                                                                                    ACCEPTED
                                                                                06-14-00100-CV
                                                                     SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                          10/16/2015 4:18:59 PM
                                                                               DEBBIE AUTREY
                                                                                         CLERK

                         NO. 06-14-00100-CV

                    IN THE COURT OF APPEALS             RECEIVED IN
                                                  6th COURT OF APPEALS
                FOR THE SIXTH DISTRICT OF TEXAS TEXARKANA, TEXAS
_________________________________________________________________
                                                  10/16/2015 4:18:59 PM
                                                             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’ SUR–REPLY BRIEF


     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
                                      TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE REPLY ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REPLY ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

        I.       Appellant Mueller has no standing to assert fraud and/or statute of
                 frauds defenses to enforcement of the 1991 deeds - Appellant’s
                 Briefs are silent on this issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

                 A.      Appellant has waived this issue by failing to address his lack of
                         standing to assert fraud claims pursuant to
                         Tex. R. App. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

                 B.      Appellant’s argument regarding the “font size” of various
                         granting clauses is a fraud claim which Appellant has no
                         standing to make.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

                 C.      Appellant has failed to address his lack of standing to assert
                         statute of frauds defenses and has therefore waived any statute
                         of frauds defenses pursuant to Tex. R. App. P. 38.1. . . . . . . . . 8

                 D.      Appellant Improperly Invokes the “tainted by fraud” language
                         of Hooks v. Samson Lone Star, Limited Partnership – Hooks is
                         a limitations case which does not address the adequacy of a
                         property description. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

        II.      There is no showing the deeds are Ambiguous. . . . . . . . . . . . . . . . . 11

                 A.      Appellant continues to ignore the established law holding
                         blanket property conveyances unambiguous. . . . . . . . . . . . . . 11

                                                        i
                  B.        Appellant’s pleadings do not support his
                            ambiguity argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

                  C.        Appellant’s application of rules of construction
                            is erroneous.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

                  D.        Appellant has failed to identify repugnance or conflict between
                            county-wide conveyances and specific conveyances (separate
                            granting language). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

                  E.        The use of “survey wide” conveyances in the deeds is not
                            challenged or addressed by Appellant and is therefore waived
                            pursuant to Tex. R. App. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . 21

         III.     The general, county-wide conveyance is not a “catch all” or “Mother
                  Hubbard” clause. The general, county-wide conveyance contains
                  separate granting/”words of conveyance” language clearly expressing
                  the intent of Grantors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

         IV.      Appellees’ Motion for Sanctions is well founded. . . . . . . . . . . . . . . 25

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34




                                                            ii
                                      TABLE OF AUTHORITIES

Cases

Abarca v. Scott Morgan Residential, Inc., 305 S.W.3d 110
  (Tex. App. – Houston [1st Dist] 2009, rev. denied). . . . . . . . . . . . . . . . . . . . . 30

Americana Motel, Inc. v. Johnson, 610 S.W.2d 143 (Tex.1980). . . . . . . . . . . . . . . . . 29

Bridges v. Robinson. 20 S.W.3d 104 (Tex. App. – Houston [14th Dist.] 2000). . 31

Coe v. Chesapeake Exploration, L.L.C., 695 F.3d 311
  (5th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 24

Colvin v. Colvin, 291 S.W.3d 508 (Tex. App. – Tyler 2009, no pet.). . . . . . . . . . . . 30

Dolcefino v. Randolph, 19 S.W.3d 906
  (Tex. App. – Houston [14th Dist], pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . 29

Fredonia State Bank v. General American Life Ins. Co, 881 S.W.2d 279, 284-85
(Tex. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

General Serv. Comm’n v. Little Tex. Insul Co., 39 S.W.3d 591 (Tex. 2001).. . . . 19

Graff v. Berry, 06-07-00058-CV, 2008 WL 704310
  (Tex. App.—Texarkana Mar. 18, 2008, pet. denied).. . . . . . . . . . . . . . . . . . . . 31

Harlan v. Vetter, 732 S.W.2d 390
  (Tex. App. – Eastland 1987, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . 22

Holloway’s Unknown Heirs v. Whatley, 104 S.W.2d 646
  (Tex. Civ. App. – Beaumont 1937) aff’d, 137 Tex 608 (1939). . . . . . . . . . 14, 24

Hooks v. Samson Lone Star, Limited Partnership
  457 S.W.3d 52 (Tex. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 9, 10

In re Estate of Taylor, 305 S.W.3d 829


                                                            iii
    (Tex. App. –Texarkana 2010, no pet.). . . . . . . . . . . . . . . . . . . . . . 12, 20, 22, 23

J. Hiram Moore, Ltd. v. Greer, 172 S.W.3d 609 (Tex. 2005). . . . . . . . . . . . . . . . 23

Jones v. Colle, 727 S.W.2d 262 (Tex. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . 23,24

Katz v. Bakke, 265 S.W.2d 686
  (Tex. Civ. App.—San Antonio 1954, writ ref'd). . . . . . . . . . . . . . . . . . . . . 21, 24

Lee v. Aurora Loan Services, L.L.C., 06-08-00077-CV, 2009 WL 167067
   (Tex. App.—Texarkana Jan. 27, 2009, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . 31

Lewis v. E. Tex. Fin. Co., 136 Tex. 149, 146 S.W.2d 977 (1941). . . . . . . . . . . . . 18

Luckel v. White, 819 S.W.2d 459 (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

McKellen v. Cervantes, 367 S.W.3d 478
  (Tex. App. – Texarkana 2012, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Madera Prod. Co. v. Atlantic Richfield Co., 107 S.W.3d 652
  (Tex. App. - Texarkana 2003, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Martinez v. El Paso County, 218 S.W.3d 841
  (Tex. App. – El Paso 2007, pet. struck). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

May v. Buck, 375 S.W.3d 568 (Tex. App.—Dallas 2012, no pet.).. . . . . . . . . . . . 12

Moore Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934(Tex. 1972).. . . . . 9

Morrow v. Shotwell, 477 S.W.2d 538 (Tex. 1972). . . . . . . . . . . . . . 8, 12, 16, 21, 30

Prairie Producing Co. v. Schlacter, 786 S.W.2d 409
  (Tex. App. – Texarkana 1990, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . 18, 29

Ragsdale v. Mays, 65 Tex. 255 (1886). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Ross v. St. Luke’s Hosp., 462 S.W.3d 496 (Tex. 2015). . . . . . . . . . . . . . . . . . . . . . 2


                                                        iv
Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744 (Comm'n App. 1937,
  opinion adopted).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Smith v. Allison, 157 Tex. 220, 301 S.W.2d 608(1956). . . . . . . . . . . . . . . . . . 23, 24

Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447 (Comm'n App. 1935). . . . 25

Sun Oil Co. v. Burns, 125 Tex. 549, 551, 84 S.W.2d 442, 443
   (Tex. Comm'n App. 1935).. . . . . . . . . . . . . . . . . . 15, 16, 17, 21, 22, 24, 25, 27

Superior Oil Co. v. Stanolind Oil & Gas Co,150 Tex. 317, 240 S.W.2d 281, 285
  (Tex. 1951). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Swate v. Crook, 991 S.W.2d 450
  (Tex. App.—Houston [1st Dist.] 1999, pet. denied). . . . . . . . . . . . . . . . . . . . . 32

Texas Builders v. Keller, 928 S.W.2d 479 (Tex. 1996). . . . . . . . . . . . . . . . . . . . . 12

Texas Consolidated Oils v. Bartels, 270 S.W.2d 708
   (Tex. Civ. App. – Eastland 1954, writ ref’d). . . . . . . . . . . . . . . . . . . . . 11, 13, 22

U.S. Enterprises, Inc. v. Dauley, 535 S.W.2d 623 (Tex. 1976). . . . . . . . . . . . 13, 22

Wheeler v. Sec. State Bank, N.A., 159 S.W.3d 754
  (Tex. App.—Texarkana 2005, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Statutes

Tex. Prop. Code §5.151.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Prop. Code §13.002.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

Tex. R. App. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 5, 6, 7, 11, 12, 19, 22, 23

Tex. R. App. P. 45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

Tex. R. Evid. 404(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 28

                                                           v
Tex. R. Evid. 406.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 28

Tex. R. Evid. 801(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 28

Secondary Sources

4 Tex. Prac., Land Titles and Examination §15.36 (3d ed.). . . . . . . . . . . . . . . . . . 31




                                                          vi
                      ISSUES PRESENTED

I.    Appellant Mueller has no standing to assert fraud and/or statute of
      frauds defenses to enforcement of the 1991 deeds - Appellant’s Briefs
      are silent on this issue.

      A.    Appellant has waived this issue by failing to address his lack of
            standing to assert fraud claims pursuant to Tex. R. App. P. 38.1.

      B.    Appellant’s argument regarding the “font size” of various
            granting clauses is a fraud claim which Appellant has no standing
            to make.

      C.    Appellant has failed to address his lack of standing to assert
            statute of frauds defenses and has therefore waived any statute of
            frauds defenses pursuant to Tex. R. App. P. 38.

      D.    Appellant Improperly Invokes the “tainted by fraud” language of
            Hooks v. Samson Lone Star, Limited Partnership – Hooks is a
            limitations case which does not address the adequacy of a
            property description.

II.   There is no showing the deeds are Ambiguous.

      A.    Appellant continues to ignore the established law holding blanket
            property conveyances unambiguous.

      B.    Appellant’s pleadings do not support his ambiguity argument.

      C.    Appellant’s application of rules of construction is erroneous.

      D.    Appellant has failed to identify repugnance or conflict between
            county-wide conveyances and specific conveyances (separate
            granting language).

      E.    The use of “survey wide” conveyances in the deeds is not
            challenged or addressed by Appellant and is therefore waived

                             Page 1 of 34
                       pursuant to Tex. R. App. P. 38.1.

      III.      The general, county-wide conveyance is not a “catch all” or “Mother
                Hubbard” clause. The general, county-wide conveyance contains
                separate granting/”words of conveyance” language clearly expressing
                the intent of Grantors.

      V.        Appellees’ Motion for Sanctions is well founded.

                      SUMMARY OF THE REPLY ARGUMENT

1.    Waiver of Standing Issues: Neither of Appellant’s Briefs address the lack of

Appellant’s standing to challenge the deeds at issue based on fraud grounds or as

violative of the statute of frauds.1 The standing issue is a threshold issue which

Appellant has waived by failing to set forth in his Briefs, “a succinct, clear, and

accurate statement of the arguments made in the body of the brief. . . with appropriate

citations to authorities and to the record.” Tex. R. App. P. 38.1(h)(i)2. This Court can

dispose of the substance of this appeal on Appellant’s lack of standing alone.

Appellant’s lack of standing as to each issue (fraud and statute of frauds defenses to

Appellees’ 1991 deeds) was properly raised both in Appellees’ Motions for Summary

Judgment (CR 408, 1037-1040) and Reply Brief.3 (AeeB 47-49).

2.    Appellant’s Reply Brief continues to argue and raise issues contrary to long

      1
          See (AeeB 47-48, ¶ 98).
      2
          See also Ross v. St. Luke’s Hosp., 462 S.W.3d 496, 500 (Tex. 2015).
      3
          Appellees’ Reply Brief is referred to as “AeeB” for citation purposes.

                                           Page 2 of 34
established principals of Texas real property law without submitting a legitimate

argument, with citation to authorities and the record, for those rules of law to be

changed or attempting to distinguish the facts of this case from the issues these

established principals of law address. Appellant’s latest filing4 only compounds the

harm suffered by Appellees as a result of Appellant’s baseless filings in this Court.

Moreover, Appellant continues to argue, without addressing the standing issue raised

by Appellees, that he may challenge the two 1991 deeds based on the vague

allegation that his predecessors in interest were the victims of fraud5. Appellant

improperly invokes Hooks (Hooks v. Samson Lone Star, Limited Partnership (457

S.W.3d 52 (Tex. 2015)) which is a statute of limitations case, the holding of which

has no bearing on this Court’s review of the trial court’s summary judgment as it

relates to the adequacy of the property descriptions in each deed. Appellant has

waived the standing issue because he failed to cite any relevant counter-legal

authority or present any substantive analysis of the issue of standing to bring fraud

claims or to raise statute of frauds issues as a third party to the deeds. Tex. R. App.

P. 38.1.

3.     Appellant’s improper attempt to create improper ambiguity in the 1991 Deeds

       4
       Appellant’s Reply Brief And Response to Motion For Sanctions or “ARB” for citation
purposes.
       5
           In fact, Appellant simply ignores the standing issues raised by Appellees. (AeeB 47-49).

                                            Page 3 of 34
through all manner of parol and hearsay evidence by improperly invoking Hooks is

a transparent attempt to distract the Court from a proper four-corners analysis of the

unambiguous 1991 deeds which contain valid survey-wide and county-wide

conveyances. Proper citation to actual authority supporting ambiguity(and, as a

result, the relevance of parol as to the location of the property) is wholly lacking in

Appellant’s Briefs.

4.     Appellant ignores the numerous authorities which hold where a specific

description is enlarged by a general description, the conveyance is not ambiguous as

a matter of law where there is no repugnance. Rather than argue the law addressing

the issues of standing, the lack of repugnance in granting clauses, or the validity of

blanket conveyances, Appellant’s Briefs are simply exercises in contorting the law

(see analysis of Hooks in ¶3, supra) to justify listing, ad nauseam, character and

habit “evidence” through purported evidence of other alleged “bad acts.6”

5.     Despite the filing of two briefs and numerous responses and motions in the trial

court, Appellant has yet to identify any repugnance or inconsistency between the

specific property descriptions and the general county-wide descriptions in each deed



       6
        Appellant invokes Tex. R. Evid. 404(b), 406 and 801(e), arguing the trial court
improperly refused to consider parol evidence, including character evidence under 404(b). (AB 9,
22, 24-25; ARB 7-14). Appellant’s proffered parol evidence serves no purpose other than to
attempt to create bias against Appellees.

                                         Page 4 of 34
which would render said descriptions ambiguous and violative of the statute of

frauds. Moreover, Appellant’s briefs continue to fail to address Appellees’ numerous

authorities sanctioning blanket property descriptions in general as well as authorities

holding that a general grant will expand a specific grant absent a “repugnance”.

6.    Appellant’s arguments that the Mother Hubbard clause and the general granting

clause are the same clause is wholly unsupported by authority and ignores the fact

that the county-wide language contains its own granting language, separate and apart

from the Mother Hubbard clause. Appellant’s failure to cite to relevant authority on

this point or to provide any meaningful discussion beyond unsupported, declarative

statements constitutes waiver of any argument on the point. Tex R. App. P. 38.1.

Appellant likewise waives his argument regarding the adequacy of the specific grants

in each deed by failing to offer any reply beyond unsupported declarative statements.

(AB 18-19; ARB 5).

7.    Appellant characterizes Appellees’ motion for sanctions as “a smoke screen to

deflect this busy court from the legitimate issues that were earnestly presented by

Appellant.” Appellees set out specifically the deficiencies in Appellant’s briefing in

Appellee’s Reply Brief (AeeB 63-64, 66-68). Rather than address the clear

deficiencies by citing counter authority or attempting to distinguish the numerous

authorities cited by Appellees, Appellant chooses to double down on its inadequate,

                                     Page 5 of 34
unsupported and conclusory briefing.

                               REPLY ARGUMENT

 I.   APPELLANT HAS NO STANDING TO ASSERT FRAUD AND/OR
      STATUTE OF FRAUDS DEFENSES TO ENFORCE THE 1991 DEEDS -
      APPELLANT’S BRIEFS ARE SILENT ON THIS ISSUE.

A.    Appellant has failed to address his lack of standing to assert fraud claims,
      as raised by Appellees’ Reply Brief, which constitutes waiver.

8.    Appellant fails to explain how his vague allegation of fraud by Appellees

against Appellant’s predecessors in interest is relevant to any issue before this Court.

Appellees’ Reply Brief sets out authorities which establish that Appellant has no

standing to assert claims of fraud, undue influence or lack of consideration against

Appellees because he is not in privity of deed with Appellees. (AeeB 47-49). In fact,

neither of Appellant’s Briefs ever uses the word “standing”, much less address it. By

failing to make a succinct, clear, and accurate statement (or any statement at all) of

the arguments in the body of the brief with appropriate citations to authorities the

Appellant waives the issue. See Tex. R. App. P. 38.1(h)(i).

9.    Accordingly, any argument by Appellant as to fraud affecting the enforceability

of the Deeds or limitations tolling by fraudulent concealment or the “discovery rule”

is irrelevant to the Court’s inquiry because Appellant has no standing to assert a fraud

claim against Appellees.


                                      Page 6 of 34
10.   Appellees properly raised the issue of Appellant’s lack of standing to assert

fraud based claims both in the trial court and in their Reply Brief. See (CR 408, 1037-

1040; AeeB 47-49).

11.   Because Appellant has waived any arguments as to standing to assert fraud, the

parol evidence as to Appellees’ character or habit is relevant to no issue before the

Court. The trial court properly disregarded such parol evidence and did not commit

error by granting summary judgment in favor of Appellees on all Appellant’s claims.

B.    Appellant’s argument regarding the “font size” of various granting clauses
      is a fraud claim which Appellant has no standing to make.

12.   Appellant’s “font size” argument is yet another flavor of fraud which Appellant

has no standing to assert. First, Appellant, a professional landman, admits that he

used the same county-wide blanket conveyances when purchasing mineral interests.

(AeeB p 29, p. 30, fn 17, p 37, fn 19, citing CR 1255-1256, CR 1257-1261and CR

1262-1264). “In a civil case, the court will accept as true the facts stated unless

another party contradicts them.” Tex. R. App. P. 38.1(g). Second, the deeds used by

Appellant before 1999, like the 1991 deeds at issue, contained county-wide

conveyance language in the same font size as the rest of the document. (AeeB 11,

citing CR 1832-1833; CR 1255-1256, CR 1257-1261and CR 1262-1264). This is not

a coincidence. The Texas Legislature did not pass legislation that prescribed specific



                                     Page 7 of 34
disclosure notices, including font size, when soliciting the sale of mineral interests

by mail until 1999. (AeeB 11, citing Tex. Prop. Code §5.151). Appellant has yet to

explain why county-wide conveyances with font consistent with the rest of the

conveyance are unlawful prior to the enactment of §5.151.

13.    Appellant’s “font size” argument in this regard is really a fraud argument on

behalf of the original Grantors, which Appellant has no standing to raise. See ¶¶ 8-

11, supra.

C.     Appellant has failed to address his lack of standing to assert statute of
       frauds defenses.

14.    Appellant’s “Issue No. 1" States that the conveyances from Mills and Cope are

void as a matter of law because they do not satisfy the statute of frauds. (AB 7)7

Appellant cites to Morrow v. Shotwell, 477 S.W.2d 538 (Tex. 1972) and other cases

for the proposition that an agreement that violates the statute of frauds is void.

Nowhere in the Morrow is this proposition stated. The Court has stated the rule

correctly - that a contract that fails to comply with the Statute of Frauds is voidable

not void, especially as to a stranger to the transaction. Madera Production Co. v.

Altantic Richfield Co., 107 S.W.3d 652, 662-663 (Tex. Civ. App.– Texarkana 2003,

review denied in part, dismissed in part). (AeeB 48). In Madera, this Court cites a


       7
         Appellant incorrectly states that a contract violative of the statute of frauds is “void”
rather that “voidable” throughout Appellant’s Opening Brief as follows: , P. 7-12.

                                            Page 8 of 34
long line of Texas cases supporting this fundamental rule and goes on to note, “In any

event, as a stranger to the [Agreement], Madera would not have standing to challenge

the agreement on the statute of frauds ground” Id. Appellant is such a stranger not

in privity with Appellees and therefore with no standing to raise statute of frauds

issues to challenge Appellees’ deeds8.

15.    Appellees properly raised Appellant’s lack of standing to challenge the 1991

deeds at issue both in the trial court (CR 407-408) and in this Court (AeeB 47-49).

D.     Appellant Improperly Invokes the “Tainted by Fraud” Language of
       Hooks, which is a limitations case.

16.    Continuing to ignore his lack of standing, Appellant improperly invokes

Hooks. 457 S.W.3d at 59. Hooks addresses the issue of the delay of the accrual of

a cause of action under the discovery rule or fraudulent concealment. The issues

addressed in Hooks is whether a mineral owner satisfies his duty of due diligence to

examine information readily available in the public record to toll limitations where

fraudulent documents are filed with the Railroad Commission. Hooks, 457 S.W.3d

at 59-60. Appellant misstates and misuses the holding of Hooks by arguing that the


       8
         But, c.f. Moore Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 938-39 (Tex.
1972) ( In limited circumstances, a purchaser of land whose grantor has previously made a
contract to sell to another may, in a suit by that other person, assert the defenses the grantor had,
including the statute of frauds). Appellees submits the use of this defense is not applicable to
Appellant, in that his Grantors, Mills and Cope, did not enter a contract to sell the mineral
interests at issue, but rather they executed conveyances.

                                            Page 9 of 34
deeds are “tainted by fraud”9 and listing irrelevant parol evidence which Appellant

alleges proves “fraud”. (ARB 6-14). In this case, there is no issue of fraudulent filing

or fraudulent Railroad Commission filings because only the original Grantors (CR

1826-1827 and CR 1828-1829), not Appellant, had standing to assert a fraud claim.

Even if Appellant had such a claim (he does not), Hooks, a limitations/discovery rule

case, does not apply to the facts of this case.

17.    The issue before the Court is simply the construction of the two unambiguous

deeds signed by each Grantor and filed in 1991 in the real property records of

Harrison County, Texas. Hooks confirmed previous Texas Supreme Court cases

holding that land title records create an irrebutable presumption of actual notice.

With actual notice, there can be no delay of accrual. Hooks, 457 S.W3d at 59. Hooks

cites with approval all of the limitations cases previously cited in Appellees’ Reply

Brief holding causes of action accrue upon filing in the public record.10 (AeeB 61-

62).

18.    Appellant’s Hooks analysis next meanders off the topic of limitations into a

general argument that the deeds at issue were “not only tainted by fraud they were


       9
           (ARB iii (“Issue No. 2"); ARB 6).
       10
         Appellees do not address limitations at length in this reply because Appellant makes no
discernable argument with regard to statutes of limitations issues raised by Appellees. See (AB 6
and ARB 6-14).

                                           Page 10 of 34
immersed by deception by the Appellee.” (ARB 7). Even if Appellant had standing,

Appellant had actual notice of the county-wide conveyances pursuant to Texas

Property Code §13.002, See Texas Consolidated Oils, v. Bartels, 270 S.W.2d 708,

712 (Tex. Civ. App. – Eastland 1954, writ ref’d)(blanket conveyances filed of record

is notice to subsequent purchasers of the land.).

       II. THERE IS NO SHOWING THE DEEDS ARE AMBIGUOUS

A.    Appellant continues to ignore the established law holding blanket property
      conveyances unambiguous.

19.   Appellant continues to argue that county-wide or blanket property conveyances

are per se violative of the statute of frauds because they do not “contain a metes and

bounds description, and does [sic] not contain a volume and page reference to a

prior document that was filed in the County Clerk’s office of Harrison County,

Texas.” (ARB 3) (emphasis supplied). Appellant persists in this argument without

the support of any authority or good faith argument for changing the existing law or

distinguishing the facts of this case. Appellant’s contention in this regard is contrary

to all existing Texas authority. (AeeB 15-25). Appellant has waived this issue because

Appellant’s Briefs do not satisfy Tex. R. App. P. 38.1(i) in that he does not make a

clear and concise argument for the contention made with appropriate citations to

authorities and the record. Appellant simply makes conclusory statements, such as


                                     Page 11 of 34
the one cited above, regarding blanket property descriptions, unsupported by citation

to controlling authority. The requirements of Texas Rule of Appellate Procedure

38.1(i) are not met by “uttering, brief, conclusory statements unsupported by legal

citations.” In re Estate of Taylor, 305 S.W.3d 829, 836 (Tex. App. –Texarkana 2010,

no pet.). Appellant’s failure to cite legal authority or to provide substantive analysis

of the legal issues relating to blanket property descriptions results in waiver of his

complaints. Id.; see also Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex.

App. – El Paso 2007, pet. struck).

20.   Appellant asserts a writing must contain a “metes and bounds” property

description to be enforceable. This is incorrect, a conveyance must furnish the data

to identify the property with reasonable certainty. May v. Buck, 375 S.W.3d 568, 574

(Tex. App. – Dallas 2012, no pet.)(citing Texas Builders v. Keller, 928 S.W.2d 479,

481 (Tex. 1996))(citing Morrow, 477 S.W.2d at 539). Here, the specific property

descriptions and the general granting clauses of a county-wide deed furnish the data

to identify the property of Grantors with reasonable certainty.

21.   Appellant has provided no counter-authority to the cases cited by Appellees

stating that where a Grantor conveys all of his interest in a defined geographic area,

the description is, “...sufficient to reasonably identify and to have conveyed the land,

and constituted notice to subsequent purchaser’s of the land under the

                                     Page 12 of 34
...statutory provision.” Texas Consolidated Oils v. Bartels, 270 S.W.2d at

712(emphasis supplied); Coe v. Chesapeake Exploration, L.L.C., 695 F.3d 311(5th

Cir. 2012). The property description in Consolidated Oils contained no metes and

bounds description or reference to a prior filed document. Id. at 711. The Texas

Supreme Court has expressly recognized the Consolidated Oils fact pattern, wherein

a conveyance’s description describes all grantor’s interests in the State or a named

county, but not metes and bounds or reference to a previously filed document

contained in the property records 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) (emphasis supplied). Consolidated Oils is particularly

applicable to the case at bar in that Appellant is a “subsequent purchaser” who is

charged with notice of the blanket conveyance because the deeds were filed in the

public records in 1991. Consolidated Oils, 270 S.W.2d at 712, citing Revised

St.1925, arts. 6631, 664611. Under Consolidated Oils, Appellant took his subsequent

deeds from Grantors with knowledge of the blanket, county-wide conveyances12.

       11
            Revised St.1925, arts. 6631, 6646 are the predecessors to Tex. Prop. Code Section
13.002.
       12
         As set forth in Appellees’ Reply Brief, Appellant is very familiar with county-wide
property conveyances, being a professional landman who uses them himself. (AeeB 11, citing
CR 1832-1833; CR 1255-1256, CR 1257-1261and CR 1262-1264).

                                            Page 13 of 34
22.   Among the other cases unchallenged by Appellant holding blanket grants are

an exception to the specific property description requirement is Holloway’s Unknown

Heirs v. 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). The Holloway’s case

is on point with the facts of this case. Grantors granted property with specific

property descriptions then used the general language of all land owned by each

Grantor in Harrison County, Texas. (CR 1826-29).

23.   Courts also hold that a conveyance of all grantor’s property in a defined

geographic area satisfies the statute of frauds, rather than being an exception thereto,

because it provides an adequate “nucleus of description” of the property to satisfy the

statute of frauds. Coe v. Chesapeake, 695 F.3d, 318-19 (applying Texas law) citing

Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744, 747 (1937) (holding that

“[t]he description of the [property to be conveyed] as all lots now owned by Mrs.

Kepton in Knox City is sufficient, for it leads to the certain identification of the

property”); Ragsdale v. Mays, 65 Tex. 255, at *1 (1885) (description was adequate

where it identified the property to be conveyed as “[m]y interest in my lands in

Lavaca county and also that in Uvalde County”).

                                     Page 14 of 34
24.    That blanket property descriptions are adequate under the statute of frauds in

the State of Texas is beyond dispute, and Appellant has cited no authority to the

contrary or distinguished the case law. Appellant’s continued argument in this regard

frivolous.

B.     Appellant’s pleadings do not support the ambiguity argument

25.    As discussed in Appellees’ trial court filings (CR 2015-2020) and in Appellees’

Brief (AeeB 2), Appellant’s only pleading in the trial court addressing ambiguity is

Appellant’s conclusory statement that the blanket property descriptions at issue

“created an ambiguity as to the property description.” (CR 2095, section IV). As

demonstrated in Appellees’ Brief and in ¶¶ 19-24, supra, county-wide/blanket

property descriptions such as those in the 1991 deeds at issue are unambiguous and

satisfy the requirements to the statute of frauds as a matter of law. (AeeB 23-25

citing Sun Oil v. Burns, 84 S.W.2d 442, 443 (Tex. Comm'n App. 1935) (similar

blanket property descriptions deemed unambiguous in that it “is not fairly susceptible

to more than one interpretation”). Id13. Accordingly, because no valid ambiguity was

plead or raised, it is appropriate to ignore parol evidence proffered by Appellant and

interpret the language of the deeds from within their “four corners” in favor of


       13
         The Sun Oil v. Burns case is the only precedent of the nineteen (19) cases supporting the
deeds’ blanket conveyances that Appellant addressed in his Briefs, and Appellant misunderstood
or misrepresented the holding therein.

                                         Page 15 of 34
Appellees as a matter of law. See Luckel v. White, 819 S.W.2d 459, 461 (Tex.

1991)(The primary duty of a court when construing an unambiguous deed is to

ascertain the intent of the parties from all of the language in the deed by a

fundamental rule of construction known as the “four corners” rule.).

C.    Appellant’s application of rules of construction is erroneous

26.   When construing an unambiguous deed, the only rule of construction relied on

by the Court to ascertain the intent of the parties is the language in the deed, is the

fundamental rule of construction known as the “four corners” rule. Luckel, 819

S.W.2d at 461. The Morrow case cited by Appellant confirms that: “evidence of [the

parties’] understanding or intent was not admissible” to aid in interpretation of deeds.

Morrow, 477 S.W.2d at 540. Despite this clear prohibition, Appellant attempts to

offer the “intent” of Grantors via affidavits. Each grantor has a financial interest in

the outcome of this appeal as each has sued Appellees in Cause No. 14-0808 in the

71st Judicial District of Harrison County, Texas.

27.   Appellant’s proposed “words appearing earlier in a contract generally have

preference” rule of construction has no application in the context of mineral

conveyances. See Sun Oil v. Burns, 125 Tex. at 552. (“The strictness of ancient rules

for construing deeds like instruments has been relaxed, and it is now well settled that

all parts of the instrument will be given effect when possible, and the intention of

                                     Page 16 of 34
the parties will be gathered from the whole without reference to matters of mere

form, relative position of descriptions, technicalities or arbitrary rules.”)(emphasis

supplied)(internal citations omitted).

28.   A court’s primary obligation is to determine the parties' intent as expressed

within the four corners of the deed. Luckel, 819 S.W.2d at 461. In seeking to

ascertain the parties' intent, this Court must attempt to harmonize all parts of a deed,

even if different parts of the deed appear contradictory or inconsistent. Id. at 462.

29.   Where the intent to convey all property owned by Grantor in a defined

geographic location is clear from the language of the instrument, as is the case here,

the usual rules of construction are not to be used because the intent is expressed

clearly in the deeds. Garcia v. Garcia, 04-05-00538-CV, 2006 WL 1684742, at *3

(Tex. App.—San Antonio June 21, 2006, pet. denied), citing Sun Oil v. Burns, 84

S.W.2d 445-56.

30.   The “documents” to which Appellant refers (and recites verbatim at length in

his briefs) constitute inadmissible parol evidence, including rank hearsay and the

mere unsworn allegations of unrelated third parties. Appellant’s attempt to create an

ambiguity in this manner is improper. See Lewis v. E. Tex. Fin. Co., 136 Tex. 149,

146 S.W.2d 977, 980 (1941) (extrinsic evidence is not admissible to create an

ambiguity in an unambiguous instrument); Prairie Producing Co. v. Schlacter, 786

                                     Page 17 of 34
S.W.2d 409, 413 (Tex. App. – Texarkana 1990, writ denied), citing Superior Oil Co.

v. Stanolind Oil & Gas Co,150 Tex. 317, 240 S.W.2d 281, 285 (Tex. 1951) . In a rare

moment of candor, Appellant’s pleadings admit he is attempting to create an

ambiguity with parol evidence. “This [“all inclusive language”] created an ambiguity

as to the proper description, in that there have been other transactions between

other persons and/or companies and Virginia Rose Mitchell Cope and James H.

Mills”. (CR 2095). This pleading admits Appellant’s only argument for ambiguity

is supported only by parol, which is improper. See Lewis, 136 Tex. at 154. That

Appellant resorts to speculating as to how third parties may have interpreted the deed

exemplifies the weakness of his position14. The Court need only look to the language

of the deeds, which are unambiguous on their face. Appellant’s motive in setting

forth the contents of inadmissible parol evidence at length within the body of his

briefs is transparent. Appellant’s briefs in this regard are an attempt to generally

paint Appellees as bad actors and to prejudice Appellees in the eyes of this Court.

31.   Because it is pellucidly clear that the deeds are unambiguous on their face

under the authorities cited by Appellees, Appellant has chosen to ignore the cases




      14
           (ARB 14).

                                    Page 18 of 34
cited by the Appellees15 and attempts to create ambiguity by collateral parol

documents which include unrelated matters and claims, hearsay and mere unsworn

and unproven allegations (ARB 7-14).

32.    Appellant’s failure to brief the primary issue raised by Appellant on Appeal

(the adequacy of the two 1991 deeds’ property descriptions under the statute of frauds

and the lack of any repugnance therein) effects a waiver of the issue on appeal. See

Tex. R. App. P. 38.1(h)(i); General Serv. Comm’n v. Little Tex. Insul Co., 39 S.W.3d

591, 598, n.1 (Tex. 2001); Fredonia State Bank v. General American Life Ins. Co,

881 S.W.2d 279, 284-85 (Tex. 1994). Texas Rule of Appellate Procedure 38.1(h)

requires both citation to authority and a substantive analysis in regard to an issue.

Failure to either cite authority or advance substantive analysis waives the issue on

appeal. Appellant’s Briefs are limited to arguments based on generalized statements

and “analysis” without substantive relationship to specific legal theories and elements

of those theories. The requirements of Texas Rule of Appellate Procedure 38.1(i) are

not met by “uttering brief, conclusory statements unsupported by legal citations.” In

re Estate of Taylor, 305 S.W.3d at 836. Appellant makes such unsupported

statements through his briefs. Accordingly, this Court should not consider said


       15
         See (AeeB, fn. 10). Appellant references only one of the nineteen cases cited by
Appellees holding blanket property descriptions unambiguous and satisfying the statute of frauds.
See fn 13, supra.

                                         Page 19 of 34
unsupported arguments or discussions advanced by Appellant.

D.    Appellant has failed to identify repugnance between county-wide and
      specific conveyances

33.   Appellees have addressed the issue of “repugnance” in three trial court

pleadings, in Appellees’ Reply Brief (CR 1015-1104; CR 1796-1851; CR. 2041-2063

and AeeB 41-46) and provided citations to authorities showing of lack of repugnance

between the deeds’ two granting clauses renders the property descriptions

unambiguous. (AeeB 35-47).

34.   Appellant has failed to answer the simple question of how the specific granting

clauses conflict with the county-wide granting clauses in each deed. Despite filing

two briefs, Appellant has yet to identify one inconsistency (or “repugnance”) between

the general and the specific granting clauses. Appellant makes no coherent argument

for repugnance.

35.   Appellant has failed to address the numerous authorities set out by Appellees

demonstrating that a blanket, county-wide conveyance enlarges a specific property

description absent repugnance between the two. (AeeB 28-32;40-47). Because

Appellant has not (and cannot) identify any repugnance between the granting clauses,

the deeds are unambiguous in that they are subject to only one reasonable

interpretation as a matter of law. See Sun Oil v Burns, 84 S.W.2d at 446 and Katz v.



                                    Page 20 of 34
Bakke, 265 S.W.2d 686, 688 (Tex.Civ.App. – San Antonio 1954, writ ref’d)(“There

is no repugnance between the blanket granting clause and the particular granting

clause. The blanket clause broadens and enlarges upon the particular.”); see also

Garcia, 2006 WL 1684742 at *2-3.

E.    Specific survey wide granting clause conveyed grantors’ interests in
      specific surveys

36.   Appellant provides no authority or analysis regarding the validity of the

specific survey-wide grants in the deeds. See (AeeB 16-33). In fact, Appellant

blindly speculates, on the one hand, without citation to authority or references to legal

principles, that Appellant’s predecessors in interest, “could have interpreted the

specific survey description clause took [sic] precedence over the county-wide

granting clause.” (ARB 3). This assertion is contrary to Appellant’s own case law

which states that “evidence of [the parties’] understanding or intent was not

admissible.” Morrow, 477 S.W.2d at 540. On the other hand, Appellant argues, “the

specific granting clause does not convey any interest.” (ARB 5). Appellant resorts

to mere speculation as to how third parties may have interpreted the deeds. Appellant

cites to no authorities or even general legal doctrines or principals when making such

arguments. The failure by Appellant to advance a “clear and concise argument for

the contentions made, with appropriate citations to authorities and the record”, waives



                                     Page 21 of 34
such assertions in relation to the specific property description. Tex. R. App. P.

38.1(i). “Bare assertions of error, without argument or authority, waive error.”

McKellen v. Cervantes, 367 S.W.3d 478, 484 n5 (Tex. App. – Texarkana 2012, no

pet.). Uttering brief, conclusory statements unsupported by legal citations constitutes

waiver of the point under Tex. R. App. P. 38.1. In re Estate of Taylor, 305 S.W.3d

at 836. To the extent an argument can be discerned regarding the validity of the

specific granting clauses, it is undisputed that survey or unit wide grants satisfy the

state of frauds. Sun Oil Co. v. Burns, 125 Tex. 549, 84 S.W.2d 442 (Comm'n App.

1935, opinion adopted); U.S. Enterprises, Inc. v. Dauley 535 S.W.2d at 628; 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.

      III.   THE GENERAL, COUNTY-WIDE CONVEYANCE IS NOT A
             “CATCH ALL” OR “MOTHER HUBBARD” CLAUSE. THE
             GENERAL CONVEYANCE CONTAINS SEPARATE “WORDS
             OF CONVEYANCE” CLEARLY EXPRESSING THE INTENT OF
             GRANTORS

37.   Appellant’s Reply Brief persists in asserting that the blanket property

description is really part of the Mother Hubbard clause simply because they are

contained in the same paragraph. (ARB 4-5). Appellant cites no authority for this




                                     Page 22 of 34
novel conclusion.16 Moreover, this unsupported conclusion rests on the assumption

that a general grant can never include more than small strips adjacent to the

specifically described property. (ARB 14). As stated by Justice Hecht in the J. Hiram

Moore, Ltd. v. Greer case cited by Appellant, the heart of Appellant’s argument has

been rejected by the Texas Supreme Court:

       Greer argues that general grants can never include more than small
       strips adjacent specifically described property, or unsophisticated,
       perhaps careless, grantors will be duped out of property they never
       intended to convey. We have squarely rejected Greer's argument in two
       cases, and the argument is at least inconsistent with three others.

172 S.W.3d 609, 615 (Tex. 2005) (concurring)(emphasis supplied).

38.    Justice Hecht went on to confirm that, “[s]ituations in which general grants

cannot be given effect have not arisen frequently.” Id. at 616. The flaw in

Appellant’s analysis is that cases stating Mother Hubbard clauses cannot convey large

bodies of land are limited to conveyances which do not otherwise describe the said

large tracts. See Jones v. Colle,727 S.W.2d 262, 263 (Tex. 1987). (The court, citing

Smith v. Allison, stated “. . . the Court held that a Mother Hubbard clause would only

serve to cover property not described in the deed when that other property consists


       16
         An appellant must provide such a discussion of the facts and the authorities relied upon
as may be requisite to maintain the point at issue; this is not done by merely uttering brief
conclusory statements, unsupported by legal citations. Tex. R. App. P. 38.1(i); In re Estate of
Taylor, 305 S.W.3d at 836 .


                                         Page 23 of 34
of small unleased pieces of strips. . ..”). Here, because the property is described in

the deeds by the county-wide conveyances, the question of whether said properties

are conveyed under the Mother Hubbard or habendum clause is not at issue. (AeeB

16-26). See also Coe, 695 F.3d at 318 (Countywide conveyance constitutes

sufficient “nucleus of description” to satisfy the statute of frauds). Moreover, the

county-wide grant contains its own granting language conveying all Grantor’s interest

in the county separate and apart from the Mother Hubbard clause language. (CR

1826-27 and CR 1828-29).

39.   The county-wide conveyances state “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 described correctly”. (CR 1826-27 and

CR 1828-29). This language is clear and unequivocal and directly expresses the

Grantors’ intent to convey all of the mineral interests “owned by Grantor” in the

county. This general granting clause is nearly identical to the general granting clause

at issue in Garcia, 2006 WL 1684742, *1. The Garcia court held that:

      The construct of the deed in this case is governed by a line of cases that
      discuss the effect of a general granting clause that broadens a specific
      granting clause. See, e.g. Holloway’s Unknown Heirs v. Whatley, 133
      Tex. 608, 131 S.W.2d 89 (Tex. 1939); Sun Oil Co.v. Burns, 235 Tex.
      549, 84 S.W.2d 442 (Tex. 1935); Katz v. Bakke, 265 S.W.2d 686 (Tex.
      Civ. App. – San Antonio 1954, writ ref’d). Each of these cases is
      instructive.

                                     Page 24 of 34
Garcia, 2006 WL 1684742, *2. The clear intent as expressed in each deed is that

Grantor “hereby conveys to Grantee” the mineral interests owned by Grantor in the

county. (CR 1826-27 and CR 1828-29).

40.    Where the intention is that a general grant is intended, the general grant

enlarges the specific grant and the usual rules of construction are not applied.

Garcia, Id. at *3, citing Sun Oil v. Burns, 84 S.W.2d at 444, 446-47. The deeds

contain a Mother Hubbard clause separate and apart from the county-wide

conveyance.    Moreover, the Mother Hubbard clauses are meant to convey small

strips of land bordering the described tract or tracts. See Sun Oil v. Bennett, 125 Tex.

540, 84 S.W.2d 447, 452 (Tex. 1935). Appellant’s argument in this regard (AB 12-

16) is simply misplaced. There are no issues of small strips of adjacent lands or

vacancies in surveys in this case. Rather, the general granting clause clearly

expresses within each deed the intent to “hereby convey” all the mineral interests

owned by Grantor in the County. (CR 1826-27 and CR 1828-29).

      IV. APPELLEES’ MOTION FOR SANCTIONS IS WELL FOUNDED

41.    Appellant fails to substantially respond to Appellants Motion for Sanctions

under Tex.R.App.P. 45. The basis of Appellees’ motion, the Appellant’s failure to

even discuss or attempt to distinguish the nineteen cases holding blanket property

description satisfy the statute of frauds, remains unaddressed by Appellant. If

                                     Page 25 of 34
Appellant believes that the cases in support of the county-wide blanket conveyances

do not apply to the deeds at issue, or that Appellees have improperly invoked said

authorities, Appellant has an obligation to address the authorities cited by Appellees.

Alternatively, Appellant has an obligation to distinguish the deeds at issue on their

particular language. Appellant has done neither, and therefore has not filed a

meaningful response to Appellees’ motion for sanctions and has filed a frivolous

appeal.

1.    TURNING A BLIND EYE TO CONTRARY AUTHORITY.

42.   Showing conscious indifference to settled rules of law—i.e., turning a “blind

eye” to established law—is one factor to consider in deciding whether to award Rule

45 damages. See Brandt v. West., 892 S.W.2d 56, 79 (Tex. App.—Houston [1st Dist.]

1994 writ denied). In Brandt, the court found that on several points, the appellants

had turned a “blind eye” in that they did not discuss existing law that defeated some

of their contentions, and had not argued that those rules of law should be changed.

Id. Brandt holds that if a party discusses existing law adverse to its position and raises

a legitimate argument to change that law, then damages for a frivolous appeal should

not be awarded. Id. Appellant does not address well established case law on county-

wide conveyances, and does not argue that the adverse law should be changed.

43.   Appellant’s failures to address the authorities confirming the validity of blanket

                                      Page 26 of 34
property descriptions with the statute of frauds and failure to address Appellant’s lack

of standing to assert fraud as a third party to the deeds or attack the deeds on fraud

or statute of frauds grounds constitutes “turning a blind eye”.

44.   Other numerous instances of Appellant turning a blind eye to controlling

authorities, both those cited by Appellee and those adverse points within the cases

cited by Appellant are set out at length in Appellees’ Reply Brief. (AeeB 43-47, 60-

61). Other examples of Appellant’s blind eye approach are set forth in Paragraphs 45

through 49.

45.   Appellant cites to Sun Oil v. Burns in his opening brief on page 13. Appellant

turns a blind eye to the actual holding of the case, which recognizes as valid blanket

grant which expands a grant of particularly described property. Sun Oil v. Burns, 84

S.W.2d at 446. While it is expected that counsel will zealously argue his client’s

position by attempting to distinguish or argue the nuances of a particular case, a line

is crossed when dicta is plucked out of a case whose central holding, which Appellant

ignores, supports the opposing counsel’s argument. This is improper and Appellees

should not have to pay the undersigned to point out such omissions to this Court.

46.   In addition, Appellant has failed to address the case law providing that where

there are several granting clauses, the general granting clause expands the specific

granting clause, absent a repugnance. Appellant has still failed to undertake any

                                     Page 27 of 34
meaningful discussion of the lack of repugnance or conflict between the granting

clauses (or identify any repugnance).

47.   Rather than address the issue of whether the deeds contain adequate property

descriptions as a matter of law, Appellant improperly attempts to invoke character,

habit and purported party admission parol evidence under Rules of Evidence 404(b),

406 and 801(e)(2). (AB 9, 22 and 24). Nowhere does Appellant cite authority or tell

this Court why character or habit evidence could ever be relevant where the issue is

simply whether the intent of the parties, as expressed in the instruments, provides an

adequate nucleus of description to identify the property under the statue of frauds.

On the contrary, Appellant is quite brazen in setting forth the improper purpose for

setting forth such irrelevant parol evidence at length. Appellant states that the parol

evidence at issue is relevant because, “the trial court improperly refused to consider

Appellant’s prior bad acts”. (AB 9), failing to acknowledge the trial court followed

the well established principals of law.

48.   Even after being alerted to the allegations of frivolity asserted in Appellees’

Reply Brief, Appellant has failed and refused to address authorities raised by

Appellees.      Moreover, Appellant’s reply continues his pattern of misleading

characterization of case law and unsupported declarative statements without citation

to authority.

                                     Page 28 of 34
Inadmissable Parol and Hearsay

49.   Appellant continues to improperly attempt to create a fact issue with

inadmissible parol.    Subsequent transactions between the parties, including

documents evidencing attempts to purchase the interests are not probative of the

construction of deeds. Such evidence cannot create a fact issue as to what was

actually conveyed. Such evidence was easily explained as errors by employees

attempting to purchase interests already owned by Appellees. (CR 464). To the

extent such evidence is considered, it does not constitute an “admission” by the

Appellees that is any way controlling as to what was actually conveyed. See Prairie

Producing Co.,786 S.W.2d at 413. In addition Appellant continues to argue that

hearsay statements in letters and pleadings should have been considered by the trial

court. (ARB 6-10). Pleadings, even if sworn, are never competent summary

judgment evidence. Wheeler v. Sec. State Bank, N.A., 159 S.W.3d 754, 757 (Tex.

App.—Texarkana 2005, no pet.) citing Americana Motel, Inc. v. Johnson, 610

S.W.2d 143 (Tex.1980). Hearsay is not competent summary judgment evidence which

could have been considered by the trial court. Dolcefino v. Randolph, 19 S.W.3d 906,

927 (Tex. App. – Houston [14th Dist], pet. denied). Appellees timely objected to the

use of such inadmissible parol and hearsay in the trial court. (CR 1035-26; CR 1040-

1050).

                                   Page 29 of 34
2.    APPELLANT’S MISREPRESENTATION OF AND CASE LAW AND
      “TURNING A BIND EYE” TO AUTHORITIES

50.   To determine whether an appeal is frivolous, the Appellate Court looks at the

record from the viewpoint of the advocate and decides whether there are reasonable

grounds for the advocate to believe the case could be reversed. Abarca v. Scott

Morgan Residential, Inc., 305 S.W.3d 110 (Tex. App. – Houston [1st Dist] 2009, rev.

denied); Colvin v. Colvin, 291 S.W.3d 508 (Tex. App. – Tyler 2009, no pet.).

Looking from the Appellant’s viewpoint, the record of Appellees motions for

summary judgment and evidence attached thereto should have alerted Appellant to

the 120 years of Texas law that validates county-wide conveyances. In addition,

Appellant’s own use of county-wide conveyances and admission that they can be

enforceable is telling. (CR. 1079; CR 1255, CR 1259, CR 1263, CR 1811-12, CR

1818, CR 1822, and 1833-35). Appellant cites case law that supports Appellees and

even admits that the proper analysis is not intent of the parties, but a reading of the

four-corners of the conveyance. See Morrow, 477 S.W.2d at 539. (“a writing need

not contain a metes and bounds description to be enforceable”); see also Tex.

Builders, 928 S.W.2d at 481(A metes-and-bounds description is not required to

satisfy the statute of frauds.); Graff v. Berry, 06-07-00058-CV, 2008 WL 704310, at

*5 (Tex. App.—Texarkana Mar. 18, 2008, pet. denied) (the law does not require the



                                     Page 30 of 34
judgment to contain a metes and bounds description); Lee v. Aurora Loan Services,

L.L.C., 06-08-00077-CV, 2009 WL 167067, at *2 (Tex. App.—Texarkana Jan. 27,

2009, no pet.) (A writing need not contain a metes and bounds property description

to be enforceable.); see 4 Tex. Prac., Land Titles and Examination §15.36 (3d

ed.)(validity of blanket description of land).

51.   Finding Appellant’s filings frivolous appeal is not unlike the finding in Bridges

v. Robinson. 20 S.W.3d 104 (Tex. App. – Houston [14th Dist.] 2000), disapproved

of by Telthorster v. Tennell, 92 S.W.3d 457 (Tex. 2002) on other grounds. In

Bridges, the court ruled that the appeal of the denial of summary judgment was

objectively frivolous, warranting sanctions, in light of well-established case law

refuting each of appellant’s grounds. Appellant has ignored well-established case law

refuting his argument that a metes and bounds description (and/or a volume and page

reference to a previously filed document containing same) is necessary in order to

adequately describe real property. (AB 8-11, ARB 3). Appellant turns a blind eye

to well-established cases holding county-wide deeds have been held valid without a

metes and bounds description by the numerous authorities cited by Appellees. See

¶¶20-21, supra. Appellant’s continued argument in this regard constitutes the

presentation of his “distorted version of the law.” Swate v. Crook, 991 S.W.2d 450,

456 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).

                                     Page 31 of 34
52.   Despite being confronted with the authorities counter to Appellant’s assertion

in this regard (AeeB¶¶ 42-57), Appellant continues to present the demonstrably false

assertion that a metes and bounds description is required under the statute of frauds.

(ARB 3).

53.   By turning a blind eye to relevant authorities on the fundamental issues before

the Court, and by setting out verbatim irrelevant parol “character” and “habit”

evidence when the issue is the adequacy of property descriptions in deeds, it is

Appellant who wastes this Court’s time and the undersigneds clients’ money by

proceeding in such a fashion.

54.   Appellant’s presentation of the issues to this Court is anything but “earnest”.

An earnest presentation of the issues would address the authorities raised in the trial

court and on appeal and present cogent counter-authorities or attempt to distinguish

the facts of this case. Not only does Appellant fail to meet this minimum standard,

he compounds the harm by advancing such arguments in his reply brief after they

have been refuted by citation to relevant authority by Appellees.

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellees respectfully requests

this Court to uphold the trial court’s Order granting Appellees’ summary judgment

against Appellant. Appellees further request this Court find that after considering the

                                     Page 32 of 34
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 33 of 34
                      CERTIFICATE OF COMPLIANCE

     I hereby certify that the word count of Appellees’ Sur-Reply Brief is 7,201
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 October 16, 2015, a true and correct copy of Appellees’ Sur-
Reply Brief was served on counsel of record as indicated below.

Mr. Bob Whitehurst                        Via Electronic Delivery: 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 34 of 34
