of adverse possession. There are two problems. First, there is no

ouster that applies to the tract she claims to adversely possess. All the evidence

is a generic description of ranch use. Second, all the conduct that Parrack

claims is adverse does not qualify under the law as an ouster. Therefore, the

finding of adverse possession will not stand as a matter of law.

24 ARGUMENT AND AUTHORITIES

a) Standard of Review

Parker presents two arguments that, together, address his request for a new

trial. First, he asserts that the evidence is both legally and factually insufficient

to support the jury’s negative responses to the questions about breach of

fiduciary duty. This argument was preserved in Parker’s Motion for New

Trial. Second, he argues that there is also legally and factually insufficient

evidence to support the jury’s finding of adverse possession. This claim was

similarly preserved in his Motion for New Trial.

The standard of review for both issues is well established. For claims that

the evidence is legally insufficient, the record must show (a) a complete

absence of evidence of a vital fact; (b) evidence offered to prove a vital fact is

barred by rules of law or of evidence; (c) the evidence offered to prove a vital

fact is no more than a mere scintilla; or (d) the evidence conclusively proves

the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.

2005).

The final test for legal sufficiency must always be whether the evidence at

trial would enable reasonable and fair-minded people to reach the verdict

under review. Whether a reviewing court begins by considering all the

25 evidence or only the evidence supporting the verdict, legal-sufficiency review

in the proper light must credit favorable evidence if reasonable jurors could,

and disregard contrary evidence unless reasonable jurors could not.

City of Keller at 168 S.W.3d 827; Ex parte K.F., No. 10-19-00437-CV, (Tex.

App.—Waco May 25, 2022, no pet.).

When a party challenges the legal sufficiency of an adverse ruling on an

issue where she bears the burden of proof, she must show on appeal that the

evidence, as a matter of law, establishes all essential facts supporting the issue.

Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); Hall, Standards

of Review in Texas, 29 ST. MARY'S L.J. 351, 481-82 (1998). In reviewing a

“matter of law” challenge, the appellate court must first look at the record for

evidence supporting the finding, ignoring all contradicting evidence. Sterner,

767 S.W.2d at 690; Hall, supra, at 482. If no evidence supports the finding, the

court then reviews the entire record to see if the opposing position is

established as a matter of law. Sterner, 767 S.W.2d at 690; Hall, supra, at 482.

McGuire v. Assembly by Us, LLC, No. 10-19-00310-CV, at *7-8 (Tex. App.—

Waco Dec. 22, 2021, no pet.)

Claims that the evidence is factually insufficient challenge the jury’s

findings. Before a jury’s factual determination can be overturned, an appellate

26 court must consider and weigh all the evidence supporting and opposing the

jury's conclusion. In re King’s Estate, 244 S.W.2d 660, 661 (1951). The proper

standard of review requires the court of appeals to examine, evaluate, and

compare all relevant evidence in the record and explain why the original

finding is clearly unjust, shocks the conscience, or demonstrates bias. Sosa v.

Balch Springs, 772 S.W.2d 71, 72 (Tex. 1989). The court should only set aside

the verdict if it is so against the overwhelming weight of the evidence that it is

clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Toal

v. Smith, 54 S.W.3d 431, 434-35 (Tex. App.—Waco 2001, pet. denied).

b) Issue No. 1: The evidence is conclusive on the issue of breach of fiduciary duty. A fiduciary cannot self-deal in a way that totally benefits the fiduciary and totally deprives the beneficiary of any benefit. A fiduciary bears a heavy burden to prove that a self-dealing transaction is fair.

Parker and Parrack’s mother, Westmoreland, died in 2011. In 2012, Parrack

presented a “paper” to Parker and asked him to sign it. They went to a local

Notary Public to execute and acknowledge the “paper.” The document was a

transfer of all of Parker’s executive rights in the 780-acre tract. Parker

understood that the transfer was so Parrack could receive the bonus money

from the lease of the 780-acre tract that was in the process of negotiation.

27 Parker said he never read the paper but trusted his sister.65 And although

he understood that his sister would get bonus money that belonged to him as a

50% owner, he also understood that it was for “one time only.”

The “one-time only” belief was justified. Parrack said that “she was in

debt,” that she “needed the money,” and that she was going to pay “mama’s

bills, expenses, and taxes.” Parrack received a check for over $380,000 soon

after Parker signed the paper. However, Parrack didn’t use that money to pay

“mama’s bills, expenses, and taxes.” Parrack’s husband stated that they were

fully capable of paying their bills and did not “need the money.”

The truth was that Parrack wanted the executive rights that belonged to

Parker because she believed they were owed to her as a Baker grandchild.

Parker had received bonus money on property that the Bakers had given him,

so Parrack must have thought it was her turn to be paid. If that was the truth—

that it was her turn to get paid—she never explained this to Parker. In fact, she

ultimately admitted that if Parker felt it was unfair, she should have just split

the money 50/50.

65 In her defense case, Parrack presented a number of witnesses whose testimony was primarily that Parrack was honest, trustworthy, and honorable. So, Parker was not alone in trusting Parrack.

28 Parrack took advantage of Parker’s trust, and the law doesn’t permit that.

First, the jury found that Parrack was a fiduciary as to Parker 66 (a finding

unchallenged to this point and admitted by every witness that spoke on that

issue.) Second, the law is settled on the issue of fiduciary duty.

Texas courts presume transactions between a fiduciary and a party to whom

she owes a duty of disclosure are unfair. Fitz-Gerald v. Hull, 237 S.W.2d 256,

261 (Tex. 1951). Therefore, the fiduciary who profits from such transactions

must prove they are fair. Collins v. Smith, 53 S.W.3d 832, 840 (Tex. App.--

Houston [1st Dist.] 2001, no pet.). These fiduciaries must demonstrate they

acted in good faith and that the transactions were fair, honest, and equitable.

The Texas Supreme Court has closely examined transactions where one

party places trust and confidence, while the other benefits personally. See

Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257 (Tex. 1974);

Archer v. Griffith, 390 S.W.2d 735 (Tex. 1964); International Bankers Life

Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex. 1963); and Kinzbach Tool Co., Inc.

v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509 (1942).

The problem is one of equity. It is certainly true that families can have

strained relations, but it never justifies treating those who are trusting

66 C.R. 1041. Jury Question No. 17.

29 beneficiaries as strangers or opponents at arm’s length. A much higher

standard for evaluating conduct applies to a fiduciary relationship. Johnson v.

Peckham, 120 S.W.2d 786, 788 (Tex. 1938).

A fiduciary, like Parrack, consents, as a matter of law, to have her conduct

toward the other evaluated by the higher loyalties required by courts of equity.

If the existence of difficult family relations is allowed to serve as an exception,

then a cunning fiduciary could easily exploit such relations to create

opportunities for a sharp bargain. Tex. Bank & Tr. Co. v. Moore, 595 S.W.2d

502, 508 (Tex. 1980).

When assessing the fairness of a transaction involving a fiduciary, key

factors for measuring conduct include: (1) whether full disclosure was made

regarding the transaction, (2) whether the consideration was adequate, (3)

whether the beneficiary received independent advice, (4) whether the

fiduciary benefited at the beneficiary's expense, and (5) whether the fiduciary

gained significantly from the transaction considering the circumstances at the

time. Estate of Townes v. Townes, 867 S.W.2d 414, 417 (Tex. App.--Houston

[14th Dist.] 1993, writ denied); Lee v. Hasson, 286 S.W.3d 1, 21 (Tex. App.—

Houston [14th Dist.] 2007, pet. denied).

30 Although the jury concluded that Parrack had not violated her duty, the

evidence indicates that she failed in at least four of five factors. First, whether

full disclosure was made remains a disputed issue. Parker said he didn’t read

the paper and trusted his sister’s description of it as a “one-time only” deal.

However, he was never prevented from reading the entire paper. The jury’s

conclusion is, at best, supported by some evidence. Nonetheless, the evidence

regarding disclosure is overshadowed by the evidence related to the other

factors.

Parrack gave no consideration for the transfer of the executive rights. She

claimed poverty and hid what she ultimately admitted was the real reason.

Love and affection for a family member cannot count as consideration for a

transfer when the family member is not honest about the circumstances. When

Parrack said she needed the money to cover expenses for her recently deceased

mother, she was not candid. Therefore, in evaluating the consideration factor,

Parrack fails the self-dealing test.

No one claims that Parker had independent advice on the transaction. He

was not prevented from seeking advice, but the request was framed as a family

financial matter— a beloved sister in debt because of a deceased mother. It is

31 unreasonable to expect Parker to obtain independent advice under those

circumstances. Once again, Parrack fails the self-dealing test.

Parrack benefited from the deal at Parker’s expense. Without the paper,

Parker would have received 50% of the upcoming bonus payments, which were

expected in the future. Parrack also admits that if Parker was treated unfairly,

the right course of action would be to revert to a fifty-fifty split. Once again,

Ultimately, Parrack significantly benefited from the transaction,

considering the circumstances at the time. Parrack received $380,000 almost

immediately after the deal was finalized. A few years later, she got over

$760,000 in bonus payments. In total, Parrack received more than $1,000,000

because of this single action.

It doesn’t matter that Parker received bonus money on property he owned.

The law doesn’t require family members to inherit equally. Parrack had many

chances to argue that Parker should give up his rights to the 780 acres because

he had already inherited enough. If she believed this was a strong point, she

admits she only “thought" Parker would agree; she didn’t actually discuss it

with him.

32 The jury’s conclusion that Parrack was a fiduciary to Parker warrants a

strict review of transactions that benefit Parrack or harm Parker. This

transaction does not pass that strict review as a matter of law. At a minimum,

the jury’s negative answer to the breach of fiduciary duty questions is

unsupported by the substantial evidence and is clearly wrong. The Court

should reverse the judgment below and grant a new trial.

c) Issue No. 2: The evidence does not support a conclusion of adverse possession because the possession is not hostile or adverse. There is evidence of use as to a 780-acre tract, but no evidence that there was an ouster of the specific tract against which adverse possession is claimed.

Parrack never received a deed to the 339-acre tract. However, she treated

the property as if it were hers by right. About a year after obtaining the

executive rights from Parker, she simply issued a deed to Parrack Brothers

Family Partnership for all 339 acres. She wanted the entire ranch for her family

and aimed to cut Parker out of his 50% interest. The deed didn’t accomplish

that. At best, it conveyed all the interest that Parrack held—which was 50%

after the Linda Westmoreland Trust was terminated.

Several years later, the Parrack Brothers Family Partnership transferred the

property through a series of deeds, which resulted in some of the title being

33 held by Parrack Ranch, Ltd. However, the deed records only support the

conclusion that Parrack Ranch, Ltd. owned just 50% of the 339-acre tract.

Knowing this, Parrack argued that Parker’s claim of title had expired through

adverse possession. This adverse possession claim was based on a few key

facts.

First, Parrack claimed that her family had essentially treated the property

as their own. They put up fences, closed access with a locked gate, and ran

cattle on the land. They told the jury about building a house, a barn, and sheds

but barely mentioned that these structures were on the 447-acre tract and

would not adversely affect Parker's claim on the 339-acre tract.

Second, Parrack argued that Parker never attempted to claim ownership.

Her husband acknowledged that Parker was at the property almost every day

for years—drinking coffee and socializing. However, he did not run cattle on

the land. Parrack also accused Parker of not paying for the improvements,

utilities, or taxes. Of course, the improvements were not made for Parker’s use

or benefit, nor were the utilities. No one asked him to contribute, and no one

should have unless he benefited from the improvements. Regarding the taxes,

Parker never offered to pay, but he was never asked to do so.

34 Finally, Parrack argued that Parker could not enter the property without an

invitation. They claimed the gate was locked, while Parker said he had the

combination; Parrack insisted he did not. A locked gate does not constitute an

ouster. All witnesses testified that Parker was never banned from the property.

No letter, phone call, conversation, or public notice ever barred Parker or even

attempted to prevent his access.

Parker and Parrack were co-tenants of the 339-acre tract after their mother

passed away. Co-tenants are not agents; a co-tenant cannot transfer more than

her interest in the shared property. See Thomas v. Sw. Settlement & Dev. Co.,

123 S.W.2d 290, 297 (Tex. 1939) (“A deed by one co-tenant purporting to

convey the entire interest in a part of the commonly owned land conveys such

interest, and only such interest, in the land as the maker of the deed

possesses.”); Home Owners’ Loan Corp. v. Cilley, 125 S.W.2d 313, 316 (Tex.

Civ. App.--Amarillo 1939, writ ref'd) (stating that a co-tenant, in dealing with

third persons under normal circumstances, cannot bind another co-tenant

through any act related to common property, and a conveyance by a co-tenant

claiming to transfer the entire property interest only conveys the interest the

grantor owns and does not transfer the interest owned by the non-joining co-

tenant); see also Keels v. Keels, 427 S.W.2d 913, 916 (Tex. Civ. App.--Tyler

35 1968, no writ) (“[T]he mere recording of a deed to a claimant who initially

entered into possession as a permissive user is no evidence of an adverse

holding or the repudiation of the tenancy.” (citing Udell v. Peak, 70 Tex. 547,

7 S.W. 786 (Tex. 1888). Second, a deed provides co-tenants with constructive

notice of an adverse claim only if it is recorded before they acquire their

interests. Recording a deed after the other co-tenants have already obtained

their property interests does not give those co-tenants constructive notice that

their co-tenant claimed an adverse interest. Spiller v. Woodard, 809 S.W.2d

624, 627 (Tex. App.--Houston [1st Dist.] 1991, no writ). “(R)ecord notice goes

forward, not backwards.” Id. Dyer v. Cotton, 333 S.W.3d 703, 712 (Tex. App.—

Houston [1st Dist.] 2010, no pet.).

The mere use of a deed does not, alone, help Parrack’s claim of adverse

possession. Neither does mere extensive use.

Clearer and more conclusive evidence is required in proof of

the adverse character of the possession in such cases than is required as

between strangers. The presumption is strongly against every claim by a

cotenant that seeks to convert the circumstance of an apparently individual

possession into an advantage over her co-tenant. A co-tenant in sole

possession must make abundantly clear that she holds possession in opposition

36 to the rights of her co-tenants. Otherwise, her occupancy will be presumed to

be that of a tenant in common. The law makes this requirement so that “greed

shall not fatten under the guise of a greater vigilance, every other element

necessary to constitute adverse possession must exist.” Freeman v. Pierce, 250

S.W. 778, 781 (Tex. Civ. App. 1922, no writ).

For over a century, the rule in Texas has been:

Accordingly, there must also be an express denial by the tenant in sole possession of the title or right to possession of a fellow tenant brought home to the knowledge of the latter, openly and unequivocally; there must also be a disseizin or ouster, with an intention to hold adversely; and the tenant as against whom an adverse title is so asserted must have actual knowledge or notice of the adverse claim. Freeman, at 250 S.W. 781 (Tex. Civ. App. 1922, no writ).

So, co-tenants must prove, in addition to the usual adverse possession

requirements, an ouster of the cotenant not in possession or repudiation of the

co-tenancy relationship. Dyer v. Cotton, 333 S.W.3d 703, 712 (Tex. App.—

Houston [1st Dist.] 2010, no pet.) (citing Byrom v. Pendley, 717 S.W.2d 602,

605 (Tex. 1986)). The statutes of limitations that apply to co-tenants are not

designed to run in secrecy and silence; therefore, the claimant must prove

actual or constructive notice of the ouster, and the clear, unequivocal, and

unmistakable repudiation of the common title. See Dyer, 333 S.W.3d at 713.

37 Parrack simply can’t support adverse possession simply by claiming that

the 339-acre tract was used for running cattle. That was the traditional use of

the land going back to the Bakers (grandparents). Nothing that Parrack was

doing was different from the prior use and would have done nothing to make a

claim of exclusive ownership.

Not only is possession enough to be adverse to a co-tenant, fences don’t

establish possession hostile to a co-tenant. Fences are either “casual fences”

or “designed enclosures.” A fence is a "casual fence" if it existed before the

party claiming adverse possession took possession of the land and the claimant

does not demonstrate the purpose for which the fence was built. A casual fence

cannot be changed to a designed enclosure through mere repair or

maintenance, even if such repairs or maintenance were done “for the express

purpose of keeping the claimant's animals within the enclosed area.” Mead v.

RLMC, Inc., 225 S.W.3d 710, 715 (Tex. App.—Fort Worth 2007, pet. denied).

Parrack never tried to give any details about the fences on the 339-acre tract.

The general description of using the property, building, and repairing fences,

and locking a gate. 67 If Parker failed to visit the property, that is not a surrender

Nothing about a lock on a gate operates as an ouster. It simply means that any person is 67

not entitled to come on the property freely.

38 of his title or a repudiation of title by Parrack. Everything that Parrack was

doing was exactly what the property was used for before Parrack created the

series of deeds transferring the property to Parrack Ranch, Ltd.

Some of Parrack’s actions might be seen as detrimental to Parker's right to

occupy the property freely. Constructive notice of Parrack’s deeds was not

actual notice. They can only be understood to convey whatever interest she

genuinely owned. A fair assessment of the adverse possession claim must

consider other facts that indicate Parker was not ousted. He was never

informed not to enter the property. He received no letters, phone calls, or oral

warnings. He was welcomed when he visited. Although the 447-acre tract had

a house, a barn, pens, and sheds, there was no indication that the 339-acre tract

was similarly improved. Parker could see cattle and fences but could not have

visited the 339-acre tract and known that Parrack denied he was still an owner.

All of the conduct that Parrack claims was adverse to Parker was just a series

of things that ranchers do on their ranch. It was never specific to the 339-acre

tract. That will not suffice as an ouster. An ouster occurs when the co-tenancy

is repudiated and notice of that repudiation is “brought home” to the other

cotenant. See Todd v. Bruner, 365 S.W.2d 155, 159-61 (Tex. 1963) (discussing

ouster requirement). Notice of repudiation, often termed ouster or disseizen,

39 is shown by “unmistakable and hostile acts that would put other cotenants on

notice of [an] intent to oust them from the leasehold.” Todd, 365 S.W.2d at

157; Eckford v. Nixon, No. 04-24-00183-CV, 2025 LX 405245, at *12-13 (Tex.

App.—San Antonio Oct. 8, 2025, no pet. h.)

In sum, the claim of adverse possession so that Parrack was the sole owner

of the 339-acre tract does not match the evidence as a matter of law. At a

minimum, the finding of adverse possession is so contrary to the evidence as

to be manifestly unjust. The Court should, therefore, reverse and remand for

a new trial.

CONCLUSION

For all these reasons, this Court should reverse the trial court’s judgment

and remand the case for a new trial.

Respectfully submitted,

By: /s/ Greg White Greg White Texas Bar No. 21329050 gwhite@grayreed.com

GRAY REED & MCGRAW LLP 900 Washington Ave., Ste. 800 Waco, Texas 76701 Telephone: (254) 342-3000 Facsimile: (254) 342-3100

40 Jay B. Goss Texas Bar No. 08222600 Jgoss@bruhez.com Joseph Briers Texas Bar No. 24082730 jbriers@bruchez.com

BRUCHEZ & GOSS, PC 2740 Copperfield Dr. Suite 200 Bryan, Texas 77802 Telephone: (979) 268-4343 Facsimile: (979) 268-5323

William F. Carter Texas Bar No. 03932800 wfcarterlaw@gmail.com 201 North Main St. Bryan, Texas 77803 Telephone: (979) 779-0712 Facsimile: (979) 779-9243

ATTORNEYS FOR APPELLANT TOMMY PARKER, JR.

41 CERTIFICATE OF COMPLIANCE

As required by Texas Rule of Appellate Procedure 9.4(i)(3), I certify that, according to the word count of the computer program used to prepare this brief, the brief contains 6,105 words.

This brief also complies with the typeface requirements of Texas Rule of Appellate Procedure 9.4(e) because this brief was prepared in a proportionally spaced typeface using Microsoft Word in Equity A 14-point font for text and 12- point font for footnotes.

/s/ Greg White Greg White

42 CERTIFICATE OF SERVICE

I certify that a true and correct copy of the Appellant’s Brief on the Merits was filed through an approved electronic filing service, and that service was thereby accomplished on counsel listed below on October 16, 2025.

Laura Upchurch Upchurch & Yates, LLP 315 S. Park St. Brenham, TX 77833 upchurch@upchurchyates.com

Attorneys for Appellee – Mary Martha Parrack

43 APPENDIX

Final Judgment Tab 1

Jury Charge Tab 2

44 Tab 1 Final Judgment Fil8'd 1/14/2025 2:26 PM Rhonda Savage Oistr"i:;t Cler'K Madison County. Texas

Ti ,any McClure

CAUSE ~O. 18•16110

TO!\1:\·IY PARKER. JR. § [:', THE DISTRICT COtRT § \'. § 12tt. JL101Cl.AL DISTRICT § ~1ARY MARTHA PARR..\CK § ,L\DlSOl\ COt;NT\", TEXAS

Fl'.\AL JUDGME~T

This case wa~ tried to a jury nn November 6-8 .:i.nd I 3. ~0.24 Plaintiff To mmy Parkl.:r.

Jr. , appeared in rxrson and by and through his attornr.:y of r.:~urJ . Ke,·in Parrad,, Jr..

lnd1::pendcm l.:xecutcr of thl!' Estate of Defendant Mary \.I ..irtha P~1rrnd;. i ··Parrnt·k.. ). appr:;m:d

in person and by and through l1is a1t1Jrnl!y of record. All part i.:.-. ;mnounccd rc::idy for trial.

A jury ha,·ing been prc,wu:;ly dc:mandcd, a jury of l\.\.;hc i.Jll:lhlit:d jurors was du ly

accepted, impaneled. and swum. The c:ise then proceeJed 10 trial on all claims and issues

alleged in the live pl ejdings at time of trial. bd ng:

l. Plaillli{fs Original Petition. tiled on August ~1. 20 IX. alkg.i ng the folk,wing callses of action ag~linst P;irrack in .;1,)nnci;,:tion \\ ith a S~c i;l l \\'arr,mty DccJ cxl!cut~d by Plaintiff on Augu~t 18, 20 I I. ri:conkd :'It Volume 1104. Pag ~ :-18. uf the Official Reco rds of Madi.;on Co1.in1y. T ~·x;.,:- (" 20 11 Spcl·1al W,manty Dted"). conveying to Parrack all of Pl.iinliff s nei:u tl\e nght:, ,@.l u1k n:sts in bonuses received on any mineral leases for 7,.0 .9 acr~s in the \\'e-st Richardson Sur\'ey in :\fadison Co unty. Texas (the "780.9 i\1.-r :-") : ca·, statutory fra ud and b) common m1 sreprcseni:;itio11 ; ( fraud ; • d bre,Kh of l.1w fid l !Ciary cJ) duty : (

promissory cstoppt'l: ll! _l unjust cnrichm1:m: ( I) canccH,mon of d~t:c..l: (g> negl igent misrepresentation; (h) suit to quii.:-1 titk in th<.: ~0° ., of lht 780.9 .-\1.:r~s. made up uf hvo tr:11:ts. including approx imak ly ~4 7 (the ··4.p /\crc-s ··i ;md : 1 cH~s

approximat~ly 339 ;icr well as a tfoclar;itory judgment for can~ellanon and rcs4.:i~~ion of rhc 20 11 Special \Varranty O¢cJ . a nd a declarat ion 1ha1 all ur th~ surfa ce interest and un~·- 4uart~r of the mineral mtcrc:H~ in the 780.9 Acres i:- own!! J :'i0~(J by P lai ntiff and ~0% by Parri.lt:k. and that a 2002 conveyance 10 Parrad ancJ her husband , K..:,·in Parra1:k. of the 449 Acres is void:

D ef't!ndan t ·s On~111t1! .fosin:r. filed by Parrn\.'.k tin 0,ll•ber l. 20 I/<, inciudin~ a ,·cti fied denial rcf;irJing Plainuff s fail ur~ 10 .10111 lH.'~,-~~ary p.lnlt'S to hi . s1~1t:

1195 affinnativc dcfcnsl:S of waiver. estoppel, ratification. and ~tatutt: of limitalit1·1s: an owner of all legal and 1.:'4.lUitablc right in the i!<0. 9 Ant' s and the mineral nghts subject to the 2011 Special \\'arr~nty Dc:~J. (b) 1he ~Ol l Special Warranty D~cd was a \'alid instrument and conv~yed all of P amtiff s executive rights and intcrc.1 in lease b<.mu.s~s for the 7S0.9 Acre:; to PMrnc:k: and (c) Parrai.:k is entitled to retain all of the bonus pa~·ml'nt5. rl'nts and royaltits that she has reci;:ived from the 780.9 Acres sine\! th~ 20 i l Sp,,;,,~i,11 Warranty Deed was recorded .

After Plnimiff rcstcd, at the conclusion of his case in chief. Parrack ?rally mo\'ed for

directed verdict on Plaintiffs request for a dedaratory judgment that the 200:! conveyanc1; uf

the 449 Acres to Parrack and her husband. Kevin Parrack. 1s rn iJ. A ftcr hearing th

arguments of counsd and con~idt>ring the evidence in suppon of that motil)ll. the Court

granted it, finding tha1 Plaintiff had waived the claim and fail~c.l to lik it ,\·ithi:1 the

applicable starute of lim nations .

On Non!mber l }. 2024. the Court submined qut"!stion~. dt ·mitions and instructions to

the jury. after which the jury began deliberations. The jury rc1umt:d its verd ict f'o r Parrack on

Novcmbe-r 13, 2024. The jury's ,·erdict was received and fi led 111 the papers ot tlm cas.c and

such find ings were duly recciv1:

minutes of the Court.

As rd1ectt:d in the \'Crdict. the jury found the follt,wing :

J. Mary Martha Parrack did not commit statutory fraud against Tommy Parkrr. Jr:. in regard 10 the tr.lnsa<:tion r~prcscntcd by lhc 2011 Spt:(iJ.l Wlrron1y De-ed

t-.1llry Martha Parrn ::k did not commjt fraud again~l Tommy Parl..:cr. Jr .. in ri:gard to thi: transaction reprc entcd by the 20 I I Special \Vam mty Deed:

3. Mary Martha Parrack did not make a negligent misr~pr~s-;;1Hat i0n on \\ hich Tommy Parker. Jr .. ju. tifiably relied in regard to the transaction r~prc:;ented by the 2011 Special Warranty Deed;

1196 4. Tommy Park~r. Jr .. did not substantially rely to his detriment on Ma~· Martha ?arrack's prumis.e. if any, in ri:gard to the tran!iac ion rcprcs~ntt'd by chc ~011 Special Wilrranty Deed.

5. A n:lationsh1p of trust and confidtnce cx1stc.:d bc:twccn r-·1ar) Martha Parrni:k and Tomn y Parkt·r. Jr. :

6. In r~gan.l to the rran.~action repre ·cnted by the 20 I l Spet:t,11 Warranty Deed. Mary Martha Parrack dill not fail to comply with hc.:r fiduciary duty to Tommy Parker. Jr .:

7. Mary Martha Parrack was not unjustly t:nriched as a rc:)L1h of the 1ransa..:t1on represented by the 201 I Special Warranty Dc.:ed:

8. Parrack Ranch. Lt

9. The reasonable fee for the necessary services of ~-1ary Martha Parr.1i:k's attomi:y for the adverse posses~iun dairn was $44,000.

Based on the jury ·s \ crdi<.:t. the c,·idcnce preserlled at tria 1, and the ar.b111m~nts nt'

counsel, pursuant to Chapter 37 1:1 ,HV of the Texas Ci\ ii Practict.> and Rcm1: J i~s Co

othe!r applicable T~;o:.a~ 1~1 w. th~ Co urt linds as fol kw,'. :

A. Pa1Tai.:k is cntitkd to a dt!elarntory judgmen that (i) Parrack Ram:h, LIJ. i s the owner of all lt:gal anJ equitable right s, ritle and it1t1.!r~:-r in the surface of tht· ➔ -+7 Acres and the 339 Acre·: (i.i) th~ 20l I Special Warrauly Deed was a val id instrument and con \·cyed to Parrack all of Ptaintifr ;:; i:xc cuU\'1.: right\> anJ his 50~ u 111tcr~st in al! lease bonusc!> paid or to be p;ud vn any oil. g.1:- anincc Pla in1iff .~ l!Xccution of lhe 201 l Sp~.:ial \\'arranry Di:t:d, for leasing of thi: mina.il:- it . undtr and around lh? 780.9 Acr~s:

B. Parrack hacJ tc ti::t,1in counsel to represent her in pum1it 0t h~ r counterda im for declarntory relief. as set forth in Parrack' s Origina l A nswcr. ;rn J

C. bast:

1197 Based on th~ pleading!). the Jury's findings as r•fk 1ed in lh(' ~·adic1. rhc C\'i

admitted at trial, the Cour1' s findings as a matter of law, thi: recorJ. and the uurt •s prev ious

orders and rulings, the Court hereby Rl::NDERS judgm~nt for Parrack .

Accordingly, it is ORDERED. ADJUDGED and DECREED that (a) l'arrack did not

commit statutory fraud, fraud or a brt'ach of fiduciary duty against Plaintiff. nl1r make ::i

n~gligent mi&representa1ior1 to Plaintiff, fn regard to the tran ·a1.:tion represented by the 20 l 1

Special Warranty D~eJ: lb) Plain1iff did not substantialiy rely to hi. de1rimcn1 on Parral:k'~

promise, if any, in reg.a rd w the transaction represented b~ the 2011 Sp~"Ciat \Varr,111ty Dci!J; i c ·1

Mary Mar1ha Parrac was no unjust I~ enriched as a re:su!I of that transaction: Jnd Id ) Parrack

Ranch, Ltd. held the 339 A~rl.'~ m peace.able and adverse possession for ;1 pl.'rio

five years before August 27, 2018 .

his further ORDERED. ADJUDGED and DECREED that ·

A. Pan-ad,; Ranch. Ltd. 1s rhe owner of all legal and \!quitabk rights, title and interest in the surface of that certain tract of approximately 780.9 ;i-:rc.~ of l:ind. with improYcrncnts. located three (3) miles of State Jlighway 90 on M.idison County Road 106 (locally known as Ranch Lane) in the \\'t:"~t Richardson Surv~y. i:ompmcJ of approximately ..i..p Acres and 339 Acres . .is described in a gifl dcl!d from J. A. Baker and Willie Lee Baker to Linda Westrnordand. Trostee. r~corded on January 4. 1993. in Volume 399. Poage 36j of the Deed Records of tadison County, Texas; hcing furtht.>r desrnbed in .:i Med dat~d December 13. _oo_. from Linda \\·~stmoreland. Trusto.cc. to \.1:iry J\·farth:.i Parrack and Kc:,·in Parrack, recorded ar Volume 640. Page 40. Deed Records of Madison County. Texas~ and as described in a deed d;.Hcd D~i:1:mb~r 31. 2012. from Mary :•vtartha (Parker) Panack to Parrai:k Rrot il crs Farnil 1 L1irnted Pa11ncrship. rei.:ordi:J at Volume l 223. Page I.: 2. Offirn:d Rci:urc.l s l)f \bd ison County, Texa::

B. the 201 l Spc:i:.:iai \Varranty Deed was a ,at i

1198 C. Parrack is entitled rn retain all of the bonus paym<.:nb sh..: re<.:1!1\'Cd --inc? Pl.i:intiffs execution of 1h4' 201 l Speci.il Warranty Deed. for kasmg of 1h1.: minerals in. under anc: around th~ 780.9 Acres.

It is further ORDERED. ADJ DGED and DECREED that Parrnck ha\'c and rcco\ er

from Plaintiff post-judgm~nt interest on all amounti- awardl:' t to Parrack tn thi:- l-inal

Judgment. at the rate of 8.00% per annum .. 1.:ompoundcd annually. from the dati.: vf si~ning ~r

this final Judgment until it 1s paid in full.

It is further ORDERFD :ind DECREED that Parrac • have anJ r1;u,v~r from Pl;iintiff

all taxable 1.:oun co t.~. pursuant to Texas Rule of Civil Procedure l .~ I.

This Judgment is tinu and dispose) of all claims and all parti~s. and is np p.::-i labk

AJI relit!f not expressly granted h1nt!in is denied . All\\ rits und prnct:s$es for the ~nforc1.'1J11.•n 1

and collccricn of this judgmcnr or the rnsts of mun may i:,suc.= ~ts necess.1ry . The Court

ORDERS execution to issui: for this judgment.

Signed on f, L<-j .2024

~~JUDGE PRESlDIG

1'J1ul foJi;mcn1 1199 APPROYED AS TO FORM A. :o CONTE~T:

UPCHURCH & YA 1 f:S, LL P

By ~ '(Ullfl . Jifikdr._ . Lau a Cpchurch State Bar No . 00785131 3 l 5 S. Park Strc~I Brenham. TX 77833 l1pt:hun,:h rt( upd1Ut1.."hy,~1e, .c111H Attorneys for Defendaw

APPROVED AS TO FOR\1 O~L Y:

BRLTHE.l. & Goss. PC

By:_ _~ -- - -- - - - -- - - Jay B. Go. s State Bar No. 08222600 3740 Copperfield Cr., Suit,: 200 Bryan, Texas 77802 Telephone: (979) 268-4343 il.!,b:,'(l. ~ruclw?.l'.lllll Auurne_1·sjc1r Plainlijf

1200 Tab 2 Jury Charge CALIS E NO. 18-16110 NOV 13 2024 TO:\I MY PARKER, J R. § IN T HE Dl§!R)Cl&.]W.§Je § R~onda Savage, District Cf~rl( V. § 12 1tt Jl'D~ t8fi\4qftft1Qi~kl Courr:. ~drr'Coiimy;·rexas § b'/ , -- -- - ~ - - 0 ~ ,lARY l\L-\RT HA PARRAC K § \I ADIS ON CO lJNT \ , TE XAS

C H ARGE OF THE CO L' RT

LADIF.S AND GE>ITLEM E OF THE JL RY:

This cas' is submincd to you by a~king question. about the facts. \\·hich you must decide

from the e\·1dence you have ht.:ard in this trial. '{ou are the sole judges ( r the credibi lity of the

\\·irncs c and the weight to be gin~n their testimony. but in matters of la\\". you must be governed

by the instructions in this Charge. In di charging your responsibi lity on this Jui:. :ou will obs ~r\'e

all th · instructions wb ich haw previously been gl\'en you. I shall llO\\ g:i\'e you add itional

instruction: which you should carefu lly and strictly fo l low during your del iberations.

l. Do not let hia.·. prejuJ icc or sympathy play any part in your del ibeni tions.

1 In arriving at your a nS\\·er •• con:;ider onl) the C\ idt.:ncc introduced here under oath

and such exhibits. if any, as han: been introduced for your consideration under 1he rulings or the

Court. that is. what you have een and heun.i in this courtroom. together \\·ith the law as gi\·en you

by the Coun. ln :our c.k libcrations. )-OU wi ll not consider or discuss an:.thing that i.- not represented

b\' the evi dence in this ca ·e.

J. Since every ans\ver that is required by the Charge is important, no juror shou ld state

or consider that any required answer is not important.

4. You must not decide who you think hou ld win. and then try lO an -,.,\er the questions

accordingly. Simply answer the questi on. . and do not discu s nor concern yoursel\'cs with the

effect of your ansv,·ers.

1021 ). You \Vi l! not decide 1he ansv,:er to a question by lot or h: dra\\ing straws. or hy any

othe r method of chance. Do noc rcn rn a quotient verdict. A quotient verd ict mean· thac rhc juror

agree to abide b:, th' re ulr robe reached by addi ng together each juror·s [igur sand dividing by

the number of jurors to get an an:rag~. Do not do any trad ing on )'our answers: that is. one juror

should not agree to answer a certain question one \vay if others will agree to answer anotht"'.r

que ·tion another way.

6. You may render 1 our \·erdict upon the \ "Ott'. ol"ten or more m'mbcrs of the Jury.

Th i.: same ten or more of you must agree upon all of the answer made and to the t:nti rc verdic t.

You will nol. there fore . enter into an agreement to be bounJ hy a majo rity or any other vote ofles:

than renjurors. !fthe verdict and all of the answer_ therein arc reached by unanimous agreement.

rhe presiding juror must sign the \'erdict fo r the entire Jul). ff any juror disagrees as to any answer

made by the verdict. those jurors \vho ag ree to all findings must each ·ign Lhe H'.rdict.

7. You hav i.: b~cn allo\Yed to tak e note:,; during the trial of this case. You may ha\·e

those notes with you in the'. jury room during vour deliberations. The notes you have taken are not

evidence. Your personal rccolleclion of the evi dence take:s prcccdcw..: ' over any notes you hiwe

taken. You sho ul d ha.se your \'crd ici only on the evidence presented during the trial. You may not

display your notes or disclose the contents of your notes to any other juror during. your

deliberations. To do so is a "iolation of these instruction .

These instructi ons are gi\·en to you ht'.Causc your conduct is subject to re\· iew the same as

tha t of the witnesses. parties. attorneys and the Judge. If it should be found that you have

disregarded any of these instruction~. it will be jury mi conduct and it may require another trial by

another jury: then all of our time will ha\·e been wasted.

Th e presiding juror or any other \Vho observes a violation of the Court's instructions shall

immediately vvarn the one v,ho is violating the same and caution the juror not to do so agai n. \~./hen

1022 word.- arc used in thi charge in a sense which va ri e • Ii-om the meaning rnmm on l::, undaswod.

you are gi ven a proper legal defin i tion. v\hirh you are bound to acn:: pr in place of an: other

meaning.

Answer "Ye •• or ··No .. to all LJuestions unless oth erwi se instructed. A .. Ye •• answe r must

be bas,ed on a preponderance of the evidence. If you do not find that a preponderance of the

e\ idcncc supports a ··Ye- ·· am;wer. then answer '·~o ... Thi:.' tenn .. preponderance of the evidence ..

means the grea ter Wl'ight and degree of credible testimony or ev td ence introduced h ·fi.irc you and

admitted in lhi • c;ase. \~.'henn· 'fa questio n rcqllires other than a " Yes·· or ··r--:o·· answer. ; our

answer must be based on a prepond ram:e or the evict ' nc ' . unlc s the que ·tion instructs otherwise.

A fac t may be es tablish ~d by direct evidence or by <.:irc um stanti al C\"td ' nee or both. A fact

is i.::stabl ished by Direct Ev iden<.:e \\'hen pro\'ed by documentary evid~nct:: (H by w itnessL"S \Vho saw

the act done or heard the words spoken. A fact is estahlished hy Circumstantial [videnct:: \\ hen it

may be fairly and reasonabl: in ferred from other facts pro,·ed.

Arter you retire to the jury room, you wil l se lt:ct your own presiding juror. The first thing

the presiding juror will do is to ha\c the complete charge read aloud and then you \viii delibcracc

upon your answers to the questions a k ed.

It is the duty o f the pre ldingjuror-

l. to preside during y our deliberations,

'> to see that yoLtr del iberation are conducted in an orderly manner and in accordance

\Vi th the instructions in thi s charge.

3. to write out and hand to the bai liff any communication , concernin g rhe case that

you desire to have delivered to the Judge.

4. to vote on the questions.

5. to \vrite your answers to the questions in the spaces prov ided. and

1023 6. to cenif; your ,·erdict in the pac provided for the pn:sidingjuror"s signatun: or LO

obtai n the signatures ot' all chc jurors ,vho agree \\. ith the , ·crdict if your verdict is

less than unanimous.

'{ou should not discuss the case with anyone. not even with other m 'mber of the j ur:.

unless all ofyouar ' present and assemhled in the jury room. Shou ld anyo ne attempt IO tal k to you

about the case before th n:rdict i returned. \vhet her at the counhfluse. at your home. or d se\\'here.

please inform the Judge of thi • fact.

\Vhcn you have answe red all or the 4ues ttons you arc required to answer under the

instruction· of the Judge and your presi ding juror has pla~ed your ans\\'ers in the- spaces pro,·ided

and signed the verdict as a pre iding juror or obtained the ignaturcs. you wil l infom1 the baili IT al

the door of the jury room that you h..1\ reached a verdict. and then you will return into cou rt with

your verdict.

DEFl:"ilTlONS

In ansv1:ering the following questions. the ·e defini ti on • wi 11 app ly :

··Parker.. refers to Tommy Parker. Jr.

··Parrac k" re fers to Mary ·1.trtha Parrack. Deceased.

--33 9 J\cre.s .. refers to tv,;o tracts or real property. comprised of 69 .00 acres and 264.90

acres. in the \Vest Richards on Surn:y in Madison County. Texas. as described in a l 983 Gift

Deed from J.A. Baker and \\/illic lee Baker to Linda \Vt:stmorelant.l. Trustee, re ' ordcd in

Volume 399. Page 363 . of the De1;d Re<..:ords of Madison County Texas.

"'20 11 Execuli \'e Rights D ed .. refers to the Special \Varranty Det:d dated August 18.

2011. from Tom Parker. Jr. to far\' Yla11ha Parker Parrac k. recorded in Volu me l l 04. Page • - 248, Official Records of Madison Coumy. Te ·a

1024 Questio n No. 1

Did l\fary Manha Parrac k commit statutory fraud against Tommy Park~r. Jr. in regard

co the transaction represented by the :\ ugust 18. 201 1. . pccial Warranty Deed?

Fraud occurs when -

1. then: is a false representation of a past or ex isling material fac t. and

2. the representation i • made to a person for the pu rpos~ of inducing thar person to enter into a contract. ,m

3. the represent.mion is rel ied upon by that person in i::nti::ring inw that contra ' t.

Answer ··Yes·· or·· 1o:·

Ansv,·cr: t\f• Q

1025 If you unanimously an "'"ered •·Yes" to Question '.\fo. 1, then an wcr the following question . Othenvisc. do not answer the following que tion.

Question No. 2

Did i\.fary 'larlha Parra k ha Y e act ual U\.1,·areness of th-= falsi ty of lhe reprc:scnrati on you

fo und to be fraud in ()ucst ion I'?

Actual a\\. arencss may be infr rr~d \Vhere ohj ct ive mani festations in di 'ate a person

acted with actual awareness.

A nsvvf::r ··Yes" or "N o:·

A nS \'

1026 If you unanimously an swered "Yes '' to Question No. 1, then an wer the following que rion. Otber·wise, do not answer the following question.

Que t.ion l\·o. 3

Was Marv \,lartha PaiTack •s a<.:tion that vou found to be fraud excused hy \\·ai ver bv ~ ~ ~ ~

Tommy Parker. Jr.?

Waiver ts an intenti onal surrender of a kno\vn right or intcntlonal conduct inconslstent

with claiming the ri ght.

Answer .. Yes" or .. t\o:·

Arts\ver: - - -- --

1027 If you answered Question \To. 1 "Yes," and you answered Qucsti

Question ·o. .f

What sum of money. if any. if pai

Tommy Parker. Jr .. for ~fary Marlha Parrnck ·s fraud "

Answer \\·ith an amount in doll ars and cents. Do not c msider in your ansm:r any amounts

you may have awarded. if any. in re -ponse to Quc:stion ~ os. 8. l 2. l 6. 21 or 25.

Answer: - - - - -- -

1028 Que tioa 5

Did Mary Martha Parra ·k commit fraud against Tomm: Parker. Jr. in regard o the

transaction represented by th~ August i 8. 20 11. Special \Varranty Deed ?

Fraud occur \Vhen

I. a party foil. to disc los ' a material fac.:t within thi.:? knowledge or th at party. and

2. the party knows that the ot her party is ignoranL or the fa<.:t and does not ha\'c an equal opportunity to discover th~ truth. and

J. the party intends to induct? the other party w take ome ac ti on bv faillng lO discl ose the fa<.: t. and

4. the other party suffors injury as a result or auing ,vithout knowledge of th e undisc losed fac t.

Ansv,;er: NO

1029 If you anslHrcd "Yes" to Question l\o. 5, then answer the following question. Otbern,ise, do not an wer the follol\ ing ques tion.

Oucstion No. 6

By \\'hat date sho ul d Tommy Parker, Jr.. in the exercise of rl:!asonable di ligence ha\·e

discovered the fraud of rv·fan · fo11ha Parrack in regard to the transac ti on repre ·ented b~ the

August 18. 20 11. Spec:ial ·warranty Deed'?

Ansv,·er \vith a date in th~ blank be]O\V .

.' nsv., er: - - -- - -

1030 If you answered '• Ye ,, to Question ·o. 5, then answer the followin g question. Otherwise, do not an wcr the follo\>Ying que tion.

Que tion No. 7

Was \.1arv., \fart ha Parrac k· s fra ud excus~d bv .., v,;aiver bv . . Tommv . .- Parker. Jr.?

Wai ver is an intt:ntional ·um:nJa of a known right or intentional condu.;t tm:onsi:l 'nt with

claiming the right.

Answer:

ll l - . - I 1 . 0 •1 l If you answered "Yes" to Que-~tion No. 5 "Ye,"' and you an ·wcrc~d ··~o" to Question 7, then an wer the following question. Othenvi.se do not answer the following question.

Que tion No. 8

\.\..- hat sum of money. if any. if paid no\v in cash. ,\Ottld fair ly and rea onably compen ate

Tommy Parker. Jr. . !'or \ fary \ fartha Parrac:k·s fraud?

A.11s\ver with an amoun t in dollars and cenrs. Do no con ider in your answer any a.inounts

you may ha\'e awarded. if any. in r~sport~c to Que tion Kos. 4. 12. 16. :2 l or 25 .

Ans\\ i:r:

1032 Question No. 9

Did fVlary tvlartha Parrnck make a negligent mi represc tati on l)n \\ hich Tommy

Parker. Jr. ju citiahly rel ied in regard to the transaccion repre ented h} che Augusl 18. 20 11.

Special Warranty Deed?

Neg ligent misrepresentation ocrnr:s when -

1. a party makes a rcprt::sentation in the course of lfr· bu ·ine · or in a transaction in \Vhich he has a pt::-:uniary interest. and

2. the representation supplie false information for Lhe guidance of others in their husincss. and

3. the party making the representation did not exercise reasonable care or competence in obtaining or communicating the information.

Answer .. y cs" or·· o.

/\nsv,:er: ___t} Q _ ..___ _ _

1033 If you answere

Ques tion No. 10

By what date should Tornm) Parker. Jr .. in the exercise of reasonable diligence have

discovered tvlary Martha Parra ·k ·s neg ligent misrepresentalion '?

Answer \vith a date in the blan • belO\\·.

AnS\.VCr: - - - --

1034 If you answered .. Yes" to Que tion o. 9, then an wcr the following question. OthenYise, do not answer the foJJo\,·in g que tioo.

Que tioa No. 11

Was Mary l\fartha Parrack"s negligent misrepresentation excused by \\·aiver by Tommy

Parker. Jr.?

Wai\'er is an intentional surrender of a knO\vn right or intentional conduct incon ·isterlt

with claiming the right.

An ·wer: - - - -- - --

1035 If you ans,,·ered "\'es" to Question No. 9, and you an "wercd '"'lo" to Question 11, then answer the folh>"wing que tion . Othenvise do not answer the folio-wing question.

Question No. 12

\.\'ha! sum of money. if an y. ii. paid no \v in cash. woul d fai rl y and rca onably compensati::

Tommy Park er. Jr .. for Mary \ fartha Panack' s negli gent mi srepresentation?

Answer with an amoun t in doll ars and cents. Do not consi c.kr in your answer an y amounc.

yo u may have awarded. if any . in response to Question I os. 4. 8. 16. 21 or 25.

Ans\vcr: - - - -- - - -- -

1036 Question . o. 13

Did Tommy Parker. Jr., substamially rely to his detriment on !Vlary J\.·lartha Parrac , ·

promise. if any. in r gard to the trans::tction rcpresemed by the Augu: t 18. :o 11. Special Warranty

Deed. and \Va · thi s reliance foreseeable by tvlary fartha Parrack '?

Answer: __ l ,._,,Q. , ___ _ _ ,· _ \]

1037 If you an wercd •• 'f e -·'' to Question No. 13, then an wer the following question. Otherwise, do not ans,,·er the following que tion.

Question . o. 14

Bv. \Vh at date should Tommv Park r. Jr .. in the --xerci se of reasonab le dil i!!ence ~ '-'" have

discovered the injury caused lo him . if any. by the promise made by ·fory .\fartha Parrac k in

regard to the. ugust I 8. 2011. Spec·ial Warranty Deed?

Answer \Vith a date in the blank hc lmv.

Answer: - -- - - - -

1038 If you an!Swered ''Ye ~; to Qu e!i ti on No. 13, then ans\\er the following question. Othenvisc, do not an swer the folJo·wing ques tion.

Wa5 om my Parkt:r. Jr. ·s rel iance on a pr mise made by rvtary ivfartha Parrack in r"gard

lO the transaction represemed hy the August l 8. 2011. Special \Varran ty Deed. excused by

wai\·er by Tommy Parker. Jr.?

\\iaivcr is an intentional surrender of a known right or intentional conduct inconsistent

,,vith daiming the right.

Answer ··~{es·· or·· o.

1039 If )' OU an wercd ·'Ye " to Question No. 13, and you answered ;.~o" to Que tion 15, then answer the followin g qu es tion . Otherw is e do not ans\.\er th e following question.

Question No. 16

\Vhat sum of money. if any. if paid now in ca-h. wou ld fa irly and re~sonabl y

com pensat Tommy Parker. Jr. . for 1'v1ary Martha Parrack ·s prom ise?

Ansv,;er \Vith an amount in dol lar and cents. Do not consid--r in your an. wcr any

amounts you may ha\ e awarded. if any. in response to Qu1:stion ?\os. "4 . 8. 12. 2 1 or 25.

An ··wcr: - - -

11'.. ... ... ( \ .... • J ~ Que ti on l\o . 17

Did a rel a ionship of trust and con tidencc exist between !Vlary \fartha Parrac k and

Tommy Parker, Jr. ?

A relationship or crusi and confidence existed if Tommy Parker. Jr. ju. tifiably placed trust and rnnfidencc in Mary ~vlarth~1 Parrack to a t in Tommy Parker. Jr.· · best int rest.

Tommy Parker. Jr.'s subjective trust and feelings alone do not justify transfom1ing arm -length dealings into a re lation ·hip of trust and confidence.

Ansv,:er: Yes

1041 If vou an swe red ""Yes" to Qu estio n No. 17, then ans,...,.er the following question. Otherwise, do not an swer the follo,,'ing question .

Ques tion l\o. 1.8

In regard to the transaction re presented by the August 18. 2011 Special \Varramy Deed,

did rvfary Martha Parrack fa il to comply wi th her fiduciary duty to Tommy Parker. Jr.?

Ilecause a relationship of trust and confidence ex i ·ted between them. on August 18. 20 11. as a fiduciary to Tommy Parker. JL Mary Martha Parrack owed Tommy Parker. Jr. a fiduciary duty. To pro,·e she complit:d \-vith her fiduciary

I. the transaction in que ·Lion \Vas fair and equitabl{: w Tommy Parker. Jr.: and

2. \fary Vfanha Pamu:k made reasonable use of the confidence that Tommy Parker. Jr. placed in her: and

3. ~fary Martha Parrack acted in the utmost good faith and exercised the most scrupulous honesty toward Tommy Parker. Jr.: and

4. I'vlary Martha Parrac k placed the interests of Tommy Parker. Jr. before hc-r own and did not us~ the ad,·a11tage of her posi tion to gain any benetlt for herself at the expense or Tommy Park.eL Jr.: and

5. Mary Martha Parrack rully and fair ly disclosed all impo rtant informati on to Tommy Parker~ Jr. concerning the transact ion.

Answer "Yes" or " No."

Answer: N0

1042 If you an swered '"Yes" to Question . o. 18, then an s wer the following question. Othcrn'ise, do not an s,;n r the folJo\,·ing question.

Question No. 19

BY \vhat dat e should Tomm, . . Parker. Jr .. in th e exercise of reasonable diligence ..... have

di scovered :\.far:; Martha Parrack · s fai Iure to comply wi th her !iduciary duty'?

Ansv,:er wi th a date in the blank be low.

1043 If you answered '" Yes" to Question . o. 18, then answer the foJJowing question. OthenYise, do not answer rhe following que tion.

Question No. 20

\Vas !vtary lvfanha Purrack ·s failure to c:omply with her fiduc iary duty e;-;cused by

\va iYer by Tommy Parker. Jr.?

Wai\'er is an intentiona l . urr·~nder of a knO\vn right or intentional conduct incon ·istem

-.; - with daiming the ri2ht.

Answer ··Yes .. or --~o ...

Answer: - - - ~- --

1044 If you answered "Ye •• to Question No. 18 and you ansv.ered •·~0 '1 to Question 20, then anrn:er the follo·wing que tion. Otherwi e, do not aos\Yer the following question.

Que tion No. 21

What sum of money. if any. it. paid no,v in cash. v,-ould fa irly and reasonably compensate

Tommy Parker. Jr. . fo r Mary f'v'lartha Parrack ·s fraud ?

Answ-er \\·ith an amount in doll ars and c:en ts. Do not consi der in your ans\ver any am oun ts

you may have awarded. if any . in r~spo m, ' to Questi on Nos. 4. 8. 12. 16. and 25.

An s,ve r: - -- - -- -

fl• ·· C. • ♦''l " Que tion !\: o. 22

\Vas \fary \fartha Parrack L njustly enriched as a re. ult of to the transaction repr

hy the 201 I Executive Rights Deed'!

Unjust enrichment occurs when -

I. a per. on has wrong!'ully s ' cured a benefit or ha· passiv-ly received one which it would be unconscionable to retain. or

'1 a person obtains a bcnefir from another by fraud. c.lurcss. or the taking of an undue advantage.

N0 Answer: - - ~- - -- -

1046 If you an ·wered "Yes~ to Qu e tion ~o . 22 , then an swer th e foll owing qu es ti on. Othen\·ise, do not a nswer the foll ow in g quc ·tion.

Question No. 23

. . Parker. Jr.. in thee 'ercisc of reasonable diligem:e Bv \-vhat date should Tomm\· ... havt:

di ·covered that \-1ary fartha Panack was unjustly enriched a a result or the Apri l 18. :20 I l.

An \Ver \\'ith a date tn th~ blank h~low.

1047 If vou an wcred ·•Yes" to Question 'No. 22 , then answer the following question. Othern:ise do not answer the foJJm"'·ing que ti.on.

Que tion ~No. 24

Was tvfary Ylartha Parrack·s unj ust enrichment as a resul t of the Augu. t 18. 20 l I .

. pecial Warranty Deed excused by waiver by Tommy Parker. Jr.'!

'Naiver is an intentional surr12ndcr of a known right or intentional conduct inconsisknt

1,vith claiming the right.

Answer ··Yes .. or "No:·

,:\ ns, ver: - - - -- - -

1048 If you answered "Ye. " to Question ·o. 22, and ,·ou an wcrcd .. ['l;o" to Que tion 2.i , then answer th e folJowin g qu estion. Othern1 ise do not answer th e followin g que:tion.

Question No. 25

\.Vhal sum of money. if any. if paid no\.V in cash. \Vould fairly and reasonab ly restore in

Tommy Parker. Jr .. th~ amount by \\hich fary l\fartha Parrack was unj ustly enricht:d'?

Answe r ,vith an amount in dollars and cents. Do not cons td~r in your answe r any amounts

you may have awarded. if any. in response to Qut:stion '.'Jos. 4. 8. I~. 16. and 21.

Ans\ver: - -- -- - - - --

1049 Question ~o . 26

Did Parra~k Ranch. Ltd. hold the 339 Acres in peaceable and adverse possession for a period of at least five year· bd'orc August ?.7. 10 18?

··Peaceable possession .. means posses ion of rea l property that is continuous and is not interrupted by an adverse. uit to recover the property.

··Adverse pos ssion .. means an actual and visib le appropnat1on of rea l property. commenced and continued under a claim or right that i • inconsistent with and hostil e to the claim of another perso n.

··Claim of right •• means an intention to claim the real property as one· s own to the xclusion of all others.

A claim of righ i. hostile only if either (I) il provides notict:-. either ac wal or hy implication. of a hostile claim of right to the true O\vner: or (2) the acts performed on the real property. and the use made of the real property. wer of · uch a nature and character that \.\'Ould reasonably notify the true own r of lhe real property that a hosti le claim is being asserted to the property.

To cs1abli ·h peaceable and adverse posse·sion. a claimant must also have -

I. cult ivated. used. or t:njl">ycd the property; 2. paid the c1pp\icablc taxes on the property: and 3. claimed th' property under a duly n:gisterrd deed.

Peaceable and ad\'erse possession by a person may be establi shed by adding together the period of possession of the prior holder(s) of title.

The possession by an owner of an inter st in property wi ll he presumed to be his right a a co-owner. The pos ·es · ion. to be advt:r ·e to the other owner. must be of SLH.:h acts as to amount lO an ou ter of the mher O\vner. and must be o such an unequi\'ocal nature and so distinctly ho tile to the other" rig hts thal the intention to claim the property is clear an d unmistakable.

Answer "'Yes.. or·· o:·

Answer: _ h..__e. ...c, · _s-_ __

1050 If vou answered Question l'fo. 26 "Ye ," then answer the following question. Othen"·ise do not an:wer the follo""ing question.

Que. tion No. 2i

What is a reasonable fee for the necessary ser\'ices of ~fary ~fart ha Parrnc.:k •s attorn y

for the adverse posses~ion claim?

A reasonable fee is the reasonable hours work d. and to be worked. multiplied by a

reasonable hourly rale for that \\·ork .

Do nol in ·lude kes lhat do not relate to the daim of adverse possession.

ns\vcr with an amount in d1)llars and cems for each of the following:

I. r or represemat ion in rhc trial court. 0 Answer: s_ ldl\) 000 t

PaEc _; I o f 33 CAUSE NO. 18-16110

TO:\·lMY PARKER, .JR. § IN THE DISTRICT COL RT § V. § t2 1h JUDICIAL DISTRICT § tVIARY MARTHA PARRACK § MADISON COUNTY, TEXAS

CERTIFICATE

We. the jury. ha\'c ans,vered the above and foregoi ng questions a.s herein indicated. and

herev.:ith return same lO the co urt as our verdict.

(To be signed by the presiding j uror if un animous)

Printed Name of Presi ding Juro r

(To be signed by those rendering the verdict if the jury is not unanimous.)

Jurors' Printed Na.mes

1052 Jurors' Signatures Jurors' Printed Names

8t (A_ '£J '-i - - -- -----;

Mt-UAS - I - -- - - - - '

~ ~ ~ ~ ~- - - - - -+-· faurU1 OwtJJa - -- = .. ;;;...__ __ __ _ YtJ ;(_, hti, / C- o/' / c i ~ ,.,,,....,,=---- t - - -- - I

. igncd on Novembt:r 1.l_. :2024 .

FILED At /'S-5" O'C LOCK,LM NOV l 3 2024 ("" , ~, I Q - \ ...,i{-1, v ,:JJ- ~ •--'~ Rhonda Savage. District C1erk 12\h 1278th Judicial District Court. ad,son Co,snty, Texas l;-; ..~ - - - -- - f"l 'K'l,ty

1053 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Greg White on behalf of Greg White Bar No. 21329050 greg.white@texapplaw.com Envelope ID: 106972581 Filing Code Description: Brief Requesting Oral Argument Filing Description: Brief Requesting Oral Argument Status as of 10/17/2025 11:18 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

William Carter 3932800 wfcarterlaw@gmail.com 10/17/2025 10:43:04 AM SENT

Steven White 21329050 gwhite@grayreed.com 10/17/2025 10:43:04 AM SENT

Jay Goss 8222600 jgoss@bruchez.com 10/17/2025 10:43:04 AM SENT

Joseph Briers 24082730 jbriers@bruchez.com 10/17/2025 10:43:04 AM SENT

Laura Upchurch upchurch@upchurchyates.com 10/17/2025 10:43:04 AM SENT