                                                                                               ACCEPTED
                                                                                           06-14-00100-CV
                                                                                SIXTH COURT OF APPEALS
                                                                                      TEXARKANA, TEXAS
                                                                                      11/2/2015 9:22:14 PM
                                                                                          DEBBIE AUTREY
                                                                                                    CLERK

                               No. 06-14-00100-CV

                          _________________________
                                                                      RECEIVED IN
                                                                 6th COURT OF APPEALS
                      IN THE SIXTH COURT OF APPEALS                TEXARKANA, TEXAS
                              AT TEXARKANA                       11/2/2015 9:22:14 PM
                         __________________________                  DEBBIE AUTREY
                                                                         Clerk


                              MARK J. MUELLER,
                                                                       Appellant

                                        V.                            November 10, 2015
                      JAMES H. DAVIS, Individually, and
            JAMES H. DAVIS D/B/A J. D. MINERALS, and JDMI, LLC.,
                                                                        Appellee
                        ____________________________


                       Appealed from the 71st District Court
                           of Harrison County, Texas

                        _____________________________


  APPELLANT’S REPLY TO SUR-REPLY BRIEF OF APPELLEE AND RESPONSE TO
                       MOTION FOR SANCTIONS


_____________________________________________________________________________


                                             BOB WHITEHURST
                                             State Bar No. 21358100
                                             whitehurstlawfirm@yahoo.com
                                             WHITEHURST & WHITEHURST
                                             5380 Old Bullard Road, Suite 600-363
                                             Tyler, Texas 75703
                                             (903) 593-5588
                                             (214) 853-9382 (facsimile)

                                             ATTORNEY FOR APPELLANT

                      ASSIGNED FOR ORAL ARGUMENT
                         IDENTITY OF PARTIES AND COUNSEL

      In accordance with Rule 38.1(a) of the TEXAS RULES OF APPELLATE
PROCEDURE, Appellant, Mark J. Mueller provides the following list of all parties, and the
names and addresses of all counsel:

Appellant/Plaintiff:                               Mark J. Mueller

Counsel for Appellant:                             Bob Whitehurst
                                                   State Bar I.D. # 21358100
                                                   Whitehurst & Whitehurst
                                                   5380 Old Bullard Road, Suite 600-363
                                                   Tyler, Texas 75703
                                                   Telephone: (903) 593-5588
                                                   Facsimile: (903) 297-1992

Appellee/Defendant:                                James H. Davis, Individually, and James H.
                                                   Davis d/b/a J.D. Mineral and JDMI, LLC.

Counsel for Appellee:                              Douglas D. McLallen
                                                   State Bar I.D. # 00788025
                                                   1001 Third Street, Ste. 1
                                                   Corpus Christi, Texas 78404
                                                   Telephone: (361) 884-4981
                                                   Facsimile: (361) 884-1286




                                              ii
                                                    TABLE OF CONTENTS

Identity of Parties and Counsel...................................................................................               ii

Table of Contents........................................................................................................        iii

Index of Authorities....................................................................................................         v

Statement of the Case.................................................................................................           1

Statement on Oral Argument......................................................................................                 1

Statement of Facts........... ...........................................................................................        2

Summary of the Argument .........................................................................................                2

Argument and Authorities.. ........................................................................................              3

          I. Appellant’s Summary Judgment evidence is properly before the
          Appellate Court because any objections were not preserved............. ............                                    3

          II. The deeds in question are ambiguous and any other reading of them is
          illogical...........................................................................................................   8

                     a. Confusion exists as to the inclusion of contradictory or
                     allegedly meaningless clauses............................................................                   8

                     b. Words appearing earlier in a contract have precedence over later
                     appearing words.................................................................................            9

                     c. The parol evidence rule does not apply due to the ambiguity of
                     the documents....................................................................................           11

          III. Appellee, after “laying behind the log” for more than 20 years, should
          not be rewarded for fraud.............................................................................                 12

          IV. Response to Appellee’s Motion for Sanctions.......................................                                 14

Conclusion & Prayer...................................................................................................           15

Certificate of Compliance...........................................................................................             15

Certificate of Service..................................................................................................         16


                                                                        iii
                                 INDEX OF AUTHORITIES

CASES
Baylor University Medical Center v. Greeson, Tex: Court of Appeals, 5th      10
Dist. 2015, No. 05-14-01342-CV.

Boyce’s Executors v. Grundy, 3 Pet. (28 US) 210 (1830).                      13

Cartwright v. Trueblood, 90 Tex. 535, 39 S.W. 930 (1897).                    10

Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587         11, 12
(Tex. 1996).

Colvin v. Texas Dow Emps. Credit Union No. 01-11-00342-CV, 2012 WL           4
5544950, (Tex. App.--Houston [1st Dist.] Nov. 15, 2012, no pet.).

Dallas Farm Mach. Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233 (1957).          13

Dorsett v. Cross, 106 S.W.3d 213 (Tex. App.--Houston [1st Dist.] 2003,       10
pet. denied).

Drinkard v. Ingram (Tex. Sup. Ct.) 21 Tex. 650.                              13

Ekpe v. CACH, LLC, No. 03-10-00274-CV, 2011 WL 1005379 (Tex.                 4
App.--Austin Mar. 16, 2011, no pet.) (mem. op.)

Frost Nat'l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310 (Tex. 2005) (per   10
curiam).

Gard v. Bandera Cnty. Appraisal Dist., 293 S.W.3d 613 (Tex. App.--San        14
Antonio 2009, no pet.).

Glassman v. Good-friend, 347 S.W.3d 772 (Tex. App.--Houston [14th            14
Dist.] 2011, pet. denied) (en banc).

J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003).                  10

Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857 (Tex. 2000).           13

Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972).                               10




                                               iv
Nudd v. Burrows, 91 U.S. 426 (1875).                                         13

Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156 (Tex.1995).   12-13

Sun Oil v. Madeley, 626 S.W.2d 726 (Tex. 1981).                              11

Town North Nat'l Bank v. Broaddus, 569 S.W.2d 489 (Tex.1978).                13

United States v. Throckmorton, 98 US 61 (1878).                              13

Vice v. Kasprzak, 318 S.W.3d 1 (Tex. App.--Houston [1st Dist.] 2009, pet.    4
denied).

Weitzel v. Barnes, 691 S.W.2d 598 (Tex.1985).                                13

Well Solutions, Inc. v. Stafford, 32 S.W.3d 313 (Tex. App.--San Antonio      3
2000, no pet.).

Wilson v. Thomason Funeral Home, Inc., No. 03-02-00774-CV, 2003 WL           3
21706065, (Tex. App.-Austin July 24, 2003, no pet.) (mem. op.)

RULES

TEX. R. APP. P. 33.1(a)(2).                                                  3

TEX. R. APP. P. 45.                                                          14

4 Williston on Contracts § 609 (3rd ed. 1961).                               11




                                                 v
                                                 No. 06-14-00100-C

                                       IN THE COURT OF APPEALS
                                  SIXTH APPELLATE DISTRICT OF TEXAS
                                            AT TEXARKANA

                                                 MARK J. MUELLER
                                                    Appellant

                                                        v.

JAMES H. DAVIS, Individually, JAMES H. DAVIS D/B/A J.D. MINERALS AND JDMI, LLC.

                                                     Appellee

                                              ON APPEAL FROM
                                            ST
                                       THE 71 JUDICIAL DISTRICT COURT
                                          HARRISON COUNTY, TEXAS

 APPELLANT’S REPLY TO SUR-REPLY BRIEF AND RESPONSE TO MOTION FOR
                            SANCTIONS

TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:

          Appellant, Mark J. Mueller files this Reply to the Sur-Reply Brief and Response to

Motion for Sanctions of Appellant. In this brief, Appellant will be referred to as Appellant.

Appellee James H. Davis, individually, James H. Davis d/b/a J.D. Minerals and JDMI, LLC will

be referred to as Appellee. The 2015 Clerk’s Record will be referenced as “(CLR”), being the

Clerk’s Record Volume 1, Supplemental 2(A).

                                          STATEMENT OF THE CASE

          Appellant’s “Statement of the Case” provided in Appellant’s Brief properly

stated the case: that appellant brought the action against the Appellee in a suit to quiet title.

                                       STATEMENT ON ORAL ARGUMENT

          This court has previously decided that oral argument is necessary in this case.

Appellant’s Reply to Sur-Reply Brief
1
                                          STATEMENT OF FACTS

          Appellant’s “Statement of the Facts” provided in Appellant’s Brief properly stated the

facts of the case.

                                       SUMMARY OF THE ARGUMENT

          The documents from Cope and Mills to Appellee are ambiguous based on the fact the

documents cannot be read to harmonize all the provisions in the documents. Appellee prepared a

document which allotted only one select sentence (in small print), to convey title to Appellee.

Meanwhile, all the other provisions and language (both in standard and small print) located in the

document did not convey title to Appellee. Appellee has chosen to disregard entire phrases in the

document that indicate that it was not the intent of Cope and Mills to convey all the interest in

Harrison County, Texas to Appellee. Appellee has chosen to ignore the obvious and logical

language of the documents in favor of an underhanded and fraudulent interpretation.

          The public records through which Appellee claims title, are based on the fraudulent

actions of the Appellee. Fraud vitiates whatever it touches. Appellee failed to disclose a great

deal of information to Appellant and others when Appellee notified Appellant and others of its

sudden claim to all the interests of Cope and Mills in Harrison County, Texas. Appellant

prepared the documents to such an extent that the fraud was not discovered for years.

          The Motion for Sanctions filed by Appellee is without merit. Not only Appellant, but

many other lawyers, companies, and landmen, has paid money to Cope and Mills for their

mineral interests in Harrison County, Texas.




Appellant’s Reply to Sur-Reply Brief
2
                                       ARGUMENT AND AUTHORITIES

                                                   I.
APPELLANT’S SUMMARY JUDGMENT EVIDENCE IS PROPERLY BEFORE THE APPELLATE COURT
                 BECAUSE ANY OBJECTIONS WERE NOT PRESERVED .


          The party making the objections to both form and substance to summary judgment

evidence must obtain a ruling on each objection in order to preserve the objection. Appellee

failed to do this. In its Sur-Reply Brief, the Appellee makes the argument that all of the evidence

Appellant had presented in the trial court is now not to be considered at the appellate level, based

on Appellee’s assertion that said evidence is hearsay, parol or some other form of inadmissible

evidence. Appellee also states that it made a timely objection. Appellant points out that the

Appellee failed to obtain a ruling concerning the summary judgment evidence from the trial court

nor did it indicate where in the record such a ruling can be found. In fact, the record is silent as

to this issue.

          "The general rule is that the party asserting an objection [to the admissibility of] evidence

must obtain a ruling on that objection to preserve error." Wilson v. Thomason Funeral Home,

Inc., No. 03-02-00774-CV, 2003 WL 21706065, (Tex. App.--Austin July 24, 2003, no pet.)

(mem. op.) (citing Tex. R. App. P. 33.1(a)(2)). Appellee erroneously argues that the trial court,

by granting the Motion for Summary Judgement, had in fact granted all of their objections

concerning the non admissibility of Appellant’s Summary Judgment evidence. The court in Well

Solutions, Inc. v. Stafford, held that “A trial court's ruling on an objection to summary judgment

evidence is not implicit in its ruling on the Motion for Summary Judgment." 32 S.W.3d 313, 317

(Tex. App.--San Antonio 2000, no pet.). This rule also applies to any objections as to the form

of the business records affidavits. As such, in order to preserve the complaint on appeal, a trial

Appellant’s Reply to Sur-Reply Brief
3
court ruling is also required on all objections as to the form or content of affidavits. The court

specifically noted that objections as to the lack of personal knowledge, hearsay, and

best-evidence are considered to be objections as to the form of affidavits. Colvin v. Texas Dow

Emps. Credit Union No. 01-11-00342-CV, 2012 WL 5544950, (Tex. App.--Houston [1st Dist.]

Nov. 15, 2012, no pet.) In the case now before this court, the trial court issued no rulings

concerning the Summary Judgement evidence and subsequently, there is nothing to be found in

the record. Therefore, Appellee’s complaints that Appellant’s accompanying business records

affidavits were defective or insufficient have not been preserved because there is no express

ruling to be found in the record as required by the courts. Ekpe v. CACH, LLC, No.

03-10-00274-CV, 2011 WL 1005379, (Tex. App.--Austin Mar. 16, 2011, no pet.) (mem. op.) It

is required that party making the objections must obtain a ruling on each objection in order to

preserve the objection. Vice v. Kasprzak, 318 S.W.3d 1, 11 (Tex. App.--Houston [1st Dist.]

2009, pet. denied). As such, all summary judgment evidence is properly before this appellate

court.

          Throughout this case the Appellee has neither denied nor provided any evidence to refute

or contradict of the following:

(1) Appellee has admitted that the conveyances (CLR 18 and 21) do not contain a metes and
bounds description, and do not contain a volume and page reference to a prior document that
was filed in the County Clerk’s office of Harrison County, Texas. (CLR at 845, 851, No. 34
and No. 35, Tab C)

(2) On December 10, 1991, Appellee, sent a certified letter to James Hammond Mills, stating in
part “as agreed, enclosed please find a Bank Money Order in the amount of $55.00 as
consideration for a year primary term Royalty Conveyance. . . .” (CLR at 1132, Tab D) Appellee
has admitted that this document was sent. (CLR 845, 849, Tab C, No. 19)

(3) On June 16, 2005, Appellee forwards correspondence to Virginia Rose Mills Cope, stating in

Appellant’s Reply to Sur-Reply Brief
4
part “upon further review of title, we have found you have previously sold this interest to another
party. Therefore at this time we are retracting our offer and will not be resubmitting another
offer to you.” (CLR 358, Tab G) Appellee has admitted that this document was sent. (CLR 845,
848, Tab C, No. 9)

(4) On November 21, 2005, Appellee forwards correspondence to Virginia Mills Cope regarding
the purchase of mineral or royalty interest, and a conditional draft. (CLR 359, Tab H) Appellee
has admitted that this document was sent. (CLR 845, 849, Tab C, No. 10)

(5) On November 26, 2007, Appellee forwards correspondence to James Hammond Mills
withdrawing an offer to purchase certain mineral and royalties interest due to an error. (CLR 364,
Tab I) Appellee has admitted that this document was sent. (CLR 845, 850, Tab C, No. 22)

(6) On September 15, 2008, Virginia Rose Mills Cope was forwarded a document giving
Appellee permission to obtain any information as to all the mineral and royalties she owned in
Harrison County, Texas. (CLR 361, Tab K). Appellee has admitted that this document was sent.
(CLR 845, 849, Tab C, No. 14)

(7) On October 31, 2008, Appellee withdraws its offer pay Virginia Rose Mills Cope, $7,250.00.
(CLR 362, Tab L) Appellee has admitted that this document was sent. (CLR 845, 849, Tab C,
No. 16)

(8) On February 23, 2011, Appellee sent out a letter to Appellant and others that he had
purchased 100% of all the interest in Harrison County, Texas of Virginia Rose Mitchell and
James Hammond Mills. (CLR at 356, Tab M)

(9) On July 19, 2011, Appellee prepared a document stating in part, “it doesn’t really matter
because she sold all her interest to another company.” (CLR at 363, Tab R) Appellee has
admitted that this document was sent. (CLR 845, 849, Tab C, No. 15)

(10) That James Hammond Mills and Virginia Mills has leased and sold, oil, gas and other
minerals for years, as reflected in the clerk’s records. (CLR 1732-1735)

(11) That James Hammond Mills and Virginia Mills has paid taxes on the property for years as
reflected in the tax records. (CLR 1744-1753).

(12) Numerous other lawyers, companies, and landmen have interpreted the clause differently
because they have made payments to and executed other leases or mineral conveyance with Mills
and Cope for years after the dates of the documents in question. (CLR 1732, 1733, 1735, Tab S)

(13) The Appellee is claiming title through a clause that was actually added to the habendum
clause. (See actual clause in document at (CLR at 18, Tab A, and CLR at 21, Tab B)


Appellant’s Reply to Sur-Reply Brief
5
(14) This clause is quite difficult to read due to the font and print size. Second, this additional
language, is not typical for a Mother Hubbard clause. Appellee has admitted that J.D. Minerals
or its attorneys or representatives drafted some of the terms which make up the instruments, (Tab
C, Clr 850, No. 27), that the documents contain print that is a different size font, (Tab C, Clr 851,
No. 30), and the documents were prepared in the normal course of business. (Tab C, Clr 851, No.
33) In spite of the unusual nature of the clause, due to its location in the document, other people
involved in the oil and gas industry have considered this ‘cover all’ clause as part of the
habendum/mother hubbard clause, as reflected in royalty payments, and leases and mineral
conveyances referred to above.

(15) Appellee fails to address the fact that the documents also contain the language “Grantor
agrees to execute any supplemental instrument requested by Grantee for a more complete
description of said land.” If it indeed was the intent of the original grantors (Cope and Mills) to
convey everything they owned in the county, then why was such a clause in the document? The
documents contain language that appellee does not rely on its claim of all the interest in Harrison
County, which raises the question as to why that language was in the documents in the first
place?

(16) These documents are clearly ambiguous when the specific granting clause does not convey
any interest, and the habendum/mother hubbard clause does not convey any interest, and the only
clause that does convey any interest was part of the mother hubbard clause.

(17) The Appellee has a pattern of deceptive and fraudulent business practices.

(18) a letter to Texas Attorney General, stating in part “these guys were trying to trick her into
selling the rights. . . .” (CLR 1905)

(19) complaint to the Texas Attorney General, stating in part “. . . there was blatant fraudulent
intent on the part of this company. . . .” (CLR 1908).

(20) a letter from bank vice president to Texas Attorney General, stating in part “. . . the first
three appear to have offered far less than fair market value and the consideration for the last is
unknown. . . .” (CLR 1911)

(21) a letter to Texas Attorney General, stating in part “. . . J.D. Minerals is engaging in
shameful, unscrupulous, and perhaps deceptive trade practices.” (CLR 1912)

(22) a letter to Appellee from an attorney, stating in part “. . . Despite your firm’s failure to honor
the draft, your firm took action to file and record the Mineral and Royalty Conveyance in the real
property records of LaSalle County, Texas . . . ” (CLR 1913)

(23) a letter to Appellee from president of National Association of Royalty Owners, stating in
part “. . . the directors have met and unanimously voted to terminate your membership. . . .”

Appellant’s Reply to Sur-Reply Brief
6
(CLR 1916)

(24) a letter to Senator Drew Nixon from James Stafford, president of the Association of Royalty
Owners, complaining about JD Minerals, stating in part “. . . contains the statutory language on
the instrument as required, but the type size of the body of the conveyance has been reduced to a
degree that anyone (particularly the elderly) with vision problems or a limited understanding of
legal language would have a struggle getting through the whole thing.” (CLR 1917)

(25) letter regarding JD Minerals, stating in part “. . . this company is trying steal people’s royalty
and minerals and they are praying [sic] on people, especially the elderly, senior citizens. . . .
(CLR 1919)

(26) a letter of February 23, 2011, which failed to inform Appellant and others of pertinent
documentation in its possession as reflected above, including:

          (a) the $235.00 draft to Ms. Cope/Mitchell, dated September 20, 1991, was for various
          acres out the G.W. Petty Survey et al, not everything in Harrison County, Texas, (CLR
          1133);

          (b) the $55.00 draft to Ms. Mills was for various acres out the G.W. Petty Survey et al,
          not everything in Harrison County, Texas, (CLR 1207);

          (c) the money order to Mr. Mills, dated December 10, 1991, for $55.00, was for
          consideration for a one year primary term Royalty Conveyance, (CLR 1207);

          (d) the letter to Ms. Cope dated June 16, 2005, withdrawing offer, previously sold interest
          to another party, (CLR 358);

          (e) attempted on November 21, 2005 to purchase mineral interest from Ms. Cope, (CLR
          359);

          (f) the letter to Mr. Mills, November 26, 2007, are in the process of purchasing your
          interest, (CLR 364);

          (g) obtaining permission from Ms. Cope to obtain information about her minerals,
          September 15, 2008, (CLR 361);

          (h) the letter to Ms. Cope, October 31, 2008, withdrawing offer, sold interest prior to
          date. (CLR 1129);

          (i) memo dated July 19, 2011, “doesn’t really matter because she sold all her interest
          already to another company,” (CLR 363); and,


Appellant’s Reply to Sur-Reply Brief
7
          (j) knowing that Ms. Cope and Mr. Mills were part of the Moore # 1 Gas Unit, (CLR 916-
          918) (filed of record September 25, 2000), (produced in discovery by defendant, Bate
          stamped at the bottom, Rule 193.7)

These above-listed documents negate Appellee’s contention that Mills and Cope had conveyed

everything they owned in the county. In fact, they support Appellant’s argument that it was never

the intent of Mills and Cope to convey all of their interest to Appellee. The actions of Appellee

were not those of an organization which thought it owned all of the interest of Mills and Cope as

evidenced by the several letters written by Appellee soliciting additional mineral leases and/or

deeds. However, Appellee now asks this court to ignore this evidence and reward Appellee for

his continued acts of fraud and deceit.

                                                    II.
               THE DEEDS IN QUESTION ARE AMBIGUOUS AND ANY OTHER READING OF
                                     THEM IS ILLOGICAL .


        As heretofore shown, the alleged deeds are without doubt, ambiguous. The Appellee in its

Sur-Reply continually states that the deeds in questions are unambiguous. However, not only has

the Appellant, but Mills, Cope, Wagner Brown, and numerous others relied upon the belief that

Cope and Mills continue to retain ownership over the minerals in Harrison County. Appellee and

only Appellee, gleams a different interpretation of what the documents convey.

                        a. Confusion exists as to the inclusion of contradictory or
                                     allegedly meaningless clauses.

         It is uncontroverted that Appellee has been in the Oil and Gas industry for a considerable

amount of time, and therefore is familiar with the usual and customary conduct of business.

However, Appellee has failed to explain its reason for creating documents that flies in the face of

traditional and accepted deed preparation. Specifically, why Appellee failed to show why the


Appellant’s Reply to Sur-Reply Brief
8
granting clause is in a large font (and it now claims that it passes nothing to the Appellee) and the

controlling clause is located in minuscule print in the middle of the document. Appellee has also

failed to explain why it created a document with two (2) different clauses which use contradictory

language and why the latter passage takes precedent over the language found in the traditional

location of the granting clause, as set out below. Appellee fails to show to why the documents

also contain the language “Grantor agrees to execute any supplemental instrument requested by

Grantee for a more complete description of said land.” If it indeed was the intent of the original

grantors (Cope and Mills) to convey everything they owned in the county, then there would be no

reason for such a clause. Furthermore, Appellee fails to address the issue of why the blanket or

‘cover all’ clause was made part of the Mother Hubbard Clause. These deviation from the normal

and traditional course of dealings, in of itself, raises questions as to ‘what is going on’ or ‘why

was it done differently’.

        The rare times Appellee does offer some limited explanations, the reasons are at odds with

each other or established legal dicta. First, on page 14 (No. 38) of its original Reply Brief,

Appellee states “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.” This statement is negated when Appellee states on page 24 (No. 38), of its Sur-Reply

Brief, “Here, because the property is described in the deeds by the county-wide conveyance, the

question of whether said properties are conveyed under the Mother Hubbard or habendum clause

is not at issue.” Common sense prohibits anyone from reconciling these statements.

     b. Words appearing earlier in a contract have precedence over later appearing words.

        The argument located in No. 27 of Appellee’s Sur-Reply Brief is erroneous. Appellee

Appellant’s Reply to Sur-Reply Brief
9
states that earlier words in a contract have basically no effect. This is not the correct statement of

the law. From the memorandum in the opinion in Baylor University Medical Center v. Greeson,

Tex Court of Appeals, 5th Dist. 2015, No. 05-14-01342-CV:

         In construing a written contract, we must ascertain and effect the parties' intentions as
         expressed in the document. Id. at 311-12; J.M. Davidson, Inc. v. Webster, 128 S.W.3d
         223, 229 (Tex. 2003). We consider the entire writing and attempt to harmonize and give
         effect to all its terms by analyzing the provisions with reference to the whole agreement.
         Frost Nat'l Bank, 165 S.W.3d at 312. "No single provision taken alone will be given
         controlling effect; rather, all the provisions must be considered with reference to the whole
         instrument." Webster, 128 S.W.3d at 229. And, generally, words appearing earlier in a
         contract have precedence over later appearing words. Dorsett v. Cross, 106 S.W.3d
         213, 220 (Tex. App.--Houston [1st Dist.] 2003, pet. denied).
Appellee seems to rely on the county wide description enlarging a specific property description.

This does not comply with established case law that “to be sufficient, the writing must furnish

within itself, or by reference to some other existing writing, the means or data by which the land

to be conveyed may be identified with reasonable certainty.'" Morrow v. Shotwell, 477 S.W.2d

538, 539 (Tex.1972). If that was indeed the case, it would give unscrupulous individuals a carte

blanche way to do business. Additionally, Appellee seems to say that the granting clause did not

convey any property to the Appellee, that the habendum clause did not convey any property to the

Appellee, and even the ‘mother hubbard’ clause did not convey any property to the Appellee.

Logically, the question arises as to why these clauses are even in the documents? Appellee wants

to give effect to what appears to be incidental language. It is this additional language that it relies

upon and that deceived everyone else who read the documents. “It is not permissible to give

controlling effect to that which creates an ambiguity, and destroys the certainty which is expressed

by other language, and thus overthrow the clear and explicit intention of the parties.” Cartwright

v. Trueblood, 90 Tex. 535, 39 S.W. 930, 932 (1897). That is exactly what Appellee is attempting


 Appellant’s Reply to Sur-Reply Brief
 10
to ask this court to do. Appellee wants to give controlling effect to a clause that is in direct

conflict with other clauses in the documents.

          c. The parol evidence rule does not apply due to the ambiguity of the documents.

         Based on the ambiguity in the deeds themselves, surrounding circumstances may certainly

be reviewed. If the language of the contract is susceptible to “two or more reasonable

interpretations after applying the pertinent rules of construction, the contract is ambiguous,” thus

authorizing a court to consider the parties' interpretations and admit extrinsic evidence to

determine its true meaning. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d

587, 589 (Tex. 1996) The court in Sun Oil v. Madeley, 626 S.W.2d 726, 731 (Tex. 1981)

explained that while extrinsic evidence is not admissible to render an unambiguous contract

ambiguous, courts may consider "surrounding circumstances known to the parties at the time of

[the contract's] execution" to aid them in determining whether contract language appears to be

capable of only one meaning (quoting 4 Williston on Contracts § 609 (3rd ed. 1961).

         The aforementioned documents, which are properly before this court, should be reviewed

to help assist this court in determining the surrounding circumstances of the documents.

Specifically, a certified letter from Appellee to James Hammond Mills, dated December 10,

1991, which was contemporaneous to one of the documents in question, states in part “as

agreed, enclosed please find a Bank Money Order in the amount of $55.00 as consideration

for a year primary term Royalty Conveyance. . . .” (CLR at 1132). This interpretation of

the transaction/contract is vastly different from Appellee’s current claim that Mills was

selling everything he owned in Harrison County, Texas to the Appellee. Apparently, even


 Appellant’s Reply to Sur-Reply Brief
 11
Appellee has had at least two (2) separate interpretations of the documents in question. According

to Columbia Gas Transmission Corp, the contract is ambiguous and admission of other

documents is permitted to help aid the court in determining the true meaning of the documents in

question. Id., at 589.

         In No. 12 of the Sur-Reply Brief filed by Appellee, attempts to compare previous mineral

conveyances in which Appellant was involved to the ones now before the court. It is interesting to

note, that although Appellant has used cover-all clauses, he has used them properly. A closer look

at the documents shows that Appellant was very up-front and forthcoming. The font in CLR

1832-1833 is basically the same size throughout the entire document. The document found at

CLR 1255-1256 was also basically prepared with the same font throughout the document, and the

property description specifically states at the first “being all of the real property situated in

Harrison County, Texas.” The document found at CLR 1257-1261 is in large print, but one of the

largest fonts states that it was the intention of the grantors to convey all mineral interests owned

by grantors. Finally, the document found at CLR 1262-1264 is also prepared with large print, but

it is the language found in the larger font that states it was the intention of the grantors to convey

all mineral interests owned by grantors. A review of the documents prepared by Appellee reflects

no similarities.

                                                  III.
   APPELLEE, AFTER “LAYING BEHIND THE LOG ” FOR MORE THAN 20 YEARS, SHOULD NOT BE
                                        REWARDED FOR FRAUD .



         Texas law has long imposed a duty to abstain from inducing another to enter into a

contract through the use of fraudulent misrepresentations. As a rule, a party is not bound by a

 Appellant’s Reply to Sur-Reply Brief
 12
contract procured by fraud. Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 162

(Tex.1995); Weitzel v. Barnes, 691 S.W.2d 598, 601 (Tex.1985); Town North Nat'l Bank v.

Broaddus, 569 S.W.2d 489, 491 (Tex.1978); Dallas Farm Mach. Co. v. Reaves, 158 Tex. 1, 307

S.W.2d 233, 239 (1957).

        Appellee’s position is that Appellant has no standing to argue fraud. Quasi-estoppel

precludes a party from asserting, to another's disadvantage, a right which is inconsistent with a

position previously taken. Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex.

2000). The fact is that for more than twenty years, other businesses, people, and the Appellant

have relied upon the documents that Appellee had prepared and filed into the county records.

Business has been transacted based on the documents. Appellant and other parties certainly

would not have entered into any agreement with Mills and Cope, if they had thought that Mills

and Cope had conveyed all their interests to Appellee in 1991.

         Appellee should not be rewarded for fraud. ‘Laying behind the log’ for 20 years does not

entitle Appellee to now benefit from it. Fraud destroys the validity of everything into which it

enters. Nudd v. Burrows, 91 U.S. 426 (1875). “Fraud vitiates everything.” Boyce’s Executors v.

Grundy, 3 Pet. (28 US) 210 (1830). Fraud vitiates the most solemn contracts, documents and

even judgments. United States v. Throckmorton, 98 US 61, 70 (1878). “Fraud vitiates every

transaction tainted by it, it annuls every transaction which is infected by it.” Drinkard v. Ingram

(Tex. Sup. Ct.), 21 Tex. 650. To hold otherwise would not only support the fraud, but as stated

would encourage more fraud. Pursuant to the petition filed by the Texas Attorney General against

Appellee, there may have been up 12,000 transfers to Appellee. (CLR 825).



Appellant’s Reply to Sur-Reply Brief
13
        Not only Appellant, but numerous other people were duped by the documents located in

the County Clerk’s records. Appellee continues to have the potential of not only harming Mills,

Cope, and the Appellant but also countless other people.

                                                 IV.
                    RESPONSE TO APPELLEE’S CONTINUED MOTION FOR SANCTIONS


        In its Sur-Reply Brief, Appellee continues to ask for sanctions against Appellant.

Appellee relies on the fact that blanket conveyances are legitimate; however, Appellee fails to

state how the existence of a blanket conveyance can remedy fraud.

        “Rule 45 of the Texas Rules of Appellate Procedure authorizes a court to award a

prevailing party just damages [only] if it is determined that an appeal is frivolous after considering

the record, briefs, and other papers filed in this court.” Gard v. Bandera Cnty. Appraisal Dist.,

293 S.W.3d 613, 619 (Tex. App.--San Antonio 2009, no pet.); TEX. R. APP. P. 45. The

documents as heretofore set out above, clearly indicate that there was never an intention by Mills

and Cope to convey everything they owned in Harrison County, Texas. The documents also show

that there was a deliberate effort on the part of Appellee to deceive all parties that came in contact

with the deeds. Determining whether to grant sanctions for frivolous appeals is a matter of

discretion, this court exercises with prudence and caution. Gard, at 619. In making that

determination, we review the record from the viewpoint of the advocate filing the appeal and

decide whether the advocate had reasonable grounds to believe the judgment could be reversed.

Glassman v. Good-friend, 347 S.W.3d 772, 782 (Tex. App.--Houston [14th Dist.] 2011, pet.

denied) (en banc). Appellate certainly has grounds to file this appeal based on the tactics used by



Appellant’s Reply to Sur-Reply Brief
14
Appellee, as shown by the records.

        Appellee has failed to produce any documentation to support or justify its claim for

$25,999.74. Appellant objects to the unsubstantiated claim, as unreasonable and excessive.

                                        CONCLUSION AND PRAYER

        The trial court committed reversible error by issuing its Order Granting Defendant’s

Motion for Summary Judgment and Rending Final Summary Judgment. The Summary Judgment

should be reversed and rendered for Appellant, or in the alternative should be reversed and

remanded to the trial court, for issues of fact to be decided by the trier of fact. The Motion for

Sanctions filed by Appellee is without merit and should be denied.

                                                      RESPECTFULLY SUBMITTED,

                                                      /s/Bob Whitehurst
                                                      Bob Whitehurst
                                                      5380 Old Bullard Road, Suite 600, #363
                                                      Tyler, Texas 75703
                                                      (903)593-5588
                                                      State Bar #21358100


                                       CERTIFICATE OF COMPLIANCE


        In accordance with Texas Rule of Appellate Procedure 9.4(i)(3), Appellant certifies that

this brief contains 5431 words and therefore complies with the word limitation imposed by Texas

Rule of Appellate Procedure 9.4(i)(2)(B).

                                                      /s/Bob Whitehurst
                                                      Bob Whitehurst


Appellant’s Reply to Sur-Reply Brief
15
                                       CERTIFICATE OF SERVICE

        I hereby certify that a true copy of the above and foregoing instrument has been served on
all counsel of record in accordance with the Rules of Civil Procedure on this 2nd day of
November, 2015.
                                                            /s/Bob Whitehurst

                                                            Bob Whitehurst




Appellant’s Reply to Sur-Reply Brief
16
