                                                                                        ACCEPTED
                                                                                    06-14-00100-CV
                                                                         SIXTH COURT OF APPEALS
                                                                               TEXARKANA, TEXAS
                                                                               8/17/2015 8:17:28 AM
                                                                                   DEBBIE AUTREY
                                                                                             CLERK

                            NO. 06-14-00100-CV

                    IN THE COURT OF APPEALS              FILED IN
                                                  6th COURT OF APPEALS
                FOR THE SIXTH DISTRICT OF TEXAS TEXARKANA, TEXAS
_________________________________________________________________
                                                  8/17/2015 8:17:28 AM
                                                                DEBBIE AUTREY
                                                                   Clerk
                             MARK MUELLER
                                Appellant

                                      v.

      JAMES H. DAVIS, INDIVIDUALLY AND D/B/A JD MINERALS
                          AND JDMI, LLC
                             Appellees

                 Appeal from the 71st Judicial District Court
                         Of Harrison County, Texas
                            Cause No. 11-0858
                   The Honorable Brad Morin Presiding
_____________________________________________________________________________

                          APPELLEES’ REPLY BRIEF


                    ORAL ARGUMENT NOT REQUESTED

     Douglas D. McLallen, Sr.              Marshall C. Wood
     State Bar No. 00788025                State Bar No. 00797690
     Anderson, Lehrman, Barre,             Norton & Wood, LLP
        and Maraist LLP                    315 Main Street
     Gaslight Square                       Post Office Box 1808
     1001 Third St, Suite 1                Texarkana, Texas 75504
     Corpus Christi, TX 78404              Telephone: (903) 823-1321
     Telephone: 361-884-4981               Facsimile: (903) 823-1325
     Facsimile: 361-884-2822               Email: marshall@nortonandwood.com
     Email: dmclallen@albmlaw.com


                      ATTORNEYS FOR APPELLEES
                  IDENTITY OF PARTIES AND COUNSEL

Pursuant to the Texas rule of Appellate Procedure 38, Appellee submits the following
list of the parties, their designations, and their counsel in this appeal.


Appellant:                      Mark Mueller

Counsel for Appellant:          Mr. Bob Whitehurst
                                State Bar No. 21358100
                                Whitehurst & Whitehurst
                                5380 Old Bullard Road, Suite 600, #363
                                Tyler, Texas 75703

Appellees:                      James H. Davis, Individually and d/b/a JD Minerals
                                and JDMI, LLC

Counsel for Appellees:          Mr. Douglas D. McLallen, Sr.
                                State Bar No. 00788025
                                ANDERSON, LEHRMAN, BARRE
                                 & MARAIST LLP
                                Gaslight Square
                                1001 Third Street, Suite 1
                                Corpus Christi, TX 78404
                                Telephone: 361-884-4981
                                Facsimile: 361-884-2822
                                Email: dmclallen@albmlaw.com

                                Mr. Marshall C. Wood
                                State Bar No. 00797690
                                Norton & Wood, LLP
                                315 Main Street
                                Post Office Box 1808
                                Texarkana, Texas 75504
                                Telephone: (903) 823-1321
                                Facsimile: (903) 823-1325
                                Email: marshall@nortonandwood.com

                                         i
                                     TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT ON ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

        I.       Are the “county-wide” or blanket property descriptions at issue valid
                 under the statute of frauds (or as an exception to the statute of frauds)
                 and unambiguous where the Grantor conveys all his property
                 in a defined geographic area?

        II.      If the answer to Issue No. I is in the affirmative, do the 1991 deeds at
                 issue conform to the requirements of a valid blanket and
                 unambiguous conveyance?

        III.     If the answer to issue No. I and No. II are in the affirmative, can parol
                 evidence be considered to create an ambiguity in an unambiguous
                 blanket conveyance?

        IV.      Do the deeds in question contain blanket (“county-wide”) property
                 descriptions, specific survey-wide descriptions and a separate and
                 distinct habendum or Mother Hubbard clause?

        V.       If the answer to issue No. IV is in the affirmative, does the record
                 demonstrate repugnance between the general (“county-wide”) and
                 specific (Survey-wide) grants?

        VI.      Does Appellant, who is not in privity with Appellee, have standing to
                 challenge the deeds at issue based on alleged misconduct or lack of

                                                      ii
                  consideration?

         VII. Do any of Appellant’s authorities challenge or limit the precedent
              upholding county-wide/blanket conveyances cited?

                  A.       Do some of the authorities cited by Appellant, in fact, support
                           the compliance of county-wide/blanket property description
                           with the statute of frauds?

         VIII. Was Notice of The Contents of the Deeds Imputed to Appellant Upon
               Filing of the Deeds in 1991 Pursuant to Texas Property Code
               §13.002?

         IX.      Sanctions - Frivolous Appeal – Based on Appellant’s disregard of the
                  unrefuted and contested authorities supporting Appellees’ position on
                  the validity of the deeds, is Appellant’s appeal frivolous because
                  Appellant could have no reasonable grounds to believe that the trial
                  court’s judgment would be reversed?

         X.       If the answer to Issue No. IX is in the affirmative, what are the “just
                  damages” to be awarded Appellees in defending this frivolous appeal
                  under Rule 45?

STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

         I.       The “county-wide” or blanket property descriptions at issue are valid
                  under the statute of frauds (or as an exception to the statute of frauds)
                  and unambiguous where the Grantor conveys all his property
                  in a defined geographic area.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

         II.      The answer to Issue No. I should be in the affirmative. The 1991
                  deeds at issue conform to the requirements of a valid blanket and
                  unambiguous conveyance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

                                                         iii
III.     Parol evidence cannot be considered to create an ambiguity in an
         unambiguous blanket conveyance as a matter of law... . . . . . . . . . . 26

IV.      The deeds in question contain blanket (“county-wide”) property
         descriptions, specific survey-wide descriptions and a separate and
         distinct habendum or Mother Hubbard clause. Appellees claims
         under the blanket descriptions, not the habendum clause. . . . . . . . . 35

V.       The record does not demonstrate repugnance between the general
         (“county-wide”) and specific (survey-wide) grants. Therefore, the
         general grant enlarges the specific.. . . . . . . . . . . . . . . . . . . . . . . . . . 41

VI.      Appellant, who is not in privity with Appellees, has no standing to
         challenge the deeds at issue based on alleged misconduct or lack of
         consideration.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

VII. None of Appellant’s authorities challenge or limit the precedent
     upholding county-wide/blanket conveyances cited by Appellees.. . 49

         A.       Several of the authorities cited by Appellant, in fact, support
                  the compliance of county-wide/blanket property description
                  with the statute of frauds.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

VIII. Appellant was on Notice of the Entire Contents of the Deeds Upon
      Filing of the Deeds in 1991 Pursuant to Texas Property Code
      §13.002... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

IX.      Sanctions - Frivolous Appeal – Based on Appellant’s disregard of the
         unrefuted and contested authorities supporting Appellees’ position on
         the validity of the deeds, Appellant’s appeal frivolous because
         Appellant could have no reasonable grounds to believe that the trial
         court’s judgment would be reversed.. . . . . . . . . . . . . . . . . . . . . . . . . 62

X.       The “just damages” to be awarded Appellees in defending this
         frivolous appeal under Rule 45 should be the attorneys fees and costs
         incurred in responding to the appeal.. . . . . . . . . . . . . . . . . . . . . . . . . 67



                                                 iv
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

         Tab 1 – Affidavit of Marshall Wood

         Tab 2 – Affidavit of Douglas D. McLallen




                                                            v
                                      TABLE OF AUTHORITIES

Cases

AIC Mgmt. v. Crews, 246 S.W.3d 640 (Tex. 2008). . . . . . . . . . . . . . . . . . . . . . . . 57

Altman v. Blake, 712 S.W.2d 117 (Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Baker v. Smith, 407 S.W.2d 4 (Tex. Civ. App. – Fort Worth 1966, no writ). . . . . 22

Berger v. Berger, 578 S.W.2d 547
  (Tex.Civ.App.Houston [1st Dist.] 1979, no writ). . . . . . . . . . . . . . . . . . . . . . . 47

Best Investment Co. v. Francis, 453 S.W.2d 893
  (Tex. Civ. App. – Eastland 1970, writ ref’d, n.r.e.). . . . . . . . . . . . . . . . 17, 21, 29

Brandt v. West, 892 S.W.2d 56
  (Tex. App. – Houston [1st Dist] 1994, writ denied). . . . . . . . . . . . . . . . . . . . . 64

Brigham v. Thompson, 12 Tex. Civ. App. 562, 34 S.W.2d 358
   (Tx.App. – Dallas 1896).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 29

Bullock v. Sage Energy Co., 728 S.W.2d 465
   (Tex. App. – Austin 1987, writ ref’d n.r.e). . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Burgess v. Sylvester, 143 Tex. 25, 28, 182 S.W.2d 358 (1944). . . . . . . . . . . . . . . 27

Center Point Energy Houston Elec., L.L.P. v. Old TJC Co., 177 S.W.3d 425
  (Tex. App. Houston [1st Dist.] 2005, pet. denied).. . . . . . . . . . . . . . . . . . . . . . 31

City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515
   (Tex. 1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699
   (Tex. App. - Fort Worth 2008, pet. dism'd). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Coe v. Chesapeake Exploration, L.L.C., 695 F.3d 311

                                                           vi
    (5th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20, 23, 26

Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909
  (Tex. 2013), reh'g denied (Feb. 14, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Compass Expl., Inc. v. B-E Drilling Co., 60 S.W.3d 273
  (Tex. App. – Waco 2001, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Cook v. Smith, 107 Tex. 119, 174 S.W. 1094 (1915). . . . . . . . . . . . . . . . . . . . . . . 25

Cosgrove v. Cade, 14-0346, 2015 WL 3976719 (Tex. June 26, 2015). . . . . . . 2, 62

Cullers v. Platt, 81 Tex. 258 (1891). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Davis v. Campbell, 524 S.W.2d 790 (Tex. Civ. App. - Dallas 1975, no writ). . . . 48

Dixon v. Amoco Prod. Co., 150 S.W.3d 191
   (Tex. App.—Tyler 2004, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Douglass v. Texas-Canadian Oil Corp., 141 Tex. 506, 174 S.W.2d 730 (1943). 53

Eland Energy, Inc. v. Rowden Oil & Gas, Inc., 914 S.W.2d 179
   (Tex. App. - San Antonio 1995, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . 48

Fears v. Texas Bank, 247 S.W.3d 729
  (Tex. App.– Texarkana 2008, pet. den’d). . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53

Finkelstein v. Carpenter, 795 S.W.2d 897
   (Tex. App.—Beaumont 1990, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Garcia v. Garcia, 04-05-00538-CV, 2006 WL 1684742
  (Tex. App.—San Antonio June 21, 2006, pet. denied). . . . . . . . . . . . . . . . 28, 44

Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848 (1946). . . . . . . . . . . . . . . . . . . . . 20

Grohman v. Kahlig, 318 S.W.3d 882 (Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . 27



                                                       vii
Gulf Production Co. v. Spear, 125 Tex. 560, 84 S.W.2d 452
   (Comm'n App. 1935). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Hancock v. Butler, 21 Tex. 804 (1858). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Harlan v. Vetter, 732 S.W.2d 390
  (Tex. App. – Eastland 1987, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . 17, 18

Hicks v. Pilgrim Poultry, G.P., 299 S.W.3d 249
   (Tex. App.—Texarkana 2009, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91 (Tex. 1999). . . . . . . . . . . . . . . . . 27

Holloway’s Unknown Heirs v. Whatley, 104 S.W.2d 646
  (Tex. Civ. App. – Beaumont 1937) aff’d, 137 Tex 608 (1939). . . . . . . . . . 20, 42

Hunt v. CIT Grp./ Consumer Fin., Inc., No. 03-09-00046-CV, 2010 WL 1508082,
  (Tex. App. - Austin Apr. 15, 2010, pet. denied) (mem. op.). . . . . . . . . . . . 69, 70

In re Cornerstone E&P Company, L.P., 436 B.R. 830, 843 supplemented, 436
   B.R. 865 (Bankr. N.D. Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . 18, 22, 23, 24, 26

In re J.G.W., 54 S.W.3d 826 (Tex. App.—Texarkana 2001, no pet.). . . . . . . . . . 16

J. Hiram Moore, Ltd. v. Greer, 172 S.W.3d 609 (Tex. 2005). . . . . . . 14, 44, 45, 46

Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004). . . . . . . . . . . 16

Jones v. Carver, 59 Tex. 293 (1883).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 54

Jones v. Colle, 727 S.W.2d 262 (Tex. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . 41, 58

Jones v. Kelly, 614 S.W.2d 95 (Tex. l981). . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53

Katz v. Bakke, 265 S.W.2d 686
  (Tex. Civ. App.—San Antonio 1954, writ ref'd). . . . . . . . . 28, 31, 34, 40, 42, 44



                                                      viii
Keith v. Solis, 256 S.W.3d 912 (Tex. App. – Dallas 2008, no pet.). . . . . . . . . . . . 66

Lauchheimer v. Saunders, 65 S.W. 500 (1901, no writ).. . . . . . . . . . . . . . . . . 59, 60

Lee v. Aurora Loan Services, LLC, No. 06-08-00077-CV, 2009 WL 167067
   (Tex. App.—Texarkana Jan. 27, 2009, no pet.).. . . . . . . . . . . . . . . . . . . . . 66, 69

Little v. Texas Dept. of Criminal Justice, 148 S.W.3d 374 (Tex. 2004). . . . . . . . 16

Luckel v. White, 819 S.W.2d 459 (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . 26, 30, 31

Madera Prod. Co. v. Atlantic Richfield Co., 107 S.W.3d 652
  (Tex. App. - Texarkana 2003, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980 (1948). . . . . . . . . . . . . . . 20, 51, 52

May v. Buck, 375 S.W.3d 568 (Tex. App.—Dallas 2012, no pet.).. . . . . . . . . . . . 27

Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393
  (Tex. App. – San Antonio 1999, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Miles v. Lee Anderson Co., 339 S.W.3d 738
  (Tex. App. Houston [1st Dist.] 2011, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . 16

Morrow v. Shotwell, 477 S.W.2d 538 (Tex. 1972). . . . . . . . . . . . . . . . . . . . . . 20, 57

MPH Prod. Co., Inc. v. Smith, 06-11-00085-CV, 2012 WL 1813467
  (Tex. App.—Texarkana May 18, 2012, no pet.). . . . . . . . . . . . . . . . . . . . . . . . 30

Myers v. Gulf Coast Minerals Mgmt. Corp., 361 S.W.2d 193 (Tex. 1962). . . . . . 26

Nobles v. Marcus, 533 S.W.2d at 927 (Tex. 1976).. . . . . . . . . . . . . . . . . . . . . . . . 48

O’Herin v. Neal, 56 S.W.2d 1105 (Tex.Civ.App. – Texarkana, writ ref’d).. . 33, 35

Owen v. Jim Allee Imps., Inc., 380 S.W.3d 276
  (Tex. App. – Dallas 2012, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 68

                                                    ix
Patterson v. Twaddell, 301 S.W.2d 680
  (Tex. Civ. App. – Amarillo 1957, writ ref’d n.r.e.). . . . . . . . . . . . . . . 17, 18, 29

Peacock v. Schroeder, 846 S.W.2d 905
  (Tex. App.—San Antonio 1993, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008). . . . . . . . . . . . . . . . . . . . . . . . 32

Pfeiffer v. Lindsay, 66 Tex. 123, 124, 1 S.W. 264 (1886). . . . . . . . . . . . . 20, 54, 55

Pick v. Bartel, 659 S.W. 2d 636 (Tex. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Pickett v Bishop, 148 Tex. 207, 223 S.W.2d 222 (Tex. 1949). . . . . . . . . . . . . . . . 19

Progressive County Mut. Ins. Co. v. Kelley, 284 S.W.3d 805 (Tex. 2009). . . . . . 16

Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003). . . . . . . . 16

Ragsdale v. Mays, 65 Tex. 255 (1886). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Ray v. Elder, 2007 WL 1532704 (Tex. App. – Tyler 2007, no writ). . . . . . . . 18, 22

Remuda Oil Co. v. Wilson, 264 S.W.2d 192
  (Tex. Civ. App. – Galveston 1954, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . 34, 35

Republic National Bank of Dallas v. Stetson, 390 S.W.2d 257 (Tex. 1965).. . . . 52

Riggins v. Hill, - S.W.3d -, 2015 WL 293270
   (Tex. App. - Houston [14th Dist] Jan. 22, 2015, no pet.). . . . . . . . . . . . . . 69, 70

Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744 (Comm'n App. 1937,
  opinion adopted).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24

Skyline Furniture, Inc. v. Gifford, 433 S.W.2d 950
   (Tex. Civ. App.—El Paso 1968, no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Smith v. Allison, 157 Tex. 220, 301 S.W.2d 608(1956). . . . . . . . . . . . . . . 46, 59, 60

                                                        x
Smith v. Brown, 51 S.W.3d 376
  (Tex. App. - Houston [1st Dist.] 2001, pet. denied). . . . . . . . . . . . . . . . . . 64, 70

Smith v. Carter, 45 S.W.2d 398
  (Tex. Civ. App. - Texarkana 1931, writ dism'd). . . . . . . . . . . . . . . . . . . . . . . . . 49

Smith v. Marshall B. Brown, P.C., 51 S.W.3d 376
  (Tex. App.--Houston [1st Dist.] 2001, pet. denied). . . . . . . . . . . . . . . . . . . . . . 63

Smith v. Sorrelle, 26 Tex. 353, 87 S.W.2d 703 (1935).. . . . . . . . . . . . . . . 20, 55, 56

Smith v. Westall, 76 Tex. 509 (Tex. 1890). . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 21

Solares v. Solares, 232 S.W.3d 873 (Tex. App. – Dallas 2007, no pet.). . . . . . . . 66

Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154 (Tex. 1994).. . . . . . . . . . 27

Stekoll Petroleum Co. v. Hamilton, 152 Tex. 182, 255 S.W.2d 187 (1953). . . . . 56

Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447 (Comm'n App. 1935). 28, 61

Sun Oil Co. v. Burns, 125 Tex. 549, 551, 84 S.W.2d 442, 443
   (Tex. Comm'n App. 1935).. . . . . . . . . . . . . . . . . . . . . . . . . 23, 24, 25, 28, 43, 61

Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993). . . . . 48

Texas Consolidated Oils v. Bartels, 270 S.W.2d 708
   (Tex. Civ. App. – Eastland 1954, writ ref’d). . . . . . . . . . . . . . . 17-20, 24, 40, 52

Tex. State Taekwondo Ass’n v. Lone Star State Taekwondo Ass’n, No. 08-01-
00403-CV, 2002 WL 1874852 at *3 (Tex. App. – El Paso 2002, no pet.). . . . . . 69

Tidwell v. Cheshier, 153 Tex. 194, 265 S.W.2d 568 (1954). . . . . . . . . . . . . . . . . 57

Tittizer v. Union Gas Corp., 171 S.W.3d 857 (Tex. 2005).. . . . . . . . . . . . . . . . . . 16




                                                 xi
Trahan v. Mettlen, 428 S.W.3d 905 (Tex. App- Texarkana 2014, no pet.). . . . 2, 62

U.S. Enterprises, Inc. v. Dauley, 535 S.W.2d 623 (Tex. 1976). . . . . . 18, 19, 20, 50

Wallingford v. Trinity Universal Ins. Co., 253 S.W.3d 720
  (Tex. App. – Amarillo 2007, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Westwind Exploration, Inc. v. Homestate Sav. Ass'n, 696 S.W.2d 378
  (Tex. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Wiggins v. Cade, 313 S.W.3d 468 (Tex. App.—Tyler 2010, pet. denied). . . . . . . . 27

Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (Tex. 1945). . 20, 21, 34, 35, 50, 51

Windsor v. Loyd, 191 S.W.2d 521 (Tex. App. – Texarkana 1945, writ ref’d). . . . 60

Witt v. Harlan, 66 Tex. 660; 2 S.W. 41 (Tex. 1886). . . . . . . . . . . . . . . . . . . . 18, 29

Statutes

Texas. Bus. & Com. Code § 26.01-26.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. Civ. Prac. & Rem. Code §12.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12, 15

Tex. Civ. Prac & Rem. Code §37.001-011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Tex. Prop. Code §5.151.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tex. Prop. Code §13.002.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 15, 19, 61, 62

Tex. R. App. P. 45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 62, 66-70

Secondary Sources

4 Tex. Prac., Land Titles And Title Examination § 15.36 - Validity of blanket
descriptions of land (3d ed.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29



                                                          xii
55 Tex. Jur. 3d Oil and Gas § 164 - Description of property. . . . . . . . . . . . . . . . . 29

Richard F. Brown, Oil, Gas, and Mineral Law, 60 SMU L. Rev. 1189, 1191
(2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

West’s Tex. Forms, Minerals, Oil & Gas (4th ed.) § 1:13 Blanket conveyance of
mineral and royalties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                             xiii
                             STATEMENT OF THE CASE

1.     Appellees were conveyed all the mineral interests owned in Harrison County,

Texas by each of Appellant Mark Mueller’s purported predecessors in interest (Mills

and Cope) in 1991. (CR 1826-1827 and CR 1828-1829). Appellant alleged in the

trial court that the 1991Mills and Cope deeds to Appellees were void for want of a

sufficient property description which satisfies the statute of frauds. The trial court

granted summary judgment upholding the 1991 Mills and Copes deeds to Appellees.

The “blanket” or “county-wide” conveyances1 challenged by Appellant are supported

by overwhelming precedent upholding such conveyances as compliant with the

Statute of Frauds (or sometimes characterized as an exception thereto). Such blanket

descriptions are valid conveyances under the statute of frauds if Grantor conveys all

interests owned by him or her are in a defined geographic area, such as a survey, unit,

county or even state or the United States. This overwhelming precedent remains

wholly unchallenged by Appellant’s Brief. Because the cases upholding the blanket

property description in Appellees’ prior deeds remain wholly unchallenged or

distinguished by Appellant’s Brief, this Court’s inquiry can stop there, as Appellant


       1
         Appellees, relying on the language used by the courts routinely upholding such
conveyances, alternatively refers to the conveyances, which grant all property owned by Grantor
in a defined geographic area as “blanket”, “county-wide”, or “recital of ownership” property
descriptions.


                                         Page 1 of 73
presents no basis in law from the record to challenge the trial court’s summary

judgment rejecting Appellant’s challenge to the deeds from Mills and Cope.

2.    As a stranger to the 1991 deeds between Appellee JD Minerals and Mills and

Cope, Mueller had no standing to challenge the deeds on any ground other than

voidness.

3.    Appellant’s challenge to the 1991 deeds is barred because he took the deeds

with notice of all parts of the unambiguous deeds, which were filed of record in 1991

under Tex. Prop. Code §13.002. See Trahan v. Mettlen, 428 SW 3d 905 (Tex. App-

Texarkana 2014, no pet.) and Cosgrove v. Cade, 14-0346, 2015 WL 3976719 (Tex.

June 26, 2015).

4.    Appellant’s failure to even address or distinguish the voluminous authority

supporting the blanket property descriptions in the 1991deeds should result in a

finding that Appellant could have no reasonable expectation that the trial court’s

judgment will be reversed based on existing law and as a result this appeal is patently

frivolous pursuant to Tex. R. App. P. 45. The Court should order “just damages” to

Appellees as sanctions for filing this frivolous appeal.

5.    Cases addressing conveyances under “catch all” or habendum clauses are not

applicable because the deeds at issue have both a general, blanket granting clause and




                                     Page 2 of 73
a specific granting clause. The deeds are not ambiguous because there is no showing

of a repugnance between the general and specific granting clauses.

                    STATEMENT ON ORAL ARGUMENT

6.    In pages 16-24 of this brief’s argument section, Appellees set out

overwhelming precedent (which is ignored by Appellant) supporting the

unambiguous blanket property descriptions in the deeds at issue, which meet the

requirement for valid blanket property descriptions which enlarge specific grants in

compliance with the statute of frauds. The Court’s analysis can stop there, with its

review of the record essentially confined to the four corners of each 1991 deed, and

the recognition of the unchallenged authorities set forth by Appellees. Assuming the

Court stops there, oral argument would provide little benefit to this case.

7.    Appellees do not believe oral argument would add anything further that would

be of benefit to the Court in deciding the issues presented here on appeal and

therefore waives its right to oral argument pursuant to Texas Rule of Appellate

Procedure 39.1. However, should this Court decide to hold oral argument, Appellees

herein request the opportunity to participate in said oral argument.

                              ISSUES PRESENTED

      I.     The “county-wide” or blanket property descriptions at issue are valid
             under the statute of frauds (or as an exception to the statute of frauds)



                                     Page 3 of 73
       and unambiguous where the Grantor conveys all his property
       in a defined geographic area.

II.    The answer to Issue No. I should be in the affirmative. The 1991 deeds
       at issue conform to the requirements of a valid blanket and unambiguous
       conveyance.

III.   Parol evidence cannot be considered to create an ambiguity in an
       unambiguous blanket conveyance as a matter of law.

IV.    The deeds in question contain blanket (“county-wide”) property
       descriptions, specific survey-wide descriptions and a separate and
       distinct habendum or Mother Hubbard clause. Appellees claims under
       the blanket descriptions, not the habendum clause.

V.     The record does not demonstrate repugnance between the general
       (“county-wide”) and specific (survey-wide) grants. Therefore, the
       general grant enlarges the specific.

VI.    Appellant, who is not in privity with Appellees, has no standing to
       challenge the deeds at issue based on alleged misconduct or lack of
       consideration.

VII. None of Appellant’s authorities challenge or limit the precedent
     upholding county-wide/blanket conveyances cited by Appellees.

       A.    Several of the authorities cited by Appellant, in fact, support the
             compliance of county-wide/blanket property description with the
             statute of frauds.

VIII. Appellant was on Notice of the Entire Contents of the Deeds Upon
      Filing of the Deeds in 1991 Pursuant to Texas Property Code §13.002.

IX.    Sanctions - Frivolous Appeal – Based on Appellant’s disregard of the
       unrefuted and contested authorities supporting Appellees’ position on
       the validity of the deeds, Appellant’s appeal frivolous because Appellant



                               Page 4 of 73
               could have no reasonable grounds to believe that the trial court’s
               judgment would be reversed.

       X.      The “just damages” to be awarded Appellees in defending this frivolous
               appeal under Rule 45 should be the attorneys fees and costs incurred in
               responding to the appeal.

                               PROCEDURAL HISTORY

8.     Appellant filed his lawsuit on October 12, 2011, asserting causes of action

including a suit to quiet title and violations of Section 12.002 of the Texas Civil

Practice & Remedies Code. (CR 12-48). Appellant’s most recent petition sought to

set aside or declare void the 1991 deeds to Appellee by Mills and Cope (Appellant

Mueller’s predecessors in interest) and asserts causes of action for adverse

possession, fraud, failure of consideration, cancellation of deed, conversion, suit to

quiet title, violation of Tex. Civ. Prac. & Rem. Code §12.002, and negligent

misrepresentation. (CR 2094-2106).

9.     Appellees most recent answer asserts a general denial as well as the affirmative

defenses of: statute of limitations as to each cause of action; offset; waiver; estoppel,

standing; estoppel by deed; and denial of proof of adverse possession. (CR Supp 2(a)

12-20)2


       2
         Appellees’ live answer also asserted several special exceptions to Appellant’s pleading.
(CR Supp 2(a) 6-12). Primary among Appellees’ special exceptions is the assertion that a
trespass to try title, (not a declaratory judgment under Tex. Civ. Prac & Rem. Code §37.001-


                                          Page 5 of 73
10.    On or about July 27, 2012 Appellee filed Defendant James H. Davis d/b/a J.D.

Minerals and JDMl, LLC's (hereinafter collectively referred to as “Davis” or

“Appellees”) Motion for Traditional and No-Evidence Motion for Summary

Judgment and Response to Plaintiff's Motion for Partial Summary Judgment and

Objection to Plaintiff's Summary Judgment Evidence. (CR 392-637).

11.    On or about April 18, 2013 Appellees filed their Supplemental Motion for

Traditional and No-Evidence Summary Judgment and Response to Plaintiff's Motion

for Partial Summary Judgment on the validity of the deeds at issue and Objection to

Plaintiff's Summary Judgment Evidence. (CR 1015-1133).

12.    On or about May 16, 2013 Appellees filed their Second Partial Motion for

Summary Judgment on Plaintiff's Declaratory Judgment Claim, Claims Under Texas

Civil Practice & Remedies Code Sections 37.001, et seq. and 12.001, et seq. and

Attorneys' Fees Thereunder, or Alternatively, Motion in Limine. (CR 1156-1163).

13.    On or about May 28, 2013 Appellees filed their Reply to Plaintiff's Response

to Motion for Second Summary Judgment. (CR 1193-1201).

14.    On or about September 4, 2014 Appellees filed                 Defendants' Second



011), is the exclusive remedy to determine title to real property. See Coinmach Corp. v.
Aspenwood Apartment Corp., 417 S.W.3d 909, 926 (Tex. 2013), reh'g denied (Feb. 14, 2014).
The trial court’s summary judgment rendered Appellees’ special exceptions moot.


                                       Page 6 of 73
Supplemental Motion for Summary Judgment and Motion to Reconsider. (CR 1796-

1850). The Motion to Reconsider incorporated, by reference, each of the prior

summary judgement motions and evidence attached thereto and requested that each

Motion be reconsidered. (CR 392-637, CR 1015-1133, CR 1156-1163, CR 1193-

1201, and CR 1939-1955) stating:

      “Defendants’ Motion for Summary Judgment and Supplemental Motion
      for Summary Judgment and the summary judgment evidence attached
      thereto are incorporated herein by reference the same as if fully copied
      and set forth at length. Defendants request that the Court take judicial
      notice of its prior Summary Judgment filings and the summary judgment
      evidence attached thereto.”

(CR 1801, fn. 6).

15.   On or about September 24, 2014, Appellant’s attorney filed a Plea in

Intervention on behalf of Mills (CR 1924-26).

16.   On October 9, 2014, the trial court struck the Mills intervention (CR 2066).

17.   On or about September 27, 2014 Appellees filed their Motion for Partial

Summary Judgment on Limitations Subject to Defendant's Motion to Strike Plea in

Intervention. (CR 1939-1955).

18.   On October 8, 2014 Appellees Motions for Summary Judgment were granted

on all causes of action and a final judgment was entered in favor of Appellees. (CR

2064). The Order Granting Summary Judgment did not specify the grounds upon



                                    Page 7 of 73
which it was entered. Id.

19.    On October 9, 2014, Appellees filed their Motion for Non-Suit Without

Prejudice on their Counter-Claim, rendering the trial court’s summary judgment final.

(CR 2108-2109). The Order Granting Non-Suit Without Prejudice was signed and

entered on October 9, 2014. (CR 2107).

20.    On or about October 17, 2014, Appellant filed his Motion for Rehearing and

Motion for New Trial. (CR 2116-2130).

21.    On December 17, 2014, Appellant filed his Notice of Appeal. (CR 2137-

2138).

                            STATEMENT OF THE FACTS

FACTS

22.    Both Appellees and Appellant claim title to mineral interests in Harrison

County, Texas through common sources, James Hammond Mills (hereinafter referred

to as “Mills”) and Virginia Rose Mitchell3 (hereinafter referred to as “Cope”).

23.    Appellees acquired interests from Mills and Cope via conveyances in 1991

(CR 1826-1827 and CR 1828-1829)4.

       3
       It is undisputed that Virginia Rose Mitchell, Virginia Rose Cope, Virginia Rose Mills
Cope, and Virginia Rose Purvis Cope are the same person.
       4
       Since the trial court entered summary judgment in favor of Davis in this case,
Appellant’s counsel has filed a new lawsuit on behalf of Mills and Cope in Cause No 14-0808; in


                                         Page 8 of 73
24.    On September 21, 1991 Cope executed a “Mineral and Royalty Conveyance”

granting all of her mineral, royalty, and overriding royalty interests in Harrison

County, Texas to Appellee JD Minerals5. (CR 1826-1827)6. Said conveyance was

filed with the Harrison County Clerk’s office in the real property records on October

3, 1991 in Volume 1287 Pages 331-332, File No. 8701. (CR 1826-1827). The deed

contains a specific property description comprised of survey or unit descriptions of

mineral interests. Id. The deed also contains the following general description which

broadens the specific description: “Grantor hereby conveys to Grantee all of the

mineral, royalty, and overriding royalty interest owned by Grantor in Harrison

County, whether or not same is herein above correctly described.” Id. (emphasis

supplied).

25.    On October 1, 1991 Mills executed a “Mineral and Royalty Conveyance”

granting all of his mineral, royalty, and overriding royalty interests in Harrison

County, Texas to Appellee JD Minerals. (CR 1828-1829). The deed contains a

specific property description comprised of survey or unit descriptions of mineral



the 71st Judicial District Court of Harrison County, Texas. Thus both Mills and Cope have a
financial interest in the outcome of this appeal.
       5
           JD Minerals is an assumed name for Appellee James H. Davis.
       6
           CR refers to the Clerk’s Second Supplemental Clerk’s Record filed on June 9, 2015.


                                           Page 9 of 73
interests. Id. The conveyance was filed with the Harrison County Clerk on October

7, 1991 in Volume 1287 Page 530-531, File No. 8809. Id. The deed contained the

following language: “Grantor hereby conveys to Grantee all of the mineral,

royalty, and overriding royalty interest owned by Grantor in Harrison County,

whether or not same is herein above correctly described.” Id. (emphasis supplied).

26.   Finally, in addition to the specific survey and general “county-wide” blanket

descriptions described above, each deed at issue contained a separate standard

habendum , or Mother Hubbard Clause. Id.

27.   On or about October 1, 1994, Cope purported to execute a Mineral Deed to

Charles B. Horne in Harrison County, Texas. (CR 1830-1831).

28.   On or about December 2, 1996 Appellant, a licensed realtor and practicing land

man (CR 1811-1812), purported to purchase the mineral interests sold to Charles B.

Horne by Cope in Harrison County, Texas. (CR 1832-1833). The 1996 deed from

Horne to Appellant includes a similar county-wide granting clause to the one Mueller

complains of in this appeal, granting “all my interest in the following described land

situated in Harrison Count, Texas including any other and all other minerals in my

name in Harrison County Texas, to wit: . . ..” (CR 1832) (emphasis supplied).

29.   On or about June 29, 2011, just prior to filing this lawsuit, Appellant purported




                                    Page 10 of 73
to purchase these same mineral interests from Charles B. Horne in Harrison County,

Texas.7 (CR. 1834-1835)8. This deed contains the same county-wide general

conveyance as the 1996 Horne deed referenced in ¶ 28, supra. The county-wide

language used by Appellant in each deed from Horne9is in the same sized type as the

rest of each deed. (CR 1832-1833 and CR 1834-35).

30.    On or about May 26, 2011, just prior to filing this lawsuit, Appellant purported

to purchase mineral interests from Mills in Harrison County, Texas.                   (CR 1836-

1838).

31.    On or about July 1, 2011 Cope purported to transfer the same mineral interests

she had previously transferred to Horne in 1994 referenced above to Appellant. (CR

1840-1850).

32.    On October 12, 2011 Appellant filed his lawsuit against Appellees. (CR 12-

16). Appellant’s most recent petition seeks to set aside or declare void the 1991

deeds to Appellees by Mills and Cope and asserts causes of action for adverse


       7
        Plaintiff testified he paid $1,000.00 for these interests which he had already purchased
through Charles B. Horne. (CR 1816- Mark Mueller deposition, page 28, lines 5-20).
       8
         The June 29, 2011 deed from Horne to Appellant is in the form of a correction deed to
clarify the property description, presumably preparing for his anticipated lawsuit.
       9
        The first Horne to Mueller deed (as well as the two 1991 deeds to Appellees at issue)
were executed and filed prior to the disclosure requirements of the Tex. Prop. Code §5.151
addressing county-wide conveyances.


                                          Page 11 of 73
possession, fraud, failure of consideration, cancellation of deed, conversion, suit to

quiet title, violation of Tex. Civ. Prac. & Rem. Code §12.002, and negligent

misrepresentation. (CR 2094-2106).

33.   The only ambiguity alleged by Appellant is found in his most recent petition

and relates to the county-wide or blanket property description. (CR 2095). Appellant

conclusorily states the blanket property description “created an ambiguity as to the

proper description. . ..” (CR 2095). No other ambiguity is alleged. (CR 2094-2106).

34.   Appellant, a professional landman (CR 1079), has used county-wide blanket

property descriptions in the deeds involved in this case and in his business. (CR 1255,

CR 1259, and CR 1263). Appellant testified county-wide property descriptions can

be valid and enforceable. (CR 1090).

                       SUMMARY OF THE ARGUMENT

35.   The trial court did not commit error by granting Appellees’ motion for

summary judgment. Appellant, who was a stranger to the deeds between Mills, Cope

and Appellee, had no standing to set aside the deeds on the basis of fraud, failure of

consideration, conversion, negligent representation or any other such cause of action

because said claims require privity with Appellee. Because Appellant Mueller was

not a party to the Mills or Cope deeds, he was not in privity with Appellee and




                                     Page 12 of 73
therefore had no standing to bring such claims.

36.   Appellant’s only remaining challenge to the Cope and Mills deeds is that they

are void for want of a legal description which complies with the statute of frauds.

Tex. Bus. & Com. Code § 26.01-26.02. Both the Mills and Cope deeds, which are

the common source of the disputed title, contain valid “blanket” or “county-wide”

conveyances which convey all of each Grantor’s mineral interests owned by Mills and

Cope in Harrison County to Appellee Davis. Such blanket property descriptions have

been held to be valid and unambiguous by Texas Courts, including the Texas

Supreme Court, for over one hundred twenty (120) years. Both Appellant’s response

to the summary judgments below ( CR 868-883 and CR 2023-2025) and his brief to

this Court simply ignores the long-standing precedent cited by Appellees to the trial

court upholding blanket property descriptions such as those in each deed and does not

even attempt to factually distinguish such precedent from the facts of this case. As

a result of Appellant ignoring precedent, Appellant’s appeal is frivolous.

37.   Appellant’s only attempt to deal with the valid county-wide conveyances in the

Mills and Cope deeds is the bald assertion that there is a conflict between the general

and specific granting clauses from the record. This contention is wholly without

factual basis, and Appellant’s failure to demonstrate in the record any such conflict




                                     Page 13 of 73
or repugnance between the deeds’ granting clauses renders Appellant’s citation to J.

Hiram Moore v. Greer, 172 S.W.3d 609 (Tex. 2005) without merit. Nowhere does

Appellant demonstrate any repugnance between any of the deeds’ granting clauses.

38.   Appellant’s contention that by granting Appellees’ motion for summary

judgment the trial court was ruling that “the Mother Hubbard or ‘catch-all’ clause

could convey a substantial property interest” (AB 14) is misleading and without basis

in law or fact. Each deed contained a general, or county-wide conveyance, a specific,

unit or survey conveyance and a third standard habendum or “Mother Hubbard” or

“strips and gores” clause. (CR 1828-1929 and 1830-1831). It has never been alleged

by Appellees that any significant property interest was conveyed to Appellees by the

habendum clause. On the contrary, Appellees have consistently maintained that the

mineral interests at issue were conveyed to Appellees by the unambiguous and valid

blanket, county-wide granting clause in each deed.

39.   Having completely ignored the overwhelming precedent cited below upholding

the county-wide property descriptions in each deed, Appellant conclusorily attempts

to create an ambiguity in the deeds that does not exist by relying on post-conveyance

parol evidence and collateral matter parol evidence. There is no ambiguity in either

deed because each conveyance clearly states that Grantors Mills and Cope conveyed




                                    Page 14 of 73
all of their mineral interests within the geographic boundaries of Harrison County,

Texas to Appellee. Because there is no true ambiguity in either deed, the trial court

was correct to interpret each deed within its four corners and not consider the parol

evidence offered by Appellant in an attempt to create “fact issues.” (AB 16-33).

40.   All claims of Appellant except any claims that the 1991 deeds at issue are void

for want of an adequate property description in violation of the statute of frauds were

barred by the applicable statute of limitations. All of Appellant’s other equitable

claims to set aside the 1991 Deed to Appellees are time - barred by the applicable

statutes of limitations (including fraud, failure or inadequate consideration,

conversion, suit to quiet title, violation of Civ. Prac. & Rem. Code § 12.002,

negligent misrepresentation and declaratory judgment). Each of these claims are

premised on the claim that the 1991 deeds are voidable. Voidable deeds are subject

to limitations defenses. As a matter of law, Supreme Court precedent is clear that

knowledge of information available that is filed of public record is imputed to an

owner of minerals. Appellant, as a third-party to the transaction, is not entitled to

deferral of accrual of any cause of action on an alleged voidable deed based on the

discovery rule as a matter of law. Appellant, as a third party to the deeds was also on

notice of the entire contents of the deeds as of the date of filing pursuant to Tex. Prop.




                                      Page 15 of 73
Code §13.002. Accordingly, all of Appellant’s claims (other than claims that the

1991 deeds are void) are barred by applicable statutes of limitations.

                                  ARGUMENT

Standard of Review:

41.   The Appellate Court reviews the trial court’s ruling on a motion for summary

judgment de novo. Tittizer v. Union Gas Corp., 171 S.W.3d 857 (Tex. 2005); Little

v. Texas Dept. of Criminal Justice, 148 S.W.3d 374 (Tex. 2004); Joe v. Two Thirty

Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004); Provident Life and Acc. Ins. Co. v.

Knott, 128 S.W.3d 211 (Tex. 2003); Miles v. Lee Anderson Co., 339 S.W.3d 738

(Tex. App. Houston 1st Dist. 2011). The question on appeal of a summary judgment

is whether the summary-judgment proof establishes that the movant was entitled to

summary judgment as a matter of law. In re J.G.W., 54 S.W.3d 826 (Tex.

App.—Texarkana 2001, no pet.). When a summary judgment does not specify or

state the grounds relied upon, the judgment will be affirmed on appeal if any of the

grounds presented in the motions for summary judgment are meritorious. See

Progressive County Mut. Ins. Co. v. Kelley, 284 S.W.3d 805 (Tex. 2009).

      I.     The “county-wide” or blanket property descriptions are valid
             and unambiguous under the statute of frauds (or as an exception
             to the statute of frauds) where the Grantor conveys all his property
             in a defined geographic area.


                                    Page 16 of 73
Long Standing Authority Establishes that “County-Wide” or “Blanket”
Property Descriptions in General Granting Clauses Are Sufficient to Satisfy the
Statute of Frauds in Texas

42.    Despite the citation to the trial court of the existence overwhelming authority

in support of “blanket” or “county-wide” conveyances, Appellant simply ignores the

authority cited in Appellees summary judgment motions10.

43.    “It has long been the rule that a deed purporting to convey all lands owned by

the grantor in the State or in a named county is sufficient description to effect a

conveyance.” Harlan v. Vetter, 732 S.W.2d 390, 394 (Tex. App. – Eastland 1987,

writ ref’d n.r.e.) (quoting Texas Consolidated Oils v. Bartels, 270 S.W.2d 708 (Tex.

Civ. App. – Eastland 1954, writ ref’d)); Patterson v. Twaddell, 301 S.W.2d 680 (Tex.

Civ. App. – Amarillo 1957, writ ref’d n.r.e.); Best Investment Co. v. Francis, 453

S.W.2d 893, 897 (Tex. Civ. App. – Eastland 1970, writ ref’d, n.r.e.). For over one

hundred and twenty years Texas courts have consistently held that a conveyance

containing a property description conveying all of grantor’s interest in the state or a

named county (or any defined geographic area) constitutes a sufficient description to



       10
         Of the nine Texas Supreme Court cases, one Fifth Circuit, one Northern District of
Texas, and eight intermediate appellate cases cited by Appellees in support of the deed’s blanket
property descriptions, Appellant’s brief only cites to one. Sun Oil Co. v. Burns, 125 Tex. 549, 84
S.W.2d 442 (Comm'n App. 1935, opinion adopted). In the one case Appellant cites supporting
blanket conveyances, Appellant misrepresents (or misunderstands) the holding of the Court. See
discussion at ¶ 56, fn. 16.


                                         Page 17 of 73
satisfy the Statue of Frauds. See Brigham v. Thompson, 12 Tex. Civ. App. 562, 565,

34 S.W.2d 358, 359 (Tx.App. – Dallas 1896); Witt v. Harlan, 66 Tex. 660; 2 S.W. 41

(Tex. 1886). Blanket property descriptions are so well established as valid to convey

mineral interests as an exception to the particularity requirements of the statute of

frauds description requirements that current form books provide forms expressly for

this purpose. See West’s Tex. Forms, Minerals, Oil & Gas (4th ed.) § 1:13 Blanket

conveyance of mineral and royalties.

44.    One of the most commonly cited cases upholding blanket property descriptions

is Texas Consolidated Oils v. Bartels11, which holds that language conveying all of

Grantors’ interest in the United States is a sufficient property description. The

language at issue was “[a]ll the oil, gas and mining leases, royalties and overriding

royalties located anywhere within the United States, most of which are located within

the State of New Mexico, Kansas, Oklahoma, Louisiana and Texas....” Texas

Consolidated Oils, 270 S.W.2d at 710. The language in the Texas Consolidated Oils

conveyance was found to be “. . . sufficient to reasonably identify and to have

       11
          Cited approvingly by In re Cornerstone E&P Company, L.P., 436 B.R. 830, 843
supplemented, 436 B.R. 865 (Bankr. N.D. Tex. 2010); Ray v. Elder, 2007 WL 1532704, 1 (Tex.
App. – Tyler 2007, no writ); Harlan v. Vetter, 732 S.W.2d 390, 394 (Tex. App. – Eastland 1987,
writ ref’d n.r.e.); Patterson v. Twaddell, 301 S.W.2d 680 (Tex. Civ. App. – Amarillo 1957, writ
ref’d n.r.e.); Coe v. Chesapeake Exploration, L.L.C., 695 F.3d 311, 319 (5th Cir. 2012); U.S.
Enterprises, Inc. v. Dauley, 535 S.W.2d 623, 628 (Tex. 1976) (recognizing exception to specific
property description requirement of statute of frauds).


                                        Page 18 of 73
conveyed the land, it constituted notice to subsequent purchasers of such land

under the . . . statutory provision.”12 Id. at 712 (emphasis supplied). The Texas

Consolidated Oils Court relied on long standing precedent that established the rule

that a deed purporting to convey all lands owned by the grantor in a named county is

a sufficient description to effect a conveyance. Id. at 711 citing Smith v. Westall, 76

Tex. 509 (Tex. 1890); Pickett v Bishop, 148 Tex. 207, 223 S.W.2d 222, (Tex. 1949);

and Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744 (Comm'n App. 1937).

It also established that such descriptions constitute noticed to third parties, such as

Appellant. Id.

45.    The Texas Supreme Court has identified the Texas Consolidated Oils’ fact

pattern, wherein a grantor conveys all of his interests in the State or a named

county, as an exception to the requirement that a property description

specifically identify the location of a property using a beginning point, boundary

lines metes and bounds and the like. U.S. Enterprises, Inc. v. Dauley 535 S.W.2d

623, 628 (Tex. 1976)13 (emphasis supplied). Appellant ignores this Supreme Court

       12
         Under Texas Consolidated Oils and Texas Property Code Section 13.002 , Appellant
took his deeds with notice of Davis’ interest in all of seller’s interests in the county.
       13
          Courts alternatively state that blanket descriptions are an exception to the specific metes
and bounds property descriptions requirements of the statute of frauds (Dauley, 535 S.W.2d at
628 ) or that a conveyance of all grantors property in a defined geographic area satisfies the
statute of frauds because it provides an adequate “nucleus of description” of the property to


                                           Page 19 of 73
precedent.

46.    In fact, in Dauley, the Texas Supreme Court cites many of the cases upon

which Appellees rely as well as a case Appellant relies on as the rule requiring

specific identification by metes and bounds to which the Supreme Court makes an

exception for blanket conveyances. The Texas Supreme Court recognized the

exceptions stating:

       Descriptions without boundary lines, beginning points, or other means
       by which the acreage can be located have often been held to be
       insufficient to meet the Statute of Frauds. Morrow v. Shotwell, supra;
       Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980 (1948); Greer v. Greer,
       144 Tex. 528, 191 S.W.2d 848 (1946); Smith v. Sorrelle, 126 Tex. 353,
       87 S.W.2d 703 (1935); Pfeiffer v. Lindsay, 66 Tex. 123, 1 S.W. 264
       (1886). Exceptions not applicable here are discussed in Wilson v.
       Fisher, supra, 188 S.W.2d at 153; Holloway's Unknown Heirs v.
       Whatley, 133 Tex. 608, 131 S.W.2d 89 (1939); Smith v. Westall, 76 Tex.
       509, 13 S.W. 540 (1890), and Texas Consolidated Oils v. Bartels, 270
       S.W.2d 708 (Tex.Civ.App.1954, writ ref'd).

Dauley, 535 S.W.2d 623, 628 (Tex. 1976) (emphasis supplied)14.

47.    Among the other cases holding blanket grants are an exception to the specific

property description requirement are the following: Holloway’s Unknown Heirs v.


satisfy the statute of frauds. Coe, 695 F.3d at 318.
       14
         Appellant relies on Wilson v. Fisher, 144 Tex. 53, 188, S.W.2d 150 (1945). (AB 11).
Appellant willfully ignores the body of law setting out the blanket property description exception
to the specific property description requirements of the statute of frauds stated in Wilson.
Moreover, Wilson, which is distinguishable on its facts, actually recognizes the validity of
blanket property descriptions in dicta. (See ¶ 101).


                                          Page 20 of 73
Whatley, 104 S.W.2d 646, 648 (Tex. Civ. App. – Beaumont 1937) aff’d, 137 Tex 608,

131 S.W.2d 89 (1939)(Deed containing specific property description and also

generally describing any other land owned by Grantor in county sufficient to convey

several mineral interests not specifically described); Smith v. Westall, 76 Tex. 509,

13 S.W. 540 (Tex. 1890)(Deed containing description of all land inherited “by,

through or from my deceased parents” in Brazoria County or the State of Texas held

sufficient to convey all lands in the State vested by inheritance in Grantor); Best

Investment Co. v. Francis, 453 S.W.2d at 897) (...a deed based on ownership of

property by the grantor in a certain county, even though it does not describe the land

in particular other than such ownership of the grantor, passes title to such property

owned by the grantor).

48.   Appellant’s Brief ignores this authority, and cites cases unrelated to blanket

grants which require specific identification of the properties. The language in the

general granting clause in the deeds at issue conveys all of Grantors’ interests in

Harrison County. The language in Appellees’ deeds is clearly adequate to satisfy (or

as an exception) to the property description standard to meet the Statute of Frauds as

expressed in the foregoing cases and therefore, Appellees have valid deeds to all

mineral interests owned by Mills and Cope in Harrison County as of the date of the




                                    Page 21 of 73
deeds and made the basis of this suit.

49.    In Baker v. Smith, the Court found that the blanket grant of real estate in Jack

County, Texas “. . . purported to convey all lands owned by the defendant in a named

county in Texas, such a description being sufficient to effect conveyance of such.”

407 S.W.2d 4, 6 (Tex. Civ. App. – Fort Worth 1966, no writ).

50.   The rule that language conveying all lands in a particular county or state is

sufficient to meet the Statute of Frauds requirements is applicable when the interests

being conveyed are mineral interests. “Specifically in the context of oil and gas

leases, under Texas law, a grant of all of a transferor’s interests located within a

clearly defined area, such as a named state or county, is sufficiently descriptive to

effect a conveyance and thus satisfy the Statute of Frauds.” In re Cornerstone E&P

Company, L.P., 436 B.R. 830, 843 supplemented, 436 B.R. 865 (Bankr. N.D. Tex.

2010) (applying Texas law). Cornerstone also goes on to state that “Texas law has

recognized the validity of both blanket descriptions and grants of after-acquired

interests” Id. at 844.

51.   The Tyler Court of Appeals has recognized conveyances of all mineral

interests in a named county is a sufficient description to effect a conveyance. Ray v.




                                    Page 22 of 73
Elder, 2007 WL 1532704, *1 (Tex. App. – Tyler 2007, no writ).15 The above-cited

authorities demonstrate that the legal descriptions in the conveyances at issue in this

case satisfy the Statute of Frauds as a matter of law.

52.    Texas case law sanctioning blanket property descriptions makes clear that the

nature of the larger unit from which grantor conveys all his interest is irrelevant, as

long as the larger unit is a clearly defined area. In re Cornerstone E & P Co., L.P.,

436 B.R. at 843. In Sun Oil Co. v. Burns, the court approved a blanket description

of all property in a particular survey. 125 Tex. 549, 551, 84 S.W.2d 442, 443 (Tex.

Comm'n App. 1935). The grant at issue stated, “It being the intention, however, of

lessor to include within the terms of this lease not only the above described land, but

also any and all other land owned or claimed by lessor in said survey or surveys in

which the above described land is situated or in adjoining surveys and adjoining the

above described land.” Id. (emphasis supplied).

53.    The Fifth Circuit Court of Appeals, applying Texas law, has recognized that

Texas law holds that when a grantor conveys all his property in a specified area, the

requirements of the statute of frauds is fulfilled. Coe v. Chesapeake Exploration,


       15
        The Tyler District Court of Appeals ultimately ruled the description at issue insufficient
only because the Grantor failed to identify the state or a specific county in the conveyance. Id. at
4. The deeds at issue identify all Grantor’s mineral interests in Harrison County. (CR 1826-1827
and CR 1828-1829).


                                          Page 23 of 73
L.L.C., 695 F.3d 311,318-320 (5th Cir. 2012) citing Sanderson v. Sanderson, 109

S.W.2d at 747; Ragsdale v. Mays, 65 Tex. 255 (1886); In re Cornerstone, 436 B.R.

at 843, 844-45; Texas Consolidated Oils, 270 S.W.2d at 712.

54.   The Sun Oil case is on point with the facts of this case and specifically

recognizes the survey-wide grants of all Grantor’s interest in a named survey as

adequate under the Statute of Frauds. The Sun Oil court approved the blanket

property descriptions, stating:

      In seeking to ascertain from the entire instrument the true intention of
      the parties as to the land to be affected by and included in the lease, we
      find that the instrument in describing the land leased sets out first by
      metes and bounds the 106.25-acre tract, and that this description is
      immediately followed by the clause which states the intention of the
      lessor to include within the terms of the lease, not only “the above
      described land,” but also any and all other land owned or claimed by
      the lessor in the survey or surveys in which “the above described land”
      is situated or in adjoining surveys and adjoining “the above described
      land.” This language needs no construction. It is not fairly susceptible
      of more than one interpretation. It not only shows, but it declares in
      plain and unmistakable terms, the intention of the grantor to include
      within the lease, not only the land particularly described, but also any
      other land owned or claimed by the lessor in the same survey or in
      adjoining surveys and adjoining the land particularly described.

Sun Oil, 125 Tex. at 552-553 (emphasis supplied).

55.   The Sun Oil case not only affirms the validity of a blanket conveyance which

enlarges a specific conveyance, it declares such a grant unambiguous, in that it “is not




                                     Page 24 of 73
fairly susceptible to more than one interpretation.” Id. If a deed is not susceptible to

more than one interpretation, it is unambiguous. See discussion of lack of ambiguity

at ¶¶ 59-72.

56.    The Sun Oil case is particularly important in the context of this appeal in that

it is the only precedent supporting the validity of blanket conveyances addressed in

Appellant’s Brief. (AB 13-14). Appellant either misunderstands or misrepresents the

holding in Sun Oil16.

57.    In light of the foregoing unchallenged authorities, the answer to Issue No. I is

yes, blanket property descriptions satisfy the statute of frauds in Texas.

       II.     The answer to Issue No. I should be in the affirmative. The 1991
               deeds at issue conform to the requirements of a valid blanket and
               unambiguous conveyance



       16
           It is unclear to Appellees how Texas Supreme Court’s ruling in Sun Oil supports
Appellant’s position. In Sun Oil, the Supreme Court upheld a conveyance which contained both
a specific, metes and bounds description and a blanket conveyance. Sun Oil 125 Tex. at 532-34.
The facts are strikingly similar to the case at bar, in that the Supreme Court approved both the
specific, metes and bounds description and the general blanket descriptions, quoting from Cook
v. Smith, 107 Tex. 119, 174 S.W. 1094, 1095 (1915): “Its manifest purpose was to enlarge both
the granting clause of the instrument and the preceding terms of description. This is shown by
the use of its ampler phrase. The instrument had previously dealt with only grantor’s title to
particular property. But to make plain that it had a larger purpose than merely to release the
grantor’s title to the particular property in the town which had been described, it is distinctly
announced in this clause that the grantor’s intention in the execution of the instrument was to
convey all the real estate that he owned in the town, whether specifically described or not.” Sun
Oil, 125 Tex. at 554. The deeds at issue also contain “ampler phrases”, stating Grantor conveys
all their interest owned in Harrison County, “whether or not same is hereinabove correctly
described” (CR 1826-27 and CR 1828-29).


                                         Page 25 of 73
58.   The blanket granting language at issue in each deed, which enlarges the

specific survey descriptions, satisfies the requirements for such property descriptions

in that they convey all of the grantors’ mineral interests owned by grantors in

Harrison County, Texas. See (CR 1826-1827 and CR 1828-1829). Sun Oil, 125 Tex.

at 552-53; See also In re Cornerstone E&P Company, 436 B.R. at 843; Coe, 695 F.3d

at 319; See also ¶¶ 24-25, supra.

      III.   Parol evidence cannot be considered to create an ambiguity (and
             therefore create a fact issue) in an unambiguous blanket
             conveyance.

A.    No Fact Issue for a Jury Exists on Plaintiff’s Claims that Deeds are Void
      for Want of a Valid Property Description - Only Pure Questions of Law
      for the Court.

59.   The interpretation of an unambiguous writing is a pure question of law for

the Court. This rule has repeatedly been called elementary. See, e.g., Westwind

Exploration, Inc. v. Homestate Sav. Ass'n, 696 S.W.2d 378, 381 (Tex. 1985); City of

Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968); Myers

v. Gulf Coast Minerals Mgmt. Corp., 361 S.W.2d 193, 196 (Tex. 1962). Importantly,

the rule applies in disputes about oil and gas conveyances. See Luckel v. White, 819

S.W.2d 459, 461 (Tex. 1991); Altman v. Blake, 712 S.W.2d 117, 118 (Tex. 1986).

Appellant’s claims entirely rest on the allegation that the conveyances from Mills and




                                     Page 26 of 73
Cope, his predecessor in interest, to Appellees fail for want of a legal description

sufficient to satisfy the statute of frauds. (AB10-11).

60.   Questions of law are for the Court alone. Juries decide questions of fact, not

law. A trial court commits error if it submits a question of law to the jury. Hicks v.

Pilgrim Poultry, G.P., 299 S.W.3d 249 (Tex. App.—Texarkana 2009, no pet.);

Grohman v. Kahlig, 318 S.W.3d 882, 887 (Tex. 2010); see Burgess v. Sylvester, 143

Tex. 25, 28, 182 S.W.2d 358, 360 (1944) (it is not within the province of the jury to

construe the legal effect of a written instrument. . . ); City of The Colony v. N. Tex.

Mun. Water Dist., 272 S.W.3d 699, 752 (Tex. App. - Fort Worth 2008, pet. dism'd).

Because a jury has no right to give its view about legal issues, its answer to a question

of law is immaterial. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94-95 (Tex.

1999); Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994).

61.   The sufficiency of the legal description in an unambiguous instrument

transferring a proper interest is a pure question of law. May v. Buck, 375 S.W.3d

568, 574 (Tex. App.—Dallas 2012, no pet.); Wiggins v. Cade, 313 S.W.3d 468, 472

(Tex. App.—Tyler 2010, pet. denied). In limited instances, where the property

description is ambiguous, a mixed question of law and fact can be submitted to the

jury. See e.g. Finkelstein v. Carpenter, 795 S.W.2d 897, 898 (Tex. App.—Beaumont




                                     Page 27 of 73
1990, writ denied) (Competent surveyors testifying for each side differed in their

interpretation of location of the end point of the disputed call). No such ambiguity

exists in this case. Each deed states that: “Grantor hereby conveys to Grantee all

of the mineral, royalty, and overriding royalty interest owned by Grantor in

Harrison County, whether or not same is herein above correctly described.” (CR

1826-1827 and CR 1828-1829). Such a description is unambiguous in that it

describes all of the interest owned by Grantor in Harrison County.

62.   Exactly on point is Katz v. Bakke. In Katz, the deed under consideration

contained both a specific description and a general, blanket description. 265 S.W.2d

686, 688 (Tex. Civ. App.—San Antonio 1954, writ ref'd). The court, relying on Texas

Supreme Court precedent, ruled no ambiguity existed as a matter of law, stating:

      Nor is the 1951 deed to Bakke ambiguous. There is no repugnance
      between the blanket granting clause and the particular granting
      clause. The blanket clause broadens and enlarges upon the particular.
      Holloway's Unknown Heirs v. Whatley, 133 Tex. 608, 131 S.W.2d 89;
      Sun Oil Co. v. Burns, 125 Tex. 549, 84 S.W.2d 442; Sun Oil Co. v.
      Bennett, 125 Tex. 540, 84 S.W.2d 447; Gulf Production Co. v. Spear,
      125 Tex. 560, 84 S.W.2d 452.

Katz Id. at 688 (Tex. Civ. App.—San Antonio 1954, writ ref'd) (emphasis supplied);

See also Richard F. Brown, Oil, Gas, and Mineral Law, 60 SMU L. Rev. 1189, 1191

(2007); Garcia v. Garcia, 04-05-00538-CV, 2006 WL 1684742 at * 4 (Tex.




                                   Page 28 of 73
App.—San Antonio June 21, 2006, pet. denied).

63.   Because each of the 1991 deeds at issue is unambiguous, the trial court did not

err in ruling the deeds were valid conveyances as a matter of law.

Blanket/ County-Wide Conveyances Valid and Unambiguous without Metes and
Bounds or Other Specific Descriptions

64.   As detailed in Defendant’s Motion for Summary Judgment and Supplemental

Motion for Summary Judgment (CR 392-637 and CR 1015-1133), such “blanket”

descriptions have been held to be valid and unambiguous in Texas for one-hundred

and twenty years. See Brigham, 34 S.W.2d at 359; Witt, 2 S.W. 41. “It has long been

the rule that a deed purporting to convey all lands owned by the grantor in the State

or in a named county is sufficient description to effect a conveyance.” Harlan, 732

S.W.2d at 394 (quoting Texas Consolidated, 270 S.W.2d 708); Patterson, 301

S.W.2d 680; Best Investment Co., 453 S.W.d at 897; See also 4 Tex. Prac., Land

Titles And Title Examination § 15.36 - Validity of blanket descriptions of land (3d

ed.); 55 Tex. Jur. 3d Oil and Gas § 164 - Description of property. Appellant ignores

all such authority, incorrectly insisting that a conveyance of real property must

contain a metes and bounds description, and that blanket property descriptions are per

se invalid, despite Appellant’s history of use of the same blanket conveyances.(AB

8-9) (CR 1255-1256, CR 1257-1261and CR 1262-1264).



                                    Page 29 of 73
65.    If there is no ambiguity, a pure question of law for the court exists. Therefore,

the trial court did not err in determining that no fact issues exist. Without a finding

of ambiguity, the rules of construction are not applied - the deed is interpreted as a

matter of law by the trial court from the four corners of the document. MPH Prod.

Co., Inc. v. Smith, 06-11-00085-CV, 2012 WL 1813467 (Tex. App.—Texarkana May

18, 2012, no pet.) citing Luckel, 819 S.W.2d at 461. The posture the parties presented

the issues to the trial court created an either/or proposition, requiring no finding of

fact or mixed question of law or fact which would create an appropriate jury issue.

Either the legal descriptions in each deed 1991 Davis deed complies with the statute

of frauds (or is an accepted exception thereto), or it does not, as a matter of law.

66.    The burden of pleading ambiguity in written contract is on person seeking to

establish it, and he must set out that portion of the instrument that is claimed to be

ambiguous and definitely plead meaning or construction thereof that is relied upon

by him. Skyline Furniture, Inc. v. Gifford, 433 S.W.2d 950 (Tex. Civ. App.—El Paso

1968, no writ). Appellant’s only pleading of ambiguity is that the blanket conveyance

of all properties in Harrison County “creates an ambiguity.” (CR 2095)17. An



       17
         Appellant’s allegation of ambiguity rings hollow in this regard as Appellant has used
blanket conveyances in deeds drafted by him in his business as a landman. (CR 1832-1833, CR
1834-1835, CR 1255, CR 1259 and CR 1263).


                                        Page 30 of 73
ambiguity does not arise simply because the parties advance conflicting

interpretations of the deed. Center Point Energy Houston Elec., L.L.P. v. Old TJC

Co., 177 S.W.3d 425 (Tex. App. Houston [1st Dist.] 2005, pet. denied). Even if

Appellant had amended his pleadings to plead ambiguity with more specificity, he

must specifically identify the alleged ambiguity. Such a pleading would have failed

under Katz and because no ambiguity exists - The deeds either contain valid blanket

or county-wide conveyances or they do not. Katz, 265 S.W.2d at 688. (Where a

general blanket description enlarges a specific description, no ambiguity exists).

Appellees’ Motions for Summary Judgment (CR 392-637 and 1156-1163) and

Supplemental Motion for Summary Judgment (CR 1015-1133) and Motion to

Reconsider (CR 1796-1850) recite overwhelming authority that blanket, county-wide

property descriptions of the kind found in the 1991 Deeds in this case have been ruled

valid and unambiguous in Texas. See discussion at ¶¶ 42-57.

67.   Where no valid ambiguity is plead, the Court interprets the language in the

deed from within the “four corners” of the deeds as a matter of law. Luckel, 819

S.W.2d at 461.

68.   The 1991 Davis deeds at issue contain the same language in the property

descriptions. (CR 1826-1827 and CR 1828-1829). The same analysis applies to




                                    Page 31 of 73
each.

69.     In this case the facts are known and uncontested. Due to the “four corners

rule”, the only relevant facts are the wording of the deeds in question. “What

might otherwise be a question of fact becomes one of law when the fact is not in

dispute or is conclusively established.” Perry Homes v. Cull, 258 S.W.3d 580 (Tex.

2008).

70.     Under a proper four-corners analysis, the focus belongs on the text of the

conveyances, not on parol evidence such as the purported intent of the original

grantors in the deeds, who are not parties hereto. The conveyances speak clearly.

Contrary to Appellant’s frivolous assertion, it is pellucidly clear that under long

standing Texas law they include valid specific survey descriptions as well as valid

“county-wide” or “blanket” descriptions of all of each Grantor’s mineral interest in

Harrison County. They reach all of each Grantors’ mineral interests in Harrison

County. Appellant has demonstrated no repugnance between the general and specific

granting clauses which would render the deeds at issue ambiguous.

The Court enforced the deeds, and properly rendered judgment for Appellees

71.     The trial court properly construed the conveyances. Outsourcing that task to

a jury would have constituted error. The error would have been harmful if it resulted




                                    Page 32 of 73
in an improper judgment where no fact issues existed. It could have caused the trial

court to render judgment against Davis - essentially taking away Davis’ properties

and giving them to Appellant - when judgment was properly in favor of Davis.

72.   As to Appellant’s claims, the trial court properly quieted Davis’ title in the

disputed property interests.

PAROL EVIDENCE

Subsequent Purchase Offers, Check, and Email Not Competent Summary
Judgment Evidence of Sufficiency of Property Description in Deeds

73.   In light of the overwhelming authority upholding county-wide and survey-wide

property descriptions discussed herein, Appellant references in his Brief voluminous

parol evidence (evidence in the form of post conveyance correspondence with Cope

from Appellees regarding an offer to purchase her interests, an email from Appellees

indicating that Cope sold her interests to another company and a check sent to Mills

in 2007). Appellant attempts to use parol evidence to interpret what are unambiguous

deeds. Appellant’s evidence is not probative with regard to the sufficiency of the

property descriptions at issue. O’Herin v. Neal, 56 S.W.2d 1105 (Tex.Civ.App. –

Texarkana, writ ref’d). The essential elements of an instrument may never be

supplied by parol. Wilson v. Fisher, 188 S.W.2d at 152. Only when a deed is subject

to two different reasonable interpretations should the court consider the



                                   Page 33 of 73
circumstances surrounding its execution. Remuda Oil Co. v. Wilson, 264 S.W.2d 192

(Tex. Civ. App. – Galveston 1954, writ ref’d n.r.e.). In the case at bar, the parties do

not present the Court with two reasonable interpretations of the deed – the county-

wide property description are either sufficient, or they are not. See Katz, 265 S.W.2d

at 688 and Sun Oil, 125 Tex. at 552-53. (County-wide deeds are not ambiguous).

Accordingly, parol evidence is not admissible to interpret the deeds. Additionally,

because the deeds are unambiguous on their face and contain adequate property

descriptions, parol evidence is not admissible to create an ambiguity, and such parol

was properly disregarded by implication by the trial court.

Subsequent Purchase Offers, Checks, and Email Not Competent Summary
Judgment Evidence of Sufficiency of Property Description in Deeds

74.   In light of the overwhelming authority upholding countywide deeds discussed

herein, Appellant attempts to use the parol evidence of a letter to Cope from

Appellees regarding an offer to purchase her interests, an email from Appellees

indicating that Cope sold her interests to another company and a check sent to

Grantor Mills in 2007. Appellant attempts to use parol evidence to interpret what is

an unambiguous deed. Appellant’s parol evidence is not probative with regard to the

sufficiency of the property descriptions at issue. Parol evidence may be admitted for

the limited purpose of identifying a property with a reasonable certainty from the data



                                     Page 34 of 73
in the instrument. O’Herin, 56 S.W.2d 1105. The essential elements of an instrument

may never be supplied by parol. Wilson,188 S.W.2d at 152. Only when a deed is

subject to two different reasonable interpretations should the court consider the

circumstances surrounding its execution. Remuda Oil Co., 264 S.W.2d 192. In the

case at bar, the parties did not present the trial court with two reasonable

interpretations of the deed – the property description are either sufficient under (or

as an exception to) the Statute of Frauds, or they are not. The uncontested authority

cited by Appellees in support of blanket property descriptions established the deeds

were unambiguous as a matter of law. Accordingly, the trial court did not err in

rejecting this parol evidence to interpret the deeds and granting summary judgment

in favor of Appellees on each deed.

      IV.    The deeds in question contain blanket (“county-wide”) property
             descriptions, specific survey-wide descriptions and a separate and
             distinct habendum or Mother Hubbard clause.

75.   Appellant persists in the erroneous argument that Appellees cannot take under

the “catch all” Mother Hubbard Clause. The conveyances at issue contain both

specific survey and general, county-wide property descriptions, as well as a separate

habendum or “Mother Hubbard “ clause. The validity of “blanket”, “county-wide”

or “all my property” descriptions is set forth at length hereinabove. See ¶¶ 42-57,




                                    Page 35 of 73
supra. In addition, Davis’ summary judgment motion set forth the authorities which

dictate that when the specific and general property description clauses do not conflict,

or are not “repugnant”, as the cases say, the deed complies with the statute of frauds.

Appellant has neither alleged nor demonstrated from the record any repugnance

between the general and specific descriptions in the deeds.

76.   Appellant’s assertion that Appellees attempt to rely on the “cover all” clause

to convey all the interests of the conveyances at issue in Harrison County, Texas to

Appellees is patently false.

77.   Appellees do not and have never claimed the Mother Hubbard or habendum

clauses in the deeds conveyed anything to Appellees. Appellant ignores the facts and

misrepresent Appellees’ position to this Court just as it ignores the voluminous case

law supporting the 1991 deeds. Knowing his statute of frauds argument is a frivolous

one, Appellant resorts to creating strawman arguments such as this.

78.   Each conveyance contains 1). a general blanket granting clause; 2). a specific

granting clause; and 3). a “strips and gores” or habendum/Mother Hubbard clause.

79.   The general granting language, or county wide property description in the Cope

conveyance reads as follows:

      “Grantor hereby conveys to Grantee all of the mineral, royalty, and
      overriding royalty interest owned by Grantor in Harrison County,



                                     Page 36 of 73
       whether or not same is herein above correctly described18.”

(CR 1826).

80.    In the Cope conveyance, the specific granting clause contains survey and unit

descriptions as follows:

       “. . . all of my interest in and to all oil, gas, and other minerals in, on,
       and under, and that may be produced from the following lands (the
       “Lands”) . . . situated in the County of Harrison, State of Texas, to wit:

              All of those certain tracts or parcels of land out of the following
              surveys in Harrison County, Texas described as follows:

              1)     704.00 acres out of the G.W. PETTY, ET AL, A-
                     582, ET AL, known as the “AMOCO PRODUCING
                     COMPANY – JOHN HARRISON JR ‘B’.”

              2).    671.260 acres out of the JOSEPH E WHITE, A–755, ET
                     AL, known as the “AMOCO PRODUCING COMPANY –
                     CHARLOTTE M HYNSON GAS UNIT.”

              3)     671.260 acres out of the JOSEPH E WHITE, A-755,
                     known as the “AMOCO PRODUCING COMPANY-
                     CHARLOTTE MORRIS HYNSON”

              4)     704.00 acres out of the S.T. WATTS, A-739, known as the
                     “PEAK ENERGY CORPORATION - WILIAM H LANE.”

              5)     644.200 acres out of the J.S. BELL, A-96, known as the
                     “PEAK ENERGY CORPORATION - WILLIAM H
                     LANE.”


       18
       This language is similar to language routinely used by Appellant. (See CR 1832-1833,
CR 1834-1835, CR 1255, CR 1259 and CR 1263).


                                       Page 37 of 73
             6)    704.00 acres out of the G. JOHNSON, ET AL, A-359, ET
                   AL, known as the “AMOCO PRODUCING COMPANY -
                   MCELROY-CHEATHAM UNIT.”

             7)    677.800 acres out of the HENRY VARDEMAN, A-726,
                   known as the “KEY PRODUCTIONS COMPANY - BEN
                   POPE ET AL.”

             8)    40.000 acres out of the S. SHOTO, ET AL, A-632-722,
                   known as the “PETROLEUM PRODUCING
                   MANAGEMENT - TR #34 BETH GR NO UT.”

             9)    43.000 acres out of the S. SHOTO, ET AL, A-632, known
                   as the “PETROLEUM PRODUCING MANAGEMENT -
                   TR #40 BETH GR NO UT.”

             10)   625.550 acres out of the E. A. MERCHANT, A-430,
                   known as the “EP OPERATING COMPANY - WHITE-
                   DAVID.”

(CR 1826).

81.   The third clause is a ‘strips and gores” or habendum clause, which Appellees

have never relied on to assert their interest in the property conveyed by the two 1991

deeds at issue. The “cover all” clause Appellant refers to reads as follows:

      The “Lands” subject to this deed also include all strips, gores, roadways,
      water bottoms and other lands adjacent to or contiguous with the lands
      specifically described above and owned or claimed by Grantors.”

(CR 1826).

82.   The general granting language, or county wide property description in the Mills



                                    Page 38 of 73
conveyance reads as follows:

       “Grantor hereby conveys to Grantee all of the mineral, royalty, and
       overriding royalty interest owned by Grantor in Harrison County,
       whether or not same is herein above correctly described.19”

(CR 1828)

83.    In the Mills conveyance, the specific granting clause states:
       “. . . all of my interest in and to all oil, gas, and other minerals in, on,
       and under, and that may be produced from the following lands (the
       “Lands”) . . . situated in the County of Harrison State of Texas, to-wit:

             All of those certain tracts or parcels of land out of the following
       surveys in Harrison County, Texas described as follows:

              1)     704.00 acres out of the G. W. PETTY, ET AL, A-582, ET
                     AL, known as the “AMOCO PRODUCING COMPANY -
                     JOHN HARRISON JR ‘B’.”

              2)     704.00 acres out of the G. JOHNSON, ET AL, A-359, ET
                     AL, known as the “AMOCO PRODUCING COMPANY -
                     MCELROY - CHEATHAM UNIT.”

(CR 1828).

84.    The third clause is a ‘strips and gores” or habendum clause, which Appellees

have never relied on to assert their interest in the property conveyed by the two 1991

deeds at issue. The “cover all” clause Appellant refers to reads as follows:

       The “Lands” subject to this deed also include all strips, gores, roadways,


       19
       This language is similar to language routinely used by Appellant. (See CR 1832-1833,
CR 1834-1835, CR 1255, CR 1259 and CR 1263).


                                       Page 39 of 73
      water bottoms and other lands adjacent to or contiguous with the lands
      specifically described above and owned or claimed by Grantors.”

(CR 1828).

85.   It is irrefutable that each deed contains both a general, county-wide granting

clause, a specific survey description clause and a separate and distinct standard

Mother Hubbard or habendum clause. Appellees claim through the valid county-wide

conveyance, not the Mother Hubbard clause. Where the general property description

broadens and enlarges the specific (here survey-wide) property description, and there

is no repugnance between the specific and general, both are valid. See discussion of

Katz at ¶ 62.

86.   Two distinct lines of Texas cases apply to the interpretation of general

descriptions in real property conveyances. The first line of cases, illustrated by

Holloway's Unknown Heirs v. Whatley, and Texas Consolidated Oils v. Bartels, holds

that a grantor may convey all of his interests in a specified geographic area by use of

a “geographic grant.” When Mills and Cope conveyed “all of the mineral, royalty and

overriding royalty interest owned by Grantor in Harrison County” they employed a

geographic, blanket grant; under Holloway's, all of those mineral interests in Harrison

County passed to Appellee. (The instruments at issue in these cases generally contain

two grants -- a grant of one or more specifically described tracts followed by the



                                     Page 40 of 73
geographic, blanket grant. The Mills and Cope deeds each contain two grants.)The

second line of cases includes Jones v. Colle, and many of the cases cited by

Appellant. 727 S.W.2d 262 (Tex. 1987). The instruments in these cases include only

a single grant followed by a strip and gore clause. Strip and gore clauses prevent the

isolation of small strips of land contiguous to specifically-described parcels that were

erroneously omitted from the specific description due to inaccurate surveys,

misplacement of fence lines, and the like. Unlike blanket, county - wide grants, strip

and gore clauses are not separate grants--they merely operate to correct mistakes

made in specific descriptions. Under Jones, a strip and gore clause may convey only

small strips of land adjacent to the specifically described tracts. Appellant is

misguided in attempting to apply the Jones line of cases to the Mills and Cope deeds

because the deeds at issue contain general, blanket grants, specific survey grants in

addition to a strip and gore clause. The interpretation of Blanket grants is governed

by the Holloway's line of cases, which have recognized and upheld blanket grants for

over 120 years.

      V.     The record does not demonstrate repugnance between the general
             (“county-wide”) and specific (survey-wide) grants. Therefore, the
             general grant enlarges the specific




                                     Page 41 of 73
87.   No Repugnance Means General, County-Wide Grant Expands the Specific

Grant. The general county-wide grants are adequate property descriptions in and of

themselves to support valid deeds because the record is devoid of any showing of a

conflict or repugnance between the general and specific granting clauses in the deeds.

See Sun Oil at 446 and Katz, 265 S.W.2d at 688. The deeds at issue contain both a

specific granting clause, identifying particular surveys, and the general, county-wide

granting clause. Every part of an instrument should be harmonized and given effect,

if it can be done. Hancock v. Butler, 21 Tex. 804, 806 (1858).

88.   Courts should not give greater weight to either a general or a particular grant

absent a repugnance between the two. Cullers v. Platt, 81 Tex. 258, 263-64 (1891).

Because the specific unit, survey and abstract descriptions are each located in

Harrison County, the specific and the general descriptions are harmonized.

Accordingly the Court should give effect to both granting clauses. See Holloway’s

Unknown Heirs, 131 S.W.2d at 91-92.

89.   Courts have applied the cannons of construction in cases with facts like those

at issue in the case at bar. In Holloway’s Unknown Heirs, Holloway conveyed

additional land to Whatley in a deed with language stating, “If there is any other land

owned by me in Liberty County, Texas . . . it is hereby conveyed”. 131 S.W.2d at 90.




                                     Page 42 of 73
When a dispute arose as to whether the second deed, or general clause conveyed

mineral interests received in the first deed, the Texas Supreme Court concluded that

the intent expressed in the second deed by the grantor was to convey all of the land

owned by him in Liberty County by a valid conveyance. Id at 91-92.

90.   Sun Oil Co. v. Burns addressed an oil and gas lease which contained both a

specific description and a survey-wide description. 84 S.W.2d 442. The court ruled

that the two grants, one specific and one survey-wide, needed no construction as they

were not susceptible of more than one meaning. Id. at 444. The court ruled that the

deed declared in plain and unmistakable terms the intent to include within the lease

the land specifically described and any other land owned by lessor within the named

surveys. Id.. The court noted that a particular description only controls over a

general description if there is a conflict or repugnance. Id. at 446-47.

91.   The Sun Oil case is on point with the facts of this case and specifically

recognizes the survey-wide grants of all Grantor’s interest in the named survey as

adequate under the Statute of Frauds. The Sun Oil court approved the blanket

property descriptions, stating:

      In seeking to ascertain from the entire instrument the true intention of
      the parties as to the land to be affected by and included in the lease, we
      find that the instrument in describing the land leased sets out first by
      metes and bounds the 106.25-acre tract, and that this description is


                                    Page 43 of 73
      immediately followed by the clause which states the intention of the
      lessor to include within the terms of the lease, not only “the above
      described land,” but also any and all other land owned or claimed by
      the lessor in the survey or surveys in which “the above described land”
      is situated or in adjoining surveys and adjoining “the above described
      land.” This language needs no construction. It is not fairly susceptible
      of more than one interpretation. It not only shows, but it declares in
      plain and unmistakable terms, the intention of the grantor to include
      within the lease, not only the land particularly described, but also any
      other land owned or claimed by the lessor in the same survey or in
      adjoining surveys and adjoining the land particularly described.

Sun Oil, 125 Tex. at 552-553 (emphasis supplied).

92.   The Sun Oil case not only affirms the validity of a blanket conveyance which

enlarges a specific conveyance, it declares such a grant unambiguous, in that it “is

not fairly susceptible to one interpretation.” Id.

93.   Relying upon and discussing Holloway, Sun Oil and Katz, the San Antonio

Court of Appeals, in an unpublished opinion, ruled that a general granting clause

which broadens a specific granting clause was unambiguous. Garcia v. Garcia, 2006

WL 1684742 (Tex. App. – San Antonio, June 21, 2006, pet. denied). The court

rejected appellee’s invocation of J. Hiram Moore, Ltd. v. Greer, reasoning that unlike

the Greer case, there was no repugnance between the general and specific granting

clauses in the deed at issue. As in the Garcia case, no repugnance between the

granting clauses in the deeds at issue has been demonstrated from the record by




                                     Page 44 of 73
Appellant because none exists. This Court should similarly reject Appellant’s

invocation of Moore.

94.   Appellant’s reliance on the Moore case is misplaced. Appellant contends that

the holding in the Moore case “indicates that if there is ambiguity, then the intent of

the parties may be heard by a jury. (AB 10, 14, 18-19). This is a simplistic and

mistaken reading of Moore. The Moore case is inapplicable to the facts of this case.

In Moore, Grantor’s deed contained two granting clauses which were repugnant. The

deed contained a grant of all mineral interests in a particular unit and survey as well

as a conveyance of all oil, gas and minerals in the county. Moore, 172 S.W.3d at 612.

The problem with the Moore deed was that the named unit contained tracts in two

different surveys, in one of which Grantor owned no interest. Id. at 614. The Court

stated that because the specific grant described interests grantor did not own, “The

deed in effect states that Moore conveys nothing, and that she conveys everything.”

Id. The court concluded that, because of this inconsistency a repugnance existed and

as a result it could not construe the deed as a matter of law. Appellant has made no

showing by competent summary judgment evidence that any repugnance or

inconsistency whatsoever exists between the general and specific granting clauses in

the deeds at issue. A party cannot draft a document any better or clearer than by




                                     Page 45 of 73
providing an express provision reciting in detail the specific intent of the parties. The

general, county-wide grant of mineral interests only contains the “ample phrases”

“all” and “whether or not the same is herein above correctly described” discussed in

Sun Oil. See p. 23, n. 16. Thus, Moore is inapplicable to the facts of this case.20

Accordingly, because Appellees’ deeds contain valid general county-wide and

specific survey-wide descriptions, the trial court did not err in granting summary

judgment in favor of Appellees and denying Appellant’s Motion for Partial Summary

Judgment.

Appellant’s argument that an ambiguity exists is based, in part, on a
misinterpretation of the Allison case. (AB 13-15, 17)

95.    The deed in Allison was ambiguous because the specific grant covered only the

minerals in a certain tract while the general description conveyed full fee title (surface

and minerals) in the same tract. Smith v. Allison, 157 Tex. 220, 224-225, 301 S.W.2d

608, 611-12 (1956). The court found the two clauses to be in conflict and repugnant

to each other, and incapable of being harmonized to show the intent of the parties.

No such problem exists in the case at bar because the general, county-wide granting

       20
          While it does not apply to the facts of this case because the specific and general
granting clauses in the deeds at issue do not conflict, the Greer holding is an oddity that should
be construed narrowly within the facts of the case. Justice Hecht, concurring, stated “The dissent
discerns no principle in the Court’s decision, but there is one, and a very reasonable at that: hard
cases make bad law.” Justice Hecht further cautioned that “it only rarely happens that general
grants can not be given literal effect...”(emphasis supplied).


                                          Page 46 of 73
clause only purports to convey all the minerals owned by each grantor in the county,

and not the surface estate. See (CR 1826 and CR 1826) and ¶¶24-25. The trial court

correctly considered the intent language and other language in the deeds to determine

the deed were not ambiguous.

      VI.    Appellant, who is not in privity with Appellees, has no standing to
             challenge the deeds at issue based on alleged misconduct or lack of
             consideration

96.   It is undisputed that Appellant is a third party to the deeds. As a matter of law

Appellant has no standing to challenge the deeds based on misconduct (fraud, duress,

etc.). Additionally, Appellant as a third party to the deeds has no standing to

challenge the deeds based on failure or lack of consideration as a matter of law. One

who is not in privity with grantee has no standing to set aside a conveyance for

fraud, undue influence, or failure of consideration. See Berger v. Berger, 578

S.W.2d 547, 549 (Tex.Civ.App.Houston [1st Dist.] 1979, no writ).

97.   Appellant is not a party to the deeds, therefore, he has no standing to raise

intent of parties and inject parol evidence. The four corners of each deed either

contains a valid legal description or they do not.

98.   It is well-settled in Texas that a deed or other agreement that fails to comply

with the Statute of Frauds is, as between the parties to that deed or agreement, at




                                    Page 47 of 73
worst voidable. It is not void. See Eland Energy, Inc. v. Rowden Oil & Gas, Inc., 914

S.W.2d 179, 186 (Tex. App. - San Antonio 1995, writ denied). Consequently,

someone not a party to that deed or agreement has no standing to challenge its

enforceability. See Madera Prod. Co. v. Atlantic Richfield Co., 107 S.W.3d 652, 662

(Tex. App. - Texarkana 2003, no pet.); Davis v. Campbell, 524 S.W.2d 790, 794 (Tex.

Civ. App. - Dallas 1975, no writ). Summary judgment on Appellant’s fraud and

failure of consideration, and voidness claims were properly granted based upon

Appellant’s lack of standing. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852

S.W.2d 440, 444 (Tex. 1993)(standing is necessary component of court's subject

matter jurisdiction and cannot be waived).

99.   Even if Appellant somehow has standing to challenge the sufficiency of the

property description in the conveyances, he still does not have standing to invalidate

those conveyances based on misconduct (fraud, duress, undue influence, etc.)

supposedly committed by Appellees. See Nobles v. Marcus, 533 S.W.2d at 927 (Tex.

1976) (“A suit to set aside a deed obtained by fraud can only be maintained by

the defrauded party.”); Smith v. Carter, 45 S.W.2d 398, 400 (Tex. Civ. App. -

Texarkana 1931, writ dism'd)(fraud, duress, wrongful influence does not render deed

void, “but merely voidable,” and may be raised only by person defrauded or




                                    Page 48 of 73
wrongfully influenced). Because of their lack of standing, Plaintiffs in Smith were

precluded from arguing on appeal that the deeds should be set aside based on fraud,

duress, undue influence, etc. See Id.

      VII. None of Appellant’s authorities challenge or distinguish the
           authorities upholding county-wide/blanket conveyances.

A.    Several of the authorities cited by Appellant, in fact, support the
      compliance of county-wide/blanket property description with the statute
      of frauds

100. All the cases relied on by Plaintiff merely state the test to determine if a

conveyance’s property description satisfies the Statute of Frauds. None of the cases

address the overwhelming and long standing authority cited by Appellees upholding

county and survey-wide conveyances as unambiguous expressions of the intent of the

parties adequate to convey the real property interests. Not one of the cases cited by

Appellant addresses the issue of a blanket property description conveying all of

Grantor’s mineral interests in the State, a named county, or named survey or

abstract21. Appellant’s reliance on the cases he cites is misplaced because the

property descriptions in those cases are not similar to the language in the conveyances

at issue in this case in they are not blanket county-wide or survey-wide descriptions

and there is no repugnance between the specific and the general granting clauses.


      21
           Appellant addresses Sun Oil v. Burns, see discussion at ¶ 56, fn. 16.


                                            Page 49 of 73
Appellant’s Brief constitutes an alarming lack of candor to this honorable Court in

that it does not even acknowledge that the cases he cites requiring specific metes and

bounds property descriptions are subject to the exception of blanket description

conveying all property in a clearly defined area. (AB 10-16). See Dauley, 535 S.W.2d

at 628. Most of the cases cited by Appellant address descriptions which attempt to

convey an undefined smaller tract out of a larger tract, which is not at issue in this

case.

Cases Cited by Appellant - Do Not Address Exception of Blanket Descriptions

101.    Wilson v. Fisher, (AB 11) cited by Appellant, is distinguishable. 144 Tex. 53,

188 S.W.2d 150 (Tex. 1945). In Wilson the Supreme Court of Texas found that a

conveyance of a house was insufficient where the contract did not mention the

county, city or state where the house was located and there was no mention of the

owner of the property. Id at 56 . A description consisting of all Grantor’s interests

in the state or a named county was not at issue. In fact, the court in Wilson, albeit in

dicta, recognized the validity of a blanket conveyance. Wilson,188 S.W.2d at 153.

102. In Pick v. Bartel (AB 10) the conveyance at issue was insufficient because

there was no reference to an existing writing to describe the servient estate relating

to an easement, no owner was stated, a county, city or town was not mentioned, and




                                     Page 50 of 73
there was no lot or block number in the deed to identify the property. 659 S.W. 2d

636, 638 (Tex. 1983). This case is inapplicable to the case at bar. This case does not

address a property description consisting of all of Grantor’s interests in the state or

a named county. Appellee’s deeds conveying all Grantor’s interests identify Harrison

County and specific surveys.

103. Matney v. Odom (AB 11) is not applicable to the case at bar. 147 Tex. 26, 210

S.W.2d 980, 982 (Tex 1948). Matney addresses the conveyance of an unspecified

tract of land out of a larger tract. Id at 28-29. Additionally, the court ruled that the

property description in the instrument, a lease agreement with an option to purchase,

did not state that Grantor owned the larger tract. Because this case does not address

a countywide conveyance of all Grantor’s interests in the State or a named county, it

is inapplicable to the case at bar.

104. The Texas Supreme Court has cited Matney and other cases for the proposition

that deeds containing property descriptions without boundary lines, beginning points

or other means by which the property can be located are often held insufficient to

meet the Statute of Frauds. See U.S. Enterprises, Inc., 535 S.W.2d at 628. In U.S.

Enterprises the Texas Supreme stated that deeds like that in Texas Consolidated

Oils v. Bartels, where a grantor conveys all interests owned by him in the state




                                      Page 51 of 73
or a named county, as an exception to the general rule stated in Matney. Id.

105. Republic National Bank of Dallas v. Stetson (AB 11-12) is not applicable to the

case at bar. 390 S.W.2d 257 (Tex. 1965). Republic addresses purported conveyances

in acknowledgments of tenancy. Id at 259. The purported conveyance contained a

legal description and did not specify the county in which the land was situated. Id at

260. Because the case did not address a conveyance of all Grantor’s interests in a

named county it is inapplicable to the case at bar.

106. Jones v. Kelly (AB 10) concerned the construction of four documents

comprising the sale of real property. 614 S.W.2d 95,97 (Tex. l981). The Court ruled

that, construed together, the four documents provided an adequate property

description. Because this case does not address a conveyance of all Grantor’s

interests in a named county or survey, it is inapplicable to the case at bar.

107. Fears v. Texas Bank (AB 11) considered a conveyance which contained a

property description referring to a smaller tract within a larger tract. 247 S.W.3d 729

(Tex. App.– Texarkana 2008, pet. den’d). Like the Court in Matney, the Fears Court

ruled that without proper identification of what portion of the larger tract was being

conveyed, the property description was insufficient and vague. Id at 737-738. Fears,

like Matney, is inapplicable to the case at bar. The general description at issue is not




                                     Page 52 of 73
an unidentified portion of a larger tract, as in Fears but rather all property owned by

Grantor in Harrison County and specific surveys, and thus valid under the long line

of cases affirming county-wide property description cited herein.

108. Douglass v. Texas-Canadian Oil Corp. (AB 12) is not applicable to the facts

of the case at bar in that it does not address a grantor conveying all of his interests in

a defined geographic area. 141 Tex. 506, 174 S.W.2d 730 (1943). The property

description at issue in Douglass case consisted of a draft stating “subject to full lease

on 74.2 ac lease. . . .[f]or 37.1 acres of land in Wood County, Texas Value Received

and Charge the same to Account. . ..” Id. The conveyance in Douglass does not

purport to be a conveyance of all of grantor’s interest in a defined geographic area.

Moreover, the primary issue addressed in the case was whether a lease contract

attached to the memorandum was sufficient to satisfy the statute of frauds. Id. The

Court ruled that it was not, because the documents did not show their connection by

their own contents. Id at 731. Because this case does not even address a blanket

property description, it should be disregarded as irrelevant to the issues on appeal.

109. Jones v. Carver, (AB 12) like the foregoing cases cited by Appellant, does not

address a blanket or recital of ownership conveyance of property in a defined area.

59 Tex. 293 (1883). The instrument at issue was a bond which stated “The condition




                                      Page 53 of 73
of the above obligation is such, that whereas the said Carver has sold unto said Smith

a piece of land, supposed to be forty acres, for $160, $150 of which is paid, the

balance, at $4 per acre, to be paid when a deed is made. . .” Id at 294 (emphasis

supplied). No where in this opinion does the Court address this conveyance as a

recital of ownership or a blanket description. The Court states “The only part of the

instrument sued upon bearing upon the description of the land is “a piece of land

supposed to be forty acres.” It is not stated out of what grant it is to be taken, or that

it is an entire grant; nor is it even stated in what county or state the land is situated.”

Id. at 294. As this case does not address valid blanket property descriptions, it is not

persuasive authority and should be disregarded.

110. Pfeiffer v. Lindsay (AB 12) involves the construction of a Sheriff’s deed

describing land sold on execution as “fifty acres of the J. M. Moss survey, situated

in Montague county, Texas, abstract No. 462, situated near the town of September

Fort, Montague county, Texas, and described as beginning, etc.” 66 Tex. 123, 124,

1 S.W. 264 (1886). The Sheriff’s deed at issue was determined to be an insufficient

property description in that no one could tell what the shape of the 50 acres was, nor

in what part of the Moss survey it was situated. Id. at 124. This case does not

address a blanket property description. Had the Sheriff’s deed contained a property




                                      Page 54 of 73
description of all property owned by Mr. “X” in Montague County, Texas, a different

result would have been reached. That is not the case. Accordingly, Pfeiffer is not

applicable to the facts in the case at bar.

111. In Smith v. Sorrelle (AB 12) the description was an undefined “100 acres out

of Blocks 8 and 9 of the subdivision of Jose Maria Pineda Survey, which was

patented to Adolphus Stern, Pat. 608, Vol. 2, three miles North of Gladewater,

Texas.” 26 Tex. 353, 355, 87 S.W.2d 703, 703-04 (1935). No attempt was made to

define the land by filed notes. Id at 358. A deed which purports to describe only by

quantity and being a portion of a larger tract, with nothing more to identify that

specific portion of the larger tract that is intended to be conveyed, is void for lack of

certainty. Id. at 705-706. Nowhere in the Sorrelle opinion does the Court address a

blanket property description purporting to conveying all property within a defined

geographic area. Accordingly, like the other cases cited by Appellant, Sorrelle is not

applicable to the case at bar.

112. Stekoll Petroleum Co. v. Hamilton (AB 11) does not address a blanket property

description. 152 Tex. 182, 255 S.W.2d 187 (1953). The contract for sale at issue in

Stekoll contained the clause “. . .Sellers hereby grant to Buyer as a part of the

consideration for the first contract an option to acquire said leases on 4,000 of the




                                      Page 55 of 73
5,000 acre block No. 2 hereinabove referred to, said 4,000 acres to be selected by

Buyer leaving Sellers 1,000 acres equitably checkerboarded in a fashion similar to the

checker-boarding in the first block above identified. . .” Id. at 189. The Court did rule

on a blanket property description. Rather, the Court ruled that the above description

made uncertain and indefinite the land on which the Petition was to acquire the lease

and which land was to be left to Respondents. Id. at 191. The Court relied on cases

stating that when a deed gives to the grantee a tract of land of so many acres to be

selected by him out of a larger body owned by the grantor, the grantee does not

acquire a present title, but acquires an equitable right to make the selection and

therefore become owner of the tract selected, “but the equitable right may be lost by

delay in making the selection.” Id. (internal citations omitted). Because the case

before this Court does not present a situation where a grantor conveys a right to make

a future selection of undetermined acreage, the Stekoll case has no bearing on issues

in this appeal and should be disregarded accordingly.

113. Tidwell v. Cheshier (AB 11) is inapplicable to the case before this Court for

several reasons. This case addresses the sufficiency of the writing to support

collection of brokerage fees by a realtor under the Real Estate Dealers License Act

at the time of the decision. 153 Tex. 194, 265 S.W.2d 568 (1954). Once again, this




                                     Page 56 of 73
case cited by Appellant addresses the situation where an undefined smaller tract of

land out of a larger tract of land are identified in the property description. Id. at 569.

No where in Appellees deed does the description purport to convey a smaller portion

out of a larger portion. On the contrary, Appellees deeds contain survey wide and

valid blanket county-wide property descriptions.

114. Morrow v. Shotwell (AB 10-11) is yet another case where an insufficient

description of a smaller tract out of a larger tract does not satisfy the statute of frauds.

477 S.W.2d 538 (Tex. 1972). No where in this case does the court address a blanket,

recital of ownership deed conveying all of the grantor’s interest in a defined

geographic area. Accordingly, this case is inapplicable to the issues before this

Court.

115. AIC Mgmt. v. Crews (AB 10) focuses on whether the County Court at Law in

Harris County, Texas had subject matter jurisdiction with respect to a title dispute,

regardless of the amount in controversy. 246 S.W.3d 640, 643-644 (Tex. 2008). Of

the many cases cited by Defendant that do not address blanket property descriptions

at all, this does address such descriptions in that AIC, the purchaser of a tract of land

from the County after a tax foreclosure, claimed they took title through a valid

blanket property description. Id. at 648-49. The problem presented to the court was




                                       Page 57 of 73
not the enforceability of blanket property descriptions, but rather the dimensions of

the “defined geographic unit” from which the grantors “involuntary” transfer was

made was      constantly changed by the Harris County Appraisal District. Id.

Accordingly, the Supreme Court reversed this part of the judgment and remanded for

further proceedings to determine whether the Harris County Appraisal District

records showed the defined geographic units of “tract 12 as clearly drawn on a map.”

Id at 649. In the case before this Court there is no such issue as the geographic

territory of Harrison has not changed since 1991.

116. The Dixon v. Amoco Prod. Co. (AB 10, AB 12) Court’s holding supports what

Appellees contend – that the sufficiency of a legal description in any instrument

transferring a property interest is a question of law for the Court and does not present

fact questions. 150 S.W.3d 191, 194 (Tex. App.—Tyler 2004, pet. denied). The

Court, agreeing with Amoco, held that the property description was sufficient. Id.

In reaching its decision the Court said the un-rebutted testimony of the surveyor

witness that the property could be identified with reasonable certainty. Id. at 195.

The issue of the blanket or recital of ownership description was not at issue, and is

therefore, not applicable to the issues at bar.

117. Jones v. Colle, (AB 14) addresses whether a large (in this case 73% of the




                                     Page 58 of 73
acreage conveyed in the lease) could be conveyed under a Mother Hubbard clause.

727 S.W.2d 262 (Tex. 1987). As detailed at ¶¶ 75-86, Appellees do not claim under

a Mother Hubbard clause, but rather claims under the separate valid county-wide

grant. Accordingly, this case is not applicable to the case at bar.

118. Smith v. Allison (AB 13-15 and AB 17) is also inapplicable to the case before

this Court. In Allison, the instrument “conveyed by specific description an undivided

1/2 interest in the oil, gas, and other minerals in and under the southeast 1/4th and the

northwest 1/4th of Section 124, Block 25.” 157 Tex. 220, 221, 301 S.W.2d 608, 610

(1956). Following the specific description was what the Court determined to be an

ambiguous general granting clause. Id. Unlike in the case at bar, the general granting

clause was not a blanket property conveyance. Additionally, Appellant fails to

recognize the Texas Supreme Court’s ruling that where there is no repugnance

between the specific and general granting clause, there is no ambiguity. Id. at 612.

The Allison Court discusses Lauchheimer v. Saunders (27 Tex. Civ. App. 484, 65

S.W. 500 (1901, no writ)) in which a deed of trust and deed described certain parcels

of land conveyed and also contained a general clause that grantor was conveying “all

of his real estate in Coryell County, whether described or not, except his homestead.”

Id. The Texas Supreme Court held that there was “. . . no repugnancy between




                                     Page 59 of 73
to two matters of description. . ..” Id.(emphasis supplied). The specific and general

descriptions in Lauchheimer are not unlike the specific and general descriptions in

the case at bar. Appellant’s reliance on Allison is misplaced, and this Court should

instead follow the Texas Supreme Court’s analysis in Lauchheimer.

119. Windsor v. Loyd, (AB 13), is another case cited by Appellant which supports

Appellees’ position. 191 S.W.2d 521 (Tex. App. – Texarkana 1945, writ ref’d). The

Windsor Court states that when “there is no ambiguity in the instrument and the

provisions set out are not repugnant or conflicting, there arises no occasion for

harmonizing them.”      Id. at 523.     In Windsor, the specific description was

unambiguous and the general description was found to be ambiguous. Id. That is not

the case in the case at bar. The blanket, county-wide language expands upon the

specific property description in each 1991 deed, and the general geographic area –

Harrison County – is unambiguous.

120. Sun Oil Co. v. Bennett (AB 13-14) is a case involving a question of mutual

mistake. However, like the two cases cited previously, Bennett is beneficial to

Appellees. 125 Tex. 540, 84 S.W.2d 447 (Comm'n App. 1935). Language in the

conveyance that included “. . . not only the above described land, but also any and all

other land owned or claimed by lessor in said survey or surveys in which the above




                                     Page 60 of 73
described land is situated or in adjoining surveys and adjoining the above described

land” was intended to include the 2.59 acre tract that was in controversy in the

conveyance. Id. at 448. The Court, relying on the reasoning in Sun Oil Co. v Burns,

held that the “land in controversy in the lease to Sun Oil Company clearly and

unmistakably appears from the language of the lease.” Id. at 449. The court stated

“When once negotiations have ripened into a written instrument executed by the

parties, and the instrument is plain and unambiguous, the agreement and the intention

of the parties . . . are to be determined by the court as a matter of law.” Id. at 451.

The two 1991 conveyances at issue in the case at bar were determined as a matter of

law to be valid county-wide conveyances.

121. Peacock v. Schroeder (AB 13) is inapplicable to the case at bar because it

involved a lease wherein the Mother Hubbard clause was struck from the lease and

a question arose regarding easements. 846 S.W.2d 905 (Tex. App.—San Antonio

1993, no writ). The Peacock case does not discuss a blanket county-wide conveyance

like the ones in the case at bar. Therefore, the Peacock case is not applicable to the

case at bar and should not be considered by this Court.

      VIII. Appellant was on Notice of the Entire Contents of the Deeds Upon
            Filing of the Deeds in 1991 Pursuant to Texas Property Code
            §13.002




                                     Page 61 of 73
122. The Texas Supreme Court’s recent ruling in Cosgrove v. Cade, 14-0346, 2015

WL 3976719 (Tex. June 26, 2015) which reversed a Fort Worth Court of Appeals

decision22 contrary to the Texarkana Court of Appeals’ decision in Trahan v. Mettlen,

428 SW 3d 905 (Tex. App- Texarkana 2014, no pet.) removes any doubt that

Appellant’s claims accrued the deeds were filed, rendering all of his claims (other

than the claim the deeds are void) decades beyond all applicable statute of limitations.

The Cosgrove case also confirms that Texas Property Code §13.002 imputes notice

of the harm claimed by each third party, including Appellant upon filing in the real

property records (and thus accrual of all causes of action negating any attempted use

of the “discovery rule”). Cosgrove, 2015 WL 3976719 at *3-4. The Cosgrove

decision holds that because knowledge of the contents of the deed is imputed to all

third parties, as a matter of law, Appellant cannot demonstrate that the injury of

which they complain could not be discovered with the exercise of due diligence. Id.

                     IX. SANCTIONS FOR FRIVOLOUS APPEAL

123. This Court has the authority under Texas Rule of Appellate Procedure 45 to

impose damages for filing a frivolous appeal. Rule 45 states:

        If the court of appeals determines that an appeal is frivolous, it may –

        22
          Cade v. Cosgrove, 430 S.W.3d 488 (Tex. App.—Fort Worth 2014), review granted (Jan. 30, 2015), rev'd,
14-0346, 2015 WL 3976719 (Tex. June 26, 2015).




                                               Page 62 of 73
      on motion of any party or on its own initiative, after notice and a
      reasonable opportunity for response -- award each prevailing party just
      damages. In determining whether to award damages, the court must not
      consider any matter that does not appear in the record, briefs, or other
      papers filed in the court of appeals.

Tex. R. App. P. 45.

124. Rule 45 gives wide discretion to the court of appeals in concluding that an

appeal is frivolous. See, e.g., Smith v. Marshall B. Brown, P.C., 51 S.W.3d 376, 381

(Tex. App.--Houston [1st Dist.] 2001, pet. denied) (“We hold that bad faith is not

required under Rule 45 and disavow language to the contrary in Fair Deal, Parker,

Swate and Morua.”)(Emphasis supplied) (internal citations omitted).

125. Appellant could have no reasonable expectation that the judgment would be

reversed based on existing law. See Compass Expl., Inc. v. B-E Drilling Co., 60

S.W.3d 273, 279-80 (Tex. App. – Waco 2001, no pet.); Mid-Continent Cas. Co. v.

Safe Tire Disposal Corp., 2 S.W.3d 393, 397 (Tex. App. – San Antonio 1999, no

pet.). Appellant has willfully ignored over one hundred twenty (120) years of

precedent that states the county-wide/blanket property descriptions in the deeds at

issue in this case are unambiguous and enforceable. Appellant’s primary contention -

that county-wide conveyances per se are violative of the statute of frauds is without

basis in law.




                                    Page 63 of 73
126. This Court, like it’s sister courts, should not tolerate the filing of a frivolous

appeal. See, e.g., Smith v. Brown, 51 S.W.3d 376, 382 (Tex. App. - Houston [1st

Dist.] 2001, pet. denied). As the Smith Court explained:

      The right to appeal is a most sacred and valuable one .... However, [w]e
      will not permit spurious appeals, which unnecessarily burden parties and
      our already crowded docket, to go unpunished. Such appeals take the
      court's attention from appeals filed in good faith, wasting court time that
      could and should be devoted to those appeals. No litigant has the right
      to put a party to needless burden and expense or to waste a court's time
      that would otherwise be spent on the sacred task of adjudicating the
      valid disputes of Texas citizens.

Id. at 381 (quoting Bradt v. West, 892 S.W.2d 56, 78-79 (Tex. App. - Houston [1st

Dist.] 1994, writ denied)) (citations omitted).

127. In addition, Appellant has raised issues contrary to established principles of

law without submitting a legitimate argument for those rules of law to be changed.

Brandt v. West, 892 S.W.2d 56, 79 (Tex. App. – Houston [1st Dist] 1994, writ

denied); see Owen v. Jim Allee Imps., Inc., 380 S.W.3d 276, 291 (Tex. App. – Dallas

2012, no pet.); Bullock v. Sage Energy Co., 728 S.W.2d 465, 468-69 (Tex. App. –

Austin 1987, writ ref’d n.r.e). Having ignored all contrary authority and citing cases

which address the rule to which blanket descriptions are the exception (or satisfy) the

statute of frauds, Appellant makes no attempt to argue that blanket property

descriptions should no longer be deemed adequate to satisfy the statute of frauds.



                                     Page 64 of 73
128. Numerous courts of appeals have assessed sanction damages against appellants

for bringing appeals that were frivolous. Some of those sanctions have been assessed

under the current Rule 45, with its broader authority for courts of appeals to find that

an appeal is frivolous, and some were under the stricter standard of the former Rule

84. Several of the older cases are included below as a guide for some of the aspects

that can help a court conclude that an appeal is frivolous, even though the Court no

longer restricted by those precedents. As the First Court of Appeals observed in

Smith, because of the substantive change from former Rule 84 to current Rule 45,

“bad faith is no longer dispositive or necessarily even material to deciding whether

an appeal is frivolous.” 51 S.W.3d at 381. In Smith, the appellant provided no

authority to show why his underlying case was not barred by res judicata. 51 S.W.3d

at 382. The First Court of Appeals concluded that the appeal was objectively

frivolous and that “no reasonable attorney could fail to conclude this court would

uphold the trial court's . . . judgment.” Id. (citing Mid-Continent Cas. Co. v. Safe Tire

Disposal Corp., 2 S.W.3d 393, 396-97 (Tex. App.--San Antonio 1999,. no pet.)

(internal quotation marks omitted). Likewise, Appellant has provided no authority

to support his position that “[t]he court erred when it did not hold that the

conveyances from Ms. Cope and Mr. Mills to Appellee in 1991, which do not contain




                                     Page 65 of 73
legally sufficient property descriptions, are void as a matter of law. The Appellee has

admitted in admissions that the conveyances do not contain a metes and bound

description, nor a Volume and Page reference to a prior document that was filed in

County Clerk’s office in Harrison County, Texas. According to the Statute of Frauds

these deeds are void as a matter of law.” (AB 8-9).

129. This Court has recognized the same standard, ruling that “after considering the

record, the briefs and other papers filed, Rule 45 of the Texas Rules of Appellate

Procedure permits us to award ‘just damages’”. Lee v. Aurora Loan Services, LLC,

No. 06-08-00077-CV, 2009 WL 167067, *2 (Tex. App.—Texarkana Jan. 27, 2009,

no pet.)(unpublished opinion) (internal citations omitted). This Court ruled that an

appeal is frivolous if it was brought with no reasonable grounds to believe that the

trial court’s judgment would be reversed. Id. citing Solares v. Solares, 232 S.W.3d

873, 883 (Tex. App. – Dallas 2007, no pet.) and Keith v. Solis, 256 S.W.3d 912, 919-

20 (Tex. App. – Dallas 2008, no pet.).

130. This Appeal is nothing more than a disingenuous attempt by Appellant”, to

continue to avoid the adverse consequences of the trial court judgment and recklessly

run-up costs and fees for Appellee Mr. Davis. Despite well-established case law in

Texas explicitly dictating to the contrary, Appellant continues to claim that blanket




                                     Page 66 of 73
property descriptions are violative of the statute of frauds because the do not contain

metes and bounds descriptions or refer to a filed instrument that does. (AB 8-9).

Appellant has cited at least nineteen (19) prior rulings of the Supreme Court of Texas,

the Fifth Circuit Court of Appeals, and intermediate appellate courts which have

already directly addressed this issue. The great majority of said authorities were

brought to the attention of Appellant in filings in the trial court. (CR CR 392-637,

CR 1015-1133, CR 1193-1201, and CR 1939-1955).

131. In filing this Appeal, Appellant is blatantly disregarding the referenced prior

rulings cited by Appellees to the trial Court. Appellant’s brief does not even deign to

reference, much less argue against or distinguish, all of the authorities supporting the

blanket descriptions in the deeds except one. The one decision Appellee cites he

blatantly misrepresents to this Court. See discussion of Appellee’s citation to Sun Oil

v. Burns page 25, fn 16. Conversely, Appellant fails to cite to one case which holds

counter to the authorities cited by Appellee sanctioning blanket property descriptions.

      X.     If the answer to Issue No. IX is in the affirmative,“just damages” to
             be awarded Appellees in defending this frivolous appeal under Rule
             45 is Appellees’ attorneys and costs incurred responding to the
             Appeal

132. In light of the foregoing, Appellant's Appeal of the Judgment is frivolous in

that Appellant has clearly ignored well-established precedent in Texas regarding



                                     Page 67 of 73
blanket property descriptions, and has now raised questions entirely contrary to

well-established principles of law without legitimately arguing for a change in the

law. See Owen, 380 S.W.3d at 291. This Court, therefore, should award Appellees

damages in the amount of their reasonable and necessary attorneys' fees incurred as

a result of defending this Appeal.

133. As detailed herein, Appellant has failed to even address the voluminous

authorities sanctioning the blanket property descriptions at issue as sufficient to

satisfy the statute of frauds. Accordingly, Appellant had no reasonable grounds to

believe that the trial court’s judgment would be reversed, and this Appeal is patently

frivolous. The filing of this frivolous appeal has cause Appellees to expend time,

money, effort and other resources to defend this appeal.

134. Where an appeal is found to be frivolous, discretionary sanctions may be

awarded. Lee, Id. citing Wallingford v. Trinity Universal Ins. Co., 253 S.W.3d 720,

728 (Tex. App. – Amarillo 2007, pet. denied).

135. In addition to removing the bad faith requirement, the previous limit on the

amount of sanctions that can be imposed has been repealed. Tex. R. App. P. 45,

comment to 1997 change. Although Rule 45 does not prescribe a method for

determining the amount of the “just damages,” courts typically award as




                                     Page 68 of 73
frivolous-appeal damages the reasonable attorney's fees and related expenses incurred

by the appellee as a result of the appeal. Riggins v. Hill, 2015 WL 293270, at *5 (Tex.

App. - Houston [14th Dist] Jan. 22, 2015, no pet.); Hunt v. CIT Grp./ Consumer Fin.,

Inc., No. 03-09-00046-CV, 2010 WL 1508082, at *9 (Tex. App. - Austin Apr. 15,

2010, pet. denied) (mem. op.).

136. Pursuant to this Court’s opinion in Lee and the cases cited therein attached

hereto as Appendix Tabs 1 and 2 are the affidavits of Appellees’ attorneys, Douglas

D. McLallen, Sr. and Marshall Wood. The affidavits establish that Appellees have

incurred $25,999.74 in reasonable and necessary attorneys’ fees and costs responding

to this appeal. Each affidavit is restricted to fees and costs incurred solely for the

appeal and not for any fees earned or costs for litigation in the trial court23. Proof by

affidavit is a proper method of establishing the appropriate sanction for the filing of

a frivolous appeal. Lee, Id., citing Tex. State Taekwondo Ass’n v. Lone Star State

Taekwondo Ass’n, No. 08-01-00403-CV, 2002 WL 1874852 at *3 (Tex. App. – El

Paso 2002, no pet.)(not designated for publication)(citing Smith v. Brown, 51 S.W.3d

at 381). Proof by affidavit is a proper method of establishing the amount of

frivolous-appeal damages to be awarded, although some courts have awarded


       23
        All fees and costs detailed were incurred since Appellant filed its notice of appeal (CR
2137-38).


                                         Page 69 of 73
damages under Rule 45 even without such evidence. See Hunt, 2010 WL 1508082,

at *9 (also citing cases).

137. As established by the undersigned and co-counsel’s Affidavits, the Appellee

incurred $ 25,999.74 in reasonable attorney's fees and related expenses in responding

to Mark Mueller’s opening brief. Tabs 1 and 2. At a minimum, this amount should be

awarded to the Appellees as frivolous-appeal damages pursuant to Rule 45. Riggins,

2015 WL 293270, at *5; Hunt, 2010 WL 1508082, at *9. Should the Appellees incur

additional attorney's fees and related expenses as a result of Mark Mueller’s appeal,

those amounts should also be awarded to the Appellees as frivolous-appeal

damages.24

138. Accordingly, it is requested that Appellee be awarded reasonable and necessary

costs and attorneys’ fees incurred defending this frivolous appeal in the amount of

$25,999.74.

                                           PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellees respectfully requests this

Court to uphold the trial court’s Order granting Appellees’ summary judgment against


       24
         For example, such amounts would include the reasonable attorney's fees and related
expenses incurred by the Appellees’ as a result of (1) additional appellate filings made by Mark
Mueller, or (2) preparation for oral argument of Mark Mueller's appeal, should argument be
granted.


                                         Page 70 of 73
Appellant. Appellees further request this Court find that after considering the record,

the briefs and other papers filed, Appellant filed a frivolous appeal and Appellees are

entitle to “just damages” in the amount of $25,999.74. Appellees also asks the Court

for any other relief to which they may be justly entitled.

                                       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: /s/ Douglas D. McLallen
                                      Douglas D. McLallen
                                      State Bar No. 00788025

                                      Marshall C. Wood
                                      State Bar No. 00797690
                                      Norton & Wood, LLP
                                      315 Main Street
                                      Post Office Box 1808
                                      Texarkana, Texas 75504
                                      Telephone: (903) 823-1321
                                      Facsimile: (903) 823-1325
                                      Email: marshall@nortonandwood.com

                                      Attorneys for Appellees




                                     Page 71 of 73
                      CERTIFICATE OF COMPLIANCE

      I hereby certify that the word count of Appellees’ Brief is 14,990 words as
counted by the word processing software used by Appellees.



                                     /s/ Douglas D. McLallen
                                     Douglas D. McLallen




                          CERTIFICATE OF SERVICE

      I certify that on August 17, 2015, a true and correct copy of Appellees’ Brief
was served on counsel of record as indicated below.

Mr. Bob Whitehurst                           Via Email: whitehurstlawfirm@yahoo.com
Whitehurst & Whitehurst
Attorneys at Law
5380 Old Bullard Road, Suite 600, #363
Tyler, Texas 75703



                                     /s/ Douglas D. McLallen
                                     Douglas D. McLallen




                                   Page 72 of 73
APPENDIX




  Page 73 of 73
TAB 1
                               NO. 06-14-00100-CV

                       IN THE COURT OF APPEALS
                    FOR THE SIXTH DISTRICT OF TEXAS


                               MARK MUELLER
                                  Appellant

                                        v.

       JAMES H. DAVIS, INDIVIDUALLY AND D/B/A JD MINERALS
                           AND JDMI, LLC
                             Appellees

                   Appeal From the 71st Judicial District Court
                           of Harrison County, Texas
                               CauseNo.11-0858
                     The Honorable Brad Morin Presiding


          ATTORNEY FEES AFFIDAVIT OF MARSHALL C. WOOD


STATE OF TEXAS           §
                         §
COUNTY OF BOWIE          §

     BEFORE ME, the undersigned authority, on this day personally appeared
Marshall C. Wood, who, upon his oath deposed and stated as follows:

       I.    My name is Marshall C. Wood. I am above the age of 18, am
competent to make this affidavit, and have personal knowledge of the facts stated
herein. The facts stated herein are true and correct.

       2.     I am an attorney licensed to practice in the State of Texas. I'am an
attorney of record for Appellees in the above styled cause.

      3.     I am familiar with the reasonable and customary charges for legal
services in Bowie and Harrison Counties, and the State of Texas for an appeal of
the type involved in this lawsuit. Appellees have agreed to pay me a reasonable
hourly attorney fee of $285.00 per hour, and paralegals $115.00 per hour.
Appel!ees have also agreed to reimburse my firm Norton & Wood, L.L.P. for the
costs expended in the prosecution of this lawsuit. This rate is a reasonable rate for
the type of matter involved and the skill required to perform the legal services
properly.

      4.     Appellees have incurred costs of$659.00 in defending this appeal.

      5.      I have charged Appellees on an hourly basis and not on a contingent
fee basis for the matters pertaining to this appeal. The acceptance of this particular
employment did not preclude other employment by me.

      6.     Appellees have necessarily incurred attorney's fees and expenses
(exclusive of court costs) in the defense of this matter to my firm in the amount of
$6,860.50. This amount is a reasonable amount of fees and expenses for the type
of work performed and the actual services performed for Appellees in this matter.
The legal services that I provided to Appellees were necessary to the appeal of this
lawsuit. The amount of time spent by me on this case was reasonable and
necessary to the response to this appeal.

       7.    It is the regular course of practice of my firm to make billing records
at or near the time of each act, event, condition or opinion set forth in the record.
The records were made by, or from information transmitted by, persons with
knowledge of the matters set forth. The records were kept in the course of
regularly conducted business activity. It is the regular practice of the business
activity to make the records.

      FURTHER AFFIANT SAYETH NOT.

                                                        ~vJ~
                                                    Marshall C. Wood

      Subscribed and sworn to before me on this    I~ th day of August, 2015.

                                                      ))h&         'icni l-e/.l~
                                                    Notary Public, State of Texas
TAB 2
                              NO. 06-14-00100-CV

                       IN THE COURT OF APPEALS
                    FOR THE SIXTH DISTRICT OF TEXAS


                               MARK MUELLER
                                  Appellant

                                        v.

       JA1\1ES H. DAVIS, INDIVIDUALLY AND D/B/A JD i',1INERALS
                             AND JDMI, LLC
                                Appellees

                   Appeal from the 71 st Judicial District Court
                           Of Harrison County, Texas
                              Cause No. 11-0858
                     The Honorable Brad Morin Presiding


     ATTORNEY FEES AFFIDA         vrr OF DOUGLAS D. MCLALLEN, SR.

STATE OF TEXAS   §
                 §
COUNTY OF NUECES §

     BEFORE ME, the undersigned authority, on this day personally appeared
Douglas D. McLallen, Sr., who, upon his oath deposed and stated as follows:

       l.    "My name is Douglas D. McLallen, Sr. I am above the age of 18, am
competent to make this affidavit, and have personal knowledge of the facts stated
herein. The facts stated herein are true and correct.

       2.    "I am an attorney licensed to practice in the State of Texas. I am an
attorney of record for Appellees in the above styled cause.

      3.     "I am familiar with the reasonable and customary charges for legal
services in Bowie and Harrison Counties and the State of Texas for an appeal of
        the type involved in this lawsuit. Appel!ees have agreed to pay me a reasonable
        hourly attorney fee of $250.00 per hour and Paralegals $125.00 per hour.
        Appellees have also agreed to reimburse my firm Anderson, Lehrman, Barre &
        Maraist, L.L.P. for the costs expended in the prosecution of this lawsuit. This rate
        is a reasonable rate for the type of matter involved and the skill required to perform
        the legal services properly.

                                   4.            "Appellees have incurred costs of $39.85 in defending this appeal.

              5.      "I have charged Appellees on an hourly basis and not on a contingent
        fee basis for the matters pertaining to this appeal. The acceptance of this particular
        employment did not preclude other employment by me.

              6.    "Appellees have necessarily incurred attorney's fees and expenses
        (exclusive of court costs) in responding to this Appeal to my firm in the amount of
        $18,440.42. This amount is a reasonable amount of fees and expenses for the type
        of work perfonned and the actual services performed for Appellees in this matter.
        The legal services that I provided to Appellees were necessary to respond to the
        appeal of this lawsuit. The an1ount of time spent by me on this case was
        reasonable and necessary to the response to this Appeal.

                                   FURTHER AFFIANT SAYETH NOJ.,·.")
                                                                                         I   ,


                                                                                       Y~./
                                                                                 Doug(asD~~




        STATE OF TEXAS                                                      ss
                                                                            §
        COUNTY OF NUECES                                                    §
                                                                                             111,tb
                                    Subscribed and sworn to before me on t h i s ~ day of August, 2015.

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                 ,,,•·~~P,YPr.,;',,,
                                                                   ~

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i       ~         \    lJf!;          j •J         Notary Public        >
        \,;·,..                  ....-;, i        STATE Of TEXAS
<               ·,,,,::,:,ef;;'.~ii'~i:>"'   My Comm. Exp. 10-22-2      >        Notary Public, State of Texas
                                                                  016
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